On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10339-98
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Michael McDonald was born on April 13, 1989. Shortly after being inoculated, at the age of three months, with a vaccine against diphtheria, pertussis, and tetanus (DPT) manufactured by defendants, Michael allegedly manifested an adverse reaction, as a result of which he currently suffers from a seizure disorder, encephalopathy, mental retardation, and developmental delay. In McDonald v. Lederle Laboratories, 341 N.J. Super. 369 (App Div. 2001) (McDonald I), we affirmed the Law Division judge's dismissal of Janet McDonald's claim, as Guardian ad Litem, holding that Janet's failure to prosecute and file a timely petition under the National Vaccine Injury Compensation Act, 42 U.S.C.A. §§ 300aa-1 to -34 (the Act), precluded her from pursuing a subsequent state tort action on her son's behalf. Pointing out that the Act does not preclude parents from filing claims for their own losses, we reversed and remanded the dismissal of Janet's individual claims for medical expenses and loss of services, society, and companionship to afford the Law Division the opportunity to rule on the viability of those claims.
On remand, defendants' motion for summary judgment was granted, dismissing Janet's remaining claims. The Law Division judge found that: (1) all Janet's claims were derivative of Michael's and, therefore, could not stand alone; (2) Janet's past and future claims for medical bills were preempted by the Act; and (3) Janet's per quod claim for loss of society and companionship is not recognized in New Jersey.
We hold that Janet's only viable state per quod claim, her alleged loss of Michael's services, survives, notwithstanding its dependency on proof of liability for Michael's injuries because it is not cognizable under the Act. Accordingly, we reverse the order for summary judgment and remand for trial Janet's claim for loss of Michael's services. The order dismissing Janet's claims for loss of society and companionship, and Michael's past and future medical expenses is affirmed.
On appeal, Janet argues that her individual state per quod claims for medical expenses and loss of society, services, and companionship are not precluded by the Act and the statute of limitations on those claims is tolled by the application of N.J.S.A. 2A:14-2.1. Defendants concede that N.J.S.A. 2A:14-2.1 tolls the statute of limitations by staying Janet's claims for damages resulting from Michael's injuries during his minority. However, defendants counter, asserting that all of Janet's claims are derivative in nature and, therefore, cannot stand alone, given our previous holding in McDonald I invalidating her claim as guardian on behalf of Michael. They also argue that Janet's claims for medical expenses are the same as those previously brought on behalf of Michael and, therefore, preempted by the Act. Finally, defendants assert that we do not recognize common law per quod claims for loss of society and companionship.
We consider first Janet's claims for Michael's medical expenses. The Law Division judge found that the Act preempted Janet's claims for medical expenses. Generally, the congressional or federal agency purpose is the touchstone for analyzing the applicability of preemption. There are several ways to prove preemption. First,"Congress explicitly may express its intent to preempt state law." Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 615 (1999) (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S. Ct. 1145, 1150, 99 L. Ed. 2d 316, 325 (1988)). Second,"preemption may be inferred where the federal legislation is so comprehensive that it creates the inference that Congress intended to leave no room for state regulation in the area." Franklin Tower One, supra, 157 N.J. at 615-16 (citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714, 721 (1985)). Third,"[p]reemption also may be found where state law actually conflicts with federal law." Franklin Tower One, supra, 157 N.J. at 616 (citing California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S. Ct. 683, 689, 93 L. Ed. 2d 613, 623 (1987)).
Conflict preemption occurs in two instances: where"'compliance with both federal and state regulations is a physical impossibility,' or where state law'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" R.F. v. Abbott Labs., 162 N.J. 596, 618 (2000) (quoting Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d 73, 84 (1992) (citations omitted)).
The Act established a National Vaccine Injury Compensation Program (the Program), which permits recovery of actual and projected"unreimbursable expenses" resulting"from the vaccine-related injury for which the petitioner seeks compensation" or which"have been or will be incurred by or on behalf of the person who suffered such injury" or"for diagnosis and medical or other remedial care determined to be reasonably necessary." 42 U.S.C.A. § 300aa-15.*fn1 The primary purpose of the Act is to keep manufacturers of vaccines in the market because"the costs related to tort insurance and defense of civil litigation'had begun to dwarf [manufacturers'] vaccine production revenues.'" McDonald I, supra, 341 N.J. Super. at 377 (quoting Schafer v. American Cyanamid Co., 20 F.3d 1, 4 (1st Cir. 1994)). To encourage persons sustaining vaccine-related injuries to use and benefit from the Act's favorable provisions abrogating the traditional tort burden of proof, we observed:
It expressly warns that a victim's traditional tort claim will not be saved by a state statute of limitations that extends beyond the limitation period proscribed by the Act, if a claim is not filed with the Program within its time restrictions.... The preclusive application of the Act, which prevents plaintiff in her representative capacity from pursuing a civil action... is... consistent with the stated purpose of avoiding the public harm that would result from either a loss or decline in the production of necessary vaccines. Simply put, Congress wants victims to first try the Program with the expectation that its results will be accepted. Unless a petitioner is required to fully adjudicate a claim, pursuant to the Program's expedited procedures, Congress's objectives will not be realized.
The Program specifically provides for the recovery of medical expenses incurred by, or on behalf of, those sustaining vaccine-related injuries. To permit Janet to recover these same expenses in a subsequent state court claim where she has not properly pursued her federal Vaccine Court claim would undermine the stated purposes and objectives of the Act. Strauss v. American Home Prods. Corp., 208 F. Supp. 2d 711, 715 n.8 (S.D. Tex. 2002). Her failure to timely pursue medical expenses recoverable under the Act precludes her individual claim for the same damages. The motion judge ...