Smoot v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-580V Filed: September 22, 2022 * * * * * * * * * * * * * DOLORES SMOOT, * UNPUBLISHED * Petitioner, * Decision on Joint Stipulation; * Neuromyelitis Optica (“NMO”); v. * Influenza (“flu”) Vaccine. * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * John Howie, Jr., Esq., Howie Law, PC, Dallas, TX, for petitioner.

Althea Davis, Esq., US Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 Roth, Special Master: On May 16, 2016, Dolores Smoot [“Ms. Smoot” or “petitioner”] filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that she suffered from neuromyelitis optica (“NMO”) after receiving the influenza (“flu”) vaccine on November 1, 2013. Stipulation, filed September 22, 2022, at ¶¶ 1-4. Respondent denies that the flu vaccine caused petitioner’s injury. Stipulation at ¶ 6.

Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107- 347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. 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 whole Decision will be available to the public. Id. National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Nevertheless, the parties have agreed to settle the case. On September 22, 2022, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Respondent agrees to issue the following payment: 1) A lump sum of $200,620.96, which represents compensation for first year life care expenses ($50,620.96) and combined lost earnings and pain and suffering ($150,000.00), in the form of a check payable to petitioner, Dolores Smoot.

2) A lump sum of $39,657.60, which represents reimbursement of a Medicaid lien for services rendered to petitioner by the State of Ohio, in the form of a check payable jointly to petitioner and the Treasurer of the State of Ohio. 3) An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased.

This amount represents compensation for all damages that would be available under § 300aa-15(a).

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.