Staples v. Secretary of Department of Health & Human Services

30 Fed. Cl. 348, 1994 U.S. Claims LEXIS 23, 1994 WL 36250
CourtUnited States Court of Federal Claims
DecidedJanuary 26, 1994
DocketNo. 90-1205V
StatusPublished
Cited by10 cases

This text of 30 Fed. Cl. 348 (Staples 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
Staples v. Secretary of Department of Health & Human Services, 30 Fed. Cl. 348, 1994 U.S. Claims LEXIS 23, 1994 WL 36250 (uscfc 1994).

Opinion

OPINION

YOCK, Judge.

This case is before the Court on the petitioner’s motion for review of Chief Special Master Gary J. Golkiewicz’s August 16,1993, order dismissing the petitioner’s claim under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l through 300aa-34 (1988 & Supp. III 1991) (the “Vaccine Act” or the “Act”).1 For the reasons set forth below, [349]*349the Court denies the petitioner’s motion for review and affirms the Special Master’s order and dismissal.

Facts

For purposes of this review, the following facts are not in dispute: On April 18, 1955, the petitioner purchased several vials of inactivated polio vaccine (“IPV”)2 from her local pharmacy in Houston, Texas. That same day, the petitioner took the vials she had purchased to her physician, Dr. Greer, who administered the initial dose of the vaccine to the plaintiffs two children. Two days later, the petitioner’s children began to experience temperatures, loss of appetite, listlessness, diarrhea and nausea. These symptoms continued for five days. On April 28, 1955, the petitioner learned from a radio report that the Cutter inactivated polio vaccines were being recalled because they had not been fully inactivated. In essence, the contaminated Cutter vaccine contained the infectious polio virus. After hearing the radio report, the petitioner checked the remaining vials in her refrigerator and determined that she had indeed purchased the Cutter vaccine. After making this discovery, she immediately returned the remaining vials to her pharmacy as instructed by the U.S. Public Health Department. Between May 4 and May 7, both the petitioner and her husband began to experience diarrhea, vomiting, elevated temperatures and an inability to get out of bed without assistance. In addition to the symptoms experienced by her husband, the petitioner also experienced severe headaches and severe neck and shoulder pain. On May 9, the petitioner’s physician examined her and concluded that she had contracted paralytic polio. After the diagnosis of polio was confirmed, the petitioner was admitted to the Hedgecroft Hospital, a polio treatment center. The next day, the petitioner suffered respiratory failure and was placed in an iron lung. On May 11, the petitioner required an emergency tracheotomy and lapsed into a four-month coma. The petitioner was discharged from the Hedgecroft Hospital in May of the following year.

According to the respondent’s expert, Dr. Lee, Ms. Staples currently suffers from post polio syndrome. Her symptoms currently include diminished respiratory capacity, increased fatigue, difficulty sleeping, arthralgia of the knees and ankles and severe scoliosis. In addition, Ms. Staples is required to spend between 14 and 16 hours each day in her iron lung. The petitioner contends that she contracted polio from contact with her children who had been exposed to the Cutter IPV vaccine, and that as such she is eligible for compensation under the National Vaccine Injury Compensation Program.

Discussion

The single issue presented for review is whether the Vaccine Act limits compensation for community acquired polio to those [350]*350who contract polio from recipients of an oral polio vaccine (“OPV”),3 or whether polio contracted from recipients of contaminated IPV is also compensable under the Act, as the petitioner contends. In order to fully appreciate the nature of the apparent statutory conflict in this case, it is necessary to first understand the interaction of the various statutory provisions at issue. As the Chief Special Master correctly observed in his decision, the relevant statutory framework begins with 42 U.S.C. § 300aa-13(a), which sets forth the standard to be used in determining eligibility under the Act. Section 13(a) provides in pertinent part:

(1) Compensation shall be awarded under the Program to a petitioner if the special master or court finds on the record as a whole—
(A) that the petitioner has demonstrated by a preponderance 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 preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition.

42 U.S.C. § 300aa-13(a)(l) (1988 & Supp. Ill 1991). In short, section 13(a)(1)(A) requires the petitioner to prove each element of her petition with a preponderance of the evidence. Although section 13(a) does not itself set forth the requirements of a petition under the Act, it makes reference to section 11(c), which sets forth the specific elements of a valid petition under the Act. Section 11(c), entitled “Petition content,” indicates that a claimant under the Act must establish by affidavit or other supporting evidence that the injured party was harmed by a vaccine specified in the Vaccine Injury Table, “or, if such a 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-11(c)(1)(A) (1988 & Supp. Ill 1991) (emphasis added). Moreover, section ll(c)(l)(B)(ii) requires a petitioner to demonstrate that:

(ii) if such person did not receive such a vaccine [set forth in the Vaccine Injury Table] but contracted polio from another person who received an oral polio vaccine, was a citizen of the United States or a dependent of such citizen * * *.

42 U.S.C. § 300aa-ll(c)(l)(B)(ii) (1988 and Supp. III 1991) (emphasis added). When section 11(c) is read together with section 13(a), it is clear that a petition must allege that either (1) the petitioner received a vaccine listed in the Vaccine Injury Table; or (2) the petitioner contracted polio from a recipient of “an oral polio vaccine.” Additionally, section 13(a) requires the plaintiff to establish either of these two elements with a preponderance of the evidence.

An apparent conflict surfaces, however, when one turns to the Vaccine Injury Table itself, 42 U.S.C. § 300aa-14(a) (1988 & Supp. III 1991). Of course, as noted above, the Vaccine Injury Table is incorporated by reference into sections 11(c) and 13(a). Although there is no dispute that the Table covers injuries caused by the oral polio vaccine, it never specifically uses the term “oral vaccine.” Instead of referring to OPV by name, as section 11(c) does, the Table refers more generally to “Polio Vaccines (other than inactivated Polio Vaccine).” Section 14(a)(III) of the Table provides for injuries caused by:

Polio Vaccines (other than Inactivated Polio Vaccine).
A. Paralytic polio
* *

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30 Fed. Cl. 348, 1994 U.S. Claims LEXIS 23, 1994 WL 36250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staples-v-secretary-of-department-of-health-human-services-uscfc-1994.