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Sarah Hebern, and Walter Hebern v. American Cyanamid Company

January 13, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7530-09.


Argued December 13, 2010 - Decided Before Judges Grall and LeWinn.

Plaintiffs Sarah Hebern and her parents, Walter and Marlene Hebern, filed a complaint alleging that Sarah contracted polio through contact with a recipient of Orimune, which is a live oral polio vaccine manufactured by defendants.*fn1 They charged defendants with negligence, battery, design and manufacturing defects under the New Jersey Products Liability Act, N.J.S.A. 2A:58-1 to -11, and fraudulent and intentional misrepresentation based on defendants' false assertions of compliance with federal manufacturing and testing standards. Sarah's parents also claim loss of consortium - a claim that they acknowledge is governed by California law.

Plaintiffs appeal from an order dismissing their complaint. The trial judge determined that the claim for loss of Sarah's services and earnings was not cognizable under California law because Sarah had reached the age of majority when the complaint was filed. He dismissed the remaining claims as barred by the National Childhood Vaccine Injury Act, 42 U.S.C.S. §§ 300aa-1 to -34 (the Vaccine Act, or the Act). Finding no legal error in either determination, we affirm.

A Since Sarah's birth, plaintiffs have been residents of California. According to plaintiffs, Sarah "developed paralytic poliomyelitis" in September or October 1990, when she was about four months old. Because Sarah's symptoms appeared more than thirty days after Sarah received Orimune, her doctors ruled out the vaccine as a cause. In 2001, Sarah's parents first learned that she had contracted the virus through contact with another baby who had received Orimune during the summer of 1990. On several occasions that summer, Sarah and the other child were placed in the same playpen.

On June 14, 2001, plaintiffs filed a petition to recover compensation under the program established by the Vaccine Act. On October 15, 2001, a special master granted the Secretary of Health and Human Services' motion to dismiss the petition because it was filed beyond the Act's thirty-six-month limitations period.

For eight years, plaintiffs did not pursue the matter. On August 25, 2009, after Sarah had reached the age of majority, plaintiffs commenced this civil action against defendants.


With respect to all claims other than Sarah's parents' claim for loss of consortium, plaintiffs were obligated to comply with the Vaccine Act before pursuing the state law claims asserted in their complaint, but they failed to do so. Their non-compliance required dismissal of those claims.

The Vaccine Act establishes a federal program that provides compensation "for a vaccine-related injury or death." 42 U.S.C.S. § 300aa-10; McDonald v. Lederle Laboratories, 341 N.J. Super. 369, 373 (App. Div. 2001) (McDonald I). The Act provides an expedited procedure designed to fairly and generously compensate the injured and makes the vaccine widely available at a reasonable cost by minimizing litigation costs and limiting the liability of vaccine manufactures. McDonald I, supra, 341 N.J. Super. at 377-80.

Congress has given jurisdiction to adjudicate petitions to the "United States Court of Federal Claims" and its "special masters" who are designated to hear vaccine claims. 42 U.S.C.S. § 300aa-12(a),(c)(1). The special master's decisions are reviewable by the Federal Claims Court, and that court's decisions are reviewable by the "United States Court of Appeals for the Federal Circuit." 42 U.S.C.S. § 300aa-12(e),(f).

The Vaccine Act's several goals are effectuated through various provisions. While punitive damages are not available, the injured party may recover a broad range of compensation: actual and projected unreimbursable medical expenses, including the costs of diagnosis and remedial care, actual and anticipated lost earnings, damages for actual and projected pain and suffering, attorneys fees and costs. 42 U.S.C.S. § 300aa-15; Rivard v. American Home Products, Inc., 391 N.J. Super. 129, 142-43 (App. Div. 2007); McDonald v. Lederle Laboratories, 366 N.J. Super. 555, 560 (App. Div. 2004) (McDonald II). The Act provides for prompt resolution by imposing a deadline for filing a petition, which is not tolled during the minority of a vaccine recipient, but the Act permits a representative of a minor to proceed on behalf of a vaccine recipient who is a child. 42 U.S.C.S. § 300aa-11(b)(1)(A); Herbert v. Sec'y of Health & Human Servs., 66 Fed. Cl. 43, 47 (2005); McDonald I, supra, 341 N.J. Super. at 380.

The Vaccine Act does not foreclose proceedings in state courts on all state law claims. Section 300aa-21 permits a petitioner under the Act to make an election and pursue a claim based on state law in state court under two circumstances. A petitioner may elect to withdraw a petition if the special master does not make a decision within 240 days. 42 U.S.C.S. § 300aa-21. In addition, a petitioner has ninety days to reject a judgment obtained under the Vaccine Act, relinquish its benefits and pursue relief in a state court action. When a petitioner under the Vaccine Act makes an authorized election to proceed in state court, the applicable state limitations period governs that action. 42 U.S.C.S. § 300aa-21(c); McDonald I, supra, 341 N.J. Super. at 374. The Vaccine Act facilitates compliance with both the Act and state limitations periods by providing that state limitations periods are tolled from the date a petition is filed under the federal program to the date the petitioner makes an authorized election to proceed in state court. McDonald I, supra, 341 N.J. Super. at 374 (discussing 42 U.S.C.S. §§ 300aa-16(c) and -21).

Although the Vaccine Act does not foreclose state actions on claims for a vaccine-related injury, it limits a state court's authority to entertain such claims in two ways. Id. at 373-74. First, as we noted in McDonald I, a claim for damages attributable to a vaccine-related injury and compensable under the Act may not be heard in state court unless a claimant first adjudicates a petition in accordance with the Vaccine Act. Id. at 373. Second, as also recognized in McDonald I, even if the claim has been prosecuted in accordance with the Act, it may not be pursued in state court if it is preempted by the Act. Id. at 374 (discussing section 300aa-22 which bars civil liability for unavoidable side effects, failure to provide direct warnings); see also 42 U.S.C.S. ยง 300aa-23 (specifying the showing required for an award of punitive damages). Plaintiffs' obligation to proceed under the federal program established by the Vaccine Act is at issue here. In McDonald I, we ...

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