United States Court of Appeals for the Federal Circuit ______________________

HEATHER WRIGHT, AS MOTHER AND NATURAL GUARDIAN OF MINOR CHILD, B.W., Petitioner-Appellee

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant ______________________

2021-1524

______________________

Appeal from the United States Court of Federal Claims in No. 1:16-vv-00498-EGB, Senior Judge Eric G. Bruggink. ______________________

Decided: January 5, 2022 ______________________ Case: 21-1524 Document: 51 Page: 2 Filed: 01/05/2022

2 WRIGHT v. HHS

MICHAEL P. MILMOE, Law Offices of Leah V. Durant, PLLC, Washington, DC, argued for petitioner-appellee.

TRACI PATTON, Torts Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by BRIAN M. BOYNTON, C. SALVATORE D'ALESSIO, HEATHER LYNN PEARLMAN. ______________________

Before PROST, TARANTO, and HUGHES, Circuit Judges. HUGHES, Circuit Judge. The son, B.W., of Petitioner-Appellee Heather Wright experienced immune thrombocytopenic purpura after re- ceiving his measles, mumps, and rubella vaccine. Later blood tests showed his condition had resolved. More than six months after he was first diagnosed, B.W. presented with bruising, a possible symptom of immune thrombocy- topenic purpura, but blood tests showed the condition had not recurred. The Court of Federal Claims held that those blood tests, occurring more than six months after his initial diagnosis, were “residual effects” of B.W.’s vaccine injury that satisfied the severity requirement of 42 U.S.C. § 300aa-11(c)(1)(D). We disagree. A residual effect must be a change within the patient that is caused by the vaccine injury. Because B.W.’s later bruising was not caused by his vaccine injury, and his tests did not reveal, constitute, or cause any somatic change, we reverse the Court of Federal Claims’s decision. BACKGROUND A In 1986, Congress established the National Vaccine Program within the Department of Health and Human Services “to achieve optimal prevention of human infec- tious diseases through immunization and to achieve Case: 21-1524 Document: 51 Page: 3 Filed: 01/05/2022

WRIGHT v. HHS 3

optimal prevention against adverse reactions to vaccines.” 42 U.S.C. § 300aa-1. With the same statute (the “Vaccine Act”), Congress also established the National Vaccine In- jury Compensation Program, “under which compensation may be paid for a vaccine-related injury or death.” Id. § 300aa-10(a). A petitioner seeking compensation must es- tablish by a preponderance of the evidence that the injury or death was caused by a vaccine. See id. §§ 300aa- 11(c)(1)(C), -13(a)(1). The petitioner may establish causa- tion in two ways. First, the petitioner may prove that the injury is one listed in the Vaccine Injury Table, 42 U.S.C. § 300aa-14(a); 42 C.F.R. § 100.3(a) (2020), and occurred within the time provided within the Table, establishing a presumption of causation. See Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1319–20 (Fed. Cir. 2006). Alternatively, for injuries not listed in the Vaccine Injury Table, the petitioner may prove causation in fact. Id. at 1320 (citing 42 U.S.C. § 300aa-13(a)(1), -11(c)(1)(C)(ii)(I)). The causation-in-fact inquiry is governed by traditional principles of tort law described in the Second Restatement of Torts. Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1351–52 (Fed. Cir. 1999). Compensation is not available for minor injuries, whether o