Sn the Cunited States Court of Federal Clans
OFFICE OF SPECIAL MASTERS
Filed: March 3, 2021
KATHRYN CUMMINGS, *
* No. 18-195V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Damages; Stipulation;
AND HUMAN SERVICES, * Tetanus-Diphtheria-acellular
* Pertussis (Tdap); Shoulder Injury
Respondent. * Related to Vaccine Administration
* * * * * * * * * * * * *
(SIRVA).
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, for petitioner.
Julia M. Collison, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION!
On February 7, 2018, Kathryn Cummings (“petitioner”), filed a petition for compensation
in the National Vaccine Injury Compensation Program.” Petitioner alleged that as a result of a
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on May 18, 2017, she suffered a right
shoulder injury related to vaccine administration (“SIRVA”) with onset of pain within forty-eight
(48) hours, constituting an injury listed on the Vaccine Injury Table. Petition (ECF No. 1).
On October 6, 2020, I issued formal Findings of Fact that petitioner received the Tdap
vaccination in her right arm and that the onset of petitioner’s right shoulder pain was within 48
hours thereafter. Findings of Fact (ECF No. 64). On October 19, 2020, respondent filed his
amended Rule 4(c) report in which he stated that petitioner had otherwise satisfied the criteria set
forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation (“QAI”) for
' 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. Id.
> 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-10 to 34 (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.
SIRVA. Resp. Report (ECF No. 65) at 2. That same day, I issued a Ruling on Entitlement (ECF
No. 66).
On March 2, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 75). While maintaining their
respective positions, the parties now agree that a decision should be entered awarding the
compensation described in paragraph 6 of the stipulation, which is attached hereto as Appendix
A. Id. at {§[ 5-6.
The stipulation awards a lump sum of $85,000.00 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-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
)
KATHRYN CUMMINGS, ) No. 18-195V
) Special Master Gowen
Petitioner, ) ECF
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Kathryn 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 tetanus/diphtheria/acellular pertussis (““Tdap”) vaccine, which vaccine is contained in the
Vaccine Injury Table (the “Table’”’), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Tdap vaccine on May 18, 2017.
3. The vaccination was administered within the United States.
4. On October 19, 2020, the Special Master issued a Ruling on Entitlement,
incorporating his October 6, 2020 findings of fact, concluding that petitioner is entitled to
compensation for a right-sided shoulder injury related to vaccine administration (“SIRVA”).
Respondent continues to maintain his contrary position, but will not seek review of the Special
Master’s determination of entitlement upon its memorialization as a reviewable decision.
5. The parties now agree that a decision should be entered awarding the compensation
described in paragraph 6 of this Stipulation.
6. 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 $85,000.00, 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-I 5(a) for injuries allegedly related to petitioner’s receipt of the Tdap
vaccine.
7. 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.
8. Petitioner and her attorney represent that they have identified to respondent all known
sources of payment for items or services for which the Program is not primarily liable under 42
U.S.C. § 300aa-15(g), including 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 entities that provide health services on a pre-paid basis.
9. Payments made pursuant to paragraph 6 and any amounts awarded pursuant to
paragraph 7 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject
to the availability of sufficient statutory funds.
10. 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-1 5(g) and (h).
11. In return for the payments described in paragraphs 6 and 7, 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 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 petitioner resulting
from, or alleged to have resulted from, the Tdap vaccination administered on May 18, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about February 7, 2018,
in the United States Court of Federal Claims as petition No. 18-195V.
12. 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.
13. 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.
14. 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 7 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.
15. 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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Respecttully subimitted,
PETIVIONER:
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ATTORNEY OF RECORD FOR
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LAW OPPICES OF LE AHN
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Washington, DC 206
Tel tod) 778.9200
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DURANT PLLC
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUE MIAN SERVICES:
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Bp 2 iether, 6 ~o2
TAMARA ONERBY
Acuag Director, Division of Iniury
Compensation Programs
Healthcare Svstems Bureau
CS Department ef Flealth
and Human Services
S000 Fishers Lane
Val Stop €sN [468
Recksille. MID 20887
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AL PHORIZED REPRESENTATIVE
OF THE AP LORNEY GENERAL:
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HEATHER EL PEARLATAN
Aching Deputy Director
forts Branch
Civil Divisten
US) Department ef Jusuce
PO Box l4o
Bentamin branklin Statin
Washington, DC 2044-0} 46
ATTORNEY OF RECORD FOR
RESPONDENT:
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JULIA led COLLISON
Trial \tornes
Lorts Bignch
Cavih Disasten
COS Department of Justice
PO Bon [4o
Benjonin Prankla Staten
Washingten, DO Jags to
Teb (202) 308-0}02
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