                                                               REISSUED FOR PUBLICATION
                                                                          AUGUST 8, 2019
                                                                               OSM
                                                                   U.S. COURT OF FEDERAL CLAIMS


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                              OFFICE OF SPECIAL MASTERS

***** * ***** ***** * ** * *
SARAH ZINS and LIEB ZINS,                     *
On behalf of the Estate of                    *
JONATHAN ZINS,                                *
                                              *      No. 18-1934V
                       Petitioners,           *      Special Master Christian J. Moran
                                              *
v.                                            *
                                              *      Filed: June 28, 2019
SECRETARY OF HEALTH                           *
AND HUMAN SERVICES,                           *      Dismissal, in utero injury.
                                              *
                       Respondent.            *
***** ****** **********
     DECISION GRANTING RESPONDENT'S MOTION TO DISMISS 1

       Sarah and Leib Zins filed a petition for compensation on December 17,
2018. The Zins seek compensation under the National Childhood Vaccine Injury
Act (the "Act"), 42 U.S.C. §§ 300aa-l to -34, on behalf of their unborn child,
Jonathan. They allege that an influenza vaccine administered to Sarah Zins on
December 12, 2016 caused Jonathan to suffer from in utero injuries that ultimately
resulted in his stillbirth delivery.

       A status conference was held on February 22, 2019. During the status
conference, Ms. Zins clarified that she intended to file two petitions: one for
herself, as an individual, claiming compensation for injuries suffered from the

1
  Because this ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it on the United States Court of Federal Claims' website in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). This means the ruling will be available to
anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwan-anted invasion of privacy. If, upon review, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material before
posting the ruling.
vaccination as a result of Jonathan's stillbirth; another on behalf of Jonathan for his
death. Order, issued Feb. 25, 2019. During the status conference, respondent
communicated an intention to move to dismiss any claim brought on behalf of
Jonathan for lack of jurisdiction.

      On March 20, 2019, respondent moved to dismiss Jonathan Zins' petition on
the basis that the Vaccine Act does not provide a cause of action for children
alleged to have been injured by a vaccine but not born alive. The Zins did not
respond to the Secretary's motion.

       On April 23, 2019, the undersigned issued an order communicating that the
Secretary's position on the jurisdictional question of Jonathan Zins' petition
appeared correct and that, as a result, the Zins would not be able to proceed on a
petition for compensation on Jonathan's behalf. To avoid the needless expense and
hassle of filing a new petition, the Zins were provided the opportunity to have this
case recaptioned so as to have Ms. Zins as the petitioner. The Zins were ordered to
move to amend the petition by May 24, 2019. The Zins also did not respond to this
order.

       As the Secretary notes in his motion to dismiss, the act of Congress that
granted jurisdiction to this Court to hear claims by children who allege in utero
vaccine injuries also explicitly defines "child" as an individual who is "born alive."
See 21st Century Cures Act, Pub. L. No. 114-255, § 3093(c), 130 Stat. 1033, 1152
(2016) (referencing 1 U.S.C. § 8(a)). This specific issue of statutory interpretation
was thoroughly examined in a recent decision by Special Master Corcoran. See
Neal v. Sec'y of Health & Human Servs., No. l 7-2020V, 2018 WL 4482535 (Fed.
Cl. Spec. Mstr. July 24, 2018). The letter of the law leaves little ambiguity that
unless a child is born alive, he or she may not bring a petition for compensation
under the Act for injuries suffered in utero. That Jonathan was stillborn is not
contested. Exhibit 12. Accordingly, his claim must be dismissed for lack of
jurisdiction.

       However, Ms. Zins does not face the same jurisdictional hurdles as Jonathan
for injuries she may have suffered as a result of the vaccination. As confirmed in
the February 22, 2019 status conference, Ms. Zins is interested in pursuing her
rights under the Vaccine Act. Indeed, Ms. Zins included in her initial filings a
secondary petition that listed herself as the petitioner and sought redress for her




                                           2
mJunes. See Pet., filed Dec. 17, 2018, at Pet. for Compensation for Sarah Zins.
Ms. Zins has not yet had her day in court.

       Although Ms. Zins appears interested in pursuing her rights under the Act,
because of the manner that this petition was filed, her petition has not yet been
docketed. Ms. Zins was offered the opportunity to recaption Jonathan Zins'
petition as a petition brought by her as an individual. See orders issued Feb. 25,
20 19 and Apr. 23, 2019. For whatever reason, she has elected not to do so.
Based on a review of the initial filings made by Ms. Zins-which include the
submission of two different civil cover sheets and two separate petitions-it is now
clear that two separate petitions should have been entered. Based on consultations
with the Clerk of the Court, this second petition will now be docketed so that Sara,h
Zins' claim can proceed while Jonathan Zins' claim will be dismissed for lack of
jurisdiction.

      Accordingly, the following is ORDERED.

      1. The Clerk is INSTRUCTED to docket a petition for Sarah Zins v.
         Secretary of Health and Human Services. This petition shall be assigned
         a new docket number with a filing date of December 17, 2018. The
         Clerk shall enter the petition, pleadings, references, conclusion, and
         exhibits relating to Sarah Zins' claim entered in No. 18-1934V into the
         record of the newly docketed petition. The Clerk shall also enter
         Respondent's Rule (c) Report, filed March 29, 2019, ECF No. 11 , into
         the record of the new petition.

      2. This petition, No. 18-1934V, is DISMISSED for lack of jurisdiction.
         The Clerk's Office is instructed to enter judgment in accord with this
         decision.

     Any questions regarding this order shall be directed to my law clerk,
Matthew Ginther, at (202) 357-6360.

      IT IS SO ORDERED.

                                                ~ p~
                                              Christian J. M6rnn
                                              Special Master



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