Rooks v. Secretary of Department of Health & Human Services

35 Fed. Cl. 1, 1996 U.S. Claims LEXIS 16, 1996 WL 55666
CourtUnited States Court of Federal Claims
DecidedJanuary 29, 1996
DocketNo. 93-689V
StatusPublished
Cited by170 cases

This text of 35 Fed. Cl. 1 (Rooks v. Secretary of Department of Health & Human Services) 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
Rooks v. Secretary of Department of Health & Human Services, 35 Fed. Cl. 1, 1996 U.S. Claims LEXIS 16, 1996 WL 55666 (uscfc 1996).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on petitioner’s motion for review of Special Master Mill-man’s August 22, 1995 decision dismissing the petition, with prejudice, pursuant to respondent’s motion to dismiss. For the reasons set forth below, the court vacates the decision of the special master and remands the case for further proceedings consistent with this opinion.

FACTS

Randall Tyler Rooks (“Tyler”), through his mother Maria S. Rooks (“Maria”), filed a claim for compensation on November 8,1993, pursuant to the National Childhood Vaccine Injury. Act of 1986 (the “Vaccine Act” or the “Act”), 42 U.S.C. §§ 300aa-l to 300aa-34 (1988 & Supp. V 1993). Tyler was in útero when his mother was vaccinated for measles, mumps and rubella (the “MMR vaccine”). She obtained her vaccination apparently due to a college enrollment requirement. Maria did not know that she was only one month pregnant with Tyler at the time of the vaccination. Tyler was bom with cerebral dys-genesis including agenesis of the corpus cal-losum. Petitioner claimed that these injuries occurred during the first month to six weeks of the mother’s pregnancy and were caused by the MMR vaccine.

Respondent moved to dismiss the petition based on 42 U.S.C. § 300aa-ll(c)(l)(A) which requires that in order to be compensated under the Act, an injured person must have “received” a Table vaccine, unless the person contracted polio from someone who received an oral polio vaccine. Respondent argued that Tyler did not “receive” the vaccine because he was not injected nor did he ingest the vaccine. The main issue to be resolved by the special master was whether Tyler “received” the vaccine, although it was not actually administered to him.

On August 22, 1995, the special master dismissed the petition finding that petitioner did not prove by a preponderance of the evidence that Tyler “received” the MMR vaccine because the vaccine was not directly administered to him. The special master reasoned, pursuant to expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), that by including the oral polio “exception” in section 300aa-11(c)(1)(A), Congress did not intend to compensate persons with vaccine-related injuries who were not directly administered the vaccine, except in the case of persons contracting polio from someone who received an oral polio vaccine. Rooks v. Secretary of Dep’t of Health & Human Servs., No. 93-689V, 1995 WL 522769 (Spec.Mstr. Aug. 22, 1995). The special master’s decision, as it stands, denies relief to all persons with vaccine-related injuries as a result of in útero exposure to vaccines given to their mothers, regardless of whether they could prove vaccine-related injuries.

Petitioner filed a motion for review on September 21, 1995, to which the Secretary responded on October 23, 1995. In support of her motion, petitioner argued that avail[4]*4able medical literature and the definition of “receive” support the proposition that Tyler did in fact “receive” the MMR vaccine. Petitioner further asserted that the intent of Congress behind enacting the statute and the language of the statute itself contemplated recovery for Tyler’s situation. Respondent argued that the language of the Act is clear in that there is only one exception to actual administration of a vaecine — the oral polio provision. Respondent further maintained that the special master’s decision was consistent with the Act’s legislative history, because recovery under the Act was intended only for direct administration of a vaccine. The sole issue before this court, pursuant to the special master’s decision and the motion for review, is whether “receive,” in section 800aa-ll(c)(l)(A), means actual injection or ingestion, or whether it may encompass in útero exposure.

DISCUSSION

I. Standard of Review

Under the Vaccine Act, the court has the authority to review petitions and “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). The standards of review “vary in application as well as degree of deference.” Munn v. Secretary of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n. 10 (Fed.Cir.1992). Findings of fact by the special master are upheld unless they are arbitrary and capricious; discretionary rulings are upheld unless they constitute an abuse of discretion; and legal questions of law are reviewed under the “not in accordance with law” standard. Neher v. Secretary of Dep’t of Health & Human Servs., 984 F.2d 1195, 1198 (Fed.Cir.1993) (quoting Munn, 970 F.2d at 870 n. 10). The de novo standard of review applies to questions of statutory interpretation. See id. The special master’s decision was based solely on a statutory construction analysis. The special master did not make any findings of fact, such as whether the child in útero was affected by the vaccine. Since this case deals with the special master’s legal determination of the meaning of “received” under the Vaccine Act, this court will review the special master’s decision de novo. The special master’s holding that petitioner did not prove by a preponderance of evidence that Tyler “received” the MMR vaccine will be upheld only if it is in accordance with the law. See id.; see also Charette v. Secretary of Dep’t of Health & Human Servs., 33 Fed.Cl. 488, 490 (1995).

II. Statutory Interpretation

A. Section 300aa-ll(c)(l)(A) of the Vaccine Act

In order to be eligible for compensation under the Vaccine Act, a petitioner must demonstrate “by a preponderance of the evidence the matters required in the petition by section 300aa-ll(c)(l).” 42 U.S.C. § 300aa-13(a)(1)(A). Section 300aa-ll(c) of the statute provides:

A petition for compensation under the Program for a vaccine-related injury or death shall contain—
(1) ... an affidavit, and supporting documentation, demonstrating that the person who suffered such injury or who died—
(A) received a vaeeine set forth in the Vaccine Injury Table or, if such person did not receive such a vaccine, contracted polio, directly or indirectly, from another person who received an oral polio vaccine,____

42 U.S.C. § 300aa-ll(c)(l)(A) (emphasis added). The MMR vaccine is a vaccine listed in the Vaccine Injury Table. 42 U.S.C. § 300aa-14(a)(II).

Although the Vaccine Act does not define “received,” the special master found that “received” means by injection or ingestion because of the inclusion of an “exception” for the oral polio vaccine situation.

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35 Fed. Cl. 1, 1996 U.S. Claims LEXIS 16, 1996 WL 55666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rooks-v-secretary-of-department-of-health-human-services-uscfc-1996.