James A. Mass v. HHS - MMR, alleged measles vaccine-related injuries; Vaccine Program petition voluntarily dismissed after state civil action filed (1993)

On September 24, 1990, Arnold M. Mass, pro se, filed a petition under the National Childhood Vaccine Injury Compensation Program on behalf of his minor son, James A.

Mass. The petition sought compensation for alleged injuries related to a measles vaccine administered to James A.

Mass on or about August 25, 1971. The public record does not specify James A.

Mass's date of birth or provide details of his medical condition. The case did not proceed to a decision on the merits of causation.

On February 4, 1993, Arnold M. Mass filed a civil action against Merck & Company in Cook County, Illinois, for James's alleged vaccine-related injuries.

At conferences on June 16 and July 22, 1993, Mr. Mass requested Special Master John F.

Edwards to dismiss the Vaccine Program petition due to the pending state court action. The special master dismissed the petition on July 26, 1993, and judgment was entered on August 27, 1993.

Subsequently, Mr. Mass sought reimbursement for costs incurred in the Vaccine Program case.

On December 21, 1993, the special master awarded Mr. Mass $906.29 in costs, noting that filing a civil suit after a Vaccine Program petition does not divest the special master of jurisdiction.

The special master also commented that Mr. Mass's state court action was invalid due to non-compliance with the Vaccine Act's election provisions.

Mr. Mass moved for review, arguing the special master lacked jurisdiction to award costs and could not bar a civil tort action.

The United States agreed that the cost award should be set aside due to jurisdictional issues arising from the election of remedies. Judge Marian Blank Horn reviewed the special master's decision.

The court affirmed the cost award of $906.29 on June 21, 1994, but left the question of the Illinois court's jurisdiction over the civil action to that court. The Court of Federal Claims held that filing the state civil suit after the Vaccine Program petition did not automatically divest the special master of jurisdiction over the pending petition.

The court reasoned that the special master retained jurisdiction to consider costs after dismissal, and thus the cost award stood. The court did not award vaccine-injury compensation, nor did it rule on whether the measles vaccine caused James's injuries or whether the Illinois tort action could proceed.

Petitioner's counsel was Patrick J. Kenneally, Ltd.

The respondent was the Secretary of Health and Human Services, represented by the United States.