        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                                          Unpublished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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
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-of-
pocket 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.

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



             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



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



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 $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.

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



                                   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




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