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Unpublished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
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Because this unpublished decision contains a reasoned explanation for the action in this case, I intend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.
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).
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
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.
2
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
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.
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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
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