In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1921V
Filed: May 14, 2021
UNPUBLISHED
MARILYN LAVENDER, Special Master Horner
Petitioner,
v. Petitioner’s Motion for Decision
Dismissing Petition; Influenza
SECRETARY OF HEALTH AND (flu) vaccine; Shoulder Injury
HUMAN SERVICES, Related to Vaccine
Administration; SIRVA
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for respondent.
DECISION 1
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.
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.
2