Cohn v. United States

44 Fed. Cl. 658, 1999 U.S. Claims LEXIS 228, 1999 WL 778522
CourtUnited States Court of Federal Claims
DecidedSeptember 13, 1999
DocketNo. 90-2611V
StatusPublished
Cited by4 cases

This text of 44 Fed. Cl. 658 (Cohn v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohn v. United States, 44 Fed. Cl. 658, 1999 U.S. Claims LEXIS 228, 1999 WL 778522 (uscfc 1999).

Opinion

ORDER

MILLER, Judge.

This matter comes before the court on petitioners’ motion for review of a special master’s decision denying relief under the National Childhood Vaccine Injury Act of 1986,42 U.S.C.A. §§ 300aa-300aa-34 (1997 & West Supp.1999) (the “Vaccine Act”). The issue for decision is whether the special master improperly denied compensation for a vaccine-related injury where the petition was filed after the individual died of a non-vaccine related cause.

FACTS

The following facts are undisputed. Nina Ann Cohn was born on December 8,1959, to Sadie Ann and Malcolm Cohn (“petitioners”) after a normal pregnancy and delivery. Within hours after receiving a diphtheria-pertussis-tetanus (“DPT”) vaccination on or about February 15, 1960, Nina suffered a gran mal seizure and became comatose. According to petitioners, Nina continued to suffer from numerous petit mal seizures throughout her life for which she took both Phenobarbital and Dilantin. Nina died on May 10, 1986, soon after being diagnosed with lupus.

Petitioners filed suit on October 1, 1990, seeking compensation under the Vaccine Act both for Nina’s death and for her pain and suffering. Special Master Richard B. Abell held that, because they could not prove via qualified expert medical testimony that Nina’s death was a sequella of a Table Injury or the direct result of her DPT vaccination, petitioners were not entitled to compensation for Nina’s death. See Cohn v. Secretary of DHHS, No. 90-2611V, slip op. at 3, 1999 WL 391108 (Fed.Cl.Spec.Mstr. May 24, 1999).2 The special master also denied petitioners’ claim regarding Nina’s pain and suffering concluding jurisdiction was lacking to hear the claim because no provision under section 300aa-11(b)(1)(A) allows an estate of a vaccine-injured person to file a petition for com-[659]*659See pensation after the person has died. Cohn, slip op. at 4.

Petitioners have filed the instant motion for review only with respect to the special master’s jurisdictional decision and do not contest the denial of compensation for Nina’s death.

DISCUSSION

1. Standard for review

As this appeal raises a question concerning the jurisdictional requirements under the Vaccine Act, it is reviewed de novo. See Weddel v. Secretary of DHHS, 23 F.3d 388, 391 (Fed.Cir.1994) (holding that “pure questions of federal law involving statutory interpretation and jurisdictional delineation” are reviewed de novo). The Federal Circuit has held that a claim under the Vaccine Act, as a “claim against the United States[,] implicates its sovereign immunity from suit, [and so] the alleged jurisdictional grant must be narrowly construed.” Martin v. Secretary of DHHS, 62 F.3d 1403, 1405 (Fed.Cir.1995) (citing Hart v. United States, 910 F.2d 815, 817 (Fed.Cir.1990)); accord Schumacher v. Secretary of DHHS, 2 F.3d 1128, 1135 n. 12 (Fed.Cir.1993) (agreeing that section 300aa-11 invokes sovereign immunity and therefore must be strictly construed in favor of Government).

2. Qualifying petitioners under the Vaccine Act

De novo review of statutory construction begins with an examination of the language of that statute. See Hellebrand v. Secretary of DHHS, 999 F.2d 1565 (Fed.Cir.1993); Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). With regard to what classes of persons qualify as petitioners, the Vaccine Act provides, in pertinent part:

[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 ... file a petition for compensation under the Program.

42 U.S.C.A. § 300aa-11(b)(1)(A).

Court of Federal Claims case law has described the language of section 300aa-11(b)(1)(A) as providing for three qualifying classes of petitioners: (1) living persons who have sustained a vaccine-related injury; (2) those who are the legal representatives of living persons who have sustained a vaccine-related injury; and (3) those who are the legal representatives of estates of persons who died as a result of the administration of a vaccine. See Buxkemper v. Secretary of DHHS, 32 Fed.Cl. 213, 225 (1994). Petitioners proffer a fourth qualifying class, namely, those who are the legal representatives of estates of persons who were injured, but did not die, as a result of the administration of a vaccine, but who died before the petition was filed. Thus, the question becomes whether the enumerated classes of qualifying petitioners listed in section 300aa-11(b)(1)(A) are exclusive, or whether section 300aa-11(b)(1)(A) permits inclusion of this fourth class.

Petitioners rely heavily upon two Court of Federal Claims decisions in support of their contention that they qualify as petitioners under section 300aa-ll(b)(l)(A). Neither ease supports their claim; in fact, both directly contradict petitioners’ position. In Andrews v. Secretary of DHHS, 33 Fed.Cl. 767 (1995), cited throughout petitioners’ motion, a petition was filed on behalf of a living child for pain and suffering due to a vaccine-related injury. Although the child died from non-vaccine-related causes before the amount of compensation to be paid was finally determined, the special master allowed the child’s estate to maintain the petition and eventually to recover compensation. In sustaining the special master’s order, the court noted that, although “[t]here is no provision under section 300aa-11(b)(1)(A) for the estate of a vaccine injured person to file a petition for compensation, ... the section does not extinguish a properly filed claim if the vaccine injured person subsequently dies.” Andrews, 33 Fed.Cl. at 769. The court emphasized, however, that “[u]nder this court’s decision the estates of vaccine injured persons [660]*660who die before a petition is filed will still be unable to file a petition under the Act.” Id. at 772.

In Buxkemper the court applied section 300aa-11(b)(1)(A) to a case concerning the eligibility of petitioners to file a claim for pain and suffering on behalf of one injured by a vaccine, but who died from non-vaccine related causes prior to the filing. The court held:

When reading 42 U.S.C. § 300aa-11(b)(1)(A), it is clear that this section addresses “a person who has sustained a vaccine-related injury or the legal representative of such person ...” separately from “the legal representative of any person who has died as a result of the administration of a vaccine____” The eligibility determinations for compensation resulting from vaccine-related injuries or vaccine-related deaths clearly are distinguishable in the statute. The first section of 42 U.S.C.

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44 Fed. Cl. 658, 1999 U.S. Claims LEXIS 228, 1999 WL 778522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-v-united-states-uscfc-1999.