Gary Charette v. HHS - typhoid, anaphylactic reaction (1995)

A petition was filed on August 1, 1994, on behalf of the estate or family of Gary Charette, seeking compensation under the National Childhood Vaccine Injury Act of 1986 for Mr. Charette's death.

Mr. Charette received a typhoid vaccine on August 8, 1992, and died that same day after allegedly suffering an anaphylactic reaction.

Special Master Elizabeth Wright dismissed the petition on December 12, 1994, on the grounds that the typhoid vaccine is not covered by the Vaccine Act. Petitioner filed a motion for review in the Court of Federal Claims on January 9, 1995.

Petitioner argued that the Vaccine Injury Table, in Part I, covers "DTP; P; DTP/Polio Combination; or Any Other Vaccine Containing Whole Cell Pertussis Bacteria, Extracted or Partial Cell Bacteria, or Specific Pertussis Antigen(s)." Because the typhoid vaccine contains extracted or partial cell bacteria, petitioner contended that it was "included by description" within the Table. Petitioner also argued that the legislative intent of the statute contemplates recovery for all vaccine-injured persons.

Judge Tidwell, writing for the Court of Federal Claims on May 10, 1995, affirmed the dismissal and denied the motion for review. The court held that petitioner's interpretation of Table Part I was incorrect.

The special master had correctly read Part I as listing four types of vaccines separated by semicolons — DTP, P, DTP/Polio Combination, and "Any Other Vaccine Containing" pertussis bacteria or antigen — with the catchall clause being limited to other pertussis-antigen-containing vaccines, not every vaccine containing any form of extracted or partial cell bacteria. Accepting petitioner's reading would cause the catchall to swallow the four-part structure of the Vaccine Injury Table entirely, as a wide variety of vaccines contain whole or partial cell bacteria in some form.

The court also examined the legislative history and found it decisively against petitioner. The National Childhood Vaccine Injury Act of 1986 was created expressly to compensate injuries from vaccines routinely administered to children against seven specified diseases: polio, measles, mumps, rubella, diphtheria, pertussis, and tetanus.

The typhoid vaccine is not mentioned in the statute or its legislative history. Furthermore, the National Vaccine Injury Compensation Trust Fund is financed by excise taxes imposed specifically on sales of DPT, DT, MMR, and polio vaccines — a financing scheme consistent with the Act's limitation to those specific categories of vaccines.

The petitioner's argument that the Act was intended to cover any vaccine-related injury was not supported by the text, structure, or history of the statute. The dismissal was affirmed.