# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 19- 1011 V UNPUBLISHED
S ANDRA BOTTA , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran Filed: November 16, 2021 Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for Petitioner. Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1 

### On July 15, 2019 , Sandra Botta 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 n adv erse reaction in her left shoulder after receiving an influenza vaccine on Septemb er 26, 2018 . Petition at 1, ¶¶ 1, 3 ; Stipulation, fil ed at Nov. 15, 2021 , ¶¶ 1 - 2, 4

. Petitioner further alleges that she received the vaccine in the United States, that she suffered t he residual effects of her in jury for more than six mon ths, and that neither she no r any other party has filed a civil action or received compensation for her injury . Petit ion at ¶¶ 1, 3, 11, 13 ; Stipulation at ¶¶ 3 - 5

. “ Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the flu vaccine caused [P]etitioner ’ s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine
- related injury. ” Stipulation at ¶ 6.

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 f its 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 p ertinent subpara graph of 42 U.S.C. § 300aa (2012 ).2



### Nevertheless, on November 15, 2021 , 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 $50,000.00 in the form of a check payable to P etitioner

. Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld be available under Section 15 (a). Id

. I approve the requested amount for P etitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the 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.IN THE UNITED STA TES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

SANDRA BOTTA, Petitioner,

v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 

### No.19-lOllV Chief Special Master Corcoran ECF

STIPULATION The parties hereby stipulate to the following matters: 1. Sandra Botta ("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 an injury allegedly related to petitioner's receipt of the influema ("Flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. 

### § 100.3(a). 2. Petitioner received the flu vaccine on September 26, 2018. 3. The vaccine was administered in the United States. 4. Petitioner alleges that as a result of receiving the flu vaccine, she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") within the Table timeframe. She further alleges that she suffered the residual effects of her alleged injury for more than six months.

I of55. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her alleged condition. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner's alleged shoulder injury, 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 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)(I ), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $50,000.00, in the form of a check payable to petitioner, which 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)(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 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-l5(g), including State compensation programs, insurance policies, Federal or State

2 of5health 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. 11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, 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 the benefit of petitioner 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 paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in her individua 

### I 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-l0 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 flu vaccine administered on September 26, 2018, as alleged in a Petition filed on July 15, 2019, 

### in the United States Court of Federal Claims as petition No. 19-101 lV.

3 of514. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice of 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 United States 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 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 or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged shoulder lllJUfY, 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

4of5Respectfully submitted, 

### PETIJIONER:
_I /. SA



### ATTORNEY OF RECORD FOR PETITIONER:

Van Cott & Talamante, P 3030 N. Third Street, Suite 790 Phoenix, AZ 85012 Phone: (602) 257-9160 Email: adowning@vancotttalamante.com



### AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: 

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### TAMARA OVERBY, M.D. (,) Acting Director, Division of Injury

Compensation Programs Health Systems Bureau Heahh Resources and Services

Administration U.S. Department of Heahh

and Human Services 5600 Fishers Lane, 08N 

### I46B Rockville, MD 20857

Dated: 

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### AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: 

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# Pe ~ HEATHER L. PEARLMAN Deputy Director T011s Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 

### ATTORNEY OF RECORD FOR RESPONDENT:

## ~~d~~~()**Ly ~**  RONALDA E. 

### KOSH Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 ronalda. kosh@usdoj.gov (202) 616-4476