Blackmon v. American Home Products Corp.

• Decision Date: 09 July 2004
• Docket Number: No. CIV.A. G-02-179.,CIV.A. G-02-179.
• Parties: Jay BLACKMON, et al., Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

328 F.Supp.2d 659

Jay BLACKMON, et al., Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants.

No. CIV.A. G-02-179.

United States District Court, S.D. Texas, Galveston Division.

July 9, 2004.

COPYRIGHT MATERIAL OMITTED

Peter Andersen Moir, Quilling Selander et al., C. Andrew Waters, Walter & Kraus, Tanja Karin Martini, Hermes Sargent et al., Dallas, TX, for Plaintiffs.

Michael R. Klatt, Clark Thomas and Winters, Susan E. Burnett, Clark Thomas & Winters, Austin, TX, Daniel J. Thomasch, Orrick Herrington et al., Lauren S. Elliot, Orrick Herrington et al., New York City, Rebecca Jo Reser, Davidson & Trolilo, San Antonio, TX, Jeanne E. Walker, Faegre & Benson LLP, Russell O. Stewart, Faegre & Benson LLP, Denver, CO, John R. Gilbert, Gilbert & Moore PLLC, John Ralph Gilbert, Gilbert & Moore PLLC, Angleton, TX, Sandra Lynn Phillips, Baker Hostetler LLP, Houston, TX, Douglas W. Poole, McLeod Alexander et al., Galveston, TX, Andrew See, Shook Hardy LLP, Kansas City, MO, Diana L. Panian, Gardere Wynne et al., Houston, TX, Deborah A. Moeller, Shook Hardy et al., Kansas City, MO, Erik V. Larson, Preis Kraft and Roy, Houston, TX, Jeffery A. Kruse, Shook Hardy et al., Kansas City, MO, Marc A. Sheiness, Sheiness Scott et al., Barclay A. Manley, Fulbright & Jaworski, Richard L. Josephson, Baker & Botts, Houston, TX, David Michael Macdonald, McCauley Macdonald & Devin, Dallas, TX, John Wesley Raley, III, Cooper & Scully, Houston, TX, John A. Scully, Cooper & Scully, Dallas, TX, for Defendants.

Kim Parker, Splendora, TX, Pro se.

Alan R. Strauss, Houston, TX, Pro se.

Tracy D. Strauss, Houston, TX, Pro se.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, AND GRANTING DEFENDANTS' MOTION TO STRIKE

KENT, District Judge.

This is a products liability action brought by minor Plaintiff Colby Brennan Scott, by and through his parents Tim and Sharon Scott (collectively "Plaintiffs"), against certain manufacturers of childhood vaccines. Plaintiffs allege that various vaccines administered to Colby Scott from February 1998 to March 1999 contained thimerosal, a mercury-based preservative, which caused him to suffer neurological injuries. Now before the Court comes the Motion for Summary Judgment filed by Defendant Wyeth as well as the Motion for Partial Summary Judgment as to Design Defect and Warnings Claims and Motion to Dismiss, or Alternatively to Strike Allegations Pursuant to Rules 9(b), 12(b)(6), and 12(f) as to Marketing Defect, Fraud and Conspiracy, and Punitive Damages Claims, filed by Defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("SB"). Defendants Aventis Pasteur, Inc. ("Aventis") and Merck & Co., Inc. ("Merck") join in both Motions. For the reasons stated below, the Motions are GRANTED IN PART and DENIED IN PART.

I. Background and Facts

While he was an infant, Colby Scott was allegedly exposed to harmful levels of mercury through routine childhood vaccinations administered by his pediatrician. All or some of the vaccines contained thimerosal, a mercury-laden preservative. At that time, vaccine manufacturers routinely added thimerosal to multiple-use vials of vaccines to extend each vial's shelf life. The thimerosal (and with it, mercury) introduced into Colby Scott's body by way of vaccination allegedly caused serious and lasting neurological injuries.

Plaintiffs filed this action in a Texas state court seeking damages for Colby Scott's personal injuries. In their Original Petition, Plaintiffs asserted multiple counts against two groups of Defendants: (1) the manufacturers of thimerosal-containing vaccines, including Wyeth, SB, Aventis, and Merck; and (2) the manufacturers of Thimerosal itself. Defendants removed the case pursuant to the Court's diversity jurisdiction.

On March 3, 2003, the Court Granted the Vaccine Defendants' Motion to Abate Proceedings and Ordered that the case be administratively stayed pending the resolution of Plaintiffs' claims before the Vaccine Court as required by the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-1 et seq. ("the Vaccine Act"). Pursuant to the Court's Order Conditionally Granting Plaintiffs' Motion to Dissolve Stay and Granting Leave to File Amended Complaint, the administrative stay was dissolved on December 31, 2003. Plaintiffs filed their Amended Complaint on January 5, 2004, asserting claims of strict liability, negligence, gross negligence, fraud, and conspiracy. On March 5, 2004, Wyeth filed its Motion for Summary Judgment, and SB filed its Motion for Partial Summary Judgment and Motion to Dismiss, or Alternatively to Strike. Plaintiffs timely responded to both Motions.

II. Design Defect and Failure to Warn

A. Legal Standard

Wyeth, SB, Aventis, and Merck move for summary judgment on Plaintiffs' design defect and failure-to-warn claims. Summary judgment is appropriate if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When one party moves for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are "genuine" only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

B. The Vaccine Act Bars Plaintiffs' Design Defect Claims.

Plaintiffs' claims are covered by the Vaccine Act, which Congress passed to preserve the supply of vaccines and thereby prevent "deadly, disabling, but preventable infectious diseases." H.R.Rep. No. 99-908, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6345. Congress found the vaccination of children to be "one of the most spectacularly effective public health initiatives this country has ever undertaken," which "prevented thousands of children's deaths each year and has substantially reduced the effects resulting from disease." Id.

Congress also recognized that while most children derived a great benefit from childhood vaccination, "a small but significant number have been gravely injured." Id. These inevitable vaccine-related injuries raise two concerns: (1) the inconsistency, expense, delay, and unpredictability of the tort system in compensating claims of vaccine-injured children; and (2) the instability and uncertainty of the childhood vaccine market inevitably caused by the risks of tort litigation. See id. at 7, 186 U.S.C.C.A.N. at 6348. Congress passed the Vaccine Act in response to an upsurge of vaccine-related litigation that threatened to drive manufacturers away from vaccine production or to cause remaining manufacturers to increase their prices significantly. See Schafer v. Am. Cyanamid Co., 20 F.3d 1, 4 (1st Cir.1994) (discussing congressional testimony by vaccine manufacturers regarding insurance and litigation costs). The Vaccine Act reflects a congressional determination that the disappearance or unavailability of childhood vaccines would cause far greater harm than the inevitable but limited injuries caused by the vaccines themselves. To offset the vicissitudes of the tort system and provide compensation for victims of childhood vaccines, the Vaccine Act established the National Vaccine Program, which provides a unique avenue of recovery for injuries and deaths traceable to vaccinations that works with greater ease and on a faster timetable than the civil tort system. See Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 1478, 131 L.Ed.2d 374 (1995). In effect, it "ensure[s] that all children who are injured by vaccines have access to sufficient compensation for their injuries," H.R.Rep. No. 99-908 at 4, 1986 U.S.C.C.A.N. at 6345-46. The Vaccine Act also includes certain limitations on tort claims designed to "free manufacturers from the specter of large, uncertain tort liability, and thereby keep vaccine prices fairly low and keep manufacturers in the market." Schafer v. Am. Cyanamid Co., 20 F.3d 1, 4 (1st Cir.1994).

The Vaccine Act provides that, with certain exceptions, "State law shall apply to a civil action brought for damages for a vaccine-related injury or death." 42 U.S.C. § 300aa-22(a). Defendants argue that Plaintiffs' design defect claims are barred by § 22(b) of the Vaccine Act, which provides

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

42 U.S.C. § 300aa-22(b)(1). Defendants construe this section of the Vaccine Act to impose a total bar on design defect claims arising from vaccine-related injuries. Plaintiffs disagree with Defendants' construction of the Vaccine Act, which in their view only bars design defect claims if the side effects are...