         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0392V
                                         UNPUBLISHED


    IRENE RUSSANO,                                            Chief Special Master Corcoran

                         Petitioner,                          Filed: June 4, 2020
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Decision Awarding Damages; Pain
    HUMAN SERVICES,                                           and Suffering; Influenza (Flu)
                                                              Vaccine; Shoulder Injury Related to
                        Respondent.                           Vaccine Injury (SIRVA)


Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.

                                DECISION AWARDING DAMAGES1

       On March 14, 2018, Irene Russano 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 alleges that she suffered from a shoulder injury related to
vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine she
received on November 17, 2015. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.

       For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to compensation in the amount of $80,060.54, representing
$80,000.00 for actual pain and suffering, plus $60.54 for past unreimbursed expenses.




1
  Although this Decision has been deemed unpublished, it will be posted on the United States Court of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.
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 (2012).
    I.       Relevant Procedural History
       A year after this case was initiated, Respondent filed his Rule 4(c) report in March
2019, conceding that Petitioner was entitled to compensation. (ECF No. 34). A ruling on
entitlement was issued the same day. (ECF No. 35). Over the next year, the parties
attempted to reach an agreement regarding the amount Petitioner was due for her
damages, but were unsuccessful. Accordingly, on December 23, 2019, a scheduling
order was issued setting a schedule for the parties to file briefs on damages. (ECF No.
62, 64). The parties filed their respective briefs (ECF Nos. 67 (“Br.”) and 69 (“Opp.”)). I
subsequently proposed that the parties be given the opportunity to argue their positions
at a motions hearing, at which time I would decide the disputed damages issues. (ECF.
No. 68). That hearing was held on May 29, 2020,3 and the case is now ripe for a
determination.


    II.      Relevant Medical History

       A complete recitation of the facts can be found in the petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) report. In brief summary,
Ms. Russano received the flu vaccine in her left shoulder on November 17, 2015 at
Walgreens Pharmacy. Ex. 1 at 1-2. She thereafter presented to her primary care
physician on December 7, 2015, with complaints of left shoulder pain and limited range
of motion to her left shoulder since receiving the vaccine the month before. Ex. 3 at 32-
33.

        Petitioner subsequently visited an orthopedic surgeon on January 13, 2016, who
diagnosed her with a left shoulder subacromial impingement. Ex. 9 at 1-2. An MRI
performed in February 2016 confirmed the injury, and Ms. Russano was prescribed an
anti-inflammatory and referred for formal physical therapy (“PT”). Ex. 5 at 72-73, Ex. 8 at
1-2. She began physical therapy on April 15, 2016, at which time she rated her left arm
pain severe, a 9 out of 10, and attended 23 PT sessions until she was discharged on July
13, 2016, by which time she showed improvement, although she continues to experience
pain and aches, plus a 20 percent reduction in range of motion. Ex. 14 at 1-3, 24, 58, 68-
71; Ex. 15 at 4.


    III.     The Parties’ Arguments

             a. Petitioner

      Ms. Russano seeks an award in the total amount of $95,060.54, consisting of
$95,000.00 as compensation for her pain and suffering, plus $60.54 for past
unreimbursable medical expenses (a sum that Respondent does not contest). Br. at 15.


3
 At the end of the hearing held on May 29, 2020, I issued an oral ruling from the bench on damages in this
case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the case’s
docket. The transcript from the hearing is, however, fully incorporated into this Decision.

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To support her pain and suffering request, Petitioner stressed the degree to which her
injury impacted her life beyond what is, or would be, reflected in her medical records.
(ECF No. 8); Ex. 15 at 1-2. She argued that she has endured “a substantial amount of
pain and suffering as a result of her SIRVA,” that her pain was immediate and intense,
and that she endured her symptoms for at least eight (8) months. Br. at 8.

        Petitioner has also emphasized that her shoulder movement deficits were
exacerbated by her history of breast cancer. Br. at 11. She was unable to use her right
(uninjured arm) due to lymphedema that she developed years prior after a lumpectomy
on her breast. Id.; Ex. 15 at 2-3. She also argued that she was unable to sleep on her left
side for a prolonged time. Id.; Ex. 15 at 4. The constant sleeping on her right side, as a
result, caused her to develop chondrodermatitis nodularis (a common inflammatory
condition of the skin on the outer ear) on her right superior helix, which necessitated
multiple cortisone injections for relief. Id.; Ex. 4 at 4; Ex. 31 at 4.

       During the hearing and in her brief, Petitioner discussed prior SIRVA cases that
involved injured claimants with similar fact patterns, and thus argued that an award of
$95,000.00 was reasonable and appropriate in light of such similar determinations. Brief
at 13-14.

          b. Respondent

       Respondent maintains that a pain and suffering award of $55,000 is appropriate,
given the overall limited scope and nature of Ms. Russano’s injuries. Opp. at 1, 12-13.
Petitioner was prescribed one course of Prednisone, participated in only 23 PT sessions,
and received one steroid injection. As a result, by July 1, 2016 (nearly eight months later),
she had 80 percent improvement of her pain. Id. at 11. Respondent also characterized
Ms. Russano’s range of motion of her left shoulder and MRI findings as mild, stressing
that she never underwent surgery, and that the timeframe of her injury was significantly
shorter than the average of 14 months in proffered SIRVA cases resulting in lower pain
and suffering awards. Respondent also argued that once Ms. Russano began physical
therapy for her injury, her recovery was relatively rapid.

       In addition, Respondent argued at hearing that there were similarities between Ms.
Russano’s circumstances and those of the petitioner in a recent case in which a special
master decided a disputed pain and suffering award, Sherbine v. Sec’y of Health and
Human Servs., No. 17-413, 2020 WL 1933136 (Fed. Cl. Spec. Mstr. Mar. 27, 2020). In
Sherbine, a 65-year-old petitioner received a flu vaccine in her left shoulder and was later
diagnosed with left rotator cuff syndrome and bicep tendinitis. Respondent argued that
the severity of pain the petitioner in Sherbine suffered was much more severe than the
level of pain Ms. Russano suffered in this case, yet that Petitioner was only awarded
$70,000 for her actual pain and suffering. Thus, a lower award in this case is warranted.




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   IV.    Legal Standard
        Compensation awarded pursuant to the Vaccine Act shall include an award “[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.” § 15(a)(1)(B). 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, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).

        There is no precise 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,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards 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, 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 & Human 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)).

        A special master may also look to prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in each case.
See, e.g., Doe 34 v. Sec’y of Health & Human 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, a special master may rely on his or her own
experience adjudicating similar claims. Hodges v. Sec’y of Health & Human 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). Importantly, however, it must also be stressed that pain and suffering
is not determined based on a continuum. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (2013).

       In Graves, Judge Merrow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap, criticizing this as constituting “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.” Graves, 109 Fed. Cl. at 590. Instead,
Judge Merrow 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, applying the statutory cap only thereafter. Id. at 595.



                                             4
   V.     Appropriate Compensation in this SIRVA Case

          a. Awareness of Suffering

        Awareness of suffering is not typically a disputed issue in cases involving SIRVA.
In this case, neither party has raised (nor am I aware of any issue concerning) Petitioner’s
awareness of suffering, and I find that this matter is not in dispute. Thus, based on the
circumstances of this case, I find that Ms. Russano had full awareness of her suffering,
and proceed to analyze the severity and duration of the injury.

          b. Severity and Duration of Pain and Suffering

        With respect to the severity and duration of the injury, Ms. Russano’s medical
records and her affidavit provide a description of the pain she experienced throughout the
duration of her injury. As noted, and although she did not require surgical intervention,
she endured 23 PT sessions, multiple X-rays, and MRI, and a cortisone injection, plus
additional treatments for her ear inflammatory condition. Ex. 4 at 4; Ex. 5; Ex. 8 at 1-2;
Ex. 9 at 1-2; Ex. 15; Ex. 31 at 4. Ms. Russano also has persuasively described how her
injury interfered not only with her daily life, but how it impacted her overall health given
her history of breast cancer. See e.g., Ex. 5 at 45 (noting history of cancer as a
complicating factor); Ex. 15 at 2-3.

        Although Respondent correctly cites Sherbine as a comparable case, the petitioner
therein attended far fewer PT sessions, and was deemed to have “suffered a moderately
severe SIRVA injury” – a characterization that also applies to this case. Sherbine, 2020
WL 1933136 at 11. In addition, the petitioner in Sherbine did not have the compensatory
injuries that Ms. Russano suffered (i.e., a history of breast cancer which affected use of
the non-injured arm and chondrodermatitis nodularis necessitating multiple cortisone
injections to her right ear). Thus, I find that a higher award than what was allowed in
Sherbine is appropriate.

       Accordingly, the complete record in this case supports the overall conclusion that
Petitioner's pain was fairly significant in the beginning and progressively eased over time,
with her movement impairment and pain largely (though not totally) improved within eight
months of vaccination. Under such circumstances and considering the arguments
presented by both parties at the hearing, a review of the cited cases, and based on the
record as a whole, I find that $80,000.00 in compensation for past pain and suffering is
reasonable and appropriate in this case.

          c. Award for Past Unreimbursed Expenses

      Ms. Russano requests $60.54 in past unreimbursable expenses. Brief at 9; Ex. 32.
Respondent does not dispute this sum, and therefore Petitioner is awarded $60.54 for
her past unreimbursable expenses.




                                             5
    VI.     CONCLUSION

       In light of all of the above, the I award Petitioner a lump sum payment of
$80,060.54, (representing $80,000.00 for Petitioner’s actual pain and suffering and
$60.54 for unreimbursable medical expenses) in the form of a check payable to
Petitioner, Irene Russano. This amount represents compensation for all damages that
would be available under Section 15(a) of the Vaccine Act. Id.

       The clerk of the court is directed to enter judgment in accordance with this
decision.4

IT IS SO ORDERED.

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




4
  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.

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