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Schumacher v. Secretary of Department of Health and Human Services

Decided: July 28, 1993.

DONALD SCHUMACHER, SR., INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DONALD SCHUMACHER, JR., AND SHARON SCHUMACHER, PETITIONERS-APPELLEES,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLANT.



Appealed from: U.S. Court of Federal Claims. Judge Merow

Before Rich, Michel, and Clevenger, Circuit Judges.

Michel

MICHEL, Circuit Judge.

The Secretary of the Department of Health and Human Services (the Secretary) appeals the threshold decision underlying the judgment of the United States Claims Court*fn1 that sustained the special master's decision denying the Secretary's motion to dismiss for lack of subject matter jurisdiction Donald Schumacher, Sr.'s and Sharon Schumacher's (the Schumachers') petition for compensation under the National Vaccine Injury Compensation Program, established pursuant to the National Childhood Vaccine Injury Act (Vaccine Act), 42 U.S.C. §§ 300aa-1 through 300aa-34 (1988, Supp. I 1989, Supp. II 1990, & Supp. III 1991). In their petition, the Schumachers requested compensation for the death of their son, Donald Schumacher, Jr. (Donald), which was allegedly related to a diphtheria-pertussis-tetanus (DPT) vaccine administered to Donald. The Secretary contended that the petition was barred by 42 U.S.C. § 300aa-11(a)(5)(B).*fn2 Because we conclude that the Schumachers' district court suit was not a "civil action" within the meaning of § 300aa-11(a)(5)(B), inasmuch as it was not against a vaccine administrator or manufacturer, that section does not bar the Schumachers' petition. Therefore, we affirm.

BACKGROUND

The full facts and details of this case are set forth in the Claims Court's opinion, which is published at Schumacher v. Secretary of the Department of Health & Human Services, 26 Cl. Ct. 1033 (1992). We provide here only the facts relevant to this limited appeal.

The Schumachers originally filed a petition for compensation under the Vaccine Act for Donald's death on November 2, 1989, claiming that Donald's death was connected with the DPT vaccinations Donald received on November 24, 1981 and January 8, 1982. When it was discovered that the Schumachers had pending a lawsuit against the vaccine administrator, Dr. Martin Feldman, for malpractice in the administration of the vaccine, the Secretary moved for dismissal of the petition as barred by § 300aa-11(a)(5)(B), which precludes the filing of a petition under the Vaccine Act if the petitioner "has pending a civil action for damages for a vaccine-related injury or death." The motion was granted. The Schumachers subsequently dismissed their action against Dr. Feldman and filed another petition under the Vaccine Act. The Secretary then discovered that the Schumachers had pending a suit in the United States District Court for the District of Massachusetts against Merrell Dow and other related companies (the Merrell Dow suit) for their alleged negligence in the manufacture and distribution of the drug, Bentyl.*fn3 None of the companies involved in the Merrell Dow suit was the DPT vaccine manufacturer. In that suit, the Schumachers alleged, inter alia, that Bentyl alone or "together with other chemical substances, biological substances, medications, drugs, or other agents . . . caused severe injuries to . . . Donald . . . and predisposed him to other adverse reactions from chemical substances, biological substances, medications, drugs, or other agents which eventually resulted in his death on March 4, 1982." Joint Appendix at 95. Asserting that the Merrell Dow suit constituted "a civil action for damages for a vaccine-related injury or death" for the purposes of § 300aa-11(a)(5)(B), the Secretary filed with the special master a motion to dismiss the new petition for lack of jurisdiction.

The special master, deciding that the Merrell Dow suit was not a "civil action" covered by § 300aa-11(a)(5)(B), denied the Secretary's motion to dismiss and, after a hearing on the petition, granted compensation to the Schumachers for Donald's death in the amount of $250,000. Upon a motion for review filed by the Secretary, the Claims Court sustained the special master's decision, both as to the denial of the Secretary's motion to dismiss and the grant of compensation to the Schumachers. The Secretary appealed only the denial of the motion to dismiss to this court.

Discussion

The sole issue in this appeal is whether the Merrell Dow suit constituted a "civil action for damages for a vaccine-related injury or death" under § 300aa-11(a)(5)(B) so as to deprive the Claims Court of jurisdiction over the Schumachers' petition for compensation under the Vaccine Act.

I. The Controlling Section

Section 300aa-11(a)(5)(B) provides: "If a plaintiff has pending a civil action for damages for a vaccine-related injury or death, such person may not file a petition under subsection (b) of this section for such injury or death." Although the statute defines "vaccine-related injury or death" as "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table, except that the term does not include an illness, injury, condition, or death associated with an adulterant or contaminant intentionally added to such a vaccine," § 300aa-33(5), it does not define "civil action." In order to determine to what types of civil actions the prohibitions of § 300aa-11(a)(5)(B) apply, it is necessary to look at that subsection in context with other provisions of that section and the Vaccine Act as a whole.

II. Other Sections and Provisions of the Vaccine Act

The Vaccine Act established a National Vaccine Injury Compensation Program (the Program), see § 300aa-10(a), which separates potential petitioners into two broad categories: those who petition with respect to a vaccine administered before the effective date of the Program, October 1, 1988 (pre-effective-date vaccination), and those who petition with respect to a vaccine administered after that date (post-effective-date vaccination). The Program breaks these groups down further, prescribing rules for whether or not a person may file a petition for compensation under the Program depending upon into which subgroup the potential petitioner falls. For example, "if in a civil action brought against a vaccine administrator or manufacturer before [October 1, 1988] damages were denied for a vaccine-related injury or death or if such civil action was dismissed with prejudice, the person who brought such action may file a petition . . . for such injury or death." § 300aa-11(a)(4). However, "if in a civil action brought against a vaccine administrator or manufacturer for a vaccine-related injury or death damages are awarded under a judgment of a court or a settlement of such action, the person who brought such action may not file a petition . . . for such injury or death." § 300aa-11(a)(7).

Furthermore, "no person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer . . . for damages arising from a vaccine-related injury or death associated with a [post-effective-date vaccination]," § 300aa-11(a)(2)(A), unless that person has brought a petition under the Program, the Claims Court has issued a judgment on that petition, and the person has elected in writing not to accept the judgment or receive any compensation awarded or unless the person withdraws such petition under certain conditions. §§ 300aa-11(a)(2)(A), -21(a). Likewise, "no vaccine administrator or manufacturer may be made a party to a civil action (other than a civil action which may be brought under paragraph (2) [after election not to accept judgment or withdrawal of the petition]) for damages for a vaccine-related injury or death associated with [a post-effective-date vaccination]." § 300aa-11(a)(3). Thus, the Vaccine Act precludes any person from collecting damages for the vaccine-related injury or death from both (1) a civil action against the vaccine administrator or manufacturer and (2) the Program. And the Vaccine Act requires a person who has not filed such a civil action as of November 15, 1988*fn4 to file a petition under the Program first or be forever precluded from either form of relief.

III. The Parties' Contentions

In the instant appeal, the Secretary argues that the Schumachers' petition was jurisdictionally barred because their Merrell Dow suit was a "civil action for damages for a vaccine-related injury or death" under § 300aa-11(a)(5)(B). The Secretary reasons, inter alia, that because § 300aa-11(a)(5)(B) does not include the language "against the vaccine administrator and manufacturer" and that the definition of "vaccine-related injury or death" is "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table," § 300aa-33(5) (emphasis added), the term "civil action" there applies to all civil actions that implicate the vaccine as part of the injury or death sued upon, regardless of who is sued. Because the Schumachers alleged in the Merrell Dow suit that Bentyl alone or in combination with other substances or drugs caused injuries to Donald, predisposing him to further injury and death, the Secretary argues that the ...


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