Nina Ann Cohn v. HHS - DPT/DTP, alleged DPT-related grand mal seizure/coma and lifelong petit mal seizures; post-death estate pain-and-suffering claim dismissed for lack of jurisdiction (1999)

On October 1, 1990, Sadie Ann and Malcolm Cohn filed a petition under the National Childhood Vaccine Injury Act of 1986 on behalf of their daughter, Nina Ann Cohn. Nina was born on December 8, 1959.

On or about February 15, 1960, when she was approximately sixty-nine days old, she received a diphtheria-pertussis-tetanus (DPT) vaccination. According to her parents, within hours of the vaccination, Nina suffered a grand mal seizure and became comatose.

They alleged that she experienced numerous petit mal seizures throughout her life, requiring treatment with Phenobarbital and Dilantin. Nina died on May 10, 1986, shortly after being diagnosed with lupus.

The petition sought compensation for Nina's death and for her lifetime pain and suffering. Special Master Richard B.

Abell denied the claim for death compensation, ruling that the petitioners failed to prove through qualified expert medical testimony that Nina's death was a sequela of a Vaccine Table injury or a direct result of the DPT vaccination. The petitioners did not contest this ruling on review.

The central issue before Judge Christine Odell Cook Miller was whether the Vaccine Act permitted an estate to pursue a claim for pain and suffering for a vaccine-injured person who died from a non-vaccine-related cause before a petition was filed. The petitioners argued they should be allowed to recover for Nina's alleged lifetime injuries as her legal representatives.

The court affirmed the special master's jurisdictional ruling. Judge Miller interpreted the Vaccine Act as allowing petitions from three categories of individuals: (1) living persons who sustained a vaccine-related injury; (2) the legal representative of such a living person if they are a minor or disabled; and (3) the legal representative of a person who died as a result of a vaccine.

The court found that the statute did not create a fourth category for the legal representatives of estates of individuals who were vaccine-injured during life but died from non-vaccine-related causes before a petition was filed. The court distinguished this situation from cases where a petition was timely filed during the injured person's lifetime and the person later died from unrelated causes.

In Nina's case, no petition was filed during her lifetime. On September 13, 1999, the court held that because Nina died before the petition was filed and the petitioners did not contest the finding that her death was unrelated to the vaccine, the Court of Federal Claims lacked jurisdiction over the pain-and-suffering claim.

The petition was dismissed, and no compensation was awarded. The court noted that while this outcome might seem unfair, the unfairness stemmed from the Act itself, not the court's decision.

The court affirmed the special master's decision, and judgment was entered accordingly.