Altieri v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-910V Filed: February 18, 2015

Unpublished **************************** PHILIP ALTIERI, *

*

Petitioner, * Damages Decision Based on Proffer; v. * Influenza (Flu) Vaccine; Shoulder Injury

* Related to Vaccine Administration SECRETARY OF HEALTH * (SIRVA); 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 COSTS1 Vowell, Chief Special Master:

On September 26, 2014, Philip Altieri 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 he suffered right shoulder injuries which were caused by the influenza vaccine he received on December 2, 2013. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 3, 2015, respondent filed her Rule 4(c) report in which she conceded that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1-2. Specifically, respondent “concluded that a preponderance of the evidence establishes that petitioner’s injury is consistent with a shoulder injury related to vaccine administration (“SIRVA”), and that petitioner’s injury [was] not due to factors unrelated to his December 2, 2013, flu vaccination.” Id. at 3. Respondent further agreed that petitioner’s injury lasted for more than six months.

On February 3, 2014, I issued a ruling on entitlement, finding petitioner entitled to compensation. On February 18, 2015, respondent filed a proffer on award of compensation [“Proffer”] detailing compensation in the amount of $70,000.00 for actual and projected pain and suffering and in the amount of $728.09 for past unreimbursed expenses for a total of $70,728.09. 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 $14,562.94 to which petitioner agreed. Proffer at 2. In accordance with General Order #9, petitioner’s counsel asserts that petitioner incurred no out-of-pocket 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 $14,562.94 to be reasonable.

Pursuant to the terms stated in the attached Proffer, I award petitioner a payment of $85,291.03 as follows:

a. a lump sum payment of $70,728.09 in the form of a check payable solely to petitioner, Philip Altieri;

b. a lump sum payment of $14,562.94 in the form of a check payable jointly to petitioner, Philip Altieri 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS )

PHILIP ALTIERI, )

)

Petitioner, )

) No. 14-910V 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 February 3, 2015.

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 employed 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)(A). Petitioner agrees.

C. Pain and Suffering Respondent proffers that petitioner should be awarded $70,000.00 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 $728.09. 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 $14,562.94, 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 $14,562.94 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 $70,000.00, representing compensation for pain and suffering, in the form of a check payable to petitioner;

B. A lump sum payment of $728.09, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioner; and

C. A lump sum payment of $14,562.94, 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: $70,728.09 B. Reasonable Attorneys’ Fees and Costs: $14,562.94

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 LYNN E. RICCIARDELLA Senior Trial Attorney 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

Dated: February 18, 2015 Telephone: (202) 307-6393