        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                                           Unpublished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 [“Res. 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  Because this unpublished decision contains a reasoned explanation for the action in this case, it will be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 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 “§” 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. Respondent 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. Id. 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. Vowell
                                        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,                        )
                                                  )    No. 15-0107V
v.                                                )    Chief Special Master Vowell
                                                  )    ECF
SECRETARY OF HEALTH AND HUMAN                     )
SERVICES,                                         )
                                                  )
               Respondent.                        )
                                                  )


            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 suffered 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 injury 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.
  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 his 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.
                                                 2
            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 $14,500.00 for attorneys’

    fees and costs. 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 Special 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 of $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.
                                                 3
                       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




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