VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-02061
Package ID: USCOURTS-cofc-1_20-vv-02061
Petitioner: Francisco Marcillo
Filed: 2021-09-03
Decided: 2023-05-15
Vaccine: Tdap
Vaccination date: 2020-03-13
Condition: vasovagal syncope
Outcome: compensated
Award amount USD: 286311

AI-assisted case summary:
Francisco Marcillo filed a petition alleging he suffered a syncopal episode after receiving a Tdap vaccine on March 13, 2020. The respondent conceded entitlement, agreeing that Marcillo's vasovagal syncope was a Table injury with onset within one hour of vaccination and that he experienced more than six months of residual effects. The case proceeded to a damages hearing as the parties could not agree on the compensation amount. Marcillo's injury involved a syncopal episode shortly after vaccination, leading to a fall and significant facial trauma, including multiple jaw and facial fractures. He underwent four surgical procedures over seven months, experienced complications like infection and wound drainage, and had his jaw wired shut for a month, requiring a liquid diet and suctioning. His treatment involved extensive dental work, including braces, extractions, and planned future surgeries like total joint replacement, with an estimated total treatment duration of at least four years. The court awarded Marcillo $286,311.91, comprising $250,000.00 for pain and suffering, $30,312.03 for past unreimbursable expenses, and $5,999.88 for lost wages. The award for pain and suffering was at the statutory cap, reflecting the severity and duration of his injury and the intrusive medical care required.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-02061-0
Date issued/filed: 2021-10-08
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/03/2021) regarding 28 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-02061-UNJ Document 30 Filed 10/08/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-2061V
UNPUBLISHED
FRANCISCO MARCILLO, Chief Special Master Corcoran
Petitioner, Filed: September 3, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Vasovagal Syncope
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Laurie Wiesner, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On December 30, 2020, Francisco Marcillo filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered from a syncopal episode after receiving
a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine on March 13, 2020, which
resulted in injury. Petition at 2. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On September 2, 2021, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. Specifically, Respondent states that “petitioner has satisfied the criteria set forth in the
recently revised Vaccine Injury Table (“Table”) and the Qualifications and Aids to
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-02061-UNJ Document 30 Filed 10/08/21 Page 2 of 2
Interpretation (“QAI”), which afford petitioner a presumption of causation if the onset of
vasovagal syncope occurs within one hour after a Tdap vaccination and there is no
apparent alternative cause”. Id. at 7. Respondent further agrees that “petitioner
experienced more than six months of residual effects.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-02061-1
Date issued/filed: 2023-05-15
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 04/14/2023) regarding 47 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:20-vv-02061-UNJ Document 56 Filed 05/15/23 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-2061V
UNPUBLISHED
FRANCISCO MARCILLO, Chief Special Master Corcoran
Petitioner, Filed: April 14, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Vasovagal Syncope
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Steven Santayana, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 30, 2020, Francisco Marcillo filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a syncopal episode after receiving a
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine on March 13, 2020, which resulted
in injury. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters. Although entitlement was conceded, the parties could not
agree on all damages components, so the matter was designated for SPU “Motions Day,”
and argument was heard on April 3, 2023.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-02061-UNJ Document 56 Filed 05/15/23 Page 2 of 11
For the reasons set forth below, and as represented during the hearing,3 I find that
Petitioner is entitled to an award of damages in the amount of $286,311.91, consisting
of $30,312.03 for past unreimbursable expenses, $5,999.88 for lost wages, and
$250,000.00 for actual pain and suffering.
I. Relevant Procedural History
Approximately eight months after the case was filed, Respondent filed his Rule
4(c) Report in September 2021 conceding that Petitioner was entitled to compensation.
Respondent’s Report at 1. ECF No. 27. In view of Respondent’s position, a Ruling on
Entitlement was entered in Petitioner’s favor. ECF No. 28. Thereafter, the parties
attempted to informally resolve the issue of damages, but reached an impasse on an
appropriate award. ECF No. 35. I indicated to the parties that I would resolve their dispute
as to damages via a hearing, which was held on April 3, 2023.4
The parties argued for damages based on briefing completed prior to the motions
hearing. Thus, on March 4, 2022, Petitioner filed a damages brief requesting that I award
$225,000.00 for his past pain and suffering, plus $25,000.00 for his future pain and
suffering. Petitioner’s Damages Brief (“Brief”) at 18, ECF No. 38. On March 28, 2022,
Respondent filed a damages brief proposing a pain and suffering award of $125,000.00.
Respondent’s Damages Brief (“Opp.”) at 1, ECF No. 39. Finally, on April 11, 2022,
Petitioner filed his reply to Respondent’s brief reaffirming his request. Petitioner’s Reply
Brief at 2. ECF No. 40. The parties otherwise agreed, however, that an award of
$30,312.03 in compensation for Petitioner’s unreimbursable expenses and $5,999.88 for
Petitioner’s lost wages is appropriate. There are no other damages components in
contention beyond pain and suffering. ECF No. 45.
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include an award “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may
recover “actual unreimbursable expenses incurred before the date of judgment awarding
such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). Petitioner bears the burden of proof
3 See Minute Entry dated April 5, 2023. The transcript of this hearing, which was not yet filed as of the date
of this Decision, is hereby incorporated into this Decision by reference.
4 See Hearing Order, filed March 27, 2023 (Non-PDF).
2

Case 1:20-vv-02061-UNJ Document 56 Filed 05/15/23 Page 3 of 11
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no precise formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation.”). Factors to be considered when determining an
award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury;
and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y
of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr.
Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid in the resolution of the
appropriate amount of compensation for pain and suffering in each case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, a special master may rely on his or her own experience
adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961
(Fed. Cir. 1993) (noting that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
claims). Importantly, however, it must also be stressed that pain and suffering is not
determined based on a continuum. See Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 579 (2013).
III. Appropriate Compensation for Petitioner’s Pain and Suffering
a. Severity and Duration of Pain and Suffering
Pain and suffering is the sole disputed component of damages herein, so only the
legal standards bearing on its calculation are relevant. In this case, awareness of the
injury is not contested. The record reflects that at all times Petitioner was a competent
adult with no impairments that would impact his awareness of his injury. Therefore, I
analyze principally the severity and duration of Petitioner’s injury.
When performing this analysis, I review the record as a whole, including the
medical records and affidavit, written briefs, and argument at the April 3rd Motions Day
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Case 1:20-vv-02061-UNJ Document 56 Filed 05/15/23 Page 4 of 11
hearing. Based upon the above, I note and find the following:
• On March 13, 2020, Petitioner presented to his primary care physician, Dr. Jennifer
Boudreau, for a physical examination. Ex. 1 at 5-8. The medical note documenting
this appointment indicates that Petitioner’s blood was drawn by Megan Wilson, a
medical assistant. Id. at 7. Because Petitioner reported that he didn’t like needles and
“sometimes feels faint,” he was “laid back on the table.” Id. After the completion of this
procedure, Petitioner indicated that he felt fine and “was sat up on the exam table.” Id.
• Approximately five minutes after the completion of the blood draw, Petitioner was
administered a Tdap vaccine by MA Wilson. Ex. 1 at 7-8. The medical record
documents Petitioner’s report of feeling “woozy.” Id. at 7.
• Despite the medical assistant’s instruction to remain seated, the medical notes reflect
that Petitioner “got up from exam table and attempted to walk across exam room. Had
syncopal episode . . . Found [Petitioner] laying face down.” Ex. 1 at 8.
• In his affidavit, signed on February 28, 2022, Petitioner avers that when he “woke up”
after suffering from his syncopal episode, “I was laying in a pool of blood on the floor
and I remember seeing several of my teeth scattered around me. I had a large cut on
my lip/chin and was bleeding from my nose. I knew immediately that my jaw wasn’t in
alignment and my entire face hurt . . . I was really scared.” Ex. 38 at 2.
• Petitioner was transported to Inova Loudon Hospital’s Emergency Department by
emergency medical services. Ex. 1 at 8; Ex. 6 at 6.
• Upon arrival at the hospital, it was reported that Petitioner experienced a “very brief
loss of consciousness” and hit his head against a metal table. Ex. 6 at 6. The medical
record categorizes Petitioner’s injury as “significant” and notes bleeding from
Petitioner’s teeth, right jaw, and nose. Id. It was further noted that Petitioner had
diminished ability to open his mouth actively or passively greater than “about 40%.”
Id. at 8. The laceration to Petitioner’s lip was repaired with sutures and he was
admitted for further assessment and treatment. Ex. 6 at 14-16, 27.
• CT scans of Petitioner’s cervical spine and head were negative. Ex. 19 at 21.
However, the CT scan of Petitioner’s mandible and facial bones showed extensive
fractures. Id. at 22-23.
• Petitioner states that although the doctors repaired his cuts, “they kept telling me that
I had ‘extensive’ fracture ‘deformities’ involving my jaw and sinuses that would need
surgery. I was terrified that my face was going to be permanently deformed. I was
swollen, and black and blue, and my jaw was off-center. I couldn’t open or close my
mouth.” Ex. 38 at 2.
• On March 14, 2020, plastic surgeon Dr. Marwan Khalifeh performed an open reduction
internal fixation (“ORIF”) of Petitioner’s mandible, open treatment of a Lefort fracture,
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Case 1:20-vv-02061-UNJ Document 56 Filed 05/15/23 Page 5 of 11
mandibulomaxillary fixation (“MMF”), reduction of impacted alveolar ridge/teeth from
Petitioner’s maxilla, debridement of Petitioner’s lower lip, and lower lip tissue
rearrangement. Ex. 6 at 57-58. In addition, Petitioner’s jaw was wired shut. Id. at 31.
• In his affidavit, Petitioner stated that the wiring of his jaw left him stricken with fear and
panic. Ex. 38 at 2. “I would constantly have blood and saliva pooling that I couldn’t
swallow but I couldn’t spit it out either with the wires. They gave me a ‘vacuum’ to
suction everything out so I could breathe and not choke. The doctors taught my wife
and I how to cut the wires in case of emergency but I CONSTANTLY worried about
choking to death. The fear never left me.” Id. at 2-3(emphasis in original).
• Petitioner was discharged home on March 15, 2020 with a diagnosis of jaw fractures.
Ex. 6 at 136.
• Petitioner avers that, once at home, he experienced a great deal of pain and regularly
required pain medication. Ex. 38 at 3. He further states that “I had to be on a liquid
diet and [my wife and I] had to figure out how to get the food inside me. I couldn’t make
suction for a straw and many times we had to resort to dripping the liquid from a spoon
and just letting it run into my mouth. If the liquid had any spice or small fragments it
was a problem. The tiny bits would block the passageways through my teeth and metal
mouthpiece creating a waterfall out of my mouth. It was messy and humiliating.” Id.
• On April 6, 2020, Petitioner presented to Inova Loudon Hospital’s emergency room.
Ex. 6 at 177 – 187. The medical note indicates that although Petitioner “had the wires
[in his mouth] removed [four days ago]”, he felt “something move in [his] mouth.” Id.
at 179. After reviewing a CT scan of Petitioner’s maxillofacial bones, it was determined
that “the right mandibular condyle appear[ed] to be dislocated anteriorly from the
glenoid fossa and [was] moderately rotated.” Id.
• On April 8, 2020, Dr. Mark Domanski and Dr. Khalifeh performed a second ORIF
procedure of Petitioner’s right mandibular condyle fracture as well as a closed
reduction with internal fixation of the coronoid fracture. Ex. 11 at 2; Ex. 17 at 48. They
removed some of the previously placed hardware from Petitioner’s mouth. Id.
• In his affidavit, Petitioner states that prior to the April 8, 2020 procedure, Drs.
Domanski and Khalifeh “told me there was a risk to my ‘smiling’ nerve and I was really
anxious and concerned. The incision from the surgery was just under my right ear and
it left a good scar. The wound drained constantly and just wouldn’t seem to heal.” Ex.
38 at 3-4.
• On April 16, 2020, Dr. Khalifeh opened Petitioner’s incision to “express some
hematoma and mild purulent” and pack the wound. Ex. 28 at 3. Petitioner was
prescribed oxycodone and clindamycin. Id.
• In his affidavit, Petitioner states that he experienced “terrible bursts of pain in the
salivary glands on the right side immediately prior to eating something and I would
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sweat in the area under my right ear when I would eat. It was weird and disturbing.”
Ex. 38 at 4.
• Because Petitioner’s s wound had still not healed, on April 22, 2020, Petitioner was
prescribed a second course of antibiotics. Ex. 11 at 8.
• Petitioner underwent a third surgery on April 29, 2020. Ex. 5 at 14. The procedures
included debridement and irrigation of his right facial wound and removal of the
mandibular arch bar hardware from his mouth. Id. During surgery it was noted that
Petitioner’s left maxillary lateral incisor was loose. Id. at 15.
• In his affidavit, Petitioner states that the third surgical procedural resulted in an
additional wound that became infected. Ex. 38 at 4. Petitioner avers that he
experienced “constant[ ] drainage of fluid and pus from the wound. It was disgusting.
My face was swollen and disfigured. I was embarrassed and felt really badly about
myself.” Id.
• Petitioner presented to Dr. Domanski on May 6, 2020. Ex. 11 at 16. The medical notes
documenting this appointment indicate that Petitioner’s right cheek was swollen and
that his jaw “deviated to the left on opening.” Id. Dr. Domanski discussed his
intraoperative finding of a loose lateral incisor, recommended the continuation of
mouth opening exercises, and encouraged Petitioner to follow up with a dentist “when
[Petitioner] feels he can open his mouth well enough.” Id.
• On May 15, 2020, Petitioner underwent a CT scan of his facial bones. Ex. 11 at 18-
19. The CT showed “[e]xtensive fracture deformities involving the mandible and
maxilla” with the fracture lines still evident. Id. at 19. The CT scan also showed a
displaced screw along Petitioner’s jaw as well as erosive changes involving the
mandibular condyle. Id. The radiologist noted that these findings were suspicious for
osteomyelitis or an infectious process. Id.
• Petitioner presented to Dr. Donald Portez, an infectious disease doctor, on May 21,
2020. Ex. 2 at 10-11. The medical note documenting this visit indicates that although
Petitioner’s mandibular wound had “essentially healed,” he continued to experience
discomfort and swelling. Id. at 10. Dr. Portez determined that Petitioner needed to
undergo IV treatment once daily for approximately four weeks. Id. at 11.
• Petitioner avers in his affidavit that the IV treatment was a very frustrating process
and caused problems with the use of his dominant arm. Ex. 38 at 4 -5.
• On June 3, 2020, Petitioner presented to Dr. Domanski for a follow up visit. Ex. 11 at
36. The medical notes indicate that “[Petitioner] has less swelling on his right face and
pain is decreased. However he continues to have drainage from the wound.” Id.
• Petitioner presented to Dr. Ibrahim Haron, an oral surgeon, on June 16, 2020. Ex. 21
at 1; Ex. 11 at 43. An x-ray of Petitioner’s mouth showed loose screw hardware. Id.
Moreover, Petitioner’s exam revealed right cheek swelling and “R[ight] mandible
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fistula.” Ex. 21 at 1. Dr. Haron “discussed with [Petitioner] the necessity for hardware
removal and infection control prior to orthognathic surgery work up.” Id.
• Petitioner again presented to Dr. Domanski on June 17, 2020. Ex. 11 at 43. He noted
that Petitioner’s facial wound was no longer draining. Id.
• An August 14, 2020 orthodontic note indicates that Petitioner’s treatment would
include numerous interventions, including the removal of at least four teeth. Ex. 16 at
3. The estimated treatment time was 24 – to – 32 months. Id. at 4.
• Petitioner met with Dr. Sarina Dodhia at MedStar Oral and Maxillofacial Surgery at
Washington Hospital Center on August 31, 2020. Ex. 19 at 6-9. Dr. Dodhia
“[e]xplained that it will be a complicated process to get back to pre-morbid function of
patient’s maxilla and mandible and that he may be [sic] orthognathic surgery in the
future once his bones have fully healed.” Id. at 8.
• On September 4, 2020, Petitioner had a CT of his facial bones which showed
significant interval progression of erosive changes to the right mandibular condylar
head. Ex. 19 at 26.
• Petitioner presented to Ravi Agarwal, DDS, on September 24, 2020. Ex. 19 at 15-18.
The notes documenting this appointment reflect Petitioner’s report of difficulty chewing
and right-sided facial pain with salivation. Id. at 15. Dr. Agarwal indicated that
Petitioner would need total joint replacement to correct his jaw deflection and
asymmetry. Id. at 17. He further noted that “[o]nce the right condylar neck/head is
addressed and properly healed, definitive management of the jaw symmetry could be
treated with right total joint replacement, left sided BSSO [bilateral sagittal split
osteotomy]” and potentially a LF1 [LeFort 1] osteotomy to correct Petitioner’s
malocclusion.” Id. Dr. Agarwal also recommended orthodontic treatment and
extractions. Id.
• In his affidavit, Petitioner states his appointment with Dr. Agarwal resulted in extreme
fear “not just because of the pain that [the recommended procedures] would cause[,]
but also because the risks . . . included permanent numbness of my chin, lips and
tongue and infection like I already had.” Ex. 38 at 6.
• Braces were put on a section of Petitioner’s teeth on October 7, 2020. Ex. 30 at 1.
• On October 15, 2020, Petitioner had four teeth extracted under anesthesia. Ex. 25 at
2. The clinical note documenting this procedure indicates that Petitioner had an
“erupted tooth [that required] removal of bone and/or sectioning of tooth.” Id.
• Petitioner attended several orthodontic appointments between November 6, 2020 and
January 19, 2021 to adjust the wires in his mouth. Ex. 30 at 1-2.
• Petitioner returned to Dr. Agarwal on March 18, 2021. Ex. 37 at 8-9. The medical note
indicates that orthodontic treatment to align and level dentition had been initiated and
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that Petitioner’s hardware would be removed once these procedures were completed.
Id. at 9. Dr. Agarwal thought that Petitioner would still need a right temporomandibular
(“TMJ”) replacement, left BSSO, and LF1 procedure. Id. He also recommended the
removal of Petitioner’s wisdom teeth. Id.
• As of February 2022, Petitioner still had braces on his teeth. Ex. 38 at 6 Petitioner
avers that although “[t]he braces have helped a little bit with chewing[,] my jaw is still
misaligned and the right side of my face and jaw continue to be painful. I continue to
have a very hard time sleeping because if there is pressure on either side of my face
it can quickly become painful. Once the braces are removed, it is my understanding
that I will need four additional surgeries including a total joint replacement.” Id. at 6.
• Petitioner further avers that he continues to worry that he “might never fully recover .
. . and that my face may always look ‘off.’” Ex. 38 at 7. He further states that “[t]he
scars from the prior repair and surgery alone bother me a lot, but knowing that my
face is so asymmetrical affects not only how I feel about myself but how I walk through
the world. It is embarrassing.” Id.
There have only been two syncope cases adjudicated in the Program that resulted
in reasoned decisions. The parties acknowledge that the first, H.S. v. Sec’y of Health &
Human Servs., No. 14-1057V, 2015 WL 6155891 (Fed. Cl. Spec. Mstr. Sept. 25, 2015),
involves dissimilar facts. However, both Petitioner and Respondent discuss in their briefs
the second reasoned syncope case, Hietpas v. Sec’y of Health & Human Servs., No. 19-
1702V, 2021 WL 688620 (Fed. Cl. Spec. Mstr. Jan. 5, 2021). While Petitioner argues that
the injuries in Hietpas were far less consequential than his own, Respondent asserts the
opposite. Opp. at 14.5
In Hietpas, the petitioner was awarded $140,000.00 for the pain and suffering she
experienced as a result of a post-vaccination syncopal injury. That petitioner sustained a
chin laceration (causing permanent scaring) and a jaw fracture, and underwent ORIF
surgery two days later. Although she was noted to be healing well in the aftermath of her
surgery, the Hietpas petitioner reported jaw pain, ear pressure, and intermittent difficulty
chewing in the following months. Approximately seven months after surgery, her
complaints included a clicking and popping sensation when opening her mouth. And
5 Respondent also compared Petitioner’s injury and course of treatment to petitioners in syncope cases
involving proffered damages in the amount of $100,000.00. Opp. at 15. Although proffered amounts
represent the full value of damages that Respondent, in good faith, believes should be awarded, I find these
comparisons to be unpersuasive. I have previously noted that while “settled cases and proffers provide
some evidence of the kinds of awards received overall in comparable cases,” they do not reflect the kind
of analysis and weighing of evidence performed by special masters in deciding disputed damages
components. Sakovits v. Sec’y of Health & Human Servs., No. 17-1028V, 2020 WL 379420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020)(emphasis in original). This is especially true in syncope cases, where the
downstream medical care that forms the basis for any damages are attributable to the indirect effect of
vaccination – thus suggesting that the individual circumstances at issue in such a case are of great
importance when attempting to determine damages.
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despite attending seven sessions of physical therapy, she was eventually assessed with
right and left TMJ displacement with reduction. Approximately one year after her injury,
she was fitted with an orthopedic cast that had to be worn for 18 hours a day for a year.
Based on this timeline, Petitioner’s course of treatment lasted approximately two years
after her syncopal episode.
The Hietpas case certainly provides some aid in assessing the proper measure of
damages in this case – and I agree with Petitioner’s contention that “his injuries . . . are
more severe in every regard than those of Ms. Hietpas.” Brief at 13. However, I base my
ultimate determination on the specific circumstances of this case. As the overall record
establishes, Petitioner experienced extraordinary treatment consequences as a result of
his March 13, 2020 syncopal episode and fall. He underwent four surgical procedures in
a seven-month period – at least four of which were complex. The incision that was created
after Petitioner’s second surgery had to be opened to “express[ ] . . . hematoma and mild
purulent” and packed. And because this wound had not healed within an acceptable
timeframe, Petitioner was prescribed a second course of antibiotics. The third surgery,
which occurred around one-and-a-half months after Petitioner’s syncopal episode,
resulted in an infection that required Petitioner to withstand a four-week course of daily
IV treatment.
In addition to surgery, Petitioner’s jaw was wired shut for approximately one month.
During this time, Petitioner was required to abide by a liquid diet and was forced to
“vacuum” his mouth to suction out pooling blood and saliva. Braces were put on
Petitioner’s teeth approximately six months later.
Despite this extensive treatment history, Petitioner still has a difficult road ahead.
Once Petitioner’s orthodontic treatment is completed, he will be required to undergo the
extraction of his wisdom teeth and hardware near his right condyle will be removed.
Petitioner will then be scheduled for a total joint replacement once a mold of his jaw is
taken. I find it likely that Petitioner has more than a year of treatment ahead. Based on
this timeline, Petitioner’s course of treatment is likely to extend over a total of at least four
years.
In making my determination on an appropriate award, I have also fully considered
Petitioner’s sworn affidavit, which describes the pain he experienced as well as the
circumstances that magnified the suffering and emotional distress he experienced as a
result of his syncopal injury. Petitioner credibly recounts his feelings of fear (prior to each
surgical procedure and during the one-month period when his jaw was wired shut),
embarrassment (concerning his visible wounds and dependency on his wife for liquid
nourishment), and ongoing shame (due to noticeable aesthetic changes to his face).
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Given all of the foregoing, this case reflects circumstances in which a full award of
pain and suffering at the top of the “cap” for that damages component is fair and
reasonable. While the injury at issue is not on all fours with the kind of devastating
neurologic harm that some vaccine injuries can be shown to produce, or the kind of
lifelong deficits that some injuries cause, the degree of intrusive medical care required to
ameliorate the Petitioner’s health is notably high – along with the personal impacts of that
treatment. It is for this reason that I do not award a separate component for future
suffering: the extreme and unique circumstances of this case warrant an award that likely
exceeds the statutory cap even before Petitioner’s future pain and suffering is considered.
Accordingly, after taking into account the severity and duration of Petitioner’s
syncopal injury along with the personal hardships he has experienced as a result, and
considering the arguments presented by both parties at the hearing, a review of the
relevant caselaw and the written record, I find that $250,000.00 in total compensation for
actual pain and suffering is reasonable in this case.
b. Award for Past Unreimbursable Expenses
Petitioner also requests $30,312.03 in past unreimbursable expenses. Brief at 18.
Respondent does not dispute this sum. Opp. at 1.6 Therefore, Petitioner is awarded this
amount without adjustment.
c. Award for Lost Earnings
Petitioner requests $5,999.88 in lost earnings. Brief at 18. Respondent does not
dispute this sum. Opp. at 1.7 Therefore, Petitioner is awarded this amount without
adjustment.
Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $286,311.91, (representing $250,000.00 for Petitioner’s actual
pain and suffering, $30,312.03 for past unreimbursable expenses, and $5,999.88 for lost
6 In his responsive brief, Respondent erroneously indicated that Petitioner requested $5,999.88 in
unreimbursable medical expenses. However, in an informal communication, Respondent confirmed that
the correct figure is $30,312.03. See Informal Communication (Remark), entered on April 14, 2023.
Petitioner agrees this sum is correct.
7 In his responsive brief, Respondent erroneously indicated that Petitioner requested $30,312.03 in lost
earnings. However, in an informal communication, Respondent stated that the correct figure is $5,999.88.
See Informal Communication (Remark), entered on April 14, 2023. Petitioner agrees this sum is correct.
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earnings) in the form of a check payable to Petitioner, Francisco Marcillo. This
amount represents compensation for all damages that would be available under Section
15(a).
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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