Day v. Secretary of Health and Human Services
129 Fed. Cl. 450
| Fed. Cl. | 2016Background
- Petitioners Laura and Todd Day (guardians of B.K.D.) prevailed on entitlement: HPV and influenza vaccines caused neuromyelitis optica. Chief Special Master found entitlement on November 13, 2015.
- Petitioners sought interim damages on January 7, 2016 due to extreme financial hardship and urgent needs (wheelchair-accessible van, housing mods).
- On May 31, 2016 the Chief Special Master awarded $250,000 in interim damages for B.K.D.’s past pain and suffering (the statutory cap for that category), declining to include variable awards like lost wages.
- The Secretary moved for review, arguing the Vaccine Act does not authorize interim damages and that the Act envisions a single damages decision; raising procedural and policy concerns.
- The Court of Federal Claims denied review, holding special masters may award interim damages in appropriate cases and sustaining the Chief Special Master’s $250,000 interim award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Vaccine Act permits special masters to award interim damages before final damages calculation | Interim awards are permissible; statute’s language and precedent allow multiple compensation-related decisions; hardship justifies award | Vaccine Act contemplates a single decision on compensation; no express authorization for interim damages; policy/procedural problems | Court held interim damages permitted; Chief Special Master reasonably interpreted the Act and award sustained |
| Whether interim award may include capped pain-and-suffering amount | Awarding the undisputed, capped past pain-and-suffering amount avoids change-of-condition issues and fits Act’s scheme | Fees precedent differs; allowing interim damages could create strategic elections or procedural complications | Court approved limiting interim award to the undisputed $250,000 cap for past pain and suffering |
| Whether Shaw and fee-related precedents are inapplicable to damages awards | Fee precedents show multiple compensation-related decisions are reviewable; analogous treatment supports interim damages | Fees serve different purpose (litigation support) and are distinguishable from compensatory damages | Court found Shaw and related precedents controlling on reviewability and persuasive on allowing interim awards |
| Whether practical safeguards (elections, civil-action barrier) prevent strategic misuse | Election rules and clerk procedures can prevent gaming; petitioners disclaimed intent to reject future awards | Interim awards might allow petitioners to elect prematurely and pursue civil suits, complicating process | Court noted existing election rules and statutory limits mitigate strategic concerns; no misuse present here |
Key Cases Cited
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir.) (interim attorney-fee decisions are reviewable "decisions on compensation")
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (Vaccine Act remedies and interpretation)
- Tembenis v. Secretary of Health & Human Services, 733 F.3d 1190 (Fed. Cir.) (addressing timing and calculation of damages; snapshot principle)
- McAllister v. Secretary of Health & Human Services, 70 F.3d 1240 (Fed. Cir.) (recognizing change-in-condition concerns for interim awards)
- Saunders v. Secretary of Department of Health & Human Services, 25 F.3d 1031 (Fed. Cir.) (treatment of fees and meaning of "compensation" in election context)
- Rumsfeld v. Padilla, 542 U.S. 426 (U.S.) (use of definite/indefinite articles in statutory interpretation)
- Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (U.S.) (use of Dictionary Act and statutory construction principles)