DECISION AWARDING DAMAGES1
BRIAN H. CORCORAN, Special Master.
On September 11, 2013, April Huffman, as mother and natural guardian of B.C. (a minor child), filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving the varicella vaccine on November 30, 2010, B.C. suffered from recurrent episodes of Herpes Zoster (also known as shingles), and that B.C. experienced residual effects of this injury for more than six months.
Respondent denies that the shingles vaccine caused B.C.'s shingles or any other injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed October 31, 2014) that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties' stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The stipulation awards:
• An amount of $12,500.00 to purchase the annuity contract (as described in ¶ 10 of the attached stipulation), paid to the life insurance company from which the annuity will be purchased.
Stipulation ¶¶ 8-10. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. 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.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 §300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to B.C.'s receipt of the varicella vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).
2. B.C. received hepatitis A ("Rep, A"); measles, mumps, rubella ("MMR"); and varicella immunizations on November 30, 2010.
3. These vaccines were administered within the United States.
4. Petitioner alleges that B.C. developed recurrent shingles that were caused-in-fact by his varicella vaccination, and that he experienced residual effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on behalf of B.C. as a result of his condition.
6. Respondent denies that B.C.'s recurrent shingles, or any other condition, was caused-in-fact by any of his vaccinations administered on November 30, 2010.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment:
An amount of $12,500.00 to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"),
This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
9. The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must 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. Pitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.
10. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of B.C., pursuant to which the Life Insurance Company will agree to make a payment to B.C. for all damages that would be available under 42 U.S.C. § 300aa-15(a), as follows:
$20,617.16 payable in a certain lump sum on November 23, 2030.
The purchase price of the annuity shall not exceed $12,500.00. In the event that the cost of the certain lump sum payment set forth above varies from $12,500.00, the November 23, 2030, payment listed above shall be adjusted upward or downward to ensure that the total cost of the annuity is neither less nor greater than $12,500.00. Should B.C. predecease the certain lump sum set forth above, said payment shall be made to his estate. Written notice to the Secretary of Health and Human Services and the Life Insurance Company shall be provided within twenty (20) days of B.C.'s death,
11. The annuity contract will be owned solely and exclusively by the Secretary of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amount set forth in paragraph 8 herein and the amounts awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the future annuity payment. Upon the purchase of the annuity contract, the Secretary of Health and Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.
12. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.
13. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa- 15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
14. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.
15. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees, and litigation costs, the money provided pursuant to this Stipulation either immediately or as part of the annuity contract, will be used solely for the benefit of B.C. as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
16. In return for the payments described in paragraphs 8 and 12, petitioner, in her individual capacity arid as legal representative of B.C., on behalf of herself, B.C., and his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of B.C. resulting from, or alleged to have resulted from, the Hep. A, MMR, and/or varicella vaccinations administered on November 30, 2010, as alleged by petitioner in a petition for vaccine compensation filed on or about September 11, 2013, in the United States Court of Federal Claims as petition No. 13-666V,
17. If B.C. should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties.
18. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.
19. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 12 above, There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or' in the items of compensation sought, is not grounds to modify or revise, this agreement.
20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.
21. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that B.C.'s recurrent shingles, or any other condition, was caused-in-fact by any of his vaccinations administered on November 30, 2010.
22. Ail rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns as legal representatives of B.C.
