        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                            No. 14-568V
                                      Filed: February 2, 2015
                                            Unpublished

****************************
JOSEPH J. KRAUS, a married man,         *
                                        *
                    Petitioner,         *      Damages Decision Based on Proffer;
       v.                               *      Tetanus-Diphtheria-acellular Pertussis;
                                        *      Tdap; Table Injury; Brachial Neuritis;
SECRETARY OF HEALTH                     *      Neurapraxia; Special Processing Unit;
AND HUMAN SERVICES,                     *      Attorneys’ Fees and Costs Decision
                                        *      Based on Proffer
                    Respondent.         *
                                        *
****************************
Marc Silverman, Esq., Bellevue, WA, for petitioner.
Justine Walters, Esq., US Department of Justice, Washington, DC, for respondent.

      DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1

Vowell, Chief Special Master:

        On July 3, 2014, Joseph J. Kraus filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., [the
“Vaccine Act” or “Program”]. Petitioner alleged that he suffered neurapraxia as a result
of a tetanus-diphtheria-acellular pertussis [“Tdap”] vaccination he received on August
25, 2011. Petition at 2. The case was assigned to the Special Processing Unit of the
Office of Special Masters.

        On September 29, 2014, 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 2. Specifically, respondent indicated that the facts of the case support a finding that
petitioner suffered the Vaccine Table Injury of brachial neuritis within 2 to 28 days of
receiving the Tdap vaccine. Id. at 4. Respondent agreed that petitioner’s injury lasted
for more than 6 months and were not caused by a factor unrelated to the Tdap vaccine.
Id.



1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
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, I agree that the identified material fits within this definition, I will redact such
material from public access.
        On September 30, 2014, I issued a ruling on entitlement, finding petitioner
entitled to compensation. On January 29, 2015, respondent filed a proffer on award of
compensation [“Proffer”] detailing compensation in the amount of $225,000.00 for actual
and projected pain and suffering and in the amount of $2,019.76 for past unreimbursed
expenses for a total of $227,019.76. Proffer at 2. Respondent averred that petitioner
agreed to the amounts set forth therein. Id. This amount represents compensation for
all damages that would be available under 42 U.S.C. § 300aa-15(a).

        The proffer also included an award of attorneys’ fees and costs in the amount of
$8,905.08 to which petitioner agreed. Id. In accordance with General Order #9,
petitioner’s counsel asserts that petitioner incurred $175.00 in litigation expenses. Id.
The Vaccine Act permits an award of reasonable fees and costs. 42 U.S.C. § 300 aa-
15(e). I find the proposed total amount of $9,080.08 to be reasonable.

     Pursuant to the terms stated in the attached Proffer, I award petitioner a
payment of $236,099.84 as follows:

        a. a lump sum payment of $227,194.76 in the form of a check payable solely to
petitioner, Joseph J. Kraus;

        b. a lump sum payment of $8,905.08 in the form of a check payable jointly to
petitioner, Joseph J. Kraus and petitioner’s counsel, Marc Silverman.

       The clerk of the court is directed to enter judgment in accordance with this
decision.2

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




2
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                    2
            Case 1:14-vv-00568-UNJ Document 21 Filed 01/29/15 Page 1 of 4



                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS
____________________________________
                                    )
JOSEPH J. KRAUS, a Married Man,     )
                                    )
                  Petitioner,       )
                                    )                No. 14-568V
      v.                            )                Chief Special Master Vowell
                                    )                ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES,                     )
                                    )
                  Respondent.       )
____________________________________)

              RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

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 September 29, 2014.

       A.       Future Unreimbursable Expenses

       The parties agree that based upon the evidence of record, petitioner will not require future

care for his vaccine-related injury. Therefore, respondent proffers that petitioner should be

awarded no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1).

Petitioner agrees.

       B.       Lost Future Earnings

       The parties agree that based upon the evidence of record, petitioner has been and will

continue to be gainfully employed in the future. Therefore, respondent proffers that petitioner

should be awarded no anticipated loss of earnings under 42 U.S.C. § 300aa-15(a)(3)(B).

Petitioner agrees.
            Case 1:14-vv-00568-UNJ Document 21 Filed 01/29/15 Page 2 of 4



       C.       Pain and Suffering

       Respondent proffers that petitioner should be awarded $225,000.00 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.

       D.       Past Unreimbursable Expenses

       Evidence supplied by petitioner documents his 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 $2,019.76. Petitioner agrees.

       E.       Medicaid Lien

       Petitioner represents that there are no outstanding Medicaid liens against him.

       F.       Attorneys’ Fees and Costs

       Petitioner has supplied documentation of reasonable attorneys’ fees and litigation costs

expended by petitioner’s counsel in the amount of $8,905.08, incurred in pursuit of this petition.

In compliance with General Order #9, petitioner represents that he incurred $175.00 in costs in

proceeding on the petition. Respondent proffers that petitioner should be awarded a total of

$9,080.08 for attorneys’ fees and litigation 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




1
  Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief.
                                                -2-
            Case 1:14-vv-00568-UNJ Document 21 Filed 01/29/15 Page 3 of 4



       A. A lump sum payment of $225,000.00, representing compensation for pain and

suffering, in the form of a check payable to petitioner;

       B.    A lump sum payment of $2,019.76, representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioner;

       C.    A lump sum payment of $175.00, for litigation costs, in the form of a check payable

to petitioner; and

       D.     A lump sum payment of $8,905.08 for attorneys’ fees and costs, in the form of a

check payable jointly to petitioner and petitioner’s attorney. Petitioner agrees to endorse this

payment to petitioner’s attorney.

III.   Summary of Recommended Payments Following Judgment

       A.       Lump sum paid to petitioner:                                         $227,194.76

       B.       Reasonable Attorneys’ Fees and Costs
                payable jointly to petitioner and petitioner’s counsel:              $8,905.08


                                               Respectfully submitted,

                                               JOYCE R. BRANDA
                                               Acting 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




                                                 -3-
         Case 1:14-vv-00568-UNJ Document 21 Filed 01/29/15 Page 4 of 4



                                     s/ Justine Walters
                                    JUSTINE WALTERS
                                    Trial Attorney
                                    Torts Branch, Civil Division
                                    U.S. Department of Justice
                                    P.O. Box 146
                                    Benjamin Franklin Station
                                    Washington, D.C. 20044-0146
                                    Telephone: (202) 307-6393

Dated: January 29, 2015




                                      -4-
