Calderon v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-819V
(Not to be published)
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* Filed: January 28, 2015
AURORA CALDERON, *
*
Petitioner, *
*
v. * Decision by Stipulation; Damages;
* Attorneys’ Fees & Costs;
SECRETARY OF HEALTH AND * Influenza (“Flu”) Vaccine;
HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”)
*
Respondent. *
*
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Kelly Burdette, Burkett & Burdette, Seattle, WA, for Petitioner.
Gordon Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1
On November 28, 2012, Aurora Calderon filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving
the influenza ("flu") vaccine on December 4, 2009, she suffered from Guillain-Barré syndrome
(“GBS”) and experienced residual effects that lasted for more than six months.
Respondent denies that the flu vaccine caused Petitioner’s alleged GBS, and/or any other
1
Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
§ 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that each party has 14 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 will be available to the
public. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10-34 (2006))
[hereinafter “Vaccine Act” or the Act”]. All citations in this decision to individual sections of the Vaccine Act are to
42 U.S.C.A. ' 300aa.
injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a
stipulation filed on January 20, 2015, that a decision should be entered awarding Petitioner
compensation.
In a separate stipulation filed on that same day, the parties also indicated that they had
reached an agreement regarding attorneys’ fees and costs. The stipulation laid out the amount of
compensation that should be awarded to Petitioner’s attorney in a check made payable jointly to
Petitioner and Petitioner’s counsel, and further indicated that no out-of-pocket litigation related
costs had been incurred by Petitioner.
I have reviewed the file, and based upon that review, I conclude that the parties’
stipulations are reasonable. I therefore adopt them as my decision in awarding damages, and
attorneys’ fees and costs, on the terms set forth therein.
The damages stipulation awards:
 A lump sum of $15,421.95, which represents reimbursement of a State of New
Mexico Medicaid lien, in the form of a check payable jointly to Petitioner and
First Recovery Group, LLC (26899 Northwestern Highway; Suite 250;
Southfield, MI 48033); and
 A lump sum of $125,000.00 in the form of a check payable to Petitioner. This
amount represent compensation for all remaining items of damages that would
be available under 42 U.S.C. § 300aa-15(a).
Damages Stipulation ¶ 8.
The attorneys’ fees and costs stipulation awards:
 A lump sum of $8,991.79, in the form of a check payable jointly to Petitioner
and Petitioner’s counsel, Kelly D. Burdette, for attorneys’ fees and costs
available under 42 U.S.C. § 300aa-15(e). In compliance with General Order
#9, Petitioner incurred no out-of-pocket litigation expenses in proceeding on
the petition.
Stipulation of Facts Concerning Attorneys’ Fees and Costs ¶¶ 3 – 6.
I approve Vaccine Program awards in the requested amounts set forth above. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is
directed to enter judgment herewith.3
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by both (either separately or jointly)
filing a notice renouncing their right to seek review.
2
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3