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Vaccination Suit Is State Court
Case, Federal Judge Rules
Shannon P. Duffy
The Legal Intelligencer
08-20-2002
Senior U.S. District Judge Norma L. Shapiro has ruled that a drug
products liability lawsuit over a child who was allegedly rendered
autistic due to adverse reactions to a battery of vaccinations must be
litigated in the state courts even though the defendants plan to argue
that the plaintiff failed to comply with the federal National Childhood
Vaccine Injury Act.
In Cheskiewicz v. Aventis Pasteur Inc., et al., Shapiro, of the
Eastern District of Pennsylvania, found that the Vaccine Act does not
create "federal question" jurisdiction.
And since two of the 16 named defendants are Pennsylvania corporations,
Shapiro found the suit failed to meet the requirements for diversity
jurisdiction.
Defense lawyers argued that the plaintiffs had fraudulently joined the
two Pennsylvania companies -- GlaxoSmithKline and Aventis Pasteur -- for
the purpose of defeating diversity jurisdiction.
If Shapiro dismissed the two "sham" defendants, the defense lawyers
said, the case would satisfy the jurisdictional requirement of "absolute
diversity" of citizenship.
The defense said in its briefs that GlaxoSmithKline and Aventis were
"sham" defendants because the Vaccine Act prohibits a civil action for
damages arising from a vaccine-related injury unless a petition for
compensation has first been filed in the Vaccine Court.
But Shapiro found that the argument was "irrelevant" because "the effect
of the Vaccine Act on plaintiffs' claims are not unique to
GlaxoSmithKline and Aventis."
Instead of proving a "fraudulent joinder," Shapiro said, the defense did
nothing more than identify a legal issue that can be asserted by any of
the defendants.
"However meritorious those defenses may be, they are not unique to the
non-diverse parties. Their disposition is a merits determination which
must be made by the state court," Shapiro wrote.
According to the suit, Alan J. Cheskiewicz was born in May 1994 and
received 14 doses of vaccines from his pediatrician in December 1995.
The suit says the vaccines contained an "adulterant," Thimerosal, which
allowed the vaccine manufacturers to package vaccines in multidose
vials.
Thimerosal contains unsafe amounts of mercury, the suit says, and has
since been removed from all vaccines intended for infants in the United
States.
Soon after receiving the shots, Alan "began to regress" from
age-appropriate developmental milestones, the suit says. He has since
been diagnosed with "disintegrative autism or Autism Spectrum Disorder (ASD)
caused by mercury toxicity."
The suit alleges eight claims, all grounded in state law -- strict
liability in manufacturing; strict liability due to a failure to warn;
negligence in manufacturing, marketing and sale; breach of an implied
warranty of merchantability; breach of express warranty; fraud; gross
negligence; and claims by the parents for medical expenses.
Named as defendants in the suit are Aventis Pasteur; Connaught
Laboratories Inc.; Pasteur Merieux; GlaxoSmithKline; SmithKline Beecham
Corp.; American Home Products Corp.; Wyeth-Ayerst Laboratories; Wyeth
Lederle Vaccines; Lederle Laboratories; Merck & Co.; Pfizer Inc.;
Parke-Davis Inc.; Abbott Laboratories; Eli Lilly & Co.; Sigma-Aldrich
Inc.; and American International Chemical Inc.
Also named were 10 "John Doe" defendants.
Soon after the defense lawyers removed the suit to federal court,
Shapiro on her own asked for briefs on the question of jurisdiction.
The plaintiffs' lawyers, Michele A. DiMartino and Christopher A. Gomez
of Miller & Associates in Bala Cynwyd, Pa., responded by moving for
remand to the Philadelphia Court of Common Pleas.
But defense lawyers urged Shapiro to follow a recent trend established
in the federal courts in Florida, Texas and Mississippi to hold that
claims arising from Thimerosal poisoning are covered by the Vaccine Act.
In a pair of decisions handed down on Aug. 1 in the Southern District of
Mississippi -- McDonald v. Abbott Labs and Collins v. American
Home Products Corp. -- a judge vacated an earlier remand order on
reconsideration and held that recent actions by the Vaccine Court
compelled the conclusion that plaintiffs had no independent claim for
Thimerosal-related injuries.
And two decisions earlier this year -- Owens v. American Home
Products Corp. in the Southern District of Texas and Demos v.
Aventis Pasteur Inc. in the Southern District of Florida --
dismissed all claims under the Vaccine Act.
But Shapiro found there was just as strong a trend flowing in the
opposite direction in three unpublished decisions handed down this year.
In April, May and June, Shapiro said, federal judges in the Western
District of Washington, the Northern District of California and the
District of Oregon confronted similar fact patterns and ordered the
cases remanded to the state courts.
Shapiro found that the defense team had failed to show that the Vaccine
Act defense proved that the two Pennsylvania defendants were
fraudulently joined.
"Joinder is fraudulent where there is no reasonable basis in fact or
colorable ground supporting the claim against the joined defendant, or
no real intention in good faith to prosecute the action against the
defendants or seek a joint judgment," Shapiro wrote.
"But if there is even a possibility that a state court would find that
the complaint states a cause of action against any one of the resident
defendants, the federal court must find that joinder was proper and
remand the case to state court," she wrote.
When there are "colorable" claims or defenses asserted against or by
diverse and non-diverse defendants alike, Shapiro said, "the court may
not find that the non-diverse parties were fraudulently joined based on
its view of the merits of those claims or defenses."
Instead, she said, "that is a merits determination which must be made by
the state court."
Abbott was represented by Joseph E. O'Neill of Philadelphia-based Lavin,
Coleman, O'Neill, Ricci, Finarelli & Gray; Aventis Pasteur was
represented by Jonathan Dryer of Wilson, Elser, Moskowitz, Edelman &
Dicker; and American International Chemical was represented by John W.
Dornberger of Philadelphia-based Post & Schell.
Eli Lilly was represented by E. David Chanin of Philadelphia's
Tannenbaum & Chanin; GlaxoSmithKline was represented by Nina M. Gussack
of Philadelphia-based Pepper Hamilton; and Merck & Co. was represented
by Geff Blake and Patricia C. Collins of Elliott Reihner Siedzikowski &
Egan of Blue Bell, Pa.
Sigma-Aldrich was represented by Denise H. Houghton of
Philadelphia-based Cozen O'Connor, and Wyeth was represented by F. Lane
Heard III of Williams & Connolly in Washington, D.C., along with Michael
T. Scott of Reed Smith in Philadelphia.
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Senior U.S. District Judge Norma L. Shapiro
Related:
Federal Vaccine Act Kills Suit
Mercury's Legal Morass
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