Timberlake v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1905V

LINDA TIMBERLAKE, Chief Special Master Corcoran Petitioner, v. Filed: February 19, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On December 18, 2020, Linda Timberlake 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”), a defined Table Injury, after receiving an influenza (“flu”) vaccine on September 5, 2019. Petition at 1, ¶ 2. After I determined Petitioner was entitled to compensation in a substantive entitlement ruling, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter.

Status Report, filed Sept. 17, 2024, ECF No. 40. .

For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $108,607.10, representing $107,000.00 for actual pain and suffering, plus $1,607.10 for past unreimbursable 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 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. Hodges v. Sec’y of 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).

Although pain and suffering in the past was often determined based on a continuum, as Respondent argues, that practice was cast into doubt by a Court of Federal Claims decision several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590.

Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 595. Under this approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although Graves is not controlling of the outcome in this case, it provides reasoned guidance in calculating pain and suffering awards – and properly emphasizes the importance in each case of basing damages on the specific injured party’s circumstances.

II. Prior SIRVA Compensation Within SPU4 A. Data Regarding Compensation in SPU SIRVA Cases SIRVA cases have an extensive history of informal resolution within the SPU. As of January 1, 2025, 4,545 SPU SIRVA cases have resolved since the inception of SPU ten years before. Compensation has been awarded in the vast majority of cases (4,397), with the remaining 148 cases dismissed.

2,506 of the compensated SPU SIRVA cases were the result of a ruling that the petitioner was entitled to compensation (as opposed to an informal settlement), and therefore reflect full compensation.5 In only 270 of these cases, however, was the amount of damages determined by a special master in a reasoned decision.6 As I have previously All figures included in this decision are derived from a review of the decisions awarding compensation within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited are approximate.

Because multiple competing factors may cause the parties to settle a case (with some having little to do with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.

B. Pain and Suffering Awards in Reasoned Decisions In the 270 SPU SIRVA cases in which damages were the result of a reasoned decision, compensation for a petitioner’s actual or past pain and suffering varied from $30,000.00 to $215,000.00, with $87,000.00 as the median amount. Only ten of these cases involved an award for future pain and suffering, with yearly awards ranging from $250.00 to $1,500.00.9 In one of these cases, the future pain and suffering award was limited by the statutory pain and suffering cap.10

Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A)); see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir. 1994) (requiring the In cases with lower awards for past pain and suffering, many petitioners commonly demonstrated only mild to moderate levels of pain throughout their injury course. This lack of significant pain is often evidenced by a delay in seeking treatment – over six months in one case. In cases with more significant initial pain, petitioners usually experienced this greater pain for three months or less. Most petitioners displayed only mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered from unrelated conditions to which a portion of their pain and suffering could be attributed. These SIRVAs usually resolved after one to two cortisone injections and two months or less of physical therapy (“PT”). None required surgery. Except in one case involving very mild pain levels, the duration of the SIRVA injury ranged from six to months, with most petitioners averaging approximately nine months of pain. Although some petitioners asserted residual pain, the prognosis in these cases was positive.

Cases with higher awards for past pain and suffering involved petitioners who suffered more significant levels of pain and SIRVAs of longer duration. Most of these petitioners subjectively rated their pain within the upper half of a ten-point pain scale and sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.

All experienced moderate to severe limitations in range of motion. MRI imaging showed more significant findings, with the majority showing evidence of partial tearing. Surgery or significant conservative treatment, up to 133 PT sessions - occasionally spanning several years, and multiple cortisone injections, were required in these cases. In nine cases, petitioners provided sufficient evidence of permanent injuries to warrant yearly compensation for future or projected pain and suffering.

III. Relevant Medical History Prior to vaccination, Petitioner suffered from diabetes and arthritis with noted specific conditions – a herniated disc and left shoulder pain, included in all primary care provider (“PCP”) prior medical records as follows:

• Arthritis herniated disc , It shoulder pain Ex. 7 at 8, 23, 32. This diagnosis can also be found in the post-vaccination PCP medical application of the statutory cap before any projected pain and suffering award is reduced to net present value).

records as well. Id. at 53, 60, 80, 83.

Although Petitioner received the flu vaccine in question on September 5, 2019, she did not complain of left shoulder pain until a PCP visit on November 8, 2019, approximately two months later. Ex. 7 at 53. At that visit, Petitioner also received follow- up care for her diabetes, high cholesterol, and palpitations and anxiety – all of which appeared to be well-controlled with medication. Id. at 53, 56. Under the discussion section of the record related to palpitations, it was noted that she was taking Propranolol,11 an anti-anxiety medication. Ex. 7 at 53.

When first seeking treatment, Petitioner described her left shoulder pain, which she attributed to the flu vaccine she received two months earlier, as constant, and worse with movement. Ex. 7 at 53. The PCP prescribed Naproxen12 and referred her to PT. Id. at 56.

At her first PT session on November 20, 2019, Petitioner stated that her pain level varied from four to seven out of ten, estimating that her current pain was four. Ex. 2 at 5.

Although she reported improved motion in later sessions (e.g., id. at 14), her pain levels remained consistent (id. at 21, 28). After four PT sessions, she returned to her PCP, complaining that PT was not helping. Ex. 7 at 69. In response, the PCP prescribed 14- days of oral steroid (Prednisone) and referred her to an orthopedic surgeon. Id. at 72.

When seen by the orthopedic surgeon on January 2, 2020, Petitioner recounted that the Prednisone “helped a lot with inflammation, but discomfort is still there.” Ex. 3 at 7. X-rays showed “AC arthritis with a [sic] superior bone spurs” and a small inferior osteophyte in the glenohumeral space. Id. at 9. Assessing Petitioner as suffering from shoulder impingement, acute left shoulder pain, subacromial bursitis of the left shoulder joint, and arthritis of the acromioclavicular joint, the orthopedic surgeon expressed reluctance to administer a steroid injection so close to the course of orals steroids, especially since Petitioner suffered from diabetes. He opined that Petitioner’s arthritis, sometimes associated with subacromial impingement, would not explain her symptoms.

Noting that Petitioner had made improvements in strength and movement, he recommended that she continue PT, and return within a month or two if her symptoms continued. Id.

After attending five additional PT sessions, Petitioner returned to the orthopedic surgeon in early February 2020, reporting improvements in motion, but continued pain.

Ex. 3 at 13. On February 16, 2020, she underwent an MRI which revealed “an intrasubstance infraspinatus rotator cuff tendon tear and some tendinitis and also a question of a small superior labral tear and some AC joint primary osteoarthritis and some subacromial bursitis.” Id. at 17; see id. at 42 (for MRI report). Noting that he “had a thorough conversation with [Petitioner] . . . about her pathology” (id. at 17), he opined that “there is a possibility that the flu injection caused some subacromial bursitis [but he] cannot say that this caused the labrum or rotator cuff partial tears” (id. at 17-18).

Observing that Petitioner had experienced her pain for approximately five months, and had taken anti-inflammatory medication and attended PT, the surgeon recommended arthroscopic surgery. Id. at 18.

At her pre-operative surgical appointment on March 16, 2020, Petitioner reported heightened anxiety due to concerns related to the COVID pandemic and upcoming surgery. Ex. 10 at 61. She was prescribed new anxiety medication – Hydroxyzine.13 Id. at 64.

Performed on March 24, 2020, the arthroscopic surgery included debridement with chondroplasty14 and synovectomy15 of the glenohumeral joint, subacromial decompression with partial acromioplasty,16 rotator cuff repair (labral tears) with one swivel lock anchor, and excision of distal clavicle. Ex. 10 at 74-75 (filed previously at Ex. at 6-7); see also Ex. 3 at 26. Post-surgery, diagnoses of multiple labral tears and synovitis17 of the glenohumeral joint were added to the prior diagnoses: injury of muscle and tendons of the rotator cuff, acromioclavicular joint arthritis, and impingement syndrome. Ex. 10 at 75.

From early-April through late-July 2020, Petitioner showed significant improvement from 16 PT sessions. At her first sessions on April 2, 2020, she estimated that her pain level ranged from zero to five. Ex. 2 at 70. Reporting that she had finished Hydroxyzine is “a piperazine derivative with central nervous system depressant, antispasmodic, antihistaminic, and antifibrillatory actions.” DORLAND’S at 884.

16Acromioplasty is “the surgical removal of an anterior spur of the acromion o relieve mechanical compression of the rotator cuff during movement of the glenohumeral joint. DORLAND’S at 20.

When seen by the orthopedic surgeon on July 30, 2020, Petitioner was noted to be “doing well” with controlled pain. Ex. 3 at 36. She was instructed to return on an as- needed basis. Id. IV. The Parties’ Arguments Petitioner asserts that she is entitled to a past pain and suffering award of $125,000.00, plus $1,808.88 for past unreimbursed expenses. Petitioner’s Brief in Support of Damages (“Brief”), filed Nov. 15, 2024, at 1, ECF 46. Maintaining that her SIRVA “resulted in severe pain and limited range of motion” (id. at 6), she emphasizes the surgery she underwent in late March 2020, during the worldwide COVID Pandemic, her continued difficulty performing tasks requiring upper body strength and flexibility for the two months post-surgery, and the negative effect on her work as a substitute teacher (id. at 7-8).

Along with her damages brief, Petitioner filed a list of unreimbursed expenses, more detailed surgical records, and a cursory document regarding her employment as a substitute teacher. Exs. 9-11, filed Nov. 13, 2024, ECF Nos. 43-45. At a pre-operative visit on March 16, 2020, Petitioner complained of “some increased anxiety with the stress over the coronavirus outbreak” and requested medication to combat her increased anxiety. Ex. 10 at 61. The documentation related to Petitioner’s employment provides her full and half-day rates, further explaining that “[s]he does not have a set schedule, [s]he is called when needed, [and] [w]e do not keep a log when a sub says not able to come in.” Ex. 11.

Petitioner favorably compares the facts and circumstances in her case to those of the petitioners in Drake, Randazzo, and Olson19 - decisions featuring pain and suffering awards ranging from $125,000.00 to $128,000.00. Brief at 9-12. Emphasizing similarities 18Norco is “trademark for combination preparations of hydrocodone bitartrate and acetaminophen.

DORLAND’S at 1290. Hydrocodone is “a semisynthetic opioid analgesic derived from codeine but having more powerful sedative and analgesic effects. DORLAND’S at 878.

Mar. 4, 2024 (awarding $128,000.00 for past pain and suffering). in treatment – limited to conservative measures initially and then arthroscopic surgery within a year of vaccination, and good improvement but ongoing symptoms post-surgery - she insists that she suffered analogous symptom severity and duration. Id. Respondent counters that Petitioner should be awarded $75,000.00 for pain and suffering. Respondent’s Brief in Support on Damages (“Opp.”) at 1. While acknowledging that Petitioner’s SIRVA required surgical intervention, he maintains that Petitioner “experienced a mild-to-moderate SIRVA and had an excellent recovery ten months after vaccination.” Id. at 5. To support the lower award, he emphasizes Petitioner’s more than two-month delay in seeking treatment – resulting in only nine months of active treatment; “excellent recovery by mid-July 2020, ten months after she first sought treatment” (id. at 6); and multiple unrelated conditions identified on the MRI and repaired during surgery (id. at 6-7). He notes that I previously determined that these other conditions “were ‘not necessarily vaccine-related’ and were thus ‘relevant when ascertaining the appropriate compensation.’” Id. at 7 (quoting Timberlake v. Sec’y of Health & Hum. Servs., No. 20- 1905V, 2024 WL 2698873, at *7 (Fed. Cl. Spec. Mstr. Apr. 23, 2024)).

As comparable cases, Respondent proposes Hunt and Sheldon,20 in which $95,000.00 and $97,500.00, respectively, were awarded. Opp. at 10-11. Emphasizing that these petitioners underwent more active treatment and longer SIRVA duration, as well as the Hunt petitioner’s pursuit of treatment only three weeks post-vaccination, he argues that Petitioner’s award should be lower. Id. at 7-8. He also distinguishes the cases cited by Petitioner, stressing the lack of treatment delay and greater symptom severity in therein. Id. 8-10.

Regarding the amount of past expenses, Respondent opposes $201.78 identified as a collection fee. Opp. at 10; see Ex. 9 at 1-2 (surgical costs with this additional amount included on the first page summary). He argues that such an expense is not compensable under the Vaccine Act as it was not for any of the purposes listed in Section 15(a)(1)(B)(iii)). Opp. at 10. He agrees, however, that Petitioner should be awarded the remaining $1,607.10 in expenses. Id. V. Appropriate Compensation A. Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022)’ Shelton v. Sec’y of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr.

May 21, 2021).

times Petitioner was a competent adult with no impairments that would impact her awareness of her injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury.

When performing this analysis, I review the record as a whole to include the filed medical records, affidavits, and sworn declarations and all assertions made by the parties in written documents. I consider prior awards for pain and suffering in both SPU and non- SPU SIRVA cases and rely upon my experience adjudicating these cases. However, I base my determination on the circumstances of this case.

A thorough review of the medical records reveals that Ms. Timberlake suffered a SIRVA injury that did not prompt her to seek medical treatment until more than two months after the vaccination. Although her pain levels were moderate, she obtained improvement in strength and ROM, albeit not pain, during nine PT sessions. Almost seven months post- vaccination, she underwent arthroscopic surgery, and gained good symptom relief thereafter. During 16 post-surgical PT sessions, she consistently reported a lack of pain and required pain medication for less than three weeks post-surgery.

Additionally, there is significant evidence showing that at least some of Petitioner’s symptoms and need for surgery were due to conditions unrelated to the flu vaccine she received, but due instead to preexisting arthritis and labral tears. And medical records from September 2017, list back issues and left shoulder pain related to arthritis.

Furthermore, although it did not prevent Petitioner from satisfying the requirements for entitlement, her more than two-month delay provides evidence that her initial symptoms were not significant.

The Hunt case cited by Respondent is a good comparable case 21 – due to similarities in overall duration and post-surgery recovery, but there are differences which show a greater pain and suffering award is warranted in this case. Although the Hunt petitioner pursued treatment only 18-days post-vaccination, she reported lower initial pain levels and experienced some periods of complete relief, for example, after receiving several cortisone injections. Hunt, 2022 WL 2826662, at *8-9. In contrast, prior to surgery, Petitioner reported consistent, moderate pain, that appeared to be unaffected by PT, and reduced only slightly by oral steroids. Most importantly, Respondent failed to successfully explain why the award in this case should be at approximately $20,000.00 less than what In contrast, the Shelton case offers a poor comparison as the both the initial treatment delay and overall injury duration were more than twice that in this case. Shelton, 2021 WL 2550093, at *7-8. Other than the fact that both cases involved arthroscopic surgery, there are few similarities between Shelton and Petitioner’s case. And I have previously discussed the lack of helpful guidance provided by Shelton for most other cases, given its unique facts. See, e.g., Gray v. Sec’y of Health & Hum. Servs., No. 20-1708, 2022 WL 6957013, at *6 (Fed. Cl. Spec. Mstr. Sept. 12, 2022).

was awarded in either cited case - Hunt or Shelton.

Although Petitioner proposes an amount aligned with the pain and suffering amounts awarded in the comparable cases she cites, she similarly ignores significant factors which dictate a different (this time lower) award. In all cases, the petitioners reported more significant initial pain levels and pursued treatment within 30 days of vaccination. Drake, 2020 WL 4674105, at *2; Randazzo, 2021 WL 829572, at *2; Olson, 2024 WL 1521634, at *2. Additionally, the duration of the Olson petitioner’s initial, more severe symptoms was much longer as she did not undergo surgery until 18-months post- vaccination. Olson, 2024 WL 1521634, at *2. And the Drake petitioner experienced severe limitations in his ROM, and continued symptoms even after surgery. Drake, 2020 WL 4674105, at *2-3.

Instead, Double, Slugo, and Gray22 – involving awards ranging from $105,000.00 to $110,000.00 - offer better guidance. The Double and Gray petitioners also delayed seeking treatment until approximately 50 days post-vaccination. Double, 2024 WL 3648398, at *3; Gray, 2022 WL 6957013, at *6. And the Slugo and Double petitioners similarly suffered from other conditions addressed during surgery. Petitioner’s facts and circumstances most closely resembles those experienced by the Double petitioner, who received an award of $105,000.00. Accounting for slight differences in duration and initial symptom severity, I will award a slightly higher amount to Petitioner - $107,000.00.

B. Unreimbursed Expenses Regarding the amount of out-of-pocket expenses, I agree that the $201.78 paid by Petitioner for collection fees should not be reimbursed. This payment does not meet the requirements of Section 15(a)(1)(A)(iii), because it was not needed to diagnosis or treat Petitioner’s symptoms. All other requested expenses will be awarded.

Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $107,000.00 represents a fair and appropriate amount of

compensation for Petitioner’s actual pain and suffering.23 I also find that Petitioner is entitled to $1,607.10 in actual unreimbursable expenses.

Based on the record as a whole and arguments of the parties, I award Petitioner a lump sum payment of $108,607.10 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with the Decision.24 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master