Federal Vaccine Act does not preclude civil remedy, Oregon Court of Appeals holds

By Matt Hedberg
October 13, 2008

Last week, the Oregon Court of Appeals held the federal Vaccine Act, which creates a special program for compensation for a vaccine-related injury or death, does not bar family members of a person who has suffered a vaccine-related death from filing a civil action seeking damages for their own injuries.

In reaching its decision in Hobart v. Holt, the Court of Appeals relied on the text of 42 U.S.C. section 300aa-11(a)(9), which states that the Vaccine Act program provides compensation only to persons who have themselves sustained a vaccine-related injury or death.  Based on that statute, the Court held the Vaccine Act is not preclusive where the legal representative of an injured person has accepted compensation under the program for the decedent's losses and a subsequent civil action seeks to recover only for the derivative loss suffered by others.

The Court also rejected the argument that Oregon's wrongful death statute prohibits the decedent's children from bringing a civil action since they already received compensation via the Vaccine Act benefits paid to the decedent's estate.  A wrongful death action is a derivative action because the decedent's children may bring an action only if the decedent might have maintained an action had the decedent lived.  The defendants argued the decedent could not have maintained an action against them for her injuries had she lived because her estate accepted the judgment issued under the Vaccine Act program.  In interpreting the wrongful death statute, the Court noted that the temporal benchmark for determining the decedent's ability to maintain an action is at the time of her death.  Thus, it is not relevant that the decedent's estate later elected to accept compensation from the Vaccine Act program, because at the time of her death nothing would have precluded her from bringing an action against the defendants for her vaccine-related death. 


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