Blackmon v. American Home Products Corp.

• Decision Date: 02 June 2004
• Docket Number: No. G-02-179.,G-02-179.
• Citation: 328 F.Supp.2d 647
• Parties: Jay BLACKMON, et al., Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION d/b/a/ Wyeth, Inc., et al., Defendant.
• Court: U.S. District Court — Southern District of Texas

328 F.Supp.2d 647

Jay BLACKMON, et al., Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION d/b/a/ Wyeth, Inc., et al., Defendant.

No. G-02-179.

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

June 2, 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, Stephen Robert Lewis, Jr., Lewis & Williams, Galveston, 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 DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE

KENT, District Judge.

Plaintiffs Jay Blackmon and Kendel Blackmon, individually and as next friends of their minor child Todd Christopher Blackmon; Norman Keuhn and Melissa Keuhn, individually and as next friends of their minor child Brandon Hilton Keuhn; and Tim Scott and Sharon Scott, individually and as next friends of their minor child Colby Brennan Scott, bring this state-law products liability suit against Defendants Aventis Pasteur, Inc. ("Aventis"), the Dow Chemical Company ("Dow"), Eli Lilly & Company ("Eli Lilly"), EM Industries, Inc., individually and as successor in interest to Emerck ("EM"), GDL International, Inc. ("GDL"), GlaxoSmithKline, individually and as successor in interest to Smith Kline Beecham Corporation ("Smith Kline"), Merck & Company, Inc. ("Merck"), Sigma-Aldrich Corporation, individually and as successor in interest to Sigma Aldrich, Inc. ("Sigma"), Spectrum Chemical Manufacturing ("Spectrum"), and Wyeth. Now before the Court comes the Motion to Dismiss with Prejudice filed by Defendants Wyeth, Aventis, Merck, and Smith Kline ("the Vaccine Defendants"). For the reasons stated below, the Motion is hereby GRANTED.

I. Background and Facts

While they were infants, Todd Blackmon, Brandon Keuhn, and Colby Scott were allegedly exposed to harmful levels of mercury through routine childhood vaccinations administered to them by their pediatricians. 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 the children's bodies by way of vaccination allegedly afflicted them with serious and lasting neurological injuries.

Plaintiffs filed this action in a Texas state court seeking damages for the children's personal injuries, both individually and as legal representatives of their children. In their Original Petition, Plaintiffs assert four causes of action — strict liability, negligence, gross negligence, and conspiracy — against two groups of Defendants: (1) the manufacturers of thimerosal-containing vaccines — the Vaccine Defendants; and (2) the manufacturers of Thimerosal itself — Eli Lilly, EM, Sigma, Dow Spectrum, and GDL ("Chemical Defendants"). 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. The Vaccine Defendants filed their Motion to Dismiss with Prejudice on January 13, 2004, asserting that the claims asserted on behalf of Minor Plaintiffs Todd Christopher Blackmon and Brandon Hilton Kuehn are barred by Plaintiffs' failure to file timely petitions in the Vaccine Court. The Vaccine Defendants also urged dismissal of Plaintiffs' individual state-law claims for loss of consortium, loss of services, emotional distress, and medical expenses incurred on behalf of the Minor Plaintiffs. Plaintiffs timely responded, arguing that the Vaccine Act's limitations provision does not bar their claims, and if it does, it violates Plaintiffs' rights to due process, equal protection, and trial by jury.

II. Legal Standard

A party is entitled to dismissal under Rule 12(b)(6) when an opposing party fails to state a claim upon which relief may be granted. In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including attachments thereto. See Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss for failure to state a claim, the Court accepts as true all well-pleaded allegations in the complaint and views them in the light most favorable to the plaintiff. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000) (noting that a court must construe the complaint liberally in favor of the plaintiff); see also Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). "A motion to dismiss under Rule 12(b)(6) is viewed with disfavor and is rarely granted." Collins, 224 F.3d at 498. A motion to dismiss should be granted only when it appears without a doubt that a plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984))); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994).

III. Analysis

A. Claims Subject to the Vaccine Act

The "[v]accination of children against deadly, disabling, but preventable infectious diseases has been one of the most spectacularly effective public health initiatives this country has ever undertaken. Use of vaccines has prevented thousands of children's deaths each year and has substantially reduced the effects resulting from disease." H.R.Rep. No. 99-908, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6345. While most children enjoy measurable benefit from immunization programs, "a small but significant number have been gravely injured." Id. Two significant concerns accompany these vaccine-related injuries: the inconsistency, expense, delay, and unpredictability of the tort system in compensating claims of vaccine-injured children; and 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. The National Vaccine Injury Compensation Program ("Program") was designed to ameliorate these concerns. The Program provides an 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, and "free[s] manufacturers from the specter of large, uncertain tort liability, and thereby ... keeps manufacturers in the market." Schafer v. Am. Cyanamid Co., 20 F.3d 1, 4 (1st Cir.1994).

The Program, set forth in the Vaccine Act, requires that vaccine-related claims be heard initially by special masters in the United States Court of Federal Claims ("Vaccine Court"), adjudicated informally, and accorded expeditious review. See Whitecotton, 514 U.S. at 270, 115 S.Ct. at 1478. This system streamlines the claims process by establishing standards of proof under which individuals who suffer injuries within specified intervals after the administration of a vaccine benefit from a presumption that the vaccine caused their injuries. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(i), -13(a)(1), -14; Haggerty v. Wyeth Ayerst Pharm., 79 F.Supp.2d 182, 184 (E.D.N.Y.2000). A Program claimant may not file a civil action against a vaccine manufacturer or administrator unless the claimant first files a timely petition in accordance with the Program's guidelines.¹ See 42 U.S.C. § 300aa-11(2)(A); Whitecotton, 514 U.S. at 270, 115 S.Ct. at 1478 (explaining that a claimant alleging an injury after the Vaccine Act's effective date "must exhaust the Act's procedures ... before filing any de novo civil action in state or federal court"). If a claimant seeks...