Tamara Joseph v. HHS - DPT, death allegedly following DPT vaccination; merits not decided in staged opinion (1993)

Roland Joseph and Marie Paulette Joseph, as administrators of the estate of their deceased daughter, Tamara Joseph, filed a petition for compensation under the National Vaccine Injury Compensation Program on September 28, 1990. Tamara, who was two months old, received a diphtheria-pertussis-tetanus (DPT) vaccination on December 19, 1987, and died the following day, allegedly due to the inoculation.

The respondent is the Secretary of Health and Human Services. The core issue before the Court of Federal Claims was jurisdiction, specifically whether a prior filing in Pennsylvania state court barred the Vaccine Program petition.

The Josephs had filed a praecipe for a writ of summons in the Court of Common Pleas of Bucks County, Pennsylvania, on December 18, 1989. This writ named the parents individually and as estate administrators as plaintiffs, and three DPT vaccine manufacturers and the hospital that treated Tamara on the day of her death as defendants.

Under Pennsylvania procedure at the time, the writ contained only the names of the parties and a statement that an action had been commenced, without alleging facts, stating legal claims, or requesting relief. On November 9, 1990, after filing the Vaccine Program petition, the Josephs discontinued their state court action.

The special master dismissed the Vaccine Program petition with prejudice on June 9, 1993, concluding that the state-court filing constituted a civil action for damages for Tamara's vaccine-related death, thereby depriving the Court of Federal Claims of jurisdiction under section 11(a)(6) of the Vaccine Act. Judge Lawrence S.

Margolis reversed this decision on November 1, 1993. The court held that the special master erred because the Pennsylvania writ of summons, containing only the names of the parties and a statement of commencement, did not provide sufficient information to determine that the state action was for damages for a vaccine-related death.

The court noted that the hospital named was the treating hospital after Tamara's reaction, not the vaccine administrator, and that an action against such a hospital would not necessarily bar a Vaccine Program petition, citing Schumacher v. Secretary of DHHS.

The court found that the Vaccine Act's jurisdictional bar required proof that the prior action was a civil action for damages for a vaccine-related injury or death, and that the bare writ of summons was insufficient to establish this. The court concluded that the special master improperly determined that the state court action was a civil action for damages for a vaccine-related death due to insufficient evidence.

The court granted the petitioners' motion for review, found jurisdiction proper, and remanded the case to the special master for proceedings on the merits. The staged opinion does not state the ultimate entitlement result or any compensation award.