Ysidro Moreno, Jr. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 11-08V (Not to be published1)

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* YSIDRO MORENO, JR., *

* Petitioner, * Filed: October 18, 2013

* v. * Decision by Stipulation; Damages;

* Tetanus-Diphtheria Vaccine; Acute SECRETARY OF HEALTH AND * Disseminated Encephalomyelitis HUMAN SERVICES * (ADEM)

* Respondent. *

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DECISION HASTINGS, Special Master.

This is an action seeking an award under the National Vaccine Injury Compensation Program2 on account of an injury suffered by Ysidro Moreno, Jr.. On October 17, 2013, counsel for both parties filed a Stipulation, stipulating that a decision should be entered granting compensation. The parties have stipulated that petitioner shall receive the following compensation:

1. Lump Sum Respondent shall make a lump sum payment of $300,000.00, in the form of a check payable to Ysidro Moreno, Jr., representing compensation for all damages that would be available under 42 U.S.C. '300aa-15(a), except as set forth in paragraph 2.

2. Annuity I consider it in best interest of Ysidro Moreno, Jr., that all remaining damages that would be available under 42 U.S.C. '300aa-15(a) be paid in the form of an annuity contract, which shall be purchased as soon as practicable after entry of judgment. Accordingly, pursuant to 42 U.S.C. § 300aa-15(f)(4), I order respondent to purchase, and take ownership of, an annuity,3 pursuant to which the insurance company will agree to make payments of $1,354.87 per month to Ysidro Moreno, Jr., for life only, commencing as soon as practicable after the date of judgment.

Each insurance company must meet the following criteria:

1) have a minimum of $250,000,000 of capital and surplus, exclusive of any mandatory security valuation reserve; and 2) have one of the following ratings from two of the following rating organizations:

a) A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b) Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c) Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA,

AA+, or AAA; d) Fitch Credit Rating Company, Insurance Company Claims-Paying Ability Rating:

AA-, AA, AA+, or AAA.

Under the statute governing the Program, as well as the “Vaccine Rules” adopted by this court, the special master must now enter a decision endorsing that stipulation, and the clerk must enter judgment, in order to authorize payment of the award. See § 300aa-12(d)(3)(A) and (e)(3); § 300aa-13(a); Vaccine Rules 10(a), 11(a).4

I have reviewed the file, and based on that review, I conclude that the parties’ stipulation appears to be an appropriate one. Accordingly, my decision is that a Program award shall be partly in the form of in the form of a lump sum payment, and partly in the form of an annuity, as provided above. In the absence of a timely-filed motion for review of this Decision, the clerk shall enter judgment in accordance herewith.

IT IS SO ORDERED.

/s/ George L. Hastings, Jr.

George L. Hastings, Jr. Special Master