LAURA OLIVER, AND, EDDIE OLIVER, JR., PARENTS AND LEGAL REPRESENTATIVES OF E.O., III, Petitioners-Appellants
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee
from the United States Court of Federal Claims in No.
1:10-vv-00394-EDK, Judge Elaine Kaplan.
Clifford John Shoemaker, Shoemaker and Associates, Vienna,
VA, filed a combined petition for panel rehearing and
rehearing en banc for petitioners-appellants.
Anthony Principato, Torts Branch, Civil Division, United
States Department of Justice, Washington, DC, filed a
response to the petition for respondent- appellee. Also
represented by Joseph H. Hunt, C. Salvatore D'Alessio,
Catharine E. Reeves, Heather L. Pearlman.
Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit
PETITION FOR PANEL REHEARING AND REHEARING EN BANC
Laura Oliver and Eddie Oliver, Jr., parents and legal
representatives of E.O., III, filed a combined petition for
panel rehearing and rehearing en banc. A response to the
petition was invited by the court and filed by the Secretary
of Health and Human Services. The petition for rehearing and
response were first referred to the panel that heard the
appeal, and thereafter referred to the circuit judges who are
in regular active service. A poll was requested, taken, and
Upon consideration thereof,
It Is Ordered That:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will issue on January 16, 2019.
Newman, Circuit Judge, with whom Reyna, Circuit Judge, joins,
dissenting from the denial of the petition for rehearing en
in dissent, for the court's ruling conflicts with the
terms and the premises of the Vaccine Act. Here, baby Oliver
("E.O."), within hours of his 6-month well-baby
DTaP vaccinations, experienced fever and seizures, followed
by more seizures and encephalopathies and developmental
injuries. The government's position is that the Vaccine
Act is not available to E.O. because of his genetic makeup.
This ruling is legally and scientifically incorrect. It has
important implications for national vaccine immunization
programs, for scientific study now suggests that previously
unexplained vaccine injury is related to genetic makeup. En
banc attention is warranted.
National Childhood Vaccine Injury Act of 1986
long been known that a small percentage of childhood
vaccinations have led to grave injury and permanent
disability, as discussed in the legislative record:
Childhood vaccines are essential to maintain the health of
our society. They have been invaluable weapons against the
dread diseases that used to kill or injure hundreds of
thousands of children every year: polio, measles, pertussis,
diphtheria, tetanus, rubella, mumps, and smallpox. But while
these vaccines have brought the gift of life and health to
millions, there are a very small number of children every
year who are injured by unpredictable side effects of the
vaccines through no fault of their own or the vaccine
132 Cong. Rec. S17, 343-02 (1986) (statement of Sen.
Kennedy). The House Report reiterated the concern for
unforeseeable injury flowing from compulsory vaccinations:
While most of the Nation's children enjoy greater benefit
from immunization programs, a small but significant number