Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: January 5, 2021
* * * * * * * * * * * * *
GENEVIEVE COSTABILE, * UNPUBLISHED
*
Petitioner, * No. 19-578V
*
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation; Influenza (Flu);
AND HUMAN SERVICES, * Brachial Plexopathy.
*
Respondent. *
* * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Lynn C. Schlie, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION!
On April 17, 2019, Genevieve Costabile (“petitioner”) filed a petition for compensation
within the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). The petition
seeks compensation for injuries allegedly related to petitioner’s receipt of an influenza (flu)
vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §
100.3(a).
Petitioner received a flu vaccine on September 18, 2017. The vaccine was administered
within the United States. Petitioner alleges that she suffered a left brachial plexopathy as a result
of receiving the flu vaccine and that she experienced the residual effects of this injury for more
than six months.
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http:/Avww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the Court with a proposed
redacted version of the opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. [d.
> The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
On January 5, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 31). Respondent denies that
petitioner sustained a left brachial plexopathy following the flu vaccination and further denies
that the vaccine caused petitioner to suffer any other injury or her current condition. /d. at ] 6.
Maintaining their respective positions, the parties nevertheless now agree that the issues between
them shall be settled and that a decision should be entered awarding compensation according to
the terms of the stipulation attached hereto as Appendix A. /d. at {7.
The stipulation awards:
1) A lump sum of $46,258.78 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-15(a). I adopt the stipulation as the decision of the Court and hereby award
compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court
SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT ISSO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
GENEVIEVE COSTABILE, )
)
Petitioner, )
) No. 19-578V
V. ) Special Master Gowen
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Genevieve Costabile, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 ef seq. (the “Vaccine
Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt
of an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3(a).
2. Petitioner received a flu vaccine on September 18, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a left brachial plexopathy as a result of receiving
the flu vaccine, and that she experienced the residual effects of this 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 left brachial plexopathy following the flu
vaccination, and further denies that the vaccine caused petitioner to suffer 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 of this Stipulation.
8. As soon as practicable after an entry of judgment 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)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $46,258.78 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-15(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-21(a)(1), 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 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.
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-
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, and past unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for petitioner’s benefit as contemplated by a strict
construction of 42 U.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. §§
300aa-15(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. § 300 aa-10 ef seg., 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, the flu vaccination administered on September 18, 2017,
as alleged by petitioner in a petition for vaccine compensation filed on or about April 17, 2019,
in the United States Court of Federal Claims as petition No. 19-578V.
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. Ifthe 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 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.
17. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that the flu vaccine caused petitioner’s
left brachial plexopathy or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER: