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                    Vaccine Victim?

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================================================================
SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES v. WHITECOTTON
et al.
Docket 94-372 -- Decided April 18, 1995
================================================================

Respondents, Margaret Whitecotton and her parents, filed a claim for
compensation under the National Childhood Vaccine Injury Act, alleging
that Margaret had suffered encephalopathy as a result of her
vaccination against diphtheria, pertussis, and tetanus (DPT). Under
the Act, a claimant who, like Margaret, does not attempt to prove
actual causation must make out a prima facie case by showing that "the
first symptom or manifestation of the onset...of any...[listed]
condition...occurred within the time period after vaccine
administration set forth in the Vaccine Injury Table."  42 U.S.C.
300aa- 11(c)(1)(C)(i). That table specifies a 3-day period for
encephalopathy following a DPT vaccination.  300aa-14(a). The special
master ruled that Margaret had failed to make out a prima facie case,
finding, inter alia, that by the time she received her vaccination she
was "clearly microcephalic," that this condition evidenced
pre-existing encephalopathy, and that, accordingly, "the first symptom
or manifestation" of her condition's onset had occurred before her
vaccination and the 3- day table period.  The Court of Federal Claims
affirmed, but the Court of Appeals for the Federal Circuit reversed,
holding, among other things, that a claimant satisfies the table
requirements whenever she shows that any symptom or manifestation of a
listed condition occurred within the table time period, even if there
was evidence of the condition before the vaccination.

Held:

A claimant who shows that she experienced symptoms of an injury after
receiving a vaccination does not make out a prima facie case for
compensation under the Act where the evidence fails to indicate that
she had no symptoms of that injury before the vaccination.  The Court
of Appeals' assertion that the Act does not "expressly state" that a
claimant relying on the table must show that the child sustained no
injury prior to her vaccination--i.e., that the first symptom of the
injury occurred after vaccination--simply does not square with
300aa-11(c)(1)(C)(i)'s plain language.  If a symptom or manifestation
of a table injury has occurred before the vaccination, a symptom or
manifestation thereafter cannot be the first, or signal the injury's
onset. There cannot be two first symptoms or onsets of the same
injury. Thus, a demonstration that the claimant experienced symptoms
of an injury during the table period, while necessary, is insufficient
to make out a prima facie case.  The claimant must also show that no
evidence of the injury appeared before the vaccination.  The Court of
Appeals misread language in 300aa-14(a), 300aa-14(b)(2), and
300aa-13(a)(2)(B) in coming to the contrary conclusion.  Pp. 5-7.

17 F.3d 374, reversed and remanded.

Souter, J., delivered the opinion for a unanimous Court. O'Connor, J.,
filed a concurring opinion, in which Breyer, J., joined.

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