    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 18-1747V
                                          UNPUBLISHED


    TIFFANY LEE DRAKE,                                          Chief Special Master Corcoran

                          Petitioner,                           Filed: July 7, 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 Administration (SIRVA)


Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.


                                 DECISION AWARDING DAMAGES1

      On November 9, 2018, Tiffany Lee Drake 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 a right shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination that was
administered on October 25, 2017. Amended Petition at 1.3 The case was assigned to
the Special Processing Unit (“SPU”) of the Office of Special Masters.




1  Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.

2   National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
3On March 19, 2019, Petitioner filed an amended petition to correct the date of vaccination from September
14, 2017 to October 25, 2017. ECF No. 13.
       For the reasons set forth below, and as I represented during the June 26, 2020
motions hearing,4 I find that Petitioner is entitled to an award of damages in the amount
$126,859.13, consisting of $1,859.13 for past medical expenses, and $125,000.00
for actual pain and suffering.


    I.      Relevant Procedural History

     As noted above, the case was initiated in November 2018. On December 6, 2019,
Respondent filed a status report indicating his willingness to entertain a settlement
demand. ECF No. 27. Thereafter, the parties attempted to informally resolve the issue of
damages but reached an impasse on an appropriate reward for actual pain and suffering.
ECF No. 33. I ultimately informed the parties that I would resolve their dispute as to
damages via a motions hearing, and held that hearing on June 26, 2020.5

       The parties argued for damages based on briefing completed prior to the motions
hearing. Thus, on April 2, 2020, Petitioner filed a damages brief requesting that I award
$150,000.00 for pain and suffering. Petitioner’s Brief in Support of Damages at 2, 14. ECF
No. 39. On April 24, 2020, Respondent filed a damages brief proposing a pain and
suffering award of $85,000.00. Respondent’s Brief on Damages at 1. ECF No. 42. Finally,
on April 30, 2020, Petitioner filed a reply to Respondent’s brief reaffirming her request.
Petitioner’s Reply Brief at 1. ECF No. 45. The parties otherwise agree that an award of
$1,859.13 in compensation for Petitioner’s previously-incurred expenses is appropriate,
and there are no other damages components in contention beyond pain and suffering.
ECF No. 44.

    II.     Legal Standard
        I have discussed at length the legal standard to be considered in determining an
appropriate award of pain and suffering for a SIRVA injury in several recent decisions. I
fully adopt and hereby incorporate my prior discussion in sections V and VI of the following
decisions: Vinocur v. Sec’y of Health & Human Servs., No. 17-0598V, 2020 WL 1161173
(Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y of Health & Human Servs., No. 18-
0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood v. Sec’y of
Health & Human Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29,
2020).


4
 See Minute Entry dated June 26, 2020. The transcript of this hearing, which was not yet filed as of the
date of this Decision, is hereby incorporated into this Damages Decision by reference.
5
  Order, issued April 13, 2020 (ECF No. 40) at 1. On April 6, 2020, the parties indicated they could participate
in an expedited hearing on June 26, 2020. Joint Status Report, filed April 27, 2020 (ECF No. 44).


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        In sum, compensation awarded pursuant to the Vaccine Act shall include “actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
[in] an award not to exceed $250,000.” Section 15(a)(4). 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, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996).

   III.       Appropriate Compensation for Petitioner’s Pain and Suffering

        Pain and suffering is the sole disputed damages component herein, so only the
legal standards bearing on its calculation are relevant. In this case, awareness of the
injury is not at issue - Petitioner was at all times 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.

       When performing this analysis, I review the record as a whole to include the
medical records and affidavit filed and all assertions made by the parties in written
documents and at the expedited hearing held on June 26, 2020. I have also considered
prior awards for pain and suffering in both SPU and non-SPU SIRVA cases and rely upon
my experience adjudicating these cases. However, I base my ultimate determination on
the specific circumstances of this case as set forth herein:

          •   Ms. Drake received the flu vaccine alleged as causal on October 25, 2017.
              Exhibit 2 at 1-2. Petitioner states that she experienced unusually severe pain
              immediately after its administration. Ex. 3 at 1;

          •   Petitioner presented to an urgent care center on November 21, 2017 for an
              evaluation of her right shoulder. Ex. 6 at 5-12. She was found to have limited
              range of motion and was diagnosed with right shoulder pain, adhesive
              capsulitis and “vaccination side effects.” Id. at 9. Bursitis and shoulder
              impingement syndrome were also noted. Id. at 11-12;

          •   In addition to consulting with an orthopedic surgeon, in December 2017,
              Petitioner received a steroid injection and underwent an MRI. Ex. 8 at 6, 37;
              Ex. 3 at 2. The MRI revealed “abnormal edema involving the distal portions of
              the infraspinous muscle as well as the infraspinous tendon.” Ex. 7 at 2;

          •   Between December 27, 2017, and January 19, 2018, Petitioner completed ten
              sessions of physical therapy. Ex. 9 at 81-118. While the note documenting her
              initial evaluation indicates that Petitioner rated her pain as a four on a ten-point
              scale, her discharge note reports that her pain had increased to a six. Id. at 93;

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      •   Between January 29, 2017 and May 7, 2017, Ms. Drake continued to suffer
          from severe pain. Ex. 3 at 2-3. On May 18, 2017, after receiving a second MRI
          that revealed a longitudinal split tear of the infraspinatus tendon with edema
          and fluid in the infraspinatus tendon and glenohumeral joint, her orthopedist
          recommended arthroscopic rotator cuff repair and subacromial decompression
          surgery. Ex. 7 at 5, Ex. 8 at 11;

      •   Ms. Drake underwent right arthroscopic surgery with extensive debridement on
          May 29, 2018. Ex. 8 at 13-14. Her postoperative diagnosis was right shoulder
          impairment with extensive subdeltoid bursitis. Id. at 13;

      •   From May 31 to August 24, 2018, Ms. Drake completed 19 sessions of physical
          therapy. Ex. 9 at 2-72. At the time of her initial evaluation, Petitioner reported
          “significant stiffness and loss of mobility.” Id. at 71. At discharge, Petitioner
          reported intermittent spiking pain with certain movements. Id. at 2. Moreover,
          she continued to have limited range of motion and a 39% shoulder impairment.
          Id; and

      •   In her affidavit, signed November 9, 2018, Petitioner states that she continues
          to have pain, soreness, and limited range of motion in her right shoulder. Ex. 3
          at 3. She further states that she still has difficulty with daily activities involving
          the use of her shoulder, such as lifting, carrying and driving. Id.

       The case record overall thus establishes that Petitioner experienced ten months
of moderate levels of pain and limited range of motion in her right shoulder. Despite ten
sessions of physical therapy and a corticosteroid injection, Petitioner underwent
arthroscopic surgery approximately seven months after her receipt of the flu vaccine.
Following this procedure, Petitioner underwent an additional 19 sessions of physical
therapy. Upon completion, Petitioner continued to experience lingering problems and
was determined to have a 39% shoulder disability.

      The above-described course is similar to the petitioner in Dobbins v. Sec’y of
Health & Human Servs., No. 16-0854V, 2018 WL 4611267, at *13 (Fed. Cl. Spec. Mstr.
Aug. 15, 2018). The Dobbins petitioner was awarded $125,000.00 for pain and suffering
from a “mild to moderate painful injury,” and where the petitioner participated in
approximately 50 sessions of physical therapy, received one cortisone injection, and
underwent arthroscopic surgery, but whose symptoms were largely resolved within six
months of vaccination. See also Nute v. Sec’y of Health & Human Servs., No. 18-0140V,
2019 WL 6125008, at *12 (Fed. Cl. Spec. Mstr. Sept. 6, 2018)(awarding $125,000.00 for
pain and suffering to a petitioner who was found to suffer from moderate to severe SIVA


                                              4
symptoms for approximately nine months post-vaccination, with less severe symptoms
for an additional one-to-two months. Petitioner received three cortisone injections,
participated in 19 sessions of physical therapy, and underwent left shoulder surgery). I
therefore find that a damages award comparable to these two cases is most warranted
given the comparable severity (reflected in overall treatment received) and duration of
Petitioner’s injury.

    IV.     Conclusion

       Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $126,859.13, consisting of $1,859.13 for medical expenses,
and $125,000 for 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).

       The clerk of the court is directed to enter judgment in accordance with this
decision.6

IT IS SO ORDERED.
                                         s/Brian H. Corcoran
                                         Brian H. Corcoran
                                         Chief Special Master




6 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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