In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 19-0021V

UNPUBLISHED

DENNIS SCHMITT,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: August 30, 2021

Special Processing Unit (SPU); 

Decision Awarding Damages; Pain 

and Suffering; Influenza (Flu); 

Shoulder Injury Related to Vaccine 

Administration (SIRVA).

Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Claudia B. Gangi, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On January 3, 2019, Dennis Schmitt 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 alleged that he suffered a shoulder injury related to vaccine 

administration (“SIRVA”) caused by the influenza (“flu”) vaccine he received on November 

22, 2017. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of 

the Office of Special Masters. For the reasons set forth below, I find that Petitioner is 

entitled to a damages award of $120,174.94 (representing $118,000.00 for actual pain 

and suffering, and $2,174.94 for actual out-of-pocket expenses).

1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am 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 EGovernment Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the opinion 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).
2

I. Relevant Procedural History

19 months after Petitioner initiated his claim, in September 2020, Respondent 

conceded that he was entitled to compensation. Rule 4(c) Report (ECF No. 32). I

thereafter issued a ruling on entitlement and directed the parties to work collaboratively 

towards resolving damages. ECF Nos. 33-34. 

In February 2021, the parties reached an impasse in their discussions. ECF No. 

40. Accordingly, I set a schedule for any additional evidence and briefing. Scheduling 

Order (Non-PDF) entered March 2, 2021. Petitioner filed his second affidavit as Ex. 13 

on April 1, 2021, followed by a brief arguing for $160,000.00 for actual pain and suffering 

on May 21, 2021, ECF No. 43. On July 8, 2021, Respondent countered that Petitioner’s 

evidence and a comparison to other conceded cases supported a pain and suffering 

award of only $75,000.00. ECF No. 44. The parties agreed, however, that the record 

supported actual out-of-pocket expenses totaling $2,174.94. 

In July 2019, I informed the parties that this matter appeared to be appropriate for 

an expedited hearing and ruling, and they accepted my proposal. Scheduling Order (NonPDF) entered July 12, 2021; ECF No. 46. Therefore, at the August 2021 Motions Day, I 

heard oral argument3 and issued a bench ruling on the appropriate award of pain and 

suffering, which is memorialized below.4

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, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,

1996).

3 Attorney Christopher Williams presented oral argument on behalf of Petitioner.

4 See Joint Status Report (ECF No. 46); Hearing Order filed July 27, 2021 (Non-PDF); Minute Entry entered 

August 27, 2021 (Non-PDF). A court reporter made an official recording of the proceeding. 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 entry. See also www.uscfc.uscourts.gov/trans (last visited August 

27, 2021).
3

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, 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 & 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)). 

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., 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, I may rely on my own experience (along with my

predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of 

Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993).

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. In Graves, Judge Merow rejected a 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. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013). 

Judge Merow maintained that 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.” Id. at 590. Instead, Judge Merow 

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 all possible 

awards as falling within a spectrum that ends at the cap.

5 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 SIRVA claims, were 

assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the 

majority of SPU cases were reassigned to me as the current Chief Special Master.
4

III. Appropriate Compensation for Petitioner’s Pain and Suffering

In this case, Petitioner’s awareness of the injury is not disputed, which leaves only 

the severity and duration of the injury to be considered. In assessing those factors, I have 

reviewed the record as a whole, including the medical records, affidavits, and all 

assertions made by the parties in written documents and at the expedited hearing held 

on August 27, 2021. I 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 ultimately base my determination on the specific circumstances of this case. 

Pursuant to my oral ruling on August 27, 2021 (which is fully incorporated herein), 

I find that $118,000.00 represents a fair and appropriate amount of compensation 

for Petitioner’s past pain and suffering. Petitioner has not sought and I have not 

found preponderant evidence to support an award for future pain and suffering. 

Upon receiving the flu vaccine in his non-dominant left shoulder on November 22, 

2017, Petitioner was 70 years old, had a non-contributory medical history, and was 

employed as a residential contractor. He sought medical treatment relatively promptly, 

just 22 days later on December 14, 2017, with his primary care provider. He reported a 

sore arm and pain with abduction ever since the vaccine. Ex. 7 at 1. He was observed to 

have full range of motion except with lateral abduction to the horizontal level, significant 

pain over the biceps bursa but no visible redness or swelling. Id. He was assessed with 

bursitis, for which he would apply a non-steroidal anti-inflammatory (“NSAID”) topical gel, 

take extra-strength acetaminophen as needed, and follow up and seek a steroid injection 

in the event of “uncontrolled” pain. Id.

On December 20, 2017, Petitioner presented to an orthopedist for shoulder pain 

rated at 8/10, specifically upon lifting his arm away from his body, that also woke him up 

but did not keep him up at night, as well as decreased range of motion. Ex. 3 at 18. The 

orthopedist assessed subacromial bursitis and recorded that Petitioner “experienced 

marked improvement” upon receiving a steroid injection. Id. at 20.

On January 8, 2018, at his initial physical therapy evaluation, Petitioner again 

reported shoulder pain of 8/10 that was “intermittent.” Ex. 4 at 14. The cortisone injection 

offered 24 hours of relief and he continued to take ibuprofen. Id. He was not using the left

arm much and could not sleep on his left side. Id. After a second physical therapy session

just four days later, Petitioner continued with home exercises. Ex. 3 at 29. Then on 

January 31, 2018, upon following up with the orthopedist, he reported pain of 7/10 but

denied taking any pain medication. Id. 
5

A February 1, 2018, MRI of the left shoulder revealed diffuse labral degeneration; 

moderate to severe acromioclavicular joint arthritis, mild glenohumeral joint arthritis; 

subacromial/subdeltoid bursitis; tears in the supraspinatus and biceps; and a “partial... 

nearly full-thickness tear” in the subscapularis tendon. Ex. 3 at 32.6 On February 14, 2018, 

the orthopedist recorded that Petitioner’s pain remained at 7/10 and reviewed the MRI 

findings, but was “hesitant for surgery, as [Petitioner] adamantly expressed disbelief that 

the flu shot did not cause his rotator cuff tear and symptoms.” Ex. 3 at 34-36.

On March 5, 2018, Petitioner consulted a second orthopedist, Dr. Robert R

Scheinberg, for persistent pain at 7/10 both at rest and with activity, “despite conservative 

management” and “some exercises.” Ex. 6 at 16. His assessments were acute bursitis, 

articular cartilage disorder, biceps tendinitis, non-traumatic incomplete tear of the rotator 

cuff, and pain. Id.

On April 24, 2018, Dr. Scheinberg performed arthroscopic debridement of the 

labral tear, synovitis, and abrasion to the humeral head and glenoid; subacromial 

decompression and bursectomy; and rotator cuff repair. Ex. 6 at 31. He prescribed a fiveday course of acetaminophen-hydrocodone for post-operative pain. Id. at 22.

On May 11, 2018, at the post-operative physical therapy evaluation, Petitioner 

reported that his pain was “deep” and “throbbing,” but only 2-3/10. Ex. 4 at 28. However, 

his shoulder rehabilitation potential was good. Id. at 29. The therapist planned one to two 

sessions per week for eight weeks, to improve Petitioner’s left shoulder range of motion 

and pain as well as right shoulder crepitus and poor postural alignment. Id. Petitioner 

attended further sessions on May 14, May 21, May 25, and May 28, 2018. Ex. 12 at 8. At 

the sixth post-operative session on June 13, 2018, Petitioner reported that swimming 

during a recent vacation had been “very helpful” for his shoulder. Id. at 4. After that last 

session, Petitioner had full active range of motion in the left shoulder and he had achieved 

all goals except that his ability to lift a 40-pound weight from the floor was not assessed. 

Id. at 3. Petitioner reported that he was “nearly 100%”, he was “tolerating all ADLs fully.”

Id. He self-discharged with a home exercise program that emphasized scapular stability, 

stretching, and deltoid strengthening. Id.

On August 20, 2018, Dr. Scheinberg recorded that since the surgery, Petitioner 

had “a little bit of achiness and stiffness at times, but overall is doing well and pleased 

with his progress.” Ex. 6 at 40. He was continuing home exercises. Id. Physical 

6 On February 6, 2018, Petitioner telephoned his primary care provider to request prescription medication 

to treat the “sharp pain” in his shoulder. Ex. 10 at 77. The primary care provider recommended trying 

acetaminophen extra strength (which Petitioner had already been taking”) although he “can have some 

Tramadol 50mg 1 q4h prn uncontrolled pain.” Id. However, the record does not corroborate that Petitioner 

ever received or filled such a prescription. 
6

examination of the left shoulder revealed full range of motion and normal strength. Id. Dr. 

Scheinberg instructed Petitioner to “call or return if symptoms worsen or persist.” Id. The 

records from Petitioner’s next medical encounter – his annual physical on August 20, 

2018 – do not specifically address the left shoulder and list numerous medications but not 

for pain. Ex. 10 at 48-49. 

On May 15, 2019, Petitioner returned to Dr. Scheinberg, reporting current pain of 

4/10 at rest and 6/10 with activity, characterized as “a little bit of discomfort and achiness” 

at the biceps and subscapularis tendon. Ex. 9 at 1. Dr. Scheinberg reviewed that as of 

surgery, Petitioner had “a little bit of fraying” at the subscapularis tendon. Id. The current 

impression was “a little bit of tendinitis and partial-thickness tearing of his subscap.” Id. 3. 

However, he maintained the five assessments and diagnostic codes that were present in

his 2018 records. Id. at 2. Dr. Scheinberg administered a steroid injection and recorded 

that Petitioner would follow up in six to eight weeks, but no further records have been 

filed. Id. at 3.

In his affidavits, Petitioner avers that while physical therapy was helpful, he has

lingering pain in his left shoulder. Ex. 8 at ¶ 4. This pain is intermittent and associated 

with inadvertently sleeping on his left side, bearing too much weight on the shoulder, and 

exercise (riding a stationary bike and light weights). Ex. 13 at ¶¶ 1, 3. He has “learned to 

live with” the pain. Id. at ¶ 1. Petitioner avers that this shoulder pain is “different than 

normal aches and pains I would expect from aging.” Id. Petitioner also avers that he 

experienced significant shoulder pain while lifting heavy objects at work sites and that he 

has declined many jobs since his injury. Ex. 8 at ¶ 5.

7

As I informed the parties during the expedited hearing, the question in this case is 

not whether Petitioner is entitled to any compensation for his pain and suffering, but rather 

what amount of compensation is justified. This determination is not an exact science, but 

more of an art. While I will consider the amounts proposed by the parties, each petitioner

deserves an examination of the specific facts in his or her case. Thus, while my award 

may fall somewhere in the range between the parties’ proposed amounts, the result flows 

from a specific analysis of Mr. Schmitt’s personal circumstances.

Upon review, Mr. Schmitt sought relatively prompt and concerted medical 

attention, and his initial pain was consistently documented as 7-8 /10. However, he

managed that pain with over-the-counter medications. However, after surgery and just 

four additional physical therapy sessions, he had significantly less pain and no 

documented limitations. Mr. Schmitt’s assertion of ongoing pain and suffering beyond 

7 Petitioner’s demand did not include any request for lost earnings.
7

May 2018 is weakened by the gap in treatment. While I have recognized in prior decisions 

that SIRVA can recur to some degree, here Respondent argued that Mr. Schmitt’s

shoulder pain upon returning to his orthopedic surgeon in May 2019 was more likely due 

to a new, unrelated progression of his subscapularis tear. Respondent’s argument is 

somewhat persuasive, but I find it unnecessary to make a formal determination on that 

point and I shall instead balance out the weight I give to this occurrence in calculating 

pain and suffering.

The increasing number of past reasoned opinions on SIRVA pain and suffering

should hopefully guide subsequent cases, either via informal settlement or in formal 

briefing – and to that end both sides made some effort to invoke useful prior 

determinations. Petitioner contended that his case is “on point” with Reed v. Sec’y of 

Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 

2019) (awarding $160,000.00 for past pain and suffering). See Pet. Brief at 11. But there 

was persuasive evidence that even after surgery, Ms. Reed did not significantly recover, 

she relied on prescription opioids and pain management after surgery, and her ongoing 

shoulder injury impacted both her ability to work and to fulfill important family obligations.

8

Accordingly, Reed’s award is too high under the circumstances.

Respondent conceded that the degree of necessary treatment of Mr. Schmitt’s 

SIRVA – specifically, arthroscopic surgery – “counsels in favor of a higher award.” 

Response at 8.9 Respondent then asserted that Mr. Schmitt’s severity and duration of 

pain associated with his SIRVA were “moderate,” therefore warranting a “much lower 

award than in... the vast majority of cases involving surgical treatment,” specifically in 

Respondent’s view, $75,000.00. Response at 8. Respondent may be referring to SIRVA 

surgery cases that were resolved by stipulation or proffer. However, my review did not 

8

I have explained that these unique factors justified a higher pain and suffering award in several prior 

cases, all of which were issued prior to the briefing in this case and in which two out of three petitioners 

were represented by Ms. Durant’s firm. See Response at 6 (citing, e.g., Wilson v. Sec’y of Health & Human 

Servs., No. 19-35V, 2021 WL 1530731, at *5 (Fed. Cl. Spec. Mstr. Mar. 18, 2021); Roberson v. Sec’y of 

Health & Human Servs., No. 19-90V, 2020 WL 5512542, at *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2020); Rafferty 

v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956, at *17 (Fed. Cl. Spec. Mstr. May 21, 

2020). I hereby emphasize that Reed’s applicability is limited and there are numerous other opinions which 

may offer more relevant guidance as to the appropriate quantum of damages. 

9 At the expedited hearing, Ms. Gangi suggested that some individuals choose to undergo surgery and 

other individuals with the same degree of pain may choose to manage it differently. In general, I have found 

that most cases involving surgery – which is invasive and carries some risks including infection and adverse 

responses to anesthesia – are more severe than cases not involving surgery. That does not preclude a 

petitioner from establishing why he or she did not undergo surgery, but still sustained a severe injury.
8

locate any SIRVA surgery case involving a reasoned determination of damages which 

culminated in an award of less than $100,000.00 for past pain and suffering.10

Overall, I find that Mr. Schmitt is similar to past petitioners who suffered moderate 

to severe initial pain and limited range of motion, sought medical attention and surgery 

relatively promptly, had a good recovery, but for whom there was a significant gap in 

treatment. See, e.g., Randazzo v. Sec’y of Health & Human Servs., No. 18-1513V, 2021 

WL 829572 (Fed. Cl. Spec. Mstr. Feb. 1, 2021) (awarding $125,000.00 for past pain and 

suffering); Hayes v. Sec’y of Health & Human Servs., No. 17-804V, 2021 WL 688628 

(Fed. Cl. Spec. Mstr. Jan. 6, 2021) ($120,000.00); Stoliker v. Sec’y of Health & Human 

Servs., No. 17-990V, 2020 WL 5512534 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) 

($120,000.00). In fact, Mr. Schmitt’s case involves a slightly shorter course and less 

explanation for the gap in medical treatment. I therefore approve a somewhat lower award

than in these comparable cases.

IV. Conclusion

Based on the record as a whole and the parties’ arguments, I award Petitioner a 

lump sum payment of $120,174.94 (representing $118,000.00 for actual pain and 

suffering and $2,174.94 for actual out-of-pocket expenses). 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.11

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

10 At the expedited hearing, I stressed that it is more helpful for Respondent to offer comparisons to specific 

past reasoned opinions within the Vaccine Program. Respondent referenced a recent case in which the 

petitioner had an excellent recovery following surgery – likely Martin v. Sec’y of Health & Human Servs., 

No. 19-830V, 2021 WL 2350004 (Fed. Cl. Spec. Mstr. May 5, 2021) (awarding $100,000.00 for past pain 

and suffering). While Respondent’s characterization of Mr. Martin’s post-surgical outcome is correct, that 

individual’s 18-week delay in seeking medical attention and the consistent characterizations of his pain as 

mild, even before surgery, supported an even lower amount than is awarded here.

11 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.