# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 107 6 V

UNPUBLISHED

MARILYNNE LESHER

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 28, 2020

Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder

Injury Related to Vaccine

Administration (SIRVA)

Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA , for petitioner.

Christine Mary Becer

, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On August 8, 2017

, Mar ilynne Lesher f iled a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq. 2 (the

“Vaccine Act”). Petitioner alleges that she suffered a full

- thickness rotator cuff tear in her

left shoulder caused in fact by an influenza (“flu” ) vaccine she received on November 11,

2016 . Petition at 1

. The case was assigned to the Special Processing Unit of the Office

of Special Masters.

On July 2, 2020

, a ruling on entitlement was issued , finding P etitioner entitled to

compensation for her left shoulder injury . On December 24, 2020

, R espondent filed a

p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded

$ 45 ,000.00 , representing compensatio n for her pain and suffering

. Proffer at 1

. In the

Proffer, R espondent represented that P etitioner agrees with the proffered award. Id.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am

required to post it on the United States Court of Federal Claims' website in accordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the decision will be available to anyone with access to the

internet. 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 section references to the Vaccine Act will be to the p ertinent subparagraph of 42 U.S.C. §

300aa (2012).2

Based on the record as a whole, I find that P etitioner is entitled to an award as stated in

the Proffer.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump

sum payment of $ 45,000.00 , representing compensation for her pain and suffering

, in the form of a check payable to P etitioner

. This amount represents compensation for

all damages that w ould be available under § 15 (a)

.

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

decision. 3

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint fil ing of notice

renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

MARILYNNE LESHER, )

)

Petitioner, )

) No. 17

- 1076V

v. ) Chief Special Master Corcoran

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On August 8, 2017, Marilynne Lesher (“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” or “Act”) , alleging that s he suffered a S houlder I njury R elated to Vaccine

Administration (“SIRVA”)

, as de fined in the Vaccine Injury Table, following administration of a

influenza (“flu ”) vaccine on November 11, 2016

. Petition at 1. On June 4, 2018 , the Secretary

of Health and Human Services (“respondent”) filed a Rule 4(c) Report recommending that

compensa tion be denied. See Document 21. On July 2 , 2020, the Chief Special Master issued a

Ruling on Entitlement

, finding petitioner entitled to compensation. See Document 44.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 45 ,000 .00 for pain and suffering.

See 42 U.S.C. § 300aa

- 15(a)(4). Petitioner agrees.

This amount represent all elements of compensation to which petitioner is entitled under

42 U.S.C. § 300aa

- 15(a)

. Petitioner agrees.2 II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respondent recommends that the compensation provided to petitioner should be made through a

lump sum payment as described belo w and requests that the Chief Special Master’s decision and

the Court’s judgment award the following 1 : a lump sum payment of $45 ,000.00

, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Marilynne Lesher : $ 45 ,000.00

Respectfully submitted,

JEFFREY BOSSERT CLARK

Acting Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

DARRYL R. WISHARD

Assistant Director

Torts Branch, Civil Division

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 lost earnings

and future pain and suffering.3 s/Christine Mary Becer

CHRISTINE MARY BECER

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) 616

- 3665

DATED: December 24 , 2020