        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1042V
                                      Filed: June 21, 2016
                                         UNPUBLISHED

****************************
SALLY LESSNER,                        *
                                      *
                   Petitioner,        *      Damages Decision Based on Proffer;
v.                                    *      Influenza Vaccination; Shoulder Injury
                                      *      Related to Vaccine Administration
SECRETARY OF HEALTH                   *      (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES,                   *      (“SPU”)
                                      *
                   Respondent.        *
                                      *
****************************
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Michael Milmoe, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On September 17, 2015, Sally Lessner (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.,2 (the “Vaccine Act” or “Program”). Petitioner alleges that she
suffered pain, weakness, and stiffness in her arm and shoulder caused-in-fact by the
influenza vaccination she received on September 26, 2012. Petition at ¶¶ 3, 10-11.
The case was assigned to the Special Processing Unit of the Office of Special Masters.

        On March 25, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for shoulder injury. On June 20, 2016, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $244,827.26
for lost wages, $100,000.00 for pain and suffering, and $5,116.71 for past
unreimbursable expenses for a total award of $349,943.97. Proffer at 1. In the Proffer,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
respondent represented that petitioner agrees with the proffered award. Id. Based on
the record as a whole, the undersigned finds that petitioner is entitled to an award as
stated in the Proffer.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $349,943.97 (representing $244,827.26 for lost
wages, $100,000.00 for pain and suffering, and $5,116.71 for past unreimbursable
expenses) in the form of a check payable to petitioner, Sally Lessner. This amount
represents compensation for all damages that would be available under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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
           Case 1:15-vv-01042-UNJ Document 28 Filed 06/20/16 Page 1 of 2



             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
SALLY LESSNER,                       )
                                     )
            Petitioner,              )  No. 15-1042V
                                     )  Chief Special Master Dorsey
      v.                             )  ECF
                                     )
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                      )
                                     )
            Respondent.              )
                                     )

               RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.      Compensation for Vaccine Injury-Related Items

        On March 25, 2016, the Chief Special Master issued a Ruling on Entitlement determining

that petitioner was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine

Administration (“SIRVA”). Respondent proffers that, based on the evidence of record,

petitioner should be awarded a lump sum of $349,943.97. This amount consists of $244,827.26

for lost wages, $100,000.00 for pain and suffering, and $5,116.71 for past unreimbursable

expenses. In sum, this amount represents all elements of compensation to which petitioner

would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II.     Form of the Award

        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


1
  Should petitioner die prior to entry of judgment, respondent reserves the right to move the Court for appropriate
relief. In particular, respondent would oppose any award for future medical expenses, future pain and suffering, and
future lost wages.
          Case 1:15-vv-01042-UNJ Document 28 Filed 06/20/16 Page 2 of 2



   A. A lump sum payment of $349,943.97 in the form of a check payable to petitioner, Sally
      Lessner. This amount accounts for all elements of compensation under 42 U.S.C.
      § 300aa-15(a) to which petitioner would be entitled.

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

                                                     Respectfully submitted,

                                                     BENJAMIN C. MIZER
                                                     Principal Deputy Assistant Attorney General

                                                     RUPA BHATTACHARYYA
                                                     Director
                                                     Torts Branch, Civil Division

                                                     CATHARINE E. REEVES
                                                     Acting Deputy Director
                                                     Torts Branch, Civil Division

                                                     GLENN A. MACLEOD
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division

                                                     /s/ Michael P. Milmoe
                                                     MICHAEL P. MILMOE
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146
                                                     Phone: (202) 616-4125
Dated: June 20, 2016                                 Fax:    (202) 616-4310
