In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0314V
PAMELA CAVANAUGH, Chief Special Master Corcoran Petitioner, v. Filed: November 25, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On March 22, 2022, Pamela Cavanaugh filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received in her right deltoid on October 5, 2020. Petition at 1; Stipulation, filed at November 25, 2024, ¶¶ 1-4. Petitioner further alleges that she suffered the residual effects of the vaccine injury for more than six months. Petition at 1; Stipulation at ¶4. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injuries, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶6.
Nevertheless, on November 25, 2024, 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.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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. 2 National 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 (2018). Pursuant to the terms stated in the attached Stipulation, I award the following compensation:
A lump sum of $35,000.00, 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
3 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
************************************* PAMELA CAVANAUGH, * * * Petitioners, * No. 22-314V * Chief Special Master Corcoran V. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * *************************************
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner filed a petit ion for vaccine compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa- IO 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 a flu immunization in her right shoulder on October 5, 2020.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a shoulder injury re lated to vaccine
administration ("SIRVA") within the time period set forth in the Table. She further alleges that
she has experienced residual effects of her injury for more than six months.
5. 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 the
flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her
current condition is a sequelae of a vaccine-related injury.
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 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent
with the terms of this Stipulation, and afte r petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-2 I(a)( I), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $35,000.00 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- I5(a).
9. As soon as practicable after the entry of judgment 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-2 I (a)(I ), 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.
I0. 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- I5(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.
2 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300a
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0314V
PAMELA CAVANAUGH, Chief Special Master Corcoran Petitioner, v. Filed: November 25, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On March 22, 2022, Pamela Cavanaugh filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received in her right deltoid on October 5, 2020. Petition at 1; Stipulation, filed at November 25, 2024, ¶¶ 1-4. Petitioner further alleges that she suffered the residual effects of the vaccine injury for more than six months. Petition at 1; Stipulation at ¶4. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injuries, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶6.
Nevertheless, on November 25, 2024, 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.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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. 2 National 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 (2018). Pursuant to the terms stated in the attached Stipulation, I award the following compensation:
A lump sum of $35,000.00, 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
3 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
************************************* PAMELA CAVANAUGH, * * * Petitioners, * No. 22-314V * Chief Special Master Corcoran V. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * *************************************
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner filed a petit ion for vaccine compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa- IO 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 a flu immunization in her right shoulder on October 5, 2020.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a shoulder injury re lated to vaccine
administration ("SIRVA") within the time period set forth in the Table. She further alleges that
she has experienced residual effects of her injury for more than six months.
5. 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 the
flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her
current condition is a sequelae of a vaccine-related injury.
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 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent
with the terms of this Stipulation, and afte r petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-2 I(a)( I), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $35,000.00 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- I5(a).
9. As soon as practicable after the entry of judgment 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-2 I (a)(I ), 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.
I0. 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- I5(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.
2 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(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, the money provided pursuant to this Stipulation
will be used solely for the benefit of petitioner as contemplated by a strict construction of 42
U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- I 5(g) and (h).
13. In return for the payments described in paragraphs 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 of services, 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 account of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, a flu vaccination administered on October 5, 2020, as
alleged by petitioner in a petition for vaccine compensation filed on or about March 22, 2022, in
the United States Court of Federal Claims as petition No. 22-314V.
14. If petitioner should die prior to entry of judgment, this agreement shall be
voidable upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the
terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity
3 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 of the 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.
I 7. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that petitioner sustained a SI RV A Table injury; that the
flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; or that her current
condition is a sequela of a vaccine-related 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
I I I I I I I I I I I I
4 Respectfully submitted,
PETITIONER:
<;)(J.,rnf/ja GH
ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE
vv- FOR PETITIONER: OF THE ATTORNEY GENERAL:
KATHLEEN M. LOUCKS ~ ~ Y- t?e,,JJvVL--- HEATHER L. PEARLMAN Lommen Abdo, P.A. Deputy Director 920 Second Avenue South, Suite 1000 Torts Branch Minneapolis, MN 55402 Civil Division (612) 336-9348 U.S. Department of Justice kloucks@ lommen.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s. Digitally signed by
Beac h -S _ Jeffrey S. Beach -S Date: 2024.10.29 os:os:oo -04•00· tor /.)~ CAPT GEORGE REED GRIMES, MD, MPH DE BRA A. FILTEAU BEGLEY Director, Division of Injury Senior Trial Attorney Compensation Programs 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 5600 Fishers Lane, 08W-25A Tel: (202) 616-4181 Rockville, MD 20857 Email: debra.begley@usdoj.gov
Dated: 11 / Z-<;:/ 10 L~