In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 15-784V 

Filed: November 30, 2015 

Unpublished 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

CHERI FOX, * 

 * 

 Petitioner, * Damages Decision Based on Proffer; 

 * Influenza (“Flu”) Vaccination; Shoulder 

 * Injury Related to Vaccine Administration 

SECRETARY OF HEALTH * (“SIRVA”); Attorneys’ Fees and Costs; 

AND HUMAN SERVICES, * Special Processing Unit (“SPU”) 

 * 

 Respondent. * 

 * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. 

Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master: 

 On July 24, 2015, petitioner filed a petition for compensation under the National 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

2 [the “Vaccine 

Act” or “Program”]. Petitioner alleges that as a result of an influenza [“flu”] vaccination 

on September 23, 2014, she suffered a shoulder injury. Petition at 1. The case was 

assigned to the Special Processing Unit of the Office of Special Masters. 

On October 28, 2015, a ruling on entitlement was issued, finding petitioner 

entitled to compensation for her Shoulder Injury Related to Vaccine Administration 

[“SIRVA”]. On November 30, 2015, respondent filed a Proffer of Damages [“Proffer”] 

indicating petitioner should be awarded $65,773.25 in damages for actual and projected 

pain and suffering, and $226.75 in damages for past unreimbursable expenses. Proffer 

at 1. In the Proffer, respondent represented that petitioner agrees with the proffered 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with 

the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended 

at 44 U.S.C. § 3501 note (2006)). 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, the undersigned agrees that the identified material fits 

within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012). 
2

award. Based on the record as a whole, the undersigned finds that petitioner is entitled 

to an award as stated in the Proffer. 

 Respondent further proffered that petitioner shoulder be awarded $13,854.58 for 

attorneys’ fees and costs. Proffer at 2. In accordance with General Order #9, the 

Proffer indicates that petitioner’s counsel represents that petitioner incurred no out-ofpocket expenses. The Proffer further indicates that petitioner’s counsel agrees with the 

proffered award. The Vaccine Act permits an award of reasonable attorneys’ fees and 

costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of petitioner’s request 

and the lack of any objection by respondent, the undersigned GRANTS the request for 

approval and payment of attorneys’ fees and costs. 

 Pursuant to the terms stated in the attached Proffer, the undersigned awards 

A. A lump sum payment of $66,000.00, which represents compensation for 

actual and projected pain and suffering ($65,773.25) and past 

unreimbursable expenses ($226.75), in the form of a check payable to 

petitioner, Cheri Fox. This amount represents compensation for all 

damages that would be available under § 300aa-15(a). 

B. A lump sum payment of $13, 854.583 in the form of a check jointly payable 

to petitioner and petitioner’s counsel, Maximillian Muller, Esq., for 

attorneys’ fees and costs.

The clerk of the court is directed to enter judgment in accordance with this 

decision.4 

IT IS SO ORDERED.

 s/Nora Beth Dorsey 

 Nora Beth Dorsey 

 Chief Special Master 

 

3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all 

charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. 

Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including 

costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 

F.2d 1029 (Fed. Cir.1991). 

4 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________

)

CHERI FOX, )

)

Petitioner, )

) No. 15-784

v. ) Chief Special Master Dorsey

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT’S PROFFER OF DAMAGES

I. Items of Compensation

For the purposes of this proffer, the term “vaccine-related” is as described in 

Respondent’s Rule 4(c) Report filed on October 26, 2015.

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $65,773.25 in actual and projected 

pain and suffering. This amount reflects that the award for projected pain and suffering has been 

reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses

Evidence supplied by petitioner documents her expenditure of past unreimbursable

expenses related to his vaccine-related injury. Respondent proffers that petitioner should be 

awarded past unreimbursable expenses in the amount of $226.75. Petitioner agrees.

C. Lost Wages

The parties agree that based upon the evidence of record, petitioner’s vaccine-related

injury has not impaired her earning capacity. Therefore, respondent proffers that petitioner 

Case 1:15-vv-00784-UNJ Document 17 Filed 11/30/15 Page 1 of 3
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should be awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa15(a)(3)(A). Petitioner agrees.

D. Attorney’s Fees and Costs

Petitioner has supplied documentation of reasonable attorney’s fees and litigation costs in 

the amount of $13,854.58, incurred in pursuit of this petition. In compliance with General Order 

#9, petitioner has indicated that she did not incur any out-of-pocket expenses in proceeding on 

the petition. Respondent proffers that petitioner should be awarded $13,854.58 for attorneys’

fees and costs. Petitioner agrees.

II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through 

lump sum payments as described below and request that the Chief Special Master’s decision and 

the Court’s judgment award the following:1

A. A lump sum payment of $66,000.00, which represents all elements of compensation 

to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)., in the form of a check 

payable to petitioner; and

 B. A lump sum payment of $13,854.58, in the form of a check payable to petitioner and 

petitioner’s attorney, Maximillian Muller, Esq., for attorney’s fees and costs. Petitioner agrees to 

endorse this payment to petitioner’s attorney. 

III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner: $66,000.00

B. Reasonable Attorney’s Fees and Costs: $13,854.58

 

1

Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate 

relief. In particular, respondent would oppose any award for future medical expenses and future pain and suffering.

Case 1:15-vv-00784-UNJ Document 17 Filed 11/30/15 Page 2 of 3
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Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Tort Branch, Civil Division

LINDA S. RENZI

Senior Trial Counsel 

Torts Branch, Civil Division

s/ Alexis B. Babcock

ALEXIS B. BABCOCK

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044-0146

Dated: November 30, 2015 Telephone: (202) 616-7678

Case 1:15-vv-00784-UNJ Document 17 Filed 11/30/15 Page 3 of 3