VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01559
Package ID: USCOURTS-cofc-1_21-vv-01559
Petitioner: William L. Miller
Filed: 2022-03-22
Decided: 2023-03-13
Vaccine: influenza
Vaccination date: 2020-01-04
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 158027

AI-assisted case summary:
William L. Miller, a 76-year-old retired professor, filed a petition for compensation under the National Vaccine Injury Compensation Program on July 9, 2021. He alleged that he suffered Guillain-Barré Syndrome (GBS) which met the definition on the Vaccine Injury Table, or alternatively, was caused by the influenza vaccine he received on January 4, 2020. Mr. Miller stated he received the vaccine in the United States, suffered residual effects for more than six months, and had not filed a civil action or received other compensation. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on March 22, 2022, conceding that Mr. Miller is entitled to compensation because his GBS met the Table definition. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on April 22, 2022, finding Mr. Miller entitled to compensation. The parties were unable to resolve damages informally, leading to briefing on the matter. On March 13, 2023, Chief Special Master Corcoran issued a decision awarding damages. Mr. Miller's medical history included prior conditions such as gastrointestinal disease, a surgically repaired rotator cuff tear, and prostate cancer. Approximately one week after vaccination, he began experiencing tingling and numbness in his feet and legs, progressing to include right facial drooping and difficulty walking. He was initially seen by his primary care provider, who noted no definitive evidence of GBS but cautioned it might be a very mild form. On January 18, 2020, he visited the emergency room, reporting worsening symptoms and new onset of right facial drooping and inability to close his eye, which were characterized as Bell's Palsy symptoms. He was admitted to the hospital, where a neurologist diagnosed him with acute inflammatory demyelinating polyneuropathy (AIDP), a common form of GBS. Due to his critical condition and risk of respiratory compromise, he was transferred to intensive care and prescribed plasmapheresis. A PICC line was inserted for treatment, and he also developed deep vein thrombosis (DVT) related to this line. Mr. Miller received five courses of plasmapheresis from January 19th to 27th. His condition improved, and he was discharged to inpatient rehabilitation on January 29, 2020. He completed two days of inpatient rehabilitation and was discharged on January 31, 2020. Subsequent medical visits noted continued leg pain, inability to completely close his right eye, and symptoms of DVT. He was prescribed Gabapentin for leg pain and anticoagulants for DVT. By February 12, 2020, his lower extremity pain and coldness had resolved, but he still had facial weakness and DVT symptoms. He continued physical, occupational, and speech therapy, meeting most goals by March 6, 2020. He reported minimal functional deficits but continued to have some vocal quality issues. By May 26, 2020, his DVT had resolved, and he was advised to discontinue medication. He reported feeling about 90-95 percent recovered from GBS, with occasional shortness of breath and inability to run on his heels, but could play tennis. In August 2020, he visited a pulmonary clinic complaining of shortness of breath, assessed as mild airflow obstruction possibly due to weakened diaphragm or mild asthma. By December 2020, COPD was added as a diagnosis. He continued to experience some shortness of breath when playing tennis and singing, and an inability to hold a singing note as long as before. The parties agreed on $3,027.98 for past out-of-pocket expenses. Mr. Miller sought $250,000.00 for past pain and suffering and $10,000.00 annually for future pain and suffering. The respondent argued for $119,500.00 for past pain and suffering and no future award. Chief Special Master Corcoran found Mr. Miller's GBS to be a moderate illness, requiring hospitalization and rehabilitation, with complications including DVT. He noted that most symptoms resolved by May 2020, with residual mild shortness of breath and inability to heel walk. Comparing Mr. Miller's case to others, Chief Special Master Corcoran determined that an award of $155,000.00 for past pain and suffering was appropriate, the same amount awarded in the Nelson case. He found no entitlement to future pain and suffering, as Mr. Miller had not demonstrated that his residual symptoms would have a significant future effect or constitute a permanent disability beyond what was addressed in the actual damages award. The total award was $158,027.98, consisting of $155,000.00 for past pain and suffering and $3,027.98 for past out-of-pocket expenses. The decision was issued on March 13, 2023.

Theory of causation field:
Petitioner William L. Miller, age 76, received an influenza vaccine on January 4, 2020. He alleged Guillain-Barré Syndrome (GBS) meeting the Vaccine Injury Table definition or caused-in-fact by the vaccine. Respondent conceded entitlement, acknowledging Petitioner's GBS met the Table definition. The case proceeded to damages. Chief Special Master Brian H. Corcoran awarded Petitioner $158,027.98, comprising $155,000.00 for past pain and suffering and $3,027.98 for past out-of-pocket expenses. No award was made for future pain and suffering. Petitioner was represented by Kimberly Wilson White of Wilson Law, P.A., and Respondent was represented by Amanda Pasciuto of the U.S. Department of Justice. The decision was issued on March 13, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01559-0
Date issued/filed: 2022-04-22
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/22/2022) regarding 21 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-01559-UNJ Document 25 Filed 04/22/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1559V
UNPUBLISHED
WILLIAM L. MILLER, Chief Special Master Corcoran
Petitioner, Filed: March 22, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Guillain-Barre Syndrome (GBS)
Respondent.
Kimberly Wilson White, Wilson Law, P.A., Raleigh, NC, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On July 9, 2021, William L. Miller 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 Guillain-Barré Syndrome (“GBS”) which
meets the Table definition for GBS or which, in the alternative, was caused-in-fact by the
influenza (“flu”) vaccine he received on January 4, 2020. Petition at 1, ¶¶ 3, 62, 67.
Petitioner further alleges he received the vaccine within the United States, that he
suffered the residual effects of his GBS for more than six months, and that neither he nor
any other party has recfiled a civil action or received compensation for his GBS. Petition
at ¶¶ 3, 63-65. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
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 1:21-vv-01559-UNJ Document 25 Filed 04/22/22 Page 2 of 2
On March 22, 2022, 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 “has concluded that [P]etitioner suffered GBS as defined by
the Vaccine Injury Table and the Qualifications and Aids to Interpretation (“QAI”).” Id. at
7.
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

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-01559-1
Date issued/filed: 2023-03-13
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 02/10/2023) regarding 30 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1559V
UNPUBLISHED
WILLIAM L. MILLER, Chief Special Master Corcoran
Petitioner, Filed: February 10, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Guillain-Barre Syndrome
Respondent. (GBS)
Kimberly Wilson White, Wilson Law, P.A., Raleigh, NC, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 9, 2021, William L. Miller 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 Guillain-Barré syndrome (“GBS”) which
meets the Table definition for GBS or which, in the alternative, was caused-in-fact by the
influenza (“flu”) vaccine he received on January 4, 2020. Petition at 1, ¶¶ 3, 62, 67. The
case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters. After Respondent conceded entitlement, the parties were unable to resolve
damages on their own,3 so I ordered briefing on the matter.
1 Because this 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).
3 For approximately three weeks, the parties attempted to reach an informal agreement regarding damages,
but were unable to agree upon the amount related to Petitioner’s pain and suffering. See Informal Remark,
dated Apr. 14, 2022.

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 2 of 12
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $158,027.98, representing $155,000.00 for actual pain and
suffering (but with no future component), and $3,027.98 for past out-of-pocket
expenses.
I. Legal Standard
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). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award 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). 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).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. 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 & 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)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. 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, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of GBS claims, were
2

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 3 of 12
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
II. Factual History
Petitioner was at the time of vaccination a 76-year-old, retired professor who
exercised regularly and played tennis on a competitive senior team. Exhibit 2 at 9-23;
Exhibit 6 at ¶¶ 2, 5. He previously suffered common conditions and disease – such as
gastrointestinal disease, a surgically repaired left shoulder rotator cuff tear, and prostate
cancer. Exhibit 2 at 9-23.
Approximately one-week post-vaccination, Petitioner began to experience tingling
and numbness in his feet and legs when walking on the bathroom floor – but a stable gait,
a feeling of coldness in his legs, and some difficulty sleeping. Exhibit 2 at 7. During a
January 14, 2020 visit, his primary care provider (“PCP”) observed no evidence of
neurologic defects or GBS, but cautioned that Petitioner may be experiencing a “very mild
form of GBS.” Id. He instructed Petitioner to follow-up with a neurologist if his symptoms
continued. Id.
When seen again by his PCP on January 17th, Petitioner described the same
symptoms, along with generalized myalgia which exacerbated his inability to sleep.
Exhibit 2 at 4. However, he reported no falls and an ability to get up and move within 12
seconds. Id. Noting that Petitioner exhibited normal deep tendon reflexes and strength,
his PCP again ruled out GBS – adding that he was hopeful Petitioner’s symptoms were
“a transient reaction to recent immunizations [which] will resolve without intervention over
the coming week.” Id. at 5. He prescribed Tramadol5 to help Petitioner sleep. Exhibit 2 at
5.
The next day – on January 18th, Petitioner visited the emergency room (“ER”),
complaining of a worsening of his previous symptoms and additional conditions: right
facial drooping and an inability to close his eyes or move his nose, characterized as
classic Bell’s Palsy symptoms. Exhibit 3 at 317, 322. In his affidavit, he indicated that he
had “collapsed in [his] home and could hardly walk.” Exhibit 6 at ¶ 10. The ER physician
opined “there [wa]s nothing to suggest acute stroke,” included transverse myelitis (“TM”)
assigned to former Chief Special Master Dorsey. In early October 2019, the majority of SPU cases were
reassigned to me as the current Chief Special Master.
5 Tramadol hydrochloride is “an opioid analgesic used for the treatment of moderate to moderately severe
pain following surgical procedures and oral surgery, administered orally. DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY (“DORLAND’S”) at 1950 (32th ed. 2012).
3

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 4 of 12
and GBS as differential diagnoses, admitted him to the hospital for a neurologic consult,
and prescribed Valtrex6 and prednisone.7 Exhibit 3 at 322.
Although some test results were normal, a brain MRI was consistent with Bell’s
Palsy, and a lumbar puncture revealed elevated protein levels. Exhibit 3 at 320-322, 630-
636. Seen by a neurologist the next day, Petitioner was diagnosed with acute
inflammatory demyelinating polyneuropathy (“AIDP”) – a common form of GBS. Id. at
389. Noting that he was critically ill and in danger of decompensation to include possible
respiratory compromise, the neurologist ordered Petitioner transferred to intensive care8
and prescribed plasmapheresis. Exhibit 3 at 389-90.
To assist with plasmapheresis, a PICC9 line was inserted into Petitioner’s left
internal jugular, after attempts in the right jugular proved unsuccessful. Exhibit 3 at 444.
A Foley catheter also was insisted to measure urine retention. Id. at 367. Petitioner
received five courses of plasmapheresis from January 19th - 27th. Id. at 1035.
By January 20th, Petitioner’s swallowing and cough were described as adequate,
and his risk of aspiration was characterized as mild. Exhibit 3 at 363-64. After two
plasmapheresis treatments - on January 22nd, it was noted that Petitioner’s weakness
had not progressed. Id. at 517. Although he was hallucinating – seeing rain in the room
and his son’s beard growing, Petitioner reported that he was better and had slept well for
the first time in eight days. Id. at 509-10. On January 28th - the day before his discharge
to inpatient rehabilitation, Petitioner was noted to have met all swallow and speech goals,
and to be making substantial progress towards his occupational therapy goals. Id. at 453-
55. He simulated using the toilet and taking a shower - requiring only one verbal safety
reminder. Id. at 454-55. Petitioner was discharged to inpatient rehabilitation on January
29, 2020.
Upon his arrival at the inpatient rehabilitation facility, Petitioner was assessed as
being able to make his needs known to the staff, ambulating without assistance, and
being without pain. Exhibit 5 at 93. Bruising was observed on his left neck from the PICC
6 Valtrex, known by its generic name – Valacyclovir, “is used to treat infections caused by certain types of
viruses. . . . In adults, it is used to treat shingles (caused by herpes zoster) and cold sores around the
mouth.” https://www.webmd.com/drugs/2/drug-14126/valtrex-oral/details (last visited Feb. 9, 2023).
7 Prednisone is “a synthetic glucocorticoid derived from cortisol, administered orally in replacement therapy
for adrenocortical insufficiency and as an anti-inflammatory and immunosuppressant in a wide variety of
conditions.” DORLAND’S at 1508.
8 The medical records specifies that Petitioner was to be transferred to the NICU, standing for neonatal
intensive care unit. Exhibit 2 at 390.
9 PICC stands for “peripherally asserted central catheter.” MEDICAL ABBREVIATIONS at 468 (16th ed. 2020).
4

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 5 of 12
line and on his right arm from a blood draw. Id. Throughout his two-day stay, he was
described as exhibiting even and non-labored breathing, no difficulty chewing or
swallowing, and able to ambulate independently with a steady gait. Id. at 94. He was
discharged on January 31st. Id.
At a February 6th visit to the neurologist, Petitioner reported continued leg pain for
which he took Gabapentin,10 an inability to completely close his right eye, and “some pain,
swelling, and redness in the LUE[11] since his hospitalization.” Exhibit 4 at 7. Noting that
he was sleeping much better, he theorized that the hallucinations he experienced during
his hospitalization were due to his lack of sleep. Id. He was observed to have a normal
gait and ability to perform a toe walk, but not heel or tandem. Id. at 10. The same day,
Petitioner was seen by a vascular surgeon who diagnosed him with deep vein thrombosis
(“DVT”) - caused by his left jugular catheter, and prescribed Eliquis.12 Exhibit 3 at 245.
After a reaction to this medication caused dizziness - precipitating a visit to the ER two
days later, Petitioner’s Eliquis was replaced by Xarelto.13 Exhibit 3 at 57.
When next seen by his PCP (February 12, 2020), Petitioner reported a resolution
of his lower extremities pain and coldness, but continued facial weakness and symptoms
of DVT. Exhibit 2 at 2. Indicating that, due to his physical therapy (“PT”), he was gaining
strength and only slightly limited in his ability to heel walk, he asked if he could discontinue
Gabapentin. Id.
Petitioner continued to report no pain during PT, occupational therapy, and speech
therapy sessions in February through early March. See generally Exhibit 5. He was noted
as meeting all goals on discharge sheets completed March 6th. Id. at 299, 329, 341. He
was described as “able to jog for 3 minutes with only mild fatigue, able to converse fully”
(id. at 299) and “exhibit[ing] little to no functional deficits” (id. at 329). However, he
“continue[d] to present with minimal, at times mild, dysphonia c/b decreased sustained
phonation, decreased loudness, . . . pitch, [and] range, and hoarse vocal quality.” Id. at
341.
10 “Gabapentin works in the brain to prevent seizures and relieve pain for certain conditions in the nervous
system. It is not used for routine pain caused by minor injuries or arthritis. Gabapentin is an anticonvulsant.”
https://www.mayoclinic.org/drugs-supplements/gabapentin-oral-route/description/drg-20064011 (last
visited Feb. 8, 2023).
11 LUE stands for left upper extremities. MEDICAL ABBREVIATIONS at 353.
12 Eliquis – known by its generic name – Apixaban, “is used to prevent serious blood clots from forming”
due to multiple conditions, including DVT. https://www.webmd.com/drugs/2/drug-163073/eliquis-
oral/details (last visited Feb. 9, 2023).
13 Xarelto – known by its generic name – Rivaroxaban, “is used to prevent . . . blood clots (such as in deep
vein thrombosis-DVT.” https://www.webmd.com/drugs/2/drug-156265-1153/xarelto-oral/rivaroxaban-
oral/details (last visited Feb. 9, 2023).
5

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 6 of 12
Although reporting the same improvement in symptoms as communicated to his
PCP in early February, at his March 10th visit to the neurologist, Petitioner clarified that
he continued to feel some clumsiness and symptoms of DVT – including tingling in his
hands, a feeling of a balloon in his left shoulder, and inability to sleep on his left side.
Exhibit 4 at 2. He indicated that his voice was improving and that he was exercising a few
times a week, sleeping better, and planning to visit Antarctica with his wife. Id. Noting
improved exam results, the neurologist instructed Petitioner to “titrate down” his daily
Gabapentin use. Id. at 5. It appears Petitioner’s last refill of Gabapentin was obtained on
March 28, 2020. Exhibit 9 at 5.
At a May 26th follow-up appointment regarding his DVT, the vascular surgeon
noted “[c]hronic scarring” but no further evidence of DVT. Exhibit 3 at 11. He cautioned
Petitioner to avoid the left arm for future central or peripheral lines or IVs and instructed
him to discontinue his DVT medication. Id. Regarding his GBS illness, Petitioner indicated
he “is still feeling like he is not back to normal but has made some progress. He
complained of occasional shortness of breath. Id. at 12.
On August 10th, Petitioner visited the pulmonary clinic at Duke University,
complaining of shortness of breath – especially when bending over (for example to tie his
shoes). Reporting that he felt 90 to 95 percent recovered from his GBS, he stated that he
could play tennis - but could not run on his heels, and could hold a note for only twelve
seconds as contrasted with a previous duration of 20 seconds. Exhibit 8 at 16. Petitioner
stated that he could play tennis “without feeling too short of breath.” Id. at 17. Noted to
have a minimal oxygen saturation of 95 percent and a rating of 1 on the Borg Dyspnea
Scale,14 Petitioner was assessed as having mild airflow obstruction – likely due to a
weakened diaphragm. However, the pulmonologist theorized that it could reflect mild
asthma. Exhibit 8 at 19; see also id. at 20-21 (several tested-related entries indicating a
diagnosis of “mild persistent asthma without complication”).15 Petitioner was prescribed
an inhaled corticosteroid and Albuterol. Exhibit 8 at 19-20.
When seen again on December 28th, Petitioner reported that he had stopped
taking the inhaled corticosteroid because it caused hoarseness. Exhibit 8 at 44. He stated
that he continued to experience some shortness of breath when playing tennis – which
14 The Borg Dyspnea Scale is a “numerical score, [ranging from 0 to 10], used to measure dyspnea as
reported by the patient during submaximal exercise and is routinely administered during six-minute walk
testing.” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5467923/ (last visited Feb. 8, 2023).
15 It does not appear that Petitioner was diagnosed with COPD (chronic obstructive pulmonary disease) at
this visit. It is mentioned only once in the following statement from the pulmonologist: “He has never been
diagnosed with asthma/COPD in the past, but I wonder if his airflow obstruction is due to some mild
asthma.” Exhibit 8 at 19.
6

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 7 of 12
he was able to do three to four times a week, but not when singing. However, he
complained that he was unable to hold a note for as long as he previously could. Id. At
this visit, COPD was added as a diagnosis, along with the previous mild persistent asthma
diagnosis. Id. at 41. Petitioner was prescribed a different medication and instructed to
return within six months. Id. at 46.
Throughout January and early February 2021, Petitioner communicated with his
pulmonologist on multiple occasions, attempting to find a medication with minimal side
effects which would be covered by his insurance. Exhibit 8 at 59-83. He emailed the
pulmonologist again in early April, asking to discontinue his medication because he
believed it was interfering with his vision and ability to play tennis – noted to be
competitive, at an ability level of 3.5 to 4.0.16 Exhibit 8 at 85. In the email, he stated that
his “breathing seems to be the least of my problems now.” Id. The pulmonologist approved
the proposed discontinuation of Petitioner’s medication and plan to see his
ophthalmologist. Id. at 84-85. No additional medical records have been filed.
Petitioner also has filed three personal affidavits, one affidavit from his wife,
photographs prior to and after his illness, a damages summary, and damages and
expense documentation. Exhibits 6, 11-18, 21-22, ECF Nos. 7, 16, 23, 28. These
documents aligned with the information found in the medical records. Additionally, both
parties filed documentation regarding Petitioner’s tennis ranking and competitions.
Exhibits 19-20, ECF No. 28; Exhibits A, Tabs 1-7, ECF No. 27.
In his third affidavit, Petitioner explained that tennis players are allowed to self-rate
after reaching age 70. Exhibit 21 at ¶ 6. He maintained that, except for a brief period when
he self-rated as 3.5 in order to qualify for a specific tournament, his rating was consistently
4.0 prior to his GBS illness. Id. at ¶¶ 6-9. Providing a letter from the leader of his team
indicating he was moving to the position of substitute in May 2021, he stated that he
played in only one tournament in 2021 post-vaccination – performing poorly, and planned
to play in a tournament in 2022. Id. at ¶¶ 10-12;17 see Exhibit 20 (email and team standing
in May 2021). In his second affidavit, Petitioner indicated he had obtained a rating of 3.5
by February 2022. Exhibit 11 at ¶ 6, 3.
16 Prior to and post-vaccination, Petitioner was rated at an ability level of either 3.5 or 4.0. According to the
USTA (United States Tennis Association), “[a] rating is a number assigned to a player that reflects their
level of playing ability . . . from 1.5 (beginner) through 7.0 (touring pro), which aligns with a set of general
characteristics that break down the skills and abilities of each level, in 0.5 increments.”
https://www.usta.com/en/home/play/adult-tennis/programs/national/usta-league-faqs.html (last visited Feb.
9, 2023).
17 This third affidavit was signed in July 2022. Exhibit 21 at 3.
7

Case 1:21-vv-01559-UNJ Document 37 Filed 03/13/23 Page 8 of 12
III. The Parties’ Arguments
The parties agree Petitioner should be awarded $3,027.98 for past unreimbursed
expenses. Petitioner’s Memorandum in Support of Petitioner’s Motion18 for Findings of
Fact and Conclusions in Law Regarding Damages (“Brief”) at 1 n.1; Respondent’s Brief
on Damages (“Opp.”) at 1 n.2, 13. Thus, the only area of disagreement is the amount of
compensation which should be awarded for pain and suffering. Petitioner seeks
$250,000.00 for his past pain and suffering, as well as $10,000.00 annually for future pain
and suffering in the event that I award less than the requested past component - meaning
the statutory cap would be met.19 Brief at 25, 25 n.9. Respondent argues for an award of
$119,500.00 for past pain and suffering, and no future award. Opp. at 1, 12-13.
To support the amounts he seeks, Petitioner asserted that his circumstances are
similar to those suffered by the petitioners in seven published Program decisions involving
past pain and suffering awards ranging from $155,000.00 to $250,000.00: See generally
Creely, Devlin, McCray, Wilson, Dillenbeck, Gross, and W.C.20 Brief at 12-13.
Emphasizing his good health prior to contracting GBS, difficulties experienced during his
eleven-day hospital stay – his hallucinations, complications related to the PICC line used
to administer his plasmapheresis – his development of DVT, and ongoing symptoms –
breathing difficulties and inability to walk on his heels, Petitioner maintained that “his case
is most factually similar to Creely, Devlin, and McCray.” Id. at 25 (caselaw underlined,
rather than italicized as in the original). Of the cases Petitioner cited, only Dillenbeck
included an award for future pain and suffering. Dillenbeck, 2019 WL 4072069, at *15.
In contrast, Respondent argued that Petitioner’s past pain and suffering was not
18 Petitioner has not filed a motion with this request. Instead, I ordered damages briefing after Petitioner
informed me that the parties had reached an impasse. Status Report, Apr. 14, 2022, at ¶ 6, ECF No. 24.
19 In the Vaccine Act, Congress dictated that any actual and projected pain and suffering award should not
exceed $250,000. Section 15(a)(4).
20 Listed in order of past pain and suffering award, from largest to smallest: Creely v. Sec’y of Health &
Hum. Servs., No. 18-1434V, 2022 WL 1863921 (Fed. Cl. Spec. Mstr. Apr. 27, 2020) (awarding $250,000.00
for actual pain and suffering); Devlin v. Sec’y of Health & Hum. Servs., No. 19-0191V, 2020 WL 5512505
(Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $180,000.00 for actual pain and suffering); McCray v. Sec’y
of Health & Hum. Servs., No. 19-0277V, 2021 WL 4618549 (Fed. Cl. Spec. Mstr. Aug. 31, 2021) (awarding
$180,000.00 for actual pain and suffering); Wilson v. Sec’y of Health & Hum. Servs., No. 20-0588V, 2021
WL 5143925 (Fed. Cl. Spec. Mstr. Oct. 5, 2021) (awarding $175,000.00 for actual pain and suffering);
Dillenbeck v. Sec’y of Health & Hum. Servs., No. 17-0428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr. July
29, 2019) (a decision I issued awarding $170,000.00 for past pain and suffering and $10,857.15, the net
present value of payments of $5,000.00 per year for 22 years); Gross v. Sec’y of Health & Hum. Servs.,
No. 19-0835V, 2021 WL 2666685 (Fed. Cl. Spec. Mstr. Mar. 11, 2021), review denied, 154 Fed. Cl. 109
(2021) (awarding $160,000.00 for actual pain and suffering); W.B. v. Sec’y of Health & Hum. Servs., No.
18-1634V, 2020 WL 5509686 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $155,000.00 for actual pain
and suffering).
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as severe as that described in Dillenbeck, involving an award of $170,000.00, or four
other published Program decisions involving awards ranging from $155,000.00 to
$180,000.00: Johnson, Fedewa, Setaro, and Nelson.21 Opp. at 10-12. He insisted that
Petitioner’s hospitalization and treatment “indicate[d] a far less severe course” than that
experienced by the petitioners in Dillenbeck, Johnson, and Fedewa. Id. at 10. Noting that
the Serato petitioner had difficulties golfing after his illness, Respondent argued that
Petitioner’s tennis abilities were not as limited as he claimed. Id. at 10-12 (citing
Petitioner’s prior and current rankings). Contrasting Petitioner’s recovery with that of the
Nelson petitioner – who continued to experience difficulties walking during and after his
inpatient rehabilitation, Respondent insisted his proposed amount of $119,500.00 -
$35,500.00 lower than the Nelson petitioner’s award, is appropriate. Id. at 12. He
maintained that “because [P]etitioner has failed to show that his residual symptoms would
have a significant effect on him in the future, he should not be awarded future pain and
suffering.” Id. (citing Devlin, 2020 WL 5512505, at *4).
In his responsive brief, Petitioner disagreed with Respondent’s assertion that
Petitioner’s circumstances “demonstrates a less severe course of GBS.” Petitioner’s
Memorandum in Response to Opp. (“Reply”) at 2-3 (emphasis in the original). He
maintained that Respondent had incorrectly stated important facts related to his
symptoms, treatment, and current abilities. Providing documentation regarding his
difficulties playing tennis at his previous level, his third affidavit, and an affidavit from his
wife, Petitioner stressed that he continues to experience breathing difficulties which
interferes with his ability to play tennis and sing in the choir and an inability to walk on his
heels. Id. at 3-4; see Exhibits 19-22, ECF No. 28.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
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 that would impact his
awareness of his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
In performing this analysis, I have reviewed the record as a whole, including the
medical records, affidavits, and all assertions made by the parties in written documents.
21 Listed in order of past pain and suffering award, from largest to smallest: Johnson v. Sec’y of Health &
Hum. Servs., No. 16-1356V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00
for actual pain and suffering); Fedewa v. Sec’y of Health & Hum. Servs., No.17-1808V, 2020 WL 1915138
(Fed. Cl. Spec. Mstr. Mar. 26, 2020) (awarding $180,000.00 for past pain and suffering); Setaro v. Sec’y of
Health & Hum. Servs., No. 16-135619-0207V, 2021 WL 1440207 (Fed. Cl. Spec. Mstr. July 20, 2021)
(awarding $160,000.00 for actual pain and suffering); Nelson v. Sec’y of Health & Hum. Servs., No. 17-
1747V, 2021 WL 754856 (Fed. Cl. Spec. Mstr. Jan. 13, 2021) (awarding $155,000.00 for actual pain and
suffering).
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I considered prior awards for pain and suffering in both SPU and non-SPU GBS cases
and rely upon my experience adjudicating these cases.22 However, I ultimately base my
determination on the circumstances of this case.
The evidence shows that Petitioner overall suffered a moderate GBS illness –
requiring an eleven-day hospitalization, only two days of inpatient rehabilitation, and 45
days of outpatient rehabilitation. His initial symptoms were mild, and he was able to walk
– with either little or no assistance throughout his GBS illness. Although he believed he
may be suffering from a stroke when he first visited the ER on January 18th, the ER
physician quickly ruled out this possibility – considering instead differential diagnoses of
TM and GBS. The tentative GBS diagnosis was confirmed the next day by the neurologist
– who specified Petitioner was suffering from AIDP.
No doubt the complications Petitioner experienced due to the administered PICC
line and subsequent DVT, increased his suffering. However, most of Petitioner’s
symptoms had resolved by May 2020 – less than five months post-vaccination. By August
2020, Petitioner no longer was experiencing any DVT-related symptoms. He experienced
only a mild shortness of breath which slightly interfered with, but did not prevent him from,
playing tennis and singing in the choir, and an inability to heel walk. By December 2020
– less than a year post-vaccination, Petitioner was playing tennis three to four times a
week.
The Creely case cited by Petitioner - involving a past pain and suffering award
equivalent to the amount he seeks: $250,000.00 - does not constitute a reasonably-
comparable case. The Creely petitioner suffered GBS after receiving a flu vaccine while
still hospitalized and two days following a total knee replacement. Creely, 2022 WL
1863921, at *10. Thus, he was forced to struggle with the effects of his GBS illness while
recovery from this surgery. For five years, he experienced significant consequences of
his illness, including multiple falls - resulting in two ER visits and one instance of broken
ribs. Unable to climb the stairs in his home, he was forced to sleep in a hospital bed on
the first floor and was unable to bath or shower in his bathroom – located on the second
22 Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through January
1, 2023 reveals the median amount awarded to be $170,000.00. The awards in these cases - totaling 261,
have typically ranged from $125,196.11 to $250,000.00, representing cases between the first and third
quartiles and awards comprised of all categories of compensation – including lost wages. 33 cases include
the creation of an annuity to provide for future expenses.
Past pain and suffering amounts awarded in substantive decisions issued in 21 SPU GBS cases range
from $125,000.00 to $192,500.00, with an additional case involving annuity payments. The median amount
award in these 22 cases was $165,000.00. Awards in cases falling with the first and third quartiles range
from $155,000.00 to $180,000.00.
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floor. Id. The Creely petitioner also encountered significant difficulties operating the pizza
business he and his wife owned. Id. at *10-11.
In contrast to Creely, the cases involving past pain and suffering awards ranging
from $170,000.00 to $180,000.00 offer better comparisons – but they too reflect slightly
worse circumstances than what Petitioner has experienced. The McCray, Devlin, and
Wilson petitioners all required a greater quantity of inpatient and outpatient rehabilitation
– involving intubation for the Wilson petitioner. McCray, 2021 WL 4618549, at *2; Devlin,
2020 WL 5512505, at *3; Wilson, 2021 WL 5143925, at *1-2. And the McCray and Wilson
petitioners were still using a walker and wheelchair, respectively upon discharge. McCray,
2021 WL 4618549, at *2; Wilson, 2021 WL 5143925, at *1-2. The Devlin petitioner’s
suffering was significantly increased by his anxiety – as evidenced by a significant weight
loss, due to the month-long uncertainty surrounding his diagnosis. Devlin, 2020 WL
5512505, at *3.
The petitioners’ recoveries in these cases were slower than that experienced by
Petitioner. The McCray and Dillenbeck petitioners were unable to continue their previous
employment, and the Devlin petitioner was unable to resume his usual activities of tennis
and pickleball. McCray, 2021 WL 4618549, at *2; Dillenbeck, 2019 WL 4072069, at *2,
11; Devlin, 2020 WL 5512505, at *3, 3 n.12. All showed significant residual effects more
than one-year post-vaccination, and the McCray and Dillenbeck petitioners’ illnesses
lasted several years. McCray, 2021 WL 4618549, at *2; Dillenbeck, 2019 WL 4072069,
at *2; Devlin, 2020 WL 5512505, at *3, 3 n.12; Wilson, 2021 WL 5143925. Years after the
onset of her GBS illness, the McCray petitioner continued to use a cane and “take a
number of medications to treat her nerve pain and asthma.” McCray, 2021 WL 4618549,
at *4.
Respondent’s cited cases – Serato and Nelson - offer the best comparisons, but
he has not provided sufficient evidence to demonstrate Petitioner’s past pain and
suffering award should be significantly lower, as argued. Like the Petitioner in this case,
the Nelson petitioner suffered symptoms which were initially mild, along with the later
complication of numerous falls. Nelson, 2021 WL 754856, at *2-3. The Serato petitioner
was also retired and was able to resume his golfing hobby, although he continued to
experience difficulty gripping the club. Serato, 2021 WL 1440207, at *4.
As I previously have explained in decisions and at expedited “Motions Day”
hearings, GBS pain and suffering awards generally should be higher than those awarded
to petitioners who have suffered a less frightening and physically-alarming injury, such as
SIRVA. E.g., McCray, 2021 WL 4618549, at *4. Thus, Petitioner’s past pain and suffering
award should be greater than the $119,500.00 proposed by Respondent. Petitioner’s
proposed amounts, however, are inflated. Weighing all of the above, I find that the severity
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and duration of Petitioner’s GBS symptoms warrant the same past pain and suffering
amount awarded in Nelson - $155,000.00.
Regarding future pain and suffering, Petitioner has not shown that the residual
symptoms he continues to suffer will have as significant an effect on him in the future.
Nor is their evidence in this record of a truly permanent injury disability (beyond the usual
lingering sequelae, which I can address, and do, in the size of my award for actual pain
and suffering). Thus, I do not find that an award for future pain and suffering is warranted
in this case.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $155,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering.23 I do not find that an
award for future pain and suffering is warranted in this case.
I therefore award Petitioner a lump sum payment of $158,027.98,
representing $155,000.00 for his actual pain and suffering and $3,027.98 for his
actual expenses in the form of a check payable to Petitioner. 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.24
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
23 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
24 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.
12