                                                                         REISSUED FOR PUBLICATION
                                                                                       AUGUST 22, 2019
                                                                                           OSM
                                                                               U.S. COURT OF FEDERAL CLAIMS


     3■   tり       2復 ■112b5tat2メ Court of∫ 2b2taI                                          CIュ imメ
                                    OFFICE OF SPECIAL MASTERS
                                            Filed:」 uly   25,2019

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CAMILA DO ESPIRITO SANTO,                                           No. 18-1725V

                            Pctitioner,                              Special Master Sanders

V.                                                                  Decision; Motion to Amend Case
SECRETARY OF HEALTH                                                 Caption; Miscarriage; Measles-
AND HUMAN SERVICES                                                  Mumps- Rubella ("MMR")
                                                                    Vaccine; Influenza ("flu") Vaccine
                           Rcspondcnt.
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Camila do Espirito Santo, Pro Se, San Jose, CA.
Mallori B. Openchowski,Unrted States Department of Justice, Washington, D.C., for Respondent.

          DECISION ON PETITIONER'S MOTION TO AMEND CASE CAPTION'

        On February 21,2019, Camila do Espirito Santo ("Petitioner") moved to amend the case
caption to assert a claim "on behalf of her unborn child[.]" Pet'r's Mot. to Amend Caption, ECF
No. 13. After careful consideration, I deny Petitioner's motion.

     I.        Procedural History

        On November 5, 2018, Petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program .2 42u.5.C. gg 300aa-10 to 34 (2012). Petitioner alleges
that she suffered from "injuries affecting the health of her fertility, such as death of in utero chlld



I This decision shall be posted
                                 on the website of the United States Court of Federal Claims, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, $ 205, 116 Stat. 2899,2913 (codified as
amended at 44 U.S.C. $ 3501 note (2012)). This means the Decision will be available to anyone with
access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 days within which to
request redaction "of any information furnished by that party: ( 1) that is a trade secret or commercial or
financial in substance and is privileged or confidential; or (2) that includes medical files or similar files.
the disclosure of which would constitute a clearly unwarranted invasion of privacy," Vaccine Rule 18(b).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, the undersigned agrees that the identified material fits within the requirements
of that provision, such material will be deleted from public access.
2
  The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No.99-
660, 100 Stat. 3578, codified as amended,42 U.S.C. 300aa-10 et seq. (2012) (hereinafter "Vaccine Act" or
"the Act"). For ease of citation, all "$" references to the Vaccine Act will be to the pertinent subparagraph
of 42 U,S.C.   I   300aa Q012\.
(missed abortion),3 and subsequent severe preeclampsia[]" as a result of the Measles-Mumps-
Rubella ("MMR") and influenza("flu") vaccines she received on October 15, 2016. Pet. at l,
ECF No. 1. Unbeknownst to Petitioner, she was pregnant at the time she received the vaccines
in question and she suffered a miscarriage on November 23,2076. Id.; see also Pet'r's Ex. 8 at 2
(documenting Petitioner's seven-week intrauterine pregnancy).

        On February 21,2019, Petitioner submitted a motion to amend the case caption. ECF
No. 13. She requested that the caption read "CAMILA DO ESPIRITO SANTO, and Camila do
Espirito Santo on behalf of her unborn child, Petitioners[]" to match her initial claim. Id.
Petitioner argued that under the Unborn Victims of Violence Act ("UVVA"), u "'child in utero
[is] a member of the species Homo sapiens, at any stage of development, who is carried in the
womb[]"' and should therefore be included in the caption. 1d. (quoting l8 U.S.C. $ 18a1). She
also noted that because a dilation and curettage ("D&C")a procedure was required due to her
"diagnofsis] of missed abortion . . . the authorization given by . . . Petitioner for such procedure
does not represent consent to a [D&C]." Id.

        On March 11,2019, Respondent filed his response to Petitioner's motion. Resp't's
Response, ECF No. 15. Respondent argued that Petitioner's motion should be denied for two
reasons. Id. at 3. First, because the Vaccine Act allows for only one claim per petition,
Petitioner must bring a separate petition "to the extent fP]etitioner has a legal basis on which to
bring a claim on behalf of a new claimant[.]" Id. Second, although the Vaccine Act allows
claims to be filed on behalf of children who have suffered injuries resulting from maternal
immunizations, those children must be born alive. 1d. Respondent argued that because
Petitioner's child was not born alive, Petitioner's motion to amend the case caption to "add her
unborn child as a petitioner [t]herein must be denied." Id. at 5.

        On March 18,2019, Petitioner submitted a reply to Respondent's response. Pet'r's
Reply, ECF No. 16. Petitioner argued that the language of the Vaccine Act should be interpreted
in accordance with the language of the UVVA. Id. at l. She stated that the definition of "child"
used by the Vaccine Act should be expanded to include the definition of "child" under the
UVVA. See id. at 2. She argued that the Vaccine Act should not "value[] some lives above
others[,]" and she reiterated her motion's intent to "defend the rights of the unborn child[.]" /d.
 at2-3. Petitioner also assefted that "both mother and unbom child are equal victims of fthe
vaccinel injury" and that her claim applies to "both injured people[.]" Id. at 3. This matter is
now ripe for adjudication.


3
  Missed abortion is defined as the "retention in the uterus of an abortus that has died, indicated either by
cessation of growth . . . or by actual diminution of its size." Dorland's lllustrated Medical Dictionary 4
(32nd ed. 2012) [hereinafter "Dorland's"]. An aboftus is "a fetus weighing less than 500 g . . . or being
of less than [twenty] completed weeks' gestational age atthe time of expulsion from the uterus, having no
chance of survival." .Id. Missed abortion is synonymous with spontaneous abortion, which "occur[s]
naturally" and is "popularly known as miscarriage." Id. To avoid confusion, the term miscarriage is used
throughout this decision. Furthermore, because aboftus is the applicable medical term, it is also used in
this decision when appropriate.
4
  Dilatation and curettage is a procedure whereby "the ostium uteri [is expanded] to permit scraping of the
walls of the uterus, a common technique used in induced aboftion." Dorland's at 519' The ostium uteri
is "the external opening of the cervix of the uterus into the vagina." Id. at 1350.
    II.    Legal Standard

       The Vaccine Act allows a "legal representative" of any person who died as a result of the
administration of a vaccine to assert a Vaccine Act claim. See 42 U.S.C. $ 300aa-1. A "legal
representative" is defrned as a parent or individual who qualifies as a legal guardian. 42 U.S.C. $
300aa-33(2); Kennedy v. Sec'y of Health & Human Servs., 99 Fed. Cl. 535, 542 (2011), aff'd
without op., 485 F. App'x 425 (Fed. Cir.2012).

        The Vaccine Act states that only one petition may be filed for each administration of a
vaccine. 42 U.S.C. $ 300aa-11(bX2). "A covered vaccine administered to a pregnant woman .           .

, constitutefs] more than one administration, one to the mother and one to [the] child . . . who
was in utero at the time such woman was administered the vaccine." Id.

         In addition, the 21st Century Cures Act ("CCA") amendment to the Vaccine Act added
section 1 I (f to allow parents to file a petition on behalf of their child when that "child was in
utero at the time[]" the vaccine was administered. See 42 U.S.C. $ 300aa-11(0(1); CCA, Pub. L.
No. 115-255,130 Stat. 1033 (Dec. 13,2016). Section I l(fX2) of the Vaccine Act expressly
states that "the term 'child' shall have the meaning given that term by subsections (a) and (b) of
I U.S.C. $ 8.]" 42 U.S.C. $ 300aa-l l(0(2) I U.S.C. $ 8(a) defines "child" as one who is "born
alive[.]" 1 U.S.C. $ 8(a). In turn, "born alive" is defined as a child who "after such expulsion or
extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement
of voluntary muscles . . . regardless of whether the expulsion or extraction occurs as a result of
natural or induced labor, cesarean section, or induced abortion." 1 U.S.C. $ 8(b). In the case of
a miscarriage or stillbirth, however, a Vaccine Act claim brought on behalf of the abortus or
fetus for an in ulero vaccine injury may not be maintained. See Neal v. Sec'y of Health &
Human Servs., No. l7-2020Y,2018 WL 4482535, at *4 (Fed. Cl. Spec. Mstr. Jul. 24,2018).

    III.   Discussion

        Petitioner's motion to amend the case caption must be denied for two reasons. First,
Petitioner may not assert more than one claim per petition, And second, Petitioner may not
assert a claim on behalf of a petitioner who was not born alive.

           a.      Petitioner May Not Assert More than One Claim per Petition

        If amended, Petitioner's case caption would encompass two claims, which is precluded
by the Vaccine AcL 42 U.S.C. $ 300aa-11(bX2). Petitioner argues that because of her
pregnancy, "both mother and unborn child are equal victims of injuryf,]" and therefore she can
assert a single claim on behalf of both. Pet'r's Reply at 3. However, the Vaccine Act is clear
that the vaccination of a pregnant woman "shall constitute more than one administration" to the
mother and each "infant who is born alive[.]" 1 U.S.C. $ 8(a); 42 U.S.C. gg 300aa-11(bX2),
1 I (D(2). Therefore, if Petitioner sustained a post vaccination injury while pregnant, any claim
brought on behalf of her child in utero is the result of a vaccine administration apart from
Petitioner's. A claim separate from the Petitioner's is necessary. Petitioner must assert one
claim on her behalf for the miscarriage and subsequent severe preeclampsia and one claim on
behalf of any child born alive for his or her injury. Petitioner's caption reading "CAMILA DO
ESPIRITO SANTO, and Camtla do Espirito Santo, on behalf of her unbom child, Petitioners"
would improperly assert more than one claim for more than one vaccine administration.
Therefore, Petitioner's motion is not in accordance with the Vaccine Act and must be denied.

           b.      Petitioner May Not Assert a Claim on Behalf of a Child who was Not
                   Born Alive

         ln Neal, the special master dismissed a petition brought by parents on behalf of their
stillborn fetus for aninutero vaccine injury. 2018 WL 4482535, at *5. As inthis case,
petitioners cited the UVVA for the proposition that "child," as used in 1 U.S.C. $ 8(a), includes
one "at any stage of development . . . carried in the womb[.]" Id. at 4. The special master stated
that "a reasonable reading of [1 U.S.C. $ S(b)] suggests that fbeing born alive] is a precursor
element of the definition of child in [1 U.S.C. $ 8(a)]." 1d. Because petitioners did not have a
child born alive, the special master held that the facts of the case "fdid] not fit the requirements
of the Vaccine Act . . . for bringing a claim on an infant's behalf for [an] in utero vaccine
injury[.]" Id. Accordingly, the special master dismissed petitioners' third party claim because it
"failfed] to state a proper claim under the requirements of the ICCA and the Vaccine Act.]" Id'
at 5. The special master did note, however, that the parents were not without remedy. Id. at 4.
They could instead maintain the claim for Ms. Neal's injuries resulting from the vaccine in
question. Id.

         Here, just like the petitioners tn Neal, Petitioner urges me to adopt the definition of
"child" used in the UVVA. Enacted in2004, the UVVA seeks to protect "a child, who is in
Lttero" from more than fifty federal offenses. 18 U.S.C. $ 18a1(aX1). The UVVA adopts a
wider definition of "child" than the incorporated statutory definition of "child" in the CCA and
Vaccine Act. The CCA, however, is explicit in its definition of "child" and the availability of
relief only to those who are "born alive." See Neal,2018 WL 4482535, at*4. As in Neal, therc
is no dispute that Petitioner's pregnancy did not result in a live birth. Id. Petitioner's proposed
caption would therefore assert a claim that is not actionable. It would be in contravention of the
requirements of the CCA and the Vaccine Act for claims brought on behalf of a child for an in
utero vaccine injury. Accordingly, Petitioner's motion must be denied. Petitioner can maintain
her separate petition for the injuries that she suffered from receiving the vaccines in question.

    IV.     Conclusion

        A miscarriage is a terrible circumstance, and I am sympathetic to Petitioner's tragic loss.
However, Petitioner has not established that an amended caption is warranted in this case. I
therefore DENY Petitioner's motion.

        ITIS S0 0RDEⅢ ]D。

                                               Herbrina D. Sanders
                                               Special Master
