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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-557V (not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * *

ASHLEY WALLS AND KEVIN WALLS, parents of K.W., a minor

Petitioners,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Filed: March 16, 2022

Decision by Stipulation; Damages; Immune Thrombocytopenia Purpura(“ITP”); Diphtheria-Tetanus-acellularPertussis (“DTaP”) vaccine; Haemophiles Influenzae (“Hib”) vaccine; Hepatitis B (“Hep B”) vaccine; pneumococcal (“PCV”) vaccine

Ronald C. Homer , Conway, Homer, P.C., Boston Ma, for Petitioner Colleen C. Hartley , U.S. Department of Justice, Washington, DC, for Respondent

DECISION ON JOINT STIPULATION 1

On May 9, 2016, Kevin and Ashley Walls (“Petiti oners”) filed a petition on behalf of their minor son, K.W., seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”). 2 Pet., ECF No. 1. Petitioners allege d that K.W. suffered from immune thrombocytopenia purpura (“ITP”) as a result of the Diphtheria-Tetanus-acellular-Pertussis (“DTaP”), haemophiles influenzae (“Hib”), Hepatitis B (“Hep B”), and/or the pneumococcal

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted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 Ac t of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be availabl e 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. Specifica lly, 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 substa nce and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would c onstitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decisi on in its present form will be available. Id.

2 The Vaccine Program comprises Part 2 of the Nati onal Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent refere nces to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.2 (“PCV”) vaccines he received on July 16, 2014. See Stipulation ¶ 1, 2, dated March 15, 2022 (ECF No. 103); see also Petition.

On June 23, 2020, I issued a Ruling on Entitlement finding that Petitioners have met their burden in showing that the vaccinations K.W. received on July 16, 2014 caused him to develop ITP, and that he suffered from the residual effects of this injury for more than six months. See Stipulation ¶ 1, 2. Accordingly, the parties agree that “Petitione rs are entitled to compensation under the terms of the Vaccine Program for K.W.’s ITP injury.” Id. at ¶ 5.

I have reviewed the file, and based upon that re view, I conclude that th e parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth

therein.

The stipulation awards:

1. A lump sum of $3,719.10 , which amount represents compensation for past unreimbursable expenses, in the form of a check pa yable to Petitioners; and

2. An amount sufficient to purch ase the annuity contract described in ¶ 10 of the Stipulation.

Accordingly, pursuant to 42 U.S.C. § 300aa-15 (f)(4), I order responde nt to purchase, and

take sole and exclus ive ownership of an annuity contract, 3 as described below:

The 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 Pa ying Rating: Aa3, Aa2, Aa1, or Aaa; c) Standard and Poor’s Corporation Insure r 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 parties have agreed that the Life Insurance Company will make the following payment

to K.W.:

a. On March 29, 2031, a certain lump sum payment of $40,772.11

.

Stip. ¶ 10. The parties have also stipulated that the periodic pa yments set forth above may be provided to Petitioner in monthl y, quarterly, annual, or other in stallments. The annual amounts set

3 To satisfy the conditions set forth herein, in res pondent’s discretion, respondent may purchase one or more annuity contracts from one or mo re life insurance companies.3 forth above describe only the total yearly sum to be paid to Petitioners and do not require that the payment be made in on e annual installment. Id.

Should K.W. predecease the payment of the ce rtain lump sum set forth above, the certain lump sum payment shall be made to his estate. Stip. ¶ 10. Written notice shall be provided to the Secretary of Health and Human Services and the Li fe Insurance Company within twenty (20) days of Tawnya Montano’s death. Id.

Petitioners represent that they presently are, or if necessary, will become, duly authorized to serve as guardians of K.W.’s estate under the laws of West Virginia. Stip. ¶ 16. The parties and their attorneys further agree and stipulate that , except for any award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of K.W. as co ntemplated 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). Stip. ¶ 15.

This award represents compensation for a ll 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 dir ected 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.