Tessa Needham, et al. v. Merck & Company, Inc., et al.

Did the Fourth Circuit Court of Appeals err by finding that a special masters’ findings in Plaintiffs’ claims filed in the Department of Health and Human Services administrative Vaccine Injury Compensation Plan (“VICP”) were entitled to res judicata effect when the Vaccine Act expressly allows a plaintiff to reject a VICP decision and file a de novo action in a district court? The Fourth Circuit’s decision below is contrary to Shalala v. Whitecotton, 514 U.S. 268 (1995). Did the Fourth Circuit Court of Appeals err by holding the National Childhood Injury Act (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 et seq. was constitutional where Congress enacted a Vaccine Table in the Act itself listing the vaccines and injuries covered by the Act, but the Act purported to allow the Secretary of Health and Human Services by regulatory action alone to amend or repeal the vaccines and injuries covered by the Act without an act of Congress signed by the President, as required by the presentment clause of the United States Constitution, article I, section 7, clause 2? The Fourth Circuit’s decision below conflicts with Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.”) and Terran v. Secretary of Health and Human Services, 195 F.3d 1302, 1317-1321 (Fed. Cir. 1999) (Plager, J. Dissenting).