OPINION AND ORDER
Introduction
This case again is before the Court, this time for review of the Special Master’s May 10, 2006 Decision on Remand. In that decision, the Special Master granted in part and denied in part the petition of E. Barbara Snyder
The Special Master determined in his Decision on Remand that Ms. Snyder’s death was caused by the vaccine, but he ruled as a matter of law that Ms. Snyder’s estate could recover only the $250,000 death benefit allowed under 42 U.S.C. § 300aa-15(a)(2). Zatuchni v. Sec’y of Health & Human Servs.,
In a timely motion for review, Petitioner argues that the Special Master’s decision awarding only a $250,000 death benefit is contrary to law. Petitioner contends that a plain reading of the Vaccine Act, as well as the Act’s underlying remedial intent, should permit recovery of a death benefit and any economic losses caused by the vaccine. Respondent opposes the motion for review, arguing that a petitioner’s estate can recover only a $250,000 death benefit under the Vaccine Act when a vaccine is held to be the cause of death.
For the reasons explained below, the Court finds that the Special Master’s Remand Decision is not in accordance with law. Based primarily on a plain reading of the Vaccine Act, the Court concludes that an eligible petitioner who establishes vaccine-related injuries and a vaccine-caused death is entitled to recover both a death benefit and provable economic losses under the Act. The Court cannot accept Respondent’s premise that a woman who suffers 13 years of economic losses during her lifetime somehow forfeits those losses by dying while her case is pending before the Court. Nothing in the Vaccine Act supports such a severe result. The Court therefore vacates the Special Master’s conclusion of law that only a death benefit is allowed, but adopts the Special Master’s findings regarding Petitioner’s economic losses, totaling $554,323.90. The Court enters judgment for Petitioner in the amount of $804,323.90, comprised of the $250,000 death benefit and $554,323.90 in economic losses.
Factual Background
Barbara Snyder was born on June 15, 1946. On February 10, 1992, at age 45, Ms. Snyder received an MMR vaccination so that she could continue working as a receptionist at the Atlantic City, New Jersey Medical Center. The record before the Court does not indicate any unusual medical history for Ms. Snyder prior to the vaccination. Within
Barbara Snyder died on April 28, 2005, at age 58. The immediate cause of death was found to be cardio-respiratory arrest due to chronic bronchitis and chrome obstructive pulmonary disease. Ms. Snyder’s physician, Dr. Dan Teano, determined that she suffered these health problems as a result of not being able to move and exercise at a normal rate due to her vaccine-related FMS. Ms. Snyder’s death certificate listed “CardioRespiratory Arrest” as the immediate cause of death, and “Post Rubella Vaccination Syndrome” and “Fibromyalgia” as “Other Significant Conditions Contributing to Cause of Death.”
Special Master’s Remand Decision
In determining whether Ms. Snyder’s death was vaccine-related, the Special Master relied upon the Federal Circuit’s Capizzano decision and the Court’s February 9, 2006 decision in this case, instructing that evidence contained in the medical records and opinions of the treating physicians is to be “favored in vaccine cases,” as these physicians are likely to be in the best position to determine whether a vaccine caused an injury or death. See Capizzano v. Sec’y of Health & Human Servs.,
Because Ms. Snyder’s death was found to be vaccine-related, the Special Master awarded her estate the death benefit of $250,000 as provided in 42 U.S.C. § 300aa-15(a)(2). Id.
Discussion
A. Standard of Review
This Court has jurisdiction under the Vaccine Act to review a Special Master’s Decision upon the timely request of either party. 42 U.S.C. § 300aa-12(e)(l)-(2). The Special Master’s findings of fact are given deferential review under an “arbitrary and capricious” standard; the legal conclusions are reviewed de novo under the “not in accordance with law” standard; the discretionary rulings, such as evidentiary decisions, are reviewed for “abuse of discretion.” See Munn v. Sec’y of Health & Human Servs.,
Here, the Court reviews de novo the Special Master’s decision regarding the legal issue of whether Ms. Snyder’s estate is eligible for compensation under 42 U.S.C. §§ 300aa-15(l), (3), and (4), in addition to the $250,000 death benefit under 42 U.S.C. § 300aa-15(a)(2).
B. Purpose of the Vaccine Act
Congress enacted the Vaccine Act in 1986 “to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccines.” 42 U.S.C. § 300aa-l. The Vaccine Act includes a National Vaccine Injury Compensation Program, “under which compensation may be paid for a vaccine-related injury or death.” 42 U.S.C. § 300aa-10(a). The Program is administered by the Secretary of Health and Human Services. An individual seeking compensation under the Program must establish by a preponderance of the evidence that the injury or death was caused by a vaccine for which compensation is authorized. 42 U.S.C. §§ 300aa-11(e)(1), -13(a)(1).
The legislative history of the Vaccine Act shows that Congress perceived a crisis in the administration of childhood vaccination programs. Some of the vaccines resulted in injury or death of children recently inoculated. Vaccine manufacturers were experiencing increased litigation costs defending against claims resulting from these injuries. These costs, combined with the costs of settlement or damages awards, caused many manufacturers to consider withdrawing from the vaccine market. For claimants, causation often was difficult to prove, leaving the injured child or his family with no compensation under the traditional tort system. H.R.Rep. No. 99-1780, at 1-3 (1985); H.R.Rep. No. 99-908, pt. 1 (1986).
Congress thus addressed two concerns in enacting the Vaccine Act. The first was “the inadequacy ... of the current approach to compensating those who have been damaged by a vaccine.” H.R.Rep. No. 99-908, pt. 1, at 7. The second was “the instability and unpredictability of the childhood vaccine market.” Id. Congress instituted the compensation program with the view that awards would be “made to vaccine-injured persons quickly, easily, and with certainty and generosity.” Id. at 3. The program is to be “fair, simple, and easy to administer.” Id. at 7. See also Capizzano,
Vaccine-injured persons are required to file their claims initially under the Vaccine Act’s compensation program. 42 U.S.C. § 300aa-ll(a)(2). They may withdraw from the program after specified time periods, id. § 300aa-21(b), or they may reject the Vaccine Act judgment and elect to file a civil action. Id. § 300aa-21(a). The Congressional objective was to encourage petitioners to seek redress under the Vaccine Act, rather than filing civil actions against vaccine manufacturers.
C. The Vaccine Act’s Compensation Provisions
The Special Master began his analysis of the Vaccine Act’s compensation provisions by examining the sovereign immunity doctrine. He sought to determine under statutory construction principles if the Act should be interpreted “strictly” and “narrowly,” or whether he should apply a “liberal” interpretation to give effect to this “remedial” stat
The Vaccine Act’s compensation provisions are found in 42 U.S.C. § 300aa-15, where Congress set forth the scope of recovery available to petitioners who establish entitlement. Subsection (a) governs the compensation for vaccinations administered after October 1, 1988, while subsection (b) addresses compensation for vaccinations given prior to that date. Since Ms. Snyder received her MMR vaccination in 1992, this case is governed by the provisions of 42 U.S.C. § 300aa-15(a).
Subsection (a) begins with a statement that “[e]ompensation awarded ... for a vaccine-related injury or death ... shall include the following[.]” Id. (emphasis added). Four numbered subparts follow, each providing a different category of compensation. Subpart (a)(1) covers actual unreimbursable expenses resulting from a vaccine-related injury. Sub-part (a)(2) provides for a vaccine-related death benefit of $250,000. Subpart (a)(3) covers lost earnings resulting from a vaccine-related injury. Subpart (a)(4) provides for pain and suffering resulting from a vaccine-related injury not to exceed $250,000. 42 U.S.C. § 300aa-15(a)(1)-(4).
The ordinary meaning of the phrase “shall include the following” allows recovery under any and all of the categories of compensation listed in subparts (1) through (4) that apply to the petitioner’s circumstances. The plain language provides that where a petitioner suffers a vaccine-related injury, she may recover under subparts (1), (3), and (4). Where a petitioner suffers a vaccine-related death, her estate may recover under subpart (2). There is nothing in these provisions suggesting that any of the four categories is an exclusive form of recovery. The $250,000 death benefit is listed simply as the second category among four, any of which may apply in a given case. If Congress wanted to limit benefits in some further way, it would have explicitly so stated.
This plain reading of the statute also is compelling from a logical point of view. The Special Master acknowledged that the Petitioner’s argument is “straightforward and appealing,” and that “nothing in the statute explicitly” prohibits payment for both living and death benefits. (Remand Decision at *19). He observed that “[tjhis argument is particularly appealing in the context of this ease, in which it has been determined that Ms. Snyder lived with a severe vaccine-related injury for more than IS years prior to her vaccine-related death.” Id. (emphasis in original). In such circumstances, the Special Master acknowledged, “it seems intuitively unfair to deny Ms. Snyder’s estate any compensation for the 13-year period between Ms. Snyder’s injury and her death.” Id. at *24.
D. The Plain Language Supports the Remedial Purpose of the Act
Respondent contends that a petitioner who dies from a vaccine-related cause may only recover the $250,000 death benefit. Respondent relies upon language in 42 U.S.C. § 300aa-15(a) providing compensation for a “vaccine-related injury or death,” and legislative history specifying that “[ajllowable death benefits for a vaccine-related death are set at a level of $250,000.” July 2006 Response at 4 (citing H.R.Rep. No. 99-908, at 21 (1986)). Respondent maintains that a petitioner either is entitled to damages under Section 15(a)(1), (3), and (4) when the petitioner is living, or the estate is entitled to the $250,000 death benefit under Section 15(a)(2). These contentions are not supported by the plain language of the statute, and are contrary to the remedial purpose of the Vaccine Act. There is nothing in the Act to suggest that a vaccine-injured person such as Ms. Snyder must forfeit a legitimate claim for lifetime economic losses, in this case for $554,000, if she dies while her claim is still pending.
As Petitioner notes, wrongful death acts exist in all 50 states. (June 2006 Motion for Review at 11 (citing 22A Am.Jur.2d Death § 4) (“At the present time there are statutes in all American states that create a right to recovery for wrongful death.”)). See also Moragne v. States Marine Lines, Inc.,
[w]here a state’s statutes provide for both a cause of action for wrongful death and a right of recovery which accrues during the lifetime of deceased for medical expenses, pain and suffering, they are two separate and distinct causes of action, and plaintiff may therefore challenge the one recovery without affecting his right to the other, and this includes the right to a new trial of one cause of action independent of the other.
Id. Under Respondent’s view of the case, the Vaccine Act would not achieve its goal, because petitioners would opt out of the Vaccine program to pursue remedies against the manufacturer in a more generous forum.
Limiting a deceased petitioner to a death benefit, as Respondent argues, also would create unintended incentives. In Ms. Snyder’s case, for example, where her lifetime economic losses exceeded $500,000, Respondent conceivably could “save” a quarter million dollars simply through delaying resolution of the case in the expectation that the petitioner might soon die. Additionally, in a ease as here where lifetime losses greatly exceeded the allowable death benefit, Respondent would be motivated to show that the petitioner’s death was vaccine-related, while petitioner would want to show that the death was not vaccine-related. Such a reversal of roles could not have been what Congress intended. These unintended incentives are eliminated through the plain reading of the Act’s compensation provisions, allowing recovery for all categories that apply.
E. Relevant Case Law
On the facts presented here, where the Petitioner received a vaccination in 1992,
In Lawson, an infant, Jennifer Lawson, received a third diphtheria-pertussis-tetanus (DPT) vaccination in May 1977. Within hours, she began to sleep for extended periods, became difficult to arouse, and showed a general lack of response to environmental stimuli. Within two to three weeks, she began slumping over. Approximately three weeks after the vaccination, Jennifer fell from a chair and bruised her head. Thereafter, she was unable to hold her head upright, and lost her ability to roll over and grasp objects. Her condition never improved. She lost all motor skills and became mentally retarded. She was confined to a wheelchair, supported totally, or bedridden. She died in 1992 at age 15. Lawson,
Jennifer Lawson’s parents filed their initial Vaccine Act petition in October 1990, prior to Jennifer’s death. Through supplemental submissions, petitioners claimed both a vaccine-related injury and a vaccine-caused death. The Special Master denied any compensation. In vacating the Special Master’s decision and remanding for further proceedings, our Court observed that petitioners may “be entitled to recover provable items of damages set forth in 42 U.S.C. § 300aa-15(b) ... even if they are unable to prove that Jennifer’s death was a sequela of an initial vaccine related injury.” Id. at 237. The Court added that “[i]f, further, they could establish that Jennifer’s death was Vaccine-related,’ 42 U.S.C. § 300aa-15(a)(2) incorporated in subsection — 15(b), they could recover an additional $250,000,” and concluded that “potential entitlement to compensation related to initial vaccine injury does not depend on whether eventual death was also vaccine related.” Id. The Court finds the Lawson decision compelling support for the ruling here. The fact that Jennifer Lawson’s vaccination occurred prior to October 1,1988, and thus falls under 42 U.S.C. § 300aa-15(b) instead of — 15(a), is immaterial.
Andrews also is supporting precedent. There, petitioners’ daughter, Kristen Jo Andrews, suffered a residual seizure disorder and mental retardation from an August 1960 DPT vaccination. Petitioners filed their Vaccine Act petition in October 1990. Thereafter, in April 1993, before the amount of compensation had been determined, Kristen died from cardiopulmonary heart failure. Petitioners were unable to demonstrate a connection between Kristen’s death and her vaccine injury.
In April 1995, the Special Master held that “the plain language of the Vaccine Act permitted compensation for Kristen’s actual pain and suffering from her vaccine-related injuries despite her death from non-vaccine causes.” Id. Respondent filed a motion for review of the Special Master’s decision, arguing that the Vaccine Act prohibits the estate of a decedent whose death was not vaccine-related from bringing or continuing a petition for vaccine injuries. Id.
The Andrews Court looked first to the plain meaning of the Act. “If the language of the Act is clear, it will be regarded as conclusive.” Andrews,
When the plain meaning of the Act is considered in conjunction with its history it is clear that Congress could not have intended the interpretation urged by respondent. There is nothing fair, expeditious or generous about an interpretation of the Vaccine Act that replaces a state law claim that would survive the death of plaintiff with a claim that would be extinguished upon the death of the claimant.
Id. at 771.
Notwithstanding the compelling authority of Andrews and Lawson, the Court acknowledges the general proposition that, under the doctrine of sovereign immunity, the Vaccine Act ought to be strictly construed. See Brice v. Sec’y of Health & Human Servs.,
The Court applied a sensible approach to the sovereign immunity doctrine in McGowan,
Finally, two of Respondent’s authorities deserve brief mention. First, Respondent places heavy reliance on Sheehan v. Sec’y of Health & Human Servs.,
To summarize the above discussion, Barbara Snyder unquestionably is an eligible petitioner who asserted a timely claim in 1994 for lifetime economic losses caused by her 1992 MMR vaccination. Ms. Snyder died in April 2005, while her claim was still pending before the Court. Lawson and Andrews instruct that her claim for lifetime economic losses was not thereby forfeited or extinguished. The plain reading of the Act warrants this outcome. Resort to the sovereign immunity doctrine as a statutory construction tool is unnecessary where the intent of Congress is clear from the words of the Act. The parties agree that Ms. Snyder’s death was vaccine-caused, and that her estate is entitled to the Act’s $250,000 death benefit. To this sum should be added the lifetime economic losses.
Conclusion
Based upon the foregoing, the Court vacates the Special Master’s conclusion of law that Petitioner may only recover a death benefit in this case, but adopts the Special Master’s findings of economic losses suffered by Petitioner, totaling $554,323.90. The Court enters judgment for Petitioner in the amount of $804,323.90, comprised of the $250,000 death benefit and the $554,323.90 in economic losses. The Clerk shall enter Judgment for Petitioner for $804,323.90.
IT IS SO ORDERED.
Notes
. This case was transferred to Judge Thomas C. Wheeler on December 7, 2005, pursuant to Rule 40.1(b) of the Rules of the Court of Federal Claims.
. The substituted Petitioner, Dory Zatuchni, is the legal representative of the estate of Barbara Snyder, appointed by the Register of Wills of New Castle County, Delaware on December 20, 2005. Barbara Snyder died in Delaware on April 28, 2005.
. See Snyder v. Sec’y of Health & Human Servs.,
. Respondent does not contest that the vaccine caused Ms. Snyder’s death.
. A full recitation of Ms. Snyder's lengthy history of vaccine-related medical problems and diagnoses is found in the Court’s earlier decision, Zatuchni,
. Neither party disputes the Special Master’s finding that Ms. Synder’s estate is entitled to the $250,000 death benefit provided in § 300aa-15(a)(2). See Petitioner's June 9, 2006 Motion For Review ("June 2006 Motion for Review”) at 2; Respondent’s July 10, 2006 Memorandum in Response to Motion for Review (“July 2006 Response”) at 5.
. New Jersey’s wrongful death statute provides:
When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.
N.J.S.A. 2A:31-1.
. New Jersey’s survival statute provides:
Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.
In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.
N.J.S.A. 2A:15-3.
. Although Section — 15(b) is organized differently than Section — 15(a), the plain language of Section — 15(b) also permits recovery under the stated compensation categories for an eligible petitioner suffering both vaccine-related injuries and a vaccine-caused death. Section — 15(b) incorporates by reference two compensation categories from Section — 15(a)(1) and (2) — actual unreimbursable expenses, and the $250,000 death benefit.
. Previous Special Master decisions granting only a death benefit to a petitioner’s estate appear to have "imported immunity back into a statute designed to limit it.” See Clifford v. Sec’y of Health & Human Servs.,