Tembenis v. Secretary of Health & Human Services
2013 U.S. App. LEXIS 21954
Fed. Cir.2013Background
- Elias Tembenis received a DTaP vaccine as an infant and developed a seizure disorder; he died at age seven while his Vaccine Act petition was pending.
- Petitioners (Elias’s parents as administrators of his estate) sought compensation under the National Vaccine Injury Compensation Program.
- A special master found the vaccine caused Elias’s injury and death and awarded $250,000 (death benefit) plus $175,000 for past pain/suffering and expenses; the parties disputed future lost earnings under 42 U.S.C. § 300aa-15(a)(3)(B).
- The special master (and the Claims Court on review) awarded future lost earnings ($659,955.61), treating an estate as eligible under § 300aa-15(a)(3)(B).
- The government appealed the future-earnings award; the Federal Circuit considered whether § 300aa-15(a)(3)(B) permits an award of future lost earnings to an estate when the injured minor dies before entry of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an estate can recover future lost earnings under § 300aa-15(a)(3)(B) when the injured minor dies before judgment | Estate: statute does not expressly forbid an estate award; future lost-earnings compensation should be available to the estate | Secretary: (a)(3)(B) requires an expectation of future earnings by a living claimant; death before judgment destroys the premise for future-earnings awards | Held: (a)(3)(B) limits future lost-earnings awards to claimants alive at time of judgment; estate cannot recover post-18 future earnings if decedent died before judgment |
Key Cases Cited
- Zatuchni v. Sec’y of Health & Human Servs., 516 F.3d 1312 (Fed. Cir.) (estate may recover past expenses, pain and suffering, and lost income up to death)
- Edgar v. Sec’y of Health & Human Servs., 989 F.2d 473 (Fed. Cir.) (future-earnings awards under (a)(3)(B) cannot be made contingent on actual post-injury life; calculation of net present value)
- Miles v. Apex Marine Corp., 498 U.S. 19 (U.S.) (survival actions do not generally allow recovery of lost future earnings; duplicative of wrongful-death recovery)
- McAllister v. Sec’y of Health & Human Servs., 70 F.3d 1240 (Fed. Cir.) (special master must consider the course of the injury through the date of judgment when awarding compensation)
- Figueroa v. Sec’y of Health & Human Servs., 715 F.3d 1314 (Fed. Cir.) (explaining § 300aa-15(a)(2) death benefit as an award for the estate)