B.A. v. Sec'y of Health & Human Servs.

B.A., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 11-51V

United States Court of Federal Claims

September 7, 2021

Ruling on Damages; Headaches; Acupuncture; Pain Management; Home Health Aide; Case Management; Pain and Suffering; Lost Wages Work-Life Expectancy.

Lisa A. Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA, for petitioner.

Jennifer L. Reynaud, U.S. Department of Justice, Washington DC, for respondent. ^[1]

RULING ON DAMAGES ^[2]

THOMAS L. GOWEN, SPECIAL MASTER

A damages hearing was held in the above-captioned matter on May 20 - 21, 2021. At the conclusion of the hearing, the undersigned issued a bench ruling resolving all categories of damages. This order memorializes the bench ruling.

I. Procedural History

On January 20, 2011, B.A. filed a claim in the National Vaccine Injury Compensation Program.^[3] B.A. received her second dose of the Gardasil vaccine against human papillomavirus ("HPV") (hereinafter referred to as "the HPV vaccine") on January 23, 2008, and a third dose on June 3, 2008. B.A. alleges that as a result of these vaccines, she suffered severe chronic headaches and various other sequelae. Amended Petition at 1. After holding an entitlement hearing, I issued an opinion concluding that B.A. had established her entitlement to compensation under the Vaccine Act. See Ruling on Entitlement filed on December 6, 2018 (ECF No. 153); refiled in redacted form on January 10, 2019 (ECF No. 159).

Once the case moved into the damages phase, B.A. filed updated medical records from her established providers. Pet. Exs. 134-44, 147-52, 154, 157-58. Both parties retained life care planners, who conducted a joint site visit with B.A. and her mother on June 26, 2019. They also consulted with B.A.'s chiropractor and her acupuncturist. Pet. Ex. 166. B.A. filed the report of her expert life care planner Liz Kattman, M.S., which incorporated the findings of a vocational evaluation. Pet. Exs. 145-46.

The parties then requested a status conference to confirm the extent of B.A.'s "vaccine-related" injuries, see Resp. Status Report (ECF No. 180), which was held on January 8, 2020, see Scheduling Order (ECF No. 182). Afterwards, B.A. underwent a thorough evaluation at the Mayo Clinic, which did not shed additional light on the nature of her condition or new treatment to alleviate her symptoms, but led to the suggestion that she undergo neuropsychological testing and attend an intensive three-week pain management program (which were both delayed due to the COVID-19 pandemic). Pet. Exs. 153, 155-56.

On September 17, 2020, respondent conveyed a proffer which represented respondent's position on the damages that were supported by the existing record, see Resp. Status Report (ECF No. 202). On October 13, 2020, another status conference was held at the parties' request. They had not resolved the following categories of damages: (1) past unreimbursed expenses; (2) future unreimbursed expenses in the life care plan; (3) lost earnings, specifically work-life expectancy; and (4) pain and suffering. See Scheduling Order (ECF No. 205).

B.A. then filed her expert's revisions to the life care plan, a listing of out of pocket expenses, and one article on work-life expectancy. Pet. Exs. 159-62. Respondent filed his expert Laura Fox's response to the life care plan and out-of-pocket expenses. Resp. Exs. N-Q. The parties duly briefed the disputed categories of damages. Pet. Brief filed October 22, 2020 (ECF No. 208); Resp. Response filed October 28, 2020 (ECF No. 211) (citing Childers v. Sec'y of Health & Human Servs., No. 96-194V, 1999 WL 218893 (Fed. Cl. Spec. Mstr. March 26, 1999) in support of applying a work-life expectancy of 35 years). At a status conference on November 6, 2020, I offered tentative findings and conclusions and encouraged the parties to reach an informal resolution, see Minute Entry.

Respondent took several months to review the matter, but ultimately did not revise the proffer. Respondent advised that he had no objection to discussing alternate means of determining a damages award including having the Court issue a decision awarding damages. See Status Reports (ECF Nos. 212-15). During a status conference on March 11, 2021, the parties confirmed that the same four categories of damages remained unresolved. With regard to work-life expectancy, Ms. Reynaud stated she did not plan to retain an expert economist, which I agreed did not seem necessary. Scheduling Order (ECF No. 216). A damages hearing was set for May 19 - 20, 2021. Hearing Order (ECF No. 220).

B.A. filed updated medical records, additional documentation for her life care plan and out of pocket expenses, and several articles. Pet. Exs. 163-73. B.A. also filed her damages brief. Pet. Damages Brief filed May 12, 2021 (ECF No. 227).

In email correspondence with my law clerk on May 14, 2021, Ms. Englund advised that respondent intended to rely on the damages brief respondent filed on October 28, 2021 (ECF No. 211) (noted above and cited herein as "Resp. Response"). On May 19, 2021, respondent filed his expert's updated life care plan and several articles. Resp. Exs. R-T.

On May 20 - 21, 2021, a damages hearing took place. Ms. Roquemore presented testimony from B.A., her mother, her life care planner Ms. Kattman. Mr. Tyler King appeared on behalf of respondent and presented testimony from respondent's life care planner Ms. Fox. All participants appeared via videoconference. See Transcript ("Tr.") filed June 8, 2021 (ECF Nos. 235-36). During the hearing, I ruled on the several disputed issues of damages. Tr. 187-207, 241-56.

Afterwards at my direction, B.A. duly filed a revised spreadsheet of compensable out-of-pocket expenses, Pet. Ex. 175, and a revised life care plan, Pet. Ex. 178, ^[4] in conformance with my bench ruling, ^[5] to facilitate the preparation of the following opinion which memorializes the bench ruling.^[6] The specific figures included in those exhibits are hereby approved for the reasons set forth below.

II. Relevant Factual History

The prior ruling on entitlement summarizes the medical records up to June 2014 as well as the mother's testimony and my observations of B.A. at the entitlement hearing in March 2016. That summary is incorporated in full herein. Since the ruling on entitlement, B.A. has filed updated medical records which confirm that her symptoms have not changed and that her medical providers do not have an improved understanding as to the nature of her injury. Despite trying various medications and treatments, she still receives the most significant - albeit temporary - relief from the acupuncturist Dr. Wu in Destin, Florida and to a lesser extent, from chiropractic treatments. See Pet. Ex. 166 at 2, 5, 8 (treating physician statements); Tr. 36-47. She did not see a neurologist for approximately 3 - 4 years. Then in early 2019, the primary care provider Dr. Ulrich referred B.A. to Pamela Quinn, M.D., at North Central Neurology Associates in Cullman, Alabama, for evaluation of continued neurological symptoms. Pet. Ex. 143. Dr. Quinn did not have access to many of the prior medical records. Id. She did not reach a definitive diagnosis, ordered certain past medical records, recommended Botox for the headaches, and considered a referral to neuromuscular specialists at the University of Alabama. Id. at 3. The mother reported that Botox had been previously ineffective in treating B.A.'s headaches and that after Dr. Quinn received and reviewed the medical records, she referred B.A. to the Mayo Clinic. See Resp. Ex. Q at 3.^[7]

In January 2020, B.A. and her mother travelled to the Mayo Clinic's main campus in Rochester, Minnesota. Neurologist Joseph Sirven, M.D., after recording B.A.'s history, planned a video EEG and a movement disorder study to evaluate the dystonic jerking and formal "neuropsychometric" (e.g., neuropsychological) testing to assess her cognitive function. If those findings were negative, he would consider migraine monoclonal antibodies, neuromodulation, a fibromyalgia consultation, and pain management. Pet. Ex. 153 at 8. The video EEG did not find a correlate but was "contaminated by movement and other external artifact." Pet. Ex. 155 at 7-8. The movement study demonstrated "irregular tremulous activity affecting the neck and upper extremity without definite features of central organization." Pet. Ex. 156 at 4.^[8] Dr. Sirven recommended discontinuing Keppra.

On March 18, 2020, B.A. had an encounter with a psychologist specializing in pain management, Steven Ames, M.D., who is based at a Mayo Clinic campus in Jacksonville, Florida. Pet. Ex. 155 at 5. Dr. Ames assessed B.A. with a chronic pain syndrome, with the hierarchical condition category ("HCC") of "spells, neurological." Id. B.A. would benefit from a rehabilitative pain program to learn self-management strategies to manage pain symptoms, improve functioning, and reduce reliance on medication. Id. The Mayo Clinic offers this kind of program, which is three weeks long, at its Pain Rehabilitation Center (hereinafter referred to as the "PRC program") in Jacksonville, Florida. Id.^[9] The following day, on March 19, 2020, Dr. Sirven also encouraged the PRC program and stated that B.A. could continue on her current medications (topiramate, tizanidine, ketorolac, diazepam, and cambia). Id. at 3.

B.A.'s last evaluations at the Mayo Clinic coincided with the dramatic spread of the COVID-19 pandemic, which caused significant restrictions on travel and gatherings throughout the United States.^[10] Therefore, the Mayo Clinic postponed both the recommended neuropsychological testing and her attendance at the PRC program. See Pet. Ex. 159 at 1-2; Pet. Ex. 162 at 6.

The Mayo Clinic PRC program generally takes ten...