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August 8, 2002

Vaccine Act Time-Bar Defense Remanded To Oregon State Court

PORTLAND, Ore. -- 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.).

(Opinion and Order. Document #56-020808-101R.)

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."

Copyright 2002, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved

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ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.