Judges: Denise Kathryn Vowell
Filed: Mar. 06, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-862V Filed: February 3, 2015 Unpublished **************************** RUSSELL BAKER, * * Petitioner, * Damages Decision Based on Proffer; v. * Influenza (flu); Cause-in-fact; * Shoulder Injury Related to Vaccine SECRETARY OF HEALTH * Administration; Special Processing Unit; AND HUMAN SERVICES, * Attorneys’ Fees and Costs Decision * Based on Proffer Respondent. * * **************************** Paul Brazil, Esq., Muller
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-862V Filed: February 3, 2015 Unpublished **************************** RUSSELL BAKER, * * Petitioner, * Damages Decision Based on Proffer; v. * Influenza (flu); Cause-in-fact; * Shoulder Injury Related to Vaccine SECRETARY OF HEALTH * Administration; Special Processing Unit; AND HUMAN SERVICES, * Attorneys’ Fees and Costs Decision * Based on Proffer Respondent. * * **************************** Paul Brazil, Esq., Muller B..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-862V
Filed: February 3, 2015
Unpublished
****************************
RUSSELL BAKER, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (flu); Cause-in-fact;
* Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH * Administration; Special Processing Unit;
AND HUMAN SERVICES, * Attorneys’ Fees and Costs Decision
* Based on Proffer
Respondent. *
*
****************************
Paul Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.
Justine Walters, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS 1
Vowell, Chief Special Master:
On September 17, 2014, Russell Baker 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 a left shoulder injury as
a result of the administration of an influenza (flu) vaccination on November 3, 2013.
Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On December 24, 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 temporal association between the
administration of the vaccination and petitioner’s shoulder pain is medically appropriate
and there is no other identifiable alternate cause for petitioner’s symptoms. Id at 3.
Respondent indicated that cause-in-fact is supported by the record and that petitioner
has satisfied all the prerequisites for compensation under the Vaccine Act. Id.
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.
On December 29, 2014, I issued a ruling on entitlement, finding petitioner entitled
to compensation. On February 3, 2015, respondent filed a proffer on award of
compensation [“Proffer”] detailing compensation in the amount of $80,000.00 for actual
and projected pain and suffering. Proffer at 2. Respondent averred that petitioner
agreed to the amount set forth therein. 2 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
$15,000.00 to which petitioner agreed. Id. 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. 42 U.S.C. § 300
aa-15(e). I find the proposed total amount of $15,000.00 to be reasonable.
Pursuant to the terms stated in the attached Proffer, I award petitioner a
payment of $95,000.00 as follows:
a. a lump sum payment of $80,000.00 in the form of a check payable solely to
petitioner, Russell Baker;
b. a lump sum payment of $15,000.00 in the form of a check payable jointly to
petitioner, Russell Baker and petitioner’s counsel, Paul Brazil.
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
2
The proffer indicates that the parties have agreed that no award should be made for future
unreimbursable expenses, lost future earnings, or past unreimbursable expenses. Proffer at 2-3. The
proffer also indicates that there is no outstanding Medicaid lien against petitioner. Proffer at 3.
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
Case 1:14-vv-00862-UNJ Document 20 Filed 02/03/15 Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
RUSSELL BAKER, )
)
Petitioner, )
) No. 14-862V
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 December 24, 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 was retired at the
time of vaccination. 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-00862-UNJ Document 20 Filed 02/03/15 Page 2 of 3
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $80,000.00 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
Petitioner did not provide evidence that he incurred unreimbursable expenses related to
his vaccine-related injury. Therefore, respondent proffers that petitioner should be awarded no
past unreimbursable expenses. 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 in
the amount of $15,000.00, incurred in pursuit of this petition. In compliance with General Order
#9, petitioner has indicated that he did not incur any out-of-pocket expenses in proceeding on the
petition. Respondent proffers that petitioner should be awarded $15,000.00 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
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 1:14-vv-00862-UNJ Document 20 Filed 02/03/15 Page 3 of 3
A. A lump sum payment of $80,000.00, representing compensation for pain and
suffering, in the form of a check payable to petitioner; and
B. A lump sum payment of $15,000.00, in the form of a check payable to petitioner and
petitioner’s attorney, Paul Brazil, 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: $80,000.00
B. Reasonable Attorneys’ Fees and Costs: $15,000.00
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
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
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: February 3, 2015
-3-
