At a CVS Pharmacy in 2017, Amanda Watts was given two shots, one with the Pneumovax 23 vaccine and one with the Boostrix vaccine. According to Watts, both vaccines were negligently administered, in the same improper location in her arm. Watts was eventually diagnosed with a chronic pain condition that can result from nerve injury, which she attributes to CVS’s negligence.
The National Childhood Vaccine Injury Act of 1986 established a National Vaccine Injury Compensation Program (“VIC Program”) as an alternative to traditional civil litigation for resolving certain vaccine-related claims. 42 U.S.C. § 300aa-10 et seq. Boostrix, which protects against tetanus, diphtheria, and pertussis, is a covered vaccine under the Act. § 300aa-14(a); 42 C.F.R. § 100.3(a). Pneumovax 23, which protects against pneumococcal disease, is not. 42 C.F.R. § 100.3(a).
Under the Vaccine Act, a person seeking damages of more than $1,000 for an alleged injury resulting from the administration of a covered vaccine must exhaust their remedies under the VIC Program before suing a vaccine administrator, like CVS, in state or federal court. 42 U.S.C. § 300aa-11(a)(2)(A). To proceed under the VIC Program, a
claimant files a petition with the United States Court of Federal Claims. § 300aa11(a)(1). Petitions alleging injury but not death must be filed within three years after the first symptom of the alleged injury.
The United States Court of Appeals for the Fourth Circuit stated in its July 1, 2025 published opinion: “The plaintiff in this case, Amanda Watts, did not exhaust her remedies under the VIC Program for any injury stemming from the Boostrix shot she received at CVS in 2017. That has important consequences for this case. Even if CVS was negligent in its administration of Watts’s Boostrix shot, Watts may not recover damages for that negligence. Instead, CVS is effectively immune from suit for its administration of Boostrix, and Watts may hold CVS liable only for injury caused by CVS’s allegedly improper administration of Pneumovax.”
Nonetheless, the federal appellate court stated: “there is no evidence as to the order in which the shots were given, and thus no way to determine causation … there is no evidence tying one or the other of Watts’s shots to the inflammation at the injection site, as the district court noted … we agree with the district court that because Watts has not provided evidence from which a jury could conclude which of her two vaccine shots – one actionable, one not – caused her injuries, she cannot proceed with her case. For the reasons given above, we affirm the judgment of the district court.”
If you or a loved one suffered harm that may be due to a vaccine, you should promptly contact a vaccine injury lawyer who may investigate your vaccine injury claim for you and represent you or your loved one in a vaccine injury claim, if appropriate.
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