Schafer v. American Cyanamid Co. ( 1994 )


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  • April 6, 1994
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 93-1422
    MARK SCHAFER AND MELISSA SCHAFER,
    A MINOR BY AND THROUGH
    MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA
    SCHAFER,
    Plaintiffs, Appellees,
    v.
    AMERICAN CYANAMID CO., PARENT OF
    LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,
    Defendant, Appellant.
    ERRATA SHEET
    The  concurring  opinion  of   Judge  Stahl  should  be
    attached to  the opinion in  case number 93-1422  which was
    issued March 24, 1994 and should be numbered page 20.
    STAHL, Circuit Judge (concurring).  While I concur  in both
    the result  and the  reasoning of  the majority opinion,  I
    write separately to express  my concern about the potential
    threat to the vaccine compensation program.
    By virtue of the  circumscribed scope of our  authority and
    our inherent institutional limitations, we in the  judicial
    branch   must  abide  by  the  presumptions  prescribed  by
    traditional principles of statutory  construction.  At  the
    same  time,  I  cannot   ignore  the  fact  that,  although
    compelled  by  law,  the  panel's  decision  heightens  the
    tension between  the two competing purposes  of the vaccine
    compensation  program:    holding  down  vaccine prices  by
    cutting litigation  costs while ensuring  that the  injured
    are  adequately compensated.   The defendant  suggests that
    the  cost-benefit calculus counsels  a different resolution
    of the conflict in  the circumstances of cases such  as the
    present one.   Specifically, the defendant  argues that the
    increase in litigation costs associated with compensating a
    relatively  small group of  victims' family members through
    state tort systems will  place at risk a much  larger group
    of unvaccinated individuals due to price sensitivity in the
    vaccine market.   I consider this to  be an issue of  great
    importance,  apparently overlooked  at  the  time  Congress
    drafted the statute.   I respectfully suggest that  this is
    an issue which Congress may wish to revisit.
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 93-1422
    MARK SCHAFER AND MELISSA SCHAFER,
    A MINOR BY AND THROUGH
    MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA SCHAFER,
    Plaintiffs, Appellees,
    v.
    AMERICAN CYANAMID CO., PARENT OF
    LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Edward F. Harrington, U.S. District Judge]
    Before
    Breyer, Chief Judge,
    Selya and Stahl, Circuit Judges.
    J.  Peter Coll,  Jr. with whom  Charles W. Gerdts,  III, Nicole M.
    van  Ackere, Lawrence H. Cooke,  II, Donovan Leisure  Newton & Irvine,
    Thomas A. Mullen, and Fordham & Starrett were on brief for appellant.
    Walter S. Kyle for appellees.
    March 24, 1994
    BREYER,  Chief  Judge.    The  National  Childhood
    Vaccine  Injury  Act,  42  U.S.C.     300aa-1  to  300aa-34,
    provides  a special  procedure to  compensate those  who are
    injured  by certain vaccines.  The Act bars those who accept
    an award  under that  procedure from  later bringing  a tort
    suit to obtain additional  compensation.  Id.   300aa-21(a).
    The question before  us in  this appeal (under  28 U.S.C.
    1292(b)) is whether the  Act also bars the family  of such a
    person from  bringing a tort suit to obtain compensation for
    their  own, related,  injuries, in  particular, for  loss of
    companionship  or  consortium.    Assuming  that  state  law
    permits  such  suits,  we  find  nothing  in  the  Act  that
    explicitly or  implicitly bars  them.   And,  we affirm  the
    similar determination of the district court.
    I
    Background
    A
    The Statute
    The   National   Childhood   Vaccine  Injury   Act
    represents an effort to provide compensation to those harmed
    by childhood  vaccines outside the  framework of traditional
    tort law.   Congress passed the law  after hearing testimony
    1)  describing the  critical  need for  vaccines to  protect
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    children   from  disease,  2)  pointing  out  that  vaccines
    inevitably  harm a very small number of the many millions of
    people who are vaccinated, and 3) expressing dissatisfaction
    with traditional tort law as a way of compensating those few
    victims.    Injured  persons  (potential   tort  plaintiffs)
    complained about the tort law system's uncertain recoveries,
    the  high  cost  of  litigation,  and  delays  in  obtaining
    compensation.   They  argued  that government  had, for  all
    practical purposes, made vaccination obligatory, and thus it
    had  a  responsibility  to  ensure  that  those  injured  by
    vaccines were compensated.  Vaccine manufacturers (potential
    tort  defendants) complained  about litigation  expenses and
    occasional large recoveries, which caused insurance premiums
    and vaccine prices to  rise, and which ultimately threatened
    the stability of the vaccine supply.
    See  generally  National Childhood  Vaccine Injury
    Compensation Act of 1985: Hearing on S.827 Before the Senate
    Comm. on  Labor and Human  Resources, 99th Cong.,  1st Sess.
    pt.  2  (1985) [hereinafter  "Hearings  on  S.827"]; Vaccine
    Injury   Compensation:  Hearings  on   H.R.5810  Before  the
    Subcomm. on Health and the Environment of the House Comm. on
    Energy   and   Commerce,  98th   Cong.,   2d  Sess.   (1984)
    [hereinafter  "Hearings  on  H.R.5810"]; National  Childhood
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    Vaccine-Injury Compensation Act:  Hearings on S.2117  Before
    the Senate Comm.  on Labor and Human Resources,  98th Cong.,
    2d  Sess. (1984)  [hereinafter "Hearings  on S.2117"];  H.R.
    Rep.  No.  908, 99th  Cong.,  2d  Sess. (1986)  [hereinafter
    "Vaccine Act Report"], reprinted in  1986 U.S.C.C.A.N. 6344;
    Staff of the Subcomm.  on Health and the Environment  of the
    House Comm. on  Energy and Commerce,  99th Cong., 2d  Sess.,
    Childhood  Immunizations  (Comm.  Print  1986)  [hereinafter
    "Childhood Immunizations"]; Office of Technology Assessment,
    Compensation    for    Vaccine-Related    Injuries    (1980)
    [hereinafter "OTA Report"]; Dennis  J. Hauptly & Mary Mason,
    The National Childhood Vaccine Injury Act, 37 Fed. B. News &
    J. 452 (1990).
    The Vaccine  Act responds to  these complaints  by
    creating  a  remedial  system  that tries  more  quickly  to
    deliver  compensation  to   victims,  while  also   reducing
    insurance and  litigation costs for manufacturers.   The Act
    establishes a  special claims procedure involving  the Court
    of  Federal  Claims and  special masters  (a system  that we
    shall call the  "Vaccine Court").  42 U.S.C.    300aa-12.  A
    person injured by  a vaccine  may file a  petition with  the
    Vaccine Court  to obtain compensation (from  a fund financed
    by a  tax on vaccines).  Id.    300aa-11.  He need not prove
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    fault.  Nor, to prove causation, need he show more than that
    he received  the vaccine and then  suffered certain symptoms
    within a defined period of time.  Id.    300aa-13, 300aa-14.
    The Act specifies amounts  of compensation for certain kinds
    of harm (e.g., $250,000  for death, up to $250,000  for pain
    and  suffering).    Id.     300aa-15(a)(2),  (4).   And,  it
    specifies other types  of harm for which compensation may be
    awarded (e.g., medical expenses, loss  of earnings).  Id.
    300aa-15(a).
    At the same time,  the Act modifies, but  does not
    eliminate,  the  traditional  tort  system,  which  Congress
    understood  to  provide important  incentives  for  the safe
    manufacture and distribution of  vaccines.  The Act requires
    that  a person injured directly  by a vaccine  first bring a
    Vaccine Court  proceeding.  Id.    300aa-11(a)(2)(A).  Then,
    it gives that person the choice either to accept the Court's
    award and abandon his tort  rights (which the Act  transfers
    to the  federal government, id.     300aa-17), or  to reject
    the  judgment and  retain his  tort rights.   Id.     300aa-
    21(a),  300aa-11(a)(2)(A)(i).   (He can  also keep  his tort
    rights  by withdrawing  his  Vaccine Court  petition if  the
    Court  moves  too  slowly.     Id.      300aa-21(b),  300aa-
    11(a)(2)(A)(ii).)
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    The  Act  additionally   helps  manufacturers   by
    providing certain federal modifications  of state tort  law.
    For  example,  it  forbids  the award  of  compensation  for
    injuries that  flow from  "unavoidable side effects,"  id.
    300aa-22(b)(1); it frees the manufacturer from liability for
    not  providing direct warnings to an  injured person (or his
    representative), id.   300aa-22(c); it imposes a presumption
    that   compliance   with   Food   and   Drug  Administration
    requirements   means   the   manufacturer  provided   proper
    directions  and warnings,  id.    300aa-22(b)(2); it  limits
    punitive damage  awards, id.   300aa-23(d);  and it requires
    that the trial  of any tort suit take place  in three phases
    (liability; general damages; punitive damages), id.   300aa-
    23(a).
    The upshot is a new remedial system that interacts
    in a complicated way with traditional tort lawsuits.
    B
    This Case
    For  present  purposes,  the  relevant  facts  are
    simple.   Lenita  Schafer's small  child,  Melissa  Schafer,
    received  an  oral  polio  vaccine  distributed  by American
    Cyanamid  in October  1988.  Lenita  subsequently contracted
    polio  (she and  her family  think) from  Melissa's vaccine.
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    About one year later, in December 1989, all three members of
    the Schafer family (Lenita,  Melissa, and Lenita's  husband,
    Mark)  petitioned the  Vaccine Court  for compensation.   In
    April 1990, Mark and  Melissa withdrew their petitions (with
    permission  of the  Vaccine  Court) and  began this  lawsuit
    against   American   Cyanamid,    seeking   damages    under
    Massachusetts tort  law for loss  of Lenita's  companionship
    and   consortium.     See  28   U.S.C.      1332  (diversity
    jurisdiction); Fletch v. General  Rental Co., 
    421 N.E.2d 67
    ,
    70-72  (Mass.  1981).   Lenita,  who  did  not withdraw  her
    petition,  eventually accepted  a  $750,000  award from  the
    Vaccine Court  for her own  injuries, thereby giving  up her
    right  to  bring a  tort action.    At that  point, American
    Cyanamid  asked the  district  court to  dismiss Mark's  and
    Melissa's suit on the ground that Lenita's acceptance of the
    Vaccine  Court award barred not only a later tort action for
    her own injuries,  but also  a later tort  action by  family
    members for related injuries.  The district court denied the
    motion.  We  review that  denial under the  authority of  28
    U.S.C.   1292(b) (permitting appeal of  interlocutory orders
    raising certain controlling questions of law).
    II
    The Basic Argument
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    Cyanamid  concedes that  this  case  focuses  upon
    Mark's  and  Melissa's  damages, not  Lenita's;  that Lenita
    received Vaccine Court compensation for her own damages, not
    Mark's or Melissa's; and  that the Act's language explicitly
    bars Lenita, but not  Mark or Melissa, from bringing  a tort
    action to recover their own damages (which, we specify, will
    not  duplicate Lenita's).   Nonetheless,  it argues  that to
    permit Mark or Melissa  to bring their own tort  action (for
    related damages) would so seriously interfere with the Act's
    basic  purposes  that we  must  read the  Act  as implicitly
    barring those actions, just  as it explicitly bars Lenita's.
    Although Cyanamid's  counsel wants to call  its argument one
    of "interpreting the Act  in light of its basic  policy," we
    believe that "pre-emption" is a better, alternative,  label.
    The argument seems to  amount to a claim that the  state law
    that permits Mark  or Melissa to bring this  kind of suit so
    significantly interferes  with the federal Act's  ability to
    achieve   its    important   federal   purpose    that   the
    Constitution's Supremacy Clause  requires the  state law  to
    yield  to the federal  law's implicit demand.   See Michigan
    Canners & Freezers Assoc. v. Agricultural Mktg. & Bargaining
    Bd., 
    467 U.S. 461
    , 469 (1984); Hines v. Davidowitz, 
    312 U.S. 52
    , 67 (1941).  But, however one characterizes the argument,
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    it  has  two  essential  elements --  an  important  federal
    purpose and a significant state interference.  And, we shall
    try to set  forth these two elements  of Cyanamid's argument
    in  light   of  the   Act's  legislative  history,   and  as
    persuasively as possible.
    First, an important federal  purpose of the Act is
    to free  manufacturers from the specter  of large, uncertain
    tort liability,  and thereby keep vaccine  prices fairly low
    and keep manufactures in  the market.  Vaccine manufacturers
    presented Congress  with evidence that their  tort insurance
    and  litigation  costs  had  begun to  dwarf  their  vaccine
    production revenues.   See Hearings on S.827,  supra, at 240
    (discussing difficulty of obtaining insurance) (statement of
    Robert  Johnson);  Hearings  on  H.R.5810,  supra,  at   229
    (expected liability costs  hundreds of times  annual vaccine
    sales  revenue) (statement  of  Robert  Johnson);  Childhood
    Immunizations,  supra,  at  88  (expected  insurance premium
    increase  of 50 to  300 percent).   They  argued that,  as a
    result,   some   manufacturers   had  discontinued   vaccine
    production (leaving  only  a handful  of  producers),  while
    others had  raised their vaccine prices  significantly.  See
    Childhood  Immunizations, supra, at 63 (showing increases in
    DPT vaccine from  10 cents  to three dollars  per dose,  and
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    polio  vaccine from  35 cents  to a  dollar and  a half  per
    dose).
    Evidence  in  the  hearing record  indicated  that
    compensation-related   price   increases   or   manufacturer
    withdrawal would cause serious harm.  Vaccines benefit those
    who are vaccinated, and they have public benefits as well --
    when parents  vaccinate their  own children, they  also help
    stop the spread of  a disease that can injure  others.  And,
    even  though vaccines  themselves  cause a  small number  of
    serious   injuries   or   deaths,   their   widespread   use
    dramatically  reduces  fatalities.   For  example,  the  DPT
    vaccine  itself may  cause 150  or so  incidents of  serious
    neurological damage  and the polio vaccine  may itself cause
    about five annual  incidents of paralysis.   See OTA Report,
    supra, at 51.   But, before widespread vaccination, whooping
    cough, for example, killed  about 7,500 (mostly) children in
    a  single year,  diphtheria killed  about 15,000,  and polio
    injured, paralyzed,  or killed about 57,000.   See Childhood
    Immunizations,  supra, at 1, 6, 14.  Thus, despite the price
    to   be   paid   in   vaccine-caused   injuries,  widespread
    vaccination  -- (about  13.5  million annual  diphtheria and
    whooping cough  (DPT) vaccine doses, about  18 million polio
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    doses)  --  has   virtually  wiped  out   these  devastating
    diseases.
    The upshot  is that,  because vaccines  benefit so
    many (and harm so few), even small vaccine price  increases,
    if followed  by even  a small  decline in  vaccinations, can
    cause  more public harm through added  disease than the sum-
    total  of all  the  harm vaccines  themselves cause  through
    side-effects.   See, e.g.,  Hauptly &  Mason, supra,  at 452
    (recounting how,  in Japan, two deaths from DPT side effects
    led  to withdrawal of the  vaccine, which was  followed by a
    whooping cough  epidemic  that killed  forty-one  children).
    For this  kind of  reason, the  argument goes,  Congress was
    importantly motivated not only  by the desire effectively to
    compensate side-effect  victims, but  also by the  desire to
    keep  vaccine  prices fairly  low  by reducing  compensation
    costs.  See, e.g.,  Hearings on S.827, supra, at  5 (remarks
    of Sen. Hawkins); Hearings on S.2117, supra, at 5 (statement
    of  Sen.  Grassley);  Vaccine  Act Report,  supra,  at  4-7,
    reprinted in 1986 U.S.C.C.A.N. at 6345-48.
    Second,  the availability of  a state  tort remedy
    for relatives of a victim  interferes with the Act's efforts
    to lower manufacturers' costs.  The Act seeks to achieve its
    cost-reducing  purpose,  not  by  denying   compensation  to
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    victims  (indeed, it imposes a tax upon vaccines in order to
    fund  compensation), but  by  reducing  the  litigation  and
    insurance costs related to  lengthy, complex tort procedures
    and  random large  tort awards.   The Act  therefore imposes
    substantive  and procedural  limitations upon  tort actions.
    And, more importantly, it discourages victims  from bringing
    those traditional  tort cases by  providing fairly generous,
    more easily obtainable, Vaccine Court awards.   A victim who
    obtains such an  award may hesitate to give up  that bird in
    the  hand in return for a larger, but more speculative, tort
    law  award.   And, a  petitioner to  whom the  Vaccine Court
    gives  nothing may see no  point in trying  to overcome tort
    law's yet more serious obstacles to recovery.
    But, Cyanamid points out, almost every victim  has
    a family.   And, almost  every vaccine-related  injury to  a
    child will adversely  affect the  life of that  family.   In
    Cyanamid's view, if family members can bring a tort suit for
    loss of say, a  child's companionship, even after the  child
    accepts a Vaccine Court award, they will do so.
    Cyanamid then says (and this is the most difficult
    part  of  Cyanamid's argument)  that  to  permit a  victim's
    family  to bring  a tort law  case -- even  where the victim
    obtains  a Vaccine  Court  award --  threatens seriously  to
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    undermine the Act's  "cost-related" advantages.   The result
    will  be a system in  which manufacturers must  pay both the
    Vaccine Court's easily-obtained compensation awards (through
    a  tax) and also face large tort claims from family members.
    The  latter means  the very  kind of  large occasional  tort
    awards and the kind of litigation costs that  Congress hoped
    to  diminish.   Cyanamid concludes  that the  Act implicitly
    must hold family members to the election  of the physically-
    injured victim.  If that victim receives an award and can no
    longer pursue a court  claim, then neither can  the victim's
    family.
    III
    Our Response
    Cyanamid's  argument  is  not  without  force, but
    ultimately  it does not persuade  us, either as  a matter of
    statutory  interpretation or  in terms  of  pre-emption law.
    First, one  cannot easily interpret the  statute as Cyanamid
    wishes,  for the Act  has no language at  all that one might
    read as creating a  bar to the type  of suit before us.   To
    the  contrary,  the Act  subsection  that  creates the  tort
    action  bar says  that  it does  not apply  to this  kind of
    lawsuit.  The language that creates the bar,    300aa-11(a),
    says: "[n]o  person may  bring a  civil action  for damages"
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    (except in accordance  with the Act's  Vaccine-Court-related
    rules)  until a Vaccine Court petition "has been filed."  It
    then states  specifically that "this subsection"   (i.e. the
    subsection with the tort action bar):
    applies   only  to  a   person  who  has
    sustained  a  vaccine-related injury  or
    death and  who  is qualified  to file  a
    petition  for   compensation  under  the
    Program.
    42 U.S.C.   300aa-11(a)(9) (emphasis  added).  A person  "is
    qualified to file a petition" only if that person suffered a
    relevant injury or death after he or she "received a vaccine
    . . . or  contracted polio from another person  who received
    an oral polio vaccine."   Id.   300aa-11(c)(1)(A).   That is
    to say, unless a person "received a vaccine" or, like Lenita
    Schafer,  caught polio from someone who did (or is the legal
    representative of such a person), he cannot file a petition.
    See,  e.g., Head v. Secretary of Health and Human Servs., 
    26 Cl. Ct. 546
    , 547 n.1 (1992) (parent of injured child cannot
    petition except in representative capacity), aff'd, 
    996 F.2d 318
     (Fed.  Cir. 1993).   And, if he  cannot file a  petition
    with the Vaccine Court, the Act  says that its tort suit ban
    does not apply to him.
    Moreover, this same language suggests that the Act
    sees  the  tort  suit   procedural  bar  and  Vaccine  Court
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    compensation  as opposite sides of  the same coin.   Yet the
    Act  does not permit  compensation for injuries  to a family
    member  (of  the direct  victim  who  takes the  vaccine  or
    catches polio from a vaccine taker).  Indeed, it prohibits:
    compensation for other than  the health,
    education,  or welfare of the person who
    suffered the vaccine-related injury with
    respect  to  which  the compensation  is
    paid.
    
    Id.
        300aa-15(d)(2).   And, the  Vaccine Court  itself has
    interpreted   this  section   as   forbidding  payment   for
    psychological  counseling for  a victim's  family unless  it
    directly benefits the  victim herself.  See, e.g.,  Huber v.
    Secretary  of Health and Human  Servs., 
    22 Cl. Ct. 255
    , 257
    (1991); Richardson v. Secretary  of Health and Human Servs.,
    No.  90-324V,  
    1991 U.S. Cl. Ct. LEXIS 151
    , at  *18 (U.S.
    Claims  Ct., Apr. 16, 1991),  aff'd, 
    23 Cl. Ct. 674
     (1991);
    Neese  v. Secretary of Health  and Human Servs., No. 89-85V,
    
    1990 U.S. Cl. Ct. LEXIS 333
    , at  *23 (U.S. Claims Ct., Apr.
    16,  1991); see also Vire  v. Secretary of  Health and Human
    Servs., No. 90-84V, 
    1990 U.S. Cl. Ct. LEXIS 513
    ,  at *1 n.2
    (U.S. Claims Ct., Dec.  28, 1990) (Act does not  provide for
    compensation of  parents of injured child),  aff'd, 
    954 F.2d 733
     (Fed. Cir.), cert. denied, 
    112 S. Ct. 3030
     (1992); Pease
    v. Secretary  of Health and  Human Servs., No.  89-98V, 1990
    -15-
    
    15 U.S. Cl. Ct. LEXIS 64
    , at *5 (U.S. Claims Ct., Feb. 1, 1990)
    (same);  cf.  42  U.S.C.    300aa-14  (list  of  compensable
    injuries containing no reference to the kind of harm here at
    issue).
    Second, the  Act's  legislative history  does  not
    point directly toward the "policy" conclusion  that Cyanamid
    wishes  us to draw.  The legislative history says nothing at
    all  about family members'  tort suits.   Its  discussion of
    general purposes, as we have pointed out above, see pp. 2-4,
    supra,  indicates  two  major  purposes,  namely,  providing
    compensation for victims and  maintaining low vaccine costs.
    How  does Cyanamid's  argument take  account of  the "victim
    compensation" objective?  Because the Vaccine Court does not
    provide a  remedy for  family members, to  accept Cyanamid's
    argument would require us to conclude that Congress, without
    anyone saying a  word about it,  intended to deprive  family
    members of all compensatory remedies.  At the same time, the
    second  leg  of  Cyanamid's   argument  --  the  claim  that
    permitting this kind  of suit would significantly  interfere
    with Congress's  cost control  objective -- has  no specific
    empirical support in the  legislative record; and, the claim
    does not prove itself.  Given the difficulties of prevailing
    in  a traditional tort suit,  it is, at  least, unclear that
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    plaintiff families --  particularly families of  victims who
    have  already received  Vaccine  Act  compensation  --  will
    prevail so  often, and  obtain verdicts  so large,  that the
    jury  awards,   or  the   threat  of  those   awards,  would
    significantly  raise   vaccine   prices  or   retard   their
    distribution.
    The legislative record's  silence may reflect  the
    vaccine manufacturers' view that family suits do  not pose a
    particular  practical  problem,  or   the  failure  of   any
    interested person to think about the matter, or a calculated
    decision   by  everyone   to   ignore  the   issue  in   the
    congressional  hearings  for fear  of upsetting  a carefully
    crafted compromise.   But, regardless of the  reason for the
    silence, our very uncertainty  about how Congress would have
    answered the question means that Cyanamid has failed to show
    that this kind of  action significantly undermines the Act's
    given objectives.
    Third, to  accept Cyanamid's argument --  that the
    Schafer family cannot collect both a Vaccine Court award and
    loss  of consortium  tort damages  -- would  create judicial
    inconsistency.  The Vaccine Court has held that a parent can
    both  obtain a loss of consortium "award" from a state court
    (or the settlement  of a  state law claim)  and also  obtain
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    17
    compensation for her vaccinated (and injured) child from the
    Vaccine  Court.   Abbott v.  Secretary  of Health  and Human
    Servs.,  No. 90-1673V 1992 Cl. Ct. LEXIS 473, rev'd on other
    grounds, 
    27 Fed. Cl. 792
     (1993); cf. Massing v. Secretary of
    Health and Human  Servs., 
    926 F.2d 1133
    ,  1135-36 (Fed. Cir.
    1991);  Head v. Secretary of Health and Human Servs., 
    26 Cl. Ct. 546
    , 549 (1992),  aff'd, 
    996 F.2d 318
     (Fed.  Cir. 1993).
    The Vaccine  Court cases  all involve families  that brought
    the tort suit first, before the child accepted Vaccine Court
    compensation.   But, it is difficult to find any policy that
    would justify permitting a family to bring a suit before the
    Vaccine Court  awards compensation  to a direct  victim, but
    not after.
    Fourth, even were the first three reasons far less
    persuasive, a  host of  legal  interpretive doctrines  would
    prevent us from  finding in Cyanamid's  favor in respect  to
    any  form of  pre-emption.   Pre-emption  law, for  example,
    cautions us  against finding  that a congressional  act pre-
    empts a state law  through silence.  Maryland  v. Louisiana,
    
    451 U.S. 725
    , 746 (1981).  The negative presumption is even
    stronger  when  the state  law  at  issue creates  a  remedy
    unavailable under  federal  law.    Silkwood  v.  Kerr-McGee
    Corp., 
    464 U.S. 238
    , 251 (1984); United Construction Workers
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    v. Laburnum Construction Corp., 
    347 U.S. 656
    , 663-64 (1954);
    Rice v. Santa Fe  Elevator Corp., 
    331 U.S. 218
    ,  230 (1947).
    And, it is  virtually conclusive when Congress,  in the very
    statute  at  issue,  explicitly pre-empts  other  state  law
    remedies  but not  the remedy  at issue.   See  Cipollone v.
    Liggett Group, Inc., 
    112 S. Ct. 2608
    , 2618 (1992); 42 U.S.C.
    300aa-22,  300aa-23 (precluding certain  kinds of damages
    awards  in state  law suits; creating  three-stage procedure
    for   trying  state   law  tort   actions;   specifying  the
    availability of certain defenses;  explicitly "preempt[ing]"
    any state law that  would prohibit a person from  bringing a
    tort action not barred by the Act); see also Greenwood Trust
    Co.  v. Commonwealth of Mass.,  
    971 F.2d 818
    ,  823 (1st Cir.
    1992)  ("In  recent  days,  the   High  Court  has  made  it
    pellucidly clear that, whenever Congress includes an express
    preemption  clause  in  a  statute, judges  ought  to  limit
    themselves to the preemptive reach of that provision without
    essaying any further analysis  under the various theories of
    implied preemption."), cert. denied, 
    113 S. Ct. 974
     (1993).
    We need not rely upon these presumptions, however.
    Nor  need  we  rely  upon the  fact  that  numerous,  rather
    analogous, state workers'  compensation statutes  explicitly
    say that they  pre-empt consortium actions when  it is their
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    intent to do so.  See, e.g., Ala. Code   25-5-53; Conn. Gen.
    Stat.  52-555d; Mass.  Gen. L.  ch. 152.   It is  sufficient
    that the Act's  purposes do not point  strongly towards pre-
    emption, and the Act's language suggests that pre-emption is
    not intended.  Consequently, Cyanamid's arguments are better
    made to  Congress than  to this  court.   We agree with  the
    district court that  the Act, as currently written, does not
    bar  the suit before us (described on pp. 7-8, supra).  And,
    its order refusing to dismiss the case, therefore, is
    Affirmed.
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    STAHL, Circuit Judge (concurring).   While  I
    concur in both the result and the reasoning of the majority
    opinion, I write separately to express my concern about the
    potential threat to the vaccine compensation program.
    By  virtue of the circumscribed  scope of our
    authority and our inherent institutional limitations, we in
    the  judicial   branch  must  abide  by   the  presumptions
    prescribed   by   traditional   principles   of   statutory
    construction.  At the  same time, I cannot ignore  the fact
    that,  although  compelled  by  law,  the  panel's decision
    heightens the tension between the two competing purposes of
    the  vaccine compensation  program:   holding  down vaccine
    prices by cutting litigation  costs while ensuring that the
    injured are adequately compensated.  The defendant suggests
    that  the   cost-benefit  calculus  counsels   a  different
    resolution of  the conflict  in the circumstances  of cases
    such  as  the present  one.    Specifically, the  defendant
    argues that  the increase  in  litigation costs  associated
    with  compensating  a  relatively small  group  of victims'
    family  members through  state tort  systems will  place at
    risk a much larger group of unvaccinated individuals due to
    price sensitivity  in the vaccine market.   I consider this
    to be  an issue of great  importance, apparently overlooked
    at  the time Congress drafted the  statute.  I respectfully
    suggest  that this is an  issue which Congress  may wish to
    revisit.
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