# M. v. Secretary of Health and Human Services

> United States Court of Federal Claims · March 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10735827

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Herbrina Sanders
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 27, 2023

* * * * * * * * * * * * * * *
E. M., * No. 14-753V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI, for Petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC, for Respondent.

RULING ON PETITIONER’S LOST EARNINGS CLAIM1

On August 19, 2014, E.M. (“Petitioner”)2 filed a petition for compensation pursuant to the
National Vaccine Injury Compensation Program.3 Pet. at 1, ECF No. 1; 42 U.S.C. §§ 300aa-1 to
-34 (2012). Petitioner alleged that the influenza (“flu”) vaccine she received on August 23, 2011,

1
Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Order 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
On July 22, 2021, Petitioner filed a motion to redact her name, her mother’s identity, and information
regarding her employer from my Ruling on Entitlement. ECF No. 95 at 1; ECF No. 96. On August 6,
2021, I granted Petitioner’s motion and directed the Clerk of Court to change the case caption. Order,
ECF No. 102. Accordingly, I will continue to refer to Petitioner by her initials and redact information
regarding her employer. Petitioner’s mother is not identified in this Order.
3
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

1
caused her to suffer from small fiber neuropathy (“SFN”)4 and small vessel vasculitis.5 Pet. at 1;
see also Pet’r’s Pre-Hr’g Br. at 1, ECF No. 70.

On July 9, 2021, I issued a Ruling on Entitlement, finding that Petitioner presented
preponderant evidence that the flu vaccine she received on August 23, 2011, was the cause-in-fact
of her small fiber neuropathy. Ruling on Entitlement (“Ruling”), ECF No. 94. The parties have
been unable to resolve the amount of compensation Petitioner should be awarded, and Respondent
filed a motion to dismiss Petitioner’s lost earning claim on October 31, 2022. Resp’t’s Mot., ECF
No. 127. The parties have since filed additional evidence and briefings in support of their
respective positions. In his accompanying brief, Respondent stated that “[o]nce the issue of lost
earnings is decided, . . .the parties can resolve pain and suffering informally.” Resp’t’s Br., ECF
No. 128 at 2 n.2. I did not order, and neither party has submitted, evidence or arguments for a
specific pain and suffering award. I will make no such determination at this time. For the reasons
set forth below, I find that Petitioner has not presented preponderant evidence that she is entitled
to an award for future wage loss.

I. PROCEDURAL HISTORY

I recounted the complete procedural history of the case in my July 9, 2021 Entitlement
Decision. See Ruling at 2–4. A summary of events that occurred prior to the entitlement
determination is provided here, followed by a more extensive account of the damages phase.

Petitioner filed her petition for compensation on August 19, 2014, along with supporting
documents. Pet. at 1; Pet’r’s Exs. 1–9, ECF No. 1. On September 16, 2014, the parties appeared
for a status conference, and the presiding special master ordered Petitioner to file an affidavit
regarding damages. See Min. Entry, docketed Sept. 16, 2014; Sched. Order, ECF No. 8. Petitioner
filed her first affidavit regarding damages on October 16, 2014. Pet’r’s Ex. 11, ECF No. 9-1.

Respondent filed his Rule 4(c) report on November 14, 2014, recommending that
compensation be denied. Resp’t’s Report, ECF No. 10. The case was subsequently referred to
alternative dispute resolution (“ADR”). Order, ECF No. 12. The parties were unable to come to an
agreement, and the case was removed from ADR on April 16, 2015. Order, ECF No. 15.

Petitioner filed an expert report from Dr. David S. Younger on July 7, 2015, along with
supporting medical literature and a supplemental affidavit authored by Petitioner. Pet’r’s Exs. 14–
20, ECF No. 25. Respondent filed his responsive expert report from Dr. Peter D. Donofrio on
October 16, 2015, along with supporting medical literature. Resp’t’s Exs. A–H, ECF No. 29.

4
Small fiber neuropathy is “a type of neuropathy in which only the small sensory cutaneous nerves are
affected.” Dorland’s Illustrated Medical Dictionary 1252 (33rd ed. 2020) [hereinafter “Dorland’s”].
Neuropathy is “a functional disturbance or pathologic change in the peripheral nervous system, sometimes
limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be known or
unknown.” Id. at 1251.
5
Small vessel vasculitis is “any of a group of vascular diseases of the small vessels, including microscopic
polyangiitis, Wegener granulomatosis, Churg-Strauss syndrome, and pauci-immune crescentic
glomerulonephritis.” Dorland’s at 1996. Vasculitis is “inflammation of a blood or lymph vessel.” Id.

2
On May 13, 2016, the presiding special master scheduled this matter for an entitlement
hearing to take place on January 12-13, 2017. Sched. Order, ECF No. 47. However, on September
2, 2016, Petitioner filed a motion for relief to name a new expert neurologist, file new expert
reports, and to adjourn the upcoming entitlement hearing in this matter. ECF No. 54. The presiding
special master granted Petitioner’s motion and postponed the entitlement hearing “indefinitely.”
Order, ECF No. 56. The presiding special master ordered Petitioner to submit a status report on
the progress of obtaining a new expert. Id.

On January 31, 2017, Petitioner filed an expert report from Dr. Lawrence Steinman along
with thirty-one pieces of medical literature. Pet’r’s Exs. 41–72, ECF No. 60; Pet’r’s Ex. 40, ECF
No. 77-1. Respondent filed his responsive supplemental expert report from Dr. Donofrio along
with supporting medical literature on April 20, 2017. Resp’t’s Exs. L–M, ECF No. 63.

This case was reassigned to me on October 10, 2017. ECF No. 65. This matter was
subsequently set for an entitlement hearing that was held on July 18–19, 2019. ECF No. 68; see
Notice, ECF No. 80. Following the entitlement hearing, Petitioner filed a supplemental expert
report and medical literature on October 14, 2019. Pet’r’s Exs. 78–83, ECF No. 85. The same day,
Petitioner filed her opening post-hearing brief. Pet’r’s Post-Hr’g Br., ECF No. 86. On November
15, 2019, Respondent filed his responsive supplemental expert report along with his post-hearing
response brief. Resp’t’s Ex. N, ECF No. 88; Resp’t’s Post-Hr’g Br., ECF No. 89. Petitioner
submitted a rebuttal expert report and a post-hearing rely brief on January 6, 2020. Pet’r’s Ex. 84,
ECF No. 91-1; Pet’r’s Post-Hr’g Reply, ECF No. 92. I issued my Ruling on July 9, 2021. See ECF
No. 93.

This case entered the damages phase on August 20, 2021. Damages Order, ECF No. 105.
Petitioner issued subpoenas to medical providers for updated medical records and filed additional
records on December 6, 2021. Pet’r’s Ex. 88, ECF No. 112-1; see ECF Nos. 110–111. Petitioner
filed two damages expert reports, along with curriculum vitae (“CV”), and medical literature on
April 25, 2022. Pet’r’s Exs. 89–98, ECF No. 117. She filed a supplemental expert report and
additional supporting literature and documentation on May 25, 2022. Pet’r’s Exs. 99–108, ECF
No. 118; Pet’r’s Exs. 109–118, ECF No. 119; Pet’r’s Exs. 119–123, ECF No. 120.

In response, Respondent filed two expert reports, corresponding CVs, and a motion to
dismiss Petitioner’s lost earning’s claim with a supporting memorandum. Resp’t’s Exs.O–R, ECF
No. 126; Resp’t’s Mot.; Resp’t’s Br. Respondent filed medical literature on November 2, 2022.
Resp’t’s Exs. O, Tabs 1–3, ECF No. 129; Resp’t’s Exs. Q, Tabs 1–5, ECF No. 130. Petitioner
responded to Respondent’s motion on November 28, 2022, and submitted a supplemental expert
report and supporting documents. Pet’r’s Resp., ECF No. 132; Pet’r’s Exs. 124–135, ECF No. 133;
Pet’r’s Exs. 136–37, ECF No. 134. Respondent filed a reply on December 5, 2022. Resp’t’s Reply,
ECF No. 135. On December 12, 2022, I referred this case to ADR. Order, ECF No. 136. Petitioner
filed an additional expert report on January 30, 2023, the expert’s CV, and supporting documents.
Pet’r’s Exs. 138–150, ECF No. 137. The parties reached an impasse in ADR, and ADR
proceedings concluded on April 6, 2023. Order. ECF No. 138.

On August 7, 2023, and September 15, 2023, Petitioner filed a supplemental brief, updated
medical records, affidavits, medical literature, and other documents in support of her lost wages

3
claim. Pet’r’s Supp. Br., ECF No. 145; Pet’r’s Exs. 151–162, ECF No. 146; Pet’r’s Exs. 163–67,
ECF No. 148.Respondent responded with a supplemental expert report, literature, and a
memorandum. Resp’t’s Exs. S–U, ECF No. 149; Resp’t’s Supp. Br., ECF No. 150. Petitioner filed
a motion on October 17, 2023, requesting an opportunity to file additional evidence. ECF No. 151.
In light of the age of this case and the extensive pleadings and filings, particularly as it relates to
damages, there is no need for further evidence or arguments. This Order renders Petitioner’s
motion moot. Respondent’s motion to dismiss Petitioner’s future wage loss claim is ripe for
adjudication.

II. FACTUAL HISTORY

A. Medical Records

A detailed account of the medical records filed during the entitlement stage of this case was
provided in my July 2021 Decision. They will be briefly recounted here followed by a summary of the
records filed during the damages litigation.

i. Entitlement Stage Medical Evidence

Petitioner’s pre-vaccination medical history is significant for Von Willebrand’s disease,6
dysmenorrhea,7 asthma, eosinophilic esophagitis,8 and migraine headaches. See Pet’r’s Ex. 1 at
24–25, ECF No. 1-2. Petitioner’s migraines began after she sustained a concussion in 2003. Pet’r’s
Ex. 2 at 49–62, ECF No. 1-3. In June 2010, Petitioner presented to neurologist Traci Purath, M.D.,
at the Comprehensive Headache Center to establish care and for treatment of occipital neuralgia9
with underlying migraines. Id.

On August 23, 2011, Petitioner received the flu vaccine during her yearly physical exam
with her primary care physician (“PCP”). Pet’r’s Ex. 1 at 27. At the time of vaccination, Petitioner
was twenty-four years old. Pet. at 1.

Two days later, on August 25, 2011, Petitioner presented to Dr. Purath. Pet’r’s Ex. 2 at 46.
During this visit, Petitioner reported “that her headaches had been under great control until [two]
weeks ago.” Id. Dr. Purath noted that Petitioner indicated at that time, she “awoke with a severe
headache, and had this sporadic tingling in her face.” Id. Petitioner stated this had been going on
and off for the past two weeks, but “there was no inciting event, no trauma, no medication
changes[.]” Id. However, Dr. Purath noted that the only change was that Petitioner had recently
finished law school and was back at home with her parents. Id. Dr. Purath opined that “much of

6
Von Willebrand’s disease is “a congenital bleeding disorder caused by mutation in the VWF gene [ ],
resulting in deficiency of von Willebrand factor, with prolonged bleeding time and often impairment of
adhesion of platelets on glass beads, associated with epistaxis and increased bleeding after trauma or
surgery, menorrhagia, and postpartum bleeding.” Dorland’s at 538.
7
Dysmenorrhea is “painful menstruation.” Dorland’s at 572.
8
Eosinophilic esophagitis is “inflammation caused by eosinophilic infiltration of the esophageal mucosa;
the etiology is unknown, although it sometimes accompanies gastroesophageal reflux disease and
sometimes may be an allergic reaction.” Dorland’s at 640.
9
Occipital neuralgia, or occipital headache, is “pain in the distribution of the occipital nerves, due to
pressure or trauma to the nerve.” Dorland’s at 1244.

4
this may be just what we call the letdown headache where your body actually can start to rest.” Id.
Nonetheless, Dr. Purath noted that Petitioner stated “she has been having tingling in the left side
of her face, both sides of her face, and into her hands. She feels that she feels off.” Id.

The next day, on August 26, 2011, Petitioner returned to Dr. Purath. Id. at 43. Upon further
questioning regarding Petitioner’s condition, Petitioner reported that “the dysesthesias10 all started
after Tuesday night [August 23, 2011] after she had a flu shot.” Id. Dr. Purath noted Petitioner
maintained “[t]hey did not occur before this.” Id. Dr. Purath further indicated “[t]hey progressed
to the point that today, Friday[,] August 26, 2011, she complain[ed] of complete numbness of the
left face, dysesthesias in the left arm, swelling in the left leg, with weakness in the left hand.” Id.
Petitioner reported that the symptoms became progressively worse. Id. Dr. Purath wrote she was
“concerned that this may all be related to the flu shot.” Id. However, Dr. Purath noted she “d[id]
not feel that [Petitioner] has encephalitis11 symptoms but transverse myelitis12 may be a possibility
given the issues with the left side of the body.” Id. Upon examination, Dr. Purath noted decreased
sensation to pinprick in Petitioner’s left arm and increased deep tendon reflexes (“DTRs”)13 in her
left upper and lower extremities. Id.

On September 1, 2011, Petitioner returned to Dr. Purath with complaints of shooting back
pain radiating down to the bilateral buttocks. Id. at 37. Dr. Purath reiterated that the results of
Petitioner’s electroencephalogram test (“EEG”) conducted on August 25, 2011, were normal. Id.
She also noted that Petitioner’s dysesthesias and tingling “[we]re much improved.” Id. Yet, “[i]t
d[id] still have various locations, but it [wa]s overall not as severe or bilateral as it had been.” Id.
Dr. Purath again noted that “[a]ll these issues stem from having the flu shot . . . and this [wa]s
certainly not a migraine.” Id. On September 16, 2011, Petitioner returned to Dr. Purath and
reported an increase in numbness on the right side of her face and in her right upper and lower
extremities. Id. at 34. Following this appointment, Dr. Purath wrote that she “still believe[d] that
[Petitioner] has had a reaction to the flu shot, which [she] fe[lt wa]s slowly improving.” Id.

During Petitioner’s follow up visit with Dr. Purath on October 28, 2011, Dr. Purath noted
Petitioner’s lower back pain had completely resolved. Id. at 29. However, Petitioner reported
having blurred vision in her right eye,14 bilateral hand tremors, and numbness in various locations
in her arms, legs, and face. Id. She again wrote her opinion that Petitioner’s symptoms started after
the flu injection. Id. However, Dr. Purath did not “find anything that [wa]s jumping out at [her]

10
Dysesthesias are “1. distortion of any sense, especially of that of touch . . . 2. an unpleasant abnormal
sensation produced by normal stimuli.” Dorland’s at 570.
11
Encephalitis is “inflammation of the brain.” Dorland’s at 605.
12
Transverse myelitis is “myelitis in which the functional effect of the lesions spans the width of the entire
cord at a given level.” Dorland’s at 1201. Myelitis is inflammation of the spinal cord or the bone marrow.
Id.
13
Deep tendon reflexes (“DTRs”) are “involuntary contraction[s] of a muscle after brief stretching caused
by percussion of its tendon; tendon reflexes include the biceps reflex, triceps reflex, quadriceps reflex, and
others.” Dorland’s at 1590.
14
On October 28, 2011, Petitioner presented to ophthalmologist John Conto, O.D., for an examination.
Pet’r’s Ex. 3.1 at 13–23, ECF No. 1-4. Petitioner reported a change in her vision within the previous two
weeks. Id. at 19. Dr. Conto noted that his impression was that Petitioner experienced “sudden vision loss[.]”
Id. at 20. However, the rest of Dr. Conto’s notes are illegible and difficult to decipher. See id.

5
neurologically as a deficit[,]” so she referred Petitioner to another neurologist for further
evaluation. Id.

On November 4, 2011, Petitioner presented to neurologist Jorge Marquez de Leon, M.D.,
for a second opinion. Pet’r’s Ex. 4.2 at 535–43, ECF No. 1-11. Upon examination, Dr. Marquez
de Leon opined that Petitioner’s paresthesia15 and limb pain were “most likely secondary to a small
fiber neuropathy.” Id. at 542. He further noted that “[t]he possibility of a reaction to her vaccination
appears to be the most likely etiology.” Id. Dr. Marquez de Leon ordered Petitioner to undergo
additional laboratory tests and an autonomic evaluation.16 Id. As a result, Dr. Marquez de Leon
concluded that there were “changes indicative of mild autonomic neuropathy,17 which is affecting
both the sudomotor and vasomotor sympathetic pathways.18 Pet’r’s Ex. 9 at 47, ECF No. 1-18.

On April 12, 2012, Petitioner presented to the emergency room with complaints of chest
pain and shortness of breath. Pet’r’s Ex. 4.3 at 603, ECF No. 1-12. Petitioner described her chest
pain as “heavy” and stated that “[t]he pain d[id] not radiate[]” but was “aggravated by deep
breathing.” Id. Petitioner’s past medical history noted small fiber neuropathy, migraines, and
“vaccine reaction with vague neurologic symptoms since August.” Id. Petitioner was discharged
home and diagnosed with elevated white blood cells (“WBC”) and chest pain. Id. at 610.

On April 24, 2012, Petitioner again presented to the emergency room for an abrupt onset
of shortness of breath, fever, chest pain, headache, neck pain, and blurred vision. Pet’r’s Ex. 4.4 at
714, ECF No. 1-13. Petitioner’s main complaint was chest discomfort and she again stated it
“[f]e[lt] like someone [wa]s sitting on her chest.” Id. Petitioner underwent a full work-up, which
was unrevealing except for another elevated WBC. Id. A chest x-ray, electrocardiogram19
(“ECG”), and ventilation-perfusion scan20 (“VQ”) were negative. Id. at 717. Petitioner was
discharged home. Id.

15
Paresthesia is “an abnormal touch sensation, such as burning, prickling, or formication, often in the
absence of an external stimulus.” Dorlands at 1362.
16
Autonomic testing is “testing for effective functioning of the autonomic nervous system and autonomic
reflexes.” Dorland’s at 1874. The autonomic nervous system is “the portion of the nervous system
concerned with regulation of the activity of cardiac muscle, smooth muscle, and glandular epithelium;
usually restricted to the two visceral efferent peripheral components, the sympathetic nervous system, and
the parasympathetic nervous system.” Id. at 1829.
17
Autonomic neuropathy is “any neuropathy of the autonomic nervous system, causing symptoms such as
orthostatic hypotension, disordered bowel, bladder, or sexual functions, or abnormal pupillary reflexes.”
Dorland’s at 1251.
18
The sudomotor sympathetic pathway relates to “stimulating the sweat glands.” See Dorland’s at 1766.
The vasomotor sympathetic pathway refers to “the caliber of a vessel, especially of a blood vessel.” See id.
at 1997.
19
An electrocardiogram is “a graphic tracing of the variations in electrical potential caused by the
excitation of the heart muscle and detected at the body surface.” Dorland’s at 593.
20
A ventilation-perfusion scan is “a scintigraphic technique for demonstrating perfusion defects in
normally ventilated areas of the lung in the diagnosis of pulmonary embolism, consisting of the imaging
of the distribution of an inhaled radionuclide followed by the imaging of the perfusion of the lungs by an
injected radionuclide.” Dorland’s at 1646.

6
On May 21, 2012, Petitioner presented for a follow-up with Dr. Marquez de Leon. Pet’r’s
Ex. 7 at 18, ECF No. 1-16. Petitioner reported that she continued to have a tingling sensation in
both arms and legs but that it “[was] somewhat different from what it was six months ago.” Id. at
19. Petitioner complained that “[i]t [was] more a sensation of coldness and numbness” which now
only affected her right side; the “symptoms over the left side [were] almost not there.” Id. Petitioner
underwent a physical examination, which was normal. Id. Dr. Marquez de Leon did not prescribe
any new medications during this visit. Id. at 20.

On June 8, 2012, Petitioner presented to pulmonologist Dr. Rade Tomic, M.D., with
complaints of “shortness of breath and chest pains.” Pet’r’s Ex. 3.2 at 58, ECF No. 1-5. Petitioner
described her chest pain as “very strong in intensity and lasts a few seconds, and it subsides by
itself.” Id. A full workup was normal except for an abnormal ANCA result. Id. at 59. The extensive
workup revealed no indication of pulmonary21 disease. Id. Dr. Tomic suggested a repeat test in
three months. Id. Later that month, on June 22, 2012, Petitioner presented to Dr. Eric Martin, M.D.,
a gastroenterologist. Id. at 73. Petitioner underwent an esophagogram,22 which was normal. Id. at
82. Dr. Martin concluded that, because all other tests were normal, the “source of [Petitioner’s]
chest pain [wa]s likely secondary to [Petitioner’s] small fiber neuropathy.” Id. at 83.

Petitioner presented for her yearly physical with her PCP on August 29, 2012. Pet’r’s Ex.
1 at 8. Petitioner complained of daily chest discomfort. Id. Petitioner also reported she experienced
“[b]urning of [her] bilateral arms and legs occasionally and most noticeabl[y] in the mornings
when getting out of bed.” Id. at 11. However, Petitioner’s physical examination revealed normal
results. Id.

On September 4, 2012, Petitioner returned to Dr. Purath for a follow-up. Pet’r’s Ex. 2 at 8.
During this visit, Petitioner reported that her headaches were improving but that she was
experiencing increased numbness and weakness in her extremities. Id. Petitioner further reported
that she has been getting fatigued very easily. Id. On September 17, 2012, Petitioner returned to
Dr. Marquez de Leon and reported having fatigue, chest pressure, and paresthesia of her arms and
face. Id. at 15. Dr. Marquez de Leon conducted a physical examination, which yielded normal
results. Id. at 16. He assessed Petitioner with small fiber neuropathy with both somatic and
autonomic features. Id. at 17.

On February 6, 2014, Petitioner presented to a new neurologist, Dr. Alexandru C. Barboi,
M.D., to establish care. Pet’r’s Ex. 9 at 9, ECF No. 1-18. Dr. Barboi’s impression was that
Petitioner’s “history would fit a small fiber neuropathy diagnosis but [her] physical examination
d[id] not aid in the localization given the inconsistent nature of [her] sensory exam and non-
dermatomal distribution.” Id. at 13. Dr. Barboi indicated that Petitioner’s “[m]ild hypermobility
and [right] sided weakness [is] likely congenital.” Id. Dr. Barboi also noted that “it is possible that
[Petitioner] ha[d] some symptoms before her vaccination but this got worse after.” Id. Dr. Barboi
instructed Petitioner to follow-up in six weeks. Id.

Petitioner returned to Dr. Barboi for a follow-up on April 10, 2014. Id. at 224. During this
visit, Petitioner reported that she no longer had pain in her right leg but did still suffer from bilateral

21
Pulmonary is “pertaining to the lungs.” Dorland’s 1529.
22
An esophagogram is “a radiograph of the esophagus.” Dorland’s at 648.

7
wrist pain in the morning and shaking/pain in her hands when she got excited. Id. Petitioner also
complained that she experienced pain in her feet at night that she treated with ice packs. Id.
Petitioner further reported thigh burning and chest pain with exercise, and an “occasional choking
feeling.” Id. Dr. Barboi’s impression was “1. [a]utonomic neuropathy, worse after flu vaccination
or caused by it; 2. [m]ild hypermobility and r[ight] sided weakness likely congenital; 3. [m]igraine
[headache] associated with vision blurring r[ight] eye; and 4. C[arpal] T[unnel] S[yndrome]23 mild
bilateral.” Id. at 227.

ii. Damages Stage Medical Evidence

Petitioner was seen for follow-up treatment of her small fiber neuropathy by Dr. Barboi
from May 3, 2016 through March 11, 2021. See Pet’r’s Ex. 88. During her 2016 pregnancy,
Petitioner continued under the care of the neurologist for monitoring and reported a “bad flare up
December [2015] to February [2016], pain wise.” Id. at 54. Dr. Barboi advised that pregnancy can
aggravate symptoms. Id. at 3, 35. Records from Petitioner’s April 5, 2018 exam reveal that her
small fiber polyneuropathy seemed stable, although she continued to suffer from migraine
headaches. Id. at 45. During a routine visit on March 12, 2020, Petitioner reported to Dr. Barboi
that she was working full time and taking care of her two young sons. Id. at 35. Her symptoms had
progressed and included foot, trunk and arm pain made worse with activity. Id. Petitioner reported
a burning sensation with an increase in body temperature and noted that she was unable to exercise
anymore. Id. Her medical history noted that her small fiber neuropathy had plateaued in 2012;
however, the record described “flare ups [ ] lasting 1–2 weeks.” Id. On August 3, 2020, Dr. Barboi
evaluated Petitioner’s complaints of numbness via nerve conduction studies, which were normal,
and an electromyography (“EMG”),24 which revealed no abnormalities. Id at 21. Following
Petitioner’s 2021 pregnancy, Dr. Barboi saw Petitioner and determined that although there was
evidence of ganglionopathy,25 Petitioner’s small fiber neuropathy remained stable. Id. at 3.

B. Affidavits26

23
Carpal Tunnel Syndrome is “an entrapment neuropathy characterized by pain and burning or tingling
paresthesias in the fingers and hand, sometimes extending to the elbow. Symptoms result from compression
of the median nerve in the carpal tunnel.” Dorland’s at 1794.
24
Electromyography is “an electrodiagnostic technique for recording the extracellular activity (action
potentials and evoked potentials) of skeletal muscles at rest, during voluntary contractions, and during
electrical stimulation.” Dorland’s at 595.
25
Ganglion is “anatomic terminology for a group of nerve cell bodies located outside the central nervous
system[.]” Dorland’s at 751.
26
Petitioner’s mother and husband submitted affidavits as part of the damages phase of this case. Pet’r’s
Exs. 153–54, ECF Nos. 146-6–146-7. I have reviewed both statements and note that they are consistent
with Petitioner’s accounts of her clinical progression and the difficulties she has faced living over the
years with SFN. This case has been pending for several years, and there have been hundreds of exhibits
and thousands of pages of discovery filed. Over the course of this litigation, all the filed documents have
been reviewed for relevance and persuasiveness. Filings that offer the best source of evidence or
argument will be individually referenced. Several articles and witness statements that offer support will
not be detailed due to the impracticality of individually identifying every document. Moriarty v. Sec'y of
Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally presume that a special
master considered the relevant record evidence even though he does not explicitly reference such
evidence in his decision.”) (citation omitted); see also Paterek v. Sec'y of Health & Hum. Servs., 527 F.

8
i. Affidavit of Dr. Barboi

Dr. Barboi submitted an affidavit, dated July 27, 2023, in which he described his treatment
of Petitioner since February 6, 2014. Pet’r’s Ex. 160 ¶ 1, ECF No. 146-13. Dr. Barboi noted that
Petitioner was diagnosed with SFN prior to his first visit with her. Id. ¶ 6. At that time of his “initial
evaluation, [Petitioner’s] SFN had plateaued and was stable.” Id. She was complaining of limb
pain and “the intermittent flare-ups of SFN that occurred at busy times during her work as an
attorney.” Id. Dr. Barboi and Petitioner discussed her unsuccessful use of acupuncture and B12
treatments, along with prescription pain medications and antidepressants, to treat her symptoms.
Id. They continued to try various medications to treat Petitioner with no luck through 2014. See
id. ¶¶ 7–8. During Petitioner’s significant 2015–2016 flare, Dr. Barboi “emphasized the need for
sleep, rest and reduced stress to best manage her SFN symptoms.” Id. ¶ 9. Petitioner saw Dr. Barboi
two more times for routine follow-ups on April 5, 2018, and March 12, 2020. Id. ¶ 10. He noted
that her symptoms were stable, and he had “little to offer in terms of medical treatment to alleviate
those symptoms.” After Petitioner reported increasing symptoms in 2020, she and Dr. Barboi
“discussed different strategies for managing her symptoms outside of medications[,] . . .
includ[ing] a significant discussion regarding how the time demands, stress and pressure from
[Petitioner’s] employment exacerbate [her] SFN symptoms.” Id. As of 2021, Petitioner’s “SFN
had not progressed,” and she and Dr. Barboi again “discussed her responsibilities and hours, and
how her employment obligations negatively impact her ability to manage her SFN symptoms and
reduce her pain.” Id. ¶ 13. He “emphasized the need for rest and reduced stress to allow
[Petitioner’s] SFN symptoms to subside and hopefully return to the baseline.” Id.

On March 14, 2022, Petitioner saw Dr. Barboi with complaints of “a substantial increase
in her SFN pain and symptoms in the setting of her long work hours.” Id. ¶ 14. Dr. Barboi advised
that Petitioner’s 20% reduction in work hours “is a reasonable and necessary accommodation to
better control the pain and fatigue caused by [Petitioner’s] SFN.” Id. ¶ 16.

ii. Petitioner’s Entitlement Affidavits and Testimony

Petitioner submitted three affidavits and testified during the entitlement hearing. See
Ruling at 12–14; Pet’r’s Ex. 5, ECF No. 1-14; Pet’r’s Ex. 11a, ECF No. 9-1; Pet’r’s Ex. 14, ECF
No. 25-1; Tr. 31–65. That evidence was detailed in my Ruling on Entitlement and will be
summarized here as relevant specifically to damages. Petitioner described her pre- and post-
vaccination lifestyles. See generally Pet’r’s Ex. 11a. Petitioner indicated that before the flu
vaccination at issue, she enjoyed playing various sports including soccer, basketball, tennis, skiing,
and biking. Pet’r’s Ex. 11a ¶¶ 2a, 2c; Ruling at 13. She noted that she typically exercised four to
five times per week, including running outside and working out at a gym. Id. Petitioner noted that
prior to the vaccine, she “was in law school, completed a summer associate program with a law
firm and accepted a job as an associate at the same law firm to begin after graduation[.]” Id.

Petitioner asserted that after receiving the flu vaccine on August 23, 2011, she experienced
difficulties attending [ ] law school. See generally Ruling at 12–14; Pet’r’s Exs. 5, 11a, 14; Tr. 31–
65. She noted that she “missed classes and law school commitments for a variety of reasons all

App'x 875, 884 (Fed. Cir. 2013) (“Finding certain information not relevant does not lead to—and likely
undermines-the conclusion that it was not considered.”).

9
related to the vaccine.” Pet’r’s Ex. 11a ¶ 8a. Specifically, Petitioner indicated that “[i]t was difficult
to study for long amounts of time due to vision issues and pain in [her] right eye . . . [and t]he pain
and tremors in [her] hands and arms[.]” Id. Petitioner also noted she applied for and received
accommodations, including extra time and reduced typing requirements for her law school and
[state] bar exams. Id. She asserted that the accommodations helped “to decrease the stress on [her]
body to help to lessen the pain [she] experienced.” Id.

Petitioner noted that she began her position at her law firm in October 2012. Id. ¶ 8b. She
stated she “ha[d] not missed a significant amount of time from this job . . . but the symptoms [she]
experience[d] from the small fiber neuropathy ha[d] made [her] job very difficult at times.” Id. For
example, she noted she experienced “pain in [her] right eyes, which often decreases the vision in
[her] right eye.” Id. ¶ 8bi. Petitioner indicated that the pain she experienced in her eyes, head, and
extremities made it difficult to work for long hours. Id. ¶¶ 8bi–8biv. Petitioner also asserted that
her pain and symptoms increased “at times of high stress, excitement, fatigue[,] or when [her]
other symptoms are causing pain.” Id. ¶ 8bii. Overall, Petitioner stated she was “finding it very
difficult to maintain the pace [her] job requires.” Id. ¶ 8bv.

During her testimony, Petitioner was asked about how she is able to keep up with her
demanding job responsibilities despite her symptoms. Tr. 45:2–14. She indicated that she
sometimes works remotely from home to better manage her symptoms and because of this, she
can successfully handle her workload. Tr. 44:1–9. In larger moments, such as hearings or
depositions, Petitioner stated she experiences numbness and pain in her arms, tremors in her hands,
eye pain, blurred vision, and headaches. Tr. 60:6–19. She stated she works through the pain with
very minimal accommodations. Tr. 61–64.

iii. Petitioner’s Damages Affidavits

After I issued my Ruling, Petitioner submitted two additional personal affidavits in support
of her claim for future earning capacity loss. Pet’r’s Ex. 152, ECF No. 146-2; Pet’r’s Ex. 163, ECF
No. 148-1. She identified her current primary SFN symptoms as pain and burning in her hands,
wrists and forearms, feet, upper thighs up to the hip joint; blurred vision and pain in her right eye;
headaches; and fatigue. Pet’r’s Ex. 152 ¶ 2. Petitioner added that her “SFN symptoms are
frequently exacerbated by stress, pressure, situations of extreme excitement and a lack of sleep[.]”
Id. ¶ 3. Over the years, Petitioner has treated her symptoms with various prescription medications,
vitamins and supplements, alternative therapies (acupuncture and massage therapy), exercise, a
transcutaneous electrical nerve stimulation device, and various neuropathy creams. Id. ¶ 4. She
stated that these treatments were either ineffective or exacerbated her symptoms and that they were
all ultimately ceased. See id.

Remedies that Petitioner described as temporary pain management and relief measures
include hot and cold packs, arm splints, leg and feet elevation, eye drops and ibuprofen. Id. ¶ 5a–
f. Petitioner also noted that “[c]onsistent opportunities for rest and sleep along with longer periods
of rest of sleep are more effective at reducing [her] pain and SFN symptoms.” Id. ¶ 5g. She has
also adjusted “physical activities and demands.” Id. ¶ 5h. Petitioner described how she worked
remotely on Fridays during the pandemic, but starting in 2022, when her “firm returned to in-office
work expectations, [she] generally tr[ies] to work from home two days a week to avoid the strain
of commuting to the office.” Id. At home, Petitioner “limit[s] the amount of times [she] pick[s up]

10
and hold[s her] young children.” Id. Her husband “takes on the more physical demands or needs”
with the children and around the house. Id. The family has a hired a family chef, landscapers, and
housekeepers “so that [she] can avoid these physically demanding activities.” Id. Every day,
Petitioner experiences pain and fatigue. Id. ¶ 7. She stated that “working almost every night, as
was typical until very recently, was painful, difficult and further contributed to the fatigue by
reducing the among of sleep [she] could get.” Id.

Over the course of her career, Petitioner had “significant periods of time between 2016-
2021 where [her] work responsibilities, stress and pressure were greatly reduced, or entirely
eliminated[,]” including three periods of twenty-four-week maternity leaves. Id. ¶ 14a. During
these times, Petitioner “was completely disconnected from work and all clients.” Id. Additionally,
during the pandemic, she “primarily worked remotely from [her] home. This eliminated [her fifty
to fifty-five-minute] commute each way to and from the office.” Id. ¶ 14b. This office remote work
policy “provided more flexibility in the hours/time frame during which [she] completed [her] work
and a private setting in which to try to manage [her] SFN symptoms as [she] worked.” Id.
Following the pandemic and the birth of her third child, Petitioner returned to work as the lead for
the remote trial team in “a massive federal multidistrict litigation [ ].” Id. ¶ 15. Petitioner described
the work, pressure and stress she experienced during that time and stated that “[t]o this day, [her]
daily SFN symptoms are worse than before this trial began.” Id.

In [Year], when Petitioner became a Partner at her law firm, her work responsibilities
expanded to include associate management and client development. Id. ¶ 16. Petitioner explained
that her typical office workday begins at 5:30 am with email review and ends around midnight
when she ultimately stops working for the day. Id. ¶ 17. Her schedule includes breakfast and
morning preparation for her children, a fifty-one-minute train commute during which time she
works, a working lunch, and family time each night from 5:35 to 8:00 pm. Id. This schedule and
the new pressures she experiences inherent in her role as a Partner have “elevated [her SFN
symptoms] as compared to early in [her] career and has become unbearable and impossible to
manage.” Id. ¶ 19. Petitioner added that “[t]he everyday stress of raising a family and maintaining
a marriage is not comparable to the ‘stress’ from work that substantially impacts [her] symptoms
or causes excess fatigue.” Id. ¶ 20. She noted that “[m]ore generally, as a litigator at [law firm],
the demands of [the] job and [the] clients nearly always come with high stakes, intense pressure
and complicated issues requiring careful scrutiny.” Id. ¶ 22.

Petitioner concluded after making partner that she “would not be able to maintain the pace
and demands of [the] position[.]” Id. ¶ 24. She acknowledged that her “SFN symptoms were
exacerbated by [her] work demands, [and she is now] facing the long term impact on [her] health
and the substantial truncation this would have on [her] work life if [she] continue[s] pushing
beyond [her] limits[.]” Id. In 2022, Petitioner began looking for a different legal position and
applied for an in-house counsel position. Id. ¶ 25. Towards the end of the hiring process, Petitioner
learned that the “position that [she] had applied for would no longer be filled.” Id. Other barriers
to finding alternative employment including the risk that her law firm would learn about her job
search and a lack of qualifications for the legal positions that she sought. Id. ¶¶ 26, 28. Petitioner
continues to search for “a litigation position at a company with an expectation of approximately
[forty] hours a week and an environment removed from the high-intensity, fast paced world that
[she] currently work[s] in.” Id. ¶ 27. While engaging in her search in March of 2023, Petitioner
revealed her diagnosis to her employer and explained that she “could no longer continue working

11
in the manner [she] had been working and indicated [she] needed to leave [law firm].” Id. ¶ 30.
Alternatively, her managing partner “offered to reduce [her] required client hours to 80% of the
2,000 hour requirement so that [she] could assess whether a reduction in these hours would help
[her] symptoms improve.” Id. Petitioner admitted that she did not believe this solution was
feasible, but her managing partner “offered to adjust [her] responsibilities and roles on case teams
to try to create the schedule [she] need[s]. Id. ¶ 32. Additionally, Petitioner was told that she “can
likely maintain [her] position as a partner at an 80% schedule[,] but further reductions in [her]
schedule and responsibilities would likely require a change in [her] position from a ‘partner’ to an
‘of counsel’ position.” Id. Despite implementing these changes and working one month during a
trial period at 60%, Petitioner stated that she “did not experience a significant improvement in
[her] SFN symptoms.” Id. ¶ 33. Ultimately, Petitioner stated that she does “not see a path forward
to remain a partner at [law firm] given the limitations in [her] schedule and work demands that are
required to allow [her] to better manage [her] SFN.” Id. ¶ 38. Petitioner’s supplemental affidavit
was an explanation of Petitioner’s Exhibit 164, which is a compilation of Petitioner’s work hours
from 2012 through 2022, and Petitioner’s Exhibit 165, which reflects her work hours in 2023. See
Pet’r’s Ex. 164, ECF No. 148-2; Pet’r’s Ex. 165, ECF No. 148-3. These exhibits include client
billable, client non-billable, pro bono, office and public service hours. Pet’r’s Ex. 163 ¶¶ 8, 10.

III. Expert Evidence

A. Petitioner’s Experts

i. Kelly Deeker, O.T.D.

Dr. Deeker received her undergraduate degree from McKendree College and a doctorate
in occupational therapy from Washington University School of Medicine. Pet’r’s Ex. 90 at 2, ECF
No. 117-2. She has worked as a registered and licensed occupational therapist since 2017. Id. In
total, Dr. Deeker has over eighteen years of clinical, research and forensic consulting experience.
Id. at 1. Her forensic experience focuses “on the evaluation of work capacity for individuals with
cognitive and musculoskeletal disabilities.” Id. Dr. Deeker is also a “Certified Vocational
Evaluator and is qualified to administer physical and psychological assessments, and she has
trained extensively in data collection methods and analysis.” Id. She is an author/coauthor of
several articles “related to vocational assessment, functional capacity evaluation and return to
work.” Id.

ii. Leonard N. Matheson, Ph.D.

Dr. Matheson received his undergraduate degree in psychology and a master’s degree in
developmental psychology from the University of Southern California. Pet’r’s Ex. 91 at 2, ECF
No. 117-3. He obtained a second master’s degree in clinical psychology from Pepperdine
University and his doctorate in the psychology of adult development and aging from the University
of Southern California. Id. Dr. Matheson has been a licensed psychologist, certified vocational
evaluator, and rehabilitation counselor for over thirty-five years. See id. Over the course of his
career, Dr. Matheson has served as a Professor of Psychology and a member of several professional
societies, including the American Psychological Association. See id. at 5–6. He has published more
than sixty peer-reviewed papers and presented more than 150 invited papers and chapters in
psychology, medicine, and rehabilitation. See id. at 16–35.

12
iii. Lawrence Steinman, M.D.

Dr. Steinman received his medical degree from Harvard University in 1973. Pet’r’s Ex. 45
at 1, ECF No. 60-1. He completed his post-graduate training at Stanford University, where he
completed an internship in surgery in 1973, a residency in pediatrics in 1974, and a residency in
pediatric and adult neurology from 1977 to 1980. Id. He became board-certified in neurology in
1984. Id. at 2. He served as the Chairman of the Immunology Program at Stanford for
approximately ten years from 2002 to 2011. Id. He currently serves as a Professor of Neurology,
Pediatrics, and Genetics at Stanford University’s Department of Neurology and Neurological
Sciences. Id. Dr. Steinman’s curriculum vitae includes over four-hundred and fifty published
articles of which he is a listed author. See id. at 5–40. Dr. Steinman submitted three expert reports
and testified during the entitlement phase of this case. Pet’r’s Ex. 40; Pet’r’s Ex. 78, ECF No. 85-
1; Pet’r’s Ex. 84; Tr. 79–152, 245–260. During the hearing, he noted that he “did a post-doctoral
fellowship in neuroimmunology[.]” Tr. 80:14. He explained that his clinical practice involves
“see[ing] patients, both inpatients and outpatients . . . [with] neuroimmunological diseases.” Tr.
80:20, 81:6. He also stated that he has testified many times in the Vaccine Program. Tr. 83–84. Dr.
Steinman has “never had occasion to be asked to comment on a medical opinion, after a decision
has been made on entitlement.” Pet’r’s Ex. 136 at 1, ECF No. 134-1.

iv. Mark S. McNulty, Ph.D.

Dr. McNulty received his bachelor of science degree in economics and mathematics at the
University of South Dakota and his Ph.D. in economics and statistics at Iowa State University.
Pet’r’s Ex. 139 at 1, ECF No. 137-2. He currently conducts economic and statistical analysis for
Economic Solutions, LLC and has experience as a researcher at the University of Wisconsin and
a professor at Kansas State University. Id. at 1–2. Dr. McNulty is a member of the American
Economic and American Statistical Associations and has authored/co-authored several
publications in his field. Id. at 2–6.

B. Work Capacity Evaluation

Petitioner’s work capacity evaluation authored by Dr. Deeker begins with a summary of
her medical records and the affidavits filed in this case. See Pet’r’s’ Ex. 89 at 1–22, ECF No. 117-
1. The report then notes that prior to her in-person testing, Petitioner met with Dr. Deeker twice,
via video conference. Id. at 23. Dr. Deeker noted that Petitioner “sat with good posture” and
“walked with an even, balanced and apparently comfortable gait.” Id. Dr. Deeker described
Petitioner as “fully oriented to person, place, time, and purpose of the interview.” Id. Her affect
was appropriate, and her memory appeared to be within normal limits.” Id. Dr. Deeker described
Petitioner’s speech as “fluid, without pressure, retardation, or dysarthria.” Id.

A self-report section includes background information provided by Petitioner. See id. at
23–27. She reported that prescription medications do not help her pain and symptoms, and she
relies on her “own process using ice packs, arm braces, elevating [her] legs, moving around
frequently and wearing slippers[.]” Id. at 24. Over-the-counter pain medications “are moderately
effective” for “right eye pain and headaches.” Id. Petitioner reported that she uses ibuprofen
“typically a few times a month.” Id. Petitioner then described the ins and outs of her position with
her law firm and her level of job satisfaction. Id. Petitioner told Dr. Deeker that pre vaccination,

13
she planned to work until age sixty-seven, but she has reached her “breaking point and [she does
not] know how long [she] can keep doing this (working at this level).” Id. at 24–25.

Pain and fatigue are the problems that Petitioner reported “interfere with her ability to
physically and cognitively focus to complete her work at the same level and in the same amount
of time that she was able to do previously.” Id. at 25. Petitioner noted that her symptoms are ever-
present, and she has no way to manage her symptoms or get relief. Id. It now takes Petitioner
fifteen to sixteen hours a day to complete work she could previously do in twelve hours because
of cognitive difficulties. Id. Petitioner identified her goals, “To live a life with less pain. To create
a lifestyle with more of a balance . . . spend quality time with [her] children, and to have some
personal time. To pursue a hobby. To read a book.” Id. Prior to vaccination, she reported being
able to exercise, cook, garden, and work out in the yard “without limitations.” Id. Now, Petitioner
“has to pick and choose” her activities and deal with any subsequent pain as best she can. Id. She
is also planning a career change and noted that “[i]t will probably take [one to two]2 years of
investigating to find something new[,] and ideally [her] new career will be less work and offer a
slower pace.” Id. at 27.

Petitioner also reported functional tolerances. See id. at 27–31. She can sit and stand for
thirty to sixty minutes, but eventually she will feel pain, including burning and tingling in her
thighs. Id. at 27. During flareups, Petitioner stated that “standing for even [five] minutes is difficult,
almost unbearable.” Id. Petitioner “reported she experiences flare-ups of her symptoms weekly.”
Id. She is unable to walk up to thirty minutes without a break, and even “walking short distances
frequently throughout the day will add up to increased pain, fatigue and increased severity of
burning symptoms in her legs/thighs and the bottoms of both feet at the end of the day.” Id.
Petitioner reported problems falling asleep but not staying asleep. Id. The “primary, number one
issue[]” for Petitioner is fatigue. Id. at 28. Petitioner stated,

[I]t is not uncommon for her to work until 1:00 AM to 2:00 AM, and when she
works until early hours of the morning, her body isn’t able to recover and her
symptoms are not able to completely reset in the [four to five] hours of sleep she
receives at night.

Id.

Specifically, Petitioner described her pain by level and location. See id. at 31–33. She rated
her symptoms “at level 5 on a zero to 10 visual analogue scale with zero being ‘no pain’ and 10
being ‘worst possible pain.’” Id. at 31. The pain is exacerbated by “increased activity, stress, and
lack of rest.” Id. Petitioner identified burning and aching bilateral forearm and hand pain, stabbing
and burning bilateral groin and thigh pain, and burning bilateral foot pain. Id. at 32. She also noted
stabbing pain in her right eye. Id. Her pain is “constant[,] and she is never without pain or
discomfort.” Id.

The self-report section was followed by vocational evaluation report that was based on
three video conference evaluation sessions in March and April of 2022. See id. at 33–39. As part
of a Multi-Dimensional Task Ability Profile (“MTAP”), Petitioner was asked to identify and
measure any “functional limitations as they may affect her ability to work.” Id. at 34. The test
compared Petitioner’s abilities pre-vaccination in July 2011, immediately before she began at her

14
law firm in October 2012, and at the time of the test in the morning and evening hours in March
of 2022. Id. The MTAP “demonstrate[d] considerable and dependable degradation of [Petitioner’s]
functional capabilities over the past [eleven] years.” Id. at 39. Petitioner also underwent a
Disabilities of the Arm, Shoulder, and Hand (“DASH”) questionnaire, which revealed a 31% upper
extremity disability rating. Id.

Drs. Deeker and Matheson submitted a supplemental work capacity evaluation report
wherein they focused on the direct relationship between Petitioner’s pain and fatigue and her
cognitive impairment. Pet’r’s Ex. 124 at 6–7, ECF No. 133-1. The report notes that the examiners
are unable to attribute specific “symptoms to a particular diagnosis[;]” however, they are qualified
to assert that “cognitive impairment is a common consequence of pain and fatigue[.]” Id. The
reports explains that “pain interferes with attentional capacity, processing speed and psychomotor
speed, and fatigue diminishes the ability to sustain attention and concentration, and also slows
reaction time and processing speed [ ].” Id. at 7. In Petitioner’s case, there are “distinct and
meaningful relationships between her work tasks and her reports of pain and fatigue[,]” and she
“experiences the task-avoiding and distracting and fatiguing consequences of pain.” Id. Indeed,
Petitioner “has only been able to achieve her excellent performance in her last year of law school
and achieve and maintain employment and make progress in her chosen career because she brings
extraordinary effort that cannot be sustained indefinitely.” Id. at 10. The supplemental report
reiterates points articulated in the initial report along with an emphasis on Petitioner’s credibility
with respect to her self-assessments. See generally id. The supplemental report also notes that
Petitioner’s “responsibilities as a wife, mother, and family household contributor must also be
considered as a rational rehabilitation plan is developed.” Id. at 20. Petitioner’s weekly/regular
employment of a housekeeper, cook, landscaper, and nanny are “inadequate to allow her to meet
her vocational responsibilities without substantial symptom exacerbation[; therefore], it is logical
to turn to accommodations in her career.” Id.

C. Loss of Earning Capacity Evaluation

Drs. Deeker and Matheson also evaluated Petitioner for her “work capacity and
rehabilitation potential.” Pet’r’s Ex. 99 at 1, ECF No. 118-1. The report includes sections detailing
Petitioner’s background and diagnosis. See id. at 1–2. Petitioner described her symptoms
immediately post-vaccination in 2011–2012 and noted that “[s]he worked with [her law] school to
receive accommodations to help her conserve energy and optimally manage her other
symptoms[.]” Id. at 2. She also noted that in order to pass the [state] bar examination, Petitioner
“requested and received accommodations to manage her lower levels of cognitive efficiency and
productivity.” Id. Petitioner began working as an associate with her law firm immediately upon
graduation and remained there for over a decade during which time, she ascended to Partner in
[Year]. Id.

Despite Petitioner’s professional trajectory, she reported that “the small fiber neuropathic
process has seriously worsened her symptoms, impairments, and functional limitations.” Id. The
report states that “her current work activities dependably lead to serious exacerbation of her
symptoms that have been identified in the peer-reviewed literature as related to [SFN].” Id. Drs.

15
Deeker and Matheson cited the Lodahl et al. paper27 that identifies fibromyalgia28 as a co-
morbidity of SFN and notes that many patients with the former condition have symptoms of the
latter. Pet’r’s Ex. 101 at 1, ECF No. 118-3. The article defines fibromyalgia and identifies the most
common symptoms as “widespread chronic pain, fatigue, exercise intolerance, gastrointestinal
symptoms and cognitive concerns.” Id. Due to the potential condition overlap, the authors suggest
that “patient reported symptoms might help screen patients with fibromyalgia for the presence or
absence of [small fiber polyneuropathy.]” Id. at 5. Drs. Deeker and Matheson also cited a paper by
Treister et al.,29 who sought to develop a symptom survey aimed at “help[ing] clinicians diagnose
and assess treatment responses[.]” Pet’r’s Ex. 102 at 1, ECF No. 118-4. Treister et al. identified
the most severe symptoms for patients with confirmed SFN as tiredness or fatigue, reduced
endurance or strength, deep pains or aches, tingling, and difficulty thinking, concentrating, or
remembering. Id. at 5. The large sample size and three-year duration strengthened credibility of
the study, but limitations included an inability to “distinguish between primary versus secondary
symptoms, for instance caused by medications, co-morbidities, or inactivity.” Id. at 6.

Petitioner identified several current symptoms that “affect her work capacity, including
fatigue, diminished endurance, headache pain and cognitive dysfunction.” Pet’r’s Ex. 99 at 2.
Other reported symptoms “interfere with her attempts to maintain fitness, including activity-
related dysesthesias and musculoskeletal and cutaneous pain, tingling and numbness.” Id. at 2–3.
Petitioner stated that “[h]er symptoms cycle throughout the workday in response to work tasks,
with her next-day recovery baseline worsening in the past year.” Id. at 3. The evaluation revealed
“a gradual deterioration of her daily work capacity[]” as she has aged, and her examiners identified
twenty-eight functional limitations.” Id. The report notes that “most of [Petitioner’s] functional
limitations do not directly impact her work tasks[]” but that “[s]everal of her work tasks precipitate
additional pain and fatigue that further interferes [sic] with her cognitive work capacity.” Id.
Consequently, “[a]s she moves through middle-age, her trajectories of diminishing physical and
cognitive reserve capacity will accelerate more rapidly than they would have without her [SFN].”
Id. at 4.

The next section of the report is a detailed account of the context of lawyering and general
work activities. See id. at 4–10. Competition, time pressures, conflict resolution and negotiations
are common components of Petitioner’s occupation. See id. at 5–6. Petitioner described difficulties
doing her job, noting she was “[v]ery busy[]” with “no time for breaks/lunch; on all the time;
making lots of decisions[.]” Id. at 7. She continued that her “[r]estriction is the pain/symptoms[,]”
and “[s]tress increases symptoms.” Id. The report lists “two major consequents that the [SFN]
disease imposes on [Petitioner’s] lifetime earning capacity[,]” the first being “a lower trajectory of
earnings growth compared with the trajectory she would have enjoyed without her symptoms and
functional limitations[]” and the second being “functional limitations on the duration of her career,
exiting earlier than she would have[.]” Id. at 12.

27
Mette Lodahl et al., Specific symptoms may discriminate between fibromyalgia patients with vs without
objective test evidence of small-fiber polyneuropathy, 3(1) PAIN REPORTS 1 (2018).
28
Fibromyalgia is defined as “pain and stiffness in the muscles and joints that either is diffuse or has
multiple trigger points.” Dorland’s at 703.
29
Roy Treister et al., Initial development and validation of a patient-reported symptom survey for small-
fiber polyneuropathy, 18(5) J. PAIN 556 (2017).

16
Drs. Deeker and Matheson analyzed Petitioner’s compensation history. Id. at 13. She
consistently received increases in annual salary every year, ranging from a low 2% increase due
to the “the continued economic uncertainty caused by COVID-19” to a 26.6% increase in salary
in 2019 on her way to Partner. Id. Ultimately, “the success of [law firm] partially explains the
extraordinary growth in her compensation compared to other [l]awyers [nationwide,]” and “even
within [law firm], [Petitioner’s] success in terms of her growth and earnings has been
extraordinary[.]” Id. at 15.

When compared with Americans with disabilities, Petitioner’s earnings are even more
stark. See id. at 18–19. The report details higher levels of unemployment, lower levels of
compensation, and a “faster and earlier decline in employment over the lifespan.” Id. Drs.
Matheson and Deeker asserted that “[d]ecades of peer-reviewed research and clinical experience
support the likelihood that if adjustments to [Petitioner’s] work demands are not made, her
gradually diminishing work capacity will cause substantial truncation of [Petitioner’s] work life.”
Id. at 20. Petitioner reported that she considered “approach[ing] her employer for accommodations
within the [Americans with Disabilities Act (“ADA”)] employment discrimination guidelines.” Id.
at 21. She explained, “[it is] not working for[her family and herself], this world that [she has]
created, and [she] need[s] to explore what [her] options would be to take a step back in terms of
[her] time commitments.” Id. However, “she has doubts about whether accommodations would be
possible for her employer to offer, given the exigencies and emergency demands of her position
and the expectations of her corporate clients.” Id. Petitioner also discussed other potential
employment possibilities with less strenuous expectations for total hours worked, including as a
mediator or in-house counsel. Id. at 21. Drs. Matheson and Deeker recommended a ten-year hiatus
from “Big Law” and that she only return “with better symptom management and fitness to
attenuate and accommodate her functional limitations.” Id. at 23.

S.C., Petitioner’s friend and law school classmate, was interviewed as a part of the
evaluation “to get a better understanding of [Petitioner’s] career dynamics and options that may
be worth considering.” Id. at 24. S.C. reported that she has known Petitioner since the first day of
law school and remembered how she “buckled down and pushed herself” to finish, despite the
onset of SFN. Id. When asked about Petitioner’s current work schedule, S.C. described Petitioner’s
“2000 hours of billing per year [as] unreasonable.” Id. S.C. continued that Petitioner “probably
bills at least that much and maybe as much as 2300 [hours] each year, plus accruing nonbillable
hours in additional work.” Id. She reported telling “encouraging [Petitioner] to develop better
boundaries about her workday.” Id. S.C. also previously worked as a corporate attorney, but she
now she serves as an associate general counsel and provides “legal guidance to the healthcare
industry.” Id. This career change improved her work/life balance, and she now has “the flexibility
to take care of [her] children and be involved with [her] husband.” Id. S.C. implied that she took a
pay cut and “was counseled by a mentor who took a similar path from litigation to a stable and
reasonable salaried position.” Id. at 25. She stated that she is “doing things that matter to [her]
right now[,]” and even with some regrets, she can go back to litigation when her kids are older. Id.

Petitioner expressed a desire to meet specific goals, including: less pain, more life balance,
more personal time and time with her children, the pursuit of a hobby, and to read a book. Id. In
response, Drs. Matheson and Deeker recommended “a biopsychosocial interdisciplinary
rehabilitation program[,]” including alternate employment with a maximum work week of forty
hours; an interdisciplinary medical team consisting of a neurologist, rheumatologist, occupational

17
therapist, physical therapist, rehabilitation psychologist, counsel, and a family therapist; and a
work life balance plan. Id. at 26–27.

Following her evaluation, Drs. Deeker and Matheson articulated three scenarios for work-
life expectancy for Petitioner. Id. at 28–30. They opined that “[e]xcept for her work-exacerbated
symptoms and functional limitations, [Petitioner] would have enjoyed age-appropriate
retirement.” Id. at 28. Petitioner’s “tremendous dedication” and career success would place her in
the 75th percentile work-life expectancy for retirement at 69.5 years of age. Id. at 29. Using
Petitioner’s 2022 salary ($675,000) and assuming a worst-case scenario of no merit raises or profit
sharing, the 4.5% annual salary increase taken from the Employment Cost Index until Petitioner
reached 69.5 would result in lifetime earnings of $59,710,447. Id. Under the second scenario,
Petitioner’s SFN and her current job demands, would place her in the 10th percentile for work-life
expectancy and result in a loss of work life of seventeen years or $37,712,904 (compared to
scenario one). Id. The third scenario contemplates Petitioner leaving [law firm] to achieve a forty-
hour work week, albeit at a significantly lower salary. Id. at 29–30. Drs. Matheson and Deeker
opined that in this new position, Petitioner’s work-life expectancy would be reduced to 64.5 years
of age at retirement. Id. at 29. The lower salary and decreased number of working years would
result in a net loss of $45,835,234. Id. at 30. The report also mentions a fourth scenario wherein
Petitioner is able to take a ten to fifteen year hiatus from her law firm, receive rehabilitation
services and benefit from long-term improvement in SFN treatment, and “return to her career path
as a litigator at age [forty-five] or [fifty].” Id. In this case, Petitioner’s work-life expectancy would
return to the baseline in scenario one of 69.5; however, “[e]stimated wage loss . . . is not reasonable
because there are too many unknowns[.]” Id.

D. Supplemental Expert Report of Dr. Steinman

Dr. Steinman submitted a post-entitlement report in this case to explain how specific
symptoms Petitioner experienced can be associated with SFN. See Pet’r’s Ex. 136 at 1–2. Dr.
Steinman cited the MacDonald et al. study,30 in which the authors noted that six percent of SFN
patients in their study also suffer from gait impairment that was believed to be related to the
neuropathy. Id. at 1 (citing Pet’r’s Ex. 137 at 3, ECF No. 134-2). Dr. Steinman extrapolated this
finding to the upper body and asserted that “[o]ne could easily understand that if the upper and
lower extremities are affected in SFN that there would be ‘difficulty with lifting or moving
objects[.]’” Id. Responding to Respondent’s expert, Dr. Gibbons, Dr. Steinman also opined that
chest pain, along with “‘weakness, difficulty with lifting or moving objects, difficulty with
exercise, [and] fatigue[,]’ [] may well be ascribed to the persistent pain that Petitioner is dealing
with.” Id. at 1–2. Lastly, Dr. Steinman described a connection between cognitive decline and SFN
based on the Lodahl et al. article. Id. at 2 (citing Pet’r’s Ex. 101 at 1–2). He cited their explanation
that brain fog can occur due to SFN because “central axons of peripheral nervous system sensory
fibers penetrate into the spinal cord, and some ascend to the brain[.]” Id. (quoting Pet’r’s Ex. 101
at 1–2).

E. Economist Expert Report

30
Steven MacDonald et al., Longitudinal follow-up of biopsy-proven small fiber neuropathy, 60 MUSCLE
NERVE 376 (2019).

18
Dr. McNulty calculated that “the probable value of Petitioner’s lost earnings capacity is at
least $21,199,427 in net present value. Pet’r’s Ex. 138 at 7, ECF No. 137-1. This number is based
on her annual compensation “growing [to] $675,000 at age [thirty five and growing] by 4.9881%
per year to age [sixty-seven,]” averaging an earning stream of $1,584,816 per year. Id. at 3. Using
the retirement age Drs. Matheson and Deeker submitted of 69.5, the lost earnings increase to
$24,958,248. Id. at 6

F. Respondent’s Experts

i. Christopher Gibbons, M.D.

Dr. Gibbons is a board-certified neurologist with an undergraduate degree from Dartmouth
College and a medical degree from Albert Einstein College of Medicine. Resp’t’s Ex. P at 1, 19,
ECF No. 126-2. Following postdoctoral training that included an internship at Greenwich-Yale
New Haven Hospital, a residency in neurology at Johns Hopkins Hospital, and a fellowship in
clinical neurophysiology at Beth Israel Deaconess Medical Center, Dr. Gibbons began as a
professor at Harvard Medical School. Id. at 1. He serves on several boards for pharmaceutical
companies, medical academies, and societies, including the American Academy of Neurology and
the Peripheral Nerve Society. See id. at 1–3. Dr. Gibbons has presented to members of the national
and international medical community and published scholarship on small fiber neuropathy. See
generally id.

ii. Behnush Mortimer, Ph.D.

Dr. Mortimer received an undergraduate degree in recreation therapy from San Diego State
University and a Ph.D. in psychology with specialization in industrial organizational psychology
from Capella University. Resp’t’s Ex. R at 2, ECF No. 126-4. Dr. Mortimer is currently a
vocational rehabilitation consultant in San Diego, with prior experience as a vocational expert and
as adjunct faculty in rehabilitation counseling. Id. at 1–2. Dr. Mortimer has experience in
“vocational evaluation (including administering and interpreting of vocational tests), job analyses,
labor market surveys, wage earning capacity, vocational plan development and monitoring, job
development and job placement utilizing demographic and nationwide statistics, ergonomic
recommendations, job accommodations, and program management.” Id. at 1.

G. Expert Report of Christopher Gibbons, M.D.

Dr. Gibbons’ report includes two tables pulled from supporting literature that detail
symptoms commonly seen in SFN patients. Resp’t’s Ex. O at 2–3, ECF No. 126-1 (quoting
Resp’t’s Ex. O, Tab 1 at 3, ECF No. 129-1; Resp’t’s Ex. O, Tab 2 at 11, ECF No. 129-2).31 Dr.
Gibbons noted that Petitioner reported “burning pain/tingling in the lower extremities [that] is
clearly associated with small fiber neuropathy[,]” but she also reported “a host of other symptoms
such as weakness, difficulty with lifting or moving objects, difficulty with exercise, fatigue, visual
blurring, headache and chest pain [that] are not associated with small fiber neuropathy.” Id. at 6.

31
Simon Haroutounian et al., Diagnostic criteria for idiopathic small fiber neuropathy: A systematic
review, 63 MUSCLE NERVE 170 (2021); Franco Gemignani et al., Non-length-dependent small fiber
neuropathy: Not a matter of stockings and gloves, 65 MUSCLE NERVE 10 (2022).

19
He also noted that “[c]ognitive impairment is not a feature of small fiber neuropathy[,]” and he
identified Petitioner’s other non-feature symptoms including, “weakness, difficulty with lifting or
moving objects, difficulty with exercise, fatigue, visual blurring headache, and chest pain[.]” Id.
at 3, 6. Dr. Gibbons opined that these symptoms are often not the result of SFN but could be the
effects of comorbidities. See id.

Petitioner’s neuropathic tests were recounted by Dr. Gibbons, who agreed with Petitioner’s
mild length dependent, small fiber neuropathy diagnosis in 2011. Id. at 4–5. He stated that as of
2020, her condition had not progressed. Id. at 4.

H. Expert Report of Behnush Mortimer, Ph.D.

On September 1, 2022, Dr. Mortimer conducted a Zoom interview with Petitioner as a part
of her Independent Vocational Evaluation (“IVE”). Resp’t’s Ex. Q at 4, ECF No. 126-3. Petitioner
reported personal information, including her birthdate, educational background, family
circumstances, and employment history. Id. at 4–6. The employment section is extensive and
describes her ascension from a summer associate in law school in 2011 to her current position as
a Partner with her law firm. See id. at 5–6. Petitioner also described her pro bono legal work and
pay structure. Id. at 6.

The next section in the report identifies Petitioner’s current reported symptoms and
functional limitations. Id. at 6–8. Petitioner noted that her symptoms are not constant; they “wax
and wane and are dependent on each day.” Id. at 6. Fatigue was Petitioner’s primary complaint,
and she noted that it is worse at the end of the day. See id. at 7. Petitioner reported beginning her
day between 5:30 and 6:00 am and going to bed at 1:00 am. Id. She works a hybrid schedule that
includes some in-office time, some remote work, and childcare. Id. Petitioner stated that “a lot has
changed in eleven years[,]” including becoming a parent and a law firm partner. See id. Fatigue is
“one of the factors, of many factors[,]” that contribute to her longer workdays. Id.

Petitioner also reported balance issues and difficulty with tasks such as reading and driving
that “seem[] to be a result of her [right] eye pain.” See id. at 7–8. She described finger pain when
attempting fine motor tasks and upper thigh and hip pain when sitting for prolonged periods of
time. Id. at 7. Recently, Petitioner reported that it is “harder for her to process information and
piece information together[,]” and she described herself as “cognitively disorganized.” Id. at 7–8.
She also reported occasional hand tremors and chest tightness and elevated heartbeat that she “was
told . . . was related to her small fiber neuropathy.” Id. at 8. To offset some of these symptoms,
Petitioner has job accommodations, including an ergonomic chair, a sit-stand desk, and a foot
hammock. Id.

Dr. Mortimer outlined one scenario that “takes into account the medical opinions provided
by Dr. Gibbons, as well as [Dr. Mortimer’s] own vocational evaluation and testing[.]” Id. at 14.
Dr. Mortimer outlined a second scenario “in review of Dr. Matheson’s opinion[,]” including “a
rebuttal to Dr. Matheson’s analysis.” Id. Under scenario one, “there is no actual loss in
employability or earning capacity due to claims of increased small fiber neuropathy
symptomology.” Id. Citing Dr. Gibbons’ report, Dr. Mortimer noted that Petitioner’s symptoms
“are not due to [SFN] but rather are due to other medical or psychosocial factors.” Id. Petitioner
maintained employment with her law firm and was regularly promoted with accompanying

20
increases in “occupational titles, duties and earnings, and . . . management duties, now at the
partner level[.]” Id. She even continues with her “pro bono work in addition to her regular caseload
and billing requirements.” Id. She is able to perform at high vocational levels “commensurate with
her education and employment history.” Id. Dr. Mortimer opined that other stressors, “including
work / life balance, effects of the Covid-19 pandemic, or other personal or medical factors[]” may
be the cause of Petitioner’s described vocational difficulties. Id.

Assuming, pursuant to the second scenario, that Petitioner’s “complaints are due to an
increase in polyneuropathy symptoms,” Dr. Mortimer argued that Petitioner’s expert relied heavily
on Petitioner’s complaints. Id. at 14–15. Dr. Mortimer explained that four out of ten of the
assessments completed by Petitioner’s expert during her vocational test were “subjective self
reports[.]” Id. at 15. Three other assessments measured manual dexterity and strength, “both
unrelated to [Petitioner’s] field, and are well known as an area of weakness due to [Petitioner’s]
polyneuropathy diagnosis of 2011.” Id. Dr. Mortimer opined that these assessments were better
suited for “job positions including tasks like assembly, production, and use of tools.” Id. He further
noted that “she met aptitude levels for success in all [fourteen] career categories rating between
60% aptitude match up to 92% aptitude match across categories[,]” including her highest rating
“in the communication career cluster which would be inclusive of the occupational title of
Attorney.” Id. Conversely, Petitioner’s lowest rating, 60th percentile in production assembly work,
is “outside her scope of regular job duties.” Id.

Dr. Mortimer argued “there is no indication that [law firm] would more likely than not ‘say
no’ to an accommodation request given their long term continued employment and promotions of
[Petitioner] and satisfactory performance reviews.” Id. at 16. He was unable to find a basis for Dr.
Matheson’s assertions that 1) Petitioner would have a worklife loss of seventeen years or even five
years and 2) Petitioner would have a “Big Law” hiatus for ten to fifteen years. Id. at 16–17. He
ultimately deferred to an economist “for pre and post incident earning and benefit calculations as
well as statistical worklife commentary[.]” Id. at 17.

IV. Parties’ Arguments

A. Respondent’s Motion to Dismiss Lost Earnings Claim

On October 31, 2022, Respondent filed a motion to dismiss Petitioner’s claim of lost
earnings and an accompanying brief. Resp’t’s Mot.; Resp’t’s Br. Respondent noted that
Petitioner’s treating neurologist evaluated her on March 11, 2021, but did not mention any of the
symptoms that Petitioner relies on as a basis for her claim that her “‘current work activities
dependably lead to serious exacerbation of her symptoms’ of SFN, which affects her work
capacity.” Resp’t’s Br. at 4 (citing Pet’r’s Ex. 88 at 3–11; Pet’r’s Ex. 99 at 2). Respondent further
noted that her neurologist, Dr. Barboi, wrote that Petitioner’s SFN plateaued in 2012 and has
remained stable with occasional flares that can last one-to-two-weeks. Id. (citing Pet’r’s Ex. 88 at
3). Petitioner’s complaints of migraine headaches and vision disruption are injuries unrelated to
her SFN and largely responsible for any adverse effect on Petitioner’s job performance. See id. at
4–5.

Additionally, Respondent argued that Petitioner has not established impaired earnings
capacity. Id. at 5. He argued that unlike Dr. Mortimer’s evaluation, which focused on cognitive

21
abilities, Petitioner’s experts focused on mechanical skills unrelated to Petitioner’s occupation as
an attorney. Id. at 5–6. More importantly, Petitioner’s work history established that despite living
with SFN for over a decade, she has demonstrated her “superior cognitive abilities” through annual
promotions, including reaching partner status by age thirty-five. Id. at 6. Respondent referenced
Petitioner’s self-reported accounts of performance impairment due to her SFN; however, he
questioned why Petitioner would be able to perform in a “Big Law” environment after a decade
hiatus, as opposed to now. Id. Instead, Respondent contended that these symptoms may have
developed because “[P]etitioner is existing on five hours (or less) of sleep each night, raising three
children (and likely helping to oversee their remote education at times during the COVID
pandemic), all while working sixty-plus hours per week in a high-stress environment.” Id.
Petitioner’s friend, S.C., also noted that Petitioner bills as much as 300 hours over her firm’s
strenuous requirement of 2,000 hours a year, and S.C. has encouraged Petitioner to seek work-life
balance as she did. Id. at 6 n.2.

B. Petitioner’s Response

In response to Respondent’s motion, Petitioner asserted that the motion was an attempt “to
relitigate the entitlement hearing as part of the damages part of this case.” Pet’r’s Resp. at 1.
Specifically, Petitioner argued that Respondent is recycling his previous argument that Petitioner’s
symptoms are not the result of her SFN, and therefore “there is no evidence that Petitioner’s small
fiber neuropathy is impairing her ability to perform the duties of her current job.” Id. at 10–11. She
continued that “Respondent, it seems, having failed to successfully convince the [C]ourt that
Petitioner does not have [SFN], is now attempting to advance its previously rejected argument that
Petitioner’s symptoms, which she has consistently identified as only being present following her
vaccine injury of August 23, 2011, are unrelated to her diagnosis of [SFN].” Id. at 15. Petitioner
reiterated the opinions of her experts, who, during the entitlement and damages phases, attributed
her chronic pain to her SFN and explained that said pain “necessarily leads to fatigue and cognitive
decline.” See id. at 15–16. Petitioner further noted the “sharp contrast” between Respondent’s lay
observations and his experts’ opinions, and her experts’ “peer-reviewed testing methods and
rel[iance] on decades of experience in the fields of neurorehabilitation psychology, occupational
rehabilitation, functional capacity analysis, and vocational analysis[.]” Id. at 20.

V. Analysis

The Vaccine Act provides for recovery of “anticipated loss of earnings determined in
accordance with generally recognized actuarial principles and projections[,]” where the injured
party's “earning capacity is or has been impaired by reason of such person's vaccine-related
injury[.]” §15(a)(3)(A). Compensation awarded for a petitioner's anticipated loss of earnings may
not be based on speculation. J.T. v. Sec'y of Health & Hum. Servs., No. 12-618V, 2015 WL
5954352, at *7 (Fed. Cl. Spec. Mstr. Sept. 17, 2015) (indicating § 15(a)(3)(A) “does not envision
that ‘anticipated loss of earnings’ includes speculation[]” and thus refusing to allow lost wages on
a planned business venture that was too indefinite); Dillenbeck v. Sec'y of Health & Hum. Servs.,
147 Fed. Cl. 131, 139 (2020) (citing J.T., 2015 WL 5954352, at *7). Accordingly, it is not enough
to substantiate such a request with some evidence if the submissions offered ultimately rely on
speculated (if somewhat informed) “guesses” about what a claimant might have earned under
optimal conditions. See, e.g., Moreland v. Sec'y of Health & Hum. Servs., No. 18-1319V, 2022
WL 10469047 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (denying injured real estate agent's claim of

22
lost commissions; although petitioner substantiated her claim with evidence, she could not
demonstrate her expectation of commissions or other real estate-related income was more than a
reasoned hope).

The major point of contention for the parties in this damages phase is future lost wages.
Petitioner has not requested compensation for past wage loss or indicated that her career trajectory
suffered in any way because of her condition. In fact, in an effort to retain her employment with
her law firm, Petitioner’s managing partner agreed to allow Petitioner to maintain partner status
with a 20% reduction in her scheduled hours. Pet’r’s Ex. 152 ¶ 30. Petitioner took advantage of
this opportunity during a trial period and even worked one month at 60% productivity, unrelated
to her injury. Id. ¶ 33. However, even with this adjusted schedule, Petitioner reported that she “did
not experience a significant improvement in her symptoms.” Id. She has since determined that she
does “not see a path forward to remain a partner,” and her future loss wages request is based on
the salary reduction she would endure in giving up that status. See id. ¶ 38. Petitioner has suffered
from SFN during her entire career as a lawyer and tenure as an employee of her law firm.
Symptoms notwithstanding, Petitioner has been able to excel in her career and advance within her
firm over the past ten years. She met her occupational goals, was promoted at every opportunity,
and even had the ability to engage in additional pro bono work. All these accomplishments came
to pass without Petitioner’s employer ever being made aware of her injuries, which are now, as
alleged, disabling. For the entirety of Petitioner’s career, her SFN has had no tangible impact on
her work product. She was not denied trial or management opportunities. She received requested
accommodations both before and after she disclosed her injury to her employer. She was not
demoted or denied advancement openings. Now, following the resolution of her injury claim, she
asserts that her inability to maintain an admittedly strenuous pace, in a stressful field known for
burnout, at a high-stakes, international law firm, has become apparent during this damages phase
and requires future compensation. I applaud Petitioner’s work ethic and accomplishments.
Furthermore, I do not doubt her sincerity in describing her inability to maintain her current
work/life balance. However, I cannot agree with the contention that her SFN is to blame.

Petitioner, her lay witnesses, and her experts have explained why Petitioner would be
unable to continue her current work pace. However, their opinions also provide some of the most
persuasive evidence supporting Respondent’s argument. For example, Petitioner’s experts
conducted an interview with Petitioner’s friend, S.C. Pet’r’s Ex. 99 at 24. S.C., who does not
appear to suffer from SFN, described Petitioner’s schedule as unreasonable, particularly
considering her additional nonbillable hours and familial obligations. Id. S.C. noted that she left
the stressful world of corporate litigation to do more meaningful things, including taking care of
her children and spending time with her husband. Id. at 25. She has encouraged Petitioner to do
the same. Id. at 24. This perspective is a clear example of a common career path: individuals who
are successful corporate litigators leave the fast-paced, stressful nature of that work to improve
their overall lifestyle, unrelated to any physical disability. It is clear that Petitioner was able to do
the work for over a decade despite her diagnosis. It is not clear that Petitioner is unable to continue
because of her continued symptoms. Anecdotal evidence, such as that presented by S.C.,
persuasively promotes the premise that Petitioner’s need for a reduction in her work schedule is a
result of a decade’s worth of working in a demanding field with other familial and personal
obligations.

23
Petitioner’s treating physicians also provided insight into Petitioner’s need to adjust her
work-life balance, based on the clinical presentation of her symptoms over the years. Neurologist
Dr. Marquez de Leon diagnosed her with mild autonomic neuropathy in 2011, but as of 2012,
Petitioner has had normal physical exams with some coldness, numbness, and occasional burning
on the right side. Pet’r’s Ex. 9 at 47; Pet’r’s Ex. 7 at 18; Pet’r’s Ex. 1 at 8; Pet’r’s Ex. 2 at 16. Dr.
Barboi noted that Petitioner’s SFN has been stable since 2012, which is one year after her
vaccination and eleven years ago from the present. See Pet’r’s Ex. 160 ¶ 6. Since 2012, she has
consistently complained of headaches, but it must be noted that Petitioner has suffered from
migraine headaches dating back to a 2003 concussion. See Pet’r’s Ex. 2 at 49–62. Further,
Petitioner has not provided evidence that headache is a symptom identified to diagnose SFN or
that is specifically treated as a symptom of SFN. Respondent’s experts also noted that many of
Petitioner’s symptoms, including right eye pain and visual blurring, are not associated with SFN,
but are more likely the effect of comorbidities. It is more likely that Petitioner’s headaches are a
symptom of her pre-existing occipital neuralgia. Dorland’s Medical Dictionary also defines this
condition as occipital headache due to its defining symptom. Dorland’s at 1244. Petitioner has
continued to complain of chronic headaches since 2012; however, she has not presented any
evidence of treatment or medical follow-up related to that specific condition. Petitioner also
consistently complained of vision blurriness and eye pain. The visual cortex32 is also located in the
occipital lobe, and it is likely that her neuralgia is also affecting her vision. See Dorland’s at 416.
Petitioner’s routine follow-up appointments in 2018 and 2021 revealed that her neuropathy has
remained stable. See Pet’r’s Ex. 88 at 3, 45. During this time, she was able to continue her ascent
to partner without notifying her employer of any issue.

In 2022, Petitioner complained to Dr. Barboi of a substantial increase of her symptoms,
but there does not appear to be any physiological change or laboratory result to explain this
exacerbation. See Pet’r’s Ex. 160 ¶ 14. In addition to headache and eye pain, Petitioner noted that
her current, primary symptoms are burning in her upper extremities, feet, and hip joints, and
fatigue. Pet’r’s Ex. 152 ¶ 2. Petitioner has consistently complained of these symptoms since her
initial diagnosis over a decade ago. In response to her regular complaints, Dr. Barboi had, for years,
cautioned Petitioner about the pace of her lifestyle and resulting fatigue. See Pet’r’s Ex. 160 ¶¶ 10,
13. Those admonitions continued even within affidavit he prepared in 2023 for the damages phase
of this case. Id. ¶ 16. Despite his recommendations, Petitioner continued with her ambitious work
schedule for years without the need for disclosure to her employer or substantive accommodations.
Petitioner’s medical record does not provide preponderant evidence that her SFN symptoms have
evolved to prevent her from working.

Petitioner’s vocational experts, Drs. Deeker and Matheson, opined that Petitioner’s
MTAP “demonstrate[d] considerable and dependable degradation of her functional capabilities
over the past [eleven] years.” Pet’r’s Ex. 89 at 39. They did not explain or point to any evidence
illustrating that over time Petitioner’s capabilities degraded or wore down. Petitioner detailed
serious flares that were documented around, and attributed to, her pregnancies. See, e.g., Pet’r’s
Ex. 88 at 54. However, during each of her pregnancies, Petitioner took extended paid, maternal
leave from her law firm. Pet’r’s Ex. 152 ¶ 14. She has not alleged that her symptoms permanently
worsened after any of her pregnancies. Conversely, she positively noted that she did not have

The visual cortex is “the area of the occipital lobe of the cerebral cortex concerned with vision.”
32

Dorland’s at 416.

24
additional work-related stress during those times. Petitioner described later complex and protracted
trials that caused her additional stress. See id. ¶ 15. Indeed, it is hard to imagine that “a massive
federal multidistrict litigation” would not have a stressful effect on anyone. At the conclusion of
one such trial she recounted, Petitioner did not alter her schedule and was able to continue her
advancement within her law firm. See id. ¶ 16. She does not present a persuasive argument to
explain why, after living with these symptoms and thriving in her career such that she makes no
request for past wage lost, she is now unable to continue due to her condition. Petitioner has not
presented preponderant evidence that her condition has affected her career trajectory. See c.f.
Brown v. Sec’y of Health & Hum. Servs., No. 00-182V, 2005 WL 2659073, at *6 (Fed. Cl. Sept.
21, 2005) (“All of the evidence indicates that this vaccine-related injury derailed the meteoric rise
of a talented young executive who was being groomed for upper management.”).

Drs. Deeker and Matheson strongly asserted that the chronic pain that Petitioner
experiences “interferes with attentional capacity, processing speed and psychomotor speed, and
fatigue diminishes the ability to sustain attention and concentration, and also slows reaction time
and processing speed [ ].” Pet’r’s Ex. 124 at 7. They related these hinderances directly to
Petitioner’s current job responsibilities and performance to argue that she is unable to continue to
do perform her responsibilities at current levels. Id. at 7, 10. They concluded that she has only been
so successful thus far because of “extraordinary effort that cannot be sustained indefinitely.” Id. at
10. Based on Petitioner’s reporting, however, she has been struggling with cognitive issues due to
pain for the totality of her condition. In fact, Petitioner recounted that when she took the [state] bar
exam, she “requested and received accommodations to manage her lower levels of cognitive
efficiency and productivity.” Pet’r’s Ex. 99 at 2. It does not appear that she requested any such
accommodation again, while working for her law firm, even during particularly stressful times,
until 2023, more than ten years later. Despite that, she was able to excel. Furthermore, Drs. Deeker
and Matheson acknowledged that “most of [Petitioner’s] functional limitations do not directly
impact her work tasks.” Id. at 3.

Petitioner provided medical literature that identifies chronic pain and fatigue as
symptoms that are commonly associated with SFN patients. However, one of the articles was
specifically studying the relationship between SFN and fibromyalgia, a disease characterized by
widespread pain. See Pet’r’s Ex. 101 at 1. The authors of the second article were unable to identify
whether pain is a primary or secondary symptom. See Pet’r’s Ex. 102 at 6. Petitioner reported
current pain, but she does not undergo any sort of pain management and only uses over-the-counter
medications “a few times a month.” Pet’r’s Ex. 89 at 24. In addition to pain, Petitioner repeatedly
complained of fatigue from longer work hours. For context, she added that she has become a parent
(three times over) and a law firm partner with accompanying additional responsibilities. Drs.
Deeker and Matheson also pointed out Petitioner’s “responsibilities as a wife, mother, and family
household contributor[.]” Pet’r’s Ex. 124 at 20. Petitioner noted that she had hired a nanny,
housekeeper, landscaper, and chef to assist with family care. Id. These types of additional private
support are commonly utilized by successful lawyers (and other professionals) who are financially
able but time constrained due to job demands. Indeed, Petitioner does not indicate that she would
not have this help but for her condition. Petitioner was asked what her goals were. She responded
that she wanted a more balanced lifestyle, spend quality time with her children, pursue a hobby,
and read a book. Pet’r’s Ex. 89 at 25. These goals are common for many thirty-something working
moms (and dads) practicing in demanding, professional fields, including S.C. Petitioner included

25
in her goals that she wishes to live with less pain, but that is more appropriately considered
pursuant to a pain and suffering award.

Petitioner presented a significant amount of economic evidence in support of a damages
award for future wage loss, and I have reviewed all of that evidence. However, that evidence is
secondary to a determination that future wage loss is appropriate. I do not find that to be the case
here. The evidence establishes by preponderant evidence that Petitioner’s career has not been
hindered in any way. Furthermore, Petitioner’s employers have indicated a willingness to work
with her to design a schedule that allows her to keep her current status. Notwithstanding her
professional success, Petitioner’s work-life balance has been described by her own witness as
unreasonable, so much so that the witness, herself a corporate lawyer, changed careers for a better
quality of life.

There does not appear to be any medical evidence, whether from appointment records
or treaters, or from Petitioner’s own account, that she is now suffering from worsening symptoms
that are indicative of progressing SFN. In fact, her condition has been stable for over a decade.
Petitioner is requesting a future wage loss award because her condition, in essence, causes her
fatigue and pain. The evidence that Petitioner has submitted illustrates a lifestyle that would cause
fatigue regardless of health. Of note is Petitioner’s report of four to five hours of sleep per night
due to a full-time, high-powered job, a husband, and three young children. Petitioner also reported
pain that is largely caused by right eye pain and migraine headaches likely not caused by SFN. It
would be impossible to pay out the possible future salaries of every petitioner who asserted an
inability to work due to pain without tangible evidence of said inability. Petitioner has not needed
to disclose her condition to her employer until recently. She is not applying for disability and is
basing her request on another legal position that she does not currently have. I do not find that
Petitioner has presented preponderant evidence that a future wage loss award is appropriate in this
case. Petitioner has not established it more likely than not that her earning capacity is impaired
because of her vaccine-related injury. See §15(a)(3)(A).

VI. Conclusion

For the reasons discussed above and based on consideration of the record as a whole, I
do not find that an award for future wage loss is appropriate in this case. Respondent’s motion is
therefore GRANTED and the claim for future wage loss is DENIED. The parties are directed
to attempt resolution of remaining pain and suffering damages, pursuant to Respondent’s assertion
that remaining damages could be negotiated by the parties following my decision on wage loss.
Accordingly, Petitioner shall file a status report indicating the status of these negotiations within
thirty days of the issuance of this Order.

IT IS SO ORDERED.

s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10735827. Public record. Not legal advice.