O'donnell-Bove v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0282V
UNPUBLISHED
CYNTHIA O’DONNELL-BOVE, Chief Special Master Corcoran
Petitioner,
v. Filed: August 15, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu); Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA).
LeeAnne Pedrick, Maglio, Christopher & Toale, PA, Washington, DC, for Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON STIPULATION1
On March 12, 2020, Cynthia O’Donnell-Bove filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). On September 26, 2018, in her left shoulder, Petitioner received an
influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. §100.3(a). Petitioner alleges that she suffered a left Shoulder Injury
Related to Vaccine Administration (“SIRVA”) within the time period set forth in the Table,
and further alleges that she experienced the residual effects of her injury for more than
six months. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”)
of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. 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.
2National 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 (2012).
Respondent denies that Petitioner sustained a SIRVA Table injury, denies that
Petitioner’s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that
the flu vaccine caused Petitioner any other injury or her current condition.
Nevertheless, on August 12, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $55,000.00 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of damages that
would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to
enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
•••••••••••••••••••••••••••••
CYNTHIA O'DONNELL-BOVE, *
•
Petitioner, •
•
V. * No.20-282V
* CHIEF SPECIAL MASTER
* BRIAN H. CORCORAN
SECRETARY OF HEALTH •
AND HUMAN SERVICES, *
•
Respondent. •
•••••••••••••••••••••••••••••
STIPULATION
The parties hereby stipulate to the following matters:
1. Cynthia O'Donnell-Bove, petitioner, filed a petition for vaccine compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to-34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of an influenza (..flu,,) vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § I 00.3(a).
2. Petitioner received the flu vaccine in her left shoulder on September 26, 2018.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a left Shoulder Injury Related to Vaccine
Administration ("SIRVA") within the time period set forth in the Table, and further alleges that
she experienced the residual effects of her injury for more than six months.
S. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury, denies that
petitioner,s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu
vaccine caused petitioner any other injury or her current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 ofthis Stipulation.
8. As soon as practicable after an entry ofjudgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21 (a)(l ), the Secretary ofHealth and Human Services will issue
the following vaccine compensation payment:
A lump sum of $55,000.00 in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-1S(a).
9. As soon as practicable after the entry ofjudgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-2l(a)(l), and an application, the parties will submit to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in proceeding
upon this petition.
10. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act(42 U.S.C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
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11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-
l 5(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys• fees and litigation costs, and past unreimbursed expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner as conte~plated by a
strict construction of42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42U.S.C.
§ 300aa-l 5(g) and (h).
13. In return for the payments described in paragrapw 8 and 9, petitioner, in her
individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions or causes of action
(including agreements, judgments, claims, damages, loss ofservices, expenses and all demands
of whatever kind or nature) that have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-l Oet seq., on accowit of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected personal injuries to or death ofpetitioner resulting
from, or alleged to have resulted from, the flu vaccination administered on September 26, 2018,
as alleged by petitioner in a petition for vaccine compensation filed on or about March 12, 2020,
in the United States Court of Federal Claims as petition No. 20-282V.
14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
upon proper notice to the Court on behalfof either or both of the parties.
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15. If the special master fails to issue a decision in completeconfonnity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties'
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise ofthe parties' respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged shoulder
injury or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
& ED~
Maglio, Christopher & Toale Law Finn
1015 15th St., NW, Suite l 125
~lfi_g~A~
Deputy Director
Torts Branch
Washington, DC 20005 Civil Division
Tel: (888) 952-5242 U.S. Department of Justice
Email: lpedrick@mctlaw.com P.O.Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF BEALTII RESPONDENT:
AND HUMAN SERVICES:
George R.
Grimes -S 14
OigltllllyslgnedbyGeorgeR.
Grlmes-S14
Oate:2022.07.29 11:l3:50 -04'00'
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury
Compensation Programs
~ ZZA&:-
Trial Attorney
Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
S600 Fishers Lane, 08N146B Tel: (202) 616-3661
Rockville, MD 20857 E-mail: Kyle.Pozza@usdoj.gov
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