Huzenlaub v. HHS - DPT, neurological sequelae (1996)

Huzenlaub filed a petition on October 1, 1990, seeking compensation under the National Vaccine Injury Compensation Program for neurological sequelae she alleged resulted from several diphtheria-pertussis-tetanus (DPT) vaccinations administered by Dr. Nikolas Tengg between March and May of 1971, using a vaccine manufactured by Eli Lilly & Co.

Before filing her Vaccine Act petition, petitioner had a parallel history in state court. On February 27, 1986, she filed a civil action in the District Court of Harris County, Texas, against Dr.

Tengg and Eli Lilly & Co. Petitioner allowed that case to lie dormant; on May 3, 1990, the state court dismissed the action with prejudice for want of prosecution.

Petitioner then appealed the dismissal to the Court of Appeals for the First District of Texas. That appeal was still pending on October 1, 1990, when she filed her Vaccine Act petition.

After filing the petition, petitioner moved to dismiss her state court appeal, and it was dismissed on November 1, 1990. Chief Special Master dismissed the petition on August 25, 1995, on jurisdictional grounds under 42 U.S.C. § 300aa-11(a)(5).

Petitioner moved for review. Judge Turner, writing for the Court of Federal Claims on January 22, 1996, agreed with the result but explained that the jurisdictional analysis differed from the special master's.

The court first addressed petitioner's argument that section 300aa-11(a)(4) provided a pathway to compensation. That provision allows persons whose pre-Act civil actions were dismissed with prejudice to file a Vaccine Act petition.

However, under Amendola v. Secretary of HHS, 989 F.2d 1180 (Fed.

Cir. 1993), and Flowers v. Secretary of HHS, 49 F.3d 1558 (Fed.

Cir. 1995), section 11(a)(4) is limited to civil actions brought and concluded before the Vaccine Act's effective date of October 1, 1988. Because petitioner's state court action was still pending on October 1, 1988, section 11(a)(4) did not apply to her.

The court held that petitioner's claim was doubly barred under section 300aa-11(a)(5). First, under section 11(a)(5)(A), a plaintiff with a civil action pending on October 1, 1988, had two years or until entry of judgment — whichever came first — to petition for dismissal of that action without prejudice and then file a Vaccine Act petition.

Petitioner never sought voluntary dismissal. Instead, she allowed the case to be dismissed involuntarily for failure to prosecute.

Under RCFC 41(b), an involuntary dismissal for failure to prosecute operates as an adjudication on the merits and constitutes judgment against the petitioner. Under Matos v.

Secretary of HHS, 35 F.3d 1549 (Fed. Cir. 1994), a petitioner who receives an adverse state court judgment without first petitioning for dismissal without prejudice is barred from seeking compensation under the Program.

The same bar applied here. Second, under section 11(a)(5)(B), a plaintiff may not file a Vaccine Act petition while a state court civil action on the same matter is simultaneously pending.

Because petitioner's appeal of the state court dismissal remained pending on October 1, 1990, the day she filed her Vaccine Act petition, simultaneous proceedings existed and provided a second independent bar. The court rejected petitioner's equitable plea.

Although it expressed sympathy and acknowledged that the result was harsh, the court emphasized that statutory threshold prerequisites are defined by Congress, not the courts, and the court lacked authority to grant relief by weighing equities. The order of the special master dismissing the petition was affirmed.