Evans ex rel. Evans v. Lederle Laboratories

Decision Date03 February 1999
Docket NumberNo. 98-1293,98-1293
Citation167 F.3d 1106
PartiesKathleen EVANS, as Conservator of Jessica EVANS, a protected person, Plaintiff-Appellant, v. LEDERLE LABORATORIES, Link Clinic, and O. Sharma, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph Phebus, Phebus & Winkelmann, Urbana, IL; Nancy J. Glidden (argued), Phebus & Winkelmann, West Chester, PA, for Kathleen Evans.

Michael A. Pollard (argued), Thomas F. Bridgman, Baker & McKenzie, Chicago, IL; Peter W. Brandt, Livingston, Barger, Brandt & Schroeder, Bloomington, IL, for Lederle Laboratories.

Richard C. Hayden (argued), Richard F. Record, Jr., Craig & Craig, Mattoon, IL, for Link Clinic and O. Sharma.

Before CUDAHY, COFFEY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

During the first year of her life, Jessica Evans received three doses of a diphtheria pertussis and tetanus (DPT) vaccine manufactured by Lederle and administered by Sharma, a physician, at the Link Clinic. Several years later, Jessica's mother, Kathleen Evans, filed suit on her behalf seeking to recover damages for injuries allegedly caused by the vaccine. A confusing chronology of litigation ensued culminating in this appeal.

On August 14, 1985, Evans sued the Link Clinic and Sharma in state court. That action was voluntarily dismissed without prejudice to make way for a diversity action filed in the district court on June 8, 1990, naming as defendants Lederle, the Link Clinic and Sharma. On October 1, 1990, Evans filed suit in the Court of Claims seeking an award under the National Childhood Vaccine Injury Act (the "Vaccine Act"), 42 U.S.C. § 300aa-1 et seq. That filing necessitated the voluntary dismissal of the pending diversity action. When the Court of Claims subsequently dismissed the Vaccine Act claim with prejudice, Evans went back to the district court and refiled the diversity action on February 28, 1995. The Link Clinic and Sharma moved to dismiss the claims against them pursuant to the Illinois saving statute which allows a plaintiff just one opportunity to refile an action that has been voluntarily dismissed. See 735 ILCS 5/13-217. The magistrate judge determined that the Illinois rule was preempted by the Vaccine Act and recommended that Evans be allowed to proceed with her action. But the district court rejected the magistrate judge's recommendation on the ground that the Illinois rule was not preempted. Applying the Illinois rule, the court dismissed the Link Clinic and Sharma from the case and subsequently granted Lederle's motion for judgment on the pleadings. We affirm.

I.

We review de novo the district court's decision to dismiss the Link Clinic and Sharma as defendants. A motion to dismiss is granted only if "it appears beyond doubt that the plaintiff can prove no facts sufficient to support [her] claim for relief, and the facts in the complaint are viewed in the light most favorable to the non-moving party." Flenner v. Sheahan, 107 F.3d 459, 461 (7th Cir.1997); see also City Nat. Bank of Florida v. Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir.1994). A motion for judgment on the pleadings is reviewed under the same standard as a motion to dismiss. See Flenner, 107 F.3d at 461; Frey v. Bank One, 91 F.3d 45, 46 (7th Cir.1996), cert. denied, 519 U.S. 1113, 117 S.Ct. 954, 136 L.Ed.2d 841 (1997). Thus, we also review the district court's decision to enter judgment on the pleadings in favor of Lederle de novo applying the same principles.

The Vaccine Act provides a no-fault compensation system for individuals harmed by childhood vaccines. The system involves a special procedure whereby a vaccine-injury plaintiff files a petition in the Court of Claims, naming the Secretary of Health and Human Services as respondent, seeking an award to be administered from a fund financed by a tax on vaccines. See 42 U.S.C. § 300aa-11 et seq. Recourse to the Court of Claims is mandatory as a general rule. See 42 U.S.C. § 300aa-11(a)(2)(A). However, a plaintiff, such as Evans, who was already in the throes of civil litigation when the Act came into effect was permitted but was not required to dismiss her civil action and bring a compensation claim under the Act. 1 See Amendola v. Secretary, Dept. Health & Human Serv., 989 F.2d 1180, 1184 (Fed.Cir.1993) (explaining the effect of the Act on pending litigation).

A curious feature of the Act is that filing a petition in the Court of Claims--whether mandatory or optional--does not signal the abandonment of traditional tort rights. Once proceedings in the Court of Claims have run their course, the vaccine-injury plaintiff is allowed to jump ship and initiate or resume a civil action. 2 Congress thus created a bias in favor of the federal compensation scheme by requiring vaccine-injury plaintiffs to exhaust the remedy under the Act before resorting to civil litigation. The result is "a new remedial system that interacts in a complicated way with traditional tort lawsuits." Schafer v. American Cyanamid Co., 20 F.3d 1, 3 (1st Cir.1994). It is in sync with this pas de deux between Vaccine Act claims and conventional lawsuits that we must hop in deciding this appeal.

Evans's original diversity action was pending in the district court when the Vaccine Act came into effect. She exercised her option to proceed under the Act and, having voluntarily dismissed the diversity action, filed a petition in the Court of Claims on October 1, 1990. The petition was dismissed with prejudice pursuant to a joint stipulation. 3 Evans then elected to return to the district court and filed the present diversity action. 4 She advances two principal arguments--essentially a reiteration of the magistrate judge's view--in support of her bid to maintain that action. First, Evans contends that the Illinois saving statute is preempted by the Vaccine Act and therefore cannot operate to bar her suit. Alternatively, Evans argues that the refiling of her diversity action does not offend the Illinois rule.

II.

In determining whether a federal statute preempts state law, "our ultimate task is to ascertain the intent of Congress." American Agric. Movement, Inc. v. Board of Trade, 977 F.2d 1147, 1154 (7th Cir.1992). We have noted that the Act restricts but does not eliminate the exercise of traditional tort rights. In fact, the Act not only recognizes the possibility of civil actions but goes a step further and declares that "[s]tate law shall apply to a civil action brought for damages for a vaccine-related injury or death." 42 U.S.C. § 300aa-22(a). Nevertheless, Evans contends that Congress expressly preempted the Illinois saving statute by virtue of the following provision:

No State may establish or enforce a law which prohibits an individual from bringing a civil action against a vaccine manufacturer for damages for a vaccine-related injury or death if such civil action is not barred by this part.

42 U.S.C. § 300aa-22(e). Evans advocates a broad construction of this provision that would preclude any state rule that operates to prohibit a civil action against a vaccine manufacturer. Since the Illinois saving statute has this effect, Evans asserts that the rule cannot be applied consistent with the Act. The district court rejected this argument and held that § 300aa-22(e) does not extend to state statutes of limitations including the Illinois saving statute. Thus, before addressing whether Congress intended to preempt state statutes of limitations, we must first clarify whether the saving statute's one-refiling rule is properly classified as a rule of limitation.

The Illinois statute of limitations does not expressly bar two or more refilings of a suit. Rather, the one-refiling rule has developed as a judicial gloss on the saving statute which provides in relevant part:

Reversal or Dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction.

735 ILCS 5/13-217. 5 The section is a saving provision "which allows a plaintiff to refile a cause of action if its prior disposition was based on the reasons outlined in the statute." Timberlake v. Illini Hosp., 175 Ill.2d 159, 221 Ill.Dec. 831, 676 N.E.2d 634, 636 (1997). But while the one-year grace period is a boon for plaintiffs, Illinois courts have consistently held that the section permits no more than one refiling within that period. See id. ("[section 13-217] was not intended to permit multiple refilings of the same action"); Flesner v. Youngs Development Co., 145 Ill.2d 252, 164 Ill.Dec. 157, 582 N.E.2d 720, 720 (1991) ("We interpret the language of section 13-217 as providing for one and only one refiling regardless of whether the applicable statute of limitations has expired."); Gibellina v. Handley, 127 Ill.2d 122, 129 Ill.Dec. 93, 535 N.E.2d 858, 864 (1989) ("While a [voluntary dismissal] motion in conjunction with section 13-217 may protect the right of a plaintiff to have a decision in the particular case made on the merits...

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