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"Protecting the health and informed consent rights of children since 1982."

 

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NVIC Note: The Frist bill did not make it to the mark-up. Congress is

currently in recess but we expect this bill to come back this year. Thank

you for all the faxes, e-mails and phone calls. Here is an article that

explains why the drug companies are scrambling to stop vaccine lawsuits.

 

 

From LexisNexis

Vaccine Act Time-Bar Defense Remanded To Oregon State Court

 

 

Matt Nestlen, et al. v. Aventis Pasteur Inc., et al.

PORTLAND, Ore. - Aug. 8, 2002

 

 

Whether the National Vaccine Injury Compensation Act's 36-month statute of

limitations bars claims from being raised in state court is a question to be

decided in state courts, a federal judge ruled July 30 in remanding a

thimerosal/autism claim. (Matt Nestlen, et al. v. Aventis Pasteur Inc., et

al., No. 02-457-BR, D. Ore.)

 

 

Matt and Kelly Nestlen earlier this year sued Aventis Pasteur Inc.,

SmithKline Beecham Corp. (now GlaxoSmithKline plc), Eli Lilly and Co.,

Virginia Feldman, M.D., and Kaiser Foundation Health Plan of the Northwest

in Oregon state court, asserting state law claims for strict products

liability, negligence and medical malpractice. They claim that thimerosal in

vaccines made by the manufacturing defendants and administered by the

physician defendants caused autism in their son, Daniel Nestlen.

 

GlaxoSmithKline (GSK) removed the case to the U.S. District Court for the

District of Oregon on the grounds of federal jurisdiction under the Vaccine

Act and diversity of citizenship. The four other defendants consented to

removal.

 

GSK argued that Feldman, an Oregon citizen, was fraudulently joined to

defeat diversity. It also argued that the Nestlens' vaccine-related injuries

are barred in state or federal court because they should have been filed

with the U.S. Court of Federal Claims' "Vaccine Court" within the federal

law's 36-month time limit.

 

U.S. Judge Anna J. Brown of the District of Oregon noted that in two other

thimerosal cases - King v. Aventis Pasteur (CV-01-1305-BR; See July 2002,

Page 8) and Mead v. Aventis Pasteur (CV-01-1402-BR; See July 2002, Page 3) -

the District Court ruled that it could not reach the merits of the Vaccine

Act defense.

 

"[T]he court is generally limited to a plaintiff's pleadings when deciding

whether a cause of action is stated for purposed of fraudulent joinder and

may not consider a defendant's defenses to the plaintiff's claims," Judge

Brown wrote, explaining Mead and King. "This Court specifically held the

reach of the Vaccine Act's bar to suit arose outside of the plaintiffs'

claims and required the Court to consider instead the defendants'

substantive defenses to those claims."

 

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