OFFICE OF SPECIAL MASTERS
(Filed: May 24, 1999)
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|SADIE ANN COHN and MALCOLM||*|
|COHN, Individually and as Friends||*|
|of NINA ANN COHN, a Minor,||*|
|Petitioners,||*||TO BE PUBLISHED|
|SECRETARY OF HEALTH AND||*|
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Peter Meyers, Esq., Washington, D.C., for petitioners.
Eleanor Barry, Esq., United States Department of Justice, Washington,
D.C., for respondent.
ABELL, Special Master:
On 1 October 1990, petitioners filed an action seeking an award under the National
Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act)(1)
for the alleged vaccine-related death of Nina Cohn. Petitioners alleged that Nina suffered
seizures and blindness as a result of a 23 February 1960 DPT vaccination. Nina began to
suffer from lupus in 1986 and she died on 10 May 1986.
On 28 March 1996, a hearing was held in Houston, Texas. The hearing was limited to the
issue of when the onset of Nina's injuries occurred. At the close of the hearing the court
issued a bench ruling. The court found there was a preponderance of the evidence
indicating that the onset of Nina's injuries occurred within 72 hours of her 23 February
1960 vaccination. The court did not make findings regarding the cause of Nina's death
because further medical testimony was necessary to make a decision because Nina's death
may have been due to intervening factors such as lupus.
The petitioners then went through three different attorneys and respondent went through
several attorneys. During this time, petitioners were given the opportunity to obtain a
medical expert who would opine that Nina's death was caused by the DPT vaccination.
Eventually, petitioners conceded that Nina's death was due to idiopathic lupus. The
petitioners then filed a Memorandum in Support of Compensation which made two arguments.
First, petitioners argued that they are entitled to compensation for Nina's death. Second,
petitioners argued that they are entitled to compensation for Nina's pain and suffering.
Respondent filed a response arguing that petitioners are not entitled to compensation for
Nina's death because Nina's death was caused by lupus, and not a vaccination. Also,
respondent argued that the court no longer has jurisdiction over this case because
petitioners no longer have a statutory cause of action since they filed their petition for
a vaccine related injury after Nina died. For the reasons stated infra, the court
holds that the petitioners are not entitled to compensation for Nina's death since she
died from a non-vaccine-related condition, and this court does not have jurisdiction to
hear petitioners' claim.
I. Whether petitioners are entitled to compensation for Nina's death?
The first issue for the court to address is whether petitioners are entitled to
compensation for Nina's death. The court answers in the negative. Originally, the
petitioners hypothesized that Nina developed lupus because she was taking the drug
Dilantin to treat her seizures. However, the petitioners were not able to find an expert
who was willing to opine that Nina's Dilantin more likely than not caused her lupus.
Respondent's expert, Dr. Alan I. Brenner, stated that Nina died from lupus and her lupus
was not caused by the Dilantin. The petitioners then conceded that Nina died from a
non-vaccine-related condition -- lupus. Section 13(a) of the Vaccine Act states:
(1) Compensation shall be awarded under the Program to a petitioner if the special
master or court finds on the record as a whole --
(A) that the petitioner has demonstrated by a preponderance of the evidence the matters
required in the petition by section [11(c)(1)] of this title...
The special master or court may not make such a finding based on the claims of a
petitioner alone, unsubstantiated by medical records or by medical opinion.
Petitioners in this case cannot substantiate their claim that Nina's death was a
sequela of a Table injury or was caused-in-fact by her DPT vaccination. The medical
records alone simply do not allow for a finding of sequela from the 23 February 1960 DPT
vaccination. Without the opinion of a qualified medical expert on the issue of causation
or sequela, petitioners cannot prove a prima facie case. The petitioners argue
that lupus cannot defeat a Table injury because lupus is idiopathic and cannot constitute
a "factor unrelated" under §13(a)(2)(A). The court believes the petitioners
have misstated the law and their burden in a death case. In Hellebrand v. Secretary of
HHS, 999 F.2d 1565 (Fed.Cir. 1993), the court stated that:
In order for a petitioner to recover for a death which follows a DPT vaccination, based on a Table claim, two things must be established by a preponderance of the evidence. First, the petitioner must show that one of the four injuries or conditions listed in the Table occurred within the time period specified in the Table for that injury or condition. Second, the petitioner must show that death occurred as a sequela of that injury or condition.
Id. at 1569. See also Hodges v. Secretary of HHS, 9 F.3rd
958 (Fed.Cir. 1993). Regardless of whether the petitioners satisfied the first prong of
the test, the petitioners failed the second prong of the test because they did not prove
by a preponderance of the evidence that Nina's death occurred as a sequela of her alleged
Table injury. Since petitioners do not have a prima facie case, the burden does
not shift to the respondent to prove Nina's death was caused by a factor unrelated to the
administration of the vaccine. Therefore, it is irrelevant that lupus is an idiopathic
condition. Since petitioners did not prove Nina's death occurred as a sequela of her
alleged Table injury, they are not entitled to compensation for Nina's death.
II. Whether petitioners are entitled to compensation for Nina's pain and suffering;
Whether the court has jurisdiction to hear petitioners' claim?
The second issue before the court is whether the court has jurisdiction to hear
petitioners' claim that they are entitled to compensation for Nina's pain and suffering.
The Vaccine Act clearly delineates who may file a petition for compensation for an alleged
vaccine related injury or death. According to §11(b)(1)(A), a proper petitioner includes
any of the following:
. . . 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 . . . .
In construing statutory provisions, the court must be careful not to alter the plain
meaning or effect of the applicable statutes as enacted by Congress. Saldana v. Merit
Systems Protection Board, 766 F.2d 514, 516 (Fed. Cir. 1985). This is particularly
true when applying statutes that waive sovereign immunity, as this Act does. Brookfield
Const. Co. v. United States, 661 F.2d 159, 165 (Ct. Cl. 1981), citing Soriano v.
United States, 352 U.S. 270, 276 (1957). I am compelled to follow the plain meaning
of the statute.
The court has dealt with the issue of who is a proper petitioner on two previous
occasions. Buxkemper v. Secretary of HHS, 32 Fed. Cl. 213, 225 (1994)(Horn, J.); Andrews
v. Secretary of HHS, 33 Fed. Cl. 767, 772 (1995)(Tidwell, J.). The court agrees with
the reasoning in those two cases and believes it should not stray from the holding in Buxkemper
and the dicta in Andrews. A petitioner is a proper petitioner only if
they fit into one of the following three categories: (1) the petitioner sustained an
alleged vaccine-related injury; (2) the petitioner is the legal representative of a
minor/disabled adult (who is alive at the time of the filing of the petition) who
sustained an alleged vaccine-related injury; or (3) the petitioner is the legal
representative of a minor/disabled adult (who is alive or dead at the time of the filing
of the petition) who died as the result of an alleged vaccine-related injury. Buxkemper,
32 Fed. Cl. at 225; Andrews, 33 Fed. Cl. at 772.
If a child suffers a vaccine-related injury, but dies from a non-vaccine-related injury
prior to the filing of the petition, the parents are not proper petitioners because
"[t]here is no provision under section 300aa-11(b)(1)(A) for the estate of a vaccine
injured person to file a petition for compensation." Andrews, 33 Fed. Cl. at
769. If a child suffers a vaccine-related injury, and the parents file a petition with the
court, but the child dies from a non-vaccine-related injury prior to entry of judgment,
the cause of action survives the death of the child. Id. at 770. In this type of
case, the court's jurisdiction is determined by what comes first: death or the filing of
the petition. If death precedes the filing, the court does not have jurisdiction. If the
filing precedes the death of the child, the court continues to have jurisdiction. The
court in Andrews recognized that "[w]hile this may appear to be unfair, the
court notes that the unfairness is not created by this decision, but by the Act, which
prohibits an estate of an injured person from filing the claim as an initial matter."
Id. at 772. The only recourse a parent has in this case is to file a cause of
action in state court. Apparently, Congress wanted to "limit the class of persons
who could file an injury claim to those living when the claim is filed." Id.
In the case at bar, Nina was administered a DPT vaccine on 23 February 1960. She
allegedly suffered a Table injury within 72 hours of the vaccination. She died from lupus
on 10 May 1986. Her parents filed a petition with the court on 1 October 1990. Even if
Nina suffered from a Table injury, she died from a non-vaccine-related condition, to
wit, lupus, prior to her parents filing a petition with the court. Therefore, her
parents are not proper petitioners and the court does not have jurisdiction to hear their
Petitioners did not prove that Nina suffered a vaccine-related death as a sequela of
her DPT vaccination of 23 February 1960. In addition, petitioners are no longer proper
petitioners since Nina suffered a non-vaccine-related death prior to the filing of the
petition. Accordingly, this petition is dismissed with prejudice pursuant to Vaccine Rule
In the absence of a motion for review filed pursuant to RCFC, Appendix J, the clerk is
directed to enter judgment accordingly.
IT IS SO ORDERED.
Richard B. Abell
1. 1 The statutory provisions governing the Vaccine Act are found in 42 U.S.C. §§300aa-1 et seq. (West 1991 & Supp. 1998). Hereinafter, reference will be to the relevant subsection of 42 U.S.C. §300aa.