VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00970
Package ID: USCOURTS-cofc-1_21-vv-00970
Petitioner: Magdalena Fernandez
Filed: 2021-02-22
Decided: 2024-04-05
Vaccine: pneumococcal
Vaccination date: 2020-06-12
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 83435

AI-assisted case summary:
Magdalena Fernandez, an adult, received a pneumococcal vaccination on June 12, 2020. Within two days, she developed severe left shoulder pain and limited range of motion, diagnosed as Shoulder Injury Related to Vaccine Administration (SIRVA). She presented to urgent care two days after vaccination due to excruciating pain and inability to move her arm. Medical records documented tenderness, limited range of motion, and pain with movement over the subsequent months, with diagnoses including adhesive capsulitis and rotator cuff tendonitis. Ms. Fernandez submitted medical records, her own sworn statements detailing her symptoms and treatment challenges, and cited precedent cases to support her claim. Respondent conceded entitlement, agreeing that her injury was consistent with SIRVA as defined by the Vaccine Injury Table, noting no prior history of shoulder issues, rapid onset of pain post-vaccination, pain localized to the injection site, and no other identified cause. The case proceeded to a damages determination, where the parties could not agree on compensation. The court awarded Ms. Fernandez $83,435.00, comprising $82,500.00 for past pain and suffering and $935.00 for past unreimbursable medical expenses.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00970-0
Date issued/filed: 2023-06-06
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/28/2023) regarding 33 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00970-UNJ Document 37 Filed 06/06/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-970V
UNPUBLISHED
MAGDALENA FERNANDEZ, Chief Special Master Corcoran
Petitioner, Filed: April 28, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Pneumococcal
Conjugate Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 22, 2021, Magdalena Fernandez 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 she suffered a Table injury – Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of her June 12, 2020
pneumococcal vaccination. Amended Petition, filed September 29, 2021 at 1, ¶¶ 1, 26.
Petitioner further alleges that she received the vaccine within the United States, that she
suffered the residual effects of his injury for more than six months, and that she has never
filed a civil action or received compensation for her injury. See Amended Petition at ¶¶ 1,
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (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 (2018).

Case 1:21-vv-00970-UNJ Document 37 Filed 06/06/23 Page 2 of 2
24-25. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On April 26, 2023, 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 indicates that he
has concluded that [P]etitioner’s alleged injury is consistent with SIRVA as
defined by the Vaccine Injury Table. Specifically, [P]etitioner had no history
of pain, inflammation, or dysfunction of her left shoulder; pain occurred
within 48 hours after receipt of an intramuscular vaccination; pain was
limited to the shoulder in which the vaccine was administered; and no other
condition or abnormality has been identified to explain [P]etitioner’s
shoulder pain.
Id. at 4 (citing 42 C.F.R. §§ 100.3(a), (c)(10). Respondent further agrees that “[P]etitioner
suffered the residual effects of his condition for more than six months.” 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_21-vv-00970-2
Date issued/filed: 2024-04-05
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 02/15/2024) regarding 44 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. (Main Document 55 replaced on 4/5/2024 to correct the pdf.) (fm).
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Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 1 of 9
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No 21-0970V
M.F., Chief Special Master Corcoran
Petitioner,
v. Filed: February 15, 2024
Refiled as Redacted: April 5, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 22, 2021, M.F. 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 alleged that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) following her receipt of a pneumococcal conjugate (“Prevnar
13”) vaccination on June 12, 2020. The case was assigned to the Office of Special
Masters (“OSM”)’s Special Processing Unit (“SPU”).
In April 2023, I issued a Ruling on Entitlement for the Table SIRVA claim,
consistent with Respondent’s recommendation (ECF Nos. 31, 33). However, the parties
could not reconcile their valuations of Petitioner’s past pain and suffering, and they
submitted briefing on the subject. Petitioner’s Motion for a Ruling on the Record on
1 When this decision was originally filed, I advised my intent 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 (2018) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b),
Petitioner filed a timely motion to redact certain information. This decision is being posted with Petitioner’s
name redacted and replaced with initials. Except for those changes and this footnote, no other substantive
changes have been made. This decision will be posted on the court’s website with no further opportunity to
move for redaction.
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 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 2 of 9
Damages filed July 31, 2023 (ECF No. 40) (hereinafter “Brief”), Respondent’s Response
filed Oct. 12, 2023 (ECF No. 42); Petitioner’s Reply filed Oct. 27 (ECF No. 43). The matter
is now ripe for adjudication.
For the following reasons, I find that Petitioner is entitled to compensation
in the total amount of $83,435.00 (representing $82,500.00 for past pain and
suffering, and $935.00 for past unreimbursable medical expenses).
I. Authority
In another recent decision, I discussed at length the legal standard to be
considered in determining damages, and how to properly evaluate prior SIRVA
compensation determinations within SPU. I fully adopt and hereby incorporate my prior
discussion in Sections I and II of McKenna v. Sec’y of Health & Hum. Servs., No. 21-
0030V, 2023 WL 5045121, at *1-3 (Fed. Cl. Spec. Mstr. July 7, 2023).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[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). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). 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.3
II. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Consideration of the Evidence
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult, with no impairments to her mental faculties or
capacity. I therefore analyze principally the severity and duration of Petitioner’s injury. In
performing this analysis, I have reviewed the record as a whole, including all medical
records, declarations, affidavits, and all other filed evidence, plus the parties’ briefs and
other pleadings. I also have taken into account prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases, and I rely upon my experience adjudicating these
cases. However, I base my ultimate determination on the specific circumstances here.
3 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. 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)).
2

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 3 of 9
At the time of vaccination, Petitioner was middle-aged, with “no prior history of left
shoulder pain and dysfunction.” Response at 2. But the parties agree on the
“significan[ce]” of another preexisting medical condition for Petitioner: “Primary biliary
cholangitis [hereinafter “PBC”] [which] is a long-term (chronic) liver disease… [which]
destroys the tube-like structures (bile ducts) in the liver that produce the digestive fluid
called bile. Bile is necessary for absorbing fats, cholesterol, and fat-soluble vitamins. As
bile ducts are destroyed, bile backs up in your liver and causes liver damage. It can lead
to scarring of the liver (cirrhosis)… [PBC] may be an autoimmune disease.” Ex. 7 at 178,
cited in Reply at 34; see also Response at 2 (stating that Petitioner’s PBC was
“significant”).
Pre-vaccination medical records confirm Petitioner’s PBC diagnosis – and that as
early as 2012, a liver specialist instructed Petitioner to “avoid any” OTC medications. Ex.
3 at 31. Petitioner was also warned of “hepatoxic medicines… damaging to the liver when
taken too often or in excessive amounts. These can include… [OTC] and prescription
medicines.” Ex. 7 at 179. Petitioner was therefore instructed to consult with her health
care providers about taking any new medicines in the context of her PBC, as well as
possible contraindications for the drug taken to manage it – ursodiol. Id. at 56 – 57.
Petitioner received the at-issue pneumococcal vaccine in her left arm at a local
pharmacy on Friday, June 12, 2020. Ex. 2 at 6.
Two days later, on Sunday, June 14, 2020, Petition arrived at an urgent care
facility, with a chief complaint of pain and an inability to move her left arm since the
vaccination two days earlier. Ex. 10 at 12. Petitioner “state[d] that she has a liver disorder
and [is] unable to take OTC medications so she ha[d] not taken anything for her
symptoms.” The current pain was “excruciating,” and she was seeking urgent care to
avoid “further damage[e].” Id.
A physical examination found “evidence of injection” in the left upper arm just
below the shoulder joint; tenderness to palpation over the injection site and posterior to
it; and minimal range of motion (“ROM”) with abduction to about 20 degrees with
discomfort. Ex. 10 at 12. The urgent care physician assessed “pain status post-injection,”
and discussed that an x-ray imaging would not confirm the presence or absence of nerve,
tendon, or ligament injuries. Id. at 13. The urgent care physician suggested managing the
injury with rest, ice, compression, elevation, and OTC pain medicines until Petitioner
could “follow up with her primary care provider (“PCP”) for further eval.” Ex. 10 at 13.
4 Accord U.S. Department of Health & Human Services - National Institute of Diabetes and Digestive and
Kidney Diseases, Primary Biliary Cholangitis, https://www.niddk.nih.gov/health-information/liver-
disease/primary-biliary-cholangitis (last accessed Feb. 13, 2024), cited in Brief at 2.
3

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 4 of 9
The next contemporaneous documentation is Petitioner’s June 22, 2020, report to
the Vaccine Adverse Event Reporting System (“VAERS”), concerning her vaccination and
subsequent pain. Ex. 11 at 2. Based on her own research, she suspected that the vaccine
was not properly administered. Id. at 2. Petitioner did not recount the urgent care
encounter – but stated: “Presently I still have pain and limited [ROM] in my left arm. I have
a future appointment with a neurologist.” Id.5
On July 7, 2020, Petitioner presented to the University of Texas (“UT”) Physicians
Department of Neurology, where she completed a patient history form for a chief
complaint of shoulder pain. Ex. 12 at 16 – 21. The evaluating neurologist recorded that
Petitioner “was in normal health until 6/12/20 when she began to develop left arm
weakness following a [pneumococcal] vaccine… The symptoms have mostly resolved.
She had pain at the site, but denies any associated numbness… The sensation that a
‘hinge’ in her shoulder was loose… Pain was fine if arm was at her side, but exacerbated
if she extended her left arm. She also reports some decreased [ROM] of her left upper
extremity since the vaccine.” Id. at 24 (emphasis added). A physical examination
confirmed currently “decreased [ROM] [and…] pain with extension of left arm.” Id. at 24,
26. The neurologist suspected that these symptoms had a musculoskeletal etiology, for
which she recommended an orthopedics evaluation. Id. at 26.6
On September 15, 2020, orthopedist Bonnie Gregory, M.D., also affiliated with UT
Physicians, evaluated Petitioner’s same complaint. Ex. 12 at 42. The pain was currently
sharp, occasional, worse with activity, and rated 5/10. Id. On physical examination, the
left shoulder was tender at the bicipital groove and subacromial bursa, with restricted
ROM and positive painful arc, Hawkins, and Neer’s tests. Id. at 43. X-rays were
unremarkable. Id. The orthopedist’s assessment was adhesive capsulitis, for which she
recommended physical therapy (“PT”) – adding: “If persistent pain despite PT, will obtain
MRI left shoulder.” Id. at 44.7
5 For purposes of resolving Petitioner’s SIRVA damages award, it is unnecessary to resolve whether she
sought a neurology evaluation of her own accord, or at the instruction of a primary care provider as she
alleges, see Ex. 1 at ¶ 6. Because even if the neurology evaluation somewhat delayed the diagnosis of a
musculoskeletal injury, it did not delay any appropriate treatment thereof – given that Petitioner declined
any medicines and postponed PT for several months to avoid potentially contracting COVID-19.
6 Petitioner suggests that on July 7, 2020, she completed an additional patient history form, which is found
at Ex. 12 at 2 – 3. However, the form is undated – and it states that Petitioner had already seen a neurologist
for this problem. Id. at 2. Thus, Petitioner may have completed this form in conjunction with her later
orthopedics or sports medicine evaluations, also within the UT Physicians network. See Ex. 12 at 42 – 44,
48 -51.
7 Respondent’s Response at 3, cites to this orthopedic evaluations records as embedded in the primary
care records, at Ex. 3 at 57 – 59.
4

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 5 of 9
On September 21, 2020, Petitioner attended a hepatology appointment for
management of her PBC. Ex. 7 at 191. She reported that after receiving a pneumococcal
vaccine a few months ago, she had developed persistent left shoulder pain and difficulty
lifting her arm vertically (but the complaint was not examined or assessed, by these
unrelated specialists). Id. at 192. Petitioner asked about the “permissib[ility] from a liver
standpoint” about 1) steroids to relieve her left shoulder pain, recommended by an
unspecified physician, and 2) an unrelated medication for an unrelated issue,
recommended by her obstetrician-gynecologist. Id. The hepatologists did not document
any answer about steroids – but expressly approved the second unrelated medication,
albeit with monitoring. See id. at 194 (“If she is administered [the second unrelated
medication], an ALT and GGT at 3 and 6 months would be useful…”).
Also on that same day, Petitioner telephoned the orthopedics practice requesting
to “go ahead and get the MRI [of her left shoulder] scheduled.” Ex. 12 at 45. That MRI,
performed on October 15, 2020, revealed adhesive capsulitis, mild tendinosis of the
supraspinatus and infraspinatus tendons, minimal subacromial-subdeltoid bursitis, and a
small glenohumeral joint effusion. Id. at 46.
On October 27, 2020, at an annual exam with her established primary care
provider, Petitioner again complained about her left shoulder. Ex. 3 at 14. On exam, the
shoulder had limited ROM with extension to 90 degrees, abduction to 70 degrees, and
“severe rigidity of the left shoulder AC joint.” Id. at 15. The PCP assessed adhesive
capsulitis. Id. While the PCP’s records do not indicate a treatment plan, that same day,
she certified that PT was medically necessary to treat this injury. See Ex. 14 at 54.
On October 30, 2020, sports medicine specialist Peter Sabonghy, M.D., also
affiliated with UT Physicians, recorded Petitioner’s consistent history of a post-vaccination
left shoulder injury, with her current pain characterized as sharp, intermittent, increased
with activity, and rated 10/10. Ex. 12 at 48. On physical exam, Petitioner’s left shoulder
had minimal tenderness with deep palpation, pain upon abduction and forward flexion
with internal rotation; and pain upon stress testing of the supraspinatus. Id. at 49 – 50.
The shoulder also displayed decreased ROM with 10 degrees external rotation, 100
degrees forward flexion, and 80 degrees abduction. Id. at 50.8 The assessments were
adhesive capsulitis, impingement syndrome, and rotator cuff tendonitis and strain. Id. The
sports medicine specialist’s recommendations were OTC NSAIDs, rest, ice, and PT. Id.
The sports medicine specialist also noted that Petitioner was “unable to have steroid
8 Normal shoulder ROM for adults ranges from 90 to 100 degrees in external rotation, 70 to 90 degrees in
internal rotation 165 to 180 degrees in flexion, and 170 to 180 degrees in abduction. Cynthia C. Norkin and
D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 84, 88 (F. A.
Davis Co., 5th ed. 2016).
5

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 6 of 9
injections,” and they had discussed “the possibility of surgery… if [Petitioner] continues
to have sufficient symptoms and loss of [ROM].” Id. at 51.
During a November 23, 2020 telehealth encounter, on physical exam Petitioner
was “unable to raise left arm vertically above her head (secondary to injection given in
her shoulder.” Ex. 7 at 222. However, no further assessment or treatment plan of the
shoulder was offered – as the encounter was with medical specialists focused on
managing Petitioner’s PBC and supporting her request to work from home during the
following school semester. Id. at 222 – 23.
At her March 15, 2021, PT initial presentation, Petitioner reported being “dx w/
SIRVA.” Ex. 14 at 5. She reported initial “extreme” pain and inability to move her arm,
which had “slowly gotten better” and she had “learned not to use LUE [left upper extremity]
for activities.” Id. She had “refused corticosteroid injections 2/2 to congenital liver disease
and… report[ed] sleep disturbance with need for pillow support.” Id. Over the past two
weeks, her left shoulder pain had ranged from 1 – 10/10 (being worse with activity). Id. at
5, 53. Physical examination of the left shoulder again revealed tenderness to palpation,
decreased ROM, again decreased strength. Id. at 6 -7. The therapist instructed Petitioner
on a home exercise program (“HEP”). Id. at 10. Over the course of eight total formal PT
sessions in the next two months, Petitioner had overall achieved “excellent progress,
demonstrating good, improved shoulder ROM.” Ex. 14 at 43. Her active ROM had not
returned to the normal range, which would benefit from additional skilled PT. id. But after
the 8th PT session on May 26, 2021, Petitioner was a repeated “no-show,” could not be
contacted at her provided phone number, and she was discharged from the PT practice.
Id. at 47.
In January 2022, Petitioner saw her established primary care provider regarding a
COVID-19 and/or sinusitis infection, for which she was given a prescription for Tramadol
to take for up to seven days. Ex. 15 at 10 – 11.
The next primary care record, from February 2022, supports that Petitioner had
recovered from her acute illness. As part of an annual evaluation, a physical exam of the
left shoulder revealed slightly decreased ROM – with 150 degrees in extension and 110
degrees in flexion. Ex. 15 at 13. But the record does not contain any history relating back
to the 2020 vaccination, and the provider’s assessment was “sprain of rotator cuff
capsule, initial encounter, exercise recommended.” Id. at 15 (emphasis added). No
additional medical records evidence Petitioner’s SIRVA pain and suffering.9
9 Petitioner initially stated that a January 2022 hepatology encounter documented a current complaint and
physical exam findings of a left shoulder injury. Brief at 15 – 16 (citing Ex. 16 at 1 – 4). But Respondent
argues in reaction that these details were carried over from previous medical records, and thus do not
6

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 7 of 9
In September 2021, Petitioner reviewed the above medical history, and stated that
her PBC diagnosis and the Pandemic both complicated her ability to treat her SIRVA.
See, e.g., Ex. 1 (ECF No. 11-1) at ¶¶ 3, 6, 11, 14, 23. In July 2023, Petitioner thereafter
submitted a second statement with additional detail about her pain and suffering. See
generally Ex. 17 (ECF No. 39-1).10
B. Analysis
The medical record evidence reflects that Petitioner’s immediate shoulder pain
was severe, as evidenced by her urgent care encounter just two days after the June 12,
2020, vaccination.
Respondent emphasizes the neurology record from three weeks post-vaccination
which indeed provides that Petitioner’s “symptoms have mostly resolved.” Response at
5, citing Ex. 12 at 24. This is hardly a gross misrepresentation of the evidence at that
time, as Petitioner argues (see Reply at 2), but the neurology record overall is hard to
parse – as it frames many of Petitioner’s statements in the past tense, and then the
physical exam confirms the current existence of pain and decreased ROM, which
warranted an orthopedics evaluation and imaging. Later medical records, however,
document that Petitioner continued to experience ongoing shoulder pain, which was
“intermittent” in the sense that she was limiting her activity in reaction, to minimize the
pain she felt. That pain became severe with movement, her ROM remained limited, and
she was later diagnosed with adhesive capsulitis (which is commonly understood to
develop as a result of such pain-protective behaviors).
The medical treatment of Petitioner’s shoulder was overall spotty – primarily
consisting of conservative management, pain-protective behaviors, limited evaluations,
imaging, and just eight formal PT sessions occurring about nine to eleven months post-
vaccination. But Petitioner has identified additional relevant circumstances - including that
the Pandemic made it more difficult to schedule medical appointments; she had a
particularized fear of contracting COVID-19 because of her PBC; and she wanted to
consult with her PBC specialists about whether any medications or steroid injections for
her shoulder might be appropriate.
support a claim of ongoing left shoulder symptoms. Response at 5 – 6. Petitioner’s Reply does not address
this point. I agree with Respondent’s analysis that the January 2022 hepatology encounter does not
evidence an ongoing left shoulder injury, or active treatment thereof, that can be incorporated into the
SIRVA damages award.
10 Both statements are sworn under penalty of perjury as permitted under 28 U.S.C.A. § 1746.
7

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 8 of 9
I further agree that Petitioner’s PBC is a “unique” fact, reflected throughout the
medical records, that helps explain why she did not utilize any pain medicines or steroid
injection to address her SIRVA. Respondent has not successfully rebutted that
explanation by pointing to an isolated, seven-day prescription for Tramadol. See
Response at 6. There is no evidence that Petitioner actually filled and/or took the
Tramadol prescription – and I agree that it is distinguishable from an ongoing reliance on
pain medications for a shoulder injury lasting for over six months.
The medical records also reflect that after eight PT sessions, eleven and one-half
months post-vaccination, Petitioner had achieved “excellent” progress. Ex. 14 at 43.
Although additional PT was recommended – specifically based on some ongoing
limitations in active ROM – Petitioner did not return for any further PT, and I find that her
explanation for that decision is unhelpful. See Ex. 17 – Second Sworn Statement at ¶ 15
(describing her “paranoi[a]” that a therapist would disclose her medical history throughout
the community, in addition to fears about the COVID Delta variant). There is also
insufficient evidence to conclude that Petitioner’s SIRVA and residual effects persisted
much beyond the last PT encounter, just under one year post-vaccination.
Petitioner maintains that her SIRVA resulted in past pain and suffering which
warrants an award of $85,000.00. See generally Brief, Reply. She compares her case to
“Desrosiers, involving a pregnant petitioner who… was unable to avail herself of standard
treatment modalities11 and Boyd, involving a petitioner who declined steroid injections
due to underlying [diabetes].” Brief at 25.12 Petitioner also argues that she should receive
a higher sum than what was awarded in Boyd because that petitioner’s initial shoulder
pain was less severe, as evidenced by the initial one-month delay in medical record
documentation, despite two intervening encounters. Id.
In contrast, Respondent proposes that I award an unspecified lower amount,
based on my analysis of the evidence presented. Apart from disputing Petitioner’s
contention that her PBC prevented her from utilizing pain medicines or steroid injections,
however, Respondent does not seek to distinguish the Petitioner’s case from Boyd and
Desrosiers – or maintain that any other past cases are more fitting comparisons. Thus,
Respondent’s objection to Petitioner’s demand – “give her less” – provides me with very
little to go on, leaving me to consider mainly the arguments and evidence offered by
Petitioner in support of her demand.
11 Desrosiers v. Sec’y of Health & Hum. Servs., No. 16-0224, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept.
19, 2017) (awarding $85,000.00 for “past and future pain and suffering”). But here in M.F., I expressly
determine that only an award for past pain and suffering is warranted.
12 Citing Boyd v. Sec’y of Health & Hum. Servs., No. 19-1107V, 2021 WL 4165160 (Fed. Cl. Spec. Mstr.
Aug. 12, 2021) (awarding $80,000.00 for past pain and suffering).
8

Case 1:21-vv-00970-UNJ Document 55 Filed 04/05/24 Page 9 of 9
I conclude that Petitioner’s past pain and suffering valuation is overall supported
by her evidence, briefing, and case citations – but that a slightly lower sum is justified
(albeit not because of any reasoned argument put forward by Respondent).13
Accordingly, Petitioner will be awarded $82,500.00 for past pain and suffering.
Conclusion
For all the reasons discussed above and based on consideration of the entire
record, Petitioner is entitled to damages in the form of a lump sum payment of
$83,435.00 (representing $82,500.00 for past pain and suffering, and $935.00 for
past unreimbursable medical expenses).14
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.15
IT IS SO ORDERED. s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13 I admonish Respondent in future cases to propose, and attempt to defend, what he deems an appropriate
award in a disputed action – whatever that sum might be – rather than simply refuse to accept Petitioner’s
proposal. If it becomes Respondent’s practice to express obstinance on these questions, it will become far
more likely that, absent circumstances specific to the case before me, Petitioner will simply receive what is
demanded.
At the same time, however, Petitioner and her counsel are reminded that civility is paramount, when
pursuing either informal resolution or the Court’s formal adjudication of cases. Overheated rhetoric is more
likely to be distracting than persuasive on the actual merits of the case. See, e.g., Reply at 2 (alleging
“glaring, bald-faced misrepresentations of the evidence”); id. at 7 (arguing against “a hypothetical
fairyland…”); id. at 7 (making a comparison to “3rd graders on the playground”).
14 The parties have stipulated to the expenses. Response at 5; Reply at 14.
15 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.
9