## United States Court of Appeals for the Federal Circuit

2007-5034

DORY ZATUCHNI, Executrix of the Estate of E. BARBARA SNYDER, deceased, Petitioner-Appellee,

v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant.

Kevin P. Conway , Conway, Homer & Chin-Caplan, P.C., of Boston, Massachusetts, argued for petitioner-appellee. On the brief was Ronald C. Homer

. Glenn A. MacLeod , Senior Trial Counsel, Torts Branch, Civil Division, United States Department of Justice, of Wa shington, 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. Appealed from: United States Court of Federal Claims Judge Thomas C. Wheeler

## United States Court of Appeals for the Federal Circuit

2007-5034 DORY ZATUCHNI, Executrix of the Estate of E. BARBARA SNYDER, deceased, Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant.

Appeal from the United States Court of Federal Claims in 94-VV-58, Judge Thomas C. Wheeler.

_________ __________________ DECIDED: February 12, 2008

_________ __________________

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 Hum an Services (“government”) appeals the judgment of the Court of Feder al Claims awarding petiti oner-appellee Dory Zatuchni (“Zatuchni”) (in her capacity as executrix of t he estate of E. Barbara Snyder (“Snyder”))

∗ Honorable Denise Cote, District Judge, United States District Court for the Southern District of New Yo rk, sitting by designation.$804,323.90 under the National Vaccine Co mpensation 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 purs uant to 42 U.S.C. § 300aa15(a)(2), but asserts that the remain ing $554,323.90, representing compensation pursuant to 42 U.S.C. § 300aa-15 (a)(1), (3), and (4) for vacci ne-related injuries suffered by Snyder prior to her death, may not be awarded because the death benefit is the sole remedy for a petitioner who dies as a result of the administrati on of a vaccine. We

affirm. BACKGROUND Snyder received a measles, mumps, and rubella (MMR) vaccine on February 10, 1992, at the age of 45. The Court of F ederal 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. Sny der experienced other symptoms, which her physicians diagnosed as co ntinuing chronic arthralgia and [fibromyalgia syndrome (FMS)] attribut able to the rubella portion of the MMR vaccination.[ 1 ] Over the next 13 years, Ms. Snyder’s physical condition deteriorated rapidly and si gnificantly. . . . [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 compens ation with the Program.

As detailed in Snyder v. Secretary of Health & Human Services , No. 94-58V, 2005 WL

1 “’Arthralgia’ means joint pain.” Snyder v. Sec’y of Health & Human Servs. , No. 94-58V, 2005 WL 1230787 at *2 n. 5 (Fed. Cl. May 6, 2005) (citing Dorland’s Illustrated Medical Dictionary 147 (27th ed. 1988)). FMS is a syndrome characterized by “pain in many different fibrous tissue areas of the[] bod[y,]” without an obvious physical cause. Id. at *13.

2007-5034 21230787, at *3-*5 (Fed. Cl. S pec. Mstr. May 6, 2005), the government conceded on May 2, 1994, that Snyder’s chronic join t pain was caused by the MMR vaccination; Snyder, however, also sought compensati on for her other symptoms, and obtained several stays of her petition in order to gat her 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 re mained pending before the specia l 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 substitut ed 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 Feder al Claims reversed t he 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 master to determine the amount of compensa tion to which her es tate was entitled and

2 Also around this time, in response to the filing of several similar petitions, the special master assigned to Snyder’s petition was directed to conduct a general inquiry into the causal rela tionship between various joint-re lated conditions and rubella vaccinations. The special master made findi ngs and issued reports in 1993 and 2002 that were subsequently applied to resolve pet itions alleging that rubella vaccinations had caused joint-related symptoms, including Snyder’s petition. See Snyder , 2005 WL 1230787, at *3-*5. See generally Snyder v. Sec’y of Health & Human Servs. , Nos. 94- 58V et al., 2002 WL 31965742 (Fed. Cl. Spec. Mstr. Dec. 13, 2002).

2007-5034 3whether Snyder’s death was vaccine-related. Zatuchni v. Sec’y of Health & Human Servs. , 69 Fed. Cl. 612, 622-25 (2006). The special master issued a decision on remand on Ma y 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 fo r under 42 U.S.C. § 300aa-15(a)(2). Zatuchni v. Sec’y of Health & Human Servs. , No. 94-58V, 2006 WL 1499982, at *6 (Fed. Cl. May 10, 2006). The special master also found that Snyder would have been entitled to compensation in the amount of $554,323.90 for her vaccine-re lated injuries during her lifetime, including ac tual expenses incurred, pain and suffering, and lost income

between the time of the va ccination and her death. Id. at *7-*8. The special master concluded that as a matter of law, however, such compensation could not be paid to her estate because her vaccine-related injury claims did not survive her death. Id. at *9-26. Accordingly, the special mast er awarded appel lant $250,000. On appeal, the Court of Federal Cla ims reversed the special master’s determination as to the claim for pre-deat h 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 abat e 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 ju risdiction pursuant to 42 U.S.C. § 300aa12(f).

2007-5034 4DISCUSSION The instant appeal requires us to dete rmine whether the petitioner may receive the compensation for medical expenses, lost wages, and pain and suffering provided for under 42 U.S.C. § 300aa-15(a)(1), (3) and (4), in addition to the $250,000 death benefit provided for under § 300aa-15(a)(2 ). The opinion below held that such compensation may be awarded; the governmen t contends on appeal that su ch compensation may not

be awarded because the deat h benefit is the sole remedy fo r a petitioner who dies as a

result of the administration of a vaccin e, and that claims for compensation under § 300aa-15(1), (3), and (4) do not survive t he death of a vaccine-injured person under any circumstances. The question of whether compensation under these subsections may be paid to the petitioner’s estate following her va ccine-related death presents a question of statutory interpretation, and requires an anal ysis 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 benefi ts under 38 U.S.C. § 1151);

Richard v. West , 161 F.3d 719, 722 (Fed. Cir. 1998) (“[ Claimant’s] stat utory argument cannot overcome the clear intent expres sed by the structure and language of the statutory scheme at issue--that a veteran’s claim to disab ility benefits terminates at death.”). We review de nov o the judgment of the court below on this question. Markovich v. Sec’y of Health & Human Servs. , 477 F.3d 1353, 1355-56 (Fed. Cir. 2007);

see also 42 U.S.C. § 300aa-12(e)(2)(B).

2007-5034 5The Program was established by the Na tional Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, tit. III, 100 Stat. 3743, 3755 (1986) (“Vaccine Act”). As we have previously noted, Congress instituted this compensato ry program because the traditional civil tort actions against vaccine manufacturers were producing undesirable results both with respec t to the victims and the vaccine industry. Congress found t hat the traditional tort system was not working for victims because it resulted in lengt hy delays, high transaction costs, and sometimes no recovery. Similarly, the high cost of litigation and difficulty of obtaining insurance wa s undermining incentives for vaccine manufacturers to remain in the va ccine market. In sum, Congress was concerned with the instabilit y 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 ex peditious and fair” and “to compensate persons with recognized vaccine injuries without requiring the

difficult individual dete rminations of causation of injury and without a demonstration that a manufacturer was negligent or t hat 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 Co mmittee anticipates that the speed of the compensation program, the low transaction co sts of the system, the no-f ault nature of the required findings, and the relative certainty and generos ity of the system’s aw ards will divert a significant number of potential plaintiffs from litigatio n.”). “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 le gal representative of any person who died as

the result of the administrati on of a vaccine set forth in the Vaccine Injury Table” may

2007-5034 6file a petition under the Program . 42 U.S.C. § 300aa-11(b)(1)(A); see also id. § 300aa14 (Vaccine Injury Table). 3 Causation is “presumed” wher e “an injury or condition listed in the Vaccine Injury Table begins to manifest itself within the time specified in the Table for the vaccine in question.” Hines v. Sec’y of H ealth & Human Servs. , 940 F.2d 1518, 1524 (Fed. Cir. 1991); see also 42 U.S.C. §§ 300aa-11(c)(1 )(C)(i), -13(a)(1)(A)-(B). 4 The Vaccine Act also requires that the procedures establis hed for resolving claims under the Program be “expediti ous[] and informal,” including “flexible and informal standards of admissibility of evidence. ” 42 U.S.C. § 300aa-12(d)(2)(A)-(B). The Program imposes firm deadlines for bot h the filing and resolu tion of petitions, further reducing the li kelihood of complex causation inquiri es or extended litigation. A petition for compensation arising out of a vaccination administer ed before October 1, 1988 (a “pre-Act” petition), must have been fil ed within 28 months of that date, and, in any event, “no such petition may be filed if the first symptom or manife station of onset or of the significant aggravation of such injury occurred more t han 36 months after the date

of administration of the vaccine.” Id. § 300aa-16(a)(1). A pe tition for compensation arising out of a vaccination administered afte r October 1, 1988 (a “post-Act” petition)

must be filed within 36 months of the onset of symptom s; “if a death occurred,” a petition must be filed within 24 months of the death and no more than 48 months after the onset of symptoms. Id. § 300aa-16(a)(2)-(3). In turn, once a petition is received, a

3 The Act requires that such a peti tion be filed, and judgment from the Program rejected, prior to bringing an ac tion in state court. 42 U.S.C. §§ 300aa11(a)(2)(A), -21. 4 “[F]or injuries not listed in the Tabl e, or which do not occur within the time period stipulated in the Table, the Vaccine Act authorizes re covery only if the petitioner proves actual causation.” Hines , 940 F.2d at 1524-25; see also 42 U.S.C. § 300aa11(c)(1)(C)(ii); Althen v. Sec’y of H ealth & Human Servs. , 418 F.3d 1274, 1278 (Fed. Cir. 2005).

2007-5034 7special master of the Unit ed States Court of Federal Claims must issue a decision within 240 days (with some time exc epted), and stays are generally limited. 5 Id. § 300aa-12. The types of compensation available to a petitioner under t he Program are listed in 42 U.S.C. § 300aa- 15. Section 300aa-15(a) addresse s post-Act petitions, such as the petition at issue here; subsection (b) addr esses pre-Act petitions. Subsection (a) provides, in relevant part: Compensation awarded under the Program to a petitioner under section 300aa-11 of this title for a vaccine-rela ted injury or death associated with the administration of a vaccine afte r October 1, 1988, shall include the following: (1) (A) Actual unreimbursable expens es incurred from the date of the judgment awarding such expens es 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 vaccinerelated injury for which the petitioner seeks compensation . . . .[ 6 ] (2) In the event of a vaccine-rela ted death, an awar d 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

5 This case, of course, is an exception to this general rule. As the Special Master recognized, this is a “very unusual Vaccine Act case.” Zatuchni , 2006 WL 1499982, at *3 n.5. Repeated stays were granted in an e ffort to answer precisely the kind of complex causation quest ions the Program is struct ured to avoid, and thus Snyder’s claim was not resolved for more than ten years after it was initially filed -- and several days after she died. See id. at *3; Snyder , 2005 WL 1230787, at *3-*5. The “unusual” posture of this case, however, is not relevant to the question presented. 6 The types of recoverable “unr eimbursable expenses” under these provisions are detailed in 42 U.S.C. §§ 300aa-15(a)(1)(A)( iii)(II) and -15(a)(1)(B)(iii), which are omitted here for the sake of simplicit y, as they are not at issue in the instant appeal.

2007-5034 8has 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 ear nings determined in accordance with generally recognized actuaria l 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.

Id. § 300aa-15(a). Subsection (b) incorporates by reference most of the categories of compensation established in su bsection (a), but is struct ured somewhat differently, does not permit recovery of unreimbursabl e expenses incurred before the date of judgment, and contains a strict er limit on the amount of compensation that may be awarded for several other categories of compensation. It provides: Compensation awarded under the Program to a petitioner under section 300aa-11 of this title for a vaccine-rela ted 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[)].

Id. § 300aa-15(b). The Act also provides t hat compensation will be paid in no more than 3,500 pre-Act cases. Id. § 300aa-11(b)(1)(B). The question presented here is whether a petitioner who has suffered a vaccinerelated injury and dies from vaccine-related causes while her petition for compensation under § 300aa-15(a) is pending ma y recover, in addition to the death benefit provided under § 300aa-15(a)(2), compensati on under subsections (a)(1), (3), and (4). Based on

2007-5034 9the statutory text and stru cture outlined above, we answer this question in the

affirmative. Most important, the text and structure of § 300aa-15(a) indicate that the death benefit provided by subsection (a)(2) is not t he exclusive remedy where a petitioner has experienced both a vaccine-related injury and a vaccine-related death. First, subsection (a)(2) is not set off from the subsections dealing with compensati on for expenses, lost wages, and pain and suffering; to the contrary, it is listed between and alongside those provisions, which supports an interpretation in which the death benefit is simply one of several types of compensation that are ava ilable in an appropriate case. Second, and perhaps most crucially, the text of s ubsection (a) as a whole does not, as the government maintains, provide any indication that the death benefit in (a)(2) is the only compensation that may be paid in a “death case,” whereas the compensation provided for in subsections (a)(1), (3), and (4) may be paid only in an “injury case” in which the injured party is still living. Subsection (a) be gins with the directive that “[c]ompensation

. . . shall include the following,” and proceeds to list four categories of available compensation. Id. § 300aa-15(a) (emphasis added). The government argues, however, that despite this inclusive opening language, subsections (a)(1), (3), and (4) state that they provide on ly compensation for expenses , lost wages, and pain and suffering caused by a “vaccine-related injury,” whereas subsection (a)(2) states that it provides $250,000 to an estate only “[i]n t he event of a vaccine-related death,” and that this phrasing supports the conclusion that compensation under all four of these provisions is not permitted.

2007-5034 10This argument does not withstand scrutiny. Put simply, the fact that a vaccinerelated 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 of subsections (a)(1), (3), and (4) simply because the vaccineinjured person in question is no longer living. Id. § 300-15(a). Thus, it is in no way

inconsistent with the text of 42 U.S.C. § 300aa- 15(a) to award compensation under subsections (a)(1), (3), and (4) for damages that “resulted from” or were sustained “by reason of” a vaccine-related injury in addition to the death benefit provided for under subsection (a)(2) “[i]n the ev ent of a vaccine-related death.” Id. 7 To the contrary, this is the reading of § 300aa-15(a) that most natura lly flows from its text and structure. This interpretation of § 300aa-15(a) is conf irmed by an analysis of § 300aa-15(b). The government conceded in oral argument that these two pr ovisions, while differently

structured and addressed to diffe rent categories of petitions (pre-Act rather than postAct petitions), should be interpreted consistent ly with respect to the question of whether compensation for a vaccine-related injury c an be awarded after the death of a vaccineinjured person, as neither t he statute itself nor the legi slative history provides any indication that Congress intended to reach a different result on this point in pre-Act and

7 The government also argues that C ongress’s intent to limit compensation “[i]n the event of a vaccine-re lated death” to the death benefit provided in subsection (a)(2) is evidenced by the fact that this s ubsection is the only on e that makes reference to a payment made to an “estate.” We do not view this language in the same light. Read in context, this language seems to est ablish only that, where a vaccine-related death has occurred, the $250,000 should be pa id directly to the deceased individual’s estate, and not to some other entity or person, such as a surviving spouse. Similarly, while subsections (a)(1), (3), and (4) do not state that an estate may receive the compensation described therein, neither do they state that only a living vaccine-injured person may do so.

2007-5034 11post-Act cases. 8 We agree, and further find that the text and structure of subsection (b) make even more explicit that both “injury” and “death” compensation may be available in an appropriate case. Section 300aa-15(b) provides that, in a pre-Act case, compensation “may include the compensation descri bed in paragraphs (1)(A) and (2) of subsection (a) of this

8 In fact, the amendment hi story of subsection (b) confirms that subsections (a) and (b), as currently written, should be read as providing the same types of compensation in appropriate cases (with one exception). As passed, 42 U.S.C. § 300aa-15(b) restricted recovery in pre-Act cases to “the compensation described in paragraphs (1)(A) and (2) of subsection (a)” -- i.e. , to post-judgment expenses and the death benefit. Pub L. No. 99- 660, § 2115(b). In 1987, subsection (b) was amended to expand the categories of compensation available. Rather than simply state which of the types of compensation described in subsection (a) are available in a pre-Act case, this revision instead incorporated su bsection (a) by (indirect) reference by providing that compensation in a pre-Act case may not include the compensation described in paragraph (1)(B) of subsection (a) [ i.e. , pre-judgment expenses] and may include attorney’s fees and other costs in cluded in a judgment under subsection (e) [ i.e. , costs and fees], except that the to tal amount that may be paid as compensation under paragraphs (3 ) and (4) of subsection (a) [ i.e. , lost wages and pain and suffering] and inclu ded as attorneys’ fees and other costs under subsection (3) may not exceed $30,000. Pub L. No. 100-203, § 4303(e). In essenc e, subsection (b) was amended to mirror subsection (a) in terms of the types of compen sation available, with the exception of the denial of pre-judgment expenses; compensation und er all other provisio ns of subsection (a) was thus made available in a pre-Act case, but com pensation for lost wages, pain and suffering, and costs and fees was capped at $30,000. In 1989, subsection (b) was amended again to read as it does today. The le gislative history indicates that this last amendment, however, was “only intended to clarify the amount of damages” available in light of “some confusion abo ut the allowable compensation,” and “represents no change in policy from the Act” as previously written. H.R. Rep. 101-247, at 514, reprinted in 1989 U.S.C.C.A.N. 1906, 2240. As this legislative history indicates, the current version of subsection (b) is intended to make the connection between the types of compensation available under subsections (a ) and (b) even more explicit than was the case in 1987. In sum, then, because both t he text of subsection (b) and the associated legislative history indicate that subsection (b) is intended to be -- with some limited and explicit exceptions -- a reflection of subsec tion (a), subsection (b) is properly read as a guide to the types of compensation availabl e under subsection (a) in this case.

2007-5034 12section and may also include . . . lost earnings [and] pain and suffering” as described in subsections (a)(3) and (4). Id. § 300aa-15(b) (emphasis added). Although recovery for lost earnings and pain and suffering (along with attorney’s fees) are capped at $30,000 for a pre-Act recovery under subsection (b), the underscored text establishes beyond cavil that, in a pre-Act case, the statute prov ides that the death benef it in paragraph (2) may be paid to an estate alongside compens ation for post-judgment expenses, lost earnings, and pain and suffering. If we are to read subsections (a) and (b) in parallel, then, the interpretation of subsecti on (a) outlined above must be adopted here. 9 Moreover, as the government’s concessi on underscores, nothing in the language or

structure of the Vaccine Act indicates that Congress intended to provide vaccine-related injury compensation in addition to the death benef it in pre-Act cases but not in post-Act

cases. Moving beyond § 300aa-15 itself, the gove rnment argues that several other provisions of the statut e demonstrate that the Vacci ne Act as a whole draws a distinction between vaccine-related injury cl aims and vaccine-related death claims that precludes a finding that any petitio ner might be awarded the compensation contemplated here. Primary reliance is placed on § 300aa-11( b)(1)(A), which describes who “may . . . file a petition for co mpensation under the Program,” and § 300aa11(b)(2), which provides that “[o]nly one petition may be filed with respect to each

9 This reading of subsection (b) also disposes of the government’s contention that the use of t he conjunction “or” in the first sentence of subsection (a), which notes that compensati on will be paid “for a vaccine-re lated injury or death,” is intended to indicate that “injury” compensation or “death” benefits, but not both, may be paid in a particular case. As subsection (b) demonstrates, this language simply describes the two broad categories of compens ation available, which are then further detailed in the subsections that follow, and in no way indi cates that an award of one category of compensation precludes an award of the other.

2007-5034 13administration of a vaccine” (t he “single petition rule”). While we are mindful that “[s]tatutes must be read as a whole,” United States v. Atlantic Research Corp. , -- U.S. -- , 127 S. Ct. 2331, 2336 (2007) (internal quotat ion marks omitted), we do not find the government’s arguments on these points to be compelling. Based on its reading of § 300aa-11(b)(1)(A), the go vernment contends that because the right to file a claim after the death of a vaccine-injure d person is limited to the “the legal representative of any person w ho died as the result of the administration of a vaccine,” it is apparent that “a person who dies before the filing of a petition cannot request compensation for a vaccine-related injury .” Reasoning from this conclusion, the government argues that vaccine-related injury claims thus do not survive the death of the vaccine-injured person. T he government’s reading of this provision goes too far. We need not decide whether § 300aa-11(b)(1)(A) would permit the estate of a person who suffered vaccine-related injuries but died of a non-vaccine-related cause to file a petition for vaccine-related injury compensat ion, and thus express no view on that point; 10 this provision, however, plainly does not dictate that a proper ly filed petition by

10 The dissent states that our demurer here indicates that we are “troubled by the possibility of this anomal ous result.” Dissent at 6 n.5. To the contrary, we are simply declining to decide a question not presented in the case before us. Moreover, we do not find “troubling” or “anomalous” the possibility that § 300aa-11(b)(1)(A) would bar the estate of a person who died of non-va ccine-related causes from filing a petition for vaccine-related injury co mpensation. As noted below, infra at 16-17, § 300aa11(b)(1)(A) is simply one of several trade-offs and limitations in the Program, and we express no view on the policy choices reflected in those provisions. By contrast, it may be noted that the federal common law a pproach offered by the dissent appears to conflict directly with § 300aa-11(b)(1)(A). The dissent’s approach would allow a vaccine-related injury claim to survive in all cases -- regardless of the cause of death or whether a petition was filed before or after death -- and thus would permit a new petition for vaccine-related injury compensation to be f iled by the estate of a person who did not die from a vaccine-related cause.

2007-5034 14the estate of a person who suffered both vaccine-related injuries and a vaccine-related death (and thus had standing to file under § 300aa-11(b)(1)(A )) may not contain a request for any and all of the types of com pensation listed in § 300aa-15(a). Similarly, as in this case, if a petition is properly filed by a person who su ffered a vaccine-related injury, but that person dies of vaccine-re lated causes while her claim is pending, § 300aa-11(b)(1)(A) does not prevent -- direct ly or by implication -- the legal representative of the estate of such a pe rson from requesting each of the categories of compensation listed in § 300aa-15(a) after t hey have been properly substituted for the deceased petitioner. In a related argument, the government cont ends that the single petition rule of § 300aa-11(b)(2) also supports its view th at the Vaccine Act makes a bright-line distinction between “inj ury” cases and “death” cases. T he government argues that, as a

The dissent appears willing to endorse such a result in order to “harmonize the federal scheme with the state al ternative” in light of what the dissent perceives as Congress’s intent to “replace” state la w remedies with the compensation scheme provided by the Program. Dissent at 13. The dissent reasons that “[a] rule in favor of survivorship of vaccine-related injury clai ms would preserve the Vaccine Act as an effective substitute for the state tort system.” Id. This reflects a misreading of the Act. Not only, as the dissent recognizes, are cl aimants permitted to opt -out of or withdraw from the Program under several circumstances in order to s eek remedies in state court, see 42 U.S.C. §§ 300aa-11(a)(2)(A), 21(a)-(b), but the Act also explicitly preempts state laws that “prohibit[] an individual from bringing a civil action against a vaccine manufacturer for damages for a vaccine-related in jury or death if such civil action is not barred” under the Program. Id. § 300aa-22(e). In short, the Act does not “replace” or provide a “substitute for” state law remedies; ra ther, it provides an alternative forum of first resort designed to “divert a significant num ber of potential plainti ffs from litigation.” House Report at 13, reprinted in 1986 U.S.C.C.A.N. at 6354. Where compensation is not available under the Program, or is seen by the claimant as unsatisfactory for any reason, however, the Act expressly contempl ates that claimants will seek state-law remedies. Thus, faced with a scenario in wh ich compensation is not available under the Program, the appropriate response is not to expand the scope of the Act in order to “harmonize” the Act with state law, but rather to follow the unambiguous language of the Act and allow the claimant to proceed to state court.

2007-5034 15result of this rule, if a vaccine-injured person were to file a petition and receive compensation under § 300aa-15(a )(1), (3), and (4) during his lifetime, and were subsequently to die as a result of his vacc ine-related injuries, a second petition and recovery under § 300aa-15(a)(2) would not be permitted. Becaus e it would not be possible to recover both the death benefit and vaccine-related injury compensation under those circumstances, the government contends that the st atutory structure contemplates that there are “t wo separate types of petitions -- a vaccine injury petition or a vaccine-related death petitio n” and that the “pursuit of the two separate claims in a single petition” is “precluded.” We, of course, agree that a second petit ion seeking the death benefit would not be permitted under the circumstances just descri bed; that result is clearly dictated by the single-petition rule in § 300aa-11(b)(2). It does not follow, however, that because recovery of both the death benefit and vaccine-related injury compensation is not possible in one scenario that it is not possible under another quite different scenario, such as that presented by t he instant appeal. As the descr iption above indicates, the Program contains several limitations and trade- offs that restrict re covery, including the statute of limitations, the filing requirement s of § 300aa-11, the singl e petition rule, the

limitation on the number of pre-Act petitions for which compensation may be awarded,

and limits on the amount of co mpensation that may be paid u nder certain subsections of § 300aa-15. Many of these limitations appear to be driven by concerns about the difficultly of establishing causation for injuri es or deaths after a significant lapse of time, or about the adequacy of the Vaccine Injury Compensation Trust Fund, see 26 U.S.C. § 9510, to cover all petitions that might be filed under the Program . Whatever their

2007-5034 16origin, that these limitati ons prevent certain individua ls who have undoubtedly suffered as a result of a vaccine from receiving fu ll (or any) compensation is beyond question. Given, however, what we view as the pl ain meaning of § 300aa-15 -- that recovery under § 300aa-15(a)(1) through (4 ) is permitted where appropria te -- we do not believe that these limiting prov isions require us to set aside t hat meaning here and hold that such a recovery is never possible simply bec ause these limiting provisions indicate that

it would be unattainable under certain circumst ances, nor do we feel that such a result

is either “absurd” or inconsist ent with the text, struct ure, or spirit of the Vaccine Act as a

whole. 11 Moreover, we note that if the government’s arguments ar e taken to their logical conclusion, all recovery would be denie d here. The government contends that §§ 300aa-11(b)(1)(A) and 300aa-11(b)(2 ), read together, indicate that a petition may be filed for either a vaccine-related injury or a vaccine-related death, but not for both, and that the compensation available is determined by the identity of the filer: if an estate files, it may only receive a death benefit; if an injured person files, she may only receive

11 The government further contends that t he statute of limitat ions provided in § 300aa-16(a)(2) and (3), which distinguishes between petitions arising out of “a vaccine-related injury” and cases in which “a death occurred as a result of the administration of [a] vaccine,” also suppo rts its view that the Program generally distinguishes between “injury” cases and “ death” cases. 42 U. S.C. § 300aa-16(a)(2)- (3). First, we note, again, t hat these provisions are in no way inconsistent with a system in which petitions for both vaccine-related injury compensation and a death benefit are permitted. (Such a petition would simply fa ll into the category of cases in which “a death occurred as a result of the administration of [a] vacci ne.”) Second, th e legislative history indicates that the stat ute of limitations -- including the distinction drawn between “vaccine-related injury” cases and cases in which “a death occurred” -- is more readily explained by a concern with avoidi ng “difficult individual dete rminations of causation” in connection with Program petitions, and thus does not necessarily reflect a broader goal of separating “injury” ca ses and “death” cases. 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.

2007-5034 17injury-related benefits. In this case, however , Snyder filed her claim for vaccine-related injury compensation while she was alive, and the single-petit ion rule bars the filing of any additional petitions relat ed to the administration of her MMR vaccine. In this scenario, the most logical outcome under the government’s reading of the statute would be to conclude (1) that because Snyder’s esta te did not “file” the claim at issue here within the meaning of § 300aa-11(b)(1)(A) -- but rather has been substituted for the deceased Snyder in order to co ntinue her original petition -- it cannot recover anything in connection with her petition; (2) that this petition should theref ore be denied; and (3) that because no further petitions may be filed, no recovery is available to the estate. We recognize, of course, that the government has chosen to concede in this appeal that Snyder’s estate is entitled to recover a death benefit, but the result that would follow from an endorsement of the logi c of the government’s position -- a result that we do not believe is required under the statute -- underscores the imprudence of reading § 300aa11(b) as controlling the types of compensation available rather than, as its text provides, simply describing who “may . . . file a petitio n for compensation under the Program.” 42 U.S.C. § 300aa-11(b)(1)(A). Given the posture of this case, we also no te that there is no procedural difficulty presented by the substitution of a deceased pet itioner’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 substituti on of the proper parties.” The Rule also details the procedural requirements for effecting the s ubstitution. RCFC 25. In this case, substitution was made pursuant to this pr ocedure, and while the government contested

2007-5034 18whether 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 discuss ion 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 42 U.S.C. § 300aa-15(a) and (b), and to do so in the absence of any statutory guidanc e supporting that reinterpretation. The doctrine of sovereign immunity d oes not require such a result. 13

12 We recognize that RCFC 25 is pur ely a procedural device, and does not answer the substantive legal question of whet her a claim is “extinguished” under these circumstances. Cf. Robertson v. Wegmann , 436 U.S. 584, 587 n.3 (1978). That question of substantive law is answered in the analysis provided above. 13 The government cites, for example, Schumacher v. Secretary of Health & Human Services , 2 F.3d 1128 (Fed. Cir. 1993), in suppor t of the proposition that the sovereign immunity doctrine applies to interpre tations of the Vaccine Act. In that case, however, while we recognized that “a wa iver of sovereign immunity must be unequivocally expressed,” id. at 1135 n.12 (internal quotat ion marks omitted), we rejected the government’s interpretation of 42 U.S.C. § 300 aa-11(a)(5)(B) as inconsistent with the text, struct ure, and purpose of the Vaccine Act. Id. at 1130-35. We reach a similar conclusion here. Mor eover, while the government has asserted, citing, inter alia , United States v. Williams , 514 U.S. 527, 541 (1995) (Scalia, J., concurring), that the sovereign immunity doc trine “applies even to the determination of the scope of exp licit waivers,” id. , the sentences that follow the quoted language are equally instructive: “The rule does not, howev er, require explicit waivers to be given a meaning that is implausible . . . . ‘“The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction wher e consent has been announced.”’” Id. (quoting United States v. Aetna Cas. & Surety Co. , 338 U.S. 366, 383 (1949) (quoting Anderson v. Hayes Constr. Co , 153 N.E. 28, 29-30 (N.Y. 1926) (Cardozo, J.))).

2007-5034 192007-5034 20 CONCLUSION The judgment of the C ourt of Federal Claims awarding the petitioner compensation pursuant to 42 U.S.C. § 300aa-15(a) in the amount of $804,323.90 is

affirmed.

AFFIRMED COSTS

No costs.

## United States Court of Appeals for the Federal Circuit

2007-5034 DORY ZATUCHNI, Executrix of the Estate of E. BARBARA SNYDER, deceased, Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant.

Appeal from the United States Court of F ederal Claims in 94-VV-58, Judge Thomas C. Wheeler.

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”), 42 U.S.C. §§ 300aa-10, to -34 (2000), survives the death of a petitioner. Without any basis in the statutory te xt, the majority holds that the Vaccine Act provides for survivorship. In my view, the Vaccine Act is entirely silent as to issues of survivorship. The majority’s approach is contrary to established authority recognized explicitly in eight circuits, and implicitly by t he Supreme Court, that survivorship is determined as a matter

of federal common law when t he statute does not explicitly address the question. The majority offers no reason for ignoring this established rule in favor of an untenable

construction of the Vaccine Act.I This issue arises against a background of pervasive concern about the survival of personal injury claims. At common law, per sonal injury claims, unlike claims for injury to property, did not survive, but abated upon t he death of either t he plaintiff or the

defendant. See, e.g. , Restatement (Second) of To rts § 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 However, in my view, the majority entirely fails to explain where or how the Vacci ne Act affirmatively provides for survivorship. It is well

established that in construi ng a statute, a court may not “draw on some unexpressed spirit outside the bounds of the normal meaning of” the words used in the statute. Addison v. Holly Hill Fruit Prods. , 322 U.S. 607, 617 (1944); see also Ernst & Ernst v.

Hochfelder , 425 U.S. 185, 199 (1976) (re jecting construction of statute that “would add a gloss to the operative l anguage of the statute quite di fferent from its commonly accepted meaning”). 2 The majority opinion does not i dentify any statut ory text that could be read to provide a right of survivorship.

1 Unlike the Vaccine Act, some statutes do expressly preclude survivorship, eliminating the need to turn to federal common law to resolve the issue. See, e.g. , 38 U.S.C. § 1151; see also Seymour v. Principi , 245 F.3d 1377, 1380 (Fed. Cir. 2001) (“[I]t follows directly from the language of sect ion 1151 that a claim for disability under section 1151 is extinguished by a veteran’s death.”). 2 The Supreme Court expressed this principle at greater length in Addison :

2007-5034 2The only statutory text that could possibl y be read to provide for survivorship of some Vaccine Act claims is the act’s standing provision: [A]ny person who has sustained a va ccine-related injury, the legal representative of such person if such person is a minor or is disabled, or the legal representative of any pers on 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 subsec tion (c)(1) of this section, file a petition for compensation under the [National Vaccine Injury Compensation] Program. 42 U.S.C. § 300aa-11(b)(1)(A). Any constr uction of section 300aa-11(b)(1)(A) to provide affirmatively for survivorship of injury claims, however, would be plainly

incorrect. First, the text of section 300aa-11(b)(1 )(A) simply does not address whether a claim for a vaccine related injury survives and can be pursued by the estate of the injured person. The standing language provides that the legal r epresentative of a person “who has sustained a vaccine-related inju ry” may file a petition for compensation only if the injured person “is a minor or is disabled.” This language does not address whether a legal representativ e of a deceased, previously -injured person may file a petition for compensation. The standing provision also authorizes “the legal representative of any person w ho died as the result of the administration of a vaccine set forth in the Vaccine Injury Table” to bring “a petition for compensation.” This

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 suscept ible 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.

2007-5034 3provision of section 300aa-11(b)(1)(A) clearly refers to a claim for the death benefit provided in section 300aa-15(a)(2) and does not authorize any action with respect to a person who has suffered a vaccine-related injury before death. In addition, there is not a shred of legislative history that woul d support a construction of section 300aa11(b)(1)(A) as explicitly providing for surviv orship of vaccine-related injury claims, nor does the majority claim that any exists. Second, it is significant that section 300aa-11 does not use language similar to

that used in other federal or state statutes that do prov ide for survivorship. Those statutes use terminology such as “not abate” or “survive” to preserve causes of action after death. For example, C ongress has explicitly provided that any “civil action for damages commenced by or on behalf of the United States or in which it is interested

shall not abate on the death of a defendant but shall survive and be enforceable against his estate as well as against survivi ng defendants.” 28 U.S.C. § 2404 (emphases added). Similarly, the Federal Employers’ Liability Act, in providing for survivorship,

states: 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. 45 U.S.C. § 59 (emphasis added). 3 The vast majority of stat e statutes also utilize such language. See 3 Stuart M. Speiser & James E. Rooks, Jr., Recovery for Wrongful

3 This explicit survivorship provision is also incorporated by reference in the Jones Act. See 46 U.S.C.A § 30104(a) (West 2006); see also Gillespie v. U.S. Steel Corp. , 379 U.S. 148, 157 (1964) (“T here is, of course, no doubt that the Jones Act

2007-5034 4Death , app. A (4th ed. 2005) (collecting state st atutes). The Vaccine Act contains no similar language addressing the issue of survivorship. Third, and perhaps most significantly, a strained interpretation of section 300aa11(b)(1)(A) to provide for survivorship w ould create an anomalous, ar bitrary, and unfair result that Congress cannot have intended. The language of the Vaccine Act authorizes an action only by “the legal repr esentative of any person who died as the result of the

administration of a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa11(b)(1)(A). As the government points out, if this language were construed to provide for survival, a petitioner’s claim for va ccine-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 w ho died as the result of the administration of a vaccine set forth in the Vaccine Injury Table.” Id. If the petitioner died of unrelated causes, section 300aa-11(b)(1)(A) could not be read to provide any standing for the petitioner’s personal representative, and the vaccine-relat ed injury claim would apparently abate. This would leave such a petitioner’s estate no basis for any compensation at all, even though the petitioner would have suffered vacci ne-related injuries and associated costs during his or her life. There is no basis in the policy of the Vaccine Act to distinguish, in terms of the availability of compensation for pre-death injury, between a person who suffers a vaccine-related injury and subsequently dies as a result of the vaccination, and

through § 9 of the FELA, 45 U.S.C. § 59 (1958 ed. ), provides for survival after the death of the seaman of ‘(a)ny right of action given by this chapter[]’. . . .” (footnote omitted)).

2007-5034 5a person who suffers the same vaccine-relat ed injury but dies of unrelated causes. 4 Congress cannot possibly have intended such a result, and nothing in the legislative history suggests that Congress intended this result. It would be a further stretch to imagine that Congress not only intended such a distinction, but chose to embody it in statutory language that purports only to conf er standing on a legal representative to seek the statutory death benefit. 5 Perhaps recognizing that section 300aa-11( b)(1)(A) cannot be read as providing for survivorship, the majority appears to base it s finding of survivorship on a negative inference from another pr ovision of the Vaccine Act, section 300aa-15(b), which governs compensation available for so-called pr e-Act injuries, that is , those arising from vaccinations administered prior to t he 1988 effective date of the Vaccine Act. 6 Maj. Op.

4 While not necessary to its result, the majority suggests that if a petitioner secured a judgment for a vaccine-related inju ry, and subsequently died as a result of the same vaccination, that per son’s legal representative mi ght not be able to recover the statutory death benefit bec ause of section 300aa-11(b)(2), which provides that “[o]nly one petition may be fil ed with respect to each administration of a vaccine.” See Maj. Op. at 16. This is clearly not the purpose of the single petition rule, which was intended to prevent a petitioner from evading the limitation on compensation for pain and suffering by filing multiple petitions for the same vaccine-related injury. See H.R. Rep. No. 99-908, at 14-15 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6355-56. 5 The majority appears to be troubled by the possibility of this anomalous result. It does not rely on section 300aa-11(b)(1 )(A) as the source of the survivorship right for vaccine-related injury claims, and it explicitly av oids deciding whether a claim for vaccine-related injury would survive t he injured person’s unrelated death. “We need not decide whether § 300aa-11(b)(1)(A) would permit the estate of a person who suffered vaccine-related injuries but died of a non-vaccine-related cause to file a petition for vaccine-related injury compensati on . . . .” Maj. Op. at 14. 6 Section 300aa-15(b) provides, in relevant part: Compensation awarded under the Program to a petitioner under section 300aa-11 of this title for a vaccine-rela ted injury or death associated with the administration of a vaccine befor e October 1, 1988, may include the compensation described in paragraphs (1)(A) [providing for unreimbursed medical expenses for vaccine injuries ] and (2) [providing a uniform death

2007-5034 6at 11-13. However, the majority plainl y misreads this section as providing for survivorship. Like section 300aa-11(b)(1)(A), section 300aa-15(b) does not address the issue of survivorship, and it does not us e the language “survive” or “not abate.” The plain language of section 300aa-15(b) lim its the compensation available with respect to vaccinations administered prior to the effective date of the Vaccine Act by imposing a $30,000 cap on the total compensat ion for pain and suffering, lost wages, and attorneys’ fees, while otherwise making ava ilable in pre-Vaccine Act cases all of the same categories of compensation availabl e in post-Vaccine Act cases under section 300aa-15(a): medical expenses, lost wages, pain and suffering, and the statutory death benefit (in addition to reasonable attorneys’ fees , as provided in section 300aa-15(e)). The majority relies heavily on the use of the word “and” in section 300aa-15(b) (referring to injury compensation “and” the death benefit ) to reach the conclu sion that the same individual may recover both compensation for injury and a death benefit. It then appears to read the same conj unctive language into section 300aa-15(a). Maj. Op. at 12-13. But section 300aa-15(b), in describing the types of compensation recoverable, like section 300aa-15(a), obviously refers to the various types of compensation recoverable by the class of individuals entitled to sue, not the compensation recoverable by each individual claimant. This is necessarily the case because individuals still alive

cannot be entitled to the deat h benefit under section 300aa-15( a)(2). Moreover, the

benefit] 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

2007-5034 7right of any individual claimant to recover is governed explicitly by section 300aa-11, not by section 300aa-15. This is made clear by sect ion 300aa-15(b) itself. That section refers, with respect to eligibility to receive compensation, back to the standing provision of section 300aa11, specifying the amount of “[c]ompensation awarded under t he Program to a petitioner

under section 300aa-11 of this title for a vaccine -related injury or de ath.” 42 U.S.C. § 300aa-15(b). Section 300aa-11 governs the right to recovery of the individual claimant. As discussed above, section 300aa-11 tells us nothing about survivorship.

II Because nothing in the Vaccine Act addre sses the issue of survivorship, the issue is properly addressed as a matter of federal common law. “[T]he inevitable incompleteness presented by all legislation m eans 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”: Com petence 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 in terstices of federal legislation according to their own standards.’ Therefore, if no f ederal statute supplies the rule of law, the court must determine whether to create feder al common law or to

(3) reasonable attorneys' fees and co sts (as provided in subsection (e) of this section. [sic]

2007-5034 8incorporate state law as t he 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. T he Supreme Court has impliedly held, 7 and eight circuits have explicitly held, 8 that federal common law det ermines survivorship where

7 The Supreme Court long ago implicit ly recognized this principle. See Ex parte Schreiber , 110 U.S. 76, 80 (1884) ( applying, in the face of statutory silence, common law rule that penal acti ons do not survive the death of a party to conclude that action seeking qui tam penalties for an alleged copyright violation did not survive the defendant’s death). The Supreme Court has also used interstitial application of federal common law to allow claims to survive a plaintiff’s death. See Carlson v. Green , 446 U.S. 14, 23-25 (1980); Robertson v. Wegmann , 436 U.S. 584 (1978). 8 See, e.g. , United States v. NEC Corp. , 11 F.3d 136, 137 (11th Cir. 1993) (“In the absence of an expression of contrary in tent, the survival of a federal cause of action is a question of federal common law.”); Smith v. Dep’t of Human Servs., 876 F.2d 832, 834 (10th Cir. 1989) (“The question of the su rvival of an action grounded in federal law is governed by federal common law when, as here, there is no expression of contrary intent.”); James v. Home Constr. Co. of Mobile, 621 F.2d 727, 729 (5th Cir. 1980) (“[T]he question of surviv al of a federal cause of action has usually been described as a question of feder al common law, in the absence of an expression of contrary intent.”); Smith v. No. 2 Galesburg Crown Fin. Corp. , 615 F.2d 407, 413 (7th Cir. 1980), overruled on other grounds by Pridegon v. Gates Credit Union , 683 F.2d 182, (7th Cir. 1982); Heikkila v. Barber , 308 F.2d 558, 561 (9th Cir. 1962) (“[when n]o federal statute makes any provision for the surv ival of claims . . . the question of survival or not must be judged in accordance with the rule at common law.”); Pritchard v. Smith , 289 F.2d 153, 155 (8th Cir. 1961) (when a stat ute “does not deal expressly with the question of survivorship . . . ‘it is for the federal courts to fashion the governing rule . . . according to their own standards.’” (quoting Clearfield Trust Co. v. United States , 318 U.S. 363, 367 (1943))); Bowles v. Farmers Nat ’l Bank of Lebanon, Ky. , 147 F.2d 425, 430 (6th Cir. 1945) (stating that to determine survival of a st atutory cause of action “[i]n the absence of an Act of Congre ss, the federal courts are entitled to apply the proper rules of federal law under their own standards”); Sullivan v. Associated Billposters & Distribs. , 6 F.2d 1000, 1004 (2d Cir. 1925) (“A cause of action which is given by a federal statute, if no specif ic provision is made by act of Congress for its survival, survives or not according to the principles of the common law.”). 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 , 309 F.2d 267, 268 (Ct. Cl 1962) (apparently applying common law pr inciples to conclude that action against the United States did not abate upon the plaintiff’s death).

2007-5034 9the statute is silent as to the issue. Commentat ors agree. “In some statues creating a federal right of action Congress provides explicitly that the action will survive the death of a party. In the absence of a provision of this kind the court must look to federal

common law .” 7C Charles Alan Wright, Art hur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 1954 & n.12 (3d ed. 2007) (foot notes omitted and emphases added)). Ample authority from the Supreme Court and eight ci rcuits supports this wellestablished proposition. 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 t he 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 f ederal common law, that the qui tam

claim survived Williams’ death. Id. at 139. Likewise, cour ts have applied a similar analysis to conclude that the survival of actions under other federal statutes, for example, the Age Discriminat ion in Employment Act and t he 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 Discrimi nation 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 gover ning rule with respect to survivorship of personal injury claims under the Vaccine Act or more gener ally. One option would be to adopt the

2007-5034 10applicable state law rule. See, e.g. , Robertson v. Wegmann , 436 U.S. 584, 590-91 (1978). However, that option is not appr opriate 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, the creati on of a uniform federal rule is particularly appropriate in cases, such as this, that directly concern “the duties of the Federal Government,” Texas Industries, Inc. v. Radcliff Materials, Inc. , 451 U.S. 630, 642 (1981). In this context, the need for uniformity in the vaccine compensation program is also demonstrated because Congre ss chose to allow adjudication of claims under the program only in the United States Court of F ederal Claims, a single, uniform,

national court. Resort to stat e law to determine survival of claims under the Vaccine Act would be inappropriate. See Carlson , 446 U.S. at 23-25 (finding survival of Bivens claims governed by a uniform federal rule in favor of survival ra ther than state law); Shyface v. Sec’y of Health & Human Servs ., 165 F.3d 1344, 1351 (Fed. Cir. 1999) (holding that standard for proof of causation under Vaccine Act must be determined as a uniform federal rule rather than by adopting state law). 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 st atute, rejecting the common law rule that personal inju ry 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 va ry 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)).

2007-5034 11In a closely related context, the Suprem e 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 ac tion 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 ac tion for wrongful death in federal admiralty jurisdiction. Id. at 409. The Court held that des pite the common law refusal to recognize such a claim, “the work of t he 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 wr ongful 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 st ates 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 surv ivorship and wrongful death actions, while distinct, are related both in historic al origin and practical consequence. See Malone,

supra , at 1044.

A rule in favor of survival is also cons istent with the objective s of the Vaccine Act with respect to both compens ation 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 cl aim under the vaccine program, but allows a claimant to reject the program award and instead bring a private action under state law

2007-5034 122007-5034 13 against a vaccine manufacturer or administrator. 9 42 U.S.C. § 300aa-11(a)(2)(A). A rule in favor of survivorship of vaccine-rela ted injury claims would preserve the Vaccine

Act as an effective substitute for the state to rt system. As noted earlie r, in all or nearly all states, the state tort system that C ongress sought to repl ace with the vaccine compensation program, for claims of vaccine -related injuries and death, provides for survival of personal actions. A rule in favo r of survivorship would harmonize the federal

scheme with the state alternative. I would hold that, because the stat utory 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-relat ed injury accruing prior to death survive the death of a claimant. I respectfully diss ent from the majority’s refusal to apply wellestablished law, but concur in the result that allows the estate of this petitioner to

recover. 10

9 A claimant under the Program may f ile a written election to waive any award under the Program , and instead file a civil suit for damages, within ninety days after the entry of judgment under the Program and completion of any appeal. 42 U.S.C. § 300aa-21(a). Alternatively, a claimant may also forego an award under the Program in favor of a civil suit by filing a notice of intent to withdraw a petition under the Program if the petition is not deci ded within statutory ti me limitations. 42 U.S.C. §§ 300aa11(a)(2)(A)(ii), -21(b). 10 While the federal common law was not addressed by the parties, both the Supreme Court and this court have held that we must apply the correct law to an issue properly raised even if the parti es do not direct us to the correct legal principles. See Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99 (1991); Forshey v. Principi , 284 F.3d 1335, 1356 (Fed. Cir. 2002) (en banc).