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Oliver v. Secretary of Health and Human Services

United States Court of Appeals, Federal Circuit

January 9, 2019

LAURA OLIVER, AND, EDDIE OLIVER, JR., PARENTS AND LEGAL REPRESENTATIVES OF E.O., III, Petitioners-Appellants
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee

          Appeal 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.

          Daniel 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.

          Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges

         ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC

          ORDER

          PER CURIAM.

         Appellants 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 failed.

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 banc.

         I write 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.

         The National Childhood Vaccine Injury Act of 1986

         It had 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 manufacturers.

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 ...

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