# 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Unpublished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 AN D ATTORNEYS’ FEES AND COSTS 1

Dorsey , Chief Special Master:

On July 24, 2015, petitioner filed a pet ition 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 ru ling on entitlement was i ssued, finding petitioner

entitled to compensation for her Shoulder Injury Relate d 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, re spondent represented t hat 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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 Cour t of Federal Claims' website, in accordance with

the E-Government Act of 2002, Pub. L. No. 107-3 47, § 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 inform ation, the disclosure of which would constitute an

unwarranted invasion of privacy. If, upon review, t he 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 Ac t 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 petit ioner shoulder be awarded $13,854.58 for

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

Proffer indicates that petiti oner’s counsel represents that petitioner incurred no out-ofpocket expenses. The Proffer further indicates that petiti oner’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 reas onableness of petitioner’s request

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

approval and payment of a ttorneys’ fees and costs.

Pursuant to the terms stat ed 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 ava ilable under § 300aa-15(a).

B. A lump sum payment of $13, 854.58 3 in the form of a check jointly payable

to petitioner and petitioner’s coun sel, 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 in curred in this matter. This award encompasses all

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

Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an a ttorney 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 c an be expedited by the parties’ joint filing of notice

renouncing the right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

________________________________ __________ )

CHERI FOX

, )

)

Petitioner, )

) No. 1 5

- 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). Peti tioner 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 expe nses 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 32

should be awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa

15(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 $1 3,854 .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.

II I. Summary of Recommended Payments Following Judgment

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

B. Reasonable Attorney’s Fees and Costs: $1 3,854 .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 33 Respectfully submitted,

STUART F. DELERY

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Tort Branch, Civil Division

L INDA 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: (2 02) 616

- 7678 Case 1:15-vv-00784-UNJ Document 17 Filed 11/30/15 Page 3 of 3