Tembenis v. Secretary of Health & Human Services ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
HARRY TEMBENIS AND GINA TEMBENIS,
ADMINISTRATORS OF THE ESTATE OF ELIAS
TEMBENIS, DECEASED,
Petitioners-Appellees,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellant.
______________________
2013-5029
______________________
Appeal from the United States Court of Federal
Claims in No. 03-VV-2820, Senior Judge James F. Merow.
______________________
Decided: October 28, 2013
______________________
JOSEPH PEPPER, Conway, Homer & Chin-Caplan, P.C.,
of Boston, Massachusetts, argued for petitioners-
appellees. On the brief was RONALD C. HOMER.
MICHAEL E. ROBINSON, Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for the respondent-
appellant. With him on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, and
MICHAEL S. RAAB, Attorney. Of counsel was RYAN D.
PYLES, Attorney.
2 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
______________________
Before O’MALLEY, CLEVENGER, and TARANTO, Circuit
Judges.
CLEVENGER, Circuit Judge.
This is a National Childhood Vaccine Injury Act of
1986 (“Vaccine Act”) case. See 42 U.S.C. § 300aa-1 et seq.
The question before us is whether the estate of a petition-
er who dies prior to judgment is entitled to compensation
for lost future earnings. The United States Court of
Federal Claims (“Claims Court”) answered in the affirma-
tive. Tembenis v. Sec’y Health & Human Servs., No. 03-
2820V (Fed. Cl. Oct. 19, 2012) (“Trial Op.”). Because
eligibility for future lost earnings under § 300aa-
15(a)(3)(B) requires the person suffering from a vaccine-
related injury to survive the compensation judgment, we
reverse.
BACKGROUND
When he was approximately four months old, Elias
Tembenis received a Diptheria-Tetanus-acellular-
Pertussis (“DTaP”) vaccine. Elias developed a seizure
disorder shortly afterwards, and his parents, Harry and
Gina Tembenis, filed a Petition for Vaccine Compensation
on his behalf. While the petition was pending, Elias died
as a result of his seizure disorder at the age of seven. The
caption of the case was then amended to name Harry and
Gina Tembenis, administrators of Elias’ estate, as peti-
tioners.
The Tembenis’ petition proceeded, and, in 2010, a spe-
cial master determined that the DTaP vaccine caused
Elias’ epilepsy and resulting death. Tembenis v. Sec’y of
Health & Human Servs., No. 03-2820V, 2010 WL 5164324(Fed. Cl. Spec. Master Nov. 29, 2010). The Secretary of
Health and Human Services (“Secretary”) and the estate
agreed that the Secretary would pay the $250,000 death
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 3
benefit under § 300aa-15(a)(2) and would also pay
$175,000 for actual pain and suffering and past unreim-
bursable expenses under §§ 300aa-15(a)(1) and (a)(4). The
parties did not agree, however, on whether Elias’ estate
was entitled to recover future lost earnings under
§ 300aa-15(a)(3)(B). The special master, after receiving
briefing from the parties on this issue and relying on our
decisions in Zatuchni v. Sec’y Health & Human Servs.,
516 F.3d 1312 (Fed. Cir. 2008), and Edgar v. Sec’y of
Health & Human Servs., 989 F.2d 473 (Fed. Cir. 1993),
determined that the estate was entitled to future lost
earnings. Tembenis v. Sec’y Health & Human Servs., No.
03-2820V, 2011 WL 5825157 (Fed. Cl. Spec. Master Oct.
26, 2011).
The Secretary reserved her right to challenge the fu-
ture lost earnings award, but proffered the sum of
$659,955.61 as a measure of the lost earnings. The peti-
tioners agreed, and the special master awarded petition-
ers a lump sum payment of $1,084,955.61, the sum of the
$425,000 in uncontested awards and the $659,955.61 in
contested future lost earnings. 1
The Secretary subsequently filed a Motion for Review
with the Claims Court, limited to the question of whether
the Tembenis estate is entitled to any future lost earnings
award. The Secretary made no challenge to the special
master’s causation finding or to the awards of the death
benefit, pain and suffering, and past unreimbursable
expenses. The Claims Court also read our decisions in
Zatuchni and Edgar to support recovery for lost future
earnings for a child who died as a result of his vaccine-
1 Our court has already affirmed the award of
$425,000 in uncontested damages. See Tembenis v. Sec’y
Health & Human Services, No. 2013-5029 (Fed. Cir. May
16, 2013) (order granting partial summary affirmance to
petitioners-appellees).
4 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
related injury before a compensation judgment was en-
tered, and thus affirmed the special master’s future lost
earnings award. Trial Op. at 2-3.
The Secretary now appeals to our court, again arguing
that an estate cannot recover lost future earnings under
§ 300aa-15(a)(3)(B) when the person injured by a vaccine
dies before entry of a compensation judgment. We have
jurisdiction under 42 U.S.C. § 300aa-12(f), and, as this is
purely a question of statutory interpretation, we review
the decision of the Claims Court de novo, Locane v. Sec’y
Health & Human Servs., 685 F.3d 1375, 1379 (Fed. Cir.
2012). Before this case, no compensation award under the
Vaccine Act had allowed future lost earnings for the
estate of a deceased petitioner. The interpretive question
before the court is thus one of first impression.
DISCUSSION
Congress enacted the Vaccine Act to stabilize the vac-
cine market and facilitate compensation for vaccine-
related deaths and injuries. See Lowry v. Sec’y Health &
Human Servs., 189 F.3d 1378, 1381 (Fed. Cir. 1999).
Among other things, the Vaccine Act established the
National Vaccine Injury Compensation Program, see 42
U.S.C. § 300aa-10(a), which provides compensation for
vaccine-related injuries or death through a no-fault sys-
tem “‘designed to work faster and with greater ease than
the civil tort system.’” Bruesewitz v. Wyeth LLC, 131 S.
Ct. 1068, 1073 (2011) (quoting Shalala v. Whitecotton, 514
U.S. 268, 269 (1995)).
A person injured by a vaccine, or his or her legal rep-
resentative, may file a petition for compensation in the
Claims Court, naming the Secretary as respondent. A
special master then “makes an informal adjudication of
the petition,” Bruesewitz, 131 S. Ct. at 1073, subject to
further review by a judge of the Claims Court and our
court, see 42 U.S.C. § 300aa-12(e)(2) and (f).
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 5
The Vaccine Act provides several forms of compensa-
tion to those who show that they were injured by a vac-
cine. See 42 U.S.C. §§ 300aa-15(a)(1) through (a)(4).
Because the different forms of compensation under
§ 300aa-15(a) are interrelated, we consider each to deter-
mine if subsection (a)(3)(B) is restricted as the Secretary
asserts.
Under subsection (a)(1), a vaccine-injured person may
recover both past and predicted “actual unreimbursable
expenses” which result from the vaccine-related injury.
§ 300aa-15(a)(1). This includes a vast array of expenses,
such as those “for diagnosis, medical or other remedial
care, rehabilitation, developmental evaluation, special
education, vocational training and placement, case man-
agement services, counseling, emotional or behavioral
therapy, residential and custodial care and service ex-
penses, special equipment, related travel expenses, and
facilities determined to be reasonably necessary.” Id. at
§ 300aa-15(a)(1)(B)(iii). An award under (a)(1) is intended
to alleviate the financial burden of the petitioner’s medi-
cal treatment. The estate of a person who is dead at the
time of the award can recover past expenses, but obvious-
ly has no future treatment-related expenses. Zatuchni,
516 F.3d at 1318-19.
Subsection (a)(4) allows recovery for “actual and pro-
jected pain and suffering and emotional distress from the
vaccine-related injury.” 42 U.S.C. § 300aa-15(a)(4). An
award under (a)(4) ameliorates, to some extent, the in-
jured person’s pain and suffering. As under subsection
(a)(1), when a claimant is deceased at the time of a com-
pensation award, the estate can recover for pain and
suffering and emotional distress from the time of the
injury until the date of death. See Zatuchni, 516 F.3d at
1318-19. Taken together, both (a)(1) and (a)(4) are at-
tempts to make the injured person whole.
6 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
Similarly, subsection (a)(3) is also designed for a com-
pensatory purpose. Under (a)(3), a vaccine-injured person
may recover lost earnings. Subsection (a)(3) provides:
(A) In the case of any person who has sustained a
vaccine-related injury after attaining the age of 18
and whose earning capacity is or has been im-
paired by reason of such person’s vaccine-related
injury for which compensation is to be awarded,
compensation for actual and anticipated loss of
earnings determined in accordance with generally
recognized actuarial principles and projections.
(B) In the case of any person who has sustained a
vaccine-related injury before attaining the age of
18 and whose earning capacity is or has been im-
paired by reason of such person’s vaccine-related
injury for which compensation is to be awarded
and whose vaccine-related injury is of sufficient
severity to permit reasonable anticipation that
such person is likely to suffer impaired earning
capacity at age 18 and beyond, compensation after
attaining the age of 18 for loss of earnings deter-
mined on the basis of the average gross weekly
earnings of workers in the private, non-farm sec-
tor, less appropriate taxes and the average cost of
a health insurance policy, as determined by the
Secretary.
42 U.S.C. § 300aa-15(a)(3). Recovery for past and future
lost earnings is compensation for the lost wages which
would have otherwise provided the income necessary to
sustain the person. See Sarver v. Sec’y Health & Human
Servs., No. 07-307V, 2009 WL 8589740, at *10 (Fed. Cl.
Spec. Master Nov. 16, 2009).
Subsection (a)(3) treats those over 18 differently from
those under 18. Persons over 18 may recover both “actual
and anticipated” lost earnings. § 300aa-15(a)(3)(A). By
allowing recovery for actual as well as anticipated future
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 7
earnings, subsection (a)(3)(A) contemplates that a person
who was injured by a vaccine after attaining the age of 18
could have entered or remained in the workforce. The lost
earnings award is tailored to the individual “in accord-
ance with generally recognized actuarial principles and
projections.” Id. Actual lost earnings are available to an
estate and may be recovered for the time between the
injury and the date of death. Zatuchni, 516 F.3d at 1315.
Anticipated lost earnings are available to those who are
alive at the time of the award and are expected to suffer
from a lost earning capacity going forward, but death
terminates any anticipation of future lost earnings.
For persons under 18, subsection (a)(3)(B) sets forth
another inquiry. In order to be eligible for lost earnings,
the minor must have an injury: (1) which is vaccine-
related; (2) which impaired the minor’s earning capacity;
and (3) which is “of sufficient severity to permit reasona-
ble anticipation that such person is likely to suffer im-
paired earning capacity at age 18 and beyond.” 42 U.S.C.
§ 300aa-15(a)(3)(B). In other words, the court asks how
the vaccine-related injury will affect the person’s earning
capacity when he or she reaches age 18. If the court
concludes that a minor is indeed suffering a vaccine-
related injury, which impairs his or her earning capacity,
and the minor’s earning capacity is likely to remain
impaired at age 18 and beyond, the court awards an
amount “determined on the basis of the average gross
weekly earnings of workers in the private, non-farm
sector . . . as determined by the Secretary.” Id. A person
who is injured before 18 is only eligible for “compensation
after attaining the age of 18.” Id. In other words, subsec-
tion (a)(3)(B) only allows recovery of future lost earnings.
Because the statutory language does not expressly re-
quire that a claimant injured by a vaccine before the age
of 18 be alive to receive future lost earnings, the appellees
argue that no such restriction should be read into the
statute. But the words of the statute also do not expressly
8 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
state that an estate can recover for future lost earnings of
a decedent. An interpretive issue thus exists within the
statute. The Secretary fairly states the issue as whether
compensation for lost future earnings under subsection
(a)(3)(B) is limited to claimants who are alive at the time
a judgment of compensation is entered.
The statute refers to the impairment of future earn-
ings capacity, not to the termination of such capacity, and
thus assumes that the claimant has some potential capac-
ity to earn. “Impaired” thus points to the diminished
earnings capacity of a living person, not the hypothetical
earning capacity of a deceased person. It is presumed that
a person who is alive at the time a future lost earnings
compensation award is made would have had an earning
capacity as of age 18 but for the vaccine-related injury.
The statute thus predicts future lost earnings to compen-
sate for life beyond the age of 18. Where a claimant is
deceased, however, the same prediction cannot rationally
be made. Subsection (a)(3)(B) presupposes an expectation
of future earnings to be received after attaining the age of
18. When the claimant dies before compensation is
awarded, there is no reasonable expectation that the
claimant would attain the age of 18. We thus conclude
that the most natural reading of subsection (a)(3)(B) is to
limit the eligibility for lost future earnings to persons who
are alive at the time the compensation award is made.
Our interpretation of subsection (a)(3)(B) is in harmo-
ny with subsection (a)(3)(A), which as noted above pro-
vides compensation for loss of earnings for persons
injured by a vaccine after attaining the age of 18 in two
categories, actual and anticipated. An anticipated loss of
future earnings for a person over age 18 looks beyond
previous actual earnings to the future, a prediction that
cannot reasonably be made if the claimant is deceased at
the time the prediction is made. Entitlement to an award
of future lost earnings depends upon the claimant being
alive at the time the compensation judgment is entered.
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 9
Aside from the language of subsection (a)(3)(B) itself,
other sections of the Vaccine Act support our interpreta-
tion. Another subsection of § 300aa-15, subsection
(f)(4)(A), directs payment to be made “on the basis of the
net present value of the elements of the compensa-
tion . . . in a lump sum.” When awarding lost future
earnings to a living minor, the special master calculates
“the present value of the expected future stream of earn-
ings that has been lost.” Edgar, 989 F.2d at 476. The
award is not contingent on the petitioner living to 18, and
the petitioner does not wait until age 18 to receive the
lump sum. Id. at 477. However, a deceased petitioner has
no post-18 “expected future stream of earnings” to be
awarded. The present value of the expected future stream
of earnings is zero.
Looking beyond § 300aa-15, 42 U.S.C. § 300aa-
13(b)(1) instructs the special master to consider “the
entire record and the course of the injury, disability,
illness, or condition until the date of the judgment of the
special master or court” when awarding compensation.
See also McAllister v. Secretary of Health & Humans
Services, 70 F.3d 1240, 1243 (Fed. Cir. 1995) (interpreting
§ 300aa-13(b)(1) to require the special master to take any
changes in the petitioner’s condition into account when
awarding damages). Awarding the petitioners both lost
future earnings and a death benefit would contravene
§ 300aa-13(b)(1). In order to award lost future earnings,
the special master would have to consider Elias’ injury up
to a point just prior to his death. That snapshot of Elias’
condition would not entitle Elias to a death benefit. In-
stead, to receive the death benefit, the special master
would have to consider the course of Elias’ injury to a
point post-death. Essentially, the Tembenis’ are asking
that the special master take two snapshots of Elias’
condition: one just prior to death and one just after death.
This approach would contradict § 300aa-13(b)(1) and
McAllister, both of which require the special master to
10 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
consider “the entire record and course of the injury” up to
the date of compensation judgment. See also Sarver, 2009
WL 8589740 at *8-9.
The last form of compensation available under the
Vaccine Act is the so-called death benefit under § 300aa-
15(a)(2). Id. (“In the event of a vaccine-related death, an
award of $250,000 for the estate of the deceased.”). This
fixed amount is for the benefit of the person’s estate. See
Figueroa v. Sec’y Health & Human Servs., 715 F.3d 1314,
1323-24 (Fed. Cir. 2013) (explaining the legislative history
of § 300aa-15(a)(2)). Obviously, a person who is alive at
the time of the award cannot recover under (a)(2). Subsec-
tion (a)(2) is the only type of compensation that is not
designed to reimburse or replace an injured person’s own
losses arising from his or her vaccine-related injury. Put
simply, except for the death benefit of $250,000, under the
Vaccine Act’s entitlements to compensation, no element of
future damages survives a claimant’s death.
Our analysis of the different forms of compensation
available under § 300aa-15(a) is consistent with tort law
principles. Generally, the estate of a person who dies may
seek compensation on two related fronts. First, compensa-
tion under a wrongful death statute is designed to com-
pensate the survivors or the estate of the deceased for
losses they have sustained. Second, the estate may also
pursue, under a survival statute, damages which the
decedent could have recovered had he lived. See 1 Speiser
& Rooks, RECOVERY FOR WRONGFUL DEATH § 1:13;
RESTATEMENT (SECOND) OF TORTS § 925 & cmt. a. (1979).
Thus, “[i]n a survival action, a claim for lost earnings
embraces only the earnings lost up to the time of death.”
Speiser & Rooks at § 1:14, citing Jones v. Flood, 716 A.2d
285 (Md. 1998); see also RESTATEMENT (SECOND) OF TORTS
§ 926 & cmt. a. (1979) (“Under statutes providing for the
survival or revival of tort actions . . . the death of the
injured person limits recovery for damages for loss or
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 11
impairment of earning capacity, emotional distress and
all other harms, to harms suffered before the death.”).
Future lost earnings are then recovered under a wrongful
death statute. See RESTATEMENT (SECOND) OF TORTS § 925
cmt. b. (1979).
Applying these concepts to the Vaccine Act, compen-
sation under §§ 300aa-15(a)(1), (3), and (4) is analogous to
recovery under a survival statute, while § 300aa-15(a)(2)
aligns to a wrongful death statute. The recovery under
§§ 300aa-15(a)(1), (3), and (4) is specific to the injured
person, while 15(a)(2) is an award “for the estate of the
deceased.” Id. § 300aa-15(a)(2). As explained above, an
estate recovers all past damages under the survival
statutes to compensate for losses personal to the de-
ceased. Compensation for lost future earnings of a de-
ceased would only benefit the estate, not the deceased.
Thus, when the vaccine-injured person dies as a result of
the vaccine before a compensation judgment is made, an
estate’s recovery of both the set $250,000 death benefit
under § 300aa-15(a)(2) and future lost earnings under
§ 300aa-15(a)(3)(B) would be duplicative, whereas an
estate’s recovery of a death benefit and actual lost earn-
ings would not.
This interpretation is also consistent with the availa-
bility of recovery under other federal tort liability
schemes. For example, the Jones Act, 46 U.S.C. § 30104,
which incorporates the Federal Employers’ Liability Act
(“F.E.L.A.”), 45 U.S.C. § 51 et seq., provides that a sea-
man’s right of action for injuries due to negligence sur-
vives to the seaman’s personal representative. However,
the Supreme Court in Miles v. Apex Marine Corp., deter-
mined that the estate of a deceased seaman could not
recover lost future earnings because it would “be duplica-
tive of recovery by dependents for loss of support in a
wrongful death action.” 498 U.S. 19, 35 (1990). The court
went on to note that “the considered judgment of a large
majority of American legislatures is that lost future
12 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
income is not recoverable in a survival action.” Id.; see
also Michigan Central R.R. v. Vreeland, 227 U.S. 59(1913) (interpreting F.E.L.A.).
The petitioners argue that our interpretation of
§ 300aa-15(a)(3)(B) conflicts with our prior decisions in
Zatuchni and Edgar. Zatuchni, 516 F.3d 1312; Edgar, 989
F.2d 473. As noted above, both the special master and the
Claims Court understood Zatuchni and Edgar to support
lost future earnings compensation in this case. We do not
agree. Both Zatuchni and Edgar are fully consistent with
our interpretation of § 300aa-15(a)(3).
In Zatuchni we held that an estate may recover both
the death benefit under § 300aa-15(a)(2) and “compensa-
tion . . . for [] vaccine-related injuries during [the injured
person’s] lifetime, including actual expenses incurred,
pain and suffering, and lost income between the time of the
vaccination and [] death.” Zatuchni, 516 F.3d at 1315(emphasis added). In Zatuchni, the petitioner, Ms.
Snyder, who was forty-five years old when she received
the measles, mumps, and rubella vaccine at issue, died as
a result of her vaccine-related injury while her petition
was pending. Id. at 1314. We rejected the Secretary’s
argument that Ms. Snyder’s estate could recover no more
than the death benefit under § 300aa-15(a)(2), and
awarded recovery for past expenses and losses incurred by
Ms. Snyder before her death. Zatuchni, as executrix of the
estate, sought compensation for actual amounts that Ms.
Snyder would have earned, absent her vaccine-related
injury, during the period between her injury in 1992 and
her death in 2005. This limited past earnings recovery is
consistent with the Zatuchni’s rationale for allowing an
estate to recover compensation in addition to the death
benefit—to make the estate of the deceased whole.
Zatuchni, 516 F.3d at 1318-19 (“Put simply, the fact that
a vaccine-related death followed a vaccine-related injury
in a particular case does not alter the fact that certain
expenses were incurred, wages lost, or pain and suffering
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 13
endured in the interim, and these damages are no less
related to or caused by a vaccine-related injury within the
meaning of subsections (a)(1), (3), and (4) simply because
the vaccine-injured person in question is no longer liv-
ing.”). Thus, in Zatuchni our analysis was limited to
whether an estate could recover past lost earnings, not
future lost earnings.
In Edgar, we were asked to evaluate the calculation of
the amount of lost future earnings awarded by the Claims
Court. 989 F.2d at 473. At the time of her compensation
award, Jamie Edgar, approximately age 9, was, as a
result of her vaccine-related injury, “in a coma and de-
pend[ed] entirely on hospital staff for her continued care
and well-being.” Id. at 475. The special master found that
Jamie’s lost earnings due to her impairment aggregated
to $1,649,119.51 over her expected work-life. Id. The
Claims Court affirmed the special master’s award of
$127,048.00 for lost future earnings, which represented
the price of an annuity 2 which was contingent on two
conditions: (1) no payments would be made if Jamie died
before reaching the age of 18, and (2) payments under the
annuity would cease on Jamie’s death, even if the full
amount of $1.6 million had not been paid. Id. We rejected
this conditional approach, because “nothing in [§ 300aa-
15(a)(3)(B)] permits the compensation award to be contin-
gent upon the child reaching age 18. In addition, nothing
in [§ 300aa-15(a)(3)(B)] authorizes the amount of compen-
sation to be contingent upon the actual, post-injury life of
the injured child.” Id. at 477.
The circumstances of Jamie in Edgar and Elias in the
case before us are both tragic, but there is a key differ-
2 Under the Vaccine Act, future earnings damages
are reduced to their net present value and the special
master may order the purchase of an annuity for the
benefit of the petitioner. See 42 U.S.C. § 300aa-15(f)(4)(A).
14 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
ence: Jamie was alive, albeit in a coma, at the time of her
award, and Elias was not. As the circumstances stood,
Jamie had a foreseeable need for earnings to provide for
her continued living, even if she may never actually
recover from her coma and if she may not actually live to
the age of 18, while Elias, being deceased, has no similar
foreseeable need. On the other hand, Jamie was not
entitled to the death benefit under § 300aa-15(a)(2),
however unlikely her survival may be from the coma,
while Elias’ estate has recovered under that subsection.
Moreover, Edgar was limited to the question of calculat-
ing the net present value of a lost earnings award, not
whether the petitioner was entitled to the award in the
first place. Edgar neither mandates nor prohibits future
lost earnings in this case.
* * *
The Vaccine Act involves a number of compromises
made by Congress in creating the program. In exchange
for reduced standards of proof and less adversarial pro-
ceedings, the Vaccine Act sets the death benefit at
$250,000, without requiring proof of actual wrongful
death damages. 42 U.S.C. § 300aa-15(a)(2). Nonetheless,
the $250,000 amount set in 1986 may no longer be an
appropriate amount for a death benefit. The original
version of the Vaccine Act adopted in November 1986
included a provision which would have adjusted the death
benefit for inflation. See National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, § 2118, 100 Stat.
3743 (1986). That provision was repealed in December
1987. See Omnibus Budget Reconciliation Act of 1987,
Pub. L. No. 100-203, Title IV, § 4303(d)(2)(B), 101 Stat.
1330 (1987). Attempts have also been made to increase
the death benefit. See National Vaccine Injury Compensa-
tion Program Improvement Act of 2002, H.R. 3741, 107th
Cong. § 3 (2002) (increasing death benefit from $250,000
to $300,000); Improved Vaccine Affordability and Availa-
bility Act, S. 2053, 107th Cong. § 207 (2002) (increasing
HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN 15
death benefit to $350,000). 3 In a 2002 hearing, Congress-
man Burton opined that his proposal “increased the
amount of death benefits from 250,000 to 300,000, and it
hasn’t been increased for more than a decade. Inflation
alone would require that change . . . .” Continuing Over-
sight of the National Vaccine Injury Compensation Pro-
gram: Hearing before the H. Comm. on Gov’t Reform,
107th Cong. 140 at 76 (2002) (statement of Rep. Dan
Burton, Chairman H. Comm. on Gov’t Reform). We cannot
disturb the legislative choices Congress made in adopting
this compensation scheme. Arguments for increasing the
death benefit available under the Vaccine Act are proper-
ly addressed Congress.
CONCLUSION
The Tembenis estate has received compensation un-
der §§ 300aa-15(a)(1), (a)(2), and (a)(4). Because the
Vaccine Act precludes an award of future lost earnings to
an estate of a petitioner who dies prior to the compensa-
tion judgment, we reverse the decision of the Claims
Court allowing the Tembenis estate to recover lost future
earnings under § 300aa-15(a)(3)(B).
REVERSED
3 Other similar bills have been introduced. See Na-
tional Vaccine Injury Compensation Program Improve-
ment Act of 2003, H.R. 1349, 108th Cong. § 3 (2003)
(increasing the death benefit to $300,000); National
Vaccine Injury Compensation Program Improvement Act
of 2005, H.R. 1297, 109th Cong. § 3 (2005) (same); Na-
tional Vaccine Injury Compensation Program Improve-
ment Act of 2008, H.R. 6391, 110th Cong. §3 (2008)
(same); National Vaccine Injury Compensation Program
Improvement Act of 2009, H.R. 2459, 111th Cong. § 3
(2009) (same).
16 HARRY TEMBENIS v. SECRETARY OF HEALTH AND HUMAN
COSTS
No costs.