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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. § 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 held "that the plain meaning of the Act and the Congressional intent are consistent with the conclusion that failure to file a timely petition under the Program bars the later pursuit of a State tort action through the Program's election procedure."

Id. at 376. We agree with McDonald I and briefly summarize the analysis so clearly expressed by Judge Lintner.

Pursuant to 42 U.S.C.S. § 300aa-11, a claimant cannot proceed in state or federal court without filing a petition in accordance with the Act. Subparagraph (A) of section 300aa-11(a)(2) provides:

No person may bring a civil action for damages . . . against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after the effective date of this part [October 1, 1988*fn2 ], . . . unless a petition has been filed, in accordance with section 2116 [42 U.S.C.S. § 300aa-16], for compensation under the Program for such injury or death

Further, pursuant to subparagraph (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." 42 U.S.C.S. § 300aa-11(a)(2)(B) (emphasis added).

To avoid the bar imposed by subparagraph (A), a petition must be timely. The time within which a petition must be filed is plainly stated in 42 U.S.C.S. § 300aa-16(a)(2), which is incorporated in subparagraph (A) of section 300aa-11(a)(2) by reference to section 300aa-16. Section 300aa-16(a)(2) provides: "[N]o petition may be filed for compensation under the Program . . . after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury."

Based on the plain language of the Vaccine Act and the intent of Congress, the panel in McDonald I held "that failure to file a timely petition under the [Act's] Program bars the later pursuit of a State tort action through the Program's election procedure." Id. at 376.

In McDonald II, we considered whether any claims asserted by the parent of a child could be maintained despite the dismissal of a petition filed under the Vaccine Act as untimely. Judge Lintner, again writing for the panel, distinguished claims of the mother compensable under the Vaccine Act and claims for which the mother could not be compensated under the Act. In the panel's view, allowing a state action to permit a parent to recover what could have been awarded under the Act would undermine the objective of the Vaccine Act. Id. at 561. Conversely, the panel concluded that allowing a state court action to recover for injuries not compensable under the Act would not conflict with the congressional purpose. Id. at 563. Accordingly, the panel held that in the absence of a timely petition under the Vaccine Act, a parent's claim is properly dismissed if the parent seeks damages for a child's vaccine-related injury recoverable in a proceeding under the Act but not if the parent seeks damages for his or her individual claim for non-compensable loss, such as loss of the child's consortium or services. Id. at 561-63.

Plaintiffs do not and could not contend that their petition under the Vaccine Act was timely filed. As they acknowledge in their complaint, Sarah's polio symptoms were manifest in October 1990 and their petition under the Vaccine Act was not filed until June 2001, a date well beyond the thirty-six-month period permitted by 42 U.S.C.S. § 300aa-16. Accordingly, the special master dismissed their petition as time-barred, and plaintiffs did not challenge that determination in federal court.

On these facts, 42 U.S.C.S. § 300aa-11(a)(2)(A)-(B), as construed by this court in McDonald I and McDonald II, required the trial judge to dismiss plaintiffs' claims for which they could have been compensated under the Act but did not permit the judge to dismiss the parents' claim for loss of Sarah's services and consortium. That is what the judge did, and the judge's determination was proper.

Plaintiffs present several arguments to demonstrate that the rules established in McDonald I and McDonald II should not be applied in this case. We turn to consider those points.

They first argue that Sarah's alleged injury is not "vaccine-related" within the meaning of the Act. We disagree.

Under the Vaccine Act, a "vaccine-related injury" means "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table." 42 U.S.C.S. § 300aa-33(5). Since the time Sarah's symptoms manifested, the Vaccine Injury Table list of vaccines has included oral polio vaccine, and its list of injuries has included paralytic polio in a "vaccine-associated community case." 42 U.S.C.S. § 300aa-14. In addition, the Act has at all times, since the appearance of Sarah's symptoms, expressly authorized the filing of a petition by a person who "contracted polio, directly or indirectly, from another person who received an oral polio vaccine." 42 U.S.C.S. § 300aa-11(c)(1)(A); see Beard v. Sec'y of Health & Human Servs., 43 F.3d 659, 661 (Fed. Cir. 1994). Thus, Sarah's injury is "vaccine-related" within the meaning of the Act.

Plaintiffs argue that Sarah's injury is expressly excluded from the Act's definition. They rely upon 42 U.S.C.S. § 300aa-33(5), which excludes an injury "associated with an adulterant or contaminant intentionally added to such a vaccine" from the definition of a "vaccine-related injury." But Sarah's injury is from a live polio virus, which we have noted is a component of the oral vaccine, not a contaminant or adulterant added to it. Rivard, supra, 391 N.J. Super. at 145. Thus, this exclusion does not apply.

Plaintiffs also argue that the Vaccine Act's requirement of a filing within thirty-six months is permissive, not mandatory. They contend that the use of the word "may" rather than "shall" in 42 U.S.C.S. § 300aa-16(a)(2) permits deviations. We see no ambiguity in the phrase upon which plaintiffs rely. As noted above, 42 U.S.C.S. § 300aa-16(a)(2) provides: "no petition may be filed . . . after the expiration of 36 months . . . ." The stated deadline is mandatory.

Plaintiffs also contend that the trial court should have applied the doctrine of equitable tolling and determined that their petition was timely filed, despite the special master's contrary finding. In actuality, this argument urges us to conclude that the special master erred in his interpretation of the Vaccine Act. But, as discussed above, Congress has given the "United States Court of Federal Claims," its "special masters" and the "United States Court of Appeals for the Federal Circuit" jurisdiction over the adjudication of compensation under the Vaccine Act. 42 U.S.C.S. § 300aa-12. Recognition of equitable tolling would relax the requirements of 42 U.S.C.S. § 300aa-16 and, thereby, increase the number of petitions that may be deemed timely filed and compensable. In our view, equitable tolling falls squarely within the responsibility of the special masters and the courts Congress authorized to review their decisions; it is not a question for state courts to consider in adjudicating state law claims as authorized by the Vaccine Act.

We note that the Court of Appeals for the Federal Circuit considered this question of federal law and determined that equitable tolling is not available. Brice v. Sec'y of Health & Human Servs., 240 F.3d 1367, 1370 (Fed. Cir. 2001), cert. denied, 534 U.S. 1040, 122 S. Ct. 614, 151 L. Ed. 2d 538 (2001). Although the Federal Circuit has recently announced its intention to reconsider Brice, that does not change our conclusion that the question is one that must be decided by the federal courts designated by Congress.*fn3

Equitable tolling under the Vaccine Act obviously affects the number of claims for a vaccine-related injury that our courts may consider, but it does not implicate the operation of state statutes of limitation, which is a matter Congress has left to state legislatures and courts. 42 U.S.C.S. § 300aa-21(c). As we explained in McDonald I, a claimant's obligation to fully adjudicate a claim in accordance with the Vaccine Act is important to achieving the Act's objectives. Id. at 377-80. That federal policy would not be well served by having state courts decide whether the time to file a petition under the Vaccine Act's program should be equitably tolled.

Plaintiffs also argue that their claims of fraud and intentional misrepresentation are outside the rules established in McDonald I and McDonald II. But defendants' alleged misrepresentations about their compliance with federal standards governing the manufacture and testing of their Orimune vaccine are representations that are relevant to Sarah's vaccine-related injury. While such state law claims of misrepresentation may not be preempted by the Vaccine Act, see Bruesewitz v. Wyeth, Inc., 508 F. Supp. 2d 430, 447 (E.D. Pa. 2007), aff'd, 561 F.3d 233 (3d Cir. 2009), non-preempted claims for vaccine-related injuries cannot be pursued in state court without first filing a petition in accordance with the Act. The Act's filing requirements and preemption provisions are separate components of the congressional scheme. See Deborah F. Buckman, Annotation, Construction and Application of Preemption Provisions of National Childhood Vaccine Injury Compensation Act of 1986 ("Vaccine Act") 39 A.L.R. Fed. 2d 155 (1991).

Plaintiffs rely on Cook v. Children's Med. Group, 756 So. 2d 734 (Miss. 1999) for the proposition that claims of fraud and intentional misrepresentation may be pursued without a timely filing under the Vaccine Act. That reliance is misplaced. Cook involved a harm separate from the vaccine-related injury - a post-vaccination misrepresentation that caused the plaintiff to miss the filing deadline under the Vaccine Act. Id. at 740.

Contending that defendants made misrepresentations during congressional hearings on the Vaccine Act should not be permitted to invoke its provisions to defeat their claims. This argument raises a question of public policy that is irrelevant to the Vaccine Act's procedural provisions. For that reason, we find it without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, plaintiffs object generally to the trial judge's consideration of matters outside the pleadings on this motion to dismiss. After reviewing the judge's decision, we see nothing that indicates reliance on matters outside the pleadings. In any event, an appellate court reviews de novo an order that dismisses a complaint on the pleadings. See Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008); see also Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977). For the reasons set forth above and without relying on any facts outside the pleadings, we have determined that the Vaccine Act required dismissal of the plaintiffs' claims, other than the claim for loss of consortium and services pursued by Sarah's parents. Accordingly, we affirm the dismissal of plaintiffs' claims based on negligence, products liability, fraudulent and intentional misrepresentation and battery.


We turn to consider plaintiffs' objection to the dismissal of the loss of consortium claim filed by Walter and Marlene Hebren. The judge concluded that California law governed and required dismissal. Plaintiffs do not challenge the judge's decision on choice of law. Rather, they argue that the judge misapplied California law. Again, we disagree.

As discussed above, the Vaccine Act does not preclude Sarah's parents from pursuing a state law claim for loss of Sarah's consortium, services and earnings. McDonald II, supra, 366 N.J. Super. at 563. Under California law, the parent's cause of action for loss of filial consortium is not cognizable. Baxter v. Superior Court, 563 P.2d 871, 874 (Cal. 1977). California law further limits a parent's claim for loss of a child's services and earnings to those cases in which "the parent has an enforceable right to the child's services and earnings." Id. at 874 n.2. On that principle, no cause of action can be asserted when the child "has reached majority or been emancipated." Ibid.

In Baxter, the California Supreme Court based its statement of the foregoing rule on "common law tradition" and "statute." Ibid. Although the statute cited by the Court in Baxter has been repealed and re-codified, the statutes that replace it do not extend a parent's claim for lost services beyond the child's minority or emancipation. See Cal. Fam. Code §§ 3010, 7500. The rationale for the common law rule referenced in Baxter is that a claim for services and earnings that is not asserted during the child's minority is relinquished. Slater v. California State Auto. Assn., 19 Cal. Rptr. 290, 290-91 (Cal. Ct. App. 1962). Under that rule, because this complaint was not filed until Sarah had reached the age of majority, it was relinquished.


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