In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1076V
UNPUBLISHED
MARILYNNE LESHER, Chief Special Master Corcoran
Petitioner, Filed: December 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. 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 DAMAGES1
On August 8, 2017, Marilynne Lesher filed 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 Petitioner entitled to
compensation for her left shoulder injury. On December 24, 2020, Respondent filed a
proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded
$45,000.00, representing compensation for her pain and suffering. Proffer at 1. In the
Proffer, Respondent represented that Petitioner 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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Based on the record as a whole, I find that Petitioner is entitled to an award as stated in
the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $45,000.00, representing compensation for her pain and suffering,
in the form of a check payable to Petitioner. This amount represents compensation for
all damages that would 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 filing of notice
renouncing the right to seek review.
2
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 she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”), as defined 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
compensation 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.
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 below 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.
2
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
3