# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
No. 15

- 0107V
Filed: June 24, 2015 Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * * AARON PRIOR, *
* Petitioner, * Damages Decision Based on Proffer ;

v. * Tetanus

- diphtheria

- pertussis (“Tdap”);
* Shoulder Injury Related to Vaccine SECRETARY OF HEALTH * Administration (“SIRVA”) ; Special
AND HUMAN SERVICES, * Processing Unit (“SPU”); Attorneys’
* Fees and Costs Decision Based on Respondent. * Proffer
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Paul R. Brazil

, Muller Brazil, LLP, Philadelphia, PA, for petitioner. Sarah C. Duncan, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS 1

Vowell

, Chief Special Master:

On February 2, 2015

, Aaron Prior 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”]. The petition alleged that as a result of a tetanus

diphtheria

- pertussis (“Tdap”) vaccination on March 31, 2014, petitioner suffered a shoulder injury related to vaccine administration (“SIRVA”). The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On June 1 , 2015, respondent filed her Rule 4(c) report [“Re s. Report”], in which she conceded that petitioner is entitled to compensation in this case. Res. Report at 4

. On that same date I issued a ruling on entitlement, finding petitioner entitled to compensation.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, it will be posted on the United States Court of Federal Claims' website, in accordance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, I agree that the identified material fits withi n this definition, I will redact such

m aterial 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 (2006).On June 22, 2015

, respondent filed a proffer on award of compensation [“Proffer”] detailing compensation in the amount of $ 80,780.48 , representing $ 80,000.00 for actual and projected pain and suffering and $ 780.48 for past unreimbursed medical

expenses. Proffer at 2. Res pondent averred that petitioner agreed to the amount set forth therein. 3 Id. This amount represents compensation for all damages that would be available under § 15(a)

.

The proffer also included an award of attorneys’ fees and costs in the amount of $ 14,500.00 to which petitioner agreed. I d. at 3. In accordance with General Order #9, petitioner’s counsel asserts that petitioner incurred no out

- of

- pocket litigation expenses. Id. The Vaccine Act permits an award of reasonable fees and costs. §15(e). I find the proposed total amount of $ 14,500.00 to be reasonable.

Pursuant to the terms stated in the attached Proffer, I award petitioner a payment of $ 95,280.48 as follows :

a. a lump sum payment of $ 80,780.48 in the form of a check payable solely to petitioner, Aaron Prior ;

b. a lump sum payment of $ 14,500.00 in the form of a check payable jointly to petitioner, Aaron Prior and petitioner’s counsel, Paul Brazil

.

The clerk of the court is directed to enter judgment in accordance with this
decision. 4

s/Denise K. Vowe ll
Denise K. Vowell Chief Special Master

3 The proffer indicates that the parties have agreed that no award should be made for future medical care expenses and lost earnings. Proffer at 2.

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

AARON PRIOR,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 15-0107V Chief Special Master Vowell
ECF

RESPONDENT ’S PROFFER ON AWARD OF COMPENSATION

On February 2, 2015, Aaron Prior (“petitioner”) filed a petition for compensation under

the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa- 1 to

- 34 (“Vaccine

Act”) . Petitioner amended his petition for compensation on March 30, 2015. Petitioner alleges

that he received a tetanus -diphtheria- pertussis (“Tdap”) vaccine in his left arm on March 31,

2014 , and subsequently suffe red an injury to his left shoulder secondary to the vaccination

. See

generally Dkt. 14, Resp.’s Rep. at 1- 4. The Secretary of Health and Human Services

(“respondent”) filed a Vaccine Rule 4(c) report, conceding that petitioner suffered from a

shoulder in jury related to vaccine administration (“SIRVA”), and recommending that the Court

award petitioner compensation. Id. at 1, 4 -5. Respondent hereby submits the following proffer

regarding the award of compensation.2 I. Items of Compensation

A. Future Medical Care Expenses

Respondent proffers that based on the evidence of record, petitioner is not entitled to

an award for projected unreimbursable medical care expenses incurred from the date of

judgment as provided under the Vaccine Act, 42 U.S.C. § 300aa- 15(a)( 1)(A). Petitioner

agrees.

B. Lost Earnings

Respondent proffers that based upon the evidence of record, petitioner has not and is

not likely to suffer a loss of earnings as a result of his vaccine-related injury. Accordingly,

petitioner should not be awarded lost future earnings as provided under the Vaccine Act, 42

U.S.C. § 300aa- 15(a)(3)(A)

. Petitioner agrees.

C. Pain and Suffering

Respondent proffers that petitioner should be awarded a lump sum of $80,000.00 for

his 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.

D. Past Unreimbursable Expenses

Evidence supplied by petitioner documents h is expenditure of past unreimbursable

expenses related to petitioner’s vaccine -related injury. Respondent proffers that petitioner

should be awarded past unreimbursable expenses in the amount of $780.48. Petitioner agrees.

E. Medicaid Lien

Petitioner represents that there are no outstanding Medicaid liens related to his

vaccine -related injury.3 F. Attorneys’ Fees and Costs

Petitioner has supplied documentation of reasonable attorneys’ fees and costs in the

amount of $14,500.00. Pursuant to General Order #9, petitioner ’s counsel has represented to

respondent’s counsel that petitioner incurred no out-of-pocket expenses in proceeding on the

petition. Respondent proffers that petitioner should be awarded $14,5 00.00 f or attorneys’

fees and cost s. Petitioner agrees.

II. Form of the Award

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

through lump sum payments as described below, and request that the S pecial Master’ s

decision and the Court’s judgment award the following 1 :

A. A lump sum payment of $80,780.48 (representing compensation for

actual and projected pain and suffering, and past unreimbursable expenses related

to the vaccine -related injury), in the form of a check payable to petitioner; and

B. A lump sum o f $14,500.00 in the form of a check payable to petitioner and

petitioner’ s attorney, Paul Brazil, Esq.

, for attorneys ’ 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: $ 80,780.48

B. Reasonable attorneys’ fees and costs: $ 14,500.00

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 pain and suffering.4 Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA
Director Torts Branch, Civil Division

VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division

GLENN A. MACLEOD
Senior Trial Counsel Torts Branch, Civil Division

s/ Sarah C. Duncan
Sarah C. Duncan 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) 514 -9729 Fax: (202) 616- 4310
DATED : June 22, 2015