Dory ZATUCHNI, Executrix of the Estate of E. Barbara Snyder, deceased, Petitioner-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant.
No. 2007-5034.
United States Court of Appeals, Federal Circuit.
Feb. 12, 2008.
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.
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“)) $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
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 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
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
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
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
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
The Program was established by the National Childhood Vaccine Injury Act of
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 file a petition under the Program.3
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
The types of compensation available to a petitioner under the Program are listed in
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 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.
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[)].
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
Most important, the text and structure of
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
This interpretation of
Section
Moving beyond
Based on its reading of
In a related argument, the government contends that the single petition rule of
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
Moreover, we note that if the government‘s arguments are taken to their logical conclusion, all recovery would be denied
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 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
The judgment of the Court of Federal Claims awarding the petitioner compensation pursuant to
AFFIRMED
COSTS
No costs.
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“),
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 How-
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.
First, the text of section
Second, it is significant that section
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.
Third, and perhaps most significantly, a strained interpretation of section
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.”
Perhaps recognizing that section
The plain language of section
This is made clear by section
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 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, that federal
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 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,
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)).
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
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
Notes
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.Compensation awarded under the Program to a petitioner under section
(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. [sic]
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, 159 Ct. Cl. 93, 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).