Opinion
CIVIL ACTION NO. 02-1779, SECTION: "R" (4)
November 5, 2002
ORDER AND REASONS
Before the Court are defendants SmithKline Beecham, Wyeth (formerly known as American Home Products), Sigma-Aldrich, Merck and Aventis Pasteur, which move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b), based on the Vaccine Act. Also before the Court is defendant Eli Lilly ("Lilly"), which moves to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. For the following reasons, the Court denies in part and grants in part the motion to dismiss brought by SmithKline Beecham, and the Court denies Lilly's motion to dismiss. Further, the Court denies requests to stay these proceedings.
I. Background
This case arises out of injuries allegedly caused by thimerosal, a chemical compound containing mercury that is used as a preservative in childhood vaccines. Preservatives like thimerosal enable manufacturers to distribute vaccines in multidose packages. Plaintiffs filed suit in state court alleging that their son, Case Redding, suffered injuries resulting from thimerosal contained in vaccines administered to him during childhood. Named as defendants are manufacturers of thimerosal and manufacturers of vaccines containing thimerosal. Plaintiffs assert that defendants did not adequately test the product, ignored the existence of safer alternatives, and failed to adequately warn users of its risks. In their Petition for Damages, plaintiffs assert that Case Redding was injected with unreasonably dangerous vaccines from March 1993 through September 1994, and then again from August 1997 through December 1998. Plaintiffs allege that they first learned that Case Redding had mercury poisoning on May 20, 2001, and they filed this lawsuit on May 9, 2002.
Defendants timely removed the lawsuit to this Court. Defendants SmithKline Beecham, Wyeth, Sigma-Aldrich, Merck and Aventis Pasteur move to dismiss pursuant to Rule 12(b) on the grounds that plaintiffs' claims are barred by the National Childhood Vaccine Injury Act (the "Vaccine Act"). 42 U.S.C. § 300aa (2002). Defendant Eli Lilly moves to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. Should their motions to dismiss be denied, defendants further request that the lawsuit be stayed pending the resolution of certain issues by the court established by the Vaccine Act (the "Vaccine Court"). Id.
II. Discussion
A. Legal Standard
In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to plaintiffs. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiffs' favor. Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). Dismissal is warranted if it appears certain that plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief. Id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. SmithKline Beecham's Motion to Dismiss
Defendants SmithKline Beecham, Wyeth, Sigma-Aldrich, Merck and Aventis Pasteur move to dismiss pursuant to Rule 12(b) on the ground that plaintiffs' claims are barred by the Vaccine Act. Plaintiffs assert, first, that the Vaccine Act does not bar state law claims brought by the parents of children who suffer vaccine related injuries for loss of consortium, infliction of emotional distress, and their own costs and expenditures necessitated by their child's injury. Second, plaintiffs argue that even if the Vaccine Act does cover such injuries, the Vaccine Act does not cover injuries, like those allegedly sustained by Case Redding, caused by the mercury-laden preservative, thimerosal. Because the Court agrees with plaintiffs' first assertion, the Court expresses no opinion as to the second.
1. The Vaccine Act
At issue is whether plaintiffs claims are barred by the Vaccine Act. 42 U.S.C. § 300aa-11-34. The Vaccine Act is a federal statute that provides a no-fault compensation system for injuries caused by the administration of childhood vaccines. The Act, which establishes a procedure for the adjudication of these claims before special masters appointed by the United States Court of Federal Claims, requires that before an individual who sustained vaccine-related injuries (or the legal representatives of such an individual) may file a civil lawsuit against a vaccine manufacturer for damages greater than $1,000, he or she must first file a petition in the Vaccine Court for the alleged injury. 42 U.S.C. § 300aa-11(a)(2)(A); see Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 1478 (1995). If a plaintiff fails to file a petition under the Act before the plaintiff sues in state or federal court, the court is required to dismiss the action. 42 U.S.C. § 300aa-11(a)(2)(B). Plaintiffs did not file a petition under the Vaccine Act because plaintiffs assert that the Act covers claims brought by the individuals who suffer vaccine-related injuries but not claims brought by the parents of such individuals.
Plaintiffs allege that Case Redding was administered, among others, a measles-mumps-rubella vaccine and a hepatitis B vaccine. These vaccines are among those covered by the Vaccine Act. See 42 C.F.R. § 100.3(2002).
The Vaccine Act provides that "no per son may bring a civil action . . . for damages arising from a vaccine-related injury . . . unless a petition has been filed in accordance with [the Vaccine Act]." 42 U.S.C. § 300aa-11a(2)(A). This bar applies only to a person who has "sustained a vaccine-related injury or death and who is qualified to file a petition for compensation under the [Vaccine Act]." 42 U.S.C. § 300aa-11a(9). Only individuals who have sustained vaccine-related injuries or the legal representatives of such individuals may file a petition for compensation. 42 U.S.C. § 300aa-11b(1)(A). Thus, to the extent that parents file suit as a legal representative of their child to recover the child's damages, such a suit is covered by the Act. On the other hand, courts have long held that the Vaccine Act does not bar civil suits brought by parents, individually and on their own behalf, for their own damages arising from the vaccine-related injuries of their children. Schafer v. American Cyanamid Co., 20 F.3d 1, 6 (1st Cir. 1994) (noting that the Vaccine Court "has held that a parent can both obtain a loss of consortium 'award' from a state court . . . and also obtain compensation for her vaccinated (and injured) child from the Vaccine Court"); Owens v. American Home Products, 203 F. Supp. 748, 756 (S.D.Tex. 2002); see also Cook v. Children's Medical Group, 756 So.2d 734, 741 (Miss. 1999); McDonald v. Lederle Laboratories, 775 A.2d 528, 535 (N.J.Sup.Ct. 2001).
2. Plaintiffs' Claims for Lost Wages
Plaintiffs seek to recover "all past and future costs and expenditures necessitated by the mercury poisoning" of their son. (Pl.'s Petition for Damages, at 13.) At oral argument on August 7, 2002, plaintiffs indicated that they do not bring representative claims on behalf of their child and that they do not seek to recover for their child's medical or other expenses that are compensable under the Vaccine Act. Rather, plaintiffs seek to recover their own lost wages. At issue is whether recovery of costs of this nature lies outside of the Vaccine Act, so as to prevent the Vaccine Act from barring plaintiffs' claims.
The Vaccine Act provides a lengthy list of the compensation that may be provided to individuals who sustain vaccine-related injuries. This list includes the costs of "diagnosis, medical or other remedial care. . . , residential and custodial care and services expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary." 42 U.S.C. § 300aa-15a(1). Noticeably, the list does not include losses, like lost wages, incurred by parents. Indeed, to the contrary, the Act expressly prohibits compensation "for other than the health, education or welfare of the person who suffered the vaccine-related injury with respect to which the compensation is paid." 42 U.S.C. § 300aa-15d(2). The Vaccine Court interprets this provision to mean that compensation is allowed only when it directly benefits the victim herself. Schafer, 20 F.3d at 5; Neese v. Secretary of Health and Human Services, 1990 WL 541394, at *9 (Cl.Ct. Aug. 10, 1990). For this reason, the Vaccine Court has held that the Act does not cover compensation for parents' lost wages. Marston v. Secretary of Health and Human Services, 1998 WL 719493, at *10 (Cl.Ct. Sept. 29, 1998) Defendants cite no authority to the contrary. Rather, they assert that parental lost wages should be covered as expenses for residential or custodial care, but they cite no case law allowing such a recovery. Louisiana courts, on the other hand, recognize parents' rights to recover lost wages when they miss work to attend to an injured child. Fergins v. Caddo Parish School Board, 736 So.2d 943, 946 (La.Ct.App. 1999); see also Richard v. Walgreen's, 476 So.2d 1150, 1152 (La.Ct.App. 1985); Smith v. Trahan, 398 So.2d 572, 574 (La.Ct.App. 1980). Because plaintiffs assert their own, individual claims for damages, the Court finds that they are not barred by the Vaccine Act. Accordingly, the Court denies defendants' motion to dismiss these claims.
3. Plaintiffs' Claims for Loss of Consortium
Courts have squarely held that the Vaccine Act does not bar parents from bringing civil suits for loss of consortium. Schafer, 20 F.3d at 6. Louisiana law permits a parent to recover for the loss of consortium of their child. Darbone v. State of Louisiana, 815 So.2d 943, 954 (La.Ct.App. 2002). To prevail on claims for loss of consortium, plaintiff parents must prove (1) the liability of the defendant(s), (2) his or her child's damages, and (3) his or her own consequent loss of consortium damages. Keener v. Mid-Continient Casualty, 817 So.2d 347, 363 (La.Ct.App. 2002); Junot v. Morgan, 818 So.2d 152, 158 n. 5 (La.Ct.App. 2002); Gilbert v. Laborde, 632 So.2d 1162, 1169 (La.Ct.App. 1994). The elements of a parent's loss of consortium claim are "(1) loss of love and affection, (2) loss of society and companionship, (3) loss of performance of material services, (4) loss of financial support, (5) loss of aid and assistance, and/or (6) loss of fidelity. Not every element must be present for an award for loss of consortium to be made." Darbone, 815 So.2d at 954 (citations omitted)
Defendants assert that plaintiffs' claims for loss of consortium are "derivative" of the child's recovery and that there can be no recovery for loss of consortium until the child has first sought recovery pursuant to the Vaccine Act. Louisiana courts have held that loss of consortium claims are "derivative" of the primary victim's injuries but not in a way that compels dismissal of the claims before the Court. In the first line of cases to which defendants cite, courts interpreted contracts setting forth an insurer's liability to cover not only the primary victim's injuries, but also the "derivative" claims brought by relatives of the primary victim for loss of consortium. See Ferrell Fireman's Fund Insurance Co., 696 So.2d 569, 576 (La. 1997). These cases require the court to interpret the contract setting forth insurance coverage to determine whether the insurer agreed to cover claims for loss of consortium. The second line of cases to which defendants cite pertain to medical malpractice. Courts have held that the cap on recovery under Louisiana's medical malpractice law is "per patient rather than per plaintiff" and that loss of consortium claims are derivative of the injury to the patient. Hollingsworth v. Bowers, 690 So.2d 825, 832 (La.Ct.App. 1996) Therefore, loss of consortium claims are controlled by the "per patient" cap.
In both lines of cases, courts interpret the contract or the statute establishing the bounds of liability to determine whether that contract or statute was intended to cover claims for loss of consortium. On this point the Vaccine Act is clear: the Vaccine Act does not cover loss of consortium claims. Parents may file petitions with the Vaccine Court only in a representative capacity on behalf of their child, and they may not obtain compensation "for other than the health, education or welfare of the person who suffered the vaccine-related injury with respect to which the compensation is paid." 42 U.S.C. § 300aa-15(d)(2); see also Schafer, 20 F.3d at 6. The Vaccine Act does not bar the family members of children who sustained vaccine-related injuries from bringing civil suits for loss of consortium in state courts. Schafer, 20 F.3d at 5. Parents may sue for loss of consortium in state court before or after their child seeks recovery in the Vaccine Court. Id.
It is worth noting that whereas compensation provided for under the Vaccine Act is paid by the United States Government, compensation for claims of loss of consortium come from the pockets of the vaccine manufacturers. The Vaccine Act declines to spare vaccine manufacturers this expense.
Cf. Strauss v. American Home Products, No. 02-226 (S.D.Tex. June 11, 2002) (holding that the parents of a child sustaining vaccine-related injuries cannot recover for loss of consortium when the primary victim's claims for recovery are time-barred).
It is true that to recover on a claim of loss of consortium there must be an underlying tort, but the parents' claims are not dependent upon whether the primary victim secures a judgment in a court. Further, here the primary victim cannot secure a judgment on the vaccine manufacturer's negligence from the Vaccine Court, for the Vaccine Court looks only at causation, but does not consider defendants' negligence. For the foregoing reasons, the Court denies defendants' motion to dismiss plaintiffs' claims for loss of consortium.
4. Plaintiffs' Claims for Infliction of Emotional Distress
Last, defendants move to dismiss plaintiffs' claims for negligent infliction of emotional distress. Under Louisiana law, claims for negligent infliction of emotional distress are limited to "persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter." LA. Civ. CODE art. 2315.6(A) (2002). In addition, "the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable." LA. Civ. CODE art. 2315.6(B). The Louisiana Supreme Court has observed that "emotional distress usually occurs contemporaneously with the observance of the event." Trahan v. McManus, M.D., 728 So.2d 1273, 1279 (La. 1999). The Trahan court held that "[i]n order to recover, the claimant who observes the injury-causing event . . . must be contemporaneously aware that the event has caused harm to the direct victim." Id. Plaintiffs do not allege that they witnessed the vaccinations of Case Redding and that they were aware, at that time, that the vaccinations caused Case Redding harm. Rather, plaintiffs assert that the injuries to Case Redding came to light in the months and years following the vaccinations. Therefore, the Court dismisses with prejudice plaintiffs' claims of negligent inflection of emotional distress. See also Owens, 203 F. Supp.2d at 757-58 (noting that the Texas law of emotional distress requires the bystanders' presence when the accident occurred and the contemporaneous perception of the accident)
5. Transfer Pursuant to 16 U.S.C. § 1631
Transfer pursuant to 28 U.S.C. § 1631 is appropriate only if "the court finds that there is a want of jurisdiction." For the foregoing reasons, the Court finds that it has jurisdiction over plaintiffs' claims for loss of consortium and lost wages. Therefore, defendants' request to transfer these claims to the Vaccine Court is denied.
C. Lilly's Motion to Dismiss
Defendant Eli Lilly ("Lilly") moves to dismiss pursuant to Rule 12(b)(6) on the grounds that plaintiffs fail to allege any facts under which Lilly can be held liable to plaintiffs for Case Redding's alleged vaccine-related injuries. Plaintiffs bring claims under the Louisiana Products Liability Act ("LPLA"). LA. REV. STAT. ANN. §§ 9:2800.51-.59 (2002). They sue Lilly as a thimerosal manufacturer that supplied this chemical compound to the vaccine manufacturers. Specifically, plaintiffs allege that Case Redding's injuries were caused by the "unreasonably dangerous nature of [Lilly's] products." (Pl.'s Complaint, at 3.) Plaintiffs further allege that Lilly "did not provide an adequate warning of the known dangers of thimerosal." (Pl.'s Complaint, at 10.)
Lilly first argues that plaintiffs fail to allege specifically that defendant's thimerosal was included in any vaccine administered to plaintiffs' child. Under the LPLA, a plaintiff has an "obligation to identify the manufacturer of the allegedly defective product." Jefferson v. Lead Industries Association, Inc., 930 F. Supp. 241, 246 (E.D.La. 1996). This requirement is inherent in the LPLA's requirement that a plaintiff prove proximate causation. Id.; LA. REV. STAT. ANN. § 9:2800.54(D). Market share liability has never been adopted by a Louisiana court. Jefferson, 930 F. Supp. at 246. Plaintiffs, however, do not seek to recover on a theory of market share liability. Rather, unlike the plaintiff in Jefferson, plaintiffs assert that Lilly supplied thimerosal for use in vaccines made by other defendants. Plaintiffs, upon information and belief, allege that a contributory cause of plaintiffs' injuries was the thimerosal manufactured, supplied and sold by each of the defendants, including Lilly. (Pl.'s Complaint, at 12.) The Court finds that the specificity of plaintiffs' allegations to be sufficient to state a claim under the LPLA.
Lilly next asserts that even if its thimerosal were injected into Case Redding, plaintiffs claim must fail because Lilly owed no duty to warn ultimate purchasers under the LPLA. Lilly asserts that when bulk suppliers furnish products to manufacturers who are sophisticated users, they have no duty to warn ultimate purchasers of the risks of the final product. Under Louisiana law, a manufacturer of a product has no duty to warn when the user or handler of the product already knows or should know of the dangerous characteristic of the product. LA. REV. STAT. ANN. § 9:2800.57(B)(2). As there is no factual record before the Court upon which to base a finding that the vaccine manufacturers were sophisticated users, the Court cannot grant Lilly's motion to dismiss based on a sophisticated user theory.
Lilly also asserts that doctors are "learned intermediaries." Louisiana law provides that a manufacturer's duty to warn a consumer is fulfilled "'when the prescribing or treating physician is informed of any potential side effects or risks from the drug's use so that they may intelligently decide on its use and advise the patient.'" Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 267 (5th Cir. 2002) (quoting McCarthy v. Danek Med., Inc., 65 F. Supp.2d 410, 413 (E.D.La. 1999)). Here, plaintiffs' complaint indicates that the treating physician's knowledge is at issue. The Court will therefore not grant Lilly's motion to dismiss on this ground. Although Lilly may ultimately prevail on one of these defenses, the Court cannot dismiss plaintiffs' complaint when there has been no discovery and the factual bases for these defenses have not been established.
Lilly's final argument is that Case Redding could not have been injected with Lilly's thimerosal. Lilly supports this claim with a single affidavit indicating that Lilly stopped distributing thimerosal by 1992. (Def.'s Mot. to Dismiss, Ex. A.) Consideration of defendant's affidavit requires the Court to look beyond the pleadings, converting Lilly's motion to dismiss into a motion for summary judgment. See FED. R. Civ. P. 12(b)(6) and 12(C). The Court declines to rule on a motion for summary judgment at this time, as plaintiffs have not yet had a reasonable period of time in which to conduct discovery. Plaintiffs have stated a claim upon which relief can be granted, and the Court denies Lilly's motion to dismiss plaintiffs' claims pursuant to Rule 12(b)(6).
D. Stay
Defendants further request a stay of these proceedings pending resolution of issues presently before the Vaccine Court. For plaintiffs to recover on their claims for loss of consortium and lost wages, they must prove defendants' negligence. Although the issue of defendants' negligence is not before the Vaccine Court, one important and thorny element of negligence is, namely, causation. Defendants request that this Court stay proceedings pending the Vaccine Court's determination of whether thimerosal causes injuries like that sustained by Case Redding. Defendants assert that a stay of these proceedings would reduce the likelihood of inconsistent rulings. Defendants further assert that the policy behind the Vaccine Act is to spare vaccine manufacturers the expense of litigating the same issues in multiple courts.
Federal courts possess a "virtually unflagging obligation" to exercise the jurisdiction given them." Black Sea Investment, Ltd. v. United Heritage Corporation, 204 F.3d 647, 650 (5th Cir. 2000); Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244 (1976) Nevertheless, the Fifth Circuit recognizes that under certain circumstances federal courts may stay proceedings to avoid duplicative litigation and piecemeal resolution of issues that call for a uniform result. West Gulf Maritime Association v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). Based on similar reasoning, some courts have retained jurisdiction over parents' claims pertaining to their child's vaccine-related injuries, but stayed proceedings pending resolution by the Vaccine Court of the issue of causation. See, e.g., Pussak v. Aventis Pasteur, No. A-02-CA-480-55, at 8 (W.D.Tex. Sept. 9, 2002).
There are, however, two factors that counsel against a stay of these proceedings and compel the Court to meet its "unflagging obligation." First and foremost, unlike in Russak, plaintiffs' child has not sued on his own claims in the Vaccine Court, meaning that there is no Vaccine Court decision on Case Redding's claims to await. Second, even if the Court were to await the Vaccine Court's determination of the general issue of whether thimerosal in vaccines may cause injuries like those sustained by Case Redding, the Vaccine Act provides that in civil actions for vaccine-related injuries not barred by the Vaccine Act, the findings of fact, conclusions of law, and final judgment of either the United States Court of Federal Claims or a special master of petitions brought under the Vaccine Act are not admissible as evidence. 42 U.S.C. § 300aa-23(e). Therefore, the resolution of the issue of causation by the Vaccine Court does not control the resolution of this issue in this Court. Since this Court will have to determine causation in any case, the Court does not find that a stay to be in the interest of justice. Last, to the extent that defendants argue that the policy behind the Vaccine Act is to spare vaccine manufacturers the expense of duplicative litigation, it strikes the Court that Congress could have swept loss of consortium claims and lost wages claims within the purview of the Act, but it did not do so. The Court therefore denies defendants' motion.
Lilly asserts that this Court should stay proceedings against Lilly if it decides either to dismiss or to stay the proceedings against the vaccine manufacturers named as defendants in this lawsuit. As the Court neither dismisses nor stays these proceedings as to any of these defendants, Lilly's arguments for a stay are rejected.
III. Conclusion
For the foregoing reasons, the Court denies defendants SmithKline Beecham, Wyeth, Sigma-Aldrich, Merck and Aventis Pasteur's Motion to Dismiss, except that plaintiffs' claims for negligent infliction of emotional distress are dismissed with prejudice. The Court denies defendant Eli Lilly's Motion to Dismiss. Further, the Court declines to stay plaintiffs' claims pending the Vaccine Court's determination of the issue of causation.