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An 8-year-old girl harmed by a vaccine she received as a newborn cannot sue the vaccine’s manufacturer in state court because her mother failed to comply with the requirements of a federal no-fault liability law, an Illinois appeals court has ruled. The decision may be only the third one published that addresses the question. Dickey v. Connaught Laboratories, No. 3-01-062. Under the National Childhood Vaccine Injury Act of 1992 (42 U.S.C. 300), a child provably hurt by a vaccine can automatically recover damages. But the child must file suit under the act in the U.S. Court of Claims within three years of the first appearance of symptoms. A claimant who is unhappy with the federal court outcome can then elect to sue for damages in a state court. On July 25, the Illinois Appellate Court, 3rd District, ruled that Krystal Dickey’s failure to file such a federal court claim in a timely fashion on behalf of her daughter, Gina, barred a later-filed strict products liability suit Dickey brought against Connaught in an Illinois state court, even though that second suit was timely filed under Illinois law. Gina Dickey received a diphtheria, tetanus and pertussis (DTP) shot made by Connaught four months after she was born in 1994. She immediately developed vaccine encephalopathy and is now functionally retarded, her attorney said. Her mother waited 11 days past her three-year deadline before filing with the Court of Claims. When that suit was dismissed, she filed the state action. That claim was thrown out on a motion by Connaught arguing that Dickey failed to comply first with the federal act. The appeals court’s ruling affirmed that trial court decision. Dickey’s lawyer, Darlene D. Soderberg of Rockford, Ill., conceded that the federal claim was filed late, but emphasized that her client had gone through the claims court process and was entitled to file a state law suit. “We complied not with the letter of the law, but with the meaning of the law,” she said. Soderberg noted that although the act expressly says that it does not pre-empt state law, by imposing its three-year filing deadline, it effectively does. “An incompetent minor should be allowed more time to have her case heard in state court,” she said. Speaking for Connaught, attorney Thomas Murray of Chicago said the appellate court decision establishes that the act is “the vehicle under which minors are to be compensated for alleged vaccine injuries.” Echoing the court, Murray, a partner at New York’s Wilson, Elser, Moskowitz, Edelman & Dicker, said that notwithstanding Gina’s minority status, the act requires a claim to be filed within three years. “If that isn’t done, then a state law claim is barred,” he said. Dissenting Justice Peg Breslin had asserted that the act does not in fact say that a plaintiff is barred forever from seeking a state law remedy if a petition is not timely filed. Breslin contended that even if Dickey’s case was filed late, she had pressed the issue to a final judgment from the Court of Claims and had “substantively complied with the act.” Murray’s associate, Laura Geiger, took issue with that interpretation, stating that the act required timely filing and the rendering of a final judgment. “The dissent is just looking at the judgment part,” Geiger said. In February, U.S. Representative Dan Burton, R-Ind., introduced legislation that would extend the act’s filing deadline to six years. That bill, HR-3741, is pending.

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