VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00418
Package ID: USCOURTS-cofc-1_21-vv-00418
Petitioner: Valerian Kostka
Filed: 2021-01-08
Decided: 2024-07-11
Vaccine: influenza
Vaccination date: 2019-09-19
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 67500

AI-assisted case summary:
On January 8, 2021, Ellen M. Lucey, as personal representative of the Estate of Valerian Kostka, filed a petition for compensation under the National Vaccine Injury Compensation Program. The petition alleged that Mr. Kostka, who was 85 years old at the time, suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on September 19, 2019. Mr. Kostka passed away on December 19, 2021, from unrelated causes including bladder cancer, chronic obstructive pulmonary disease, and type II diabetes mellitus. The respondent, the Secretary of Health and Human Services, filed a report opposing compensation, arguing that the petitioner could not meet the "severity" requirement and that Mr. Kostka's pain did not occur within 48 hours of vaccination. Petitioner filed a motion for a ruling on the record in favor of the claim, which respondent opposed. On May 2, 2024, Chief Special Master Brian H. Corcoran issued a ruling on entitlement, finding that Mr. Kostka had established that he suffered the residual effects of his injury for more than six months and met the criteria for a Table SIRVA. The ruling noted that Mr. Kostka had no prior history of left shoulder issues, that his pain onset was sufficiently linked to the vaccination, that the pain was limited to his left shoulder, and that no other condition explained his symptoms. The public decision does not describe the specific onset symptoms, diagnostic studies, or treatments beyond physical therapy and steroid injections. On July 11, 2024, Chief Special Master Corcoran issued a decision awarding damages. Based on a proffer filed by the respondent on July 2, 2024, to which the petitioner agreed, Mr. Kostka's estate was awarded a lump sum payment of $67,500.00. Petitioner's counsel was Maximillian J. Muller of Muller Brazil, LLP, and respondent's counsel was Lauren Kells of the U.S. Department of Justice.

Theory of causation field:
Valerian Kostka, age 85, received an influenza vaccine on September 19, 2019. He alleged a shoulder injury related to vaccine administration (SIRVA). The Special Master found that Mr. Kostka met the criteria for a Table SIRVA. This included no prior history of left shoulder pain or dysfunction, onset of pain within 48 hours of vaccination (despite initial reports of pain starting four days later, the Special Master found this sufficient given the circumstances and consistent reporting of the vaccine as the cause), pain limited to the left shoulder, and no other condition explaining the symptoms. The injury was found to have residual effects for more than six months, with pain reported between September 24, 2019, and March 13, 2020, with mild pain levels by the latter date. A gap in physical therapy treatment was attributed to the COVID-19 pandemic. Mr. Kostka passed away from unrelated causes on December 19, 2021. The theory of causation was based on the Vaccine Injury Table for SIRVA. No specific medical experts were named in the public decision. The award was $67,500.00 as a lump sum payment to his estate, as agreed upon by the parties. The ruling on entitlement was issued on May 2, 2024, and the decision awarding damages was issued on July 11, 2024. Petitioner's counsel was Maximillian J. Muller, and respondent's counsel was Lauren Kells. Chief Special Master Brian H. Corcoran presided.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00418-0
Date issued/filed: 2024-06-06
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/02/2024) regarding 45 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-418V
UNPUBLISHED
ELLEN M. LUCEY, personal Chief Special Master Corcoran
representative of the Estate of
VALERIAN KOSTKA, Filed: May 2, 2024
Petitioner, Special Processing Unit (SPU);
v. Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA); Six Month
HUMAN SERVICES, Severity Requirement
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 8, 2021, Valerian Kostka filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). The Petition alleges that Mr. Kostka suffered a shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered
on September 19, 2019. Petition at 1-2.
For the reasons discussed below, I find Petitioner has established that Mr. Kostka
suffered the residual effects of his injury for more than six months.
1 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 fits 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 pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 2 of 10
I. Procedural History
Mr. Kostka filed this matter on January 8, 2021. On December 19, 2021, Mr. Kostka
passed away, and Ellen M. Lucey was thereafter designated as personal representative
of his estate. Ex. 13, 14, ECF Nos. 34, 35.
Respondent filed a Rule 4(c) Report opposing compensation on August 8, 2022.
ECF No. 36. Respondent argues (among other things) that Petitioner cannot meet the
Vaccine Act’s “severity” requirement, and also cannot meet the Table requirements
because Mr. Kostka’s pain did not occur within 48 hours of vaccination. On December 1,
2022, Petitioner filed a motion for a ruling on the record in favor of the claim. Motion for
Ruling on the Record (“Mot.”), ECF No. 39. Respondent opposed the motion on February
13, 2023. Respondent’s Response to Petitioner’s Motion for Ruling on the Record
(“Opp.”), ECF No. 42, at 11-19. Petitioner filed a reply on February 21, 2023. Petitioner’s
Reply to Respondent’s Response to Motion for Ruling on the Record (“Reply”), ECF No.
43. The matter is ripe for resolution.
II. Factual Background
The medical records reveal that Mr. Kostka was eighty five years old at the time of
vaccination, and had previously suffered from conditions including lower back pain, gait
abnormalities, bladder cancer, chronic kidney disease, type II diabetes, peripheral
vascular disease, among other conditions. See, e.g., Ex. 2 at 857, 1211, 1268, 1329; Ex.
3 at 14; Ex. 6 at 58-79, `42-43, 125-33; Ex. 9 at 95-97, 282-83.
On September 19, 2019, Mr. Kostka received a flu vaccine in his left arm. Ex. 7 at
2. Four days later, he had a pulmonary consultation for interstitial lung disease. Ex. 10 at
309-89. There is no reference to left shoulder pain at that time. The next day, on
September 24, 2019, he went to the emergency room for “gradual onset of progressively
worsening pain ever since” his flu vaccination. Ex. 11 at 46. X-rays and an ultrasound
was taken, which revealed mild degenerative changes but no thrombosis. Id. at 47. Mr.
Kostka was diagnosed with acute left shoulder pain. Id. at 48.
Mr. Kostka again complained of shoulder pain on September 27, 2019, stating in
a message to his primary care provider that he “got [a] flu shot and the pain in [his]
shoulder has been bad.” Ex. 2 at 461. The same day, Mr. Kostka reported that his
shoulder had been painful for approximately five days at a walk-in clinic. Ex. 11 at 49. He
was referred to an orthopedic and prescribed prednisone. Id. at 53.
2

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 3 of 10
On October 2, 2019, Mr. Kostka had an orthopedic consultation with Physician’s
Assistant (“P.A.”) Jeff Ambord, for left shoulder pain. Ex. 11 at 15. Mr. Kostka reported
that his pain started “after a flu shot on 9/19/19”, that his shoulder began hurting the
following day, and by “9/21/19 it had gotten significantly worse.” Id. An examination
showed decreased range of motion and reduced strength. Id. at 16. P.A. Ambord
expressed the belief that Mr. Kostka was asymptomatic for a rotator cuff tear that had
been exacerbated by the flu vaccine. Id. at 17. A cortisone injection was administered at
that time. Id. at 17.
Mr. Kostka returned to P.A. Ambord on October 7, 2019, with continued reports of
left shoulder pain and impingement syndrome. Ex. 11 at 20. He reported only one hour
of relief from the first steroid injection, and therefore another was administered. Id. at 21.
On October 9, 2019, Mr. Kostka had an aquatic physical therapy evaluation for left
shoulder pain. Ex. 3 at 16. He saw his primary care physician on October 15, 2019, for
ongoing shoulder pain among other problems (including weight loss, weakness,
imbalance, loss of appetite, and uncontrolled blood sugars). Ex. 2 at 377, 437. An
examination of his shoulder showed restricted range of motion and his diagnoses
included muscle weakness, balance problem, anemia, vitamin D deficiency, and left
shoulder pain. Id.
Mr. Kostka had an annual preventive health screening on October 28, 2019. Ex. 9
at 249. He reported weakness and the “loss [of] use of left arm” following a flu shot, and
shoulder pain that started “about 3 days after” vaccination. Id. at 255. Mr. Kostka also
saw P.A. Ambord on October 28, 2019, for “follow up on his left shoulder with clinically
consistent massive cuff tear.” Ex. 11 at 9. He noted that Mr. Kostka’s range of motion had
improved, but his pain had “not changed much.” Id. An examination of his shoulder
revealed reduced range of motion, and P.A. Ambord assessed him with “high clinical
suspicion of a massive cuff tear”. Ex. 11 at 9-10. P.A. Ambord’s plan of care included
continued physical therapy for his shoulder, and additional therapy for his “deconditioned
state as well as for lower extremity strengthening….” Id. at 10.
At his tenth physical therapy session on November 12, 2019, Mr. Kostka was
treated for shoulder pain and leg weakness. He reported “only slight pain at [his] posterior
shoulder.” Ex. 3 at 159. At his next physical therapy session on November 14, 2019, Mr.
Kostka reported minimal shoulder pain at rest and focused on his lower extremities and
balance. Id. at 166.
Mr. Kostka saw Dr. Wayne Brearley, an orthopedist, on December 18, 2019, for
left shoulder pain. Ex. 11 at 11. An examination showed reduced range of motion and
3

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 4 of 10
strength, and x-rays showed degenerative changes with mild arthritis. Dr. Brearley
diagnosed Mr. Kostka with rotator cuff arthropathy and a rotator cuff tear. Id. at 14.
On January 2, 2020, Mr. Kostka was discharged from physical therapy after 25
visits due to plateau in progress. Ex. 3 at 9-10. Mr. Kostka reported that his pain was
currently “2-3/10” and that he was “getting more comfortable with his [home exercise
program]”. Id. at 10.
Mr. Kostka had a second physical therapy evaluation on January 7, 2020, for “left
shoulder massive rotator cuff tear.” Ex. 11 at 34. He reported that his shoulder pain “is so
bad at times he gets sick to his stomach and is not able to eat.” Id. Additionally, he
reported weakness and reduced range of motion. Id. at 35.
On January 28, 2020, Mr. Kostka saw Dr. Pamela Glennon, a new orthopedist, for
shoulder pain. Ex. 8 at 25. He reported dull pain through his shoulder “which has improved
significantly following [physical therapy].” Id.
Mr. Kostka continued to attend physical therapy for both his shoulder and his lower
extremities. On March 2, 2020, at a physical therapy session, Mr. Kostka reported his
range of motion was back to normal and pain improved to “mild soreness here and there.”
Ex. 12 at 5468, 5470.
Mr. Kostka next reported shoulder pain three times in March 2020. Ex. 12 at 4271
(record from March 13, 2020 reporting left shoulder pain levels of “2/10”); 4343 record
from March 9, 2020, reporting left shoulder pain levels of “2/10”); 4415 (record from March
6, 2020, reporting mild shoulder pain of “2/10”). By March 16, 2020, however, he denied
shoulder pain at a physical therapy session, but reported lower extremity and hip pain.
Ex. 12 at 4199. The exercises at that time were focused on Mr. Kostka’s lower extremities.
Id. at 4199-4200.
Mr. Kostka was discharged from physical therapy on May 22, 2020, due to lack of
participation. Ex. 12 at 4099. The record states that “[t]he patient was placed on hold from
therapy in early March due to COVID-19 and has not returned for further therapy
interventions due to ongoing health issues.” Id.
On August 11, 2020, Mr. Kostka was seen for right shoulder problems, but did not
mention any left shoulder problems. Ex. 8 at 19, 23. Thereafter, Mr. Kostka sought
treatment for various unrelated ailments, including interstitial lung disease and chronic
obstructive pulmonary disease, myofascial pain syndrome, a urinary tract infection,
sepsis, and hospitalization for respiratory failure. Ex. 5 at 177-80; Ex. 9 at 120-40, 148,
4

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 5 of 10
151, 402-87; Ex. 10 at 27-139; Ex. 12-1 at 641-730, 732-38; Ex. 12-3 at 2313-2405, 2412-
2483, 2564-65; Ex. 12-4 at 2566-2650.
Mr. Kostka next reported shoulder pain several months later, on February 18,
2021, during a physical therapy session for back pain. Ex. 12 at 1264. He stated that he
hurt “all over” with increased pain in the right neck and shoulder and entire arm to the
hand, left shoulder, bilateral shins.” Id. On April 2, 2021, Mr. Kostka began another course
of physical therapy for right sided neck pain. Ex. 12 at 732-38. The records also noted
that he had “[n]oted weakness of L[eft] shoulder from rotator cuff impairment.” Id. at 734.
Mr. Kostka passed away on December 19, 2021, from bladder cancer, chronic
obstructive pulmonary disease, and type II diabetes mellitus. Ex. 13.
III. Legal Standard
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
In particular, a petitioner must establish that he suffered an injury meeting the
Table criteria (i.e. a Table injury), in which case causation is presumed, or an injury
shown to be caused-in-fact by the vaccination he received. If a petitioner establishes a
Table injury the burden shifts to respondent to establish a more likely alternative cause.
Section 13(a)(1)(A), 11(c)(1)(C)(i), 14(a). If a petitioner cannot establish a Table injury,
he or he may pursue causation-in-fact under the legal standard set forth in Althen v.
Sec'y of Health & Hum. Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
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Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 6 of 10
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
In addition to causation, a petitioner must also meet the requirements
establishing that the vaccine received is “covered” by the Program, the duration and
severity of petitioner’s injury, and the lack of other award or settlement.3 With regard to
severity, a petitioner must show that he suffered the residual effects or complications
of his injury or condition for more than six months after the administration of the vaccine.
§ 11(c)(1)(D)(i); see Song v. Sec'y of Health & Hum. Servs., 31 Fed. Cl. 61, 65-66
(1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting that a petitioner must demonstrate
the six-month severity requirement by a preponderance of the evidence). Finding that
petitioner has met the severity requirement cannot be based on petitioner's word alone,
though a special master need not base their finding solely on medical records. Section
13(a)(1); see Colon v. Sec'y of Health & Hum. Servs., 156 Fed. Cl. 534, 541 (2021).
Severity must be established regardless of whether the claim arises under the Table or
is a causation-in-fact claim.
A. Severity Requirement
The first issue to be resolved is whether Mr. Kostka has demonstrated that he
suffered “residual effects or complications of [the injury alleged] for more than six months
after the administration of the vaccine,” as required for eligibility under the Vaccine
Program. Section 11(c)(1)(D)(i).
3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for his injury. See § 11(c)(1)(A)(B)(D)(E).
6

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 7 of 10
There is no dispute that Mr. Kostka received the flu vaccine on September 19,
2019, and he therefore must demonstrate by preponderant evidence that his residual
symptoms continued at least through March 19, 2020 (assuming onset of pain the day of
vaccination). See, e.g., Herren v. Sec'y of Health & Human Servs., No. 13-100V, 2014
WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18, 2014); see also Hinnefeld v. Sec'y of
Health & Human Servs., No. 11-328V, 2012 WL 1608839, at *4-5 (Fed. Cl. Spec. Mstr.
Mar. 30, 2012) (dismissing case where medical history revealed that petitioner's injury
resolved less than two months after onset).
The record establishes that Mr. Kostka consistently reported shoulder pain
between September 24, 2019 and March 13, 2020, just one week shy of the six-month
post-vaccination date. Ex. 11 at 46, Ex. 12 at 4271. By that later date, he was reporting
shoulder pain levels of two out of ten. Ex. 12 at 4271. Further, the records explain that
Mr. Kostka’s physical therapy was subsequently halted due to COVID-19 and ongoing
health issues. Ex. 12 at 4099.
Based on the foregoing, Respondent argues that Mr. Kostka only sought treatment
for shoulder pain approximately five months after vaccination, and thereafter focused on
other complaints such as strength and balance deficits. Opp. at 11. Mr. Kostka contends
in response that his gap in treatment was reasonable due to the COVID-19 pandemic.
Additionally, the appointments cited by Respondent were for unrelated medical issues,
some of which significant including chronic obstructive pulmonary disease, sepsis, and
respiratory failure. Opp. at 10. I also note that the COVID-19 Pandemic began in March
2020, and is a reasonable explanation for why treatment visits may have ceased prior
March 19, 2020.
The overall record thus constitutes a sufficient showing of severity to meet the
preponderance evidentiary standard. It is likely that Mr. Kostka’s symptoms persisted
through March 19, 2020, despite the cessation of treatment one week earlier.
Nevertheless, his reports of mild pain, evidence that he made significant and swift
progress, and the fact that he appears to have been close to recovery at the six-month
post-onset mark all suggest the existence of a mild injury – and damages to be awarded
in this case will reflect this finding.
B. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Mr. Kostka has satisfied the QAI requirements for a Table SIRVA.
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Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 8 of 10
1. Mr. Kostka Had No Prior Left Shoulder Condition or Injury that
would Explain his Symptoms
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent does not dispute that Mr. Kostka
meets this criterion, and I find that he has demonstrated a lack of history of pain,
inflammation, or dysfunction of his left shoulder that would explain his symptoms.
2. Onset of Mr. Kostka’s Injury Occurred within Forty-Eight Hours of
his Vaccination
The medical records preponderantly establish onset of injury close-in-time to
vaccination. Mr. Kostka first reported shoulder pain five days after his September 19,
2019, vaccination, stating that he had “progressively worsening pain ever since” his flu
vaccination. Ex. 11 at 46. Thereafter, Mr. Kostka continued to link his shoulder pain
temporally to the flu vaccine. See Ex. 2 at 461 (record from September 27, 2019, stating
that Mr. Kostka got a flu vaccine and “pain in his shoulder has been bad”); Ex. 11 at 15
(record from October 2, 2019, stating his pain started after a flu shot on September 19,
2019).
Respondent argues that Mr. Kostka’s statements are vague and inconsistent, with
records indicating his pain began at various times including before his vaccination. Opp.
at 14-16. Even so, a finding of proper onset can be made based on such a record.
Program petitioners are not required to marshal records setting forth with chronographic
specificity the precise day and hour that their onset manifested. Further, as noted above,
Mr. Kostka consistently linked his shoulder pain to the September flu vaccine.
Additionally, the relevant medical records show that Mr. Kostka reported shoulder
pain in a relatively timely manner, when measured from the date of vaccination Thus, Mr.
Kostka first began to complain of shoulder pain within five days of the vaccine and did not
attribute his pain to any other injury or cause.
Respondent also argues that Mr. Kostka failed to report shoulder pain on
September 23, 2019, when he was seen for a consultation relating to his interstitial lung
disease, undermining his assertion that symptoms began within forty-eight hours of the
vaccination. Opp. at 17-18. But it is not unexpected that Petitioner did not raise his
shoulder pain on September 23rd, as that appointment was for a specific and unrelated
issue. Ex. 1 at 134-35. Further, it is common for SIRVA petitioners to delay seeking
treatment, thinking the injury will resolve on its own, especially since patients are often
8

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 9 of 10
told by medical providers at the time of vaccination to expect some soreness and pain for
a period of time after. And individuals also often misconstrue the nature of their injury,
and therefore fail to inform treaters of all specific facts relevant to onset until later. Here,
the added detail of onset did not “wait” for months before being provided, but began to be
reported in a reasonable time post-vaccination.
Accordingly, there is preponderant evidence that establishes the onset of Mr.
Kostka’s left shoulder pain more likely than not occurred within 48-hours of vaccination.
3. Mr. Kostka’s Pain was Limited to his Left Shoulder
Mr. Kostka’s pain was limited to his left shoulder. Respondent does not contest
this aspect of Mr. Kostka’s claim, and there is nothing in the records to suggest otherwise.
4. There is No Evidence of Another Condition or Abnormality
The last criteria for a Table SIRVA state that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent does not contest this aspect of Mr. Kostka’s claim, and there
is nothing in the records to suggest that any such condition or abnormality exists.
C. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Mr. Kostka has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Mr. Kostka received a flu vaccine intramuscularly on
September 19, 2019, in the United States. Ex. 7 at 2; see Section 11(c)(1)(A) (requiring
receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the
United States or its territories). There is no evidence that Mr. Kostka has collected a civil
award for his injury. Ex. 1; Section 11(c)(1)(E) (lack of prior civil award).
Based upon all of the above, Mr. Kostka has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Mr. Kostka is entitled to compensation in this case.
9

Case 1:21-vv-00418-UNJ Document 48 Filed 06/06/24 Page 10 of 10
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that Mr. Kostka satisfies the QAI requirements for a Table SIRVA. Further, based
on the evidence of record, I find that Mr. Kostka is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00418-1
Date issued/filed: 2024-08-13
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 07/11/2024) regarding 51 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00418-UNJ Document 56 Filed 08/13/24 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-418V
ELLEN M. LUCEY, personal Chief Special Master Corcoran
representative of the Estate of
VALERIAN KOSTKA, Filed: July 11, 2024
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 1, 2022, Ellen M. Lucey, as personal representative of the Estate of
Valerian Kostka, filed a Motion for a Ruling on the Record arguing that Ms. Kostka
suffered a shoulder injury related to vaccine administration (“SIRVA”) following an
influenza vaccine administered on September 19, 2019. ECF No. 39.
On May 2, 2024, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for a SIRVA. On July 2, 2024, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $67,500.00. Proffer at
1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award.
Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated
in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $67,500.00 in the form of a check payable to Ellen M. Lucey, as
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 fits within this definition, I will redact such material from public access.

Case 1:21-vv-00418-UNJ Document 56 Filed 08/13/24 Page 2 of 5
personal representative of the Estate of Valerian Kostka. This amount represents
compensation for all damages that would be available under Section 15(a).
The Clerk of Court is directed to enter judgment in accordance with this decision.2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 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.
2

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ELLEN M. LUCEY, personal representative )
of the Estate of VALERIAN KOSTKA, )
)
Petitioner, )
) No. 21-418V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On December 1, 2022, Ellen M. Lucey, as personal representative of the Estate of
Valerian Kostka, filed a Motion for a Ruling on the Record (“Motion”) arguing that Valerian
Kostka suffered a shoulder injury related to vaccine administration following administration of a
flu vaccine on September 19, 2019.1 ECF No. 39. Respondent filed his Response to Petitioner’s
Motion on February 13, 2023, recommending that entitlement to compensation be denied. ECF
No. 42. On May 2, 2024, the Court issued a Ruling on Entitlement, finding that petitioner is
entitled to compensation.2 ECF No. 45.
1 Petitioner filed documentation on August 19, 2022, establishing that on August 1, 2022, she
was appointed personal representative of Valerian Kostka’s Estate under the laws of the State of
Wisconsin. See Exhibits 13, 14. All references to petitioner herein refer solely to Ellen M.
Lucey in her representative capacity as the personal representative of the Estate of Valerian
Kostka.
2 Respondent has no objection to the amount of the proffered award of damages set forth herein.
Assuming the Chief Special Master issues a damages decision in conformity with this proffer,
respondent waives his right to seek review of such damages decision. However, respondent
reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special
Master’s May 2, 2024, entitlement decision.

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I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$67,500.00, which represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a).3 Petitioner agrees.
II. Form of the Award
Respondent recommends that petitioner be awarded a lump sum payment of $67,500.00,
in the form of a check payable to petitioner, Ellen M. Lucey, as personal representative of the
Estate of Valerian Kostka.4 Petitioner agrees.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
3 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after
a Damages Decision is issued.
4 If for some reason petitioner is not authorized by a court of competent jurisdiction to serve as
the personal representative of the Estate of Valerian Kostka at the time a payment pursuant to
this Proffer is to be made, then any such payment shall be paid to the party or parties appointed
by a court of competent jurisdiction to serve as personal representative of the Estate of Valerian
Kostka upon submission of written documentation of such appointment to the Secretary.
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/s/ Lauren Kells
LAUREN KELLS
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4187
Email: Lauren.Kells@usdoj.gov
DATED: July 2, 2024
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