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

******************** *
KIMBERLY BOWMAN,                    *
                                    *      No. 13-807V
                 Petitioner,        *      Special Master Christian J. Moran
                                    *
v.                                  *      Filed: August 29, 2014
                                    *
SECRETARY OF HEALTH                 *      Stipulation; influenza (“flu”)
AND HUMAN SERVICES,                 *      vaccine; shoulder injury related to
                                    *      vaccine administration (“SIRVA”);
                 Respondent.        *      attorneys’ fees and costs
*********** ********* *
Andrew D.Downing, Hennelly & Steadman, P.C., Phoenix, AZ, for Petitioner;
Gordon E. Shemin, United States Dep’t of Justice, Washington, DC, for
Respondent.
                        UNPUBLISHED DECISION1

       On August 25, 2014, the respondent filed a joint stipulation concerning the
petition for compensation filed by Kimberly Bowman. In her petition, Ms.
Bowman alleges that the influenza (“flu”) vaccination, which she received on
October 20, 2010, caused her to suffer a shoulder injury. Ms. Bowman seeks
compensation pursuant to the National Childhood Vaccine Injury Compensation
Program, 42 U.S.C. §§ 300aa-10 through 34 (2006).
       In her June 16, 2014 Rule 4 (c) report, respondent conceded that Ms.
Bowman’s claim is compensable under the Act. Soon thereafter, the undersigned
ruled that Ms. Bowman is entitled to compensation. Ruling, issued June 17, 2014.

      The parties agree to the joint stipulation, attached hereto as Appendix A.
The undersigned finds said stipulation reasonable and adopts it as the decision of


       1
         The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
the Court in awarding damages and attorneys’ fees and costs, on the terms set forth
therein.

        Compensation awarded in that stipulation includes:

        A. A lump sum of $325,000.00 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); and

        B. A lump sum of $12,634.27 in the form of a check payable jointly to
           petitioner and petitioner's attorney, Andrew D. Downing, for
           attorney's fees and costs available under 42 U.S.C. § 300aa-15(e). In
           compliance with General Order #9, petitioner incurred no out-of-
           pocket litigation expenses in proceeding on the petition.

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 13-807V according to this decision
and the attached stipulation.

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.

        IT IS SO ORDERED.

                                              s/Christian J. Moran
                                              Christian J. Moran
                                              Special Master




                                          2
       Case 1:13-vv-00807-UNJ Document 29 Filed 08/25/14 Page 1 of 5




                  IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                            OFFICE OF SPECIAL MASTERS


                                               )
KIMBERLY BOWMAN,                               )
                                               )
               Petitioner,                     )       No. 13-807V
                                               )       Special Master Moran
       v.                                      )       ECF
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES                                 )
                                               )
               Respondent.                     )


                                            STIPULATION

       The parties hereby stipulate to the following matters:

        1. 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 the influenz.a ("flu")

vaccine, which vaccine is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. §

100.3(a).

       2. Petitioner received the flu vaccination on or about October 20, 2010.

       3. The vaccine was administered within the United States.

       4. Petitioner suffered a shoulder injury related to vaccine administration (SIRVA). This

includes, but is not limited to, petitioner's tendonitis, adhesive capsulitis, and disorders of the

bursea and tendons in her shoulder region.

       5. Petitioner experienced the residual effects of her injury for more than six months.

       6. There is not a preponderance of evidence demonstrating that petitioner's condition is

due to a factor unrelated to vaccination.
        Case 1:13-vv-00807-UNJ Document 29 Filed 08/25/14 Page 2 of 5




        7. Petitioner represents that there has been no prior award or settlement of a civil action

for damages as a resuh of her condition.

        8. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act

for her SIRVA. Therefore, a decision should be    entere~   awarding the compensation described in

Paragraph 9 of this stipulation.

        9. 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)(l), the Secretary ofHeahh and Human Services will issue

the following vaccine compensation payments:

        a.    A lump sum of $325,000.00 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); and

        b.      A lump sum of $12,634.27 in the form of a check payable jointly to petitioner and
        petitioner's attorney, Andrew D. Downing, for attorney's fees and costs available under
        42 U.S.C. § 300aa-15(e). In compliance with General Order #9, petitioner incurred no
        out-of-pocket litigation expenses in proceeding on the 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-15(g), including State compensation programs, insurance policies,

Federal or State heahh benefits programs (other than Title XIX of the Social Security Act (42

U.S.C. § 1396 et seq.)), or by entities that provide heahh services on a pre-paid basis.

        11. Payments made 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 unreimbursable expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a


                                                  2
       Case 1:13-vv-00807-UNJ Document 29 Filed 08/25/14 Page 3 of 5




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 9, petitioner, in her individual

capacity, and on behalf of his heirs, executors, administrators, successors and/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-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 flu vaccine administered on or about October 20, 2010 as

alleged by petitioner in a petition for vaccine compensation filed on or about October 17, 2013,

in the United States Court of Federal Claims as petition No. 13-807V.

        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 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. There is absolutely

no agreement on the part of the parties hereto to make any payment or to do any act or thing



                                                  3
       Case 1:13-vv-00807-UNJ Document 29 Filed 08/25/14 Page 4 of 5




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

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

                                    END OF STIPULATION




                                                 4
  Case 1:13-vv-00807-UNJ Document 29 Filed 08/25/14 Page 5 of 5




Respectfully submitted,

PETITIONER:




ATTORNEY OF RECORD FOR
PETITIONER:



!\ DREW D. DOWNIN
Van Cott & TaJamante, PLLC                        Deputy Director
2025 N. Third Street                              Torts Branch
Suite 260                                         Civil Division
Phoenix, AZ 85004                                 U.S. Department of Justice
(602) 257-9160                                    P.O. Box 146
                                                  Benjamin Franklin Station
                                                  Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                         ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                        RESPONDENT:
AN~VICES:


A. MELISSA HOUSTON, M.D., M.P.H,FAAP                     ONSH
Acting Director, Division of Vaccine              Trial Attorney
Injury Compensation (DVIC), Acting Director       Torts Branch
Countermeasures Injury Compensation               Civil Division
Program (CICP)                                    U.S. Department of Justice
Heahhcare Systems Bureau, U.S. Department         P.O. Box 146
Of Health and Human Services                      Benjamin Franklin Station
5600 Fishers Lane                                 Washington, DC 20044-0146
Park1awn Building, Mail Stop llC-26               (202) 616-4208
Rockville, MD 20857




                                              5




                          l
                           ~--iJI