LEE v. SECRETARY OF HEALTH AND HUMAN SERVICES

OCR transcription for search; preserved printed pages are authoritative

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page1of16

In the Anited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-1484V
MITZI LEE,
Chief Special Master Corcoran
Petitioner,
V. Filed: November 10, 2025

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES"

On October 28, 2020, Mitzi Lee filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.* (the “Vaccine
Act”). Petitioner alleged that she suffered acute inflammatory demyelinating
polyneuropathy (“AIDP”), a form of Guillain-Barré syndrome (“GBS”), and Bell’s Palsy,
caused in fact by the influenza (“flu”) vaccine she received on November 11, 2018.
Petition at 1, Jf] 2, 12. 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,? so | ordered briefing on the matter.

’ Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the 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, |
agree that the identified material fits within this definition, | will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

3 Approximately 22 months after Petitioner was determined entitled to compensation, the parties informed
me that they had reached an impasse in their damages discussions and requested that | set a schedule for

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 2 of 16

For the reasons set forth below, | find that Petitioner is entitled to an award of
damages in the amount $160,000.00 for past pain and suffering, plus $1,098.08 for
past unreimbursed expenses. | do not find that any award for future pain and
suffering or lost wages is warranted.

I. Legal Standard

Compensation awarded pursuant to the Vaccine Act shall include “[flor 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. /.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. /.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)).

| 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, | 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

damages briefing and expert reports. Minute Entry dated Feb. 22, 2023 (regarding call held that day); Order,
issued Mar. 3, 2023, ECF at 47.

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 3 of 16

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.” /d. 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 al/ 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.

ll. Prior SPU Compensation of GBS Pain and Suffering‘

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
47 cases dismissed.

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

Damages Proffered Stipulated Stipulated®
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
1st Quartile | $152,831.02 $125,000.00 $135,575.00 $100,000.00

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
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 One award was for an annuity only, the exact amount which was not determined at the time of judgment.

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 4 of 16
Median $170,279.32 $163,519.91 $224,397.27 $150,000.00
3 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.®

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.

6 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).

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page5 of 16

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
(“AMAN”); and acute motor and sensory neuropathy (“AMSAN”). /d. The onset of each is
marked by “bilateral flaccid limb weakness and decreased or absent deep tendon reflexes
in weak limbs.” /d. 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.” /d. at (c)(15)(III).”

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.”® 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

’ See also National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table — Notice
of Proposed Rulemaking, 80 Fed. Reg. 45132, at 45144 — 45 (July 29, 2015) (proposing addition of Table
flu/GBS claims — explaining GBS is “an acute paralysis caused by dysfunction in the peripheral nervous
system [that...] may manifest with weakness, abnormal sensations, and/or abnormality in the autonomic
(involuntary) nervous system,” and that death, when it occurs, is most often related to respiratory failure).

8 Shoulder injury related to vaccine administration (“SIRVA”) is another Table injury. 42 C.F.R. §§ 100.3(a),
(c)(10).

Case 1:20-vv-01484-UNJ Document66~ Filed 12/11/25 Page 6 of 16

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.

Ill. The Parties’ Arguments

The parties agree that Petitioner is entitled to $1,098.08 for past unreimbursed
medical expenses. Petitioner’s Brief in Support of Damages (“Brief”) at 1, 23, filed Aug.
1, 2023, ECF No. 55; Respondent's Brief on Damages (“Opp”) at 1, 39, filed Dec. 15,
2023, ECF No. 58; Petitioner's Reply Brief in Support of Damages (“Reply”) at 1, 11, filed
Feb. 26, 2024, ECF No. 61. Thus, the sole matters to be resolved pertain to the awards
for pain and suffering (actual and future), plus lost wages.

For pain and suffering, Petitioner seeks $180,000.00, plus $9,000.009 in total sum
for future — based upon yearly payments of $500.00 and a life expectancy of 18 years.
Brief at 15-17, 17 n.3. Describing treatment that included an earlier trip to the emergency
room (“ER”) by ambulance for facial numbness and tingling, a return to the ER and six-

° Petitioner has not reduced this amount to its net present value as required by Section 15(f)(4)(A).

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 7 of 16

day hospitalization one week later with a complaint of gradually worsening lower leg
weakness, and two courses of outpatient physical therapy (“PT”) (the later for urinary
incontinence), she favorably compares her initial year of illness to that suffered by the
petitioners in W.B., Gross, Robinson, and Gruba"® — decisions involving past pain and
suffering awards ranging from $155,000.00 to $160,000.00. Brief at 11-12. She insists,
however, that her award should be the same as in T.M. and Dillenbeck"' - $180,000.00
and $170,000.00 for past pain and suffering, respectively, along with $500.00 annually
for future, due to ongoing symptoms - including “difficulty with memory and concentration
. . . [and] psychological symptoms such as anxiety, depression, and poor self-esteem”
(Brief at 14); that required additional treatment, affected her ability to work, and resulted
in her forced retirement (id. at 14-15). To support her claim for a future pain and suffering
award, Petitioner cites the continued difficulties described in her signed declaration, '* the
opinion of her medical expert, Joseph S. Jeret, M.D., F.A.A.N.,'° and statements from
one of her treating neurologists. Brief at 15-17; see Ex. 10 at 18 (neurologist’s opinion);
Ex. 29 (Dr. Jeret’s report); Ex. 44 (Petitioner's declaration).

For lost wages, Petitioner initially sought $680,274.00. Brief at 1,23. Emphasizing
her positive performance reviews prior to her illness, the six-months she was unable to
work before returning in May 2019, and the difficulties she encountered thereafter,
Petitioner insists that she “ultimately retired from her job in December 2019 after 34 years
of employment as a Commonwealth of Virginia employee because of the ongoing
cognitive difficulties . . . [and] began employment for a private broker as a real estate
salesperson.” Brief at 18-19. To support her assertion that the difficulties related to
memory, cognition, and fatigue forced her early retirement, Petitioner cites the opinions
of an expert, Dr. Joseph Jeret, and her psychologist and supporting affidavits from two
co-workers. /d. at 18-20. Dr. Jeret acknowledges that “Petitioner had a history of stress

10 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 past pain and suffering); Gross v. Sec'y of Health & Hum. Servs., No. 19-
0835V, 2021 WL 2666685 (Fed. Cl. Spec. Mstr. Mar. 11, 2021) (awarding $160,000.00 for past pain and
suffering); Robinson v. Sec'y of Health & Hum. Servs., No. 18-0088V, 2020 WL 5820967 (Fed. Cl. Spec.
Mstr. Aug. 27, 2020) (awarding $160,000.00 for past pain and suffering); Gruba v. Sec'y of Health & Hum.
Servs., No. 19-1157V, 2021 WL 1925630 (Fed. Cl. Spec. Mstr. Apr. 13, 2021) (awarding $165.000.00 for
past pain and suffering and $500.00 per year for future).

11 T.M. v. Sec'y of Health & Hum. Servs., No. 19-0911V, 2023 WL 355358 (Fed. Cl. Spec. Mstr. Dec. 19,
2022); Dillenbeck v. Sec'y of Health & Hum. Servs., No. 17-428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr.
Jan. 23, 2023), affd in relevant part, 147 Fed. Cl. 131 (2020). Although the pain and suffering component
of the original Dillenbeck award was affirmed, the case was remanded for further proceedings related to
lost wages and a final damages award. See Dillenbeck v. Sec'y of Health & Hum. Servs., No. 17-428V 2020
WL 3046113 (Fed. Cl. Spec. Mstr. May 5, 2020) (awarding $218,171.74 which included a pain and suffering
component of $170,000.00 for past and $10,857.15 for future).

12 The declaration was signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Ex. 44.

13 Dr. Jeret’s curriculum vitae (“CV”) states he is a neurologist with an active practice on Long Island, New
York. Ex. 30 at 1, filed May 5, 2023, ECF No. 49-3.

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 8 of 16

and anxiety,” but insists that “she had always been a highly functional, motivated, and
outstanding employee.” /d. at 20. Petitioner's vocational expert, Staci Schonbrun, Ph.D., ‘4
calculated her annual lost earnings to be $53,201.80, and her economist Robert W. Cook,
Ph.D.'° calculated her total lost wages to be the amount sought (with the future portion
reduced to net present value). Brief at 21-23; see Ex. 44 (Dr. Schonbrun’s report); Exs.
47-48 (Dr. Cook’s first report and calculations).

Respondent counters that $120,000.00 is an appropriate amount for Petitioner's
past pain and suffering, and that no compensation should be paid for future pain and
suffering or lost wages. Opp. at 1, 11. Acknowledging that Petitioner continues to suffer
“mild residual symptoms,” Respondent maintains that they “alone are not sufficient to
justify an award of future pain and suffering.” /d. at 30. He insists that “the evidence in this
case does not support [P]etitioner’s claim that she suffered cognitive effects of GBS, or
that her GBS sequelae rendered her unable to do her job.” /d.

Emphasizing that Petitioner's GBS required only a six-day hospitalization involving
the administration of five doses of IVIG therapy, no inpatient rehabilitation, and only 13
PT sessions accompanied by reports of little to no pain, Respondent “contends that [her]
clinical course and recovery . . . demonstrate a less severe course of GBS than others,
comparatively.” Opp. at 25. He asserts that “[P]etitioner cannot reasonably attribute all of
her claimed pain and suffering to GBS, given her chronic conditions pre-vaccination,
including urinary incontinence, sleep apnea, right knee pain, right elbow pain, lower back
pain, and right leg sciatica.” /d. at 26. Thus, Respondent maintains that some of the later
treatment Petitioner pursued, like the many of the attended PT sessions, cannot be linked
to her GBS. /d. at 26.

As a comparable case, Respondent proposes Castellanos" - a case involving a
petitioner with numerous co-morbidities who received a past pain and suffering award of
$125,000.00. Opp. at 27. He contends, however, that Petitioner's award should be slightly
less because she did not require inpatient rehabilitation or any mobility aids and was
walking five to six miles in one day less than three months after her GBS diagnosis. /d. at
27. He also maintains that the clinical course of all petitioners in the cases cited by
Petitioner were more significant. /d. at 28-30.

14 Dr. Schonbrun’s CV was filed with her report on July 5, 2023. Ex. 45, ECF No. 51-3.
15 Dr. Cook’s CV was filed with his first report on July 31, 2023. Ex. 49, ECF No. 54-4.

16 Castellanos v. Sec’y of Health & Hum. Servs., No. 19-1710V, 2022 WL 1482497 (Fed. Cl. Spec. Mstr.
Mar. 30, 2022).

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 9 of 16

Relying upon the report of his vocational expert, Behnush Mortimer, Ph.D.,"”
Respondent characterizes as “unsubstantiated” Petitioner’s claim that “as a result of her
GBS, she suffered cognitive decline that rendered her unable to fulfill her job
requirements, and she was forced to retire.” Opp. at 32. Dr. Mortimer emphasizes
Petitioner’s prior unhappiness, anxiety, and stress at work; her plans to leave her position
before contracting GBS; and her hesitancy to return to this stressful work environment.
Id. at 32-33. Observing that Petitioner returned to work with no noted issues for seven
months before voluntarily retiring to start her own consulting firm - a plan which by her
own admission was derailed not by her physical and mental condition, but rather by the
COVID Pandemic (id. at 33-34), “Dr. Mortimer concluded that [Petitioner was capable of
continuing to work in her position at VCU [Virginia Commonwealth University]” (id. at 34).

Although he agrees with Dr. Jeret’s assertion that Petitioner suffered long term
effects of her GBS, Dr. Mortimer observes that that Petitioner “experienced anxiety and
depression before and after her GBS.” Opp. at 35. He also opines “these conditions did
not limit Petitioner's employment.” /d. Dr. Mortimer criticizes Dr. Jeret’s disregard for “the
results of [Petitioner's neurological testing” and Dr. Schonbrun’s failure to address
“whether, in her opinion, [P]etitioner was limited to part-time employment.” /d.

If | determine that a lost wages award is appropriate in this case, Respondent
maintains that Petitioner's expert Dr. Cook has substantially overvalued the amount at
issue, due to multiple errors in his calculations as noted by his economist, Patrick F.
Kennedy, Ph.D. Opp. at 37. Specifically, Dr. Kennedy asserts that Dr. Cook overstated
Petitioner's life expectancy and failed to account for offset earnings or benefits, the five
percent salary contribution Petitioner was required to pay for Virgina Retirement System
benefits, and the portion of the employer provided health premiums paid by Petitioner. /d.
at 37-38. Dr. Kennedy calculated a net present value for lost wages of $38,164.00 if
Petitioner was limited to part-time work. If Petitioner is able to work full-time, Dr. Kennedy
opined she would actually incur a net benefit of $136,735.00, due in part to her ability to
begin collecting her pension as long as she avoided employment by the State of Virginia.
Id. at 38, 38 n.14.

On reply, Petitioner reduced the amount she seeks for lost wages to $216,767.00
based upon Dr. Cooks’s rebuttal economic report, provided on February 23, 2024. Reply
at 1, 1 n.1 (referencing Ex. 51 — Dr. Cook’s second report). Stressing her prior
performance reviews, especially the last one dated nine months prior to her GBS (id. at
3), Petitioner disputes Dr. Mortimer’s claim that she “had been unhappy in her position
and was considering separating from her employment,” characterizing it as speculative
(id. at 2). She insists that her memory deficits and lack of focus prevented her from

17 Dr. Mortimer’s CV was included in his report filed on Dec. 15, 2023. Ex. A at 21-24, ECF No. 58-1.

9

Case 1:20-vv-01484-UNJ Document66~ Filed 12/11/25 Page 10 of 16

continuing her employment. /d. at 4-6.

Regarding her pain and suffering award, Petitioner contends that the case
Respondent cites, Castellanos, is not analogous to her circumstances because that
petitioner “made a very good recovery in five (5) months of vaccination” and suffered
numerous unrelated co-morbidities. Reply at 10. She maintains that the comparable
cases she cited are more equivalent. /d. at 10-11.

IV. Appropriate Compensation for 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, | analyze principally the severity and duration of
Petitioner’s injury.

In performing this analysis, | have reviewed the record as a whole, including the
medical treatment evidence, affidavits, and all assertions made by the parties in written
documents. | considered prior awards for pain and suffering in both SPU and non-SPU
GBS cases and rely upon my experience adjudicating these cases. However, | ultimately
base my determination on the circumstances of this case.

Past Pain and Suffering

The evidence shows that Petitioner - age 58 when vaccinated - suffered a mild
GBS illness (specifically AIDP) and Bell’s Palsy, involving common symptoms such as
weakness, tingling, numbness in the upper and lower extremities, slight gait instability,
and facial numbness and drooping.'® Although her symptoms improved significantly in
response to a five-day course of IVIG administered during six-day hospitalization, and
minimal physical therapy (“PT”) thereafter,’? Petitioner continued to complain of residual

18 During a second trip to the emergency room (“ER”) on November 23, 2018, Petitioner received a
diagnosis of Bell’s Palsy for which she was prescribed medication. Ex. 4 at 20 (symptoms included
numbness and facial drooping); see also Ex. 3 at 12 (November 20, 2018 ER visit for numbness and tingling
in the hands and feet, dizziness, and a headache with pain traveling down her back). After a visit to the
neurologist on November 26, 2018 (Ex. 5 at 7), Petitioner returned to the ER on November 30, 2018 (Ex. 3
at 87). She was admitted to the hospital, diagnosed with AIDP, and prescribed a five-day course of IVIG
therapy. /d. at 160.

19 Petitioner was discharged from the hospital on December 6, 2018. Ex. 3 at 93. Noting continued issues
with memory (slight confusion) but improvement related to numbness and speech, the discharging
physician predicted Petitioner's recovery would be slow and she would be unable to return to work for three
months — until at least early March 2019. /d. During outpatient PT in December 2018, Petitioner continued
to experience some gait instability and moderate pain levels. E.g., Ex. 6 at 171 (December 11, 2018 PT
session). By January 2019, she consistently reported no pain (id. at 126, 133, 148) and had met many of
her short and long-term goals (id, at 142-43).

10

Case 1:20-vv-01484-UNJ Document66-~ Filed 12/11/25 Page 11 of 16

symptoms, such as fatigue and difficulties with her memory. See, e.g., Ex. 7 at 41
(neurology visit on April 24, 2019).

During this time, Petitioner also sought treatment for symptoms she experienced
prior to vaccination, such as neck, hip, and back pain and urinary incontinence.”° Although
she attributed some of these symptoms to her current illness (see, e.g., Ex. 6 at 52),
Petitioner’s prior medical records clearly establish that she suffered significant pain in her
back, legs, fingers, right shoulder, right elbow, and right knee; urinary incontinence and
bladder issues after undergoing a sling procedure in 2009; and significant stress and
anxiety related to her work environment and relationship with her husband.2' Despite
some trepidation,?? Petitioner returned to work as Director of Real Estate at VCU on a
part-time basis (four hours a day) beginning on May 1, 2019, and full-time two weeks
later. Ex. 6 at 18.

During appointments with two different treating neurologists in August and October
2019, Petitioner received reassurances that her condition was not as significant as she
feared.”° It also was noted that Petitioner continued to see a psychotherapist who was
helping her with her ongoing anxiety.2* And the PT sessions Petitioner attended during
the remainder of 2019 focused primarily on Petitioner’s prior conditions. See, e.g., Ex. 8
at 3 (treatment of right arm, elbow, foot, and knee pain).

20 On December 28, 2018, Petitioner attended a follow-up orthopedic appointment for lower back pain. Ex.
15 at 13-16. Pursuant to a referral from her orthopedist, she attended an appointment with a spinal specialist
for several years of back pain on April 18, 2019. Ex. 6 at 52-66. Petitioner complained of urinary
incontinence at her annual gynecology exam on February 19, 2019 (Ex. 14 at 23-25) and began PT to
strength her pelvic floor on April 23, 2019 (Ex. 8 at 65).

21 Petitioner frequently mentioned stress and anxiety related to her job and marital issues while seeking
treatment for these conditions in late 2015 through early 2018. Ex. 6 at 185-207. She also complained of
leakage and urinary incontinence in 2015, when it was noted that she has undergone a sling procedure
performed in 2009. E.g., Ex. 6 at 236. And she attended consistent orthopedic and physical therapy (“PT”)
for a variety of conditions. Ex. 6 at 251-252; Ex. 121 Ex. 15.

22 At a neurology visit on April 24, 2019, Petitioner requested “more time off work as she fe[lt] that her
stamina and focus [wa]s not up to par with what [waJ]s required to fulfill her job requirements.” Ex. 7 at 41.

23 At a visit on August 14, 2019, Petitioner's neurologist “reassured her . . . that the episode of GBS that
she suffered . . . was not severe and that her recovery should be near total, if not total.” Ex. 7 at 56. On
October 28, 2019, a second neurologist informed Petitioner that an administered EMG did not show any
evidence of chronic inflammatory demyelinating polyneuropathy (“CIDP”, that her symptoms were
improving, albeit slowly, and that she should continue to improve but may “be left with some residual
symptoms.” Ex. 10 at 24.

24 At the August 14, 2019 visit, Petitioner reported that “she [wa]s seeing a psychologist who is addressing
unresolved circumstances that she is struggling with.” Ex. 7 at 56; In October 3019, she again stated that
“[s]he ha[d] been seeing a health psychologist since May and. . . her cognition, concentration, and
processing speeds ha[d] improved over the past several months.” Ex. 10 at 18.

11

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 12 of 16

In December 2019, Petitioner retired from her position at VCU with plans to start
her own consulting business. Ex. 19 at 5; Ex. C at 10-14 (Petitioner's 2014 federal income
tax return showing start-up costs, self-employment tax, and a carryover business loss
from Kind Collaborations, LLC). By Petitioner's own admission, these plans were derailed
not by her residual symptoms, but by the COVID pandemic. Ex. 19 at 5.

By early February 2020, Petitioner’s urinary incontinence had resolved, and she
was working with a trainer and walking five days a week. Ex. 9 at 16-20. Additionally,
many ongoing symptoms were likely related to her prior conditions. On July 22, 2020,
Petitioner underwent a surgical decompression and fusion to treat her diagnoses of spinal
stenosis and isthmic spondylolisthesis.”° Ex. 20 at 1303-1310. After suffering a surgical
site infection, Petitioner was forced to return to the hospital in early August 2020 for a
surgical debridement and washout. /d. at 668-677. During the remainder of 2020 through
early 2021, she received follow-up care from an infectious disease specialist. Ex. 18.

On November 17, 2020, Petitioner underwent testing which revealed cognitive
results within a normal range, despite her perception of deficits in these areas.’ Instead,
the test administrators concluded that her ongoing difficulties were most likely due to
significant anxiety and long-term organizational deficits which existed prior to Petitioner’s
GBS illness.?® By Petitioner's own admission, she likely suffered from prior, long-term
organizational and attention deficits which had never been recognized or diagnosed. Ex.
20 at 117. And her work assessments contain numerous entries revealing weaknesses
in these areas. Ex. 26. Thus, this testing provides significant evidence countering
Petitioner's assertion of GBS-related sequela which affected her ability to perform her
work duties.

25 Spinal stenosis is a “narrowing of the verbal canal, nerve root canals, or intervertebral formina of the
lumbar spine caused encroachment of bone upon the space. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
(“DORLAND’S”) at 1770 (32" ed. 2012).

26 Spondylolisthesis is the “forward displacement (olisthy) of one vertebra over another.” DORLAND’S at
1754. Isthmic spondylolisthesis is spondylolisthesis accompanied by a lesion of the pars interarticularis.”
Id.

27 Specifically, the report stated that “a cognitive profile that was generally within normal limits across
domains!2”, . . [but] a relative personal weakness in problem solving abilities . . . [and] mood measures . .
. indicative of clinically significant anxiety and mild depression, consistent with her self-report during the
interview.” Ex. 20 at 118. Petitioner's memory was noted to be “intact and in some cases, strong.” /d. at
119.

28 The report concluded that Petitioner “d[id] not meet the criteria for a cognitive disorder, and .. . it is likely
that the perceived difficulties in daily life could be due to psychological factors, as disruptions in mood and
general life stress can hinder an individual’s ability to function at maximum cognitive capacity.” Ex. 20 at
119.

12

Case 1:20-vv-01484-UNJ Document66~ Filed 12/11/25 Page 13 of 16

Additionally, the testing showed that Petitioner had a skewed perception of her
cognitive abilities, believing she “was performing worse on testing tha[n] she actually
was.” Ex. 20 at 117. And this pessimistic view is echoed throughout the medical records.
See, e.g., Ex. 7 at 56. Because evidence such as the letter provided by Petitioner’s clinical
psychologist (Ex. 27) and sworn declarations from her friends (Exs. 21-22) relied heavily
upon Petitioner’s representations, their probative effect is lessened.

Although it is difficult to ascertain the exact duration of Petitioner's AIDP and Bell’s
Palsy illness (given the simultaneous, likely unrelated co-morbidities suffered during this
same period), it appears that her acute phase (which involved only mild symptoms) lasted
a few months. No doubt, Petitioner was frustrated by ongoing symptoms of fatigue and
cognitive difficulties, but these residual symptoms are common in most GBS patients.
Thus, they do not equate to a greater pain and suffering award in Petitioner's case.
Furthermore, as discussed in greater detail in the section below, Petitioner has not
provided sufficient evidence to show that she was forced to retire early due to her vaccine-
related illness.

Still, considering Petitioner's ongoing sequelae, the amount proposed by
Respondent ($120,000.00) is lower than what the facts and circumstances warrant. As |
have explained previously at expedited “Motions Day” oral arguments, GBS pain and
suffering awards should usually be higher than in matters involving a less frightening and
physically-alarming injury, such as SIRVA. See, e.g., Gross, 2021 WL 2666685, at *5.

Instead, | find the cases cited by Petitioner involving past pain and suffering awards
ranging from $155,000.00 to $160,000.00 offer the best comparisons. | also find the
Poteet and Longo cases, involving past pain and suffering awards of $160,000.00, to be
particularly instructive. Poteet v. Sec’y of Health & Hum. Servs., No. 20-1295V, 2024 WL
1435308, at *5 (Fed. Cl. Spec. Mstr. Feb. 27, 2024); Longo v. Sec’y of Health & Hum.
Servs., No. 21-0844V, 2023 WL9326039, at *4 (Fed. Cl. Spec. Mstr. Dec. 20, 2023). All
involved relatively mild GBS illnesses that were successfully treated in response to one
course of IVIG therapy administered during a short hospital stay, and with minimal
outpatient PT thereafter. W.B., 2020 WL 5509686, at *2-5; Gross, 2021 WL 2666685, at
*4-5; Robinson, 2020 WL 5820967, at *2-3, 6; Poteet, 2024 WL 1435308, at *3-4; Longo,
2023 WL9326039, at *1, 3-4. And like Petitioner, none of these claimants experienced
significant residual symptoms. /d.

Petitioner’s facts and circumstances do not rise to the level of that suffered by T.M.,
Dillenbeck, or Gruba. These petitioners suffered more severe symptoms, required at least
one week of inpatient rehabilitation following hospitalization, and obtained an incomplete
recovery. 7.M., 2023 WL 355358, at *2-6; Dillenbeck, 2019 WL 4072069, at *1-2, 14;
Gruba, 2021 WL 1925630, at *1-2. In addition, they provided evidence of significant

13

Case 1:20-vv-01484-UNJ Document66- Filed 12/11/25 Page 14 of 16

ongoing sequela sufficient to warrant a component of damages for future pain and
suffering, or evidence of hardships experienced in their actual lives. 7.M., 2023 WL
355358, at *19; Dillenbeck, 2019 WL 4072069, at *15; Gruba, 2021 WL 1925630, at *4-
5.

Future Pain and Suffering

Future pain and suffering awards are appropriate “only for cases where a strong
showing is made that the claimant has suffered a permanent disability, or there are other
extenuating circumstances that justify inclusion of a future component.” Accetta v. Sec’y
of Health & Hum. Servs., No. 17-1731V, 2021 WL 1718202, at *5 (Fed. Cl. Spec. Mstr.
Mar. 31, 2021). In this case, Petitioner has not established that the sequela of her GBS
continued beyond the very mild — yet improving - symptoms she reported in 2020. She
also suffered from co-morbidities which could account for much of her difficulties. More
importantly, the record does not establish a notable permanent loss that would justify this
component of damages (beyond the usual lingering sequelae, which | can address, and
do, in the size of my award for actual pain and suffering). Petitioner has not shown that
the residual symptoms she continues to suffer will have as significant an effect on her in
the future. Thus, | do not find that an award for future pain and suffering is warranted in
this case.

V. Appropriate Compensation for Lost Wages

Prior to vaccination, Petitioner's struggled with aspects of her job (see Ex. 26 —
prior evaluations) and experienced significant work-related stress (Ex. 16 at 205). On
multiple occasions, she contacted an attorney to discuss her work-related options,
acknowledged that she was job hunting, or reported that she had ceased such efforts due
solely to the fear that her employer would learn of them. /d. at 193, 195, 200, 205. And
her stress and anxiety after a particular employee, noted to be bullying her, left did not
appear to significantly diminish.?9

Petitioner clearly expressed a reluctance to return to her job following her illness.
The record, however, establishes that Petitioner's views regarding her limitations were
often heightened, exceeding her treating physician’s assessments or what testing
revealed. Ex. 20 at 117. And the declarations provided by Petitioner’s friends appear to

23 In late 2015, Petitioner assumed that her work environment would improve after another employee, who
was bullying her, was fired. Ex. 16 at 185. However, Petitioner continued to report work-related issues. See,
e.g., id. at 193. In late 2017, she also believed a new supervisor, recently hired, would help bring about
improvements (id. at 202), but reported job hunting shortly thereafter (id. at 205). And the new supervisor
continued to assess her job performance as either successful or developing (one step below Petitioner’s
self-assessment) and to note issues with responses, organization, and attention to daily tasks. Ex. 26 at 1-
15.

14

Case 1:20-vv-01484-UNJ Document66~ Filed 12/11/25 Page 15 of 16

be based in large part upon accounts related to them by Petitioner, and also contain some
obvious factual errors. For example, one friend stated that after returning to work,
Petitioner “received the most negative annual evaluation she ha[d] ever received.” Ex. 21
at J 6. But, in briefing, Petitioner acknowledged that she received no evaluation during
the seven months of work she performed post-vaccination. Reply at 6. Petitioner has
provided no evidence showing that her job performance after returning from her illness
was poorer than in prior years.

Most importantly, it does not appear that Petitioner encountered any significant
difficulties after her return to work exceeding the issues identified in evaluations prior to
her illness. When undergoing cognitive testing in November 2020, even she
acknowledged that her retirement in December 2019 was “due in part to perceived
cognitive/functional difficulties performing work tasks.” Ex. 20 at 116 (emphasis added).
And the testing revealed Petitioner’s difficulties were related not to problems with her
memory, but with her long-term difficulties with organization and anxiety. /d. at 118.

Furthermore, Petitioner planned to continue working as a self-employed consultant
— a plan that was derailed by the COVID Pandemic, rather than the effects of any GBS
sequelae. Ex. 19 at 5. And Petitioner has worked as independent contractor since 2021.
Ex. 46 at J 11; see Ex. 23 (one-year Independent Contractor Agreement with Icon Realty
Group executed on December 28, 2020). As Dr. Kennedy noted, Petitioner’s ability to
both work and receive pension payments actually places her in an advantageous financial
position. Ex. B at 6.

Petitioner has simply not met her burden to prove preponderantly that she should
receive a lost wages damages component due to her vaccine-caused GBS.

Conclusion

For all of the reasons discussed above and based on consideration of the record
as a whole, | find that $160,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering.*° Additionally,
Petitioner is entitled to the agreed upon amount for past/actual unreimbursed
expenses, $1,098.08, but no amount for future/projected pain and suffering or lost
wages.

30 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)).

15

Case 1:20-vv-01484-UNJ Document66~ Filed 12/11/25 Page 16 of 16

| therefore award Petitioner a lump sum payment of $161,098.08,
representing compensation in the amounts of $160,000.00 for actual pain and
suffering and $1,098.08 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.*"

IT IS SO ORDERED.
s/Brian H. Corcoran

Brian H. Corcoran
Chief Special Master

31 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.

16