Abeyratne v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-830V (Not to be published) ************************* * TISSA ABEYRATNE, * * Petitioner, * Filed: October 14, 2016 * v. * Decision by Stipulation; Damages; * Influenza Vaccine; Neuromyelitis SECRETARY OF HEALTH AND * Optica and Transverse Myelitis HUMAN SERVICES * * Respondent. * * *************************

DECISION HASTINGS, Special Master.

This is an action seeking an award under the National Vaccine Injury Compensation Program1 on account of an injury suffered by Tissa Abeyratne. On October 11, 2016, 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 for all damages that would be available under 42 U.S.C. '300aa-15(a): 1. Lump Sum Respondent shall make a lump sum payment of $339,243.49, in the form of a check payable to Tissa Abeyratne, representing compensation for first year life care expenses ($133,035.40), pain and suffering ($200,000.00), and past unreimbursable expenses ($6,208.09).

The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-10 et seq. (2012 ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C. (2012 ed.).

2. Annuity I consider it in best interest of Tissa Abeyratne that all remaining damages 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 contract,2 as described below.

Each Life 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.

The Secretary of Health and Human Services shall purchase an annuity contract from the Life Insurance Company for the benefit of Petitioner, Tissa Abeyratne, pursuant to which the Life Insurance Company will agree to make payments periodically to Petitioner as described in paragraph 10 of the attached Stipulation.

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).3 I have reviewed the file, and based on that review, I conclude that the parties’ Stipulation appears to be an appropriate one. My decision is that a Program award shall be partly in the form of a lump sum payment, and partly in the form of an annuity. Accordingly, pursuant to the terms of the parties’ Stipulation, I award Petitioner: • a lump sum payment of $339,243.49, in the form of a check payable to Petitioner; and • an annuity contract, pursuant to which the Life Insurance Company will make

To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.

The “Vaccine Rules of the United States Court of Federal Claims” are found in Appendix B of the Rules of the United States Court of Federal Claims. periodic payments to Petitioner, as described in paragraph 10 of the attached Stipulation.

In the absence of a timely-filed motion for review of this Decision, the Clerk of this court shall enter judgment in accordance herewith.

IT IS SO ORDERED.

/s/ George L. Hastings, Jr. George L. Hastings, Jr. Special Master