Hobart v. Holt

• Decision Date: 08 October 2008
• Docket Number: CV06120780.,A136658.
• Citation: 194 P.3d 820,222 Or. App. 550
• Parties: Roxie HOBART, as Personal Representative for the Estate of Mabel F. Hobart, Plaintiff-Appellant, v. Jack L. HOLT and J.H.S.O. Corporation, an Oregon corporation, Defendants-Respondents.
• Court: Oregon Court of Appeals

194 P.3d 820

222 Or. App. 550

Roxie HOBART, as Personal Representative for the Estate of Mabel F. Hobart, Plaintiff-Appellant, v. Jack L. HOLT and J.H.S.O. Corporation, an Oregon corporation, Defendants-Respondents.

CV06120780.

A136658.

Court of Appeals of Oregon.

Argued and Submitted on July 9, 2008.

Decided October 8, 2008.

Robert J. Miller, Sr., Beaverton, argued the cause for appellant. With him on the briefs was Moomaw, Miller & Hildebrand LLP.

Stephen G. Leatham argued the cause for respondents. With him on the brief was Heurlin, Potter, Jahn, Leatham & Holtmann, P.S.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and RIGGS, Senior Judge.

HASELTON, P.J.

Plaintiff, personal representative of the estate of Mabel F. Hobart (decedent), appeals, challenging the trial court's grant of summary judgment in favor of defendants, Jack L. Holt and J.H.S.O. Corporation, on plaintiff's wrongful death claims arising out of decedent's vaccine-related death, which occurred after she received an influenza vaccination administered by defendant Holt, an employee of defendant J.H.S.O. Defendants moved for summary judgment, asserting that the National Childhood Vaccine Injury Act of 1986 (Vaccine Act), 42 U.S.C. sections 300aa-1 to 300aa-34,¹ bars plaintiff's state law claims and, alternatively, that Oregon's wrongful death statute, ORS 30.020, prohibits plaintiff's derivative claims because the Vaccine Act would have barred decedent from maintaining an action had she lived. The trial court granted defendants' motion. We conclude that (1) the Vaccine Act does not bar family members of a person who has sustained a vaccine-related death from filing a civil action seeking damages for their own injuries; and (2) because, at the time of her death, decedent might have maintained an action against defendants for the conduct that caused her death, plaintiff has valid derivative claims under ORS 30.020(1). Consequently, we reverse and remand.

Summary judgment is proper only if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact * * *." ORCP 47 C. Here, the parties agree as to the material facts. Consequently, their dispute, and our analysis, is limited to the proper legal significance of the following uncontroverted facts.

On December 30, 2004, decedent, who was 84 years old, received an influenza vaccination administered by defendant Holt while he was working within the scope of his employment for defendant J.H.S.O. Within two minutes of the vaccination, decedent experienced an immediate ventricular fibrillation secondary to an anaphylactic reaction. Decedent went into a coma and died five days later, without regaining consciousness.

Plaintiff, as personal representative of decedent's estate, filed a petition in the United States Court of Federal Claims, seeking compensation on behalf of decedent under the National Vaccine Injury Compensation Program (Program), part of the Vaccine Act.² Based on a recommendation by the Secretary of the Department of Health and Human Services, a special master awarded decedent's estate $250,000. Decedent's estate elected to accept that judgment. As devisees under decedent's will and sole heirs at law of decedent, each of decedent's four surviving children inherited equal shares of the $250,000 award.

Plaintiff then filed a wrongful death action in Oregon state court, for the benefit of decedent's four surviving children, seeking damages in an amount not to exceed $500,000 for loss of society, companionship, and services of decedent. Defendants moved for summary judgment, contending that, because decedent's estate had elected to accept the judgment issued under the Program, the Vaccine Act — and, specifically, section 11(a)(2)(A) of the Vaccine Act — barred plaintiff's subsequent wrongful death action in state court. At oral argument on the motion, defendants raised an alternative argument — viz., that the terms of Oregon's wrongful death statute, ORS 30.020(1), barred the prosecution of this action. Specifically, invoking Union Bank of California v. Copeland Lumber Yards, 213 Or.App. 308, 160 P.3d 1032 (2007), defendants contended that (1) under Oregon's wrongful death statute, a personal representative cannot maintain an action based on the death-producing conduct unless the decedent could have maintained an action had she lived; (2) because decedent's estate accepted the judgment issued under the Program, decedent could not have maintained an action had she lived; consequently, (3) plaintiff's claims were precluded.

Plaintiff responded that the Vaccine Act does not bar the family members of a person who suffered a vaccine-related death from bringing a tort action to obtain compensation for their own injuries. Further, unlike the decedent in Union Bank of California, who was precluded at the time of his death from maintaining a tort action against the defendant, 213 Or.App. at 320, 160 P.3d 1032, plaintiff here was not so precluded at the time of her death-and, by extension, the plaintiff personal representative cannot be derivatively precluded.

The trial court, without amplification, granted defendants' motion.

On appeal, plaintiff argues that the trial court erred in granting defendants' motion for summary judgment, because neither the Vaccine Act nor Oregon's wrongful death statute precludes plaintiff's state law wrongful death claims. Defendants largely reiterate their contentions made before the trial court. For the reasons stated below, we agree with plaintiff.

We begin with the Vaccine Act. The Vaccine Act provides a special program under which compensation may be paid for a vaccine-related injury or death. 42 U.S.C. § 300aa-10 (establishing the Program). In Schafer v. American Cyanamid Co., 20 F.3d 1, 2-3 (1st Cir.1994), the court, in an opinion by then-Chief Judge Breyer, cogently described the general operation of the Vaccine Act:

"The Act establishes a special claims procedure involving the Court of Federal Claims and special masters (a system that we shall call the `Vaccine Court'). 42 U.S.C. § 300aa-12. A person injured by a vaccine may file a petition with the Vaccine Court to obtain compensation (from a fund financed by a tax on vaccines). Id. § 300aa-11. He need not prove fault. Nor, to prove causation, need he show more than that he received the vaccine and then suffered certain symptoms within a defined period of time. Id. §§ 300aa-13, 300aa-14. The Act specifies amounts of compensation for certain kinds of harm (e.g., $250,000 for death, up to $250,000 for pain and suffering). Id. § 300aa-15(a)(2), (4). And, it specifies other types of harm for which compensation may be awarded (e.g., medical expenses, loss of earnings). Id. § 300aa-15(a).

"At the same time, the Act modifies, but does not eliminate, the traditional tort system, which Congress understood to provide important incentives for the safe manufacture and distribution of vaccines. The Act requires that a person injured directly by a vaccine first bring a Vaccine Court proceeding. Id. § 300aa-11(a)(2)(A). Then, it gives that person the choice either to accept the Court's award and abandon his tort rights (which the Act transfers to the federal government, id. §§ 300aa-17), or to reject the judgment and retain his tort rights. Id. §§ 300aa-21(a), 300aa-11(a)(2)(A)(i). (He can also keep his tort rights by withdrawing his Vaccine Court petition if the Court moves too slowly. Id. §§ 300aa-21(b), 300aa-11(a)(2)(A)(ii).)"

(Emphasis in original.)

At issue here is the proper construction and application of the Vaccine Act's only arguably applicable preclusion mechanism, section 11(a)(2)(A). Plaintiff contends that, while that provision precludes a later civil action by the estate of a decedent who has elected to accept a judgment issued under the Program, it does not preclude a later civil action brought on behalf of family members of such a decedent to recover for their own derivative or collateral injuries. That is, while the Vaccine Act precludes a double recovery for the decedent's own loss — viz., the estate cannot recover for such loss both under the Vaccine Act and by way of a subsequent civil action — it does not apply to the recovery of loss of consortium and related damages.

We are thus faced with a question of statutory interpretation; specifically, we must determine whether Congress, when it enacted the Vaccine Act, intended to preempt the type of claim pursued here. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) ("In deciding whether a federal law preempts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue."). To determine the intended meaning of a federal statute, we examine its text and structure and, if necessary, its legislative history. See Oregon Rev. Dept. v. ACF Industries, 510 U.S. 332, 339-46, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994) (examining the text, structure, and legislative history of federal enactment); see also Northwest Airlines, Inc. v. Dept. of Rev., 325 Or. 530, 538, 943 P.2d 175 (1997) (applying federal law); Shaw v. PACC Health Plan, Inc., 322 Or. 392, 398-400, 908 P.2d 308 (1995) (same).

Section 11(a) of the Vaccine Act sets out the general rules for petitions for compensation under the Program. That section includes the provision at issue in this case, section 11(a)(2)(A), which states:

"No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death * * *, and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed * * * for compensation under the Program for such injury or death and —

"(i)(I) ...