VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01751 Package ID: USCOURTS-cofc-1_22-vv-01751 Petitioner: Kelly Wasko Filed: 2022-11-30 Decided: 2024-09-26 Vaccine: Tdap Vaccination date: 2020-02-19 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 32000 AI-assisted case summary: Kelly Wasko filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) resulting from a Tdap vaccine received on February 19, 2020. She stated the vaccine was administered in the United States, she experienced residual effects for more than six months, and had no prior award or settlement for this condition. Respondent denied that Ms. Wasko sustained a SIRVA, that the vaccine caused her injury, or that her condition was a sequelae of a vaccine-related injury. Despite these differing positions, the parties filed a joint stipulation agreeing to settle the case and award compensation. The court adopted the stipulation as its decision. Ms. Wasko was awarded a lump sum of $32,000.00, representing compensation for all items of damages available under the program. This amount covers her alleged SIRVA, which is a condition listed on the Vaccine Injury Table. The stipulation also addressed future proceedings for attorneys' fees and costs. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01751-0 Date issued/filed: 2024-09-26 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 08/06/2024) regarding 40 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1751V KELLY WASKO, Chief Special Master Corcoran Petitioner, Filed: August 6, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On November 30, 2022, Kelly Wasko filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a Table injury, resulting from a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine she received on February 19, 2020. Pet., ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Id. Respondent denies “that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at 2, ECF No. 39. 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. 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 (2018). Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 2 of 7 Nevertheless, on August 5, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached stipulation, I award the following compensation: A lump sum of $32,000.00 in the form of a check payable to Petitioner. Stipulation at 2. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this Decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 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 Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 3 of 7 IN THE UNITED STAT ES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS KELLY WASKO, Petitioner, V. No. 22-1751V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Kelly Wasko, 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 a Tetanus, Diphtheria, Pertussis ("Tdap") vaccine, which vaccine is contained in the Vaccine Injury Table (the ..T able"), 42 C.F.R. § 100.3(a). 2. Petitioner received the Tdap vaccine in her left arm on February l 9, 2020. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") within the time frame set forth in the Table following administration of the Tdap vaccine, and that she experienced the residual effects of this injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of the alleged injury. Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 4 of 7 6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae 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 ofj udgment 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 l (a)( 1) , the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $32,000.00 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-l 5(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-2l(a)(1), 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. 10. 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-l5(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. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 2 Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 5 of 7 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- 1S (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, and past unreimbursable expenses, 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-l S(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 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 IO 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 aJleged to have resulted from, the Tdap vaccine administered on or about February 19, 2020, as alleged by petitioner in a petition for vaccine compensation filed on November 30, 2022, in the United States Court of Federal Claims as petition No. 22-1751 V. 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. 3 Case 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 6 of 7 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, 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 caused petitioner to suffer a shoulder injury or her current disabilities, or any other injury or condition, or that petitioner sustained an injury contained in the Vaccine Injury Table. 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 1:22-vv-01751-UNJ Document 44 Filed 09/26/24 Page 7 of 7 Respectfully submitted, PETITIONER: ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: /¼ll e.1 /4_ 1::_ ~ Ui AA,!~\i,_Q,9,0MN\../'--___ RONALD C. HOME 'i0t