award of last future earnings for a child who has died as a result of a vaccine related injury is compatible with section fifteen a three b of the back seam act and the answer is no the act provides compensation for future earnings where the petitioner who suffer the vaccine related injury is alive at the time of judgment but there is in that instance there is no gap benefit if the petition a dive of a vaccine related injury before judgment the petitioner is entitled to the the language of the statute supports i think the secretary's position much more much better than it does the position of the of the petitioner in this case but it would have but but the way you make the argument would seem to pose some questions about the validity of the decision and at her when you're arguing that that there has to be an assumption that they're going to live to age eighteen and i thought that didn't end at her we we made it clear that as long as they're alive at the time of judgment that you calculated as if they would be alive today i believe that argument is completely consistent with the approach that was taken  matter of her says that that basically if the petitioner is alive at the time of judgment you do not consider whether that person is going to actually survive to age eighteen after is consistent with this the reasonable anticipation of a future with the rationale though inside her that you're now relying on with that with the rational unsober then permit a special master to look at for instance whether there are  that that the victim of that injury has suffered that might make it less likely that that they would make money at age eighteen neither are think that that what what you know combined with that or what what sort of a suggestion is that it's as long as the person is alive at the time of judgement then you've used the anticipated last earnings and there's a formula and that formula just plays out so i don't i don't  good looking to the likely length of life of the partition or what to do so the argument that's made on the other side that that it really is just the family just the luck whether you're alive on the date of judgements of the same child had lived just a short period longer and was alive for a short period longer than than that his family would have recovered the six hundred plus thousand in lost very arbitrary draws a line at eighteen and it says oh if your maxine related injuries occurred after you're eighteen you're going to get a estimations last furnace and store future depending on circumstances that's  you so if you were going to last or early and you were the president are real are you eighteen years and one day you're going to get a very nice generous estimation of your of your earnings for patches but if you were seventeen that seems to me that the erbitux furriness that the presiding judge has pointed to is consistent with and in harmony with the arbitrariness of the statute in general that congress had to draw the line lower i think that what congress is trying to do was one of the one of the usual typical age that people start or and i think that's why i chose eighteen and as of as a reasonable beginning point but if we look at that the whole overview of the statute as a whole purpose but there are already has been a massive tradeoff between the kinds of recoveries that you had in a normal tort system and the kind of very limited recoveries that are allowed here i know you talk about repeatedly in your break the generous death benefits but when you think about what this family has had lived through two hundred fifty thousand dollars does not seem generous when you're talking about the loss of  child so i mean given how small the numbers already are is it is it insane to assume that that congress might have thought if you not only have an injured child but also have lost your that that you would be entitled to more rather than less recovery no your honor and i think part of it is that at the time that the statute was an act of the death in effect and the perp they anticipated lost earnings or were more in parity they were  survival actions and then in the case of a child that dies before before the time of judgment you have a wrongful death basically a wrongful death benefit which is the death benefit that's provided by the statue if the whether state law wrongful death causes of action for loss of consortium of the other things are or are not preempted by the receipt the acceptance of the death benefit under paragraph two here i would be reluctant to to say what the department's been the government's position is on not my understanding so basically use th severity of the injury not whether a petition will actually survive to age eighteen is about the the contemplation is that you're not going to lose any earnings until you're eighteen but you're saying that we should sort of just create that fiction and just it's putting into a concept that congress didn't actually invision that they're trying to compensate the president loss of the capacity to earn in the future but it is the contemplation that the victim would be compensated for loss of three b that makes the holdings a duty in a political to that particular section you make the argument about the fairness around fairness of whether it's someone survives one additional day before the judgment or after the judgment if there is someone who receives a judgment and then dies a day later there is no mechanism for that individual's family to file a claim for a death benefit isn't that right  so the only way you can get a death benefit is if in fact the death occurs prior to judgment correct does that lend support for the government's argument that that that death benefit  in alternative to last earnings and not in the sense that you get to pick either or buy but that i think and contemplate that you're in one status or another as of the date of judgment i don't believe it  is and first and foremost the plain language state that you should be entitled to all the compensation for under fifteen a one three and four in addition to the deficit so you plainly states that you are in time for both where you were you passed away  also if we were to look at traditional tort action for up for somebody else that the state would be entitled to compensation for that individual's apparent the past and as you stated also some treatise and spies are treatise and the restatement of correct me if i'm wrong my impression was that although the laws vary somewhat there is one very common view probably the predominant view that says you have what survives in terms of survival statutes in terms of lost future earnings is that the earnings down at death and then survival actions in fact cut off the last earnings at what has already accrued is that wrong i think the way that i look at it is the in a particular statutory if if that's a kind of background of our then why isn't that quite natural to read paragraph three as essentially dealing with survival actions death cuts off the last earnings  says here to the a state is a lump sum automatic two hundred fifty thousand and then maybe under cases like shaffer and hobart there is a remaining possibility of a state or wrongful death action by the surviving spouses or surviving parents or that small class of people who are generally entitled to bring growth for that action why isn't that essentially a natural reading of have three and alternative form and the congress is purpose was twofold to protect vaccine manufacturers from civil liability to stabilize the vaccine market and also to provide generous compensation petitioners and by disallowin go back in time that historically when the death penalty or death benefit was originally established that it actually was somewhat imperative with what the future earnings calculation would have been and it's only that sort of after the judgment then he would receive much more compensation than just the death benefit as opposed to if you if you were to die prior to the judgment you you really only never talked about the issue of future earnings in that case the only thing that was at issue was that the prior earnings that occurred prior to death is that right that's true that's true but the reasoning still is a political escape it says that all compensation under fifteen a one three and four in addition to the debt and it shall be available to deceased living petitioners holdings institutionally editor and figaro they really embody some core principles that are important to this the issue before the court right now first the plain language of the vaccine that dictates the compensation under section fifteen a one three and four shall be i believe under figaro it just using the date of judgment as a demarcation for whether you're going to be given this compensation or fifty three b or not it's somewhat arbitrary and in the sense that it  that's correct it would do would be entitled to the death benefit however the more severely injured petitioner that dies before judgment would only get the death benefit maybe slightly less severely injured petitioner who dies just shortly after unfortunate individual circumstance that your death happened prior to the judgment in your particular case for after a judgment and unfairly treat those petitioners do differently who die pri because he the petitioner died before judgement you're basing that disallowance on his post injury life if it weren't for his acting injury it can be assumed that he will live a long healthy life and it's only because of the vaccine injury that he died so before you finish if you want to address mcallister and how you deal with the fact that we have said that you are supposed to take into account at the time of judgement the actual circumstances are any change in circumstances sure and i believe our position is completely consistent with section thirteen b one and also the holding in mcalester that changes in the victim's condition up until judgment should be taken into account  a related death is a quote of the preceding vaccine injury and this is supported by the text in the structure of the vaccine injury table which is a section fourteen of the vaccine act which consistently identifies death as a quality vaccine  where you have someone come in and and correct exactly how much it's going to cost to support this person going forward for their medical needs we just cut that out and do that calculation corrector on to the other thing is  terms of looking at the intervention protection that the secretary has has property in this case we to the extent that it is a plausible interpretation i think this court has recognized and then the marathon oil sovereign immunity argument i've seen it before but but you know that this money is coming from the companies that make these vaccines this is we're not talking about tax dollars here now with but it is not similar cases it has been does the statute work if if for some reason the vaccine companies didn't pay money with the claims still proceeds so that the government would have to pay them more but the government say sorry we haven't we haven't got the money from the source that we were supposed to you one other question which i think may have some bearing on your point about the purpose of the award really not the of the paragraph three words can you explain what parrot what subsection d is doing in saying  with respect to compensations under paragraphs to live three we exclude compensation for health education and welfare what does paragraph yes i mean is there any the last earnings are supposed to enable self support a form of welfare and they don't want any arguments about how lost earnings if for that purpose were somehow preempted by their so you but except clause in that i have realized to several steps away like you know i do want to say that despite some light hearted exchanges about arbitrary nessa's the statute we understand that these cases are always extraordinarily serious next and in a fact always extraordinarily