On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10339- 98.
Before Judges Wallace, Jr., Lintner and Parrillo.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to 300aa-34 (the Act) provides a federal no-fault system for compensating vaccine-related injuries or death by establishing a claim procedure involving the United States Court of Federal Claims and special masters. See 42 U.S.C. § 300aa-12.
Where the vaccine is administered after the effective date of the Act, a petitioner is required to file a claim petition within thirty-six months after the date of the occurrence of the first symptom or manifestation of the onset of injury. Id. at § 300aa- 16(a)(2). Whether compensation is awarded or not, the Act provides that the petitioner may make an election to either accept the judgment or file a civil action for damages for such injury or death. Id. § 300aa-21(a). The central issue in this appeal is whether a subsequent civil action is barred by the Act, where a judgment of dismissal is entered by the United States Federal Claims Court, based upon the petitioner's failure to file the claim petition within the thirty-six-month period. We hold that the Act bars an individual, who files an untimely petition, from later seeking recovery for injuries resulting from an adverse reaction to vaccination in a subsequently filed State civil action.
Michael McDonald was born on April 13, 1989. At three months of age he was inoculated with a vaccine against diphtheria, pertussis and tetanus (DPT), manufactured and sold by defendants, Lederle Laboratories, American Cyanamid Corporation and American Home Products Corporation. It is alleged that, later that day after receiving the vaccine, Michael manifested an adverse reaction, as a result of which he currently suffers from a seizure disorder, encephalopathy, mental retardation and developmental delay. On May 4, 1998, Janet McDonald filed a petition, in her capacity as mother and next friend of Michael, against the Secretary of Health and Human Services (the Secretary) with the Office of the Special Master of the Court of Federal Claims seeking compensation under the Act. Id. § 300aa- 11(a)(1). On June 12, 1998, the Secretary made an oral motion to dismiss, based upon the untimely filing of the petition. Id. § 300aa-16(a)(2). On July 17, 1998, a judgment was entered pursuant to the Special Master's decision dismissing the petition. The order of judgment contained the following: "NOTE: As to election, 90 days from this date, see Vaccine Rule 12."
On September 28, 1998, petitioner filed an election to file a civil action pursuant to section 300aa-21(a). On September 30, 1998, plaintiff, Janet McDonald, individually, and as Guardian ad Litem for Michael, filed a complaint against defendants seeking compensable and punitive damages. On January 20, 2000, defendant moved for summary judgment contending that plaintiff's complaint was time barred pursuant to the provisions of the Act. Following oral argument, on March 3 and April 14, 2000, the judge dismissed plaintiff's complaint in its entirety. The judge found that the Act required the filing of a timely petition as a condition precedent to the bringing of a civil action within the framework of the State's statute of limitations and, because the petition was untimely, the State action was barred. The judge also noted that plaintiff's contention that the thirty-six-month limitation period was equitably tolled because plaintiff was unaware of the federal program, was not properly before her.*fn1 She found that the proper court in which to raise the issue of equitable tolling was the Federal Court of Claim.
We affirm the judge's order dismissing the complaint to the extent that it asserted a claim in plaintiff's capacity as Guardian ad Litem for Michael. We reverse and remand that portion of the order which dismisses the individual claims asserted by plaintiff.
We begin our analysis with the applicable provisions of the Act. The passage of the Act in November 1986, established a National Vaccine Injury Compensation Program (the Program) to protect the vaccine supply from market instability created by an increasing number of vaccine-related personal injury lawsuits. Mary Beth Neraas, Comment, The National Childhood Vaccine Injury Act of 1986: A Solution To The Vaccine Liability Crisis?, 63 WASH. L. REV. 149, 156 (1987), 42 U.S.C. § 300aa-10(a)(1).
Section 300aa-11 of the Act requires that a claimant first file a petition and fully adjudicate a claim arising from injury resulting from vaccination through the federal compensation program, before filing a civil action in either State or Federal court. Sections 300aa-11(a)(2)(A) and (B) provide in pertinent part:
(2)(A) No person may bring a civil action for damages in an amount greater than $1000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury . . . unless a petitioner has been filed, in accordance with section 300aa-16 of this title, for compensation under the Program for such injury or death . . . .
(B) If a civil action which is barred under subparagraph (A) is filed in a State or Federal court, the court shall dismiss the action.
Section 300aa-11(B) further provides that, where a civil action is brought prior to the filing of a petition, the date of its dismissal shall, for the purposes of the statute of limitations under the Act, "be considered the date the petition was filed," so long as the petition is ...