United States Court of Federal Claims, 2022

Calkins v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided February 7, 2022 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-253V UNPUBLISHED

LEONARD MILTON CALKINS, Chief Special Master Corcoran

Petitioner, Filed: January 5, 2022 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)

Kelly Danielle Burdette, Burdette Law, PLLC, North Bend, WA, for Petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On March 5, 2020, Leonard Calkins 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 he suffered a Table Injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of his September 24, 2018 influneza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 3, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On January 4, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $66,500.00 (in pain and suffering damages). Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. 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 $66,500.00 (in pain and suffering damages) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

LEONARD MILTON CALKINS, )

) Petitioner, )

v. ) No. 20-253

) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, )

) )

Respondent.

) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 5, 2020, Leonard Milton Calkins (“petitioner”) filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to him on September 24, 2018. On October 29, 2021, respondent filed his Vaccine Rule 4(c) report, recommending that compensation be awarded. On November 3, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.

I. Items of Compensation

Respondent proffers that petitioner should be awarded $66,500.00 in pain and suffering damages. This amounts 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 $66,500.00, in the form of a check payable to petitioner, Leonard Milton Calkins.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Leonard Milton Calkins: $66,500.00.

Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division ALEXIS B. Babcock Assistant Director Torts Branch, Civil Division s/Traci R. Patton TRACI R. PATTON Assistant Director Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 353-1589

Dated: January 4, 2022 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.

1 Because this unpublished Decision contains a reasoned explanation f or 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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint f iling of notice renouncing the right to seek review.

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