Zatuchni v. Secretary of Health and Human Services

This case presents a simple question: whether a claim for compensation for a vaccine-related injury under the National Childhood Vaccine Injury Act (the “Vaccine Act”), 42 U.S.C. §§ 300aa-10, to -34 (2000), survives the death of a petitioner. Without any basis in the statutory text, the majority holds that the Vaccine Act provides for survivorship. In my view, the Vaccine Act is entirely silent as to issues of survivorship. The majority’s approach is contrary to established authority recognized explicitly in eight circuits, and implicitly by the Supreme Court, that surviv-orship is determined…