Abbott v. Secretary of Dept. of Health and Human Services

• Decision Date: 07 February 1994
• Docket Number: No. 93-5129,93-5129
• Citation: 19 F.3d 39
• Parties: NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Ruth Cosette ABBOTT, as legal representative of David Bradley White, deceased, Petitioners-Appellants, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 39

19 F.3d 39

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Ruth Cosette ABBOTT, as legal representative of David Bradley White, deceased, Petitioners-Appellants, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES Respondent-Appellee.

No. 93-5129.

United States Court of Appeals, Federal Circuit.

Feb. 7, 1994.

Before NIES, Chief Judge, MAYER, and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

DECISION

Ruth Cosette Abbott, on behalf of the estate of her deceased son, David Bradley White, appeals from the March 9, 1993 judgment of the United States Court of Federal Claims dismissing her petition for compensation under the National Childhood Vaccine Injury Act (Vaccine Act or Act), 42 U.S.C. Secs. 300aa-1 through 300aa-34 (1988 and Supp.1992). 27 Fed.Cl. 792 (1993). The Special Master concluded that the petition was not barred under 42 U.S.C. Sec. 300aa-11(c)(1)(E) by a previous settlement of an Arizona state court wrongful death action and awarded compensation for David's death in the amount of $250,000. The government filed a motion for review solely on the issue of whether the petition was barred under section 300aa-11(c)(1)(E). The Court of Federal Claims dismissed the petition, holding that recovery was precluded because there was an intervening cause of death such that David's death was not a "sequela" of a vaccine-related injury, as the court construed that statutory term. The court did not decide whether the petition was barred for double recovery, however.

We conclude that the petition is not barred because the settlement covered only damages for injuries to David's statutory beneficiaries and not for David's own injuries. We affirm the Court of Federal Claims' holding that the Special Master applied a legally incorrect definition of sequela based on legal notions of proximate cause, rather than determining whether the death was medically recognizable as a pathological sequence or result of a disease or injury. Because petitioner was not given the opportunity to develop an evidentiary record on the issue of causation before the Special Master, however, we hold that the Court of Federal Claims abused its discretion in dismissing the petition based on its finding on the incomplete record that David's death was not a sequela within the meaning of the Vaccine Act. Accordingly, the case is remanded for a further evidentiary hearing before the Special Master and findings on the cause and manner of death. The Court of Federal Claims' decision is therefore affirmed-in-part, reversed-in-part, and the case is remanded.

DISCUSSION

The facts are set forth in the opinions of the Court of Federal Claims, Abbott v. Secretary of the Department of Health & Human Services, 27 Fed.Cl. 792 (1993), and the Special Master, Abbott v. Secretary of the Department of Health & Human Services, No. 90-1637 V, slip op. (Ct.Cl.Sp.Mstr. Oct. 5, 1992). Familiarity with these opinions is presumed and only those facts necessary for our holding are recited below.

I. Background

Ms. Abbott, as legal representative of her son David's estate, seeks recovery under the Vaccine Act for his vaccine-related death. David was diagnosed as having a residual seizure disorder resulting from vaccinations he received as an infant in 1964. As a result of his injuries, David was placed in a residential care facility in Arizona. On September 5, 1987, a group home staff member was assisting David with his bath. The staff member left David alone for a few minutes, during which time David suffered a seizure in the bathtub and drowned.

Ms. Abbott filed a wrongful death action in Arizona against the group home and various state agencies. The action was settled for $300,000, and Ms. Abbott dismissed the suit with prejudice on October 20, 1989.

On September 27, 1990, petitioner filed the subject petition for compensation under the Act. The government moved to dismiss on the ground that Ms. Abbott's settlement in the civil suit barred recovery under section 300aa-11(c)(1)(E) of the Act, which provides in relevant part:

(c) 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--

* * *

* * *

(E) has not previously collected an award or settlement of a civil action for damages for such vaccine-related injury or death,....

The Special Master discerned no bar because he concluded Arizona law recognizes a separate cause of action for injuries to the named statutory beneficiaries apart from the claims assertable on behalf of a decedent. Therefore, the Special Master concluded that under Arizona law the settlement was Ms. Abbott's recovery in her own individual capacity. Consequently, he concluded that neither David himself nor his estate had previously recovered damages for the vaccine-related death.

On the merits, the Special Master found David's estate was entitled to an award of $250,000 based on a preponderance of evidence that the death was the direct consequence of the presumptively vaccine-related residual seizure disorder. Abbott, No. 90-1637 V, slip op. at 7. The Special Master specifically acknowledged that "he offered to issue a decision on entitlement, allowing respondent to seek review of the legal issue [of the statutory bar] immediately without conceding liability." Id. at 7 n. 9. The Special Master further stated that he realized "that respondent has not obtained a medical report in this case, has not filed a Rule 4 report in this case, and has not had an opportunity to present evidence that David's seizures and death were due to factors unrelated to the administration of the October 7, 1964 DPT vaccine." Id.

The government filed a motion for review in the Court of Federal Claims on the sole issue of whether the petition was barred by the prior settlement. The court disposed of the case on a different ground, however, holding as a matter of law that there could be no recovery because David's death was not a sequela of the residual seizure disorder due to intervening cause of drowning. The court also held that the Special Master applied a legally incorrect definition of sequela as being merely a subsequent link in a chain of related events. The court concluded that the proper definition of "sequela" under the statute refers to "somatic conditions or events recognizable as the pathological sequence or result of an existing disease or disorder or as an independent accompaniment of such a disease or disorder." 27 Fed.Cl. at 794.

The court then found that, based on the wording of one line in the autopsy report, David's death was caused by bath water in his lungs, not aspiration of vomit from the seizure. Judgment was entered setting aside the decision of the Special Master and dismissing the petition.

II. Issues on Appeal

On appeal, petitioner first argues that the court abused its discretion by ruling on a matter that was not raised in the motion for review. Therefore, petitioner asserts that the dismissal should be set aside, the Special Master's conclusion of law that recovery is not barred by section 300aa-11(c)(1)(E) and finding that petitioner was entitled to recover reinstated, and judgment entered on the Master's decision. Alternatively, petitioner asks that the decision of the Court of Federal Claims be reversed and that the case be remanded to the Special Master for an evidentiary hearing on entitlement. Finally, petitioner asks this court to hold as a matter of law that the petition is not barred under section 300aa-11(c)(1)(E) by the prior settlement of the wrongful death action.

The government asserts, as it did in its motion for review, that compensation is barred under section 300aa-11(c)(1)(E) by the previous wrongful death settlement. The first issue then is whether a bar arises from the settlement. Additionally, the government argues that it was not error for the Court of Federal Claims to consider the legal definition of "sequela" as applied by the Special Master, or to find on the merits that petitioner had not established entitlement under the Vaccine Act. The second issue is whether the judge's dismissal based on his fact finding on sequela may stand.

We will address both issues raised on appeal, beginning with the threshold issue of the statutory bar under the Vaccine Act.

III. The Bar

A. The Vaccine Act

Under section 300aa-11(c)(1)(E) of the Vaccine Program, a petitioner must prove that the "person who suffered the injury or who died ... has not previously collected an award or settlement of a civil action for damages for such vaccine-related injury or death." ¹ "Vaccine-related injury or death" is defined in the statute as "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table,...." 42 U.S.C. Sec. 300aa-33(5) (1988) (emphasis added). In the Arizona wrongful death action, Ms. Abbott obtained a settlement for damages based on David's death which was associated with such a vaccine whether or not, as found by the Court of Federal Claims judge, the chain of proximate causation was broken by the negligence of the staff at the home where David died. ² Therefore, Ms. Abbott can petition and David's estate can recover under the Vaccine Act if petitioner can show that the wrongful death settlement did not include any compensation for David's own injuries, as opposed to hers.

B. Arizona Law

Petitioner insists that she recovered only for her own injuries (here essentially financial and emotional injuries resulting from David's death) ³ in the Arizona...