Cyrus v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1442V
(Not to be published)
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NIKYSHA CYRUS, as natural *
guardian and legal representative *
of her minor son, J.B., *
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Petitioner, * Filed: February 15, 2017
*
v. * Decision by Stipulation;
* Damages; Influenza Vaccine;
SECRETARY OF HEALTH AND * Transverse Myelitis
HUMAN SERVICES *
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Respondent. *
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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 J.B., the son of Nikysha Cyrus. On February 13,
2017, 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 Sums
a. Respondent shall make a lump sum payment of $328.00, in the form of a
check payable to Petitioner, Nikysha Cyrus, representing compensation for
past unreimbursable expenses.
1
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.).
b. Respondent shall make a lump sum payment of $760.80, which represents
reimbursement of a lien for services rendered on behalf of Petitioner, in the
form of a check payable jointly to Petitioner, Nikysha Cyrus, and
Commonwealth of Pennsylvania
Bureau of Program Integrity
Division of Third Party Liability
Recovery Section
P.O. Box 8486
Harrisburg, PA 17105-8486
Attn: Kelly I. Long
CIS # 250174427.
2. Annuity
I consider it in best interest of J.B. 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 J.B., pursuant to which the Life Insurance Company will
agree to make payments periodically to J.B., 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
2
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.
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 lump sum payments, 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 $328.00, in the form of a check payable to
Petitioner;
• a lump sum payment of $760.80, in the form of a check payable jointly to
Petitioner and the Commonwealth of Pennsylvania, as described above in
paragraph 1(b); and
• an annuity contract, pursuant to which the Life Insurance Company will make
periodic payments to J.B., 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
3
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.