Cummings v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-2003V

MAUREEN CUMMINGS, Chief Special Master Corcoran

Petitioner, Filed: March 4, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jessica Anne Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On November 17, 2023, Maureen Cummings 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”) resulting from meningitis vaccinations administered on August 10, 2022. Petition at 1-6; Stipulation, filed March 3, 2025, at ¶¶ 2-4. Petitioner further alleges that the vaccines were administered in the United States, her vaccine related injuries have lasted for more than six months, and neither Petitioner, nor any other party, has ever brought an action, or received compensation in the form of an award or settlement, for Petitioner’s vaccine-related injuries. Petition at ¶¶ 1, 15, 18, 19; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that petitioner’s alleged shoulder injury or its residual effects was caused-in-fact by the meningococcal vaccines; and denies that the meningococcal vaccines caused petitioner any other injury or petitioner’s current condition.” Stipulation at ¶ 6. 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). Nevertheless, on March 3, 2025, 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 $10,000.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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

MAUREEN CUMMINGS,

Petitioner,

v. No. 23-2003V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

STIPULATION

The parties hereby stipulate to the following matters:

I. Maureen Cummings ("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 a meningococcal vaccine and a meningococcal B vaccine, which are vaccines contained in the

Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a)

2. Petitioner received a meningococcal vaccine and a meningococcal B vaccine on

August I0, 2022.

3. The vaccines were administered within the United States.

4. Petitioner alleges that petitioner suffered a shoulder injury related to vaccine

administration ("SIRVA") that was caused-in-fact by the meningococcal vaccines. Petitioner

further alleges that petitioner suffered the residual effects of the alleged 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 petitioner's behalf as a result of the alleged injury.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that

petitioner's aJleged shoulder injury or its residual effects was caused-in-fact by the

meningococcal vaccines; and denies that the meningococcal vaccines caused petitioner any other

injury or petitioner's 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 of this 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-2J(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment for all damages that would be available under 42

U.S.C. § 300aa-15(a):

A lump sum of$10,000.00 to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prompt disbursement to petitioner.

This amount represents compensation for all damages that would be available

under 42 U.S.C. § 300aa-l 5(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.

2 I0. Petitioner and petitioner's 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-l 5(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.

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 attorney's 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 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-l 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's

individual capacity, and on behalf of petitioner's 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 0 et 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

3 petitioner resulting from, or alleged to have resulted from, the meningococcal vaccines

administered on August 10, 2022, as alleged in a petition for vaccine compensation filed on or

about November 17, 2023, in the United States Court of Federal Claims as petition No. 23-

2003V.

14. If petitioner should die prior to entry ofjudgment, 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 confonnity with the tenns

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 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.

I7. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the meningococcal vaccines caused petitioner's

alleged injury or any other injury or petitioner's current disabilities.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors. and/or assigns.

4 END OF STIPULATION

Respectfully submitted,

PETITIONER:

MAUREEN CUMMINGS

AITORNEY OF RECORD EQIR---, AUTHORIZED REPRESENTATIVE PETITIONER: OF THE AITORNEY GENERAL:

~ ~ ' ! J . . P-u,L:VC::-- HEATHER L. PEARLMAN mctlaw / Deputy Director 1325 4th Ave., Suite 1730 Torts Branch Seattle, WA 98101 Civil Division 888-952-5242 U.S. Department of Justice jolins@mctlaw.com P.O. Box 146 Benjam in Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE AITORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by Jeffrey Jeffrey S. S. Beach-S Beach -5 -os·oo· Date:2025.02.20 11 :18:07 for CAPT GEORGE REED GRIMES, MD, MPH THERINE ED ARDS Director. Division of Injury 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 202-742-6374 Rockville, MD 20857 Katherine.Edwards2@usdoj.gov

Dated: ~ ,), ~