Bryan Matthew Totterdale v. HHS - DPT, residual seizure disorder and an encephalopathy (1993)

On October 1, 1990, Jan Paul Benedict, as Conservator of the Estate of Bryan Matthew Totterdale, filed a petition for compensation under the National Childhood Vaccine Injury Act for injuries allegedly related to DPT vaccinations administered on July 23, 1987, and September 10, 1987. Bryan Totterdale allegedly suffered a residual seizure disorder and an encephalopathy following these vaccinations.

The respondent, the Secretary of Health and Human Services, conceded the existence of vaccine-related injuries and recommended compensation, contingent on all other program requirements being met. However, Special Master Richard B.

Abell, on his own initiative, raised the issue of whether the petition was barred by Section 11(a)(6) of the Act. This section prohibits filing a petition if a civil action for a vaccine-related injury associated with a pre-November 15, 1988 vaccination was brought after November 15, 1988.

The Special Master found that a civil action filed on July 24, 1989, by Bryan's parents, Jennifer and Thomas Totterdale, in the Circuit Court of Ohio County, West Virginia, against the vaccine administrator and manufacturer, constituted such a bar. The Special Master concluded that Bryan's interests were represented in that prior civil action, even though the petitioner in the current case was different.

The petition was dismissed for lack of jurisdiction on April 13, 1993. The petitioner moved for review of this decision.

The petitioner argued that no civil action representing Bryan's interests was effectively commenced and that the prior action by his parents should not be recognized as a bar. The petitioner also contended that the dismissal undermined Congressional intent and violated due process.

The respondent countered that the prior civil action fell within the scope of Section 11(a)(6) and that the dismissal was consistent with Congressional intent and constitutional requirements. The Court of Federal Claims reviewed the Special Master's decision under an "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard.

The court affirmed the Special Master's decision. The court found that Section 11(a)(6) requires an identity of interests, not necessarily an identity of petitioners, and that Bryan's interests were indeed represented in the prior civil action, which was filed by his parents as "His Parents and Next Friends" and sought damages for Bryan's injuries.

The court found the petitioner's arguments regarding the complaint's sufficiency and Bryan's representation to be without merit, citing the complaint's specific allegations of damages to Bryan and the liberal pleading rules of West Virginia. The court also determined that the prior civil action constituted an election of remedies, consistent with Congressional intent to provide an either/or choice for injuries sustained before November 15, 1988.

The court rejected the due process argument, stating that the petitioner was not denied access to the courts, as an alternative remedy (civil action) had been chosen and pursued. The court concluded that the Special Master's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, and denied the petitioner's motion for review, sustaining the dismissal of the petition.