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

***************** ***
KATHLEEN OLSZEWSKI,      *                           No. 13-028V
                         *                           Special Master Christian J. Moran
             Petitioner, *
v.                       *                           Filed: May 18, 2015
                         *
SECRETARY OF HEALTH      *                           Stipulation; Tetanus-Diphtheria-
AND HUMAN SERVICES,      *                           acellular Pertussis (“Tdap”) vaccine;
                         *                           cellulitis; gastrointestinal symptoms.
             Respondent. *
********************

John DeFazio, Viola, Cummings & Lindsay, LLP, Niagara Falls, NY, for
Petitioner;
Darryl Wishard, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                              UNPUBLISHED DECISION1

       On May 15, 2015, respondent filed a joint stipulation concerning the petition
for compensation filed by Kathleen Olszewski on January 14, 2013. In her
petition, Ms. Olszewski alleged that the Tetanus-Diphtheria-acellular Pertussis
(“Tdap”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. §100.3(a), and which she received on May 3, 2011, caused her to suffer
from cellulitis and gastrointestinal symptoms due to antibiotic therapy for her
cellulitis. Petitioner further alleges that she experienced symptoms of these
injuries for more than six months. Petitioner represents that there has been no prior
award or settlement of a civil action for damages as a result of her alleged injuries.

      Respondent denies that the Tdap vaccine either caused or significantly
aggravated petitioner’s alleged gastrointestinal injuries, denies that she suffered
from the residual effects or complications of cellulitis for more than six months

       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 party has 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.
after the administration of the vaccine, and denies that petitioner’s current
disabilities are the result of a vaccine-related injury.

      Nevertheless, 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 the Court in awarding damages, on the terms set forth therein.

        Damages awarded in that stipulation include:

        A lump sum of $50,000.00 in the form of a check payable to petitioner,
        Kathleen Olszewski. This amount represents compensation for all
        damages that would be available under 42 U.S.C. § 300aa-15(a).

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 13-028V according to this decision
and the attached stipulation.2

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.

        IT IS SO ORDERED.

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




        2
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.

                                                2
       Case 1:13-vv-00028-UNJ Document 64 Filed 05/15/15 Page 1 of 5




                IN THE UNITED STATES COURT OF FEDERAL CLAIM S
                          OFFICE OF SPECIAL MASTERS

                                                )
KATHLEEN OLSZEWS KI,                            )
                                                )
                     Petitioner,                )       No. I 3-28V    ECF
                                                )
                v.                              )       Special Master Moran
                                                )
SEC RETA RY OF HEA LTH                          )
AND HUMAN SERVICES,                             )
                                                )
                 Respondent.                    )
~~~~~~~~~~~~~~-                                 )
                                           STIPULATION

       The parties hereby stipulate to the fo llowing matters:

        I.   Petitioner, Kath leen Olszewsk i, fil ed a petit ion fo r vaccine compensation under the

National Vaccine Injury Compensati on Program, 42 U.S.C. § 300aa-I 0 to 34 (the "Vacci ne

Program "). The petition seeks compensation fo r injuries allegedly related to petitioner's receipt

of the tetanus-diphtheri a-acellular pertu sis ("Tdap'') vaccine, which is contained in the Vacci ne

Injury Tab le (the "Table"), 42 C.F.R. § I00.3(a).

       2. On May 13, 20 I I, peti tioner received the Tdap vaccine.

        3.   The Tdap vacc ine was admin istered within the United States.

       4.    Petitioner alleges that, as a result of receiving the Tdap vaccine, she suffered from

cellulitis and gastrointestinal symptoms due to anti biotic therapy for her cellu litis, and that she

experienced symptoms of these injuries for more than six months.

        5.   Petitioner represents that there has been no pri or award or settl ement of a civi l action

for damages as a result of her alleged injurie .
         Case 1:13-vv-00028-UNJ Document 64 Filed 05/15/15 Page 2 of 5




        6.    Respondent denies that the Tdap vacc ine either caused or significantl y aggravated

petitioner's alleged gastrointestinal injuries, denies that she suffered from the residual effects or

com plications of ce llulitis for more than six month s after the ad ministration of the vaccine. and

denies that petiti oner" s current disabilities are the result of a vaccine-related injury.

        7.    Maintaining their above-stated pos itions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered awardin g the

compensation described in paragraph 8 of this Stipulat ion.

        8.    As soon as practi cab le after an entry of judgment reflecting a decision consistent

with the term s of this Stipulation, and after petitioner has filed an election to receive

compensat ion pursuant to 42 U.S.C. § 300aa-2 I(a)( I), the Secretary of Health and Human

Services will issue the fo llowing vacc ine compensation payment:

                 A lump sum of $50,000.00, in the form of a check payable to petitioner. Thi s
                 amount represents compensation for all damages that would be available under 42
                 U.S.C. § 300aa-1 5(a).

        9.    As soon as practicable after th e entry of judgment on entitlement in this case, and

after petitioner has fil ed both a proper and timely election to rece ive compensation pursuant to

42 U.S .C. § 300aa-21(a)( I), and an application, the parties will submit to furth er proceed in gs

before the spec ial master to award reasonable attorneys· fees and costs incurred in proceeding

upon thi s petition.

        I0.    Petitioner and her attorney represent that compensation to be provided pursuant to

thi s Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa- I5(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, insurance po licies, Federal or

State health benefits programs (other than T itle XIX of the Soc ial Security Act (42 U.S.C.

                                                    2
           Case 1:13-vv-00028-UNJ Document 64 Filed 05/15/15 Page 3 of 5



§ 1396 et seq.)), or by entities that provide health services on a pre- paid basis.

        11.    Payment made pursuant to paragraph 8 of thi s Stipulation. and any amo unts

awarded pursuant to paragraph 9 of thi s Stipulation. will be made in accordance with 42 U.S.C.

§ 300aa-l 5(i), subject to the avail ability of sufficient statutory fu nds.

        12.    The parties and their attorneys furth er agree and stipulate that. except fo r any award

fo r attorneys· fees and litigation costs, the money provided pursuant to thi s Stipulation will be

used solely for the benefi t of petitioner. as contempl ated by a strict construction of 42 U.S.C.

§ 300aa- 15(a) and (d), and subj ect to the conditi ons of 42 U.S.C. § 300aa-1 5(g) and (h).

        13.    In return for the payments described in paragraphs 8 and 9, petitioner. in her

indi vidual capacity and on behalf of her heirs. executors. administrators. successors or assigns.

does forever irrevocab ly and unconditionally release, acquit and di scharge the United States and

the Secretary of Health and Human Services from any and all acti ons. causes of acti on (i ncluding

agreements, judgments, claims, damages. loss of services, expenses and all demands or whatever

kind or nature) that have been brought. could have been brought, or could be timely brought in

the Co urt of Federal Claims, under the Nati onal Vacc ine Injury Compensation Program. 42

U.S.C. § 300aa-1 0 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 resu lting from. or

alleged to have resulted from, the Tdap vaccine administered on May 13. 20 11, as alleged by

petitioner in a petition fo r vaccine compensation fi led on or about January 14. 2013. in the

United States Court of Federal Claims as petition No. l 3-28V.

        14.    If petitioner should die prior to entry of judgment. this agreement shall be vo idable

upon proper notice to the Court on behalf of either or both of the parties.

         15.   If the special master fails to issue a dec ision in compl ete conforn1ity with the terms

                                                     3
        Case 1:13-vv-00028-UNJ Document 64 Filed 05/15/15 Page 4 of 5




of this Stipul ation or if the Court of Federal Claim s fails to enter judgment in conformity with a

decision that is in complete conformity with the terms of thi s Stipulation, then the parties·

settlement and this Stipulation shall be voidab le at the so le discretion of either party.

        16.   Thi s Stipu lati on expresses a full and complete negotiated settlement of li ability and

damages claimed under the National Childhood Vaccine Inju ry Act of 1986, as amended, except

as otherwise noted in paragraph 9 above.      There is abso lutely no agreement on the part of the

parties hereto to make any payment or to do any act or th ing other than is herein ex pressly stated

and clearl y agreed to.   The parti es 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 rev ise this agreement.

        17. Th is Stipulation shall not be construed as an admi ssion by the United States or the

Secretary of Health and Human Services that the Tdap vaccine received by petitioner either caused

or significantl y aggravated petitioner's alleged gastrointestinal injuries, caused any residual

effects or complications of celluliti s for more than six months after the admini strat ion of the

vaccine, or caused any current alleged injury or disabi lity.

        18. 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-00028-UNJ Document 64 Filed 05/15/15 Page 5 of 5




Respectfully submitted,

PETITIONER:

                                       c




ATTORNEYOFRECORDFOR                            AUTHORIZED REPRESENTATIVE
PETITIONER:                                    OF THE ATTORNEY GENERAL:
                                               ~j.~~
                                               ~~LL_
                                                   CENT J. MATANOSKT
Vio • Cummings & L nd                          Deputy Director
770 Main Street                                Torts Branch
Niagara Falls, NY 14301                        Civil Division
(716) 285-9555                                 U.S. Department of Justice
                                               P.O. Box 146
                                               Benjamin Franklin Station
                                               Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                      ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                     RESPONDENT:
AND HUMAN SE   C




Director, Division of Injury                   Senior Trial Attorney
  Compensation Programs (DICP)                 Torts Branch
Healthcare Systems Bureau                      C ivil Division
U.S. Department of Health and                  U.S. Department of Justice
  Human Services                               P.O. Box 146
5600 Fishers Lane                              Benjamin Franklin Station
Parklawn Building, Mail Stop 11 C-26           Washington, DC 20044-0146
Rockville, MD 20857                            (202) 6 16-4357


Dated: _   I;_(_,_5'_(_,5=---- -
           _



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