Romero Ex Rel. Romero v. Wyeth

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 23, 2005

Charles R. Fulbruge III
Clerk
No. 04-41316

FIDEL ROMERO, Next Friend of Susana Romero, a minor; ET AL

Plaintiffs,
FIDEL ROMERO, Next Friend of Susana Romero, a minor; ANDREA
ROMERO, Nest Friend of Susana Romero, a minor,

Plaintiffs-Appellants,

VERSUS

WYETH, previously known as
LEDERLE LABORATORIES, et al.,

Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Texas, Texarkana
(5:02-CV-265)

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Appellants Fidel Romero and Andrea Romero, as next friends of

their minor daughter, filed suit against Wyeth, seeking damages for

permanent injuries suffered by the child after she was administered

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
a vaccine manufactured by Wyeth.2 Wyeth filed a motion to dismiss,

arguing that Appellants’ claim failed to comply with the mandatory

requirements of the National Childhood Vaccine Injury Act of 1986,

42 U.S.C. § 300aa-1 et seq. (the “Vaccine Act” or the “Act”). The

district court granted Wyeth’s motion and Appellants timely filed

the instant appeal.

The Vaccine Act was enacted by Congress “to develop new

vaccines, improve existing vaccines, and compensate individuals who

have been injured by vaccines routinely administered to children.”

Lowry ex rel. Lowry v. Sec’y of Health & Human Servs., 189 F.3d

1378, 1381 (Fed. Cir. 1999) (citing H.R. Rep. 99-908, at 1,

reprinted in 1986 U.S.C.C.A.N. 6344, 6344). This compensatory

program ensures swift compensation for victims of vaccine-related

injuries while protecting the nation’s supply of vaccines from the

costs and risks associated with traditional tort actions. Moss v.

Merck & Co., 381 F.3d 501, 503 (5th Cir. 2004); see also Lowry, 189

F.3d at 1381 (citation omitted).

While the statutory scheme provides victims’ awards “quickly”

and with “generosity,” it also compels individuals seeking such

relief to comply with the Act’s no-fault compensation program. See

Lowry, 189 F.3d at 1381 (citation omitted). One of the procedural

components requires a claimant to first seek redress in the

2
At the time of the alleged incident, Wyeth was known as Lederle
Laboratories. For purposes of consistency and clarity, we refer to
Appellee as Wyeth.

2
specialized United States Court of Federal Claims (the “Vaccine

Court”) before attempting to obtain relief in a court of general

jurisdiction. Moss, 381 F.3d at 503. Congress established that

“[t]he United States Court of Federal Claims and the United States

Court of Federal Claims special masters shall, in accordance with

this section, have jurisdiction over proceedings to determine” if

a claimant is entitled to compensation under the Vaccine Act. 42

U.S.C. § 300aa-12(a).

The decisions of the special masters are subject to review by

the Court of Federal Claims. Id. § 300aa-12(e)(1). The decisions

of the Court of Federal Claims are, in turn, subject to review by

the United States Court of Appeals for the Federal Circuit. Id. §

300aa-12(f). Upon the issuance of a judgment, either by the Court

of Federal Claims or by the Court of Appeals for the Federal

Circuit on appeal, a claimant may elect to decline any award

granted and pursue relief under traditional tort principles in

state or federal court.3 Id. § 300aa-21(a); see Terran ex rel.

Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1307 (Fed.

Cir. 1999) (“[T]he Vaccine Act does not preclude traditional tort

remedies. A person claiming injury due to a vaccine is required to

seek redress first through the Vaccine Act, but if she is not

satisfied with the result, she may reject the judgment and litigate

3
Pursuing further recourse in a court of general jurisdiction
is also available in the event the claimant does not prevail in
either the Court of Federal Claims or the Court of Appeals for the
Federal Circuit.

3
her claim in federal or state courts, subject to certain

limitations imposed by the Vaccine Act.”); see also Moss, 381 F.3d

at 503.

In its order, the district court determined that it lacked

subject matter jurisdiction over Appellants’ suit because

Appellants failed to file a petition in the Vaccine Court before

filing their civil suit in district court. Having carefully

reviewed the entire record of this case, and having fully

considered the parties’ respective briefing and arguments, we find

no reversible error in the district court’s order. We therefore

AFFIRM the final judgment of the district court dismissing

Appellants’ case for the reasons stated in its order.

AFFIRMED.