Rodriguez v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0591V

STACY RODRIGUEZ, Chief Special Master Corcoran Petitioner, v. Filed: June 23, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On April 26, 2023, Stacy Rodriguez 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 he suffered from Guillain-Barré syndrome (“GBS”), causally related to an influenza (“flu”) vaccine he received on September 23, 2021.

Petition at 1. The case was assigned to the Office of Special Masters’ Special Processing Unit (the “SPU”).

Respondent conceded that Petitioner should be compensated for a Table flu/GBS injury in June 2024, but the parties were unable to resolve damages, so I ordered briefing on the matter. Brief filed Dec. 2, 2024, ECF No. 29 (seeking $160,000.00 for past pain and suffering); Response filed Jan. 31, 2025, ECF No. 30 (advocating for “less than” Petitioner’s number); Reply filed Feb. 18, 2025, ECF No. 31. For the reasons set forth below, I award $145,000.00 for Petitioner’s past/actual pain and suffering.

I. Legal Standard In another recent decision, I discussed at length the legal standard to be considered in determining GBS damages, taking into account prior compensation determinations within SPU. I fully adopt and hereby incorporate my prior discussion in Sections I – II of Ashcraft v. Sec'y of Health & Hum. Servs., No. 23-1885V, 2025 WL 882752, at *1 – 4 (Fed. Cl. Spec. Mstr. Feb. 27, 2025).

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 In this case, awareness of the injury is not disputed. The parties agree, and my own review of the evidence confirms, that at all times Petitioner was a competent adult with no impairments that would impact awareness of the injury. Therefore, I analyze principally the injury’s severity and duration.

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.

I considered prior awards for pain and suffering in both SPU and non-SPU GBS cases and rely upon my experience adjudicating these cases. However, I ultimately base my determination on the circumstances of this case.

The evidence shows that upon receiving the at-issue flu vaccine on September 23, 2021, Petitioner was 53 years old and employed as a security guard. His preexisting diagnoses included iron deficiency anemia and obesity. See e.g., Ex. 2 at 51, 75.

Petitioner’s GBS initial course was typical if not mild, when compared to that of other individuals suffering that same condition. He endured a delay in diagnosis (with GBS not recognized at the first two emergency department evaluations and two chiropractic sessions). See generally Ex. 3 at 16 – 91; Ex. 4 at 75 – 76. Ex. 7 at 5 – 10.

But a November 9, 2021 neurology outpatient evaluation correctly identified GBS onset symptoms of absent deep tendon reflexes in all four extremities; absent patellar reflexes; a wide-based gait; a positive Romberg sign;4 and decreased sensation in the hands and feet. Ex. 4 at 25 – 28.

That same day at the neurologist’s urging, Petitioner followed up in the emergency room and was admitted for further evaluation (including a lumbar puncture, and cerebrospinal fluid analysis) and treatment (primarily a two-day course of IVIg, and physical therapy (“PT”) sessions). Petitioner did not suffer any severe nadir of GBS; interventions; complications; or indication for inpatient rehabilitation or long-term pain measures, and he was discharged from the hospital to his home after just three days, on November 12, 2021. See, e.g., Ex. 3 at 124 – 27 (hospital neurology consult), 181 – 86 (hospital discharge summary);5 compare Ashcraft, 2025 WL 882752, at *3 (listing possible elements of a more “severe” GBS initial medical course).

Petitioner’s GBS residual symptoms were documented to be mild, but persistent.

First, from November 15 – December 2, 2021, he underwent six PT sessions and one OT session focused on improving his balance, gait, endurance, transfers, and self-care.

Those therapies were provided through home health and noted his initial reliance on a cane. But the discharge summary indicates that Petitioner had zero pain, required no assistive devices, and had achieved all goals (despite reported ongoing numbness and tingling in his hands and feet). See generally Ex. 5.

Petitioner also followed up periodically with the outpatient neurologist who had first identified his GBS. A November 19, 2021 record reflects that Petitioner was “extremely pleased” with his hospital care; his IVIg treatment had delivered a 50% improvement in symptoms; and the neurologist was content with a “watch, wait, and see approach” over A Romberg sign is defined as “swaying of the body or falling when standing with the feet close together and the eyes closed.” Dorland’s Med. Dictionary Online, Romberg Sign, https://www.dorlandsonline.com/dorland/definition?id=106448 (last accessed June 20, 2025).

After roughly an eight-month gap (at least in record documentation of treatment),6 in mid-January 2023, Petitioner attended an initial evaluation with a neuromuscular specialist at the University of Southern Florida. Ex. 8 at 12. The record documented “intermittent paresthesias in both of his knees… about 2 – 3 times per week, and typically last[ing] for 5 – 10 minutes”; difficulty extending his left hand and tying fishing knots; and deficits in sensation, reflexes, and gait. Id. at 15 – 16. The specialist tentatively assessed that Petitioner had suffered a “very mild Guillain-Barré syndrome” with residual nerve damage “possibl[y]… exacerbat[ed]” by his anemia. Id. at 16.

In April 2023, the neuromuscular specialist conducted repeat EMG/NCV studies, which read as “mildly abnormal,” showing a “mild, non-length dependent polyneuropathy with features of acquired segmental demyelination” particularly affecting the left median and ulnar nerves. Ex. 8 at 21.7 The specialist maintained the assessment of GBS residual nerve damage, adding that “some of [Petitioner’s] symptoms may have been exacerbated by anemia which has recently improved [with iron infusions], as well as be attributable to osteoarthritis in his hands.” Id. at 10. The neuromuscular specialist did not offer any Of note, the last-filed records from primary care or any specialists at the VA are from February 2022, and the VA clinic supplied that batch of records in May 2022, Ex. 2.

treatment – only recommending follow-up EMG/NCV studies and consultation, id., which apparently have not occurred. A November 2023 cardiology appointment (as well as a June 2024 neurology follow-up evaluation) document ongoing, “mild” weakness and balance issues from GBS, but no further treatment. Petitioner mentioned that he did not want steroid treatments because he had recently achieved a significant weight loss with the prescription medication Mounjaro, but he was interested in hyperbaric oxygen therapy. Ex. 10 at 7 – 9, 4 – 6 (organized chronologically).

The evidence thus supports the conclusion that Petitioner has ongoing sensation, balance, and stamina issues which likely impacted his daily life for three or more years since his GBS onset. But several treating providers characterized those symptoms as mild, and Petitioner has opted to manage them conservatively – with only intermittent reevaluations, and no particular treatment after his trial of Cymbalta (apparently discontinued within seven months post-vaccination). Neither his medical records nor his affidavit (Ex. 9) identify extenuating or long-term impacts on his employment or on personal obligations (e.g., to children or other family members).

Thus, the amount of any pain and suffering award should fall somewhere within the range of “typical” GBS cases, which very often feature long-term residual symptoms but not necessarily ongoing care. Ashcraft, 2025 WL 882752, at *8. In advocating for an award of “less than $160,000.00,” Respondent noted one treater’s concern that unrelated conditions might explain “some” of Petitioner’s ongoing complaints. Response at 1, 6, citing Ex. 8 at 10. But that does not equate to preponderant evidence of a wholly unrelated explanation – because Petitioner was only assessed with osteoarthritis in his hands (which obviously would not explain decreased sensation and weakness in his legs, or poor balance). And even after his anemia was treated with iron infusions, the symptoms persisted.

Respondent also points to a reasoned opinion awarding $92,500.00 for past pain and suffering. See Geschwindner v. Sec'y of Health & Hum. Servs., No. 17-1558V, 2022 WL 22942770 (Fed. Cl. Spec. Mstr. Oct. 11, 2022), and 2024 WL 938952 (Fed. Cl. Spec.

Mstr. Feb. 5, 2024). But true head-to-head comparison to that case is not possible, as Petitioner correctly notes (Reply at 4 and n. 2). The special master in that case later concluded that the claimant’s former attorney had abandoned her during the case’s damages phase (specifically failing to file complete evidence, or any damages briefing), which warranted relief from judgment pursuant to RCFC 60(b)(6). The original damages determination was withdrawn, and after consideration of additional damages evidence, Respondent proffered an additional $27,500.00, resulting in a total past pain and suffering award of $120,000.00. Geschwindner thus involves peculiar procedural facts that render it a poor comparison case – for virtually any other context.

Respondent also cited one $92,500.00 award from SPU.8 But that case involved only eight months of medical record documentation of GBS, and the relevant petitioner agreed that she had achieved a full recovery. A five-figure award for pain and suffering due to GBS will be rare, appropriate only for the mildest circumstances. See also Ashcraft, 2025 WL 882752, at *3.

Other cases are more instructive. The first is Shankar (awarding $135,000.00)9, cited in Response at 12. That claimant, as here, had a rather typical initial medical course followed by a good recovery, disclaiming any need for assistive devices or long-term pain medications10 and returning to work within roughly two months post-vaccination. The Shankar petitioner’s medical course was somewhat more involved (with an eight-day hospitalization, seven days of IVIg, and nine days of inpatient rehabilitation), but his subsequent treatment gaps were lengthy, and repeat electrodiagnostic studies were “unremarkable for any primary neurogenic etiology.” 2022 WL 2196407, at *2 – 3. While Mr. Rodriguez’s initial medical course was shorter, he has presented better evidence of long-term injury (including abnormal EMG/NCV findings 19 months post-vaccination, and his neurologists’ subsequent endorsement of ongoing GBS residuals). Overall, the comparison to Shankar is not unreasonable.

Also instructive is W.B. (awarding $155,000.00),11 cited in Brief at 14. That case also involved a limited initial medical course, followed by substantial improvement within the first two months. But I also accepted the W.B. petitioner’s GBS-related leg weakness caused a fall and reinjury of his shoulder, warranting 29 PT sessions over the next nine months. 2020 WL 5509686, at *2 – 3, 5; see also Response at 9 – 10. Mr. Rodriguez has not alleged any similar falls or secondary injuries, see generally Brief and Reply, and he has self-managed his GBS residuals albeit over a longer period of time.

Based on comparison to Shankar and W.B., and my review of this case’s evidence, a fair and appropriate award for pain and suffering in this case is $145,000.00.

30, 2023).

Respondent stated that the Shankar award depended on a finding of “significant pain throughout… the injury course,” Response at 12, but the decision states only that the Shankar petitioner was discharged from the hospital with prescription pain medications – not how long those medications were maintained.

And the Shankar petitioner’s long-term complaints were about decreased sensation and stamina, 2022 WL 2196407, at *2 – 3.

Conclusion I hereby award Petitioner a lump sum payment of $146,162.85 (representing compensation in the amounts of $145,000.00 for pain and suffering12 and $1,162.85 for actual unreimbursable expenses13) 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 this Decision.14 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master