Kelly Schultz v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12-234V

Filed: August 30, 2013

************************************* TO BE PUBLISHED

KELLY SCHULTZ, *

* Special Master Zane

Petitioner, *

*

* Motion to Join Party; In Utero

* Recipient of Vaccine; Influenza

v. * Vaccine; Guillain-Barré Syndrome;

* Representative Capacity

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

*************************************

ORDER GRANTING PETITIONER’S MOTION TO JOIN ADDITIONAL PARTY1

This matter is before the undersigned special master on Petitioner’s Motion to Join

Additional Party (“Motion to Join”). Petitioner, Kelly Schultz (“Petitioner”), filed a petition on

April 11, 2012, seeking compensation under the National Childhood Vaccine Injury Act

(“Vaccine Act”), as amended, 42 U.S.C. §§ 300aa-1, et seq. 2 Petitioner claims that the influenza

1

Because this decision contains a reasoned explanation for the special master’s action in

this case, the special master intends to post it on the website of the United States Court of

Federal Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501

(2006). The decisions of the special master will be made available to the public with the

exception of those portions that contain trade secret or commercial or financial information that

is privileged and confidential, or medical or similar information whose disclosure would clearly

be an unwarranted invasion of privacy. As provided by Vaccine Rule 18(b), each party has 14

days to file a motion requesting the redaction from this decision of any such alleged material. In

the absence of a timely request, which includes a proposed redacted decision, the entire

document will be made publicly available. If the special master, upon review of a timely filed

motion to redact, agrees that the identified material fits within the categories listed above, the

special master shall redact such material from the decision made available to the public. 42

U.S.C. § 300aa-12(d)(4); Vaccine Rule 18(b).

2

Part 2 of the Vaccine Act established the National Vaccine Injury Compensation

Program, 42 U.S.C. § 300aa-10 through § 300aa-34 (2006) (“Vaccine Program”).

1

vaccination (“flu vaccine”) administered to her on September 15, 2009, caused her to suffer from

Guillain-Barré Syndrome (“GBS”). Petitioner moves to add her child, L.S., to this case and to

seek to be compensated not only for injuries she alleges to have sustained but also injuries it is

alleged that L.S. sustained in this single action. At the time of the administration of the vaccine,

Petitioner was pregnant with L.S., and carrying the child in utero. Petitioner claims, inter alia,

that as a result of her injuries, medical professionals had to perform an emergency caesarean

procedure, at which time L.S. was born. Petitioner seeks to include all the claims for injuries

that she contends were the result of administration of this vaccine, those to both her and her

child, in this action.

Respondent argues that L.S.’s injuries are not compensable under the Vaccine Act,

asserting that the language of the statute indicates that it was Congress’s intent to limit recovery

under the Act with regard to the administration of a vaccine to a single person irrespective of

whether it could be proved that the vaccine received by and caused injuries to others. Having

reviewed the record and the parties’ arguments, as explained below, Petitioner’s Motion to Join

is hereby GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2012, Petitioner filed her petition alleging that she developed Guillain-Barré

Syndrome (“GBS”) on or about September 25, 2009 as a result of receiving a trivalent influenza

(“flu”) vaccine on September 15, 2009. Petition at ¶¶ 2, 3. At the time Petitioner received the

flu vaccine she was thirty-three weeks pregnant. Id. at 2. The petition stated that beginning

September 25, 2009 Petitioner began having complaints of headache and upper back pain and

her symptoms progressed over the next several days. Id. at ¶¶ 3, 7, 8. On September 29, 2009,

Petitoner experienced respiratory distress, was intubated, and admitted to the intensive care unit.

Id. at ¶ 12. On that same day, Petitioner underwent an emergency caesarean section and her

child, L.S., was born at approximately thirty-five weeks and transferred immediately to the

neonatal intensive care unit. Id. at ¶ 13. On September 30, 2009, electromyography and nerve

conduction velocity studies were conducted, the findings of which were consistent with GBS.

Id. at ¶¶ 15.

On September 11, 2012, Petitioner Kelly Schultz, along with the father of L.S., Peter

Schultz, filed a second petition on behalf of their minor son, L.S., for compensation under the

Vaccine Act. Petition of L.S. (12-590V). This second petition alleged that L.S. suffered

developmental injuries from the flu vaccination that was administered to his mother on

September 15, 2009, while he was in utero and which led to the emergency Caesarean section

that resulted in his birth. Petition of L.S. (12-590V) at ¶¶ 1-3.

Petitioner filed her Motion to Join on October 31, 2012, in this case, asking the court to

allow L.S. to be added as a co-petitioner. By adding L.S. there would be one claim

encompassing all injuries as a result of the vaccination administered on September 24, 2009. See

Petitioner’s Motion to Join.

On December 10, 2012, Respondent filed an opposition to Petitioner’s Motion to Join

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(“Respondent’s Opposition”). Respondent argues that L.S.’s injuries are not compensable. On

that same date Respondent filed a Motion to Dismiss in the case filed on behalf of L.S, No. 12-

590V (“Respondent’s Motion to Dismiss”). Respondent makes the same arguments in that

motion that she has made in her Opposition to Petitioner’s Motion to Join filed in this case.

Respondent argues that Petitioner is barred from filing more than one petition and filing one

petition for more than one person relating to a single administration of a vaccine.

Petitioner filed her reply to Respondent’s Opposition to Motion to Join on December 20,

2012 (“Petitioner’s Reply”). Petitioner also filed an Opposition to Respondent’s Motion to

Dismiss in Case No. 12-590V. Petitioner argues that the Vaccine Act, a remedial statute, was

intended to be liberally construed such that all persons injured by the administration of a

particular vaccine were eligible to seek compensation for their alleged vaccine-related injuries.

Having considered the positions of the parties, as explained below, the special master

concludes that joinder is appropriate in this case. As explained below, in deciding that L.S. can

and should be joined as a party pursuant to RCFC 19 and RCFC 20, the special master has

considered and decided that L.S. can state a claim pursuant to the Vaccine Act.3 The plain

language of the Vaccine Act and the legislative history of this remedial statute support this

conclusion. The special master also concludes that, consistent with the plain language of the

Vaccine Act, only one claim can be made per vaccine administration. As such, L.S.’s claim and

Petitioner’s claim must be made in the same action. Joinder is proper.

APPLICABLE LEGAL STANDARDS

Because there is no specific Vaccine Rule governing joinder, Vaccine Rule 1 gives the

special masters broad authority to employ procedures consistent with the Vaccine Rules and the

Vaccine Act. See e.g., May v. Sec’y of Health & Human Servs., No. 91-1057, 1995 WL 298554

(Fed. Cl. Spec. Mstr. May 2, 1995) (determining that a supplemental proceeding allowed), aff’d,

33 Fed. Cl. 546 (1995), aff’d., 93 F.3d 781, 790 (Fed. Cir. 1996). Vaccine Rule 1 also provides

that, in connection with matters not specifically provided for by the Vaccine Rules, the Rules of

the Court of Federal Claims (“RCFC”) shall apply to the extent they are consistent with the

Vaccine Rules. Vaccine Rule 1(c). See, e.g., Silver v. Sec'y of Health & Human Servs., 2009

WL 2950503, at *5 (Fed. Cl. Spec. Mstr. Aug. 24, 2009) (finding that RCFC 24 did not apply

because it was inconsistent with Vaccine Rule 15 which prohibits intervention).

RCFC 19 and 20 govern joinder of parties. RCFC 19 provides that persons in whose

absence the court could not accord complete relief or in whose absence could have their ability to

protect their interest impeded must be joined. RCFC 20 provides for the permissive joinder of

parties where a party asserts rights to relief jointly, severally or in the alternative or which arise

out of a the same transaction or occurrence. The first prerequisite of Rule 20(a), the “same

3

By granting this motion, the special master has denied the relief sought by Respondent in

Case No. 12-590, the dismissal of L.S.’s claim. At the same time, by joining L.S. in this case,

the special master renders that claim unnecessary so that that action shall be dismissed by

separate order.

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transaction” or transactional relatedness prong, refers to the similarity in the factual background

of the relevant claims. See Whalen v. United States, 85 Fed. Cl. 380, 383 (2009) (discussing the

Court of Federal Claims Rule for permissive joinder). The second prong of Rule 20(a) requires

that plaintiffs have in common “some question of law or fact.” Id.

DISCUSSION

I. THE PLAIN LANGUAGE AND LEGISLATIVE HISTORY OF THE

VACCINE ACT SUPPORT THE CONCLUSION THAT CLAIMS FOR

INJURIES TO L.S. UNDER THE VACCINE ACT MUST BE BROUGHT IN

THIS ACTION.

A. The Plain Language And Legislative History Support That Injuries To L.S.,

Despite Being In Utero At Time the Vaccine Was Administered, May Be

Compensable.

The pertinent sections of the Vaccine Act and the legislative history demonstrate that

L.S.’s injuries may be compensable under the Vaccine Act. To decide whether Congress

intended claims such as those of L.S. to be permitted under the Vaccine Act, it is necessary to

examine the language of the statute. Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 644

(Fed. Cir. 2011) (quoting Pennzoil–Quaker State Co. v. United States, 511 F.3d 1365, 1373 (Fed.

Cir. 2008). If the plain meaning of the language is clear, it will be regarded as conclusive.

Staples v. Sec’y of Health & Human Servs., 30 Fed. Cl. 348, 354 (1994); see also Consumer

Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

A plain reading of the language of the section governing who are considered Petitioners,

42 U.S.C. § 300aa–11, is unambiguous and leads to the conclusion that L.S.’s injuries could be

compensable under the statute. Subsection (b) provides that any person “who has sustained a

vaccine-related injury” or the legal representative of such person may file a claim as long as they

can show that he or she meets the requirements of subsection (c). Subsection (c) provides that a

person must demonstrate he or she received a vaccine. 42 U.S.C. § 300aa–11(b) and (c)(1)(A).

Thus, anyone who could potentially demonstrate that he or she did “receive” a vaccine could

state a claim.

As Respondent acknowledges,4 the definition of the term receive means “to take or

acquire; get.” Merriam-Webster online Webster’s II New Riverside Dictionary 981 (1984).

Applying this definition to the language of Section 11(c)(1)(A) means that anyone who can be

considered to have gotten or acquired the vaccination could state a claim for compensation.

Accord Burch v. Sec'y of Health & Human Servs., No. 99-946V, 2010 WL 1676767 (Fed. Cl.

Spec. Mstr. Apr. 9, 2010) (defining received to include potentially an infant to whose mother a

vaccine was administered while the child was in utero). Certainly, it has been recognized that a

4

Respondent defines the term receive means “to acquire or take…GET.” Respondent’s

Opposition at 7 (citing Webster’s II New Riverside Dictionary 981 (1984)).

4

child being carried in utero can acquire certain things from the mother, ranging from nutrition to

diseases. See generally Rooks v. Sec’y of Health & Human Servs., 35 Fed. Cl. 1, 9 (1996)

(discussing child in utero being supported by mother). Thus, if the child can prove that he or she

received the vaccine through administration to his or her mother, claims for injuries to this child

could be compensable.5

Respondent agrees that the plain language of the statute is unambiguous but argues that

the term “received” in Section 11(c)(1)(A) is synonymous with the term “administered” as used

in other sections of the Act, such as Section 11(b)(2).6 Respondent’s Opposition at 7.

Respondent contends that the individual to whom the vaccine is administered is the only person

who can file a claim. Id. Contrary to Respondent’s argument, the term “received” in that section

has not been modified or restricted to only those who directly receive a vaccine. As a result,

anyone who can show that he or she has received a vaccine, regardless of the manner of receipt,

can state a claim that may be compensable under the Vaccine Act.

That the term “receive” was used in Section 11(c)(1)(A) whereas the term “administer”

was used in Section 11(b)(2) is significant. As a general rule, that Congress used certain

language in one part of a statute and different language in another indicates that Congress

intended there be different meanings accorded. Sosa v. Alvarez–Machain, 542 U.S. 692, 711, n.

9 (2004); see also Sebelius v. Auburn Reg’l Med. Ctr., 133 S.Ct. 817, 825 (2013). The definition

of the word receive, “to take or acquire; get” is not the same as the definition of administer,

which is “to give or apply in a formal way.” Merriam-Webster online Webster’s II New

Riverside Dictionary 981 (1984).

Applying this principle and these definitions to the language of Section 11 means that

whereas Congress intended that there be only one claim in connection with the administration of

a vaccine, having used the term administered in Section 11(b)(2), Congress did not intend to

limit that claim to the single person who was administered the vaccine or received it directly.7

Rather, in using the term received in Section (c)(1)(A), Congress intended that anyone that could

show he or she received the vaccine, in whatever manner, would be eligible to seek

compensation.

5

In reaching this conclusion, the special master makes no decision as to whether L.S. has

demonstrated that he did receive the vaccine and that his claim is compensable and this decision

should not be construed as doing so. Rather, this decision recognizes that such a claim could be

compensable so that L.S. has stated a claim upon which relief may be granted, and the claim can

and should proceed and not be dismissed.

6

Section 11(b)(2), which sets forth the “one petition rule,” provides that thre can only be

one claim for each administration of a vaccination.

7

That Congress did not intend to limit a claim to a single person is indicated by the fact

that Congress did anticipate situations where more than one person might file a claim,

specifically in the case of the oral polio vaccine. At the same time, any such claims arising from

the administration of such an oral polio vaccine would have to be in a single claim.

5

In addition to the plain meaning of the statutory terms, another aid to interpretation is the

legislative history. The legislative history can be reviewed to confirm a court’s interpretation of

the language of the statute. Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395–96 (Fed.

Cir. 1990); see United States v. American Trucking Ass'ns, 310 U.S. 534, 542 (1940) (holding

that the function of a court in statutory interpretation is “to construe the language so as to give

effect to the intent of Congress.”). The legislative history can also be reviewed where the

language is ambiguous to understand the meaning of particular provisions. Rooks, 35 Fed. Cl. at

5-6; Castaneda v. Sec’y of Health & Human Servs., No. 11-749V, 2012 WL 1722346 (Fed. Cl.

Spec. Mstr. Apr. 24, 2012).

Review of the Vaccine Act’s legislative history demonstrates that it is consistent with

Congressional intent to interpret the Act as permitting L.S.’s claim to proceed here along with

claims of his mother. The Vaccine Act is a remedial statute. Cloer v. Sec’y of Health & Human

Servs. (Cloer II), 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en banc). When Congress enacted the

Vaccine Act its intent was to create a program that resulted in awards being made “quickly,

easily, and with certainty and generosity.” H.R. Rep. No. 99-908, reprinted in 1986

U.S.C.C.A.N. 6344, 6344. As its structure reflects, the Vaccine Program was “intended to be

expeditious and fair” and “to compensate persons with recognized vaccine injuries without

requiring the difficult individual determinations of causation of injury.” House Report at 12-13,

reprinted in 1986 U.S.C.C.A.N. at 6353-54 (“The Committee anticipates that the speed of the

compensation program, the low transaction costs of the system, the no-fault nature of the

required findings, and the relative certainty and generosity of the system's awards will divert a

significant number of potential plaintiffs from litigation.”).

Because it is a broad remedial statute, the Vaccine Act and its provisions are to be

construed in a manner that effectuates that underlying spirit and purpose. Cloer, 675 F.3d at

1362; see also Flowers v. Secretary of Health & Human Servs., 49 F.3d 1558, 1562 (Fed. Cir.

1995); Zatuchni v. Sec’y of Health & Human Servs., 73 Fed. Cl. 451, 455 (2006), aff'd, 516 F.3d

1312 (Fed. Cir. 2008). It is consistent with Congress’s purpose of providing an expeditious, fair

and generous program from which persons injured by vaccines can recover to interpret Section

11 to include in utero claims such as those of L.S. to be compensable under the Vaccine Act.

The remedial nature of the program and Congress’s clear intent dictates that where there is a

question as to whether an individual’s claim falls within the statute, that claim should be

interpreted as being included. Including L.S.’s claim within the realm of claims that may be

compensable under the Vaccine Act is consistent with the Congress’s intent and purpose.

Respondent’s argument that Congress did not intend for the Vaccine Act to compensate

in utero claims because Congress did not explicitly provide for them at the time of enactment is

inconsistent with Congress’s expressed intent for the program to be generous and flexible in

awarding compensation. In support of her argument, Respondent refers to the section that

provides for a claim where an individual contracts polio through, inter alia, contact with an

individual that receives the oral vaccine. Respondent’s Opposition at 9. Respondent asserts that

because the polio situation is the only instance of an indirect injury that Congress included, it is

the only instance in which someone other than the person directly administered a vaccine can

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make a claim. Id. But, given that the section on polio specifically uses the language “did not

receive such a vaccine,” the polio section actually is intended to include an even broader group

of individuals. Those individuals are exempted from having to show that they received a

vaccine. That group is separate and apart from those that fall within Section 11(c)(1)(A), who do

have to show they received a vaccine. That there may be a separate group that does not have

prove they received a vaccine does not mean that L.S. or anyone else is precluded from

attempting to establish they received a vaccine and, thus, their claim is compensable.

That Congress intended to compensate claims for injuries that may not have been evident

at the time of the Vaccine Act’s enactment, such as in utero claims, is clear. By authorizing

additions of injuries to the table and claims for injuries beyond those listed on the table,

Congress expressed its intent to compensate injuries from vaccines in a broad and liberal fashion

and anticipated that the nature of claims would change as scientific advances and knowledge

became known. In fact, since the time of enactment, certain vaccines that were contraindicated

for pregnant women have since been recommended for them. And, certainly claims for injuries

as a result of their receipt of vaccines were intended to be covered. To deny claims of injuries

caused to Petitioner’s then unborn child would be inconsistent with the underlying purposes to

ensure payments in a generous fashion under the Act. See Nat'l Petroleum Refiners Ass'n. v.

FTC, 482 F.2d 672, 689 (D.C. Cir. 1973) (when deciding on Congressional intent, courts are

required to interpret the statute in a manner consistent with the policies behind the statute).

Because Congress intended that compensation under the Vaccine Program be flexible and

generous, permitting L.S.’s claims to be among the claims permitted is consistent with

Congressional intent.

B. L.S.’s Claim is Not Barred By Sovereign Immunity Because To Do So Would Be

Inconsistent With the Underlying Purposes of the Vaccine Act, a Remedial Statute.

L.S.’s claim is not barred by the doctrine of sovereign immunity. The doctrine of

“sovereign immunity” is a judge-made doctrine from which federal courts have derived certain

principles of statutory construction. The first principle is that the federal government, as this

nation's “sovereign,” may not be sued without its consent. Thus, the waiver of sovereign

immunity “cannot be implied but must be unequivocally expressed.” See, e.g., United States v.

Mitchell, 445 U.S. 535, 538 (1980); United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992).

The second principle is that the statutory language setting forth such a waiver is to be “construed

strictly” or “construed narrowly” in favor of the government. Nordic Village, 503 U.S. at 34;

Ardestani v. I.N.S., 502 U.S. 135, 137 (1991).

At the same time, although the doctrine of sovereign immunity is a canon of statutory

construction, a tool for interpreting the law, it cannot displace other traditional tools of statutory

construction. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008); see also Cloer II, 675

F.3d at 1358-1362. As the Federal Circuit has explained, the doctrine should not be used to bar

claims in a manner inconsistent with the text, structure and purpose of the Vaccine Act.

Zatuchni v. Sec’y of Health & Human Servs., 516 F.3d 1312, 1323 n.13 (Fed. Cir. 2008).

As already discussed, Congress intended the Vaccine Act, a remedial statute, to be

7

flexible and encompass a broad range of claims and compensate them generously. Because it is

a broad and generous remedial statute, to construe the waiver of sovereign immunity applicable

to it in such a narrow and restrictive fashion so as to preclude claims such as those made by L.S.,

would be implausible and inconsistent with Congressional intent. Id. Although as Respondent

points out, the Vaccine Act’s waiver of sovereign immunity must be “strictly construed in favor

of the sovereign,” see Respondent’s Opposition at 4, more important, it must be construed

consistent with Congress’ intent. Congress’ intent in enacting this remedial legislation was to

compensate persons injured by vaccines. To the extent L.S. can demonstrate that his injuries

were caused by the vaccine, Congress intended to compensate them. The first step is to

recognize that Congress, through a waiver of sovereign immunity, intended to permit the claim

to proceed. Consistent with the underlying purposes of the Vaccine Act, L.S.’s claim is one for

which there has been a waiver of sovereign immunity. Accord Burch v. Sec'y of Health &

Human Services, 99-946V, 2010 WL 1676767 at *7 (Fed. Cl. Spec. Mstr. Apr. 9, 2010).

C. Section 11(b) Does Not Preclude The Claim for L.S.’s Alleged Injuries As a Result

Of the Administration of the Flu Vaccine.

Section 11(b), which identifies the persons who can make claims, does not preclude

claims for injuries to both Petitioner and L.S. from proceeding. Section 11(b) identifies three

categories of individuals who may petition for compensation, i.e., (1) a person who has sustained

a vaccine-related injury; (2) the legal representative of such person if such person is a minor or is

disabled, or (3) the legal representative of any person who dies as the result of the administration

of a vaccine. 42 U.S.C. § 300aa-11(b). These three categories are connected by the term “or.”

Id.

Respondent asserts that Congress’ use of the disjunctive “or” means that Congress

intended to prohibit an individual from petitioning in two different capacities. Respondent’s

Opposition at 11. Petitioner contends that §11(b)(1)(A) is not disjunctive and “simply lists those

who may petition for compensation.” Petitioner’s Reply at 4. Petitioner asserts that if the statute

is interpreted to disallow joinder, then L.S. “would have no recourse for his vaccine-injury,” a

result inconsistent with the primary purpose of the Act. Id.

Applying the general principles of statutory construction consistent with Congressional

intent leads to the conclusion that Petitioner may serve in multiple capacities in the same case.

The general rule is that a disjunctive interpretation is to be given to the term “or” unless such a

strict grammatical construction frustrates legislative intent. Florsheim Shoe Co., Div. of Interco,

Inc. v. United State., 744 F.2d 787, 795 (Fed. Cir. 1984); see also Willis v. United States, 719

F.2d 608, 612 (2d Cir. 1983) (“It is settled that ‘or’ may be read to mean ‘and’ when the context

so indicates”). In this case, if the term “or” is read in its normal disjunctive sense, then either

L.S. or Petitioner would be left without a remedy for alleged vaccine-related injuries. Such a

strict interpretation of this section of the Vaccine Act is inconsistent with the well-recognized

Congressional intent that the statute is one that permits claims in a broad fashion. To construe

the statute in the manner Respondent asserts would result in having to choose to compensate

some but potentially not all injuries caused by the vaccine, a result contrary to Congress’ clearly

stated intent.

8

Recently, the Federal Circuit has recognized that a claim for injury compensation

survives the injured person’s death. Zatuchni¸516 F.3d at 1323. In that instance, the claim once

held by the individual is converted to a claim by the personal representative of the estate as one

standing in the shoes of the deceased. At the same time, the personal representative of the estate

may also proceed to make a claim for death benefits, where he or she stands in the shoes of the

beneficiaries of the estate. The personal representative in that case in essence made claims for

two different purposes, one being made to recover compensation for injuries caused during the

deceased’s life and the other made to recover compensation for death benefits that accrue to the

surviving beneficiaries. That situation is analogous to the situation here, where Petitioner seeks

recovery for injuries to herself and also seeks recovery for injuries on behalf of her minor child.

Consistent with Congress’ intent, L.S.’s and Petitioner’s claims should both be permitted. See

generally Figueroa v. Sec’y of Health & Human Servs., 715 F.3d 1314 (Fed. Cir. 2013)

(recognizing broad interpretation of the Vaccine Act in the context of the claims an individual

could pursue).

II. ALL CLAIMS IN CONNECTION WITH THE ADMINISTRATION OF THE

VACCINE MUST BE JOINED IN A SINGLE ACTION SO THAT JOINDER

IS PROPER.

Having determined that a claim made on L.S.’s behalf is one that may be compensable,

the special master concludes that joinder of the claims in this action is not only proper but

consistent with the Vaccine Act. Vaccine Rule permits the application of RCFC where

consistent with the Vaccine Act. Because 42 U.S.C. § 300aa-11(b)(2), the “one petition rule”

permits the filing of only one claim for each administration of a vaccine, joinder is the logical

manner to effectuate the one petition rule.

Petitioner claims that application of RCFC 20, which governs permissive joinder, applies

here. But, in actuality, RCFC 19, which governs mandatory joinder applies heree. Under Rule

19, joinder is appropriate where a court determines that the individual to be joined is

“necessary.” Id. An individual is deemed necessary if the absent person claims an interest

relating to the subject of the action and is so situated that disposing of the action in the person's

absence may as a practical matter impair or impede the person's ability to protect the interest.

United Keetoowah Band of Cherokee Indians of Okla. v. United States, 480 F.3d 1318, 1324

(Fed. Cir. 2007).

Because 42 U.S.C. § 300aa-11(b)(2) prohibits more than one petition from being filed

with respect to each administration of a vaccine, if L.S. is not a party to this case, L.S.’s ability to

recover will be impeded and impaired. L.S. will have no other means to recover. As such, L.S.

is a necessary party. Pursuant to RCFC 19, joinder is appropriate.

And, the standards governing RCFC 20 are also clearly satisfied. RCFC 20 provides that

persons “may join in one action as plaintiffs if: (A) they assert any right to relief jointly,

severally, or in the alternative with respect to or arising out of the same transaction, occurrence,

or series of transactions or occurrences; and (B) any questions of law or fact common to all

9

plaintiffs will arise in the action.”

First, both Petitioner and L.S. are claiming injury from the administration of a single

vaccine. Thus, both claims arise out of the “same transaction.” Second, as the alleged injuries

arose out of injuries that Petitioner experienced while she was pregnant with L.S., common

questions of fact relating to the administration and progressions of symptoms exist. Joinder is

also proper pursuant to RCFC 20.

CONCLUSION

For the foregoing reasons, Petitioner’s motion to join L.S. as a party is hereby

GRANTED. A separate order amending the caption shall be issued accordingly.

IT IS SO ORDERED.

/s/ Daria J. Zane

Daria J. Zane

Special Master

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