April 6, 1994

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 93-1422

             MARK SCHAFER AND MELISSA SCHAFER,
                   A MINOR BY AND THROUGH
    MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA
SCHAFER,

                   Plaintiffs, Appellees,

                             v.

              AMERICAN CYANAMID CO., PARENT OF
 LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,

                   Defendant, Appellant.

                                        

                        ERRATA SHEET

    The  concurring  opinion  of   Judge  Stahl  should  be
attached to  the opinion in  case number 93-1422  which was
issued March 24, 1994 and should be numbered page 20.

STAHL, Circuit Judge (concurring).  While I concur  in both
                    

the result  and the  reasoning of  the majority opinion,  I

write separately to express  my concern about the potential

threat to the vaccine compensation program.

By virtue of the  circumscribed scope of our  authority and

our inherent institutional limitations, we in the  judicial

branch   must  abide  by  the  presumptions  prescribed  by

traditional principles of statutory  construction.  At  the

same  time,  I  cannot   ignore  the  fact  that,  although

compelled  by  law,  the  panel's  decision  heightens  the

tension between  the two competing purposes  of the vaccine

compensation  program:    holding  down  vaccine prices  by

cutting litigation  costs while ensuring  that the  injured

are  adequately compensated.   The defendant  suggests that

the  cost-benefit calculus counsels  a different resolution

of the conflict in  the circumstances of cases such  as the

present one.   Specifically, the defendant  argues that the

increase in litigation costs associated with compensating a

relatively  small group of  victims' family members through

state tort systems will  place at risk a much  larger group

of unvaccinated individuals due to price sensitivity in the

vaccine market.   I consider this to  be an issue of  great

importance,  apparently overlooked  at  the  time  Congress

drafted the statute.   I respectfully suggest that  this is

an issue which Congress may wish to revisit.

               UNITED STATES COURT OF APPEALS

                   FOR THE FIRST CIRCUIT

                                        

No. 93-1422

             MARK SCHAFER AND MELISSA SCHAFER,
                   A MINOR BY AND THROUGH
MARK SCHAFER, NATURAL PARENT AND GUARDIAN OF MELISSA SCHAFER,

                   Plaintiffs, Appellees,

                             v.

              AMERICAN CYANAMID CO., PARENT OF
 LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,

                   Defendant, Appellant.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. Edward F. Harrington, U.S. District Judge]
                                                     

                                        

                           Before

                    Breyer, Chief Judge,
                                       
              Selya and Stahl, Circuit Judges.
                                             

                                        

J.  Peter Coll,  Jr. with whom  Charles W. Gerdts,  III, Nicole M.
                                                                 
van  Ackere, Lawrence H. Cooke,  II, Donovan Leisure  Newton &amp; Irvine,
                                                                
Thomas A. Mullen, and Fordham &amp; Starrett were on brief for appellant.
                                   
Walter S. Kyle for appellees.   
             

                                        

                       March 24, 1994
                                        

          BREYER,  Chief  Judge.    The  National  Childhood
                               

Vaccine  Injury  Act,  42  U.S.C.     300aa-1  to  300aa-34,

provides  a special  procedure to  compensate those  who are

injured  by certain vaccines.  The Act bars those who accept

an award  under that  procedure from  later bringing  a tort

suit to obtain additional  compensation.  Id.   300aa-21(a).
                                             

The question before  us in  this appeal (under  28 U.S.C.   

1292(b)) is whether the  Act also bars the family  of such a

person from  bringing a tort suit to obtain compensation for

their  own, related,  injuries, in  particular, for  loss of

companionship  or  consortium.    Assuming  that  state  law

permits  such  suits,  we  find  nothing  in  the  Act  that

explicitly or  implicitly bars  them.   And,  we affirm  the

similar determination of the district court.

                             I

                         Background
                                   

                             A

                        The Statute
                                   

          The   National   Childhood   Vaccine  Injury   Act

represents an effort to provide compensation to those harmed

by childhood  vaccines outside the  framework of traditional

tort law.   Congress passed the law  after hearing testimony

1)  describing the  critical  need for  vaccines to  protect

                            -2-
                             2

children   from  disease,  2)  pointing  out  that  vaccines

inevitably  harm a very small number of the many millions of

people who are vaccinated, and 3) expressing dissatisfaction

with traditional tort law as a way of compensating those few

victims.    Injured  persons  (potential   tort  plaintiffs)

complained about the tort law system's uncertain recoveries,

the  high  cost  of  litigation,  and  delays  in  obtaining

compensation.   They  argued  that government  had, for  all

practical purposes, made vaccination obligatory, and thus it

had  a  responsibility  to  ensure  that  those  injured  by

vaccines were compensated.  Vaccine manufacturers (potential

tort  defendants) complained  about litigation  expenses and

occasional large recoveries, which caused insurance premiums

and vaccine prices to  rise, and which ultimately threatened

the stability of the vaccine supply.

          See  generally  National Childhood  Vaccine Injury
                                                            

Compensation Act of 1985: Hearing on S.827 Before the Senate
                                                            

Comm. on  Labor and Human  Resources, 99th Cong.,  1st Sess.
                                    

pt.  2  (1985) [hereinafter  "Hearings  on  S.827"]; Vaccine
                                                            

Injury   Compensation:  Hearings  on   H.R.5810  Before  the
                                                            

Subcomm. on Health and the Environment of the House Comm. on
                                                            

Energy   and   Commerce,  98th   Cong.,   2d  Sess.   (1984)
                       

[hereinafter  "Hearings  on  H.R.5810"]; National  Childhood
                                                            

                            -3-
                             3

Vaccine-Injury Compensation Act:  Hearings on S.2117  Before
                                                            

the Senate Comm.  on Labor and Human Resources,  98th Cong.,
                                              

2d  Sess. (1984)  [hereinafter "Hearings  on S.2117"];  H.R.

Rep.  No.  908, 99th  Cong.,  2d  Sess. (1986)  [hereinafter

"Vaccine Act Report"], reprinted in  1986 U.S.C.C.A.N. 6344;
                                   

Staff of the Subcomm.  on Health and the Environment  of the

House Comm. on  Energy and Commerce,  99th Cong., 2d  Sess.,

Childhood  Immunizations  (Comm.  Print  1986)  [hereinafter
                        

"Childhood Immunizations"]; Office of Technology Assessment,
                        

Compensation    for    Vaccine-Related    Injuries    (1980)
                                                  

[hereinafter "OTA Report"]; Dennis  J. Hauptly &amp; Mary Mason,

The National Childhood Vaccine Injury Act, 37 Fed. B. News &amp;
                                         

J. 452 (1990).

          The Vaccine  Act responds to  these complaints  by

creating  a  remedial  system  that tries  more  quickly  to

deliver  compensation  to   victims,  while  also   reducing

insurance and  litigation costs for manufacturers.   The Act

establishes a  special claims procedure involving  the Court

of  Federal  Claims and  special masters  (a system  that we

shall call the  "Vaccine Court").  42 U.S.C.    300aa-12.  A

person injured by  a vaccine  may file a  petition with  the

Vaccine Court  to obtain compensation (from  a fund financed

by a  tax on vaccines).  Id.    300aa-11.  He need not prove
                            

                            -4-
                             4

fault.  Nor, to prove causation, need he show more than that

he received  the vaccine and then  suffered certain symptoms

within a defined period of time.  Id.    300aa-13, 300aa-14.
                                     

The Act specifies amounts  of compensation for certain kinds

of harm (e.g., $250,000  for death, up to $250,000  for pain

and  suffering).    Id.     300aa-15(a)(2),  (4).   And,  it
                       

specifies other types  of harm for which compensation may be

awarded (e.g., medical expenses, loss  of earnings).  Id.   
                                                         

300aa-15(a).

          At the same time,  the Act modifies, but  does not

eliminate,  the  traditional  tort  system,  which  Congress

understood  to  provide important  incentives  for  the safe

manufacture and distribution of  vaccines.  The Act requires

that  a person injured directly  by a vaccine  first bring a
                                                    

Vaccine Court  proceeding.  Id.    300aa-11(a)(2)(A).  Then,
                               

it gives that person the choice either to accept the Court's

award and abandon his tort  rights (which the Act  transfers

to the  federal government, id.     300aa-17), or  to reject
                               

the  judgment and  retain his  tort rights.   Id.     300aa-
                                                 

21(a),  300aa-11(a)(2)(A)(i).   (He can  also keep  his tort

rights  by withdrawing  his  Vaccine Court  petition if  the

Court  moves  too  slowly.     Id.      300aa-21(b),  300aa-
                                  

11(a)(2)(A)(ii).)

                            -5-
                             5

          The  Act  additionally   helps  manufacturers   by

providing certain federal modifications  of state tort  law.

For  example,  it  forbids  the award  of  compensation  for

injuries that  flow from  "unavoidable side effects,"  id.  
                                                          

300aa-22(b)(1); it frees the manufacturer from liability for

not  providing direct warnings to an  injured person (or his

representative), id.   300aa-22(c); it imposes a presumption
                    

that   compliance   with   Food   and   Drug  Administration

requirements   means   the   manufacturer  provided   proper

directions  and warnings,  id.    300aa-22(b)(2); it  limits
                              

punitive damage  awards, id.   300aa-23(d);  and it requires
                            

that the trial  of any tort suit take place  in three phases

(liability; general damages; punitive damages), id.   300aa-
                                                   

23(a).

          The upshot is a new remedial system that interacts

in a complicated way with traditional tort lawsuits.

                             B

                         This Case
                                  

          For  present  purposes,  the  relevant  facts  are

simple.   Lenita  Schafer's small  child,  Melissa  Schafer,

received  an  oral  polio  vaccine  distributed  by American

Cyanamid  in October  1988.  Lenita  subsequently contracted

polio  (she and  her family  think) from  Melissa's vaccine.

                            -6-
                             6

About one year later, in December 1989, all three members of

the Schafer family (Lenita,  Melissa, and Lenita's  husband,

Mark)  petitioned the  Vaccine Court  for compensation.   In

April 1990, Mark and  Melissa withdrew their petitions (with

permission  of the  Vaccine  Court) and  began this  lawsuit

against   American   Cyanamid,    seeking   damages    under

Massachusetts tort  law for loss  of Lenita's  companionship

and   consortium.     See  28   U.S.C.      1332  (diversity
                         

jurisdiction); Fletch v. General  Rental Co., 421 N.E.2d 67,
                                            

70-72  (Mass.  1981).   Lenita,  who  did  not withdraw  her

petition,  eventually accepted  a  $750,000  award from  the

Vaccine Court  for her own  injuries, thereby giving  up her

right  to  bring a  tort action.    At that  point, American

Cyanamid  asked the  district  court to  dismiss Mark's  and

Melissa's suit on the ground that Lenita's acceptance of the

Vaccine  Court award barred not only a later tort action for

her own injuries,  but also  a later tort  action by  family

members for related injuries.  The district court denied the

motion.  We  review that  denial under the  authority of  28

U.S.C.   1292(b) (permitting appeal of  interlocutory orders

raising certain controlling questions of law).

                             II

                     The Basic Argument
                                       

                            -7-
                             7

          Cyanamid  concedes that  this  case  focuses  upon

Mark's  and  Melissa's  damages, not  Lenita's;  that Lenita

received Vaccine Court compensation for her own damages, not

Mark's or Melissa's; and  that the Act's language explicitly

bars Lenita, but not  Mark or Melissa, from bringing  a tort

action to recover their own damages (which, we specify, will

not  duplicate Lenita's).   Nonetheless,  it argues  that to

permit Mark or Melissa  to bring their own tort  action (for

related damages) would so seriously interfere with the Act's

basic  purposes  that we  must  read the  Act  as implicitly
                                                            

barring those actions, just  as it explicitly bars Lenita's.

Although Cyanamid's  counsel wants to call  its argument one

of "interpreting the Act  in light of its basic  policy," we

believe that "pre-emption" is a better, alternative,  label.

The argument seems to  amount to a claim that the  state law

that permits Mark  or Melissa to bring this  kind of suit so

significantly interferes  with the federal Act's  ability to

achieve   its    important   federal   purpose    that   the

Constitution's Supremacy Clause  requires the  state law  to

yield  to the federal  law's implicit demand.   See Michigan
                                                            

Canners &amp; Freezers Assoc. v. Agricultural Mktg. &amp; Bargaining
                                                            

Bd., 467 U.S. 461, 469 (1984); Hines v. Davidowitz, 312 U.S.
                                                  

52, 67 (1941).  But, however one characterizes the argument,

                            -8-
                             8

it  has  two  essential  elements --  an  important  federal

purpose and a significant state interference.  And, we shall

try to set  forth these two elements  of Cyanamid's argument

in  light   of  the   Act's  legislative  history,   and  as

persuasively as possible.

          First, an important federal  purpose of the Act is

to free  manufacturers from the specter  of large, uncertain

tort liability,  and thereby keep vaccine  prices fairly low

and keep manufactures in  the market.  Vaccine manufacturers

presented Congress  with evidence that their  tort insurance

and  litigation  costs  had  begun to  dwarf  their  vaccine

production revenues.   See Hearings on S.827,  supra, at 240
                                                    

(discussing difficulty of obtaining insurance) (statement of

Robert  Johnson);  Hearings  on  H.R.5810,  supra,  at   229
                                                 

(expected liability costs  hundreds of times  annual vaccine

sales  revenue) (statement  of  Robert  Johnson);  Childhood
                                                            

Immunizations,  supra,  at  88  (expected  insurance premium
                     

increase  of 50 to  300 percent).   They  argued that,  as a

result,   some   manufacturers   had  discontinued   vaccine

production (leaving  only  a handful  of  producers),  while

others had  raised their vaccine prices  significantly.  See
                                                            

Childhood  Immunizations, supra, at 63 (showing increases in
                               

DPT vaccine from  10 cents  to three dollars  per dose,  and

                            -9-
                             9

polio  vaccine from  35 cents  to a  dollar and  a half  per

dose).

          Evidence  in  the  hearing record  indicated  that

compensation-related   price   increases   or   manufacturer

withdrawal would cause serious harm.  Vaccines benefit those

who are vaccinated, and they have public benefits as well --

when parents  vaccinate their  own children, they  also help

stop the spread of  a disease that can injure  others.  And,

even  though vaccines  themselves  cause a  small number  of

serious   injuries   or   deaths,   their   widespread   use

dramatically  reduces  fatalities.   For  example,  the  DPT

vaccine  itself may  cause 150  or so  incidents of  serious

neurological damage  and the polio vaccine  may itself cause

about five annual  incidents of paralysis.   See OTA Report,
                                                

supra, at 51.   But, before widespread vaccination, whooping
     

cough, for example, killed  about 7,500 (mostly) children in

a  single year,  diphtheria killed  about 15,000,  and polio

injured, paralyzed,  or killed about 57,000.   See Childhood
                                                            

Immunizations,  supra, at 1, 6, 14.  Thus, despite the price
                     

to   be   paid   in   vaccine-caused   injuries,  widespread

vaccination  -- (about  13.5  million annual  diphtheria and

whooping cough  (DPT) vaccine doses, about  18 million polio

                            -10-
                             10

doses)  --  has   virtually  wiped  out   these  devastating

diseases. 

          The upshot  is that,  because vaccines  benefit so

many (and harm so few), even small vaccine price  increases,

if followed  by even  a small  decline in  vaccinations, can

cause  more public harm through added  disease than the sum-

total  of all  the  harm vaccines  themselves cause  through

side-effects.   See, e.g.,  Hauptly &amp;  Mason, supra,  at 452
                                                   

(recounting how,  in Japan, two deaths from DPT side effects

led  to withdrawal of the  vaccine, which was  followed by a

whooping cough  epidemic  that killed  forty-one  children).

For this  kind of  reason, the  argument goes,  Congress was

importantly motivated not only  by the desire effectively to

compensate side-effect  victims, but  also by the  desire to

keep  vaccine  prices fairly  low  by reducing  compensation

costs.  See, e.g.,  Hearings on S.827, supra, at  5 (remarks
                                            

of Sen. Hawkins); Hearings on S.2117, supra, at 5 (statement
                                           

of  Sen.  Grassley);  Vaccine  Act Report,  supra,  at  4-7,
                                                 

reprinted in 1986 U.S.C.C.A.N. at 6345-48.
            

          Second,  the availability of  a state  tort remedy

for relatives of a victim  interferes with the Act's efforts

to lower manufacturers' costs.  The Act seeks to achieve its

cost-reducing  purpose,  not  by  denying   compensation  to

                            -11-
                             11

victims  (indeed, it imposes a tax upon vaccines in order to

fund  compensation), but  by  reducing  the  litigation  and

insurance costs related to  lengthy, complex tort procedures

and  random large  tort awards.   The Act  therefore imposes

substantive  and procedural  limitations upon  tort actions.

And, more importantly, it discourages victims  from bringing

those traditional  tort cases by  providing fairly generous,

more easily obtainable, Vaccine Court awards.   A victim who

obtains such an  award may hesitate to give up  that bird in

the  hand in return for a larger, but more speculative, tort

law  award.   And, a  petitioner to  whom the  Vaccine Court

gives  nothing may see no  point in trying  to overcome tort

law's yet more serious obstacles to recovery.

          But, Cyanamid points out, almost every victim  has

a family.   And, almost  every vaccine-related  injury to  a

child will adversely  affect the  life of that  family.   In

Cyanamid's view, if family members can bring a tort suit for

loss of say, a  child's companionship, even after the  child

accepts a Vaccine Court award, they will do so.

          Cyanamid then says (and this is the most difficult

part  of  Cyanamid's argument)  that  to  permit a  victim's

family  to bring  a tort law  case -- even  where the victim

obtains  a Vaccine  Court  award --  threatens seriously  to

                            -12-
                             12

undermine the Act's  "cost-related" advantages.   The result

will  be a system in  which manufacturers must  pay both the
                                                        

Vaccine Court's easily-obtained compensation awards (through

a  tax) and also face large tort claims from family members.
                

The  latter means  the very  kind of  large occasional  tort

awards and the kind of litigation costs that  Congress hoped

to  diminish.   Cyanamid concludes  that the  Act implicitly
                                                            

must hold family members to the election  of the physically-

injured victim.  If that victim receives an award and can no

longer pursue a court  claim, then neither can  the victim's

family.

                            III

                        Our Response
                                    

          Cyanamid's  argument  is  not  without  force, but

ultimately  it does not persuade  us, either as  a matter of

statutory  interpretation or  in terms  of  pre-emption law.

First, one  cannot easily interpret the  statute as Cyanamid

wishes,  for the Act  has no language at  all that one might

read as creating a  bar to the type  of suit before us.   To

the  contrary,  the Act  subsection  that  creates the  tort

action  bar says  that  it does  not apply  to this  kind of

lawsuit.  The language that creates the bar,    300aa-11(a),

says: "[n]o  person may  bring a  civil action  for damages"

                            -13-
                             13

(except in accordance  with the Act's  Vaccine-Court-related

rules)  until a Vaccine Court petition "has been filed."  It

then states  specifically that "this subsection"   (i.e. the

subsection with the tort action bar):

          applies   only  to  a   person  who  has
                                        
          sustained  a  vaccine-related injury  or
          death and  who  is qualified  to file  a
                                                  
          petition  for   compensation  under  the
                                                  
          Program.
                 

42 U.S.C.   300aa-11(a)(9) (emphasis  added).  A person  "is

qualified to file a petition" only if that person suffered a

relevant injury or death after he or she "received a vaccine

. . . or  contracted polio from another person  who received

an oral polio vaccine."   Id.   300aa-11(c)(1)(A).   That is
                             

to say, unless a person "received a vaccine" or, like Lenita

Schafer,  caught polio from someone who did (or is the legal

representative of such a person), he cannot file a petition.

See,  e.g., Head v. Secretary of Health and Human Servs., 26
                                                        

Cl.  Ct. 546, 547 n.1 (1992) (parent of injured child cannot

petition except in representative capacity), aff'd, 996 F.2d
                                                  

318 (Fed.  Cir. 1993).   And, if he  cannot file a  petition

with the Vaccine Court, the Act  says that its tort suit ban

does not apply to him.

          Moreover, this same language suggests that the Act

sees  the  tort  suit   procedural  bar  and  Vaccine  Court

                            -14-
                             14

compensation  as opposite sides of  the same coin.   Yet the

Act  does not permit  compensation for injuries  to a family

member  (of  the direct  victim  who  takes the  vaccine  or

catches polio from a vaccine taker).  Indeed, it prohibits:

          compensation for other than  the health,
          education,  or welfare of the person who
          suffered the vaccine-related injury with
          respect  to  which  the compensation  is
          paid.

Id.    300aa-15(d)(2).   And, the  Vaccine Court  itself has
   

interpreted   this  section   as   forbidding  payment   for

psychological  counseling for  a victim's  family unless  it

directly benefits the  victim herself.  See, e.g.,  Huber v.
                                                         

Secretary  of Health and Human  Servs., 22 Cl.  Ct. 255, 257
                                      

(1991); Richardson v. Secretary  of Health and Human Servs.,
                                                           

No.  90-324V,  1991 U.S.  Cl. Ct.  LEXIS  151, at  *18 (U.S.

Claims  Ct., Apr. 16, 1991),  aff'd, 23 Cl.  Ct. 674 (1991);
                                   

Neese  v. Secretary of Health  and Human Servs., No. 89-85V,
                                               

1990  U.S. Cl. Ct. LEXIS 333, at  *23 (U.S. Claims Ct., Apr.

16,  1991); see also Vire  v. Secretary of  Health and Human
                                                            

Servs., No. 90-84V, 1990  U.S. Cl. Ct. LEXIS 513,  at *1 n.2
      

(U.S. Claims Ct., Dec.  28, 1990) (Act does not  provide for

compensation of  parents of injured child),  aff'd, 954 F.2d
                                                  

733 (Fed. Cir.), cert. denied, 112 S. Ct. 3030 (1992); Pease
                                                            

v. Secretary  of Health and  Human Servs., No.  89-98V, 1990
                                         

                            -15-
                             15

U.S. Cl. Ct. LEXIS 64, at *5 (U.S. Claims Ct., Feb. 1, 1990)

(same);  cf.  42  U.S.C.    300aa-14  (list  of  compensable
            

injuries containing no reference to the kind of harm here at

issue).

          Second, the  Act's  legislative history  does  not

point directly toward the "policy" conclusion  that Cyanamid

wishes  us to draw.  The legislative history says nothing at

all  about family members'  tort suits.   Its  discussion of

general purposes, as we have pointed out above, see pp. 2-4,
                                                   

supra,  indicates  two  major  purposes,  namely,  providing
                      

compensation for victims and  maintaining low vaccine costs.

How  does Cyanamid's  argument take  account of  the "victim

compensation" objective?  Because the Vaccine Court does not

provide a  remedy for  family members, to  accept Cyanamid's

argument would require us to conclude that Congress, without

anyone saying a  word about it,  intended to deprive  family

members of all compensatory remedies.  At the same time, the

second  leg  of  Cyanamid's   argument  --  the  claim  that

permitting this kind  of suit would significantly  interfere

with Congress's  cost control  objective -- has  no specific

empirical support in the  legislative record; and, the claim

does not prove itself.  Given the difficulties of prevailing

in  a traditional tort suit,  it is, at  least, unclear that

                            -16-
                             16

plaintiff families --  particularly families of  victims who

have  already received  Vaccine  Act  compensation  --  will

prevail so  often, and  obtain verdicts  so large,  that the

jury  awards,   or  the   threat  of  those   awards,  would

significantly  raise   vaccine   prices  or   retard   their

distribution.

          The legislative record's  silence may reflect  the

vaccine manufacturers' view that family suits do  not pose a

particular  practical  problem,  or   the  failure  of   any

interested person to think about the matter, or a calculated

decision   by  everyone   to   ignore  the   issue  in   the

congressional  hearings  for fear  of upsetting  a carefully

crafted compromise.   But, regardless of the  reason for the

silence, our very uncertainty  about how Congress would have

answered the question means that Cyanamid has failed to show

that this kind of  action significantly undermines the Act's

given objectives.

          Third, to  accept Cyanamid's argument --  that the

Schafer family cannot collect both a Vaccine Court award and

loss  of consortium  tort damages  -- would  create judicial

inconsistency.  The Vaccine Court has held that a parent can
                                                            

both  obtain a loss of consortium "award" from a state court

(or the settlement  of a  state law claim)  and also  obtain

                            -17-
                             17

compensation for her vaccinated (and injured) child from the

Vaccine  Court.   Abbott v.  Secretary  of Health  and Human
                                                            

Servs.,  No. 90-1673V 1992 Cl. Ct. LEXIS 473, rev'd on other
                                                            

grounds, 27 Fed. Cl. 792 (1993); cf. Massing v. Secretary of
                                                            

Health and Human  Servs., 926 F.2d 1133,  1135-36 (Fed. Cir.
                        

1991);  Head v. Secretary of Health and Human Servs., 26 Cl.
                                                    

Ct. 546, 549 (1992),  aff'd, 996 F.2d 318 (Fed.  Cir. 1993).
                           

The Vaccine  Court cases  all involve families  that brought

the tort suit first, before the child accepted Vaccine Court
                   

compensation.   But, it is difficult to find any policy that

would justify permitting a family to bring a suit before the

Vaccine Court  awards compensation  to a direct  victim, but

not after.

          Fourth, even were the first three reasons far less

persuasive, a  host of  legal  interpretive doctrines  would

prevent us from  finding in Cyanamid's  favor in respect  to

any  form of  pre-emption.   Pre-emption  law, for  example,

cautions us  against finding  that a congressional  act pre-

empts a state law  through silence.  Maryland  v. Louisiana,
                                                           

451  U.S. 725, 746 (1981).  The negative presumption is even

stronger  when  the state  law  at  issue creates  a  remedy

unavailable under  federal  law.    Silkwood  v.  Kerr-McGee
                                                            

Corp., 464 U.S. 238, 251 (1984); United Construction Workers
                                                            

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                             18

v. Laburnum Construction Corp., 347 U.S. 656, 663-64 (1954);
                              

Rice v. Santa Fe  Elevator Corp., 331 U.S. 218,  230 (1947).
                                

And, it is  virtually conclusive when Congress,  in the very

statute  at  issue,  explicitly pre-empts  other  state  law
                                                

remedies  but not  the remedy  at issue.   See  Cipollone v.
                                                         

Liggett Group, Inc., 112 S. Ct. 2608, 2618 (1992); 42 U.S.C.
                   

   300aa-22,  300aa-23 (precluding certain  kinds of damages

awards  in state  law suits; creating  three-stage procedure

for   trying  state   law  tort   actions;   specifying  the

availability of certain defenses;  explicitly "preempt[ing]"

any state law that  would prohibit a person from  bringing a

tort action not barred by the Act); see also Greenwood Trust
                                                            

Co.  v. Commonwealth of Mass.,  971 F.2d 818,  823 (1st Cir.
                             

1992)  ("In  recent  days,  the   High  Court  has  made  it

pellucidly clear that, whenever Congress includes an express

preemption  clause  in  a  statute, judges  ought  to  limit

themselves to the preemptive reach of that provision without

essaying any further analysis  under the various theories of

implied preemption."), cert. denied, 113 S. Ct. 974 (1993).
                                   

          We need not rely upon these presumptions, however.

Nor  need  we  rely  upon the  fact  that  numerous,  rather

analogous, state workers'  compensation statutes  explicitly

say that they  pre-empt consortium actions when  it is their

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                             19

intent to do so.  See, e.g., Ala. Code   25-5-53; Conn. Gen.
                           

Stat.  52-555d; Mass.  Gen. L.  ch. 152.   It is  sufficient

that the Act's  purposes do not point  strongly towards pre-

emption, and the Act's language suggests that pre-emption is

not intended.  Consequently, Cyanamid's arguments are better

made to  Congress than  to this  court.   We agree with  the

district court that  the Act, as currently written, does not

bar  the suit before us (described on pp. 7-8, supra).  And,
                                                    

its order refusing to dismiss the case, therefore, is

          Affirmed.
                  

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                             20

               STAHL, Circuit Judge (concurring).   While  I
                                   

concur in both the result and the reasoning of the majority

opinion, I write separately to express my concern about the

potential threat to the vaccine compensation program.

               By  virtue of the circumscribed  scope of our

authority and our inherent institutional limitations, we in

the  judicial   branch  must  abide  by   the  presumptions

prescribed   by   traditional   principles   of   statutory

construction.  At the  same time, I cannot ignore  the fact

that,  although  compelled  by  law,  the  panel's decision

heightens the tension between the two competing purposes of

the  vaccine compensation  program:   holding  down vaccine

prices by cutting litigation  costs while ensuring that the

injured are adequately compensated.  The defendant suggests

that  the   cost-benefit  calculus  counsels   a  different

resolution of  the conflict  in the circumstances  of cases

such  as  the present  one.    Specifically, the  defendant

argues that  the increase  in  litigation costs  associated

with  compensating  a  relatively small  group  of victims'

family  members through  state tort  systems will  place at

risk a much larger group of unvaccinated individuals due to

price sensitivity  in the vaccine market.   I consider this

to be  an issue of great  importance, apparently overlooked

at  the time Congress drafted the  statute.  I respectfully

suggest  that this is an  issue which Congress  may wish to

revisit.

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