Loken v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-876V
(not to be published)
************************* *
*
TIMOTHY J. LOKEN, as Natural Guardian *
*
and Legal Representative of G.L., a minor, * Filed: March 16, 2020
*
Petitioner, *
*
* Decision by Stipulation; Damages; Tdap
v. * Vaccine; Idiopathic Thrombocytopenia
* Purpura (“ITP”).
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
*
Respondent. *
*
************************* *
Nancy Routh Meyers, Ward Black Law, P.A., Greensboro, NC, for Petitioner.
Traci Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On June 20, 2018, Petitioner Timothy Loken (“Petitioner”) filed a petition, on behalf of
his daughter, G.L., seeking compensation under the National Vaccine Injury Compensation
Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges that the Tdap vaccine
G.L. received on June 10, 2016 caused her to suffer from idiopathic thrombocytopenia purpura
(“ITP”). See Stipulation ¶ 2, 4, dated March 13, 2020 (ECF No. 31); see also Petition.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 in its present form will be available. 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-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine
Act are to 42 U.S.C.A. ' 300aa.
Respondent denies “that the vaccine caused G.L. to suffer from ITP or any other injury or
her current condition.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their
above-stated positions, agreed in a stipulation filed March 13, 2020 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
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The parties have stipulated that Petitioner shall receive the following compensation:
1. Lump Sum
A lump sum of $5,000.00, which represents compensation for past unreimbursable
expenses, in the form of a check payable to Petitioner, Timothy J. Loken. Stip. ¶ 8.
2. Annuity
The remainder of damages shall 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,3 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 G.L., pursuant to which the Life Insurance Company will
agree to make a certain lump sum payment to G.L. for all other damages that would be available
under 42 U.S.C. § 300aa-15(a), in the amount of $64,189.35 on August 20, 2027.
3
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.
I approve a Vaccine Program award in the requested amount 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.4
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.