In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-1921V

Filed: May 14, 2021

UNPUBLISHED

MARILYN LAVENDER,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

 

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1

On December 14, 2018, petitioner filed a claim under the National Childhood 

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that she suffered left

shoulder injuries as a result of her receipt of an influenza vaccination received on 

September 16, 2016. (ECF No. 1.) On January 2, 2020, respondent filed his Rule 4 

report, recommending against compensation. (ECF No. 16.) 

On January 25, 2021, I issued a finding of fact concluding that petitioner did not 

experience onset of her alleged shoulder injury within 48 hours of her vaccination. 

(ECF No. 35.) I then issued a scheduling order directing petitioner to file either a case 

dispositive motion or status report otherwise indicating how she intended to proceed in 

light of my finding of fact. (ECF No. 36.)

On May 10, 2021, petitioner filed a Motion for a Decision Dismissing her Petition. 

(ECF No. 41.) Petitioner indicated that “[i]n light of the Special Master’s Findings of 

1 Because this decision contains a reasoned explanation for the special master’s 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. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.

Special Master Horner

Petitioner’s Motion for Decision 

Dismissing Petition; Influenza 

(flu) vaccine; Shoulder Injury 

Related to Vaccine 

Administration; SIRVA
2

Fact filed on January 25, 2021, petitioner does not believe that her claim could prevail.” 

(Id. at 1.) Petitioner further stated that “[p]etitioner understands that a decision by the 

Special Master dismissing her petition will result in a judgment against her. Petitioner 

has been advised that such a judgment will end all of her rights in the Vaccine Program.

Petitioner understands that she may apply for costs once the case is dismissed and 

judgment is entered against her.” (Id.) 

To receive compensation in the Vaccine Program, petitioner must prove either 

(1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury 

Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was 

actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy her

burden of proving causation in fact, petitioner must show by preponderant evidence: “(1) 

a medical theory causally connecting the vaccination and the injury; (2) a logical 

sequence of cause and effect showing that the vaccination was the reason for the 

injury; and (3) a showing of a proximate temporal relationship between vaccination and 

injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 

2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from 

ruling for petitioner based solely on her allegations unsubstantiated by medical records 

or medical opinion. 

In this case, petitioner has not presented a Table Injury for the reasons 

discussed in my prior finding of fact. Moreover, the evidence of record does not 

otherwise support petitioner’s allegations by a preponderance of the evidence. 

Accordingly, the undersigned GRANTS petitioner’s Motion for Decision Dismissing 

Petition and DISMISSES this petition for failure to establish a prima facie case of 

entitlement to compensation.

CONCLUSION

This case is now DISMISSED. The clerk of the court is directed to enter 

judgment in accordance with this decision.2

IT IS SO ORDERED.

 s/Daniel T. Horner

 Daniel T. Horner

 Special Master

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or 

jointly, filing a notice renouncing the right to seek review.