Smith v. Secretary of Health and Human Services
19-745
| Fed. Cl. | Jun 28, 2021Background
- Petitioner Renee Smith filed a Vaccine Program petition alleging a SIRVA after a September 22, 2017 influenza vaccination; Respondent conceded liability in a Rule 4(c) report.
- Dispute centered solely on damages; parties briefed and litigated damages at an expedited Motions Day hearing on May 28, 2021.
- Immediately after vaccination Petitioner had severe shoulder pain and limited range of motion; received a cortisone injection and began physical therapy.
- MRI showed a partial-thickness bursal-surface tear and subacromial/subdeltoid bursal fluid; after ~8 months of conservative care Petitioner elected arthroscopic surgery on May 14, 2018.
- Postoperative recovery included extensive physical therapy; by ~13 months post-vaccination Petitioner was cleared to full duty and reported only occasional pain with strenuous activity.
- The special master awarded $125,000 for past pain and suffering and the parties’ agreed $2,281.68 for past lost wages, for a total lump sum of $127,281.68.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate amount for past pain and suffering | Smith sought $135,000, citing comparable SIRVA decisions and facts (immediate severe pain, 8 months to surgery, surgery + PT, ~13-month course). | Respondent proposed $85,000, stressing pre‑surgery improvement and arguing surgery was unnecessary/preference‑driven. | Awarded $125,000 for past pain and suffering based on comparable Program decisions and case‑specific facts. |
| Past lost wages | Petitioner sought $2,281.68 (actual past lost earnings). | Respondent agreed to the amount. | Agreed amount of $2,281.68 awarded. |
| Appropriate comparators for damages (Program decisions, SPU proffers, outside tort awards) | Relied on reasoned Vaccine Program SIRVA decisions (e.g., Nute, Rafferty, Dobbins) as primary comparators. | Urged reliance on SPU proffers and civil jury/tort awards, criticizing Program awards as inflated. | Court favored reasoned Vaccine Program decisions as most persuasive; treated proffers and outside tort awards as less relevant. |
| Weight of surgical intervention when claim surgery may reflect patient preference | Surgery reflects severity and desire to shorten suffering; is relevant evidence of morbidity. | Argues surgery was not medically necessary and driven by petitioner’s preference, thus should reduce weight of surgical intervention. | Court held surgery remains a significant surgical intervention and is probative of petitioner’s suffering even if partly elective. |
Key Cases Cited
- Doe 34 v. Sec'y of Health & Human Servs., 87 Fed. Cl. 758 (Fed. Cl. 2009) (reasoned awards from other Vaccine Program cases may aid determination of damages)
- Hodges v. Sec'y of Health & Human Servs., 9 F.3d 958 (Fed. Cir. 1993) (special masters may rely on their accumulated expertise in adjudicating Vaccine Program claims)
- McAllister v. Sec'y of Health & Human Servs., 70 F.3d 1240 (Fed. Cir. 1995) (discusses factors for assessing pain and suffering; vacated and remanded on other grounds)