USCA1 Opinion

April 6, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1422
MARK SCHAFER AND MELISSA SCHAFER,
A MINOR BY AND THROUGH
MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA
SCHAFER,
Plaintiffs, Appellees,
v.
AMERICAN CYANAMID CO., PARENT OF
LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,
Defendant, Appellant.
____________________
ERRATA SHEET
The concurring opinion of
Judge Stahl should be
attached to the opinion in case number 93-1422 which was
issued March 24, 1994 and should be numbered page 20.

STAHL, Circuit Judge (concurring).

_____________
the result

and the

reasoning of

write separately to express

While I concur

in both

the majority opinion,

my concern about the potential

threat to the vaccine compensation program.

By virtue of the

circumscribed scope of our

authority and

our inherent institutional limitations, we in the

branch

must

abide

by

the

presumptions

traditional principles of statutory

same

time,

compelled

cannot

by

law,

tension between
compensation

the

ignore
panel's

fact

that,

decision

the two competing purposes

program:

cutting litigation

holding

prescribed

construction.

the

down

costs while ensuring

judicial

At

by
the

although

heightens

the

of the vaccine

vaccine prices
that the

by

injured

are

adequately compensated.

the

cost-benefit calculus counsels

of the conflict in
present one.

The defendant

suggests that

a different resolution

the circumstances of cases such

Specifically, the defendant

as the

argues that the

increase in litigation costs associated with compensating a

relatively

small group of

state tort systems will

victims' family members through

place at risk a much

larger group

of unvaccinated individuals due to price sensitivity in the

vaccine market.
importance,

I consider this to

apparently overlooked

drafted the statute.

be an issue of
at

the

time

I respectfully suggest that

great

Congress
this is

an issue which Congress may wish to revisit.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1422
MARK SCHAFER AND MELISSA SCHAFER,
A MINOR BY AND THROUGH
MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA SCHAFER,

Plaintiffs, Appellees,
v.
AMERICAN CYANAMID CO., PARENT OF
LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________

J. Peter Coll, Jr. with whom Charles W. Gerdts, III, Nicole

____________________
_______________________ ______
van Ackere, Lawrence H. Cooke, II, Donovan Leisure Newton & Irvi
___________ ______________________ ______________________________
Thomas A. Mullen, and Fordham & Starrett were on brief for appellan
________________
__________________
Walter S. Kyle for appellees.
______________
____________________
March 24, 1994
____________________

BREYER,
Vaccine

Injury

provides
injured

Chief Judge.
____________
Act,

a special

42

U.S.C.

under that

The question before

1292(b)) is whether the

person from
their

companionship

or

permits

suits,

explicitly or

300aa-34,
who are

later bringing
Id.
___

a tort

300aa-21(a).

this appeal (under

28 U.S.C.

Act also bars the family

of such a

bringing a tort suit to obtain compensation for

own, related,

such

to

The Act bars those who accept

compensation.

us in

Childhood

compensate those

procedure from

suit to obtain additional

National

300aa-1

procedure to

by certain vaccines.

an award

The

injuries, in

consortium.
we

find

implicitly bars

particular, for
Assuming

nothing
them.

that
in

And,

the

loss of

state

law

Act

that

we affirm

the

Injury

Act

similar determination of the district court.

I
Background
__________
A
The Statute
___________
The

National

Childhood

Vaccine

represents an effort to provide compensation to those harmed

by childhood
tort law.
1)

vaccines outside the

framework of traditional

Congress passed the law

after hearing testimony

describing the

critical

need for

vaccines to

protect

-22

children

from

inevitably

disease,

2)

pointing

out

that

vaccines

harm a very small number of the many millions of

people who are vaccinated, and 3) expressing dissatisfaction

with traditional tort law as a way of compensating those few
victims.

Injured

persons

(potential

tort

plaintiffs)

complained about the tort law system's uncertain recoveries,

the

high

cost

compensation.

of

litigation,

They

argued

and

delays

that government

in

obtaining

had, for

all

practical purposes, made vaccination obligatory, and thus it

had

responsibility

to

vaccines were compensated.

tort

defendants) complained

ensure

that

those

injured

by

Vaccine manufacturers (potential

about litigation

expenses and

occasional large recoveries, which caused insurance premiums

and vaccine prices to

rise, and which ultimately threatened

the stability of the vaccine supply.

See generally
______________

National Childhood Vaccine Injury

__________________________________

Compensation Act of 1985: Hearing on S.827 Before the Senate

____________________________________________________________
Comm. on Labor and Human Resources, 99th Cong.,
____________________________________
pt.

(1985) [hereinafter

"Hearings

on

1st Sess.

S.827"]; Vaccine
_______

Injury
Compensation: Hearings on
H.R.5810 Before the
____________________________________________________________
Subcomm. on Health and the Environment of the House Comm. on
____________________________________________________________
Energy
and
Commerce,
_______________________
[hereinafter

"Hearings

98th
on

Cong.,

2d

Sess.

(1984)

H.R.5810"]; National Childhood

___________________
-33

Vaccine-Injury Compensation Act: Hearings on S.2117 Before

____________________________________________________________

the Senate Comm. on Labor and Human Resources,

______________________________________________
2d
Rep.

Sess. (1984)
No.

[hereinafter "Hearings

908, 99th

Cong.,

2d

Staff of the Subcomm.

House Comm. on

on S.2117"];

Sess. (1986)

"Vaccine Act Report"], reprinted in

____________

98th Cong.,

[hereinafter

1986 U.S.C.C.A.N. 6344;

on Health and the Environment

Energy and Commerce,

Childhood Immunizations
________________________

(Comm.

H.R.

99th Cong., 2d

Print

1986)

of the
Sess.,

[hereinafter

"Childhood Immunizations"]; Office of Technology Assessment,

_______________________
Compensation
for
Vaccine-Related
Injuries
__________________________________________________
[hereinafter "OTA Report"]; Dennis

(1980)

J. Hauptly & Mary Mason,

The National Childhood Vaccine Injury Act, 37 Fed. B. News &

_________________________________________
J. 452 (1990).

creating
deliver

The Vaccine

Act responds to

system

remedial

compensation

to

these complaints

that tries

victims,

more

while

quickly

also

insurance and

litigation costs for manufacturers.

establishes a

special claims procedure involving

of

Federal

Claims and

shall call the

"Vaccine Court").

person injured by
Vaccine Court
by a

special masters

a vaccine

(a system

42 U.S.C.

may file a

tax on vaccines).

Id.
___

300aa-11.

-4-

to

reducing
The Act
the Court
that we

300aa-12.

petition with

to obtain compensation (from

by

A
the

a fund financed
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.

The Act specifies amounts
of harm (e.g., $250,000
and

suffering).

300aa-13, 300aa-14.

of compensation for certain kinds

for death, up to $250,000

Id.
___

specifies other types

Id.
___

300aa-15(a)(2),

(4).

for pain
And,

it

of harm for which compensation may be

awarded (e.g., medical expenses, loss

of earnings).

Id.
___

300aa-15(a).
At the same time,
eliminate,

the

understood

to

traditional

the Act modifies, but

tort

provide important

system,
incentives

manufacture and distribution of

vaccines.

that

by a vaccine

a person injured directly

Vaccine Court

proceeding.

Id.

does not

which

Congress

for

the safe

The Act requires

first bring a
_____

300aa-11(a)(2)(A).

Then,

___
it gives that person the choice either to accept the Court's
award and abandon his tort
to the
the

rights (which the Act

federal government, id.

___

judgment and

retain his

21(a),

300aa-11(a)(2)(A)(i).

rights

by withdrawing

Court

moves

too

his

300aa-17), or
tort rights.
(He can

to reject

Id.
___

also keep

Vaccine Court

slowly.

transfers

Id.
___

300aahis tort

petition if

300aa-21(b),

the

300aa-

11(a)(2)(A)(ii).)
-55

The

Act

additionally

helps

providing certain federal modifications

For

example,

injuries that

it

forbids

flow from

the award

manufacturers
of state tort

of

compensation

"unavoidable side effects,"

by
law.
for
id.
___

300aa-22(b)(1); it frees the manufacturer from liability for

not

providing direct warnings to an

representative), id.
___
that

compliance

requirements
directions

300aa-22(c); it imposes a presumption

with

means

Food

the

and warnings,

punitive damage

and

Drug

manufacturer
id.
___

awards, id.
___

that the trial

injured person (or his

Administration

provided

300aa-22(b)(2); it

proper
limits

300aa-23(d);

and it requires

of any tort suit take place

in three phases

(liability; general damages; punitive damages), id.

___

300aa-

23(a).
The upshot is a new remedial system that interacts
in a complicated way with traditional tort lawsuits.
B
This Case
_________
For

present

simple.

Lenita

received

an

Cyanamid

in October

polio

Schafer's small

oral

(she and

purposes,

polio
1988.

her family

vaccine
Lenita

the

child,

facts

Melissa

distributed

are

Schafer,

by American

subsequently contracted

think) from
-66

relevant

Melissa's vaccine.

About one year later, in December 1989, all three members of

the Schafer family (Lenita,
Mark)

petitioned the

April 1990, Mark and

permission
against

of the

and

Vaccine Court

husband,

for compensation.

In

Melissa withdrew their petitions (with

Vaccine

American

Massachusetts tort

Melissa, and Lenita's

Court) and

Cyanamid,

See
___

lawsuit

damages

under

seeking

law for loss

consortium.

began this

28

of Lenita's
U.S.C.

companionship

1332

(diversity

jurisdiction); Fletch v. General Rental Co., 421 N.E.2d 67,

______
___________________
70-72

(Mass.

petition,

to

Cyanamid

Lenita,

who

eventually accepted

Vaccine Court
right

1981).

for her own

bring a
asked the

did

$750,000

not withdraw

her

award from

the

injuries, thereby giving

tort action.
district

At that

court to

up her

point, American

dismiss Mark's

and

Melissa's suit on the ground that Lenita's acceptance of the

Vaccine

Court award barred not only a later tort action for

her own injuries,

but also

members for related injuries.

review that

a later tort

action by

family

The district court denied the

motion.

We

denial under the

U.S.C.

1292(b) (permitting appeal of

authority of

28

interlocutory orders

raising certain controlling questions of law).

II
The Basic Argument
__________________
-77

Cyanamid
Mark's

and

concedes that

Melissa's

this

damages, not

case

Lenita's;

focuses

upon

that Lenita

received Vaccine Court compensation for her own damages, not

Mark's or Melissa's; and
bars Lenita, but not

that the Act's language explicitly

Mark or Melissa, from bringing

a tort

action to recover their own damages (which, we specify, will

not

duplicate Lenita's).

permit Mark or Melissa

Nonetheless,

it argues

to bring their own tort

that to

action (for

related damages) would so seriously interfere with the Act's

basic

purposes

that we

must

barring those actions, just

Although Cyanamid's

read the

Act

as implicitly
__________

as it explicitly bars Lenita's.

counsel wants to call

its argument one

of "interpreting the Act

in light of its basic

policy," we

believe that "pre-emption" is a better, alternative,

The argument seems to
that permits Mark

amount to a claim that the

or Melissa to bring this

significantly interferes
achieve

its

federal

Constitution's Supremacy Clause

yield

to the federal

purpose

requires the

law's implicit demand.

________

state law

kind of suit so

with the federal Act's

important

label.

ability to
that

the

state law

to

See Michigan
___ ________

Canners & Freezers Assoc. v. Agricultural Mktg. & Bargaining

_________________________
_______________________________
Bd., 467 U.S. 461, 469 (1984); Hines v. Davidowitz, 312 U.S.
___
_____
__________
52, 67 (1941).

But, however one characterizes the argument,

-88

it

has

two

essential

elements --

an

important

purpose and a significant state interference.

try to set

forth these two elements

federal

And, we shall

of Cyanamid's argument

in

light

of

the

Act's

legislative

history,

and

as

persuasively as possible.
First, an important federal
to free

manufacturers from the specter

tort liability,

of large, uncertain

and thereby keep vaccine

and keep manufactures in

presented Congress
and

purpose of the Act is

litigation

the market.

prices fairly low

Vaccine manufacturers

with evidence that their

costs

production revenues.

had

begun to

tort insurance

dwarf

their

See Hearings on S.827,

___

vaccine

supra, at 240
_____

(discussing difficulty of obtaining insurance) (statement of

Robert

Johnson);

Hearings

(expected liability costs

sales

revenue) (statement

Immunizations,
_____________

supra,
_____

increase

of 50 to

result,

some

H.R.5810,

of

Robert

88

(expected

manufacturers
only

supra,
_____

hundreds of times

300 percent).

production (leaving
others had

at

on

had

a handful

Childhood
_________

insurance premium
argued that,

discontinued
of

raised their vaccine prices

229

annual vaccine

Johnson);

They

at

as a

vaccine

producers),
significantly.

while
See
___

Childhood Immunizations, supra, at 63 (showing increases in

________________________ _____
DPT vaccine from

10 cents

to three dollars
-99

per dose,

and

polio

vaccine from

35 cents

to a

dollar and

a half

per

dose).
Evidence

in

compensation-related

the

hearing record

price

increases

withdrawal would cause serious harm.

indicated
or

that

manufacturer

Vaccines benefit those

who are vaccinated, and they have public benefits as well -when parents

vaccinate their

stop the spread of

even

a disease that can injure

though vaccines

serious

injuries

dramatically
vaccine

neurological damage
about five annual
supra, at 51.
_____

themselves
or

reduces

itself may

deaths,

single year,

cause a

cause 150

For

or so

also help

others.

small number

their

fatalities.

widespread
example,

incidents of

the

And,
of
use
DPT

serious

and the polio vaccine

may itself cause

incidents of paralysis.

See OTA Report,

___

But, before widespread vaccination, whooping

cough, for example, killed

a

own children, they

about 7,500 (mostly) children in

diphtheria killed

injured, paralyzed,

about 15,000,

or killed about 57,000.

and polio

See Childhood
___ _________

Immunizations,
_____________
to

be

supra, at 1, 6, 14.
_____

paid

vaccination

in

vaccine-caused

-- (about

whooping cough

Thus, despite the price

13.5

injuries,

million annual

(DPT) vaccine doses, about

widespread

diphtheria and
18 million polio

-1010

doses)

--

has

virtually

wiped

out

these

devastating

diseases.
The upshot

because vaccines

benefit so

many (and harm so few), even small vaccine price

increases,

if followed

by even

is that,

a small

decline in

cause

more public harm through added

total

of all

the

side-effects.
(recounting how,
led

harm vaccines

See, e.g.,
___ ____

vaccinations, can

disease than the sum-

themselves cause

Hauptly &

Mason, supra,
_____

through
at 452

in Japan, two deaths from DPT side effects

to withdrawal of the

vaccine, which was

followed by a

whooping cough
For this

epidemic

kind of

that killed

reason, the

argument goes,

importantly motivated not only

compensate side-effect
keep

vaccine

costs.

See, e.g.,
___ ____

children).
Congress was

by the desire effectively to

victims, but

prices fairly

forty-one

low

also by the

by reducing

desire to

compensation

Hearings on S.827, supra, at

_____

5 (remarks

of Sen. Hawkins); Hearings on S.2117, supra, at 5 (statement

_____
of

Sen.

Grassley);

Vaccine

Act Report,

supra,
_____

at

4-7,

reprinted in 1986 U.S.C.C.A.N. at 6345-48.

____________
Second,

the availability of

for relatives of a victim

purpose,

tort remedy

interferes with the Act's efforts

to lower manufacturers' costs.

cost-reducing

a state

not

The Act seeks to achieve its

by

-1111

denying

compensation

to

victims
fund

(indeed, it imposes a tax upon vaccines in order to

compensation), but

by

insurance costs related to

and

random large

substantive

reducing

the

litigation

and

lengthy, complex tort procedures

tort awards.

and procedural

The Act

therefore imposes

limitations upon

tort actions.

And, more importantly, it discourages victims

from bringing

those traditional

tort cases by

providing fairly generous,

more easily obtainable, Vaccine Court awards.

A victim who

obtains such an

that bird in

award may hesitate to give up

the

hand in return for a larger, but more speculative, tort

law

award.

gives

And, a

petitioner to

nothing may see no

whom the

point in trying

Vaccine Court

to overcome tort

law's yet more serious obstacles to recovery.

But, Cyanamid points out, almost every victim
a family.

And, almost

child will adversely

every vaccine-related

affect the

life of that

has

injury to
family.

a
In

Cyanamid's view, if family members can bring a tort suit for

loss of say, a

child's companionship, even after the

child

accepts a Vaccine Court award, they will do so.

Cyanamid then says (and this is the most difficult
part

of

family
obtains

Cyanamid's argument)
to bring
a Vaccine

a tort law
Court

that

to

case -- even

award --1212

permit a

victim's

where the victim

threatens seriously

to

undermine the Act's

will

"cost-related" advantages.

be a system in

which manufacturers must

The result
pay both the
____

Vaccine Court's easily-obtained compensation awards (through

a
The

tax) and also face large tort claims from family members.
____
latter means

the very

kind of

large occasional

tort

awards and the kind of litigation costs that

Congress hoped

to

Act implicitly
__________

diminish.

Cyanamid concludes

that the

must hold family members to the election

injured victim.

of the physically-

If that victim receives an award and can no

longer pursue a court

claim, then neither can

the victim's

family.
III
Our Response
____________
Cyanamid's
ultimately
statutory

is

it does not persuade

interpretation or

First, one
wishes,

argument

not

us, either as

in terms

cannot easily interpret the

for the Act

without

has no language at

of

force, but
a matter of

pre-emption law.

statute as Cyanamid
all that one might

read as creating a
the

contrary,

action

bar says

lawsuit.

bar to the type

the Act
that

subsection
it does

of suit before us.

that

creates the

not apply

to this

The language that creates the bar,

says: "[n]o

person may

bring a

To
tort

kind of

300aa-11(a),

civil action

for damages"

-1313

(except in accordance
rules)

with the Act's

Vaccine-Court-related

until a Vaccine Court petition "has been filed."

then states

specifically that "this subsection"

It

(i.e. the

subsection with the tort action bar):

applies
only to a
person who has
______________________________
sustained a vaccine-related injury or
death and who is qualified to file a
_____________________________
petition for
compensation under the
________________________________________
Program.
_______
42 U.S.C.

300aa-11(a)(9) (emphasis

added).

A person

"is

qualified to file a petition" only if that person suffered a

relevant injury or death after he or she "received a vaccine
. . . or

contracted polio from another person

an oral polio vaccine."

Id.
___

who received

300aa-11(c)(1)(A).

That is

to say, unless a person "received a vaccine" or, like Lenita

Schafer,

caught polio from someone who did (or is the legal

representative of such a person), he cannot file a petition.

See,
___

e.g., Head v. Secretary of Health and Human Servs., 26

____ ____
____________________________________

Cl.

Ct. 546, 547 n.1 (1992) (parent of injured child cannot

petition except in representative capacity), aff'd, 996 F.2d

_____
318 (Fed.

Cir. 1993).

And, if he

with the Vaccine Court, the Act

cannot file a

petition

says that its tort suit ban

does not apply to him.

Moreover, this same language suggests that the Act
sees

the

tort

suit

procedural
-1414

bar

and

Vaccine

Court

compensation
Act

as opposite sides of

does not permit

member

(of

the same coin.

compensation for injuries

the direct

victim

who

catches polio from a vaccine taker).

Yet the

to a family

takes the

vaccine

or

Indeed, it prohibits:

compensation for other than the health,

education, or welfare of the person who
suffered the vaccine-related injury with
respect to which the compensation is
paid.
Id.
___

300aa-15(d)(2).

interpreted

this

psychological

And, the

section

as

counseling for

directly benefits the

Vaccine Court
forbidding

a victim's

victim herself.

itself has

payment

family unless

See, e.g.,
___ ____

Secretary of Health and Human Servs., 22 Cl.

______________________________________

for
it

Huber v.
_____

Ct. 255, 257

(1991); Richardson v. Secretary of Health and Human Servs.,

__________
_____________________________________
No.

90-324V,

Claims
Neese
_____
1990
16,

1991 U.S.

Cl. Ct.

Ct., Apr. 16, 1991),

LEXIS

151, at

aff'd, 23 Cl.
_____

*18 (U.S.

Ct. 674 (1991);

v. Secretary of Health and Human Servs., No. 89-85V,

_____________________________________
U.S. Cl. Ct. LEXIS 333, at
1991); see also Vire
________ ____

Servs., No. 90-84V, 1990

______
(U.S. Claims Ct., Dec.
compensation of

*23 (U.S. Claims Ct., Apr.

v. Secretary of Health and Human

______________________________
U.S. Cl. Ct. LEXIS 513,

28, 1990) (Act does not

parents of injured child),

at *1 n.2
provide for

aff'd, 954 F.2d

_____

733 (Fed. Cir.), cert. denied, 112 S. Ct. 3030 (1992); Pease

____________

_____

v. Secretary of Health and Human Servs., No.

______________________________________

89-98V, 1990

-1515

U.S. Cl. Ct. LEXIS 64, at *5 (U.S. Claims Ct., Feb. 1, 1990)
(same);

cf.
___

42

U.S.C.

300aa-14

(list

of

compensable

injuries containing no reference to the kind of harm here at

issue).
Second, the

Act's

legislative history

point directly toward the "policy" conclusion

wishes
all

us to draw.

does

not

that Cyanamid

The legislative history says nothing at

about family members'

tort suits.

Its

discussion of

general purposes, as we have pointed out above, see pp. 2-4,

___
supra,
_____

indicates

two
___

major

compensation for victims and

How

does Cyanamid's

purposes,

namely,

providing

maintaining low vaccine costs.

argument take

account of

the "victim

compensation" objective?
provide a

remedy for

Because the Vaccine Court does not

family members, to

accept Cyanamid's

argument would require us to conclude that Congress, without

anyone saying a

word about it,

intended to deprive

members of all compensatory remedies.

second

leg

of

Cyanamid's

permitting this kind

with Congress's

--

the

claim

of suit would significantly

empirical support in the

does not prove itself.
in

At the same time, the

argument

cost control

family

objective -- has

that

interfere
no specific

legislative record; and, the claim

Given the difficulties of prevailing

a traditional tort suit,

it is, at

least, unclear that

-1616

plaintiff families -have

already received

prevail so
jury

often, and

awards,

or

the

particularly families of
Vaccine

Act

compensation

obtain verdicts
threat

of

victims who

so large,

those

--

will

that the

awards,

would

significantly

raise

vaccine

prices

or

retard

their

distribution.
The legislative record's

silence may reflect

vaccine manufacturers' view that family suits do

particular

practical

problem,

or

the

the

not pose a

failure

of

any

interested person to think about the matter, or a calculated

decision

by

everyone

congressional

hearings

crafted compromise.

to

ignore

for fear

the

of upsetting

But, regardless of the

silence, our very uncertainty

issue

in

the

a carefully

reason for the

about how Congress would have

answered the question means that Cyanamid has failed to show

that this kind of

action significantly undermines the Act's

given objectives.
Third, to

accept Cyanamid's argument --

that the

Schafer family cannot collect both a Vaccine Court award and

loss

of consortium

inconsistency.
both

tort damages

-- would

create judicial

The Vaccine Court has held that a parent can

___

obtain a loss of consortium "award" from a state court

(or the settlement

of a

state law claim)

-1717

and also

obtain

compensation for her vaccinated (and injured) child from the

Vaccine

Court.

Abbott v.
______

Secretary of Health and Human

_______________________________

Servs.,
______

No. 90-1673V 1992 Cl. Ct. LEXIS 473, rev'd on other

______________

grounds, 27 Fed. Cl. 792 (1993); cf. Massing v. Secretary of

_______
___ _______
____________
Health and Human Servs., 926 F.2d 1133,
________________________
1991);

1135-36 (Fed. Cir.

Head v. Secretary of Health and Human Servs., 26 Cl.

____
____________________________________

Ct. 546, 549 (1992),

The Vaccine

aff'd, 996 F.2d 318 (Fed.

_____

Court cases

all involve families

Cir. 1993).
that brought

the tort suit first, before the child accepted Vaccine Court
_____
compensation.

But, it is difficult to find any policy that

would justify permitting a family to bring a suit before the

Vaccine Court

awards compensation

to a direct

victim, but

not after.
Fourth, even were the first three reasons far less
persuasive, a

host of

prevent us from
any

form of

cautions us

legal

finding in Cyanamid's

pre-emption.
against finding

empts a state law

interpretive doctrines

Pre-emption

would

favor in respect

to

law, for

example,

that a congressional

act pre-

through silence.

Maryland
________

v. Louisiana,
_________

451

U.S. 725, 746 (1981).

stronger

when

the state

unavailable under

federal

The negative presumption is even

law

at

law.

issue creates
Silkwood
________

v.

remedy

Kerr-McGee
__________

Corp., 464 U.S. 238, 251 (1984); United Construction Workers

_____
___________________________
-1818

v. Laburnum Construction Corp., 347 U.S. 656, 663-64 (1954);

___________________________
Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
____
________________________

230 (1947).

And, it is

in the very

statute
remedies

virtually conclusive when Congress,

at

issue,

but not

explicitly pre-empts
__________
the remedy

at issue.

other
_____
See
___

state

law

Cipollone v.
_________

Liggett Group, Inc., 112 S. Ct. 2608, 2618 (1992); 42 U.S.C.

___________________
300aa-22,
awards

300aa-23 (precluding certain

in state

law suits; creating

kinds of damages

three-stage procedure

for

trying

state

law

tort

actions;

availability of certain defenses;

any state law that

specifying

the

explicitly "preempt[ing]"

would prohibit a person from

bringing a

tort action not barred by the Act); see also Greenwood Trust
________ _______________
Co.
___
1992)

v. Commonwealth of Mass.,
_____________________
("In

recent

days,

971 F.2d 818,

the

High

Court

823 (1st Cir.

has

made

it

pellucidly clear that, whenever Congress includes an express

preemption

clause

in

statute, judges

ought

to

limit

themselves to the preemptive reach of that provision without

essaying any further analysis

under the various theories of

implied preemption."), cert. denied, 113 S. Ct. 974 (1993).

____________
We need not rely upon these presumptions, however.
Nor

need

we

rely

upon the

analogous, state workers'

say that they

fact

that

numerous,

compensation statutes

pre-empt consortium actions when

-1919

rather

explicitly
it is their

intent to do so.
Stat.

See, e.g., Ala. Code

___ ____

52-555d; Mass.

that the Act's

Gen. L.

25-5-53; Conn. Gen.

ch. 152.

purposes do not point

It is

sufficient

strongly towards pre-

emption, and the Act's language suggests that pre-emption is

not intended.
made to

Consequently, Cyanamid's arguments are better

Congress than

district court that

bar

to this

court.

We agree with

the

the Act, as currently written, does not

the suit before us (described on pp. 7-8, supra).

_____

its order refusing to dismiss the case, therefore, is

Affirmed.
________

-2020

And,

STAHL, Circuit Judge (concurring).

_____________

While

concur in both the result and the reasoning of the majority

opinion, I write separately to express my concern about the
potential threat to the vaccine compensation program.
By

virtue of the circumscribed

scope of our

authority and our inherent institutional limitations, we in

the

judicial

prescribed

branch
by

construction.
that,

abide

traditional
At the

although

must

by

the

principles

presumptions
of

statutory

same time, I cannot ignore

compelled

by

law,

the

the fact

panel's decision

heightens the tension between the two competing purposes of

the

vaccine compensation

program:

prices by cutting litigation

the

cost-benefit

resolution of
such

as

the present

argues that

calculus

the conflict
one.

the increase

in

down vaccine

costs while ensuring that the

injured are adequately compensated.

that

holding

The defendant suggests

counsels

different

in the circumstances

of cases

Specifically, the

defendant

litigation costs

associated

with

compensating

family

relatively small

members through

state tort

group

of victims'

systems will

place at

risk a much larger group of unvaccinated individuals due to

price sensitivity
to be
at

in the vaccine market.

an issue of great

importance, apparently overlooked

the time Congress drafted the

suggest

that this is an

I consider this

statute.

I respectfully

issue which Congress

revisit.
-2121

may wish to