
USCA1 Opinion

	




          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 & Irvine,        ___________  ______________________  ________________________________        Thomas A. Mullen, and Fordham & 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 & Mary Mason,             The National Childhood Vaccine Injury Act, 37 Fed. B. News &             _________________________________________             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 & Freezers Assoc. v. Agricultural Mktg. & 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 &  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             _____                            ___________________________                                         -18-                                          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                                         -19-                                          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.                       ________                                         -20-                                          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.                                         -21-                                          21
