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 Washington, 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 Human Services (“government”) appeals the 

judgment of the Court of Federal Claims awarding petitioner-appellee Dory Zatuchni 

(“Zatuchni”) (in her capacity as executrix of the estate of E. Barbara Snyder (“Snyder”)) 

 ∗

 Honorable Denise Cote, District Judge, United States District Court for the 

Southern District of New York, sitting by designation. 
$804,323.90 under the National Vaccine Compensation 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 pursuant to 42 U.S.C. § 300aa15(a)(2), but asserts that the remaining $554,323.90, representing compensation 

pursuant to 42 U.S.C. § 300aa-15(a)(1), (3), and (4) for vaccine-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 administration 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 Federal 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. Snyder experienced other symptoms, 

which her physicians diagnosed as continuing chronic arthralgia and 

[fibromyalgia syndrome (FMS)] attributable to the rubella portion of the 

MMR vaccination.[1

] Over the next 13 years, Ms. Snyder’s physical 

condition deteriorated rapidly and significantly. . . . [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 compensation 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 2
1230787, at *3-*5 (Fed. Cl. Spec. Mstr. May 6, 2005), the government conceded on 

May 2, 1994, that Snyder’s chronic joint pain was caused by the MMR vaccination; 

Snyder, however, also sought compensation for her other symptoms, and obtained 

several stays of her petition in order to gather 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 remained pending before the special 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 substituted 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 Federal Claims reversed the 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 compensation to which her estate 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 relationship between various joint-related conditions and rubella 

vaccinations. The special master made findings and issued reports in 1993 and 2002 

that were subsequently applied to resolve petitions 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 3
whether 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 May 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 for 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-related injuries during her 

lifetime, including actual expenses incurred, pain and suffering, and lost income 

between the time of the vaccination 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 master awarded appellant $250,000. 

 On appeal, the Court of Federal Claims reversed the special master’s 

determination as to the claim for pre-death 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 abate 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 jurisdiction pursuant to 42 U.S.C. § 300aa12(f). 

2007-5034 4
DISCUSSION 

 The instant appeal requires us to determine 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 government contends on appeal that such compensation may not 

be awarded because the death benefit is the sole remedy for a petitioner who dies as a 

result of the administration of a vaccine, and that claims for compensation under 

§ 300aa-15(1), (3), and (4) do not survive the 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 vaccine-related death presents a question of 

statutory interpretation, and requires an analysis 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 benefits under 38 U.S.C. § 1151); 

Richard v. West, 161 F.3d 719, 722 (Fed. Cir. 1998) (“[Claimant’s] statutory argument 

cannot overcome the clear intent expressed by the structure and language of the 

statutory scheme at issue--that a veteran’s claim to disability benefits terminates at 

death.”). We review de novo 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 5
The Program was established by the National 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 compensatory program because the traditional 

civil tort actions against vaccine manufacturers were producing 

undesirable results both with respect to the victims and the vaccine 

industry. Congress found that the traditional tort system was not working 

for victims because it resulted in lengthy delays, high transaction costs, 

and sometimes no recovery. Similarly, the high cost of litigation and 

difficulty of obtaining insurance was undermining incentives for vaccine 

manufacturers to remain in the vaccine market. In sum, Congress was 

concerned with the instability 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 expeditious and fair” 

and “to compensate persons with recognized vaccine injuries without requiring the 

difficult individual determinations of causation of injury and without a demonstration that 

a manufacturer was negligent or that 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 Committee anticipates that the speed of the compensation 

program, the low transaction costs of the system, the no-fault nature of the required 

findings, and the relative certainty and generosity of the system’s awards will divert a 

significant number of potential plaintiffs from litigation.”). “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” may 

2007-5034 6
file 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” where “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 Health & 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 established for resolving claims 

under the Program be “expeditious[] 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 both the filing and resolution of petitions, 

further reducing the likelihood of complex causation inquiries or extended litigation. A 

petition for compensation arising out of a vaccination administered before October 1, 

1988 (a “pre-Act” petition), must have been filed within 28 months of that date, and, in 

any event, “no such petition may be filed if the first symptom or manifestation of onset or 

of the significant aggravation of such injury occurred more than 36 months after the date 

of administration of the vaccine.” Id. § 300aa-16(a)(1). A petition for compensation 

arising out of a vaccination administered after October 1, 1988 (a “post-Act” petition) 

must be filed within 36 months of the onset of symptoms; “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 petition be filed, and judgment from the 

Program rejected, prior to bringing an action in state court. 42 U.S.C. §§ 300aa11(a)(2)(A), -21. 

4

 “[F]or injuries not listed in the Table, or which do not occur within the time 

period stipulated in the Table, the Vaccine Act authorizes recovery 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 Health & Human Servs., 418 F.3d 1274, 1278 (Fed. 

Cir. 2005). 

2007-5034 7
special master of the United States Court of Federal Claims must issue a decision 

within 240 days (with some time excepted), and stays are generally limited.5

 Id.

§ 300aa-12. 

The types of compensation available to a petitioner under the Program are listed 

in 42 U.S.C. § 300aa-15. Section 300aa-15(a) addresses post-Act petitions, such as 

the petition at issue here; subsection (b) addresses 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-related injury or death associated with 

the administration of a vaccine after October 1, 1988, shall include the 

following: 

(1) (A) Actual unreimbursable expenses incurred from the date of the 

judgment awarding such expenses 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-related death, an award 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 effort to answer precisely the 

kind of complex causation questions the Program is structured 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 “unreimbursable 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 simplicity, as they are not at issue in the instant 

appeal. 

2007-5034 8
has 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 earnings determined in accordance 

with generally recognized actuarial 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 subsection (a), but is structured somewhat differently, 

does not permit recovery of unreimbursable expenses incurred before the date of 

judgment, and contains a stricter 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-related 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 that 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 may recover, in addition to the death benefit provided 

under § 300aa-15(a)(2), compensation under subsections (a)(1), (3), and (4). Based on 

2007-5034 9
the statutory text and structure 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 the 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 compensation 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 available in an appropriate case. Second, and 

perhaps most crucially, the text of subsection (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) begins 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 only 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 the 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 10
This 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 event of a vaccine-related death.” Id.7

 To the contrary, this 

is the reading of § 300aa-15(a) that most naturally flows from its text and structure. 

 

This interpretation of § 300aa-15(a) is confirmed by an analysis of § 300aa-15(b). 

The government conceded in oral argument that these two provisions, while differently 

structured and addressed to different categories of petitions (pre-Act rather than postAct petitions), should be interpreted consistently with respect to the question of whether 

compensation for a vaccine-related injury can be awarded after the death of a vaccineinjured person, as neither the statute itself nor the legislative 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 Congress’s intent to limit compensation 

“[i]n the event of a vaccine-related death” to the death benefit provided in subsection 

(a)(2) is evidenced by the fact that this subsection is the only one 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 establish only that, where a vaccine-related 

death has occurred, the $250,000 should be paid 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 11
post-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 described in paragraphs (1)(A) and (2) of subsection (a) of this 

 8

 In fact, the amendment history 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 subsection (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 included in a judgment under subsection (e) [i.e., 

costs and fees], except that the total amount that may be paid as 

compensation under paragraphs (3) and (4) of subsection (a) [i.e., lost 

wages and pain and suffering] and included as attorneys’ fees and other 

costs under subsection (3) may not exceed $30,000. 

Pub L. No. 100-203, § 4303(e). In essence, subsection (b) was amended to mirror 

subsection (a) in terms of the types of compensation available, with the exception of the 

denial of pre-judgment expenses; compensation under all other provisions of subsection 

(a) was thus made available in a pre-Act case, but compensation 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 legislative history indicates that this last 

amendment, however, was “only intended to clarify the amount of damages” available in 

light of “some confusion about 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 the 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 subsection (a), subsection (b) is properly read as a 

guide to the types of compensation available under subsection (a) in this case. 

2007-5034 12
section 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 provides that the death benefit in paragraph (2) 

may be paid to an estate alongside compensation 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 subsection (a) outlined above must be adopted here.9

 

Moreover, as the government’s concession 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 benefit in pre-Act cases but not in post-Act 

cases.

Moving beyond § 300aa-15 itself, the government argues that several other 

provisions of the statute demonstrate that the Vaccine Act as a whole draws a 

distinction between vaccine-related injury claims and vaccine-related death claims that 

precludes a finding that any petitioner 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 compensation 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 the conjunction “or” in the first sentence of subsection (a), 

which notes that compensation will be paid “for a vaccine-related 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 compensation available, which are then further 

detailed in the subsections that follow, and in no way indicates that an award of one 

category of compensation precludes an award of the other. 

2007-5034 13
administration of a vaccine” (the “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 quotation 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 government contends that 

because the right to file a claim after the death of a vaccine-injured person is limited to 

the “the legal representative of any person who 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. The 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 compensation, and thus express no view on that 

point;10 this provision, however, plainly does not dictate that a properly filed petition by 

 10 The dissent states that our demurer here indicates that we are “troubled 

by the possibility of this anomalous 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-vaccine-related causes from filing a petition 

for vaccine-related injury compensation. 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 approach 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 filed by the estate of a person who did not 

die from a vaccine-related cause. 

2007-5034 14
the 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 compensation listed in § 300aa-15(a). Similarly, 

as in this case, if a petition is properly filed by a person who suffered a vaccine-related 

injury, but that person dies of vaccine-related causes while her claim is pending, § 

300aa-11(b)(1)(A) does not prevent -- directly or by implication -- the legal 

representative of the estate of such a person from requesting each of the categories of 

compensation listed in § 300aa-15(a) after they have been properly substituted for the 

deceased petitioner. 

In a related argument, the government contends that the single petition rule of 

§ 300aa-11(b)(2) also supports its view that the Vaccine Act makes a bright-line 

distinction between “injury” cases and “death” cases. The government argues that, as a 

 

The dissent appears willing to endorse such a result in order to “harmonize the 

federal scheme with the state alternative” in light of what the dissent perceives as 

Congress’s intent to “replace” state law 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 claims 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 claimants permitted to opt-out of or withdraw 

from the Program under several circumstances in order to seek 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 injury 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; rather, it provides an alternative forum of 

first resort designed to “divert a significant number of potential plaintiffs 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 contemplates that claimants will seek state-law 

remedies. Thus, faced with a scenario in which 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 15
result 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 vaccine-related injuries, a second petition and 

recovery under § 300aa-15(a)(2) would not be permitted. Because it would not be 

possible to recover both the death benefit and vaccine-related injury compensation 

under those circumstances, the government contends that the statutory structure 

contemplates that there are “two separate types of petitions -- a vaccine injury petition 

or a vaccine-related death petition” and that the “pursuit of the two separate claims in a 

single petition” is “precluded.” 

We, of course, agree that a second petition seeking the death benefit would not 

be permitted under the circumstances just described; 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 the instant appeal. As the description above indicates, the 

Program contains several limitations and trade-offs that restrict recovery, including the 

statute of limitations, the filing requirements of § 300aa-11, the single petition rule, the 

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

and limits on the amount of compensation that may be paid under certain subsections of 

§ 300aa-15. Many of these limitations appear to be driven by concerns about the 

difficultly of establishing causation for injuries 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 16
origin, that these limitations prevent certain individuals who have undoubtedly suffered 

as a result of a vaccine from receiving full (or any) compensation is beyond question. 

Given, however, what we view as the plain meaning of § 300aa-15 -- that recovery 

under § 300aa-15(a)(1) through (4) is permitted where appropriate -- we do not believe 

that these limiting provisions require us to set aside that meaning here and hold that 

such a recovery is never possible simply because these limiting provisions indicate that 

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

is either “absurd” or inconsistent with the text, structure, or spirit of the Vaccine Act as a 

whole.11 

Moreover, we note that if the government’s arguments are taken to their logical 

conclusion, all recovery would be denied 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 the statute of limitations 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 supports 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, that 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 fall into the category of cases in which “a 

death occurred as a result of the administration of [a] vaccine.”) Second, the legislative 

history indicates that the statute 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 avoiding “difficult individual determinations of causation” in 

connection with Program petitions, and thus does not necessarily reflect a broader goal 

of separating “injury” cases 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 17
injury-related benefits. In this case, however, Snyder filed her claim for vaccine-related 

injury compensation while she was alive, and the single-petition rule bars the filing of 

any additional petitions related 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 estate 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 continue her original petition -- it cannot recover anything 

in connection with her petition; (2) that this petition should therefore 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 logic 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 petition for compensation under the Program.” 42 

U.S.C. § 300aa-11(b)(1)(A). 

Given the posture of this case, we also note that there is no procedural difficulty 

presented by the substitution of a deceased petitioner’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 substitution of the proper parties.” The Rule also details the 

procedural requirements for effecting the substitution. RCFC 25. In this case, 

substitution was made pursuant to this procedure, and while the government contested 

2007-5034 18
whether 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 discussion 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 guidance supporting that reinterpretation. The 

doctrine of sovereign immunity does not require such a result.13

 12 We recognize that RCFC 25 is purely a procedural device, and does not 

answer the substantive legal question of whether 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 support of the proposition that the 

sovereign immunity doctrine applies to interpretations of the Vaccine Act. In that case, 

however, while we recognized that “a waiver of sovereign immunity must be 

unequivocally expressed,” id. at 1135 n.12 (internal quotation marks omitted), we 

rejected the government’s interpretation of 42 U.S.C. § 300aa-11(a)(5)(B) as 

inconsistent with the text, structure, and purpose of the Vaccine Act. Id. at 1130-35. 

We reach a similar conclusion here. Moreover, 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 doctrine “applies even to the determination of 

the scope of explicit waivers,” id., the sentences that follow the quoted language are 

equally instructive: “The rule does not, however, 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 where 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 19
2007-5034 20

CONCLUSION 

 The judgment of the Court 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 Federal 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 text, 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 the Supreme Court, that survivorship is determined as a matter 

of federal common law when the 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, personal injury claims, unlike claims for injury 

to property, did not survive, but abated upon the death of either the plaintiff or the 

defendant. See, e.g., Restatement (Second) of Torts § 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 Vaccine Act affirmatively provides for survivorship. It is well 

established that in construing 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) (rejecting construction of statute that “would add 

a gloss to the operative language of the statute quite different from its commonly 

accepted meaning”). 2

 The majority opinion does not identify any statutory 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 section 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 2 
 The only statutory text that could possibly be read to provide for survivorship of 

some Vaccine Act claims is the act’s standing provision: 

[A]ny 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 may, if the 

person meets the requirements of subsection (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 construction 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 representative of a 

person “who has sustained a vaccine-related injury” 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 representative of a deceased, previously-injured person may file a 

petition for compensation. The standing provision also authorizes “the legal 

representative of any person who 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 susceptible 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 3 
provision 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 would support a construction of section 300aa11(b)(1)(A) as explicitly providing for survivorship 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 provide for survivorship. Those 

statutes use terminology such as “not abate” or “survive” to preserve causes of action 

after death. For example, Congress 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 surviving 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 state 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) (“There is, of course, no doubt that the Jones Act 

2007-5034 4 
Death, app. A (4th ed. 2005) (collecting state statutes). 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 would create an anomalous, arbitrary, and unfair 

result that Congress cannot have intended. The language of the Vaccine Act authorizes 

an action only by “the legal representative 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 vaccine-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 who 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-related 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 vaccine-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 5 
a person who suffers the same vaccine-related 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 confer 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 its finding of survivorship on a negative 

inference from another provision of the Vaccine Act, section 300aa-15(b), which 

governs compensation available for so-called pre-Act injuries, that is, those arising from 

vaccinations administered prior to the 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 injury, and subsequently died as a result of 

the same vaccination, that person’s legal representative might not be able to recover 

the statutory death benefit because of section 300aa-11(b)(2), which provides that 

“[o]nly one petition may be filed 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 avoids deciding whether a claim 

for vaccine-related injury would survive the 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 compensation . . . .” 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-related injury or death associated with 

the administration of a vaccine before 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 6 
at 11-13. However, the majority plainly 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 use the language “survive” or “not abate.” 

The plain language of section 300aa-15(b) limits 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 compensation for pain and suffering, lost wages, 

and attorneys’ fees, while otherwise making available in pre-Vaccine Act cases all of the 

same categories of compensation available 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 conclusion that the same 

individual may recover both compensation for injury and a death benefit. It then 

appears to read the same conjunctive 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 death 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 7 
right of any individual claimant to recover is governed explicitly by section 300aa-11, not 

by section 300aa-15. 

This is made clear by section 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 the Program to a petitioner 

under section 300aa-11 of this title for a vaccine-related injury or death.” 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 addresses the issue of survivorship, the 

issue is properly addressed as a matter of federal common law. “[T]he inevitable 

incompleteness presented by all legislation means 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”: Competence 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 interstices of federal 

legislation according to their own standards.’ Therefore, if no federal statute supplies 

the rule of law, the court must determine whether to create federal common law or to 

 

(3) reasonable attorneys' fees and costs (as provided in subsection 

(e) of this section. [sic] 

2007-5034 8 
incorporate state law as the 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. The Supreme Court has impliedly held,7 and eight 

circuits have explicitly held,8 that federal common law determines survivorship where 

 7

 The Supreme Court long ago implicitly 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 actions 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 intent, 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 survival 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 survival of a federal cause of action has usually been 

described as a question of federal 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 survival 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 statute “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 statutory cause of action “[i]n 

the absence of an Act of Congress, 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 specific 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 principles to conclude that action 

against the United States did not abate upon the plaintiff’s death). 

2007-5034 9 
the statute is silent as to the issue. Commentators 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, Arthur R. Miller & Mary Kay Kane, Federal 

Practice and Procedure § 1954 & n.12 (3d ed. 2007) (footnotes omitted and emphases 

added)). Ample authority from the Supreme Court and eight circuits 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 the 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 federal common law, that the qui tam 

claim survived Williams’ death. Id. at 139. Likewise, courts have applied a similar 

analysis to conclude that the survival of actions under other federal statutes, for 

example, the Age Discrimination in Employment Act and the 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 Discrimination 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 governing rule with respect to survivorship of personal injury 

claims under the Vaccine Act or more generally. One option would be to adopt the 

2007-5034 10 
applicable state law rule. See, e.g., Robertson v. Wegmann, 436 U.S. 584, 590-91 

(1978). However, that option is not appropriate 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 creation 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 Congress chose to allow adjudication of claims 

under the program only in the United States Court of Federal Claims, a single, uniform, 

national court. Resort to state 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 rather 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 statute, rejecting the 

common law rule that personal injury 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 vary 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 11 
In a closely related context, the Supreme 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 action 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 action for wrongful death in federal admiralty 

jurisdiction. Id. at 409. The Court held that despite the common law refusal to 

recognize such a claim, “the work of the 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 wrongful 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 states 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 survivorship and wrongful death actions, while 

distinct, are related both in historical origin and practical consequence. See Malone, 

supra, at 1044. 

A rule in favor of survival is also consistent with the objectives of the Vaccine Act 

with respect to both compensation 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 claim under the vaccine program, but allows a 

claimant to reject the program award and instead bring a private action under state law 

2007-5034 12 
2007-5034 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-related injury claims would preserve the Vaccine 

Act as an effective substitute for the state tort system. As noted earlier, in all or nearly 

all states, the state tort system that Congress sought to replace with the vaccine 

compensation program, for claims of vaccine-related injuries and death, provides for 

survival of personal actions. A rule in favor of survivorship would harmonize the federal 

scheme with the state alternative. 

 I would hold that, because the statutory 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-related injury accruing prior to death survive 

the death of a claimant. I respectfully dissent 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 file 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 decided within statutory time 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 parties 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).