Opinion

Beckmann v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Dec 5, 2024
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 22-1289V

UNPUBLISHED

BARBARA BECKMANN, Chief Special Master Corcoran

Petitioner, Filed: November 4, 2024

v.

Special Processing Unit (SPU);

SECRETARY OF HEALTH AND Ruling on the Record; Influenza (Flu)

HUMAN SERVICES, Vaccine; Shoulder Injury Related to

Vaccine Administration (SIRVA)

Respondent.

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

Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for

Respondent.

DECISION AWARDING DAMAGES 1

On September 14, 2022, Barbara Beckmann filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2

(the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to

vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special

Processing Unit of the Office of Special Masters (the “SPU”). Although entitlement was

conceded, the parties were unable to resolve damages informally, so they agreed instead

to submit this dispute for resolution at an expedited “Motions Day” hearing, which took

place on October 25, 2024

For the reasons described below, I award $115,000.00 for actual pain and

suffering, plus $308.27 for out-of-pocket expenses.

1

In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or

other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon

review, I agree that the identified material fits within this definition, I will redact such material from public

access.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2018).

I. Fact Evidence

Ms. Beckmann received a flu vaccine in her right shoulder on September 4, 2021.

Ex. 1 at 1. She reported shoulder pain on September 29, 2021, stating it started two hours

after vaccination. Ex. 3 at 169. Her pain was reported as eight to ten out of ten. Id. An x-

ray indicated mild degenerative changes, and an examination showed reduced range of

motion with weakness. Id. at 3 at 169, 170. A steroid injection was also administered. Id.

at 171.

Petitioner attended six physical therapy sessions, starting on October 7, 2021. Ex.

3 at 12-14. Her pain was reported as zero at best, ten out of ten at worst, and currently

seven out of ten. Id. at 12. On October 15, 2021, Petitioner reported that the steroid

injection did not provide much benefit and physical therapy made her shoulder more

painful. Id. at 188.

An MRI on October 20, 2021, revealed that Petitioner had bursitis. Ex. 3 at 129.

On November 16, 2021, she underwent arthroscopic surgery that included debridement

and subacromial decompression. Id. at 36.

Between November 29, 2021 and April 27, 2022, Petitioner attended nineteen

physical therapy sessions. Her pain improved, and by February 28, 2022 it was reported

as zero to five out of ten. Ex. 3 at 81. By April 5, 2022, Petitioner had a full and unrestricted

range of motion, great strength, and no impingement signs.

II. Damages

Petitioner argues that she is entitled to $135,000.00 for pain and suffering, and

$308.27 for out-of-pocket expenses. Petitioner’s Damages Brief (“Pet. Br.”), ECF No. 30,

at 1, 9-12. Respondent counters that a lower award of between $75,000.00 and

$85,000.00 is more appropriate in this case. Respondent’s Damages Brief (“Opp.”), ECF

No. 31, at 9-10. He does not contest the out-of-pocket expenses. Opp. at 1 n.1.

After listening to the arguments of both sides, I orally announced my ruling on

damages constituting my findings of fact and conclusions of law, pursuant to Section

12(d)(3)(A), at the conclusion of the October 25, 2024 hearing. An official recording of the

proceeding was taken by a court reporter, although a transcript has not yet been filed in

this matter. I hereby fully adopt and incorporate that oral ruling as officially recorded.

In a recent decision I discussed at length the legal standards to be considered in

determining damages and prior SIRVA compensation within SPU. I incorporate herein

2

my prior discussion in Sections V - VII of Crawford v. Sec'y of Health & Hum. Servs., No.

19-0544V, 2024 WL 1045147, at *20-22 (Fed. Cl. Feb. 5, 2024) to the instant Ruling and

Decision. Additionally, the official recording of my oral ruling includes my discussion of

various comparable cases as well as specific facts relating to Petitioner's medical history

and experience that further informed my resolution of this matter.

III. Appropriate Compensation for Pain and Suffering

In this case, awareness of the injury is not disputed. The record reflects that at all

times Ms. Beckmann was a competent adult with no impairments that would impact the

awareness of her injury. Therefore, my analysis focuses primarily on the severity and

duration of Petitioner’s injury. When performing this analysis, I review the record as a

whole, including the medical records and affidavits filed, all assertions made by the parties

in written documents, and the arguments presented during the Motions Day hearing.

Petitioner cites to a number of SIRVA damages decisions that awarded between

$125,000.00 to $127,500.00 for pain and suffering. Pet. Br. at 12-14. 3 Petitioner argues

that she suffered a moderate-to-severe SIRVA over approximately one and a half years,

and her treatment involved a cortisone injection, an MRI, 25 physical therapy sessions,

and surgery. Id. 12, 15. Respondent argues that Petitioner’s SIRVA was mild-to-

moderate, justifying a lower award. Opp. at 13. In support, he cites to eight cases

awarding between $75,000.00 and $85,000.00 for pain and suffering. Id. at 9-10.

However, Respondent did not provide a specific valuation for this case.

The record in this case best supports the conclusion that Ms. Beckmann suffered

a moderate SIRVA for approximately seven months. Petitioner reported pain fairly shortly

thereafter. Additionally, Petitioner’s treatment consisted of an MRI, 25 physical therapy

sessions, and one steroid injection. Further, she experienced moderate to severe pain for

a short period, however by February 28, 2022 (six months post-vaccination) it was

reported as zero to five out of ten. Ex. 3 at 81. And she underwent surgery – a relevant

consideration when deciding whether to permit a six-figure pain and suffering award, as

requested by Petitioner herein.

I have identified one prior decision that stands as a useful comparable. Hall v.

Sec'y of Health & Hum. Servs., No. 19-1556V, 2022 WL 2196412, at *4 (Fed. Cl. May 6,

2022) (awarding $110,000 for pain and suffering). In Hall, the petitioner had a moderate

3 Jackson v. Sec'y of Health & Hum. Servs., No. 20-0051V, 2023 WL 4401125 (Fed. Cl. June 2, 2023)

(awarding $125,000 for pain and suffering); Smith v. Sec'y of Health & Hum. Servs., No. 19-0745V, 2021

WL 2652688 (Fed. Cl. May 28, 2021) (awarding $125,000 for pain and suffering); Rafferty v. Sec'y of Health

& Hum. Servs., No. 17-1906V, 2020 WL 3495956 (Fed. Cl. May 21, 2020) (awarding $127,500 for pain and

suffering).

3

SIRVA, one cortisone injection, 18 physical therapy sessions, and a complicated surgery

requiring two surgeons over a seven month period. Ms. Beckman had a similar treatment

course, but more physical therapy.

Balancing the severity of Petitioner’s SIRVA injury and the course of treatment

against awards made to similarly-situated Program petitioners, I find that $115,000.00 in

compensation for actual pain and suffering is reasonable and appropriate in this case

(plus the agreed-upon unreimbursed medical expenses).

Conclusion

For all of the reasons discussed above, and based on consideration of the record

as a whole, I find Petitioner is entitled to compensation. Further, I award Petitioner

a lump sum payment of $115,308.27 (consisting of $115,000.00 for actual pain and

suffering and $308.27 in out-of-pocket expenses) in the form of a check payable to

Petitioner.

This amount represents compensation for all items of damages that would be

available under Section 15(a). The Clerk of the Court is directed to enter judgment in

accordance with this Decision. 4

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

4

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or

separately) a notice renouncing their right to seek review.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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