Zatuchni v. Secretary of Health and Human Services

United States Court of Appeals for the Federal Circuit

2007-5034

DORY ZATUCHNI,
Executrix of the Estate of
E. BARBARA SNYDER, deceased,

Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent-Appellant.

Kevin P. Conway, Conway, Homer & Chin-Caplan, P.C., of Boston, Massachusetts,
argued for petitioner-appellee. On the brief was Ronald C. Homer.

Glenn A. MacLeod, Senior Trial Counsel, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellant. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Timothy P. Garren, Director,
Mark W. Rogers, Deputy Director, and Gabrielle M. Fielding, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Thomas C. Wheeler
 United States Court of Appeals for the Federal Circuit

2007-5034

DORY ZATUCHNI,
Executrix of the Estate of
E. BARBARA SNYDER, deceased,

Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent-Appellant.

Appeal from the United States Court of Federal Claims in 94-VV-58, Judge Thomas C.
Wheeler.

___________________________

DECIDED: February 12, 2008
___________________________

Before DYK, MOORE, Circuit Judges, and COTE, District Judge. ∗

Opinion for the court filed by District Judge COTE. Opinion concurring in the result and
dissenting from the majority filed by Circuit Judge DYK.

COTE, District Judge.

The Secretary of Health and Human Services (“government”) appeals the

judgment of the Court of Federal Claims awarding petitioner-appellee Dory Zatuchni

(“Zatuchni”) (in her capacity as executrix of the estate of E. Barbara Snyder (“Snyder”))

∗
Honorable Denise Cote, District Judge, United States District Court for the
Southern District of New York, sitting by designation.
$804,323.90 under the National Vaccine Compensation Program (“Program”). Zatuchni

v. Sec’y of Health & Human Servs., 73 Fed. Cl. 451 (2006). The government concedes

that $250,000 was properly awarded as a death benefit pursuant to 42 U.S.C. § 300aa-

15(a)(2), but asserts that the remaining $554,323.90, representing compensation

pursuant to 42 U.S.C. § 300aa-15(a)(1), (3), and (4) for vaccine-related injuries suffered

by Snyder prior to her death, may not be awarded because the death benefit is the sole

remedy for a petitioner who dies as a result of the administration of a vaccine. We

affirm.

BACKGROUND

Snyder received a measles, mumps, and rubella (MMR) vaccine on February 10,

1992, at the age of 45. The Court of Federal Claims summarized the events that

followed her vaccination:

Within two weeks of the vaccination, Ms. Snyder developed . . . a rash,
swollen lymph nodes, a fever, and severe pain throughout her joints and
muscles. Soon thereafter, Ms. Snyder experienced other symptoms,
which her physicians diagnosed as continuing chronic arthralgia and
[fibromyalgia syndrome (FMS)] attributable to the rubella portion of the
MMR vaccination.[ 1 ] Over the next 13 years, Ms. Snyder’s physical
condition deteriorated rapidly and significantly. . . . [She] found it
impossible to continue working . . . [e]ventually[] . . . ambulated only with a
walker, . . . [and] required a nurse’s aid to assist her with daily living
functions.

Zatuchni v. Sec’y of Health & Human Servs., 73 Fed. Cl. 451, 452-53 (2006).

On January 31, 1994, Snyder filed a petition for compensation with the Program.

As detailed in Snyder v. Secretary of Health & Human Services, No. 94-58V, 2005 WL

1
“’Arthralgia’ means joint pain.” Snyder v. Sec’y of Health & Human Servs.,
No. 94-58V, 2005 WL 1230787 at *2 n.5 (Fed. Cl. May 6, 2005) (citing Dorland’s
Illustrated Medical Dictionary 147 (27th ed. 1988)). FMS is a syndrome characterized
by “pain in many different fibrous tissue areas of the[] bod[y,]” without an obvious
physical cause. Id. at *13.

2007-5034 2
1230787, at *3-*5 (Fed. Cl. Spec. Mstr. May 6, 2005), the government conceded on

May 2, 1994, that Snyder’s chronic joint pain was caused by the MMR vaccination;

Snyder, however, also sought compensation for her other symptoms, and obtained

several stays of her petition in order to gather expert testimony in support of her claims

and to pursue settlement discussions with the government. 2 As a result of these

delays, Snyder’s petition remained pending before the special master until May 6, 2005,

when her petition was denied for failure to demonstrate that the MMR vaccination

caused her symptoms. Id. at *20.

Neither party was aware, however, that Snyder had died on April 28, 2005,

several days before the special master’s decision. Following the resolution of a brief

procedural challenge pursuant to Rule 25(a)(1) of the Rules of the Court of Federal

Claims (“RCFC”), Zatuchni was substituted as a party for Snyder and appealed the

special master’s determination. Snyder v. Sec’y of Health & Human Servs., 69 Fed. Cl.

390 (2006).

On February 9, 2006, the Court of Federal Claims reversed the special master’s

determination, concluding that Snyder had met her burden to demonstrate that her

symptoms were caused by the vaccine. The court remanded the case to the special

master to determine the amount of compensation to which her estate was entitled and

2
Also around this time, in response to the filing of several similar petitions,
the special master assigned to Snyder’s petition was directed to conduct a general
inquiry into the causal relationship between various joint-related conditions and rubella
vaccinations. The special master made findings and issued reports in 1993 and 2002
that were subsequently applied to resolve petitions alleging that rubella vaccinations
had caused joint-related symptoms, including Snyder’s petition. See Snyder, 2005 WL
1230787, at *3-*5. See generally Snyder v. Sec’y of Health & Human Servs., Nos. 94-
58V et al., 2002 WL 31965742 (Fed. Cl. Spec. Mstr. Dec. 13, 2002).

2007-5034 3
whether Snyder’s death was vaccine-related. Zatuchni v. Sec’y of Health & Human

Servs., 69 Fed. Cl. 612, 622-25 (2006).

The special master issued a decision on remand on May 10, 2006, concluding

that Snyder’s death had been vaccine-related, and that her estate was therefore entitled

to the $250,000 death benefit provided for under 42 U.S.C. § 300aa-15(a)(2). Zatuchni

v. Sec’y of Health & Human Servs., No. 94-58V, 2006 WL 1499982, at *6 (Fed. Cl. May

10, 2006). The special master also found that Snyder would have been entitled to

compensation in the amount of $554,323.90 for her vaccine-related injuries during her

lifetime, including actual expenses incurred, pain and suffering, and lost income

between the time of the vaccination and her death. Id. at *7-*8. The special master

concluded that as a matter of law, however, such compensation could not be paid to her

estate because her vaccine-related injury claims did not survive her death. Id. at *9-26.

Accordingly, the special master awarded appellant $250,000.

On appeal, the Court of Federal Claims reversed the special master’s

determination as to the claim for pre-death vaccine-related injury compensation.

Zatuchni v. Sec’y of Health & Human Servs., 73 Fed. Cl. 451, 459 (2006). It concluded

that Snyder’s injury claims did not abate upon her death, and accordingly awarded her

estate $804,323.90, consisting of the $250,000 death benefit and compensation for

injuries during her lifetime in the amount of $554,323.90. Id. The government appeals

the award of the latter amount. We have jurisdiction pursuant to 42 U.S.C. § 300aa-

12(f).

2007-5034 4
 DISCUSSION

The instant appeal requires us to determine whether the petitioner may receive

the compensation for medical expenses, lost wages, and pain and suffering provided for

under 42 U.S.C. § 300aa-15(a)(1), (3) and (4), in addition to the $250,000 death benefit

provided for under § 300aa-15(a)(2). The opinion below held that such compensation

may be awarded; the government contends on appeal that such compensation may not

be awarded because the death benefit is the sole remedy for a petitioner who dies as a

result of the administration of a vaccine, and that claims for compensation under

§ 300aa-15(1), (3), and (4) do not survive the death of a vaccine-injured person under

any circumstances.

The question of whether compensation under these subsections may be paid to

the petitioner’s estate following her vaccine-related death presents a question of

statutory interpretation, and requires an analysis of the text and structure of the

applicable statute. Cf. Seymour v. Principi, 245 F.3d 1377, 1379 (Fed. Cir. 2001)

(addressing the survivability of claims for veteran’s benefits under 38 U.S.C. § 1151);

Richard v. West, 161 F.3d 719, 722 (Fed. Cir. 1998) (“[Claimant’s] statutory argument

cannot overcome the clear intent expressed by the structure and language of the

statutory scheme at issue--that a veteran’s claim to disability benefits terminates at

death.”). We review de novo the judgment of the court below on this question.

Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353, 1355-56 (Fed. Cir. 2007);

see also 42 U.S.C. § 300aa-12(e)(2)(B).

2007-5034 5
 The Program was established by the National Childhood Vaccine Injury Act of

1986, Pub. L. No. 99-660, tit. III, 100 Stat. 3743, 3755 (1986) (“Vaccine Act”). As we

have previously noted,

Congress instituted this compensatory program because the traditional
civil tort actions against vaccine manufacturers were producing
undesirable results both with respect to the victims and the vaccine
industry. Congress found that the traditional tort system was not working
for victims because it resulted in lengthy delays, high transaction costs,
and sometimes no recovery. Similarly, the high cost of litigation and
difficulty of obtaining insurance was undermining incentives for vaccine
manufacturers to remain in the vaccine market. In sum, Congress was
concerned with the instability and unpredictability in the childhood vaccine
market.

Lowry v. Sec’y of Health & Human Servs., 189 F.3d 1378, 1381 (Fed. Cir. 1999) (citing

H.R. Rep. 99-908, at 6-7, reprinted in 1986 U.S.C.C.A.N. 6344, 6347-48 (“House

Report”)).

As its structure reflects, the Program was “intended to be expeditious and fair”

and “to compensate persons with recognized vaccine injuries without requiring the

difficult individual determinations of causation of injury and without a demonstration that

a manufacturer was negligent or that a vaccine was defective.” House Report at 12,

reprinted in 1986 U.S.C.C.A.N. at 6353; see also id. at 13, reprinted in 1986

U.S.C.C.A.N. at 6354. (“The Committee anticipates that the speed of the compensation

program, the low transaction costs of the system, the no-fault nature of the required

findings, and the relative certainty and generosity of the system’s awards will divert a

significant number of potential plaintiffs from litigation.”). “Any person who has

sustained a vaccine-related injury, the legal representative of such person if such

person is a minor or is disabled, or the legal representative of any person who died as

the result of the administration of a vaccine set forth in the Vaccine Injury Table” may

2007-5034 6
file a petition under the Program. 42 U.S.C. § 300aa-11(b)(1)(A); see also id. § 300aa-

14 (Vaccine Injury Table). 3 Causation is “presumed” where “an injury or condition listed

in the Vaccine Injury Table begins to manifest itself within the time specified in the Table

for the vaccine in question.” Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518,

1524 (Fed. Cir. 1991); see also 42 U.S.C. §§ 300aa-11(c)(1)(C)(i), -13(a)(1)(A)-(B). 4

The Vaccine Act also requires that the procedures established for resolving claims

under the Program be “expeditious[] and informal,” including “flexible and informal

standards of admissibility of evidence.” 42 U.S.C. § 300aa-12(d)(2)(A)-(B).

The Program imposes firm deadlines for both the filing and resolution of petitions,

further reducing the likelihood of complex causation inquiries or extended litigation. A

petition for compensation arising out of a vaccination administered before October 1,

1988 (a “pre-Act” petition), must have been filed within 28 months of that date, and, in

any event, “no such petition may be filed if the first symptom or manifestation of onset or

of the significant aggravation of such injury occurred more than 36 months after the date

of administration of the vaccine.” Id. § 300aa-16(a)(1). A petition for compensation

arising out of a vaccination administered after October 1, 1988 (a “post-Act” petition)

must be filed within 36 months of the onset of symptoms; “if a death occurred,” a

petition must be filed within 24 months of the death and no more than 48 months after

the onset of symptoms. Id. § 300aa-16(a)(2)-(3). In turn, once a petition is received, a

3
The Act requires that such a petition be filed, and judgment from the
Program rejected, prior to bringing an action in state court. 42 U.S.C. §§ 300aa-
11(a)(2)(A), -21.
4
“[F]or injuries not listed in the Table, or which do not occur within the time
period stipulated in the Table, the Vaccine Act authorizes recovery only if the petitioner
proves actual causation.” Hines, 940 F.2d at 1524-25; see also 42 U.S.C. § 300aa-
11(c)(1)(C)(ii); Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.
Cir. 2005).

2007-5034 7
special master of the United States Court of Federal Claims must issue a decision

within 240 days (with some time excepted), and stays are generally limited. 5 Id.

§ 300aa-12.

The types of compensation available to a petitioner under the Program are listed

in 42 U.S.C. § 300aa-15. Section 300aa-15(a) addresses post-Act petitions, such as

the petition at issue here; subsection (b) addresses pre-Act petitions. Subsection (a)

provides, in relevant part:

Compensation awarded under the Program to a petitioner under section
300aa-11 of this title for a vaccine-related injury or death associated with
the administration of a vaccine after October 1, 1988, shall include the
following:

(1) (A) Actual unreimbursable expenses incurred from the date of the
judgment awarding such expenses and reasonable projected
unreimbursable expenses which . . . result from the vaccine-related
injury for which the petitioner seeks compensation . . . .

(B) Subject to section 300aa-16(a)(2) of this title, actual
unreimbursable expenses incurred before the date of the judgment
awarding such expenses which . . . resulted from the vaccine-
related injury for which the petitioner seeks compensation . . . .[ 6 ]

(2) In the event of a vaccine-related death, an award of $250,000 for
the estate of the deceased.

(3) (A) In the case of any person who has sustained a vaccine-related
injury after attaining the age of 18 and whose earning capacity is or

5
This case, of course, is an exception to this general rule. As the Special
Master recognized, this is a “very unusual Vaccine Act case.” Zatuchni, 2006 WL
1499982, at *3 n.5. Repeated stays were granted in an effort to answer precisely the
kind of complex causation questions the Program is structured to avoid, and thus
Snyder’s claim was not resolved for more than ten years after it was initially filed -- and
several days after she died. See id. at *3; Snyder, 2005 WL 1230787, at *3-*5. The
“unusual” posture of this case, however, is not relevant to the question presented.
6
The types of recoverable “unreimbursable expenses” under these
provisions are detailed in 42 U.S.C. §§ 300aa-15(a)(1)(A)(iii)(II) and -15(a)(1)(B)(iii),
which are omitted here for the sake of simplicity, as they are not at issue in the instant
appeal.

2007-5034 8
 has been impaired by reason of such person’s vaccine-related
injury for which compensation is to be awarded, compensation for
actual and anticipated loss of earnings determined in accordance
with generally recognized actuarial principles and projections.

[. . . .]

(4) For actual and projected pain and suffering and emotional distress
from the vaccine-related injury, an award not to exceed $250,000.

Id. § 300aa-15(a). Subsection (b) incorporates by reference most of the categories of

compensation established in subsection (a), but is structured somewhat differently,

does not permit recovery of unreimbursable expenses incurred before the date of

judgment, and contains a stricter limit on the amount of compensation that may be

awarded for several other categories of compensation. It provides:

Compensation awarded under the Program to a petitioner under section
300aa-11 of this title for a vaccine-related injury or death associated with
the administration of a vaccine before October 1, 1988, may include the
compensation described in paragraphs (1)(A) and (2) of subsection (a) of
this section and may also include an amount, not to exceed a combined
total of $30,000, for--

(1) lost earnings (as provided in paragraph (3) of subsection (a) of
this section),
(2) pain and suffering (as provided in paragraph (4) of subsection
(a) of this section), and
(3) reasonable attorneys’ fees and costs (as provided in subsection
(e) of this section[)].

Id. § 300aa-15(b). The Act also provides that compensation will be paid in no more

than 3,500 pre-Act cases. Id. § 300aa-11(b)(1)(B).

The question presented here is whether a petitioner who has suffered a vaccine-

related injury and dies from vaccine-related causes while her petition for compensation

under § 300aa-15(a) is pending may recover, in addition to the death benefit provided

under § 300aa-15(a)(2), compensation under subsections (a)(1), (3), and (4). Based on

2007-5034 9
the statutory text and structure outlined above, we answer this question in the

affirmative.

Most important, the text and structure of § 300aa-15(a) indicate that the death

benefit provided by subsection (a)(2) is not the exclusive remedy where a petitioner has

experienced both a vaccine-related injury and a vaccine-related death. First, subsection

(a)(2) is not set off from the subsections dealing with compensation for expenses, lost

wages, and pain and suffering; to the contrary, it is listed between and alongside those

provisions, which supports an interpretation in which the death benefit is simply one of

several types of compensation that are available in an appropriate case. Second, and

perhaps most crucially, the text of subsection (a) as a whole does not, as the

government maintains, provide any indication that the death benefit in (a)(2) is the only

compensation that may be paid in a “death case,” whereas the compensation provided

for in subsections (a)(1), (3), and (4) may be paid only in an “injury case” in which the

injured party is still living. Subsection (a) begins with the directive that “[c]ompensation

. . . shall include the following,” and proceeds to list four categories of available

compensation. Id. § 300aa-15(a) (emphasis added). The government argues,

however, that despite this inclusive opening language, subsections (a)(1), (3), and (4)

state that they provide only compensation for expenses, lost wages, and pain and

suffering caused by a “vaccine-related injury,” whereas subsection (a)(2) states that it

provides $250,000 to an estate only “[i]n the event of a vaccine-related death,” and that

this phrasing supports the conclusion that compensation under all four of these

provisions is not permitted.

2007-5034 10
 This argument does not withstand scrutiny. Put simply, the fact that a vaccine-

related death followed a vaccine-related injury in a particular case does not alter the fact

that certain expenses were incurred, wages lost, or pain and suffering endured in the

interim, and these damages are no less related to or caused by a vaccine-related injury

within the meaning of subsections (a)(1), (3), and (4) simply because the vaccine-

injured person in question is no longer living. Id. § 300-15(a). Thus, it is in no way

inconsistent with the text of 42 U.S.C. § 300aa-15(a) to award compensation under

subsections (a)(1), (3), and (4) for damages that “resulted from” or were sustained “by

reason of” a vaccine-related injury in addition to the death benefit provided for under

subsection (a)(2) “[i]n the event of a vaccine-related death.” Id. 7 To the contrary, this

is the reading of § 300aa-15(a) that most naturally flows from its text and structure.

This interpretation of § 300aa-15(a) is confirmed by an analysis of § 300aa-15(b).

The government conceded in oral argument that these two provisions, while differently

structured and addressed to different categories of petitions (pre-Act rather than post-

Act petitions), should be interpreted consistently with respect to the question of whether

compensation for a vaccine-related injury can be awarded after the death of a vaccine-

injured person, as neither the statute itself nor the legislative history provides any

indication that Congress intended to reach a different result on this point in pre-Act and

7
The government also argues that Congress’s intent to limit compensation
“[i]n the event of a vaccine-related death” to the death benefit provided in subsection
(a)(2) is evidenced by the fact that this subsection is the only one that makes reference
to a payment made to an “estate.” We do not view this language in the same light.
Read in context, this language seems to establish only that, where a vaccine-related
death has occurred, the $250,000 should be paid directly to the deceased individual’s
estate, and not to some other entity or person, such as a surviving spouse. Similarly,
while subsections (a)(1), (3), and (4) do not state that an estate may receive the
compensation described therein, neither do they state that only a living vaccine-injured
person may do so.

2007-5034 11
post-Act cases. 8 We agree, and further find that the text and structure of subsection (b)

make even more explicit that both “injury” and “death” compensation may be available

in an appropriate case.

Section 300aa-15(b) provides that, in a pre-Act case, compensation “may include

the compensation described in paragraphs (1)(A) and (2) of subsection (a) of this

8
In fact, the amendment history of subsection (b) confirms that subsections
(a) and (b), as currently written, should be read as providing the same types of
compensation in appropriate cases (with one exception). As passed, 42 U.S.C.
§ 300aa-15(b) restricted recovery in pre-Act cases to “the compensation described in
paragraphs (1)(A) and (2) of subsection (a)” -- i.e., to post-judgment expenses and the
death benefit. Pub L. No. 99-660, § 2115(b). In 1987, subsection (b) was amended to
expand the categories of compensation available. Rather than simply state which of the
types of compensation described in subsection (a) are available in a pre-Act case, this
revision instead incorporated subsection (a) by (indirect) reference by providing that
compensation in a pre-Act case

may not include the compensation described in paragraph (1)(B) of
subsection (a) [i.e., pre-judgment expenses] and may include attorney’s
fees and other costs included in a judgment under subsection (e) [i.e.,
costs and fees], except that the total amount that may be paid as
compensation under paragraphs (3) and (4) of subsection (a) [i.e., lost
wages and pain and suffering] and included as attorneys’ fees and other
costs under subsection (3) may not exceed $30,000.

Pub L. No. 100-203, § 4303(e). In essence, subsection (b) was amended to mirror
subsection (a) in terms of the types of compensation available, with the exception of the
denial of pre-judgment expenses; compensation under all other provisions of subsection
(a) was thus made available in a pre-Act case, but compensation for lost wages, pain
and suffering, and costs and fees was capped at $30,000. In 1989, subsection (b) was
amended again to read as it does today. The legislative history indicates that this last
amendment, however, was “only intended to clarify the amount of damages” available in
light of “some confusion about the allowable compensation,” and “represents no change
in policy from the Act” as previously written. H.R. Rep. 101-247, at 514, reprinted in
1989 U.S.C.C.A.N. 1906, 2240. As this legislative history indicates, the current version
of subsection (b) is intended to make the connection between the types of
compensation available under subsections (a) and (b) even more explicit than was the
case in 1987. In sum, then, because both the text of subsection (b) and the associated
legislative history indicate that subsection (b) is intended to be -- with some limited and
explicit exceptions -- a reflection of subsection (a), subsection (b) is properly read as a
guide to the types of compensation available under subsection (a) in this case.

2007-5034 12
section and may also include . . . lost earnings [and] pain and suffering” as described in

subsections (a)(3) and (4). Id. § 300aa-15(b) (emphasis added). Although recovery for

lost earnings and pain and suffering (along with attorney’s fees) are capped at $30,000

for a pre-Act recovery under subsection (b), the underscored text establishes beyond

cavil that, in a pre-Act case, the statute provides that the death benefit in paragraph (2)

may be paid to an estate alongside compensation for post-judgment expenses, lost

earnings, and pain and suffering. If we are to read subsections (a) and (b) in parallel,

then, the interpretation of subsection (a) outlined above must be adopted here. 9

Moreover, as the government’s concession underscores, nothing in the language or

structure of the Vaccine Act indicates that Congress intended to provide vaccine-related

injury compensation in addition to the death benefit in pre-Act cases but not in post-Act

cases.

Moving beyond § 300aa-15 itself, the government argues that several other

provisions of the statute demonstrate that the Vaccine Act as a whole draws a

distinction between vaccine-related injury claims and vaccine-related death claims that

precludes a finding that any petitioner might be awarded the compensation

contemplated here. Primary reliance is placed on § 300aa-11(b)(1)(A), which describes

who “may . . . file a petition for compensation under the Program,” and § 300aa-

11(b)(2), which provides that “[o]nly one petition may be filed with respect to each

9
This reading of subsection (b) also disposes of the government’s
contention that the use of the conjunction “or” in the first sentence of subsection (a),
which notes that compensation will be paid “for a vaccine-related injury or death,” is
intended to indicate that “injury” compensation or “death” benefits, but not both, may be
paid in a particular case. As subsection (b) demonstrates, this language simply
describes the two broad categories of compensation available, which are then further
detailed in the subsections that follow, and in no way indicates that an award of one
category of compensation precludes an award of the other.

2007-5034 13
administration of a vaccine” (the “single petition rule”). While we are mindful that

“[s]tatutes must be read as a whole,” United States v. Atlantic Research Corp., -- U.S.

-- , 127 S. Ct. 2331, 2336 (2007) (internal quotation marks omitted), we do not find the

government’s arguments on these points to be compelling.

Based on its reading of § 300aa-11(b)(1)(A), the government contends that

because the right to file a claim after the death of a vaccine-injured person is limited to

the “the legal representative of any person who died as the result of the administration

of a vaccine,” it is apparent that “a person who dies before the filing of a petition cannot

request compensation for a vaccine-related injury.” Reasoning from this conclusion, the

government argues that vaccine-related injury claims thus do not survive the death of

the vaccine-injured person. The government’s reading of this provision goes too far.

We need not decide whether § 300aa-11(b)(1)(A) would permit the estate of a person

who suffered vaccine-related injuries but died of a non-vaccine-related cause to file a

petition for vaccine-related injury compensation, and thus express no view on that

point; 10 this provision, however, plainly does not dictate that a properly filed petition by

10
The dissent states that our demurer here indicates that we are “troubled
by the possibility of this anomalous result.” Dissent at 6 n.5. To the contrary, we are
simply declining to decide a question not presented in the case before us. Moreover,
we do not find “troubling” or “anomalous” the possibility that § 300aa-11(b)(1)(A) would
bar the estate of a person who died of non-vaccine-related causes from filing a petition
for vaccine-related injury compensation. As noted below, infra at 16-17, § 300aa-
11(b)(1)(A) is simply one of several trade-offs and limitations in the Program, and we
express no view on the policy choices reflected in those provisions. By contrast, it may
be noted that the federal common law approach offered by the dissent appears to
conflict directly with § 300aa-11(b)(1)(A). The dissent’s approach would allow a
vaccine-related injury claim to survive in all cases -- regardless of the cause of death or
whether a petition was filed before or after death -- and thus would permit a new petition
for vaccine-related injury compensation to be filed by the estate of a person who did not
die from a vaccine-related cause.

2007-5034 14
the estate of a person who suffered both vaccine-related injuries and a vaccine-related

death (and thus had standing to file under § 300aa-11(b)(1)(A)) may not contain a

request for any and all of the types of compensation listed in § 300aa-15(a). Similarly,

as in this case, if a petition is properly filed by a person who suffered a vaccine-related

injury, but that person dies of vaccine-related causes while her claim is pending, §

300aa-11(b)(1)(A) does not prevent -- directly or by implication -- the legal

representative of the estate of such a person from requesting each of the categories of

compensation listed in § 300aa-15(a) after they have been properly substituted for the

deceased petitioner.

In a related argument, the government contends that the single petition rule of

§ 300aa-11(b)(2) also supports its view that the Vaccine Act makes a bright-line

distinction between “injury” cases and “death” cases. The government argues that, as a

The dissent appears willing to endorse such a result in order to “harmonize the
federal scheme with the state alternative” in light of what the dissent perceives as
Congress’s intent to “replace” state law remedies with the compensation scheme
provided by the Program. Dissent at 13. The dissent reasons that “[a] rule in favor of
survivorship of vaccine-related injury claims would preserve the Vaccine Act as an
effective substitute for the state tort system.” Id. This reflects a misreading of the Act.
Not only, as the dissent recognizes, are claimants permitted to opt-out of or withdraw
from the Program under several circumstances in order to seek remedies in state court,
see 42 U.S.C. §§ 300aa-11(a)(2)(A), 21(a)-(b), but the Act also explicitly preempts state
laws that “prohibit[] an individual from bringing a civil action against a vaccine
manufacturer for damages for a vaccine-related injury or death if such civil action is not
barred” under the Program. Id. § 300aa-22(e). In short, the Act does not “replace” or
provide a “substitute for” state law remedies; rather, it provides an alternative forum of
first resort designed to “divert a significant number of potential plaintiffs from litigation.”
House Report at 13, reprinted in 1986 U.S.C.C.A.N. at 6354. Where compensation is
not available under the Program, or is seen by the claimant as unsatisfactory for any
reason, however, the Act expressly contemplates that claimants will seek state-law
remedies. Thus, faced with a scenario in which compensation is not available under the
Program, the appropriate response is not to expand the scope of the Act in order to
“harmonize” the Act with state law, but rather to follow the unambiguous language of the
Act and allow the claimant to proceed to state court.

2007-5034 15
result of this rule, if a vaccine-injured person were to file a petition and receive

compensation under § 300aa-15(a)(1), (3), and (4) during his lifetime, and were

subsequently to die as a result of his vaccine-related injuries, a second petition and

recovery under § 300aa-15(a)(2) would not be permitted. Because it would not be

possible to recover both the death benefit and vaccine-related injury compensation

under those circumstances, the government contends that the statutory structure

contemplates that there are “two separate types of petitions -- a vaccine injury petition

or a vaccine-related death petition” and that the “pursuit of the two separate claims in a

single petition” is “precluded.”

We, of course, agree that a second petition seeking the death benefit would not

be permitted under the circumstances just described; that result is clearly dictated by

the single-petition rule in § 300aa-11(b)(2). It does not follow, however, that because

recovery of both the death benefit and vaccine-related injury compensation is not

possible in one scenario that it is not possible under another quite different scenario,

such as that presented by the instant appeal. As the description above indicates, the

Program contains several limitations and trade-offs that restrict recovery, including the

statute of limitations, the filing requirements of § 300aa-11, the single petition rule, the

limitation on the number of pre-Act petitions for which compensation may be awarded,

and limits on the amount of compensation that may be paid under certain subsections of

§ 300aa-15. Many of these limitations appear to be driven by concerns about the

difficultly of establishing causation for injuries or deaths after a significant lapse of time,

or about the adequacy of the Vaccine Injury Compensation Trust Fund, see 26 U.S.C.

§ 9510, to cover all petitions that might be filed under the Program. Whatever their

2007-5034 16
origin, that these limitations prevent certain individuals who have undoubtedly suffered

as a result of a vaccine from receiving full (or any) compensation is beyond question.

Given, however, what we view as the plain meaning of § 300aa-15 -- that recovery

under § 300aa-15(a)(1) through (4) is permitted where appropriate -- we do not believe

that these limiting provisions require us to set aside that meaning here and hold that

such a recovery is never possible simply because these limiting provisions indicate that

it would be unattainable under certain circumstances, nor do we feel that such a result

is either “absurd” or inconsistent with the text, structure, or spirit of the Vaccine Act as a

whole. 11

Moreover, we note that if the government’s arguments are taken to their logical

conclusion, all recovery would be denied here. The government contends that

§§ 300aa-11(b)(1)(A) and 300aa-11(b)(2), read together, indicate that a petition may be

filed for either a vaccine-related injury or a vaccine-related death, but not for both, and

that the compensation available is determined by the identity of the filer: if an estate

files, it may only receive a death benefit; if an injured person files, she may only receive

11
The government further contends that the statute of limitations provided in
§ 300aa-16(a)(2) and (3), which distinguishes between petitions arising out of “a
vaccine-related injury” and cases in which “a death occurred as a result of the
administration of [a] vaccine,” also supports its view that the Program generally
distinguishes between “injury” cases and “death” cases. 42 U.S.C. § 300aa-16(a)(2)-
(3). First, we note, again, that these provisions are in no way inconsistent with a system
in which petitions for both vaccine-related injury compensation and a death benefit are
permitted. (Such a petition would simply fall into the category of cases in which “a
death occurred as a result of the administration of [a] vaccine.”) Second, the legislative
history indicates that the statute of limitations -- including the distinction drawn between
“vaccine-related injury” cases and cases in which “a death occurred” -- is more readily
explained by a concern with avoiding “difficult individual determinations of causation” in
connection with Program petitions, and thus does not necessarily reflect a broader goal
of separating “injury” cases and “death” cases. House Report at 12, reprinted in 1986
U.S.C.C.A.N. at 6353; see also id. at 13, reprinted in 1986 U.S.C.C.A.N. at 6354.

2007-5034 17
injury-related benefits. In this case, however, Snyder filed her claim for vaccine-related

injury compensation while she was alive, and the single-petition rule bars the filing of

any additional petitions related to the administration of her MMR vaccine. In this

scenario, the most logical outcome under the government’s reading of the statute would

be to conclude (1) that because Snyder’s estate did not “file” the claim at issue here

within the meaning of § 300aa-11(b)(1)(A) -- but rather has been substituted for the

deceased Snyder in order to continue her original petition -- it cannot recover anything

in connection with her petition; (2) that this petition should therefore be denied; and (3)

that because no further petitions may be filed, no recovery is available to the estate.

We recognize, of course, that the government has chosen to concede in this appeal that

Snyder’s estate is entitled to recover a death benefit, but the result that would follow

from an endorsement of the logic of the government’s position -- a result that we do not

believe is required under the statute -- underscores the imprudence of reading § 300aa-

11(b) as controlling the types of compensation available rather than, as its text provides,

simply describing who “may . . . file a petition for compensation under the Program.” 42

U.S.C. § 300aa-11(b)(1)(A).

Given the posture of this case, we also note that there is no procedural difficulty

presented by the substitution of a deceased petitioner’s legal representative following a

vaccine-related death that prevents us from reaching the result contemplated here.

RCFC 25(a)(1) provides that “[i]f a party dies and the claim is not thereby extinguished,

the court may order substitution of the proper parties.” The Rule also details the

procedural requirements for effecting the substitution. RCFC 25. In this case,

substitution was made pursuant to this procedure, and while the government contested

2007-5034 18
whether the petitioner’s motion for substitution was timely in light of certain delays in the

probate process, this procedural question was resolved in favor of the petitioner and is

not challenged here. Snyder v. Sec’y of Health & Human Servs., 69 Fed. Cl. 390

(2006). 12

Finally, we do not find that the doctrine of sovereign immunity prevents us from

affirming here. As the discussion above indicates, we do not find that the government

has offered a “plausible” reading of the statute, Marathon Oil Co. v. United States, 374

F.3d 1123, 1127 (Fed. Cir. 2004), as endorsement of its position would require us to

ignore what we see as the plain reading of 42 U.S.C. § 300aa-15(a) and (b), and to do

so in the absence of any statutory guidance supporting that reinterpretation. The

doctrine of sovereign immunity does not require such a result. 13

12
We recognize that RCFC 25 is purely a procedural device, and does not
answer the substantive legal question of whether a claim is “extinguished” under these
circumstances. Cf. Robertson v. Wegmann, 436 U.S. 584, 587 n.3 (1978). That
question of substantive law is answered in the analysis provided above.
13
The government cites, for example, Schumacher v. Secretary of Health &
Human Services, 2 F.3d 1128 (Fed. Cir. 1993), in support of the proposition that the
sovereign immunity doctrine applies to interpretations of the Vaccine Act. In that case,
however, while we recognized that “a waiver of sovereign immunity must be
unequivocally expressed,” id. at 1135 n.12 (internal quotation marks omitted), we
rejected the government’s interpretation of 42 U.S.C. § 300aa-11(a)(5)(B) as
inconsistent with the text, structure, and purpose of the Vaccine Act. Id. at 1130-35.
We reach a similar conclusion here. Moreover, while the government has asserted,
citing, inter alia, United States v. Williams, 514 U.S. 527, 541 (1995) (Scalia, J.,
concurring), that the sovereign immunity doctrine “applies even to the determination of
the scope of explicit waivers,” id., the sentences that follow the quoted language are
equally instructive: “The rule does not, however, require explicit waivers to be given a
meaning that is implausible . . . . ‘“The exemption of the sovereign from suit involves
hardship enough where consent has been withheld. We are not to add to its rigor by
refinement of construction where consent has been announced.”’” Id. (quoting United
States v. Aetna Cas. & Surety Co., 338 U.S. 366, 383 (1949) (quoting Anderson v.
Hayes Constr. Co, 153 N.E. 28, 29-30 (N.Y. 1926) (Cardozo, J.))).

2007-5034 19
 CONCLUSION

The judgment of the Court of Federal Claims awarding the petitioner

compensation pursuant to 42 U.S.C. § 300aa-15(a) in the amount of $804,323.90 is

affirmed.

AFFIRMED

COSTS

No costs.

2007-5034 20
 United States Court of Appeals for the Federal Circuit

2007-5034

DORY ZATUCHNI,
Executrix of the Estate of
E. BARBARA SNYDER, deceased,

Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent-Appellant.

Appeal from the United States Court of Federal Claims in 94-VV-58, Judge Thomas C.
Wheeler.

DYK, Circuit Judge, concurring in the result and dissenting from the majority opinion.

This case presents a simple question: whether a claim for compensation for a

vaccine-related injury under the National Childhood Vaccine Injury Act (the “Vaccine

Act”), 42 U.S.C. §§ 300aa-10, to -34 (2000), survives the death of a petitioner. Without

any basis in the statutory text, the majority holds that the Vaccine Act provides for

survivorship. In my view, the Vaccine Act is entirely silent as to issues of survivorship.

The majority’s approach is contrary to established authority recognized explicitly in eight

circuits, and implicitly by the Supreme Court, that survivorship is determined as a matter

of federal common law when the statute does not explicitly address the question. The

majority offers no reason for ignoring this established rule in favor of an untenable

construction of the Vaccine Act.
 I

This issue arises against a background of pervasive concern about the survival

of personal injury claims. At common law, personal injury claims, unlike claims for injury

to property, did not survive, but abated upon the death of either the plaintiff or the

defendant. See, e.g., Restatement (Second) of Torts § 900(a) & cmt. a. (1979); see

also Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1044

(1965). The modern approach, however, has been to reject the common law rule and

allow survivorship. See W. Page Keeton et al., Prosser and Keeton on The Law of

Torts § 126 (4th ed. 1984).

The majority goes to great lengths to demonstrate that the Vaccine Act does not

preclude survivorship, and I agree. 1 However, in my view, the majority entirely fails to

explain where or how the Vaccine Act affirmatively provides for survivorship. It is well

established that in construing a statute, a court may not “draw on some unexpressed

spirit outside the bounds of the normal meaning of” the words used in the statute.

Addison v. Holly Hill Fruit Prods., 322 U.S. 607, 617 (1944); see also Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 199 (1976) (rejecting construction of statute that “would add

a gloss to the operative language of the statute quite different from its commonly
2
accepted meaning”). The majority opinion does not identify any statutory text that

could be read to provide a right of survivorship.

1
Unlike the Vaccine Act, some statutes do expressly preclude survivorship,
eliminating the need to turn to federal common law to resolve the issue. See, e.g., 38
U.S.C. § 1151; see also Seymour v. Principi, 245 F.3d 1377, 1380 (Fed. Cir. 2001) (“[I]t
follows directly from the language of section 1151 that a claim for disability under
section 1151 is extinguished by a veteran’s death.”).
2
The Supreme Court expressed this principle at greater length in Addison:

2007-5034 2
 The only statutory text that could possibly be read to provide for survivorship of

some Vaccine Act claims is the act’s standing provision:

[A]ny person who has sustained a vaccine-related injury, the legal
representative of such person if such person is a minor or is disabled, or
the legal representative of any person who died as the result of the
administration of a vaccine set forth in the Vaccine Injury Table may, if the
person meets the requirements of subsection (c)(1) of this section, file a
petition for compensation under the [National Vaccine Injury
Compensation] Program.

42 U.S.C. § 300aa-11(b)(1)(A). Any construction of section 300aa-11(b)(1)(A) to

provide affirmatively for survivorship of injury claims, however, would be plainly

incorrect.

First, the text of section 300aa-11(b)(1)(A) simply does not address whether a

claim for a vaccine related injury survives and can be pursued by the estate of the

injured person. The standing language provides that the legal representative of a

person “who has sustained a vaccine-related injury” may file a petition for compensation

only if the injured person “is a minor or is disabled.” This language does not address

whether a legal representative of a deceased, previously-injured person may file a

petition for compensation. The standing provision also authorizes “the legal

representative of any person who died as the result of the administration of a vaccine

set forth in the Vaccine Injury Table” to bring “a petition for compensation.” This

We should of course be faithful to the meaning of a statute. But
after all Congress expresses its meaning by words. If legislative policy is
couched in vague language, easily susceptible of one meaning as well as
another in the common speech of men, we should not stifle a policy by a
pedantic or grudging process of construction. To let general words draw
nourishment from their purpose is one thing. To draw on some
unexpressed spirit outside the bounds of the normal meaning of words is
quite another.
322 U.S. at 617.

2007-5034 3
provision of section 300aa-11(b)(1)(A) clearly refers to a claim for the death benefit

provided in section 300aa-15(a)(2) and does not authorize any action with respect to a

person who has suffered a vaccine-related injury before death. In addition, there is not

a shred of legislative history that would support a construction of section 300aa-

11(b)(1)(A) as explicitly providing for survivorship of vaccine-related injury claims, nor

does the majority claim that any exists.

Second, it is significant that section 300aa-11 does not use language similar to

that used in other federal or state statutes that do provide for survivorship. Those

statutes use terminology such as “not abate” or “survive” to preserve causes of action

after death. For example, Congress has explicitly provided that any “civil action for

damages commenced by or on behalf of the United States or in which it is interested

shall not abate on the death of a defendant but shall survive and be enforceable against

his estate as well as against surviving defendants.” 28 U.S.C. § 2404 (emphases

added). Similarly, the Federal Employers’ Liability Act, in providing for survivorship,

states:

Any right of action given by this chapter to a person suffering injury shall
survive to his or her personal representative, for the benefit of the
surviving widow or husband and children of such employee, and, if none,
then of such employee's parents; and, if none, then of the next of kin
dependent upon such employee, but in such cases there shall be only one
recovery for the same injury.

45 U.S.C. § 59 (emphasis added). 3 The vast majority of state statutes also utilize such

language. See 3 Stuart M. Speiser & James E. Rooks, Jr., Recovery for Wrongful

3
This explicit survivorship provision is also incorporated by reference in the
Jones Act. See 46 U.S.C.A § 30104(a) (West 2006); see also Gillespie v. U.S. Steel
Corp., 379 U.S. 148, 157 (1964) (“There is, of course, no doubt that the Jones Act

2007-5034 4
Death, app. A (4th ed. 2005) (collecting state statutes). The Vaccine Act contains no

similar language addressing the issue of survivorship.

Third, and perhaps most significantly, a strained interpretation of section 300aa-

11(b)(1)(A) to provide for survivorship would create an anomalous, arbitrary, and unfair

result that Congress cannot have intended. The language of the Vaccine Act authorizes

an action only by “the legal representative of any person who died as the result of the

administration of a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa-

11(b)(1)(A).

As the government points out, if this language were construed to provide for

survival, a petitioner’s claim for vaccine-related injury would survive only if the petitioner

died from vaccine-related causes, since the language refers only to “the legal

representative of any person who died as the result of the administration of a vaccine

set forth in the Vaccine Injury Table.” Id. If the petitioner died of unrelated causes,

section 300aa-11(b)(1)(A) could not be read to provide any standing for the petitioner’s

personal representative, and the vaccine-related injury claim would apparently abate.

This would leave such a petitioner’s estate no basis for any compensation at all, even

though the petitioner would have suffered vaccine-related injuries and associated costs

during his or her life. There is no basis in the policy of the Vaccine Act to distinguish, in

terms of the availability of compensation for pre-death injury, between a person who

suffers a vaccine-related injury and subsequently dies as a result of the vaccination, and

through § 9 of the FELA, 45 U.S.C. § 59 (1958 ed.), provides for survival after the death
of the seaman of ‘(a)ny right of action given by this chapter[]’. . . .” (footnote omitted)).

2007-5034 5
a person who suffers the same vaccine-related injury but dies of unrelated causes. 4

Congress cannot possibly have intended such a result, and nothing in the legislative

history suggests that Congress intended this result. It would be a further stretch to

imagine that Congress not only intended such a distinction, but chose to embody it in

statutory language that purports only to confer standing on a legal representative to

seek the statutory death benefit. 5

Perhaps recognizing that section 300aa-11(b)(1)(A) cannot be read as providing

for survivorship, the majority appears to base its finding of survivorship on a negative

inference from another provision of the Vaccine Act, section 300aa-15(b), which

governs compensation available for so-called pre-Act injuries, that is, those arising from

vaccinations administered prior to the 1988 effective date of the Vaccine Act. 6 Maj. Op.

4
While not necessary to its result, the majority suggests that if a petitioner
secured a judgment for a vaccine-related injury, and subsequently died as a result of
the same vaccination, that person’s legal representative might not be able to recover
the statutory death benefit because of section 300aa-11(b)(2), which provides that
“[o]nly one petition may be filed with respect to each administration of a vaccine.” See
Maj. Op. at 16. This is clearly not the purpose of the single petition rule, which was
intended to prevent a petitioner from evading the limitation on compensation for pain
and suffering by filing multiple petitions for the same vaccine-related injury. See H.R.
Rep. No. 99-908, at 14-15 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6355-56.
5
The majority appears to be troubled by the possibility of this anomalous
result. It does not rely on section 300aa-11(b)(1)(A) as the source of the survivorship
right for vaccine-related injury claims, and it explicitly avoids deciding whether a claim
for vaccine-related injury would survive the injured person’s unrelated death. “We need
not decide whether § 300aa-11(b)(1)(A) would permit the estate of a person who
suffered vaccine-related injuries but died of a non-vaccine-related cause to file a petition
for vaccine-related injury compensation . . . .” Maj. Op. at 14.
6
Section 300aa-15(b) provides, in relevant part:
Compensation awarded under the Program to a petitioner under section
300aa-11 of this title for a vaccine-related injury or death associated with
the administration of a vaccine before October 1, 1988, may include the
compensation described in paragraphs (1)(A) [providing for unreimbursed
medical expenses for vaccine injuries] and (2) [providing a uniform death

2007-5034 6
at 11-13. However, the majority plainly misreads this section as providing for

survivorship. Like section 300aa-11(b)(1)(A), section 300aa-15(b) does not address the

issue of survivorship, and it does not use the language “survive” or “not abate.”

The plain language of section 300aa-15(b) limits the compensation available with

respect to vaccinations administered prior to the effective date of the Vaccine Act by

imposing a $30,000 cap on the total compensation for pain and suffering, lost wages,

and attorneys’ fees, while otherwise making available in pre-Vaccine Act cases all of the

same categories of compensation available in post-Vaccine Act cases under section

300aa-15(a): medical expenses, lost wages, pain and suffering, and the statutory death

benefit (in addition to reasonable attorneys’ fees, as provided in section 300aa-15(e)).

The majority relies heavily on the use of the word “and” in section 300aa-15(b) (referring

to injury compensation “and” the death benefit) to reach the conclusion that the same

individual may recover both compensation for injury and a death benefit. It then

appears to read the same conjunctive language into section 300aa-15(a). Maj. Op. at

12-13. But section 300aa-15(b), in describing the types of compensation recoverable,

like section 300aa-15(a), obviously refers to the various types of compensation

recoverable by the class of individuals entitled to sue, not the compensation recoverable

by each individual claimant. This is necessarily the case because individuals still alive

cannot be entitled to the death benefit under section 300aa-15(a)(2). Moreover, the

benefit] of subsection (a) of this section and may also include an amount,
not to exceed a combined total of $30,000, for--
(1) lost earnings (as provided in paragraph (3) of subsection (a) of
this section),
(2) pain and suffering (as provided in paragraph (4) of subsection
(a) of this section), and

2007-5034 7
right of any individual claimant to recover is governed explicitly by section 300aa-11, not

by section 300aa-15.

This is made clear by section 300aa-15(b) itself. That section refers, with respect

to eligibility to receive compensation, back to the standing provision of section 300aa-

11, specifying the amount of “[c]ompensation awarded under the Program to a petitioner

under section 300aa-11 of this title for a vaccine-related injury or death.” 42 U.S.C. §

300aa-15(b). Section 300aa-11 governs the right to recovery of the individual claimant.

As discussed above, section 300aa-11 tells us nothing about survivorship.

II

Because nothing in the Vaccine Act addresses the issue of survivorship, the

issue is properly addressed as a matter of federal common law. “[T]he inevitable

incompleteness presented by all legislation means that” it is the “responsibility of the

federal courts . . . 'to declare . . . rules which may be necessary to fill in interstitially or

otherwise effectuate the statutory patterns enacted in the large by Congress.’” United

States v. Little Lake Misere Land Co., 412 U.S. 580, 593 (1973) (quoting Paul J.

Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice

of National and State Rules for Decision, 105 U. Pa. L. Rev., 797, 800 (1957)); see also

Montana v. United States, 124 F.3d 1269, 1274 (Fed. Cir. 1997) (“If the [relevant

federal] statutes are silent . . . the federal courts must ‘fill the interstices of federal

legislation according to their own standards.’ Therefore, if no federal statute supplies

the rule of law, the court must determine whether to create federal common law or to

(3) reasonable attorneys' fees and costs (as provided in subsection
(e) of this section. [sic]

2007-5034 8
incorporate state law as the rule of decision.” (internal quotation marks and citation

omitted) (quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979)).

The issue of survivorship is among the background legal principles for which

judicial gap-filling is appropriate. The Supreme Court has impliedly held, 7 and eight

circuits have explicitly held, 8 that federal common law determines survivorship where

7
The Supreme Court long ago implicitly recognized this principle. See Ex
parte Schreiber, 110 U.S. 76, 80 (1884) (applying, in the face of statutory silence,
common law rule that penal actions do not survive the death of a party to conclude that
action seeking qui tam penalties for an alleged copyright violation did not survive the
defendant’s death). The Supreme Court has also used interstitial application of federal
common law to allow claims to survive a plaintiff’s death. See Carlson v. Green, 446
U.S. 14, 23-25 (1980); Robertson v. Wegmann, 436 U.S. 584 (1978).
8
See, e.g., United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993)
(“In the absence of an expression of contrary intent, the survival of a federal cause of
action is a question of federal common law.”); Smith v. Dep’t of Human Servs., 876 F.2d
832, 834 (10th Cir. 1989) (“The question of the survival of an action grounded in federal
law is governed by federal common law when, as here, there is no expression of
contrary intent.”); James v. Home Constr. Co. of Mobile, 621 F.2d 727, 729 (5th Cir.
1980) (“[T]he question of survival of a federal cause of action has usually been
described as a question of federal common law, in the absence of an expression of
contrary intent.”); Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407, 413 (7th
Cir. 1980), overruled on other grounds by Pridegon v. Gates Credit Union, 683 F.2d
182, (7th Cir. 1982); Heikkila v. Barber, 308 F.2d 558, 561 (9th Cir. 1962) (“[when n]o
federal statute makes any provision for the survival of claims . . . the question of survival
or not must be judged in accordance with the rule at common law.”); Pritchard v. Smith,
289 F.2d 153, 155 (8th Cir. 1961) (when a statute “does not deal expressly with the
question of survivorship . . . ‘it is for the federal courts to fashion the governing rule . . .
according to their own standards.’” (quoting Clearfield Trust Co. v. United States, 318
U.S. 363, 367 (1943))); Bowles v. Farmers Nat’l Bank of Lebanon, Ky., 147 F.2d 425,
430 (6th Cir. 1945) (stating that to determine survival of a statutory cause of action “[i]n
the absence of an Act of Congress, the federal courts are entitled to apply the proper
rules of federal law under their own standards”); Sullivan v. Associated Billposters &
Distribs., 6 F.2d 1000, 1004 (2d Cir. 1925) (“A cause of action which is given by a
federal statute, if no specific provision is made by act of Congress for its survival,
survives or not according to the principles of the common law.”).
Courts have also held that the principle that survivorship is determined as a
matter of federal common law extends also to claims against the United States. See
NEC Corp., 11 F.3d at 137, 139; see also Bilanow v. United States, 309 F.2d 267, 268
(Ct. Cl 1962) (apparently applying common law principles to conclude that action
against the United States did not abate upon the plaintiff’s death).

2007-5034 9
the statute is silent as to the issue. Commentators agree. “In some statues creating a

federal right of action Congress provides explicitly that the action will survive the death

of a party. In the absence of a provision of this kind the court must look to federal

common law.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 1954 & n.12 (3d ed. 2007) (footnotes omitted and emphases

added)). Ample authority from the Supreme Court and eight circuits supports this well-

established proposition.

For example, in United States v. NEC Corp., 11 F.3d 136 (11th Cir. 1993), the

original plaintiff, Williams, had brought a qui tam action against the United States under

the False Claims Act, seeking a portion of the recovery the government obtained from

the defendant as a result of information he had provided. Id. at 137. The court first

determined that “neither the F[alse ]C[laims ]A[ct] nor its legislative history reveals the

drafters' intent with respect to survivability. We thus turn to federal common law for

guidance.” Id. The court held, as a matter of federal common law, that the qui tam

claim survived Williams’ death. Id. at 139. Likewise, courts have applied a similar

analysis to conclude that the survival of actions under other federal statutes, for

example, the Age Discrimination in Employment Act and the Truth in Lending Act, is

governed by federal common law. See, e.g., Smith v. Dep’t of Human Servs., 876 F.2d

832, 834 (10th Cir. 1989) (Age Discrimination in Employment Act); Smith v. No. 2

Galesburg Crown Fin. Corp., 615 F.2d 407, 413 (7th Cir. 1980) (Truth in Lending Act).

Although widely recognizing that federal common law governs, the courts have

not clearly articulated the governing rule with respect to survivorship of personal injury

claims under the Vaccine Act or more generally. One option would be to adopt the

2007-5034 10
applicable state law rule. See, e.g., Robertson v. Wegmann, 436 U.S. 584, 590-91

(1978). However, that option is not appropriate in this case. Although not all

“[c]ontroversies directly affecting the operations of federal programs . . . require resort to

uniform rules,” Kimbell Foods, 440 U.S. at 727-28, the creation of a uniform federal rule

is particularly appropriate in cases, such as this, that directly concern “the duties of the

Federal Government,” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

642 (1981). In this context, the need for uniformity in the vaccine compensation

program is also demonstrated because Congress chose to allow adjudication of claims

under the program only in the United States Court of Federal Claims, a single, uniform,

national court. Resort to state law to determine survival of claims under the Vaccine Act

would be inappropriate. See Carlson, 446 U.S. at 23-25 (finding survival of Bivens

claims governed by a uniform federal rule in favor of survival rather than state law);

Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1351 (Fed. Cir. 1999)

(holding that standard for proof of causation under Vaccine Act must be determined as

a uniform federal rule rather than by adopting state law).

Although it is not appropriate to adopt the differing rules of individual states, it is

appropriate to follow the approach adopted by the vast majority of states. Nearly every

state now provides for survivorship of personal injury claims by statute, rejecting the

common law rule that personal injury claims do not survive death. See 3 Speiser &

Rooks, supra, app. A; see also Keeton et al., supra, § 126 (“[V]irtually every state today

has some form of survival statute, the exact provisions of which vary but the gist of

which is to permit a personal injury action to continue after the death of either the

plaintiff or defendant.” (footnote omitted)).

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 In a closely related context, the Supreme Court has explained that the sweeping

rejection by the states of a common law doctrine argues strongly that the common law

doctrine should also be rejected as a matter of federal common law. At common law,

there was no cause of action for wrongful death. See Moragne v. States Marine Lines,

Inc., 398 U.S. 375, 380 (1970). In Moragne, the Supreme Court recognized, as a

matter of federal common law, a cause of action for wrongful death in federal admiralty

jurisdiction. Id. at 409. The Court held that despite the common law refusal to

recognize such a claim, “the work of the legislatures has made the allowance of

recovery for wrongful death the general rule of American law, and its denial the

exception.” Id. at 393. Based in large part on the widespread enactment of state

statutes creating a cause of action for wrongful death, creation of a similar federal

common law action was appropriate. Id. at 390-92. It is appropriate to follow a similar

approach with respect to survivorship of injury claims, since the states by statute have

almost uniformly rejected the common law rule that personal injury claims do not survive

death. Indeed, it is particularly appropriate to follow the approach of Moragne because

the common law doctrines rejecting survivorship and wrongful death actions, while

distinct, are related both in historical origin and practical consequence. See Malone,

supra, at 1044.

A rule in favor of survival is also consistent with the objectives of the Vaccine Act

with respect to both compensation of injured individuals and protection of vaccine

manufacturers. The Vaccine Act includes an opt-out provision which requires that

individuals harmed by a vaccine submit a claim under the vaccine program, but allows a

claimant to reject the program award and instead bring a private action under state law

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against a vaccine manufacturer or administrator. 9 42 U.S.C. § 300aa-11(a)(2)(A). A

rule in favor of survivorship of vaccine-related injury claims would preserve the Vaccine

Act as an effective substitute for the state tort system. As noted earlier, in all or nearly

all states, the state tort system that Congress sought to replace with the vaccine

compensation program, for claims of vaccine-related injuries and death, provides for

survival of personal actions. A rule in favor of survivorship would harmonize the federal

scheme with the state alternative.

I would hold that, because the statutory language does not specify whether

claims under the Vaccine Act survive, this issue is properly governed by federal

common law, and that claims for vaccine-related injury accruing prior to death survive

the death of a claimant. I respectfully dissent from the majority’s refusal to apply well-

established law, but concur in the result that allows the estate of this petitioner to

recover. 10

9
A claimant under the Program may file a written election to waive any
award under the Program, and instead file a civil suit for damages, within ninety days
after the entry of judgment under the Program and completion of any appeal. 42 U.S.C.
§ 300aa-21(a). Alternatively, a claimant may also forego an award under the Program
in favor of a civil suit by filing a notice of intent to withdraw a petition under the Program
if the petition is not decided within statutory time limitations. 42 U.S.C. §§ 300aa-
11(a)(2)(A)(ii), -21(b).
10
While the federal common law was not addressed by the parties, both the
Supreme Court and this court have held that we must apply the correct law to an issue
properly raised even if the parties do not direct us to the correct legal principles. See
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); Forshey v. Principi, 284
F.3d 1335, 1356 (Fed. Cir. 2002) (en banc).

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