King ex rel. King v. Aventis Pasteur, Inc., No. CV 01-1305 BR.

• Decision Date: 07 June 2002
• Docket Number: No. CV 01-1305 BR.
• Citation: 210 F.Supp.2d 1201
• Parties: Fredrick and Mylinda KING, parents and guardians ad litem for Jordan KING, a minor child; Betty Stafford, parent and guardian ad litem for Jerry N. Stafford III, a minor child; Bonnie and Steve Stierna, parents and guardians ad litem for Josie Stierna, a minor child; Mark Lindsey and Lien VU, parents and guardians ad litem for Lorenzo Quoc Anh Lindsey, and Dianne Doggett and Gary Fagelman, parents and guardians ad litem for August Fagelman, Plaintiffs, v. AVENTIS PASTEUR, INC., individually and as successor in interest to Connaught Laboratories, Inc., Pasteur Merieux, and Pasteur Merieux Connaught; Pfizer, Inc., a subsidiary of Warner-Lambert, Parke-Davis, Inc.; GlaxoSmithKline, individually and as a successor in interest to SmithKline Beecham Corp.; Merck & Company, Inc.; Abbott Laboratories; American Home Products dba Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories; Baxter International, Inc., individually and as successor in interest to Norht American Vaccine, Inc.; Eli Lilly & Company, Inc.; Gallipot, Inc.; Medisca, Inc.; Meridian Chemical and Equipment, Inc.; John Doe Corporate Defendants 1-20; Beverly Wittkopp, M.D.; Lori Gilmartin, M.D.; and Walter Buhl, M.D., Defendants.
• Court: U.S. District Court — District of Oregon

210 F.Supp.2d 1201

Fredrick and Mylinda KING, parents and guardians ad litem for Jordan KING, a minor child; Betty Stafford, parent and guardian ad litem for Jerry N. Stafford III, a minor child; Bonnie and Steve Stierna, parents and guardians ad litem for Josie Stierna, a minor child; Mark Lindsey and Lien VU, parents and guardians ad litem for Lorenzo Quoc Anh Lindsey, and Dianne Doggett and Gary Fagelman, parents and guardians ad litem for August Fagelman, Plaintiffs, v. AVENTIS PASTEUR, INC., individually and as successor in interest to Connaught Laboratories, Inc., Pasteur Merieux, and Pasteur Merieux Connaught; Pfizer, Inc., a subsidiary of Warner-Lambert, Parke-Davis, Inc.; GlaxoSmithKline, individually and as a successor in interest to SmithKline Beecham Corp.; Merck & Company, Inc.; Abbott Laboratories; American Home Products dba Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle

Laboratories; Baxter International, Inc., individually and as successor in interest to Norht American Vaccine, Inc.; Eli Lilly & Company, Inc.; Gallipot, Inc.; Medisca, Inc.; Meridian Chemical and Equipment, Inc.; John Doe Corporate Defendants 1-20; Beverly Wittkopp, M.D.; Lori Gilmartin, M.D.; and Walter Buhl, M.D., Defendants.

No. CV 01-1305 BR.

United States District Court, D. Oregon.

June 7, 2002.

Michael L. Williams, Kathleen M. Dailey, Thomas B. Powers, Williams Dailey O'Leary Craine & Love P.C., Portland, OR, for Plaintiff.

George S. Pitcher, Paul R. Duden, Tooze Duden Creamer Frank & Hutchinson, Portland, OR, Jeanne E. Walker, Marsha M. Piccone, Faegre & Benson LLP, Denver, CO, for Defendant Aventis Pasteur, Inc., individually and as successor in interest to Connaught Laboratories, Inc., Pasteur Merieux, and Pasteur Merieux Connaught.

William B. Crow, Richard L. Fortner, Miller Nash LLP, Portland, OR, for Defendant GlaxoSmithKline, individually as successor in interest to SmithKline Beecham Corp.

Peter R. Chamberlain, Molly Jo Mullen, Bodyfelt Mount Stroup & Chamberlain, Portland, Ralph A. Campillo, Wendy Tucker, Sedgwick Detert Moran & Arnold, Los Angeles, CA, for Defendant Merck & Company, Inc.

James H. Gidley, Perkins Coie, LLP, Portland, OR, Richard L. Josephson, Baker Botts LLP, Houston, TX, for Defendant Abbott Laboratories.

Margaret Hoffman, Joshua P. Stump, Schwabe Williamson & Wyatt, P.C., Portland, OR, Frank Lane Heard, III, Stephen L. Urbanczyk, Williams & Connolly, Washington, DC, for Defendant American Home

Products dba Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories.

Jonathan M. Hoffman, Mary Anne S. Rayburn, Martin Bischoff Templeton Langslet & Hoffman LLP, Portland, OR, J. Carter Thompson, Jr., Lee Davis Thames, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, MS, for Defendant Baxter International, Inc., individually and as successor in interest to North American Vaccine, Inc.

James L. Dumas, Edward T. Tylicki, Lindsay Hart Neil & Weigler LLP, Portland, OR, Marie S. Woodbury, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Eli Lilly & Company, Inc.

Janet Marie Schroer, Hoffman Hart & Wagner LLP, Portland, OR, for Defendant Beverly Wittkopp, M.D.

Steven P. Jones, Molly K. Marcum, Keating, Jones, Bildstein & Hughes, P.C., Portland, OR, for Lori Gilmartin, M.D.

Larry A. Brisbee, Brisbee & Stockton, Hillsboro, OR, for Walter Buhl, M.D.

AMENDED OPINION AND ORDER

(Nunc Pro Tunc June 7, 2002)

BROWN, District Judge.

Plaintiffs commenced these proceedings in state court as a potential class action on behalf of millions of children in the United States who allegedly have been or will be injured from exposure to mercury contained in "Thimerosal," a preservative found in various childhood vaccines. In their First Amended Complaint filed on July 31, 2001, Plaintiffs allege state law claims for negligence, common law fraud, strict products liability, and unjust enrichment. They seek money damages, equitable relief, and declaratory relief against various vaccine manufacturers, Thimerosal manufacturers, and physicians who allegedly administered the childhood vaccines.¹

On August 31, 2001, Defendants removed Plaintiffs' action to this Court. On October 1, 2001, Plaintiffs filed a Motion to Remand (# 18). On November 28, 2001, Magistrate Judge Donald C. Ashmanskas heard oral argument on the Motion. On January 7, 2002, the Magistrate Judge issued Findings and Recommendation (# 45) in which he recommended this Court grant Plaintiffs' Motion to Remand. Defendants filed timely Objections (# 46) to the Magistrate Judge's Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Fed. R.Civ.P. 72(b).

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir.1988); McDonnell Douglas Corp. v. Commodore Business Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

On April 3, 2002, this Court heard additional oral argument regarding Defendants' assertion that this Court has diversity jurisdiction over Plaintiffs' claims and, therefore, should deny Plaintiffs' Motion to Remand.² The parties subsequently provided the Court with supplemental briefs relating to diversity jurisdiction.

For the reasons that follow, the Court OVERRULES Defendants' Objections, ADOPTS the Magistrate Judge's Findings and Recommendation, and GRANTS Plaintiffs' Motion to Remand.

STANDARDS

An action filed in state court may be removed to federal court if the federal court would have had original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). The federal district courts have original subject matter jurisdiction over claims that arise under federal law. 28 U.S.C. § 1331. Federal courts also have original subject matter jurisdiction over actions in which the matter in controversy exceeds the sum or value of $75,000 exclusive of interest and costs and the parties are citizens of different states. 28 U.S.C. § 1332(a).

DISCUSSION

I. Introduction to the National Vaccine Injury Compensation Act

In 1986 Congress enacted the National Vaccine Injury Compensation Act (Vaccine Act), 42 U.S.C. § 300aa, et seq., in response to its concerns about the expense, delay, and unpredictability of the tort system in processing and compensating persons for vaccine injuries and the instability and uncertainty of the childhood vaccine market. H.R.Rep. No. 99-908, 99th Cong., 2d Sess. 7 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6348. Pursuant to the Vaccine Act, the victim of a "vaccine-related injury or death" may file a petition for compensation with a specialized tribunal of special masters of the United States Court of Federal Claims (Vaccine Court). 42 U.S.C. § 300aa-11(a)(1). The Vaccine Act prohibits a victim of a vaccine-related injury or death from filing a civil action for damages of more than $1,000 against a vaccine manufacturer or administrator unless the victim first files a petition in Vaccine Court pursuant to the Vaccine Act. 42 U.S.C. § 300aa-11(a)(2)(A). If the victim of a vaccine-related injury or death first files a civil action in either state or federal court, "the court shall dismiss the action." 42 U.S.C. § 300aa-11(a)(2)(B).

Pursuant to the Vaccine Act, a vaccine-related injury or death is

an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table, except that the term does not include an illness, injury, condition or death associated with an adulterant or contaminant intentionally added to such a vaccine.

42 U.S.C. § 300aa-33(5). The terms adulterant and contaminant are not defined by the Vaccine Act.

Under the Vaccine Act, a petitioner suffering from a vaccine-related injury may recover actual unreimbursable medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $250,000 in damages for pain and suffering or emotional distress, and reasonable attorneys' fees and costs. 42 U.S.C. § 300aa-15(a), (e). Punitive damages are prohibited. 42 U.S.C. § 300aa-15(d). In the event of a vaccine-related death, the estate of the deceased may recover $250,000 plus attorneys' fees and costs. 42 U.S.C. § 300aa-15(a), (e). Compensation awards under the Vaccine Act are paid from the Vaccine Injury Compensation Trust Fund, which is funded by excise taxes on certain vaccines. 42 U.S.C. § 300aa-15(i)(2); 26 U.S.C. § 9510(b)(1).

After the Vaccine Court issues a judgment, the petitioner may choose to reject the judgment and pursue a tort action in state or federal court. 42 U.S.C. § 300aa-21(a). The Vaccine Act, however, alters the nature of any civil action that follows in several ways:

• The vaccine manufacturer may not be held liable for "unavoidable" side effects of a properly-manufactured vaccine that was accompanied by proper directions and warnings even if the vaccine was defectively designed. 42 U.S.C. § 300aa-22(b)(1).

• If the vaccine manufacturer can show it complied with the requirements of the federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301, et seq., there is a presumption that the vaccine was accompanied by proper warnings and directions. The plaintiff may overcome this presumption only if he can show by clear and convincing evidence that the manufacturer failed to exercise due care, engaged in fraud or intentionally withheld safety information, or participated in other criminal activities relating to. 42 U.S.C. § 300aa-22(b)(2).

• The vaccine manufacturer is not liable for failure to warn the plaintiff or the plaintiff's parents directly of the potential dangers associated with the vaccine. 42 U.S.C. § 300aa-22(c)...