Scanlon v. Secretary of Health & Human Services
114 Fed. Cl. 135
| Fed. Cl. | 2013Background
- Petitioner Ina Scanlon received the Zostavax (shingles) vaccine on April 1, 2010 and subsequently developed immune thrombocytopenia; she filed a Vaccine Act petition in March 2013.
- The government moved to dismiss under RCFC 12(b)(6), arguing the shingles vaccine is not covered by the Vaccine Injury Table and thus not compensable.
- The special master granted dismissal, finding Varivax (chickenpox) and Zostavax (shingles) are distinct: different indications, dosage (PFU), and Zostavax is not indicated for children.
- The special master relied on the statutory scheme that adds vaccines to the Table only after CDC recommends routine administration to children and upon enactment of an excise tax to fund compensation; an excise tax was enacted for Varivax but not for Zostavax.
- Scanlon sought review, arguing (among other things) that Zostavax should be treated as a "varicella vaccine" on the Table and that HHS might be estopped if it previously compensated similar claims. The court found no evidence of prior compensation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must petitioner have received a vaccine listed on the Vaccine Injury Table to state a claim? | Scanlon pointed to HHS materials suggesting off-label administration does not affect eligibility and argued Table not exclusive. | Gov't: statute requires petition show vaccine listed on Table; otherwise no claim. | Held: Petitioner must have received a vaccine on the Table; statutory text and precedent confine compensation to listed vaccines. |
| Is the shingles vaccine (Zostavax) covered as a "varicella vaccine" on the Table? | Scanlon: both vaccines contain live attenuated VZV so Zostavax falls within "varicella vaccine." | Gov't: Zostavax is distinct (different indication, PFU, not for children); Table entry relates to chickenpox vaccine and tied to excise tax. | Held: Zostavax is not covered by the Table listing for "varicella vaccine." |
| Does the statutory amendment/funding scheme preclude coverage absent excise tax? | Scanlon did not dispute funding point. | Gov't: additions to Table take effect only when a tax is enacted to fund compensation. | Held: The Table entry is tied to excise-tax-funded vaccines; no tax was enacted for Zostavax, reinforcing noncoverage. |
| Is HHS estopped from denying compensation because it previously paid for a Zostavax claim? | Scanlon: if anyone was compensated for Zostavax, HHS should be estopped. | Gov't: No evidence of prior compensation; other Zostavax claims were dismissed. | Held: No estoppel — petitioner produced no evidence of prior compensation; several prior dismissals exist. |
Key Cases Cited
- Engage Learning, Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011) (distinguishing jurisdictional dismissal from merits dismissal and treatment of factual allegations)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory qualification that affects merits, not subject-matter jurisdiction)
- Andreu ex rel. Andreu v. Secretary of Dep’t of Health & Human Servs., 569 F.3d 1367 (Fed. Cir. 2009) (special-master legal conclusions reviewed de novo)
- Tembenis v. Secretary of Health & Human Servs., 733 F.3d 1190 (Fed. Cir. 2013) (review standard for legal questions from special masters)
- Charette v. Secretary of Health & Human Servs., 33 Fed. Cl. 488 (1995) (holding Vaccine Act limited to vaccines listed on the Table)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility required to survive 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (establishing the Twombly plausibility standard)
- Lewis v. United States, 445 U.S. 55 (1980) (statutory interpretation starts with statutory text)