VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00028
Package ID: USCOURTS-cofc-1_13-vv-00028
Petitioner: Kathleen Olszewski
Filed: 2013-01-14
Decided: 2015-09-17
Vaccine: Tdap
Vaccination date: 2011-05-03
Condition: cellulitis and gastrointestinal symptoms due to antibiotic therapy for her cellulitis
Outcome: compensated
Award amount USD: 50000

AI-assisted case summary:
Kathleen Olszewski filed a petition on January 14, 2013, alleging that a Tetanus-Diphtheria-acellular Pertussis (Tdap) vaccination she received on May 3, 2011 caused her to develop cellulitis and gastrointestinal symptoms as a result of antibiotic therapy administered to treat her cellulitis, with residual symptoms lasting more than six months. Respondent denied that the Tdap vaccine caused or significantly aggravated petitioner's alleged gastrointestinal injuries, denied that she suffered residual effects of cellulitis for more than six months following vaccination, and denied that petitioner's current disabilities are the result of a vaccine-related injury.

Nonetheless, both parties agreed to a joint stipulation filed May 15, 2015 to settle the case. Special Master Moran found the stipulation reasonable and adopted it as the decision of the Court. Petitioner received a lump sum of $50,000.00, representing compensation for all damages available under 42 U.S.C. § 300aa-15(a). Petitioner subsequently applied for attorneys' fees and costs, and Special Master Moran awarded $55,500.00, payable jointly to petitioner and her counsel, John DeFazio of Viola, Cummings and Lindsay, LLP. Petitioner had not personally incurred any out-of-pocket litigation expenses.

Theory of causation field:
TDaP May 3, 2011 → cellulitis + GI symptoms (antibiotic tx). Joint stipulation May 15, 2015; SM Moran. Comp $50,000. Fees $55,500 (DeFazio, Viola Cummings & Lindsay LLP, Niagara Falls NY).

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_13-vv-00028-0
Date issued/filed: 2014-11-10
Pages: 3
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/17/2014) regarding 49 Findings of Fact. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00028-UNJ Document 51 Filed 11/10/14 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
KATHLEEN OLSZEWSKI, *
* No. 13-028V
Petitioner, * Special Master Christian J. Moran
*
v. *
*
SECRETARY OF HEALTH * Filed: October 17, 2014
AND HUMAN SERVICES, *
* Findings of Fact; onset.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
John L. Defazio, Viola Cummings and Lindsay, LLP, Niagara Falls, NY, for
petitioner;
Darry R. Wishard, United States Dep’t of Justice, Washington, DC, for respondent.
Findings of Fact1
Ms. Olszewski alleges that a tetanus vaccination, given on May 13, 2011,
led to her developing irritable bowel syndrome. Although a medical record
documents the vaccination in May 2011, the earliest medical record describing
gastrointestinal problems was created on December 18, 2011, seven months later.
The parties differ regarding when the symptoms associated with irritable
bowel syndrome began. Ms. Olszewski’s position is the onset occurred between
May 26, 2011 and June 7, 2011. The Secretary’s stance is the onset occurred
between November 10, 2011 and December 11, 2011.
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 ruling 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.

Case 1:13-vv-00028-UNJ Document 51 Filed 11/10/14 Page 2 of 3
To resolve the apparent discrepancy between the lack of medical records
created in the latter half of 2011 and Ms. Olszewski’s affidavit, a hearing was held.
Ms. Olszewski and her husband testified. Following the hearing, Ms. Olszewski
filed additional information, including an email to her sister created on June 7,
2011. Exhibit 19.
The parties set forth their positions in briefs filed after the hearing. Thus,
the matter is ready for adjudication according to the established criteria for finding
facts. See Hesse v. Sec'y of Health & Human Servs., No. 13-177V, 2014 WL
2038252, at *1-3 (Fed. Cl. Spec. Mstr. April 22, 2014).
Preponderant evidence establishes that Ms. Olszewski started having
significant gastrointestinal problems, including urgency, soft and messy stools, as
well as gas, on June 1, 2011. The evidence supporting this finding includes:
a. Dr. White’s May 26, 2011 report that does not indicate any problems
with Ms. Olszewski’s gastrointestinal system;
b. Mr. Olszewski’s testimony that his wife’s symptoms started roughly a
week after she returned to their home in Buffalo on May 20, 2011.
Tr. 14-20.
c. Ms. Olszewski’s testimony that her symptoms started between May
20, 2011 and June 1, 2011. Tr. 33, 79, 96.
d. Ms. Olszewski’s June 7, 2011 email to her sister inquiring about
bowel problems.2 Exhibit 19.
Against this evidence, the Secretary primarily points to the November 10,
2011 report of Ms. Olszewski’s gynecologist, Dr. Allen, that appears to indicate
that Ms. Olszewski’s gastrointestinal system was normal. Exhibit 2 at 14.
Although Dr. Allen’s record is valuable, the Secretary’s reliance on this document
is not persuasive. Ms. Olszewski testified that she did not speak to her
gynecologist about gastrointestinal issues. Tr. 56, 88. Furthermore, the details
about Ms. Olszewski’s systems in Dr. Allen’s record from 2011 duplicates his
2 Because Ms. Olszewski produced this email after she testified, she was not questioned
about its origins. The Secretary raised several questions about its genuineness. Ms. Olszewski
demonstrated the authenticity of the email by retaining an information technology specialist who
examined Ms. Olszewski’s computer and attested to its validity as to the date of creation.
Exhibit 26.
2

Case 1:13-vv-00028-UNJ Document 51 Filed 11/10/14 Page 3 of 3
record from 2010. Compare exhibit 2 at 14 with exhibit 2 at 23. This repetition
calls into question the accuracy of some of the information recorded in Dr. Allen’s
computerized medical record.
In short, the better evidence supports a finding between May 26, 2011 and
June 7, 2011. Within this range, June 1, 2011 is selected as the date Ms. Olszewski
started to experience significant gastrointestinal problems.
The parties ARE ORDERED to provide this finding of fact to any expert
whom they retain. An expert’s assumption of any fact that is inconsistent with
these Findings of Fact will not be credited. Burns v. Sec'y of Health & Human
Servs., 3 F.3d 415, 417 (Fed .Cir. 1993) (holding that the special master did not
abuse his discretion in refraining from conducting a hearing when the petitioner’s
expert “based his opinion on facts not substantiated by the record”).
A status conference will be held on Monday, November 3, 2014 at 10:00
A.M. Eastern time. Ms. Olszewski should be prepared to discuss her proposed
next steps for this case.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
3

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_13-vv-00028-1
Date issued/filed: 2015-06-11
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 05/18/2015) regarding 65 DECISION Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00028-UNJ Document 66 Filed 06/11/15 Page 1 of 7
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.

Case 1:13-vv-00028-UNJ Document 66 Filed 06/11/15 Page 2 of 7
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

CCaassee 11::1133--vvvv--0000002288--UUNNJJ DDooccuummeenntt 6646 FFiilleedd 0056//1151//1155 PPaaggee 13 ooff 57
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
KATHLEEN OLSZEWSKI, )
)
Petitioner, ) No. I 3-28V ECF
)
v. ) Special Master Moran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
~~~~~~~~~~~~~~- )
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner, Kathleen Olszewski, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I 0 to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of the tetanus-diphtheria-acellular pertu sis ("Tdap'') vaccine, which is contained in the Vaccine
Injury Table (the "Table"), 42 C.F.R. § I 00.3(a).
2. On May 13, 20 I I, petitioner received the Tdap vaccine.
3. The Tdap vaccine was administered 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 antibiotic therapy for her cellulitis, and that she
experienced symptoms of these injuries for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her alleged injurie .

CCaassee 11::1133--vvvv--0000002288--UUNNJJ DDooccuummeenntt 6646 FFiilleedd 0056//1151//1155 PPaaggee 24 ooff 57
6. 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 after the administration of the vaccine. and
denies that petitioner"s current disabilities are the result 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 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-2 I( 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. This
amount 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 ofj udgment 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)(I), 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.
I 0. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-I 5(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.
2

CCaassee 11::1133--vvvv--0000002288--UUNNJJ DDooccuummeenntt 6646 FFiilleedd 0056//1151//1155 PPaaggee 35 ooff 57
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation. and any amounts
awarded pursuant to paragraph 9 of this Stipulation. will be made in accordance with 42 U.S.C.
§ 300aa-l 5(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, 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 paragraphs 8 and 9, 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. causes of action (including
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 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 Tdap vaccine administered on May 13. 2011, as alleged by
petitioner in a petition for vaccine compensation filed 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 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 conforn1ity with the terms
3

CCaassee 11::1133--vvvv--0000002288--UUNNJJ DDooccuummeenntt 6646 FFiilleedd 0056//1151//1155 PPaaggee 46 ooff 57
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, 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 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.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Tdap vaccine received by petitioner either caused
or significantly aggravated petitioner's alleged gastrointestinal injuries, caused any residual
effects or complications of cellulitis for more than six months after the administration of the
vaccine, or caused any current alleged injury or disability.
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

CCaassee 11::1133--vvvv--0000002288--UUNNJJ DDooccuummeenntt 6646 FFiilleedd 0056//1151//1155 PPaaggee 57 ooff 57
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 SECRET ARY OF HEALTH RESPONDENT:
AND HUMAN SE C
Director, Division of Injury Senior Trial Attorney
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil 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) 616-4357
I;_(_,_5_' (_ ,
5=---- -
Dated: _ _
5

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_13-vv-00028-2
Date issued/filed: 2015-09-17
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 08/10/2015) regarding 71 DECISION Fees Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00028-UNJ Document 73 Filed 09/17/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
KATHLEEN OLSZEWSKI, *
* No. 13-28V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 10, 2015
*
SECRETARY OF HEALTH * Attorneys’ fees and costs; award
AND HUMAN SERVICES, * in the amount to which respondent
* does not object.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
John Defazio, Viola, Cummings and Lindsay, LLP, Niagara Falls, NY, for Petitioner;
Darryl Wishard, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On August 4, 2015, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
informally submitted a motion for attorneys’ fees and costs to respondent for review.
Upon review of petitioner’s application, respondent raised objections to certain items.
Based on subsequent discussions, petitioner amended her application to request
$55,500.00, an amount to which respondent does not object. The Court awards this
amount.
On January 14, 2013, Kathleen Olszewski filed a petition for compensation
alleging that the Tetanus-Diphtheria-acellular Pertussis (“Tdap”) vaccine, which she
received on May 3, 2011, caused her to suffer from cellulitis and gastrointestinal
symptoms due to antibiotic therapy for her cellulitis. Petitioner received
compensation based upon the parties’ stipulation. Decision, issued May 18, 2015.
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 ruling 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.
1

Case 1:13-vv-00028-UNJ Document 73 Filed 09/17/15 Page 2 of 2
Because petitioner received compensation, she is entitled to an award of attorneys’
fees and costs. 42 U.S.C. § 300aa-15(e).
Petitioner seeks a total of $55,500.00 in attorneys’ fees and costs. In
compliance with General Order No. 9, petitioner’s counsel represents that petitioner
has incurred no out-of-pocket litigation expenses while pursuing this claim.
Respondent has no objection to the amount requested for attorneys’ fees and costs.
After reviewing the request, the Court awards the following:
A lump sum of $55,500.00 in the form of a check made payable to
petitioner and petitioner’s attorney, John Defazio, of Viola,
Cummings and Lindsay, LLP, for attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
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