Owens ex rel. Schafer v. American Home Prod.

• Decision Date: 07 May 2002
• Docket Number: No. CIV.A.G-02-185.,CIV.A.G-02-185.
• Parties: Jessica OWENS individually and as next friend to Jarrett Ross SCHAFER; Kenneth Brown and Cynthia Brown, individually and as next friends to Zachary Taylor Brown; and David Ward and Felicia Ward, individually and as next friends to Morgan Elizabeth Ward Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, et al. Defendants.
• Court: U.S. District Court — Southern District of Texas

203 F.Supp.2d 748

Jessica OWENS individually and as next friend to Jarrett Ross SCHAFER; Kenneth Brown and Cynthia Brown, individually and as next friends to Zachary Taylor Brown; and David Ward and Felicia Ward, individually and as next friends to Morgan Elizabeth Ward Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, et al. Defendants.

No. CIV.A.G-02-185.

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

May 7, 2002.

COPYRIGHT MATERIAL OMITTED

C. Andrew Waters, Walter & Kraus, Dallas, TX, Peter Andresen Moir, Quilling Selander, Dallas, TX, Dana Casselli Fox, Waters & Kraus, LLP, Dallas, TX, for Plaintiffs.

Susan E. Burnett, Clark, Thomas & Winters, Austin, TX, Rebecca Jo Reser, Ray McChristian, San Antonio, TX, Marsha M. Piccone, Freeborn & Peters, Denver, CO, Russell O. Stewart, Faegre & Benson, LLP, for American Home Products Corp., Aventis Pasteur Inc.

John R. Gilbert, John Ralph Gilbert, Gilbert & Moore PLLC, Angelton, TX, for Dow Chemical Co.

Marie S. Woodbury, Deborah A. Moeller, Shook, Hardy & Bacon, Kansas City, MO, Diana L. Panian, Shook Hardy, Houston, TX, for Eli Lilly & Co.

Marc A. Sheiness, Sheiness Scott, Houston, TX, for EM Industries Inc. John Martin Ribarits, Abbott Simses, Houston, TX, for GDL Intern.

Barclay A. Manley, Fulbright & Jaworski, Houston, TX, Stephanie A. Smith, Fullbright and Jaworski, Austin, TX, for Glaxosmithkline.

Richard L. Josephson, Baker & Botts, Houston, TX, for Merck & Co. Inc.

David Michael MacDonald, McCauley, MacDonald & Devin, Dallas, TX, for Sigma-Aldrich Corp., Sigma Aldrich, Inc.

John A. Scully, Cooper & Scully, Dallas, TX, John A. Scully, Houston, TX, Marcos A. Adrogue, Cooper & Scully, PC, Houston, TX, for Spectrum Chemical Manufact.

ORDER GRANTING IN PART AND DENYING IN PART WYETH, AVENTIS, MERCK AND SMITH KLINE'S MOTION TO DISMISS, DENYING SIGMA AND EM'S MOTION TO DISMISS, ORDERING PLAINTIFFS TO CONDUCT JURISDICTIONAL DISCOVERY OF GDL AND DENYING DEFENDANTS' REQUEST FOR ORAL ARGUMENT AS MOOT

KENT, District Judge.

Plaintiffs Jessica Owens, individually and as legal representative of her minor child Jarrett Ross Schafer ("Jarrett"); Kenneth Brown and Cynthia Brown, individually and as legal representatives of their minor child Zachary Taylor Brown ("Zachary"); and David Ward and Felicia Ward, individually and as legal representatives of their minor child Morgan Elizabeth Ward ("Elizabeth"); bring this products liability lawsuit against Defendants Sigma Aldrich Corporation ("Sigma Corp."); Sigma Aldrich, Inc. ("Sigma Inc."); Eli Lilly and Company ("Eli Lilly"); The Dow Chemical Company ("Dow"); EM Industries, Inc. ("EM"); Wyeth ("Wyeth") f/k/a American Home Products, Corp.; Aventis Pasteur, Inc. ("Aventis") f/k/a Connaught Laboratories f/d/b/a Pasteur Merieux Connaught; Merck and Company, Inc. ("Merck"); Smith Kline Beecham Corporation ("Smith Kline") d/b/a GlaxoSmithKline; Spectrum Laboratory Products, Inc. ("Spectrum"); and GDL International, Inc. ("GDL") pursuant to Texas state law. Now before the Court are three Motions to Dismiss filed by various Defendants: (1) a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b) and the National Childhood Vaccine Injury Act ("Vaccine Act"), 42 U.S.C. §§ 300aa-1-300aa-34, filed by Wyeth, Aventis, Merck and Smith Kline; (2) a Motion to Dismiss pursuant to the Vaccine Act and Fed.R.Civ.P. 19 filed by Sigma Corp. and Sigma Inc. (collectively, "Sigma") and joined by EM; and (3) a Motion to Dismiss for Lack of Personal Jurisdiction filed by GDL. For the reasons articulated below, Wyeth, Aventis, Merck and Smith Kline's Motion to Dismiss pursuant to the Vaccine Act is GRANTED IN PART and DENIED IN PART, Sigma and EM's Motion to Dismiss pursuant to the Vaccine Act is DENIED and Plaintiffs are hereby ORDERED to conduct jurisdictional discovery of GDL before responding to that Defendant's Motion to Dismiss.

I. Background

While they were infants, Jarrett, Zachary and Elizabeth were allegedly exposed to harmful levels of mercury via 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 thus, 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 on behalf of their children (as legal representatives). In their Original Petition, Plaintiffs assert four causes of action (strict liability, negligence, gross negligence and conspiracy) against two distinct categories of Defendants: (1) the manufacturers of thimerosal containing vaccines-Wyeth, Aventis, Merck and Smith Kline ("Vaccine Manufacturers"); and (2) the manufacturers of thimerosal itself-Eli Lilly, EM, Sigma, Dow, Spectrum and GDL ("Chemical Manufacturers").¹ Defendants subsequently removed the action pursuant to this Court's diversity jurisdiction.

II. 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. However, while most children enjoy measurable benefit from immunization programs, "a small but significant number of 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, 1986 U.S.C.C.A.N. at 6348. Fortunately, the National Vaccine Injury Compensation Program ("Program") ameliorates 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.² 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 6345-6346, and "free[s] manufacturers from the specter of large, uncertain tort liability, and thereby ... keep[s] 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 are initially heard by special masters in the United States Court of Federal Claims ("Vaccine Court"), adjudicated informally and then 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 being administered a vaccine, benefit from a presumption that a vaccine caused those injuries. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(i), 300aa-13(a)(1), 300aa-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 initially files a timely petition in accordance with the Program's guidelines.³ 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 compensation in a state or federal court for vaccine-related injuries prior to exhausting his or her remedies under the Vaccine Act, the Court must dismiss the action. See 42 U.S.C. § 300aa-11(a)(2)(B). Simply put, individuals who qualify as Program claimants must file petitions in the Vaccine Court in order to pursue any vaccine-related claims at all.⁴ Nonetheless, if an individual who prevails in the Vaccine Court is ultimately dissatisfied with his or her Program award, that individual may reject the award and pursue a traditional tort action in any forum.⁵ See 42 U.S.C. § 300aa-21(a).

III. Vaccine Manufacturers' Motion to Dismiss

In this case, it is undisputed that Plaintiffs have not filed a petition in the Vaccine Court in accordance with the Program. In their Motion to Dismiss, filed March 28, 2002, the Vaccine Manufacturers highlight this fact and argue that Plaintiffs' failure to file a Program petition requires the Court to dismiss all claims filed against them pursuant to Fed.R.Civ.P. 12(b).⁶ In response, Plaintiffs contend that they are not required to file a petition in the Vaccine Court because the children's injuries fall outside the scope of the Vaccine Act. Thus, the Court must initially determine whether Plaintiffs are required to file a Program petition for: (1) the claims they have filed on behalf of their children ("Representative Claims"); or (2) their individual claims that are derivative of the children's injuries ("Individual Claims").

Representative Claims Filed Against the Vaccine Manufacturers

A proper claimant under the Vaccine Act is "any person who has sustained a vaccine-related injury" or the legal representative of that person. 42 U.S.C. § 300aa-11(b)(1)(A). Therefore, if the children sustained "vaccine-related injuries," Plaintiffs are proper claimants under the Vaccine Act with respect to the Representative Claims. The Vaccine Act defines "vaccine-related injury" as "an illness, injury, condition or death associated...