GIBSON v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:21-vv-00392
Fed. Cl.May 22, 2025Background
- Kelly Gibson filed a petition under the National Vaccine Injury Compensation Program alleging she developed shoulder injury related to vaccine administration (SIRVA) following a flu vaccine in August 2020.
- Gibson experienced immediate and persistent left shoulder pain, with limited range of motion, confirmed by medical records and MRI, and she received treatment, including steroids and physical therapy.
- She ceased formal treatment after about 4.5 months, citing COVID-19, caregiving duties, and financial constraints, but continued to report pain to medical providers and through declarations.
- Two treating physicians corroborated that she continued experiencing shoulder symptoms for at least six months after vaccination, though not always documented contemporaneously in her medical records.
- The respondent contested both the severity and duration of her condition and the amount of compensation.
- The court granted entitlement and awarded Gibson $47,500 for pain and suffering and $326.32 in out-of-pocket expenses.
Issues
| Issue | Gibson's Argument | Government's Argument | Held |
|---|---|---|---|
| Duration of SIRVA (6-month severity req.) | Symptoms persisted over 6 months, as supported by records, testimony, and declarations. | No formal treatment after 4.5 months, post-litigation testimony less credible. | Gibson’s symptoms satisfied the 6-month requirement. |
| Existence and Severity of SIRVA | Met QAI criteria, injury and pain linked to vaccine, no pre-existing condition explains symptoms. | Pre-existing cervical issues, mild and short-lived symptoms. | QAI criteria and causation are satisfied; pre-existing issues did not explain post-vaccine symptoms. |
| Appropriateness of damages amount | Injury warranted $77,000; pain and limitations lasted 22–31 months. | Comparable cases warrant less than $37,500 due to mildness and short duration. | Award of $47,500 for pain and suffering is appropriate. |
| Compensation for out-of-pocket expenses | Sought reimbursement for $326.32 in expenses. | No opposition to this amount. | Awarded $326.32 in expenses. |
Key Cases Cited
- Burns v. Sec'y of Health & Human Servs., 3 F.3d 415 (Fed. Cir. 1993) (discusses weighing medical records and oral testimony in vaccine cases)
- Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (medical records are generally trustworthy, but not always complete)
- Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378 (Fed. Cir. 2021) (no presumption that medical records are fully accurate or complete as to all aspects of injury)