In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 19-0191V
                                          UNPUBLISHED


    CURTIS DEVLIN,                                            Chief Special Master Corcoran

                          Petitioner,                         Filed: August 7, 2020
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Decision Awarding Damages; Pain
    HUMAN SERVICES,                                           and Suffering; Influenza (Flu)
                                                              Vaccine; Guillain-Barre Syndrome
                         Respondent.                          (GBS)


Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.

Wei Kit Tai, U.S. Department of Justice, Washington, DC, for Respondent.1


                                 DECISION AWARDING DAMAGES2

      On February 1, 2019, Curtis Devlin filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the
“Vaccine Act”). Petitioner alleged that he suffered Guillain-Barré syndrome (“GBS”)
casually related to the influenza (“flu”) and pneumonia4 vaccinations he received on
December 20, 2017. Petition at 1, ¶¶ 1, 15. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.

1
    Mr. Tai substituted at hearing for Respondent’s counsel of record, Christine Becer.
2
  Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the Decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
3
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
4
 Petitioner’s vaccine record indicates he received the Prevnar 13 vaccine, a pneumococcal conjugate
vaccine, which is also covered under the Vaccine Program. Ex. 1 at 2; see Bundy v. Sec’y, Health & Human
Servs., No. 12-769V, 

, at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014).
     For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $180,000.00 for his past pain and suffering. Petitioner is not,
however, entitled to compensation for future pain and suffering.

    I.      Relevant Procedural History

        Approximately one year after the petition was filed in this case, Respondent filed
a Rule 4(c) Report conceding that Petitioner’s injury met the Table definition for GBS
following receipt of the seasonal flu vaccine. ECF No. 23; see 42 C.F.R. § 100.3(a) XIV.D.
(2017) (definition of a Table GBS). I issued a Ruling on Entitlement on February 18, 2020.
ECF No. 24. The parties thereafter made some efforts to settle damages but were
unsuccessful. Both sides eventually agreed to my proposal that they participate in an
expedited hearing, completing damages briefing by July 2, 2020. ECF No. 38 (joint status
report); ECF Nos. 33, 35, 39 (parties’ briefs). The expedited hearing was held on July 31,
2020,5 and at its conclusion I orally informed the parties of my determination.
        .
    II.    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 &
Human Servs., No. 93-0092V, 

, 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 & Human Servs., No. 04-
1593V, 

, 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 & Human Servs., No. 93-0172V,

, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and

5
 An official recording of the proceeding was taken by court reporter, and a link to instructions on the court’s
website detailing how to order a certified transcript or audio recording of the proceeding can be found in the
minute entries for this proceeding. Minute Entry, dated July 31, 2020; see also
www.uscfc.uscourts.gov/trans (last visited June 1, 2020).


                                                      2
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., 

, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 

, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 

(Fed. Cir. 1995)).

       I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 

, 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.6 Hodges v. Sec’y of
Health & Human Servs., 

, 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).

    III.    The Parties Arguments

       Petitioner requests $180,000.00 for past pain and suffering, plus a future
component in the form of annual payments of $1,000.00 per year for his life expectancy
of 16.6 years. Petitioner’s Memorandum (“Mem.”) at 25, ECF No. 35. In support,
Petitioner urged the determination to focus not merely on the medical record but on the
information offered in witness statements. Mem. at 4, 2-7.7 He also maintained that,
because of the severity and peculiarities of GBS as an injury (which features
progressively worsening paralysis), I should consider an award higher than what might
be granted for a qualitatively lesser injury, such as a shoulder injury related to vaccine
administration (“SIRVA”).

      Petitioner also argued that his own experiences justified the requested award.
Although he is a retired individual,8 he emphasized his excellent health prior to

6
  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.
7
 In this case, the narratives set forth in the statements submitted by Petitioner and his wife are fully
supported by and consistent with the information contained in the medical records, and so I need not
evaluate inconsistencies between the two.
8
 Petitioner retired from his job in February 2016, approximately 22 months prior to vaccination. Ex. 11 at ¶
3.

                                                     3
vaccination, the multiple visits to different medical providers from early January 2018 until
his diagnosis in February 2018 and the anxiety he experienced during this time, and his
ongoing symptoms and failure to return to baseline thereafter. Mem. at 7-14; Petitioner’s
Reply (“Reply”) at 1-3, ECF No. 39. He contrasted his experience with that of petitioners
in four GBS injury cases, all of which resulted in pain and suffering awards of $180,000.00
or more.9 Mem. at 19-23; Reply at 3-4. And he maintained a future component was also
justified, since he continues to experience symptoms, fatigues more easily, and is unable
to enjoy the activities he previously performed and was anticipating doing during his
retirement. Mem. at 23-25; Reply at 4.

       Respondent counters that Petitioner should receive the more modest sum of
$80,000.00 for past pain and suffering, and no compensation for future pain and suffering.
Respondent’s Memorandum (“Opp.”) at 5, ECF No. 36. Respondent notes that
Petitioner’s GBS was not as severe as the illnesses suffered by the petitioners in the four
cases cited by Petitioner and did not prevent him from work. Opp. at 4-5. His injury also
resolved within one year. In Respondent’s view, Petitioner’s GBS was similar to that
experienced by the petitioner in the Hooper case, who received $80,000.00 for her past
pain and suffering.10 However, Petitioner pointed out in response that Hooper was a
settled case, and there could be numerous undisclosed reasons why a claimant might
take a lesser sum than he would in fact be entitled to receive otherwise.

     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 to include the
medical records, unsworn declarations, and medical literature filed and all assertions
made by the parties in written documents and at the expedited hearing held on July 31,



9
 These cases are as follows: Johnson v. Sec’y of Health & Human Servs., No. 16-1356V, 

(Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 for actual pain and suffering and
$6,000.00 for past out-of-pocket medical expenses and lost wages); Dillenbeck v. Sec’y of Health & Human
Servs., No. 17-0428V, 

(Fed. Cl. Spec. Mstr. July 29, 2019) (a decision I issued awarding
$170,000.00 for past pain and suffering and $10,857.15, the net present value of payments of $5,000.00
per year for 22 years); Presley v. Sec’y of Health & Human Servs., No. 17-1888V, 

(Fed.
Cl. Spec. Mstr. Mar. 23, 2020); Fedewa v. Sec’y of Health & Human Servs., No.17-1808V, 

(Fed. Cl. Spec. Mstr. Mar. 26, 2020) (awarding $180,000.00 for past pain and suffering).
10
  Hooper v. Sec’y of Health & Human Servs., No. 17-0355V, 

(Fed. Cl. Spec. Mstr. Mar.
22, 2019).

                                                   4
2020. I considered prior awards for pain and suffering in both SPU and non-SPU GBS
cases and rely upon my experience adjudicating these cases.11 However, I ultimately
base my determination on the circumstances of this case.

        This evidence shows that Petitioner was an extremely healthy, newly-retired 65-
year old male at the time of vaccination. Ex. 6 at 245-73. On January 10, 2018, Petitioner
visited his PCP in Pennsylvania, complaining of numbness in his fingers and toes which
began on January 3, 2018, approximately fourteen days after vaccination. See Ex. 6 at
285. His symptoms began to progress, encouraging him to seek a neurologic evaluation.
Ex. 3 at 72-74; Ex. 6 at 296; Ex. 11 at ¶ 13; Ex. 12 at ¶ 9. By February, he was alarmed
enough about his symptoms to visit an ER, and the work-up he received did not suggest
his problem was cardiac in nature. Ex. 2 at 41.

       Due to continued deterioration, Petitioner was subsequently hospitalized from
February 6-18, 2018. Ex. 9 at 25 (intake), 22 (discharge summary). Petitioner underwent
seven courses of plasmapheresis over fourteen days.

There are numerous
notations in these medical records from prior to and during hospitalization regarding the
anxiety Petitioner was experiencing during this time. E.g., Ex. 9 at 32, 113. I find that, in
addition to the worsening symptoms and physical difficulties Petitioner was experiencing
during this time, he was understandably troubled by the uncertainty surrounding his
condition and its cause.

       After his discharge, Petitioner made good progress while attending physical
therapy (“PT”) from February 23 through April 11, 2018. Ex. 2 at 84 (first PT session), 119
(last PT session). In the notes from numerous sessions, he is described as highly
motivated and it was reported that he was buying equipment to use for his home
exercises.

It appears Petitioner was last treated for his GBS on December
21, 2018. Petitioner’s GBS is described as resolved at this appointment, but the record
also indicates he continued to experience residual symptoms that (as Petitioner’s briefs
corroborate) are common GBS sequelae.12 See generally Exs. 13-18.

        As I explained to the parties during the expedited hearing, it is my view that GBS
pain and suffering awards generally should be higher than those awarded to petitioners
who have suffered a less severe injury, such as SIRVA. In this case, I find the facts and
circumstances of Petitioner’s case more closely resembles those experienced by the
petitioners in the cases cited by Petitioner than Respondent (whose Hooper determination

11
  Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through July 31,
2020 reveals the median amount awarded $165,000.00 These awards have typically ranged from
$125,000.00 to $270,000.00, representing cases between the first and third quartiles.
12
   Compare Ex. 7 at 11 (describing Petitioner’s GBS as resolved) with

(indicating Petitioner still has
tingling in his feet and toes and continues to drop items).

                                                      5
is a proffer, and hence entitled to inherently less weight than a fully-reasoned decision).
Thus, the four cases cited by Petitioner provide a general framework for calculating the
proper award in this case. Those cases, and Petitioner’s own experiences, justify an
actual pain and suffering award of $180,000.00.

        However, there are some significant differences between Petitioner’s
circumstances and those other cases – and those differences militate against also
including a future component of pain and suffering. In the Dillenbeck case, for example, I
awarded compensation for future pain and suffering – but there, the residual effects
suffered by the petitioner prevented her returning to the job she had prior to her injury, as
a veterinary technician and receptionist, and forced her to accept a less fulfilling position
at lower pay. Dillenbeck, 

, at *4. Such facts supported inclusion of a
future component, which compensated Petitioner not only for her expected residual
sequelae but also for her having to live in an overall less-satisfying manner because of
her injury.

        Here, by contrast, Petitioner has not shown that the residual symptoms he
continues to suffer will have as significant an effect on him in the future. I do not find that
an award for future pain and suffering is warranted in this case, as the magnitude of the
actual award is sufficient to compensate Petitioner for those residual sequelae he may
still experience.

     V.     Conclusion

       For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $180,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering.13 I find that Petitioner
is not entitled to a future pain and suffering component.

      Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $180,000.00 representing compensation for his actual pain
and suffering in the form of a check payable to Petitioner. This amount represents
compensation for all damages that would be available under Section 15(a).




13
  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 & Human Servs., No.
96-0194V, 

, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health
& Human Servs., 

(Fed. Cir. 1994)).


                                                    6
       The clerk of the 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




14
  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.


                                                    7