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Wrongful Death Claims related to Vaccination Barred by Ninth Circuit

Posted by: on Tue, Oct 02, 2012

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Wrongful death claims related to Vaccination Barred by Ninth Circuit

The Ninth Circuit on September 25, 2012 issued a ruling that bars a Nevada couples’ complaint against Merck & Co., Inc. for the death of their baby from vaccination side effects. Erin and Shawn Holmes appeal to the Ninth Circuit from the Nevada District Court’s grant of summary judgment in favor Merck in their diversity action alleging wrongful death. They contended that the District Court had erred in applying the standards of the National Childhood Vaccine Injury Act to their individual claims for damages.

When Jacob Holmes was one year old, his pediatrician administered M-M-R II, (a common vaccination against Measles, Mumps and Rubella) manufactured and distributed by Merck, and in conformity with the recommendations established by the Centers for Disease Control and Prevention. Within just nine days, Jacob began experiencing seizures and developed encephalopathies. He died approximately six months later. Acting on behalf of their son Jacob’s estate, the parents Erin and Shawn Holmes petitioned for compensation from the government fund created by the Vaccine Act. They received $250,000 through that program. Subsequently, the parents initiated a wrongful death suit in Clark County Nevada under Nevada Revised Statute §41.085. The question on appeal to the Ninth Circuit was whether the National Childhood Vaccine Injury Act preempts all or part of the Plaintiff’s claims. The Ninth Circuit held that given the structure and broad purpose of the Vaccine Act as a whole, it is most reasonable to apply Section 22 to bar all design defect and failure to warn claims arising out a vaccine related injury or death, not just those that could have been brought in the vaccine court.

The Ninth Circuit noted that if it were to conclude that the parents of those suffering a vaccine related injury could bring design defect and failure to warn claims outside of Section 22 limitation, then the court would be acting contrary to the statute’s central purpose of managing vaccine manufacturers liability. The court felt that such a holding would do little to protect the vaccine manufacturers from lawsuits.

In the parents’ original complaint there were eight claims for relief in the State wrongful death action. The Court noted that application of Section 22 affects only two of those claims, the strict products liability claim and the negligent claims, to the extent that they were based upon allegations of design defect and failure to warn. Therefore six of the Plaintiff’s claims remained unaffected by the act and each of those provided possible remedies to injuries suffered as a result of vaccine related illnesses and death. The lower court nevertheless had summarily dismissed all remaining claims.

The Court noted that Merck had produced evidence that it had complied with all regulatory requirements relating to the vaccine and that the Plaintiffs failed to submit evidence efficient to show that the vaccine had not been properly prepared or that it had not been accompanied by proper directions and warnings.

The couple had previously petitioned for compensation from the Vaccine Act fund, and received $250,000. While not an insignificant amount, it was still far less than the standard wrongful death award, so the couple filed a suit against Merck in Nevada. Their complaint alleged negligence, strict product liability, negligent design, failure to warn, misrepresentation, express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and punitive damages.

Merck removed the case to federal court, and filed a motion for summary judgment, arguing that the Vaccine Act foreclosed the lawsuit. Both the district court and the Ninth Circuit Court of Appeals agreed with Merck. Until published, the September 25, 2012, opinion can read here: