Congdon v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-2025V

LYNNE CONGDON, Chief Special Master Corcoran Petitioner, Filed: August 21, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica Anne Olins, Mctlaw, Seattle, WA, for Petitioner.

Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On November 22, 2023, Lynne Congdon 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 Guillain-Barré syndrome (“GBS”), a defined Table injury, after receiving influenza, tetanus, diphtheria, and acellular pertussis, and meningococcal vaccines on February 28, 2022. Petition at 1 ¶¶ 24-25. Although Respondent conceded entitlement, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter.

For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $141,651.88, representing $137,000.00 for actual pain and suffering, plus $4,651.88 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 the Court 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 alternative 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.

II. Prior SPU Compensation of GBS Pain and Suffering4 A. Data Regarding Compensation in SPU Flu/ GBS Cases Flu/GBS cases have an extensive history of informal resolution within the SPU. As of July 1, 2025, since SPU’s inception ten years ago, 944 GBS cases have been resolved.

Compensation has been awarded in the vast majority of cases (897), with the remaining cases dismissed.

The data for all categories of theses damages decisions reflect the expected differences in outcome, summarized as follows:

Damages Proffered Stipulated Stipulated5 Decisions by Damages Damages Agreement Special Master Total Cases 62 441 22 372 Lowest $96,008.66 $9,050.40 $20,000.00 $3,098.64 st Quartile $152,831.02 $125,000.00 $135,575.00 $100,000.00 Median $170,279.32 $163,519.91 $224,397.27 $150,000.00 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 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.

3rd Quartile $187,372.52 $242,280.55 $358,778.33 $220,000.00 Largest $244,390.18 $2,282,465.84 $985,000.00 $1,200,000.00 B. Adjudication Specifically of GBS Pain and Suffering Only a small minority of cases have involved a special master’s adjudication of damages issues. The written decisions setting forth such determinations provide the most reliable guidance in deciding what similarly-situated claimants should also receive.6 As of July 1, 2025, in nearly every occasion that SPU has had to resolve the appropriate award for GBS pain and suffering, over $100,000.00 has been awarded (with a lower sum, $92,500.00, only awarded once). The remaining sixty-one (61) awards far exceeded $100,000.00. The first-quartile value is $150,000.00. The median is $165,000.00. The third-quartile value is $174,375.00. The largest award was $197,500.00.

These decisions are informed by what is known about GBS, including its description as set forth in the Vaccine Injury Table (“Table”). Pursuant to the Table, vaccine causation is presumed for GBS with an onset 3 - 42 days (not less than 3 days, and not more than 42 days) after receipt of a seasonal flu vaccine. 42 C.F.R. § 100.3(a)(XIV)(D). The Qualifications and Aids to Interpretation (“QAI”) explain: GBS is an acute monophasic peripheral neuropathy that encompasses a spectrum of four clinicopathological subtypes… The interval between the first appearance of symptoms and the nadir of weakness is between 12 hours and 28 days. This is followed in all subtypes by a clinical plateau with stabilization at the nadir of symptoms, or subsequent improvement without significant relapse. Death may occur without a clinical plateau. Treatment- related fluctuations in all subtypes of GBS can occur within 9 weeks of GBS symptom onset, and recurrence of symptoms after this timeframe would not be consistent with GBS. 42 C.F.R. § 100.3(c)(15)(I) (2017). The three most common subtypes are acute inflammatory demyelinating polyneuropathy (“AIDP”); acute motor axonal neuropathy Of course, even though all independently-settled damages issues (whether by stipulation/settlement or proffer) must still be approved by a special master, such determinations do not provide the same judicial guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases, these determinations nevertheless “provide some evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by the parties and cases in which damages are determined by a special master).

(“AMAN”); and acute motor and sensory neuropathy (“AMSAN”). Id. The onset of each is marked by “bilateral flaccid limb weakness and decreased or absent deep tendon reflexes in weak limbs.” Id. at (c)(15)(II). The fourth subtype – Fisher syndrome or Miller-Fisher syndrome – has a different onset of “bilateral ophthalmoparesis; bilateral reduced or absent tendon reflexes; [and] ataxia.” Id. at (c)(15)(III).7 A consistent starting consideration is that “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.”8 Gross v. Sec’y of Health & Hum. Servs., No. 19-0835V, 2021 WL 2666685, at *5 (Fed. Cl. Spec. Mstr. March 11, 2021); see also, e.g., Castellanos v. Sec’y of Health & Hum. Servs., No. 19-1710V, 2022 WL 1482497, at *10 (Fed. Cl. Spec. Mstr. Mar. 30, 2022) (emphasizing recognition of “the seriousness of GBS as a general matter,” in awarding a six-figure sum); Voeller v. Sec’y of Health & Hum. Servs., No. 20-1526V, 2023 WL 5019830, at *10 (Fed. Cl. Spec. Mstr.

July 6, 2023) (noting GBS’s “frightening” nature).

But of course, not every GBS case is equally severe. Further details of the initial medical course are considered – including any mistake or delay in diagnosing GBS; any in-patient hospitalization and/or in-patient rehabilitation (and the duration of any such stays); diagnostic procedures (e.g., bloodwork, lumbar punctures, electrodiagnostic studies, imaging); the severity of symptoms at their nadir (e.g., involving incontinence or respiratory failure); the extent and effectiveness of treatment (e.g., IVIg, plasmapheresis, pain medications); other interventions (e.g., feeding tubes, breathing tubes, catheterization); and any complications (e.g., sepsis during hospitalization).

Also relevant is a petitioner’s long-term course – as evidenced by out-patient therapies, neurology evaluations, and other medical appointments concerning GBS; the results of repeat electrodiagnostic studies and other relevant tests; medical providers’ assessments of the degree of recovery achieved; ongoing reliance on assistive devices and medications; and relevant treatment gaps. Previous opinions have recognized that “a substantial recovery does not mean that [an individual] has fully recovered from his GBS and has no ongoing sequelae. It is common for petitioners to experience ongoing symptoms of GBS, such as numbness and fatigue, even with a good recovery.” Elenteny

v. Sec’y of Health & Hum. Servs., No. 19-1972V, 2023 WL 2447498, at *5 (Fed. Cl. Spec.

Mstr. Mar. 10, 2023). But symptoms of that nature are typically folded into a “typical” past pain and suffering award, and will not justify a future component. See, e.g., id.; Miller v. Sec’y of Health & Hum. Servs., No. 21-1559V, 2023 WL 2474322, at *8 (Fed. Cl. Spec.

Mstr. Feb. 10, 2023).

In addition, “[t]he mere fact that a claimant had pre-vaccination comorbidities does not per se diminish the impact of [the vaccine injury] on his life – especially one as alarming and potentially life-altering as GBS – and therefore is not alone reason for a lower award.” Bircheat v. Sec’y of Health & Hum. Servs., No. 19-1088V, 2021 WL 3026880, at *4 (Fed. Cl. Spec. Mstr. June 16, 2021). But a special master is statutorily required to consider to what extent a petitioner’s pain and suffering is truly “from the vaccine-related injury,” Section 15(a)(4) (emphasis added), and not from any unrelated preexisting or subsequently-developed medical issues. See, e.g., Bircheat, 2021 WL 3026880, at *4; Gross, 2021 WL 2666685, at *5.

Also worthy of consideration are the injury’s impact on a petitioner’s personal circumstances including his or her family and other personal obligations, and professional life (whether or not lost wages are directly claimed).

All of these facts are primarily gleaned from the medical records – although sworn statements and/or other evidence often supplements the facts reflected in the medical records.

III. The Parties’ Arguments The parties agree Petitioner should be awarded $4,651.88 for past unreimbursed expenses. Petitioner’s Memorandum in Support of Findings of Fact and Conclusions of Law Regarding Damages (“Brief”) at 2, ECF No. 29; Respondent’s Brief on Damages (“Opp.”) at 1, 1 n.1, ECF No. 28. Thus, the only area of disagreement is the amount of compensation which should be awarded for actual pain and suffering. Petitioner seeks $190,000.00, and Respondent argues for an award of $92,500.00. Brief at 15; Opp. at 1, 9.

Characterizing her ongoing symptoms as “life-altering consequences,” Petitioner argues that she “has experienced significant emotion trauma, a loss of independence, and a dramatic decline in her overall wellbeing.” Brief at 14. Insisting that she continues to suffer the effects of her GBS illness more than three years post-vaccination, Petitioner describes difficulties eating, drinking, speaking while conducting tours at work, and whistling while training dogs (id. at 13-24); and reports eyes issues: “constant watering, blurred vision, crusting, and discharge” that require daily eye drops and lid scrubs (id. at 14).

Petitioner favorably compares the duration of her hospital stay and medical treatment - consisting of an EMG, one course of IVIG therapy, three months of speech therapy, and two lumbar punctures (the first of which was unsuccessful) - with those experienced by the petitioners in Voeller, Hernandez, and Drcar,9 all featuring past pain and suffering awards ranging from $185,000.00 to $200,000.00. Brief at 12-13. She insists that her “case is analogous to that of Drcar,” emphasizing the Drcar petitioner’s difficulty obtaining a correct diagnosis, five years of treatment, and inability to return to work. Id. at 13.

To support a lower award, Respondent emphasizes evidence of prior testing that showed chronic denervation in Petitioner’s feet,10 and a shorter duration than Petitioner claims. Opp. at 2 n.2, 6. counters that $92,500.00 is an appropriate amount for Petitioner’s past pain and suffering. Opp. at 1, 9. Although he provides a similar medical history to the one Petitioner recounts (id. at 2-5), Acknowledging that Petitioner “continued to have issues with intermittent tearing” and to complain of numbness in her face and feet (id. at 6), Respondent portrays her illness as primarily resolved within ten months (id. at 4, 9).

As comparable cases, Respondent cites two cases he describes as involving pain and suffering awards of $92,500.00 - Granville and Geschwindner.11 Opp. at 6-9.

However, closer examination of the Geschwindner case reveals that the compensation paid for pain and suffering was likely greater.12

Mstr. Nov. 14, 2024) (awarding $200,000.00 for past pain and suffering). Although Petitioner cites the Voeller as “N.V.”, “Voeller” is the correct title.

30, 2023). Although Petitioner provides a westlaw cite of 2022 WL 177372 for Geschwindner, that January 28, 2022 decision was withdrawn in response to the granting of Petitioner’s request for post-judgment relief.

See Geschwindner v. Sec'y of Health & Hum. Servs., No. 17-1558V, 2022 WL 22942770 (Fed. Cl. Spec.

Mstr. Oct. 11, 2022).

In their responsive briefs, the parties reiterate their earlier arguments and attempt to distinguish Petitioner’s facts and circumstances from the petitioners in the comparable cases cited by Respondent. ECF Nos. 31-32. In particular, Petitioner includes a discussion of the more complicated procedure in Geschwindner. Petitioner’s Responsive Brief at 5-6.

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 her awareness of her 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.

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 Petitioner (age 60 when vaccinated) suffered a mild GBS illness resulting in facial drooping and numbness and tingling in her upper and lower extremities (primarily her feet). Despite a slight delay – due to a misdiagnosis at an earlier visit to her primary care provider (“PCP”), and difficulties encountered when attempting a lumbar puncture on the first day of her hospitalization13 - Petitioner obtained a quick diagnosis within seven days of symptom onset.14 During her six-day hospitalization her symptoms worsened slightly but then improved in response to a five-day course of IVIG.15 On March 16, 2022, Petitioner visited her primary care provider (“PCP”), complaining of numbness in her feet during the past two days. Ex. 2 at 5. Noting Petitioner’s chronic back pain, the PCP prescribed oral steroids. Id. Four days later, on March 20, 2022, Petitioner was hospitalized. A lumbar puncture was twice attempted but unsuccessful due to Petitioner’s prior lumbar fusion Ex. 3 at 27, 106.

The comparable cases cited by Petitioner clearly involved more serious GBS illnesses. All petitioners in those cases suffered severe initial symptoms - including an inability to walk unassisted, for significant time periods while struggling to obtain an accurate diagnosis. Voeller, 2023 WL 5019830, at *2; Hernandez, 2023 WL 3317354, at *2; Drcar, 2024 WL 5266648, at *2-3. The Voeller and Hernandez petitioners required inpatient rehabilitation of 18 and 16 days, respectively, and the Hernandez and Drcar endured extensive sequela for more than three years. Voeller, 2023 WL 5019830, at *2; Hernandez, 2023 WL 3317354, at *2, 5 (describing years of physical therapy); Drcar, 2024 WL 5266648, at *5, 13.

47), and she reported good strength, improved lip movement, and an ability to drink two days later, on March 25, 2022. Id. at 74, 78. At that time, Petitioner was described as experiencing primarily facial weakness “with prominent sensory symptoms” (id. at 78), having one more day of IVIG, and requiring continued use of artificial tears for lubrication (id. at 88).

However, the Geschwindner case cited by Respondent is similarly unhelpful. The procedural history in that case makes it difficult to ascertain the exact amount of and basis for the award. See supra note 12.

Although the Granville case is instructive, involving comparable symptom severity, length of hospitalization, and lack of inpatient rehabilitation thereafter; the overall duration of the Granville petitioner’s illness was much shorter. Granville, 2023 WL 6441388, at *4.

Her PCP evidenced a willingness to prescribed Lyrica or Gabapentin for tingling in her hands and feet approximately seven months post-vaccination, but there is no evidence that the Granville petitioner ever filled the prescription. And she acknowledged in her briefing that her GBS had completely resolved. Id. at *3. Thus, the $92,500.00 awarded in Granville is clearly too low for this case.

Instead, I find Lemon18 in which $145,000.00 was awarded for pain and suffering, to be a useful comparable case. Like Ms. Congdon, the Lemon petitioner endured mild difficulties related to an attempted lumbar puncture, but nevertheless received a quick diagnosis and hospitalization. Lemon, 2024 WL 3160695, at *2. She also experienced facial drooping and mild residual symptoms for several years. Id. at *2, 4. However, the Lemon petitioner suffered more extensive numbness (up to her diaphragm) and exhibited more difficulty with movement. Although she also did not require inpatient rehabilitation, the Lemon petitioner required additional therapies after hospitalization, that were not required here, specifically occupational and physical therapy. Id. at *2-4.And there is evidence suggesting that at least some of Petitioner’s foot tingling and numbness may be due to an unrelated prior condition. See Ex. 2 at 26 (results of EMG performed on April 16, 2021). Thus, I find that Petitioner’s pain and suffering award should be similar to, but slightly lower than, the amount awarded in Lemon.

Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $137,000.00 represents a fair and appropriate amount of compensation for Petitioner’s past/actual pain and suffering.19

I therefore award Petitioner a lump sum payment of $141,651.88 representing compensation in the amounts of $137,000.00 for pain and suffering and $4,651.88 for actual unreimbursable expenses, 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 the Court is directed to enter judgment in accordance with this Decision.20 IT IS SO ORDERED.

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