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Senior U.S. District Judge Norma L. Shapiro has ruled that a drug products liability lawsuit over a child who was allegedly rendered autistic due to adverse reactions to a battery of vaccinations must be litigated in the state courts even though the defendants plan to argue that the plaintiff failed to comply with the federal National Childhood Vaccine Injury Act. In Cheskiewicz v. Aventis Pasteur Inc., et al., Shapiro, of the Eastern District of Pennsylvania, found that the Vaccine Act does not create “federal question” jurisdiction. And since two of the 16 named defendants are Pennsylvania corporations, Shapiro found the suit failed to meet the requirements for diversity jurisdiction. Defense lawyers argued that the plaintiffs had fraudulently joined the two Pennsylvania companies — GlaxoSmithKline and Aventis Pasteur — for the purpose of defeating diversity jurisdiction. If Shapiro dismissed the two “sham” defendants, the defense lawyers said, the case would satisfy the jurisdictional requirement of “absolute diversity” of citizenship. The defense said in its briefs that GlaxoSmithKline and Aventis were “sham” defendants because the Vaccine Act prohibits a civil action for damages arising from a vaccine-related injury unless a petition for compensation has first been filed in the Vaccine Court. But Shapiro found that the argument was “irrelevant” because “the effect of the Vaccine Act on plaintiffs’ claims are not unique to GlaxoSmithKline and Aventis.” Instead of proving a “fraudulent joinder,” Shapiro said, the defense did nothing more than identify a legal issue that can be asserted by any of the defendants. “However meritorious those defenses may be, they are not unique to the non-diverse parties. Their disposition is a merits determination which must be made by the state court,” Shapiro wrote. According to the suit, Alan J. Cheskiewicz was born in May 1994 and received 14 doses of vaccines from his pediatrician in December 1995. The suit says the vaccines contained an “adulterant,” Thimerosal, which allowed the vaccine manufacturers to package vaccines in multidose vials. Thimerosal contains unsafe amounts of mercury, the suit says, and has since been removed from all vaccines intended for infants in the United States. Soon after receiving the shots, Alan “began to regress” from age-appropriate developmental milestones, the suit says. He has since been diagnosed with “disintegrative autism or Autism Spectrum Disorder (ASD) caused by mercury toxicity.” The suit alleges eight claims, all grounded in state law — strict liability in manufacturing; strict liability due to a failure to warn; negligence in manufacturing, marketing and sale; breach of an implied warranty of merchantability; breach of express warranty; fraud; gross negligence; and claims by the parents for medical expenses. Named as defendants in the suit are Aventis Pasteur; Connaught Laboratories Inc.; Pasteur Merieux; GlaxoSmithKline; SmithKline Beecham Corp.; American Home Products Corp.; Wyeth-Ayerst Laboratories; Wyeth Lederle Vaccines; Lederle Laboratories; Merck & Co.; Pfizer Inc.; Parke-Davis Inc.; Abbott Laboratories; Eli Lilly & Co.; Sigma-Aldrich Inc.; and American International Chemical Inc. Also named were 10 “John Doe” defendants. Soon after the defense lawyers removed the suit to federal court, Shapiro on her own asked for briefs on the question of jurisdiction. The plaintiffs’ lawyers, Michele A. DiMartino and Christopher A. Gomez of Miller & Associates in Bala Cynwyd, Pa., responded by moving for remand to the Philadelphia Court of Common Pleas. But defense lawyers urged Shapiro to follow a recent trend established in the federal courts in Florida, Texas and Mississippi to hold that claims arising from Thimerosal poisoning are covered by the Vaccine Act. In a pair of decisions handed down on Aug. 1 in the Southern District of Mississippi — McDonald v. Abbott Labs and Collins v. American Home Products Corp. — a judge vacated an earlier remand order on reconsideration and held that recent actions by the Vaccine Court compelled the conclusion that plaintiffs had no independent claim for Thimerosal-related injuries. And two decisions earlier this year — Owens v. American Home Products Corp. in the Southern District of Texas and Demos v. Aventis Pasteur Inc. in the Southern District of Florida — dismissed all claims under the Vaccine Act. But Shapiro found there was just as strong a trend flowing in the opposite direction in three unpublished decisions handed down this year. In April, May and June, Shapiro said, federal judges in the Western District of Washington, the Northern District of California and the District of Oregon confronted similar fact patterns and ordered the cases remanded to the state courts. Shapiro found that the defense team had failed to show that the Vaccine Act defense proved that the two Pennsylvania defendants were fraudulently joined. “Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment,” Shapiro wrote. “But if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court,” she wrote. When there are “colorable” claims or defenses asserted against or by diverse and non-diverse defendants alike, Shapiro said, “the court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses.” Instead, she said, “that is a merits determination which must be made by the state court.” Abbott was represented by Joseph E. O’Neill of Philadelphia-based Lavin, Coleman, O’Neill, Ricci, Finarelli & Gray; Aventis Pasteur was represented by Jonathan Dryer of Wilson, Elser, Moskowitz, Edelman & Dicker; and American International Chemical was represented by John W. Dornberger of Philadelphia-based Post & Schell. Eli Lilly was represented by E. David Chanin of Philadelphia’s Tannenbaum & Chanin; GlaxoSmithKline was represented by Nina M. Gussack of Philadelphia-based Pepper Hamilton; and Merck & Co. was represented by Geff Blake and Patricia C. Collins of Elliott Reihner Siedzikowski & Egan of Blue Bell, Pa. Sigma-Aldrich was represented by Denise H. Houghton of Philadelphia-based Cozen O’Connor, and Wyeth was represented by F. Lane Heard III of Williams & Connolly in Washington, D.C., along with Michael T. Scott of Reed Smith in Philadelphia.

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