              In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0178V
                                      (Not to be Published)


*************************
LISA LIS,                  *
                           *                              Special Master Oler
               Petitioner, *                              Filed: September 24, 2019
      v.                   *
                           *                              Petitioner’s Motion for a Decision;
SECRETARY OF HEALTH        *                              Dismissal of Petition; Vaccine
AND HUMAN SERVICES,        *                              Act; Denial Without Hearing.
                           *
               Respondent. *
                           *
*************************

Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY for Petitioner.

Heather Lynn Pearlman, U.S. Dep’t of Justice, Washington, D.C. for Respondent.

               DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1

       On February 2, 2017, Lisa Lis (“Petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program,2 alleging that she developed a Shoulder Injury
Related to Vaccine Administration (“SIRVA”), including a left labrum tear, bursitis, and left
shoulder impingement, as a result of the influenza (“flu”) vaccination that she received on October


1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2
  The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
2, 2015.3 Petition (“Pet.”) at 1, ECF No. 1. In her petition, Petitioner claimed the onset of her
symptoms as immediate. Pet. at 2. Petitioner filed medical records on February 13, 2017 and
December 4, 2017. ECF Nos. 7, 21. Petitioner filed her first affidavit on February 13, 2017 and
her second affidavit on February 15, 2018. Ex. 7, 14.

        On October 11, 2017, Respondent filed a Rule 4(c) Report (“Resp’s Rept.”). ECF No. 19.
Respondent stated that Petitioner had not provided evidence that satisfied her burden of proof
under Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005), specifically
noting that she did not seek medical attention for her shoulder until six months after receiving the
allegedly causal flu vaccination. Resp’s Rept. at 5. Respondent further stated that Petitioner’s
records support a finding of onset no earlier than January 2016, when Petitioner did not report
shoulder pain at her physical exam. Id. at 5. Respondent concluded that “[P]etitioner has failed to
meet her evidentiary burden,” and that “this case is not appropriate for compensation under the
Vaccine Act.” Id.

       On December 4, 2017, Petitioner submitted an affidavit from her husband, Mr. Joshua
Markle. Ex. 9. On January 11, 2018, Petitioner submitted an affidavit from her former coworker
and personal friend, Ms. Margaret Willis. Ex. 11. On February 15, 2018, she submitted affidavits
from her son, Mr. Sage Lis-Robinson, (Ex. 15) and her daughter, Ms. Saabrah White (Ex. 16).

       I issued an order on August 1, 2018, scheduling a fact hearing in this case to determine
onset of Petitioner’s injuries. ECF No. 44. I conducted the hearing on December 19, 2018 in
Washington, D.C., via VCT. See Minute Entry of February 1, 2019.

        Following the fact hearing, Petitioner filed a motion to issue a subpoena on April 30, 2019
in order to obtain receipts from purchases at BJ’s Wholesale Club and Target made during October
2015. ECF No. 48. On June 6, 2019, I issued an order granting the motion. ECF No. 49.

        Petitioner filed receipts from Target and BJs (Exs. 17, 18) on July 8, 2019 and indicated in
a status report filed that same day that Petitioner had filed all the documentation ordered during
the December 2018 fact hearing. ECF No. 52.

        I issued my Ruling on Onset on July 26, 2019. ECF No. 53. In that Ruling, I determined
the onset date of Petitioner’s left shoulder pain to be around January 27, 2016. Id. I ordered
Petitioner to file an expert report supporting that onset date or a status report indicating how she
intends to proceed by September 24, 2019. Id.

        On September 23, 2019, Petitioner filed a Motion for a dismissal decision. ECF No. 55.
My chambers contacted the parties by email on September 23, 2019, to confirm that Petitioner
intends for judgment to not be entered in this case. In an email conversation with Petitioner’s
counsel on that same date, counsel informed my chambers that Petitioner prefers that an
involuntary dismissal decision pursuant to Rule 21(b) be issued, thereby entering judgment against
Petitioner.

3
 This case was originally assigned to the Special Processing Unit. ECF No. 4. The case was then reassigned
to my docket on April 26, 2018. ECF No. 43.


                                                    2
        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of her vaccinations, or (2) that she suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner
may not receive a Vaccine Program award based solely on her claims alone. Rather, the petition
must be supported by either medical records or by the opinion of a competent medical expert.
Section 13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner
to meet her burden of proof. Petitioner’s claim, therefore, cannot succeed and in accordance with
her motion, must be dismissed. Section 11(c)(1)(A).

      Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.

       IT IS SO ORDERED.

                                                              s/ Katherine E. Oler
                                                               Katherine E. Oler
                                                               Special Master




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