Shaw v. Secretary of the Department of Health & Human Services

18 Cl. Ct. 646, 1989 U.S. Claims LEXIS 245, 1989 WL 141681
CourtUnited States Court of Claims
DecidedNovember 7, 1989
DocketNo. 89-7 V
StatusPublished
Cited by20 cases

This text of 18 Cl. Ct. 646 (Shaw v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaw v. Secretary of the Department of Health & Human Services, 18 Cl. Ct. 646, 1989 U.S. Claims LEXIS 245, 1989 WL 141681 (cc 1989).

Opinion

OPINION AND ORDER1

RADER, Judge.

In this action under the National Childhood Vaccine Injury Act of 1986, codified as amended at 42 U.S.C. §§ 300aa-l (Supp. V 1987) (the Act), petitioners seek compensation for injuries to Mr. Donald Shaw. On September 15, 1969, Dr. H.W. Houf administered a measles vaccine to Mr. Shaw, then a four-year-old child. Twenty minutes after the vaccination, Mr. Shaw collapsed and stopped breathing. Five weeks later, Mr. Shaw suffered a seizure. Over the past 20 years, Mr. Shaw has suffered from a recurring seizure disorder.

On January 27, 1989, petitioners filed a claim with the United States Claims Court for compensation under the Act. Respondent, after filing an answer contesting petitioners’ entitlement under the Act, withdrew from the case on May 9, 1989. On July 25, 1989, the Special Master held a hearing to take evidence from eight witnesses for the petitioners. Respondent, consistent with its notice of withdrawal, did not appear at the hearing.

On September 22, 1989, the Special Master filed a Report and Recommended Decision (Report). The Report recommended [648]*648an award to Mr. Shaw of $86,258.00 for future medical and rehabilitative expenses, $484,532.00 for lost earnings, $200,000.00 for pain and suffering, and $10,350.42 for attorney fees and costs.

Respondent filed an Objection to Report and Recommendation for Judgment (Objection) on October 12,1989. Respondent contended that petitioners had not shown an injury listed in the Vaccine Injury Table, 42 U.S.C. § 300aa-14 (the Table), nor causation in fact. Respondent also challenged the Report’s recommended award for pain and suffering, lost earnings, attorney fees, and costs in excess of the $30,000.00 cap in 42 U.S.C. § 300aa-15(b). In addition, respondent contested the Report’s increased award for impaired wages to offset taxes on interest earned from investment of the recommended compensation. Finally, respondent faulted the Report for failure to reduce the compensation to account for any payments Mr. Shaw might receive from an insurance policy.

On October 26, 1989, petitioners filed a motion to reopen this case. Petitioners’ motion requested the opportunity to present additional evidence to enhance the recommended award for future medical and rehabilitative expenses.

On November 1, 1989, this court entertained oral argument. Based on respondent’s and petitioners’ arguments and the Report, this court remands the case to the Special Master to take additional evidence from both parties. In particular, this court orders respondent to appear before the Special Master and present expert medical testimony and evidence.

Discussion

Respondent objects to the Report on four grounds: insufficient proof of causation or injury covered by the Table, improper application of the $30,000.00 cap, incorrect increase in impaired wages to account for potential taxes, and inattention to the statutory requirement to reduce the award by the amount of any overlapping insurance coverage. In order to facilitate reconsideration by the Special Master under compressed time limits, this court provides rulings and instructions on several of these outstanding issues.

Table Injury

The Act authorizes compensation “to a petitioner if the court finds on the record as a whole—

(A) that the petitioner has demonstrated by a preponderence of the evidence the matters required in the petition by section 300aa-ll(c)(l) of this title, and
(B) that there is not a preponderence of the evidence that the illness, disability, injury, condition, or death ... is due to factors unrelated to the administration of the vaccine____”

42 U.S.C. § 300aa-13(a)(l). Petitioners bear the burden of proving the factors stated in § 300aa-ll(c)(l). Section 300aa-11(e)(1) requires, in principal part, that petitioners show either that they “sustained ... [an] injury or condition set forth in the Vaccine Injury Table” or that they “sustained ... [an] injury, or condition not set forth in the Vaccine Injury Table but which was caused by a vaccine____” 42 U.S.C. § 300aa-ll(c)(l)(C)(ii)(I). Thus, petitioners must show by a preponderance of the evidence either that they sustained a Table injury or that the vaccine in fact caused their injury.

To show a Table injury, petitioners must prove two elements. First, petitioners must show that they sustained an injury—e.g., encephalitis, anaphylaxis, residual seizure disorder—listed on the Table in § 300aa-14. Second, petitioners must show that they suffered the first symptoms of this injury within the time limits listed on the Table. Thus, the Vaccine Injury Table sets forth a list of vaccines, potential injuries, and time frames for initial manifestation of the injury. If an individual received a listed vaccine and sustained a listed injury within a listed time period, the injury is presumed compensable.

The Vaccine Table, in effect, determines by law that the temporal association of certain injuries with the vaccination will constitute sufficient proof that the vaccine caused the harm. The Table replaces traditional tort standards of causation in fact [649]*649with a causation in law based on temporal association.2 The House Committee on Energy and Commerce explained the merits of this approach:

The Committee recognizes that there is public debate over the incidence of illnesses that coincidentally occur within a short time of vaccination. The Committee further recognizes that the deeming of vaccine-relatedness adopted here may provide compensation to some children whose illness is not, in fact, vaccine-related. The Committee anticipates that the research on vaccine injury and vaccine safety now ongoing and mandated by this legislation will soon provide more definitive information about the incidence of vaccine injury and that, when such information is available, the Secretary or the Advisory Commission on Childhood Vaccines (discussed below in Section 2119) may propose to revise the Table, as provided below in Section 2114. Until such time, however, the Committee has chosen to provide compensation to all persons whose injuries meet the requirements of the petition and the Table and whose injuries cannot be demonstrated to be caused by other factors.

H.R.Rep. No. 99-908, 99th Cong., 2d Sess., pt. 1, at 18 (1986), U.S.Code Cong. & Admin.News 1986, pp. 6287, 6359. Thus, the Act provides in the Table standards for causation at law based on proximate temporal relationship between the vaccination and the onset of certain injuries.

In the case at bar, Mr. Shaw was generally a very healthy child until administration of the vaccine. Report, at 2-3. On one occasion, however, Mr. Shaw had [650]*650stopped breathing following tonsil surgery. Report, at 3.

On September 15, 1969, Dr. Houf administered a measles vaccination to Mr. Shaw. Report, at 3-4.

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Bluebook (online)
18 Cl. Ct. 646, 1989 U.S. Claims LEXIS 245, 1989 WL 141681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-secretary-of-the-department-of-health-human-services-cc-1989.