Desrosiers v. Secretary of Health and Human Services
16-224
| Fed. Cl. | Nov 17, 2017Background
- Petitioner Lindsey Desrosiers received a Tdap vaccination in her left shoulder on March 9, 2015, while pregnant and had no prior shoulder problems.
- She developed immediate left shoulder pain; was treated conservatively with physical therapy and home exercises; pregnancy limited options (no steroids, certain meds, or early MRI).
- Clinical exams over 2015 showed variable findings: initial limited ROM and positive impingement signs, improving strength and ROM with PT, a palpable deltoid defect at one visit, and an October 2015 MRI showing mild rotator cuff tendinosis and minimal subacromial/subdeltoid bursitis.
- Respondent conceded entitlement under the Vaccine Act (Rule 4(c)); the only dispute was the proper amount for non-economic (pain and suffering) damages.
- Petitioner sought $90,000 for pain and suffering (and documented $336.20 in past unreimbursed medical expenses); respondent proposed $45,000 based on records showing relatively mild, improving injury and limited treatment.
- Chief Special Master Dorsey awarded $85,000 for past and future pain and suffering plus $336.20 for past unreimbursed medical expenses (total $85,336.20).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate amount for pain & suffering | $90,000: pregnancy limited treatment; continued pain, functional limits, MRI-confirmed tendinosis and bursitis; caregiving impact. | $45,000: medical records show mild injury with improvement, limited treatment after May 2015, no injections/surgery/prescription opioids, and minimal objective deficits. | Awarded $85,000 as fair compensation for past and future pain & suffering. |
| Effect of pregnancy on remedies and damages | Pregnancy prevented usual treatments (steroids, certain meds, earlier MRI), increasing hardship and value of claim. | Respondent questioned why petitioner did not resume more aggressive treatment post-partum; argued record overall showed improvement. | Court credited pregnancy-related treatment limitations and caregiving burdens in upward adjustment of damages. |
| Role of objective findings (MRI, exams) in valuation | MRI and persistent clinical signs through October 2015 support ongoing injury and non‑economic damages. | Emphasized largely normal/negative tests at many visits and clinical improvement with PT. | Court relied on MRI, palpable deltoid defect and ongoing symptoms to justify award above respondent’s proposal. |
| Reliance on comparator SIRVA awards | Petitioner cited similar SIRVA awards ($70k–$100k) as reference points. | Respondent cited other awards supporting lower figures for milder cases. | Court reviewed cited decisions but emphasized case‑specific facts; used comparators (Curtis, Ponsness) as reference and set $85,000. |
Key Cases Cited
- None with official reporter citations — the decision referenced several Vaccine Program SIRVA awards (e.g., Curtis and Ponsness) but those were cited via unpublished or non‑reporter sources and thus are not listed here.