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OFFICE OF SPECIAL MASTERS No. 12-819V (Not to be published)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. *

* ***************************** 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 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 IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran Special Master