    In the United States Court of Federal Claims
                            OFFICE OF SPECIAL MASTERS
                                     No. 12-630V
                                 Filed: May 31, 2016
*************************                                PUBLISHED
LAURA DAY and TODD DAY, as                *
Guardians of the person and estate of     *              Case No. 12-630 V
B.K.D.,                                   *
                                          *
       Petitioners,                       *              Chief Special Master Dorsey
                                          *
v.                                        *              Gardasil (“HPV”); FluMist
                                          *              (“influenza”); Interim Damages;
SECRETARY OF HEALTH                       *              Past Pain and Suffering.
AND HUMAN SERVICES,                       *
                                          *
       Respondent.                        *
*************************
Anne Carrion Toale, Maglio, Christopher & Toale, Sarasota, FL, for petitioner.
Gordon Elliot Shemin, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION AWARDING INTERIM DAMAGES1

        On September 24, 2012, Laura Day and Todd Day (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Compensation Program2 (“the Program”), as
the legal representatives of their daughter, B.K.D., in which they alleged that the Gardasil
(“HPV”) and FluMist (“influenza”) vaccinations B.K.D. received on September 28, 2011, caused
her to develop multiple sclerosis (“MS”). Petition at ¶¶ 8-9. Petitioners further alleged that the
vaccinations “actually caused, or alternatively, significantly aggravated” B.K.D.’s injuries.” Id.

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note
(2012)(Federal Management and Promotion of Electronic Government Services). As provided
by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this order to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.

                                                  1
at ¶ 11. After the filing of the petition, it was discovered that B.K.D. actually suffers from a rare
autoimmune disorder known as neuromyelitis optica (“NMO”), or Devic’s Syndrome, rather
than MS. See Petitioners’ (“Pet’rs’”) Exhibit (“Ex.”) 6 at 13. On November 13, 2015, the
undersigned issued a ruling on entitlement finding that petitioners were entitled to compensation.
Ruling on Entitlement dated November 13, 2015 (ECF No. 82). A damages order was entered
on the same day.

    I.     Procedural History of Petitioners’ Motion

        On January 7, 2016, petitioners filed a Motion for Ruling on Entitlement to Interim
Damages, outlining the extreme financial hardships that B.K.D.’s family currently faces. Motion
for Ruling on Entitlement to Interim Damages (“Pet’rs’ Motion”) dated January 7, 2016 (ECF
No. 88). Petitioners stated that B.K.D. has an urgent need for a wheelchair van and ADA-
compliant housing. Id. at 1-2. Petitioners further stated that the life care planning process has
just begun and could take more than one year to resolve. Id. at 1. Petitioners urged that the
parties were likely to agree on the appropriate amounts of pain and suffering and lost earning
capacity. Id. at 2. Petitioners also disclaimed any intention to reject any future awards of
damages. Id.

       Respondent filed her response on January 22, 2016, opposing an award of interim
damages and arguing that the Vaccine Act does not authorize special masters to issue more than
one decision on damages. Respondent’s Response (“Resp’s Resp.”) dated January 22, 2016
(ECF No. 89).

        A status conference was held on January 28, 2016, during which the parties discussed
petitioners’ motion for interim damages. The undersigned noted respondent’s continued
objection to an award of interim damages and stated that respondent was not waiving her
objection by conferring with petitioners’ counsel to reach an agreement on an appropriate
amount of damages. See Scheduling Order dated January 28, 2016 (ECF No. 93). On February
29, 2016, the parties filed status reports in which they agreed that the amount of lost wages is
$931,359.63. See Status Reports dated February 29, 2016 (ECF Nos. 98-99). Petitioners also
argued that the Court should award $250,000.00 for pain and suffering, as B.K.D. suffers from a
debilitating autoimmune disorder, but respondent declined to take a position on the appropriate
amount of pain and suffering at that time. See id.3




3
  On April 13, 2016, the undersigned issued a scheduling order asking the parties to provide
information on whether they could agree to an amount of past unreimbursed expenses.
Scheduling order dated April 13, 2016 (ECF No. 104). Petitioners reported that the parties had
not yet begun discussing the appropriate amounts to be paid for past unreimbursed expenses.
Pet’rs’ Status Report dated April 14, 2016 (ECF No. 105). In a status report filed on April 21,
2016, petitioners stated that they provided their attorney with some receipts for past medical
expenses as well as travel and mileage expenses, but the amount of unreimbursed expenses has
not been finalized. Pet’rs’ Status Report dated April 21, 2016 (ECF No. 106).

                                                  2
   II.     Statement of the Issues

        The first issue presented in petitioners’ motion is whether the statute permits an award of
interim damages. Assuming that the statute allows a special master to award interim damages,
the second issue is whether this case presents an appropriate circumstance for such an award.
The third issue is what type(s) of damages petitioners may receive on an interim basis. The
undersigned discusses each of these issues in turn.

   III.    Summary of Petitioners’ Arguments

        Petitioners assert three main arguments in support of their motion for interim damages.
First, petitioners argue that the plain meaning of the Vaccine Act supports multiple awards of
damages. Petitioners next argue that multiple damages awards comport with the overall purpose
of the Vaccine Act. Finally, petitioners argue that the Federal Circuit has previously allowed
awards of interim damages in extreme circumstances.

           a. Plain Meaning of the Vaccine Act Supports Awarding Interim Damages

        The Vaccine Act authorizes special masters to determine whether petitioners are entitled
to compensation and the amount of such compensation. The Act reads, in relevant part, “A
special master to whom a petition has been assigned shall issue a decision on such petition with
respect to whether compensation is to be provided under the Program and the amount of such
compensation.” § 300aa-12(d)(3). Petitioners argue that where the Vaccine Act refers to “a”
decision, the Congressional rules of statutory construction allow the word “a” to be interpreted as
“several.” Pet’rs’ Proposed Order at 4. The Congressional rules provide that “in determining the
meaning of any Act of Congress, unless the context indicates otherwise – words importing the
singular include and apply to several persons, parties, or things.” See id. at 4 (quoting 1 U.S.C. §
1). Petitioners thus argue that the language of the Vaccine Act does not prohibit special masters
from issuing multiple awards of damages.

           b. Overall Purpose of the Vaccine Act Supports Awarding Interim Damages

        Petitioners next argue that an award of interim damages comports with the overall
purpose of the Vaccine Act. Petitioners urge that a statute should be construed consistent with
its Congressional intent. Pet’rs’ Proposed Order at 5 (citing Saunders v. Sec’y of Health &
Human Servs., 25 F.3d 1031, 1036 (Fed Cir. 1994); Doyon, Ltd. v. United States, 214 F.3d 1309,
1314 (Fed. Cir. 2010); see also Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358, 1362
(Fed. Cir. 2012) (noting the Vaccine Act should be constructed in a manner that effectuates its
underlying spirit and purpose)). Petitioners emphasize that Congress’ intent in passing the
Vaccine Act was to compensate vaccine-injured individuals “quickly, easily, and with certainty
and generosity.” Id. (citing H.R. Rep. 99-908 (1986)). Petitioners argue that interpreting the Act
so as to permit multiple awards of interim damages gives effect to this Congressional intent. Id.




                                                 3
           c. Previous Federal Circuit Rulings Support Awarding Interim Damages

        Petitioners next highlight several Federal Circuit rulings which have permitted multiple
damages awards in Program cases, arguing that these cases support an award of interim damages
in B.K.D.’s case. Petitioners argue that Avera, which allowed multiple awards of attorneys’ fees
and costs, supports multiple damages awards, because awarding fees and costs is procedurally
similar to awarding damages. Pet’rs’ Proposed Order at 6 (discussing Avera v. Sec’y of Health
& Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). Petitioners further argue that the Federal
Circuit authorized multiple elections to accept damages in both Heinzelman and Tembenis. Id.
(citing Heinzelman v. Sec’y of Health and Human Servs., 681 F.3d 1374 (Fed. Cir. 2012)
(granting petitioner’s motion for interim damages)); Tembenis v. Sec’y of Health and Human
Servs., 733 F.3d 1190 (Fed. Cir. 2013) (awarding an uncontested amount of interim damages)).

   IV.     Summary of Respondent’s Arguments

         Respondent argues that an award of interim damages is improper for three main reasons.
First, respondent contends that the language of the Vaccine Act does not permit special masters
to award interim damages. Resp’s Resp. at 1. Respondent next argues that interim fee awards,
though permitted by the Federal Circuit in Avera, are procedurally different from interim
damages awards, because petitioners are not required to file an election to accept judgment for
awards of interim fees. Id. at 2. Finally, respondent argues that Heinzelman and Tembenis are
non-precedential and procedurally different, and thus they do not constitute the Federal Circuit’s
“approval” of interim damages. Id. at 3-4.

           a. Language of the Vaccine Act Does Not Permit Interim Awards

        Respondent first argues that the language of the Vaccine Act only contemplates a single
judgment and does not allow flexibility for multiple damages decisions. Resp’s Resp. at 2. The
Secretary argues, “Indeed, a single damages decision leads to a single judgment, and a single
election, a proposition that makes perfect sense given that the Act requires a special master to
informally adjudicate the petition within 240 days … and [the Program] is designed to work
faster … than the civil tort system.” Id. (citing 42 U.S.C. §300aa-12(d)(3); Shalala v.
Whitecotton, 514 U.S. 268, 269 (1995) (citing H.R. Rep. No.99-908, at 3-7)). Respondent also
observes that the Office of Special Masters is a “creature of statute” and is thus required to
interpret the Vaccine Act according to the will of Congress and at the direction of the Federal
Circuit. Resp’s Resp. at 2 (quoting Patton v. Sec’y of Health & Human Servs., 25 F.3d 1021,
1027 (Fed Cir. 1994).

           b. Procedural Differences Between Interim Fee and Interim Damages Awards
              Make Interim Damages Inappropriate

       Respondent contends that contrary to the special master’s reasoning in Lerwick v. Sec’y
of Health & Human Servs., No. 06-847V, 2014 WL 1897656 (Fed. Cl. Spec. Mstr. April 16,
2014) (awarding interim damages), interim fee awards are procedurally distinguished from
interim damages awards because petitioners are not required to file an election to accept the
judgment of an award of interim attorneys’ fees. Resp’s Resp. at 2, 4. The Secretary points to


                                                4
an earlier order from the Federal Circuit for the proposition that “[a]ttorneys’ fees, and the
judgments allowing them, are wholly separate matters from the compensation payable to
vaccine-injured individuals for their vaccine-related injury.” Resp.’s Resp. at 2-3; (citing
Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031, 1034-35 (Fed. Cir. 1994) (internal
quotations omitted)).

           c. Procedural Differences in Federal Circuit Decisions Make Awarding Interim
              Damages Inappropriate

         Finally, respondent argues that neither Heinzelman nor Tembenis constitutes the Federal
Circuit’s approval of interim damages awards, as they were non-precedential orders decided
under different procedural circumstances. Resp’s Resp. at 3. The Secretary urges that neither
order states that special masters have the power to issue interim damages awards and that both
cases in which the Federal Circuit allowed petitioners to receive interim damages were on appeal
after all damages proceedings had been concluded. Id. Respondent further argues that “the
underlying premise … in Tembenis and Heinzelman – that an election as to one judgment binds
the petitioner to accept all subsequent judgments – is subject to question.” Id. at 4. The
Secretary contends that the Federal Circuit has not provided persuasive case law to support this
holding. She states, “[T]here is nothing in the Vaccine Act itself that requires a petitioner who
elects to accept a judgment awarding interim damages to accept any subsequent judgment.” Id.
at 5. The Secretary thus reasons that “a petitioner who accepts one judgment is not clearly bound
to accept a separate judgment.” Id.

    V.     Analysis

           a. The Statute Permits an Award of Interim Damages

        In Lerwick, the special master awarded interim damages to petitioner for past pain and
suffering and past unreimbursed medical expenses. 2014 WL 1897656, at *11. Despite the
Secretary’s argument that “a” decision should be interpreted to mean “one” decision, the special
master found that the rules of statutory construction permit interpretive flexibility. Id. at *3.4
The undersigned agrees with this analysis and finds that the plain language of the Vaccine Act
does not prohibit special masters from issuing multiple decisions on compensation. The
undersigned further notes that this interpretation of the statute comports with the overall intent of
Congress,5 who instructed that the purpose of the Vaccine Act is to compensate vaccine-injured
individuals “quickly, easily, and with certainty and generosity.” H.R. Rep. 99-908, at 3 (1986).
4
  The special master explained, “In a statute, the use of an indefinite article (“a” or “an”) can
mean “one or more.” In contrast, the use of the definite article (“the”) usually suggests a single
item . . . . The Federal Circuit has used the same guidelines in construing patents.” Lerwick,
2014 WL 1897656, at 3 (citing Colorado v. Sunoco, Inc., 337 F.3d 1233, 1241 (10th Cir. 2003)
(interpreting the Comprehensive Environmental Response, Compensation and Liability Act));
Boeing Co. v. United States, 75 Fed. Cl. 34, 43 (2007) (“If more than one such official were
contemplated, the indefinite articles ‘an’ or ‘a’ should have been used.”)).
5
  It is well established that principles of statutory construction require a statute to be interpreted
in a way consistent with Congress’ intent. See Saunders, 25 F.3d at 1036; Doyon, 214 F.3d 1309

                                                  5
        The question of whether the Vaccine Act authorizes multiple decisions on compensation
has also been addressed by the Federal Circuit. In Avera, the Federal Circuit stated that special
masters have the authority to issue multiple decisions awarding attorneys’ fees and costs. 515
F.3d at 1352. Moreover, the Federal Circuit rejected the Secretary’s arguments against interim
damages in both Heinzelman and Tembenis.

         In Heinzelman, the Federal Circuit granted petitioner’s motion for interim damages and
ordered the Court of Federal Claims to issue an interim damages award to petitioner.
Heinzelman, Order dated August 6, 2012 at 2. In Tembenis, the Federal Circuit rejected
respondent’s concerns that interim damages would compromise the structure of the Program by
causing inconsistent elections and thus result in claims outside of the Program. Tembenis, Order
dated May 16, 2013 at 5-6. With regard to the Secretary’s arguments about the potential for
inconsistent elections of judgments, the Federal Circuit found that a judicial officer could hold
that the election to accept a judgment awarding interim compensation implied the acceptance of
a later judgment awarding final compensation, thus preventing the problem of inconsistent
elections. Id. at 5-6; accord Lerwick, 2014 WL 1897656, at *7.

        While the undersigned is not bound by these non-precedential Federal Circuit rulings, she
finds their reasoning to be sound, in accordance with the Act, and therefore highly persuasive.
For these reasons, the undersigned finds that special masters possess the legal authority to award
compensation on an interim basis.

           b. An Award of Interim Damages is Appropriate in This Case

        Now that the undersigned has determined that special masters possess the discretionary
authority to award interim damages, she must determine whether interim damages are
appropriate under the facts and circumstances of this case. Petitioners suggest four factors to
consider in determining whether interim damages are appropriate, including: “(1) the length of
time since the vaccine injury; (2) the length of time … since the ruling on entitlement; (3) the
general nature and extent of expenses related to the vaccine injury …., and (4) the agreement of
the parties as to undisputed damages.” Pet’rs’ Proposed Order at 9.

        The basis for an award of interim damages is the November 13, 2015 Ruling, which
found that petitioners had established that the Gardasil and FluMist vaccinations that B.K.D.
received on September 28, 2011, caused her to develop NMO. Ruling on Entitlement at 31. As
a result of these vaccinations, she suffers from a rare and debilitating autoimmune disorder
known as NMO. It has been almost five years since the onset of B.K.D.’s injury.

       The parties are in the process of developing a life care plan for B.K.D., which will
provide guidance as to the appropriate amount of damages. Petitioners’ life care planner recently
advised that B.K.D. will need to be evaluated by at least three new specialists, in addition to her


(“The objective when interpreting statutes is to give effect to the intent of Congress . . . . To fully
understand the meaning of a statute, we look not only to the particular statutory language, but to
the design of the statute as a whole and to its object and policy.”).

                                                   6
current team of doctors, in order to create an accurate life care plan.6 See Pet’rs’ Reply dated
March 22, 2016 (ECF No. 101). In addition, because B.K.D. now receives Medicaid, there is a
Medicaid lien, which will require additional time to process. See Pet’rs’ Status Report dated
April 14, 2016 (ECF No. 105).7 The final resolution of B.K.D.’s damages could take several
more months.

        While her damages award remains pending, B.K.D. has an immediate need for
wheelchair-accessible transportation. 8 Pet’rs’ Motion at 2. Due to extreme family and financial
hardships,9 petitioners are unable to make this purchase. Id. at 1-2. An interim damages award
will assist her in making this purchase. This decision does not contemplate that interim damages
would be routinely or even frequently awarded, but in this case, petitioners have made a
persuasive case that there is extreme hardship and that accordingly, the purpose of the Vaccine
Act is better fulfilled by making the interim award. For all of the reasons above, the undersigned
finds that an award of interim damages is appropriate in this case.

           c. Petitioners May Receive Interim Damages for Past Pain and Suffering

        Petitioners have proposed an award of $931,359.63 for lost earnings and $250,000.00 for
past pain and suffering. Pet’rs’ Reply at 2-3. While the parties agree that the present value of
B.K.D.’s earning capacity is $931,359.63, respondent has declined to take a position on the
appropriate amount to be awarded for pain and suffering. Pet’rs’ Status Report dated February
29, 2016 (ECF No. 98); Resp.’s Status Report dated February 29, 2016 (ECF No. 99). The
6
 Petitioners’ most recent status report stated that B.K.D. has appointments with a urologist on
June 14, 2016, a plastic surgeon on May 25, 2016, and a physical medicine and rehabilitation
physician on November 14, 2016. She is on a waiting list to see the physical medicine specialist
should an appointment become available sooner. Pet’rs’ Status Report dated May 23, 2016 (ECF
No. 110).
7
  In a status report dated April 21, 2016, petitioners reported that their attorney had received the
Medicaid lien but was awaiting further information. Pet’rs’ Status Report dated April 21, 2016.
In their most recent status report, petitioners stated that the Medicaid lien amount is $7,584.74,
but that this amount only encompasses one date of service. Petitioner stated that billing records
reflecting other Medicaid payments were being discussed with the Medicaid agency but will take
time to collect.
8
  Petitioners report that “[B.K.D.] is [almost 18] years old and is quite heavy due to the steroid-
induced weight gain, and [she] has outgrown her mother’s ability to help lift her into the family
car. A wheelchair van is urgently needed.” Pet’rs’ Motion at 2.
9
  Unfortunate family and financial circumstances have prompted petitioners to request an award
of interim damages. Petitioners report that they are currently going through a divorce and will
likely be declaring bankruptcy and surrendering the family home. Pet’rs’ Motion at 1.
Moreover, the home flooded and the family is currently living in a hotel. Id. And while Ms.
Day is currently employed as a waitress, she will soon bear the primary residential responsibility
for her four children, including B.K.D. Id.


                                                 7
undersigned declines to award interim damages for B.K.D.’s future lost earnings but finds that
B.K.D is entitled to receive $250,000.00 for past pain and suffering.10

         B.K.D.’s injury is devastating and has been associated with multiple relapses. Hearing
Transcript (“Tr”) at 17-18. In late 2011, when she first became ill, B.K.D. presented to the
emergency room on numerous occasions with weight loss, fever, irregular pupils, and leg
weakness and numbness. Pet’rs’ Ex. 2 at 186; Pet’rs’ Ex. 4 at 14, 91-92. She began taking both
intravenous and oral steroids, which caused her to gain weight. When she stopped taking oral
steroids in December 2011, her NMO symptoms returned, and she again experienced unsteady
gait, right leg weakness, back pain, and pupil irregularity. Pet’rs’ Ex. 11 at 36. B.K.D. has had a
number of relapses of NMO since late 2011, each associated with weakness, numbness, and
tingling in her legs, back pain, and blurred vision. See, e.g., Pet’rs’ Ex. 9 at 11-12; Pet’rs’ Ex. 6
at 11; Pet’rs’ Ex. 35 at 5-6; Pet’rs’ Ex. 36 at 6. At the hearing on entitlement, there was
testimony that she was hospitalized ten times in 2014 alone. Tr. 21-22.

       B.K.D. takes a variety of medications and has ongoing and extensive rehabilitation.
During the hearing, B.K.D. testified that the medications leave her tired, weak, and sometimes
sick. Tr. 41. The steroids alone have caused her to gain over one hundred pounds. While the
NMO is better managed with medications, B.K.D. can relapse at any time.

        Due to the relapsing nature of her injury, B.K.D. has had to relearn to walk five times and
has relied on medical equipment for walking, including a cane, a walker, leg braces, and a gait
belt. When unable to walk, she relies on a wheelchair for transportation. Tr. 15; 43-44. Her
illness has made it difficult for her to have a normal life. B.K.D. takes classes online rather than
attending school, and she had her sixteenth birthday party at Riley Hospital. Tr. 42, 45. B.K.D.
is also unable to play softball, her favorite sport and one of her life long passions. Tr. 9. Her
mother testified during the hearing that despite the uncertain future of her daughter’s health,
B.K.D. has tried to make the most of her situation and enjoy life. Tr. 23, 25.

       After reviewing B.K.D.’s testimony, the medical records, and all of the medical treatment
and therapy she has undergone since 2011, the undersigned finds that B.K.D. is entitled to
receive $250,000.00 to compensate her for past pain and suffering.

     VI.   Conclusion

       The undersigned finds that petitioners are entitled to an award of interim damages under
the unique facts and circumstances of this case. An award of B.K.D.’s past pain and suffering is
appropriate in this case, and there is no reason to delay the entry of judgment on this item of
damages, especially given petitioners’ particularly difficult financial circumstances. The
undersigned reserves ruling on the remaining statutory elements of damages for a future date.
10
  The undersigned declines to award interim damages for B.K.D.’s lost earning capacity. The
death of a vaccinee prior to the issuance of a final judgment could affect the amount of
compensation to which one is entitled. See Tembenis, 733 F.3d at 1195; Lerwick, 2014 WL
1897656, at *11. Therefore, the undersigned will not grant her an award of interim damages for
lost earning capacity.


                                                  8
       Accordingly, the undersigned awards a total of $250,000.00, issued in the form of a
check made payable to petitioner, Laura Day, as Guardian of the Person and Estate of
B.K.D.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
court SHALL ENTER JUDGMENT in accordance herewith.11


       IT IS SO ORDERED.

                                                     /s/ Nora Beth Dorsey
                                                     Nora Beth Dorsey
                                                     Chief Special Master




11
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.

                                                9
