In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-0944V 

UNPUBLISHED

LEANNE ROTH, 

 Petitioner,

v. 

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: August 31, 2021

Special Processing Unit (SPU);

Decision Awarding Damages; Pain

and Suffering; Influenza (Flu)

Vaccine; Shoulder Injury Related to

Vaccine Injury (SIRVA)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. 

Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On June 28, 2019, Leanne Roth 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 an influenza (“flu”) vaccine she received 

on October 20, 2017. 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 $59,046.30, representing 

$58,000.00 for actual pain and suffering, plus $1,046.30 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1 Although this Decision has been deemed unpublished, it will be posted on the United States Court of 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).

CORRECTED
2

I. Relevant Procedural History

Approximately 16 months after this case was initiated, Respondent filed his Rule 

4(c) report on October 23, 2020, conceding that Petitioner was entitled to compensation. 

ECF No. 19. A ruling on entitlement was issued on October 28, 2020. ECF No. 20. After 

a period of negotiation, the parties were able to resolve only the sum for past 

unreimbursed out-of-pocket expenses to be paid to Petitioner. ECF No. 26. The parties

accordingly filed briefs setting forth their respective positions on the disputed damages 

element. ECF Nos. 30 (“Br.”) and 31 (“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. 32. That hearing was held on 

August 27, 2021,

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. Roth received the flu vaccine in her left shoulder on October 

20, 2017 at a CVS Pharmacy in Carpinteria, California. Ex. 1 at 1. Prior to her vaccine, 

Petitioner had no history of pain, inflammation, or dysfunction specific to her left shoulder. 

See Ex. 2. Then, on November 15, 2017 (26 days after vaccination), Ms. Roth presented 

to her primary care provider with complaints of left shoulder pain since receiving the flu 

vaccine. Ex. 2 at 26-28. She described “sharp exquisite pain during the injection,” and 

“severe pain in arm at the injection site the day following.” Id. Ms. Roth was told to ice her 

shoulder and to use NSAIDs, and she was referred to physical therapy. Id. 

Petitioner underwent an initial physical therapy evaluation on December 4, 2017. 

Ex. 3 at 2-5. She was diagnosed with an injury secondary to injection at the site of the 

superficial muscle, which resulted in numbness, pain, decreased strength, and decreased 

range of motion (ROM). Id. at 4. Ms. Roth reported her pain as tending toward severe, 

rating it 2/10 at best, and 10/10 at worst. Id. at 2.

An x-ray performed on December 27, 2017 was normal. Ex. 2 at 62. At her annual 

exam on March 14, 2018, approximately five months after vaccination, Ms. Roth reported 

3 At the end of the hearing held on August 27, 2021, 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.
3

her shoulder had improved 50%, but she still suffered limitations from her injury, including 

sleep disruption. Ex. 2 at 29. 

Ms. Roth completed a total of 21 physical therapy sessions between December 4, 

2017 and June 28, 2018. See Ex. 3. Some of these occurred after Petitioner maintains 

she reaggravated her injury. Ex. 3 at 8-48. Petitioner stated that she had exhausted her 

insurance benefits for physical therapy and paid for additional sessions out-of-pocket until 

she could no longer afford them. Ex. 6 at ¶12. Petitioner described physical therapy as 

“necessary, but really, really painful,” noting that she “was in tears every single time.” Id.

Ms. Roth did not treat her SIRVA after June 28, 2018. She received no other medical 

interventions for her injury.

Although Ms. Roth’s ability to engage in her favorite recreation activities, such as 

bike riding and country dancing, was curtailed due to the injury, she was able to resume 

participation after treatment. See Ex. 6 at ¶9 (Petitioner was able to resume country 

dancing by end of 2018); ¶12 (Petitioner could ride her bike by July 4, 2018). 

III. The Parties’ Arguments

a. Petitioner

Ms. Roth seeks an award in the total amount of $76,036.40 consisting of 

$75,000.00 as compensation for her pain and suffering, plus $1,036.40 for past 

unreimbursable medical expenses (a sum that Respondent does not contest). Br. at 7. 

To support her pain and suffering request, Petitioner stressed that her SIRVA injury

caused her severe pain for an extended duration and caused her several personal 

hardships. Id. at 5-6. She explained that she was unable to use her left arm for daily 

activities, like washing her hair or reaching for her phone. Id. Petitioner noted that she is 

“a single individual” and “did not have any assistance with her activities of daily living.” Id. 

Finally, Ms. Roth missed out on her favorite recreational activities, including country 

dancing, gardening, and bike riding. Id.

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 

$75,000.00 was reasonable and appropriate given that her circumstances were 

comparable. Br. at 6-8. 
4

b. Respondent

Respondent maintains that a pain and suffering award of only $45,000.00 is 

appropriate, because of the overall limited scope and nature of Ms. Roth’s injuries. Opp. 

at 1, 11. Respondent argued that Ms. Roth’s medical records reflect that she sustained a 

“mild” SIRVA injury that required “relatively conservative treatment.” Id. at 5. She declined 

referral to an orthopedist, never had an MRI, and never received a steroid injection. Id. 

Respondent further argued that Ms. Roth attended only five PT sessions through April 

2018, when she “re-aggravated her shoulder” during her nannying job, a separate injury 

that caused the need for additional physical therapy treatment thereafter. Id. at 5-6.

Respondent distinguished Petitioner’s cited prior SIRVA cases, but did not offer 

any prior damages decisions to support his proposed award. Opp. at 8-10. Instead, he 

argued that I should take into account the average award for pain and suffering for 

shoulder injuries in a sample of 55 traditional tort cases from other courts outside of the 

Vaccine Program. Id. at 7; Appendix A. Respondent argued that the average award of

$33,089.93 represents a comparable injury to Petitioners. Id. At the hearing, Respondent 

acknowledged that the Vaccine Compensation Program is intended to be generous in 

arguing for an award of $45,000.00, which is higher than the average cited. He further 

argued that because Ms. Roth had a conservative course of treatment and re-aggravated 

her shoulder injury during her employment, her award should be lower than the prior 

SIRVA cases cited by Petitioner. 

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.” Section 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 
5

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).

V. Appropriate Compensation in this SIRVA Case

a. Awareness of Suffering

Awareness of suffering is not typically a disputed issue in cases involving SIRVA

– and it does not appear to be disputed herein. Thus, based on the circumstances of this 

case, I find that Ms. Roth 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. Roth’s medical records 

and affidavits provide a description of the pain she experienced throughout the duration 

of her injury. As noted, Ms. Roth endured 21 physical therapy sessions, which she 

described as “really, really painful.” Ex. 6 at ¶12. However, Ms. Roth did not seek

treatment from an orthopedist, an MRI was never obtained, no cortisone injection was 

given, and no surgery was recommended. All of the above suggest that the appropriate 

award in this case is “below median” – and indeed neither side has requested that the 

pain and suffering component to be awarded should exceed $100,000.00.
6

After reviewing the record in this case and considering the parties’ arguments 

during the hearing, I find that the re-aggravation argued by Respondent was not an injury 

separate from Petitioner’s SIRVA. In my experience adjudicating such claims, a person 

with a SIRVA injury will often have sensitivity when attempting to engage in activities of 

daily living, including employment, that might make the injury a bit worse at times. I 

therefore find that all 21 physical therapy sessions were treatment for Petitioner’s SIRVA.

Another factor to consider in awarding an amount for pain and suffering is the loss 

of enjoyment of daily life activities. Ms. Roth stated that she had been unable to engage 

in her favorite recreational activities, such as country dancing and bike riding. While Ms. 

Roth was hindered in those activities for a period of time, it appears that Ms. Roth was 

able to resume those activities by the end of 2018. Ex. 6 at ¶9, 10. 

In addition, I note that Ms. Roth stopped treating her shoulder pain, other than with 

home exercises, and was largely recovered within eight months of vaccination as she 

admits in her affidavit. All of these factors will play a role in the amount awarded for Ms. 

Roth’s pain and suffering. See e.g. Dagen v. Sec'y of Health & Human Servs., No. 18-

0442V, 2019 WL 7187335, at *10 (Fed. Cl. Nov. 6, 2019)(awarding $65,000 for pain and 

suffering following a SIRVA where Petitioner’s pain was fairly significant in the first two 

months post-vaccination, but progressively eased in the ensuing period, with her 

movement impairment also largely (though not totally) improved within seven months of 

vaccination”); Knauss v. Sec’y of Health and Human Servs., No. 16-1372, 2018 WL 

3432906 at * 7 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000 for pain and 

suffering following a SIRVA wherein petitioner sought treatments three months postvaccination, underwent 15 physical therapy sessions, received a steroid injection, and 

ultimately reported a 94 percent recovery).

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 $58,000.00 in compensation for past pain and suffering is reasonable and 

appropriate in this case.

c. Award for Past Unreimbursed Expenses

Ms. Roth requests $1,046.30 in past unreimbursable expenses. Br. at 7. 

Respondent does not dispute this sum, and therefore Petitioner is awarded this sum 

without adjustment.
7

VI. CONCLUSION

In light of all of the above, the I award Petitioner a lump sum payment of 

$59,046.30, (representing $58,000.00 for Petitioner’s actual pain and suffering and 

$1,046.30 for unreimbursable medical expenses) in the form of a check payable to 

Petitioner, Leanne Roth. 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.