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David Rivard, As Administrator v. American Home Products


March 7, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8470-01.

Per curiam.


Argued November 16, 2010

Decided Before Judges Wefing, Payne and Koblitz.

Plaintiff's six-year-old child, Lindsay Rivard, died of a brain tumor that plaintiff alleges was caused by Simian virus-40, existing as a contaminant in the oral polio vaccine manufactured by defendants' predecessor and administered to Lindsay. A wrongful death action was filed on October 9, 2001, the last day of the applicable period of limitations. N.J.S.A. 2A:14-2. Thereafter, pursuant to our direction following an interlocutory appeal, claims arising from Lindsay's injury and death were dismissed to permit the filing of an action pursuant to the National Childhood Vaccine Injury Act (NCVIA), 42 U.S.C.A. §§ 300aa-1 to -34. See Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129 (App. Div. 2007). Claims for losses that were not cognizable pursuant to the NCVIA were stayed. The judge's order of July 3, 2007 stated:

[IT IS] ORDERED that, pursuant to the decision of the Appellate Division on March 8, 2007 ("the March 8, 2007 Decision"), Plaintiffs' claims for Lindsay Rivard's vaccine-related injury and death are hereby DISMISSED pursuant to the National Childhood Vaccine Injury Act of 1986.

It is further ORDERED that, pursuant to the March 8, 2007, Decision, all proceedings relating to any claims not falling within the scope of the National Childhood Vaccine Injury Act of 1986 are hereby STAYED pending Plaintiffs' exhaustion of their remedies under federal law.

On May 21, 2008, within the applicable one-year time for doing so, see 42 U.S.C.A. § 300aa-11(a)(2)(B), plaintiff filed a compensation claim with the United States Court of Federal Claims. However, after plaintiffs were informed that no determination of their claim had been made within the statutorily required 240 days following the date that the claim was filed, 42 U.S.C.A. § 300aa-12(d)(3)(A)(ii), plaintiffs elected to withdraw their claim petition and to resume litigation in state court. See 42 U.S.C.A. § 300aa-21(b)(1). An order concluding the proceedings was entered on February 20, 2009 and docketed on March 4, 2009.

Although the state court action had been stayed, defendants did not remain quiescent, but instead they filed a motion seeking the return of all vaccine samples in plaintiffs' possession. Plaintiffs resisted that motion. However, on July 1, 2008, the motion judge entered an order directing plaintiffs to supply defendants with a "detailed listing of the vaccine samples and materials that are currently in the possession, custody or control of Plaintiffs (including Plaintiffs themselves, Plaintiffs' counsel, Plaintiffs' experts, Plaintiffs' agents, and anyone else acting on Plaintiffs' behalf)." The order directed that the list "include the location where each vaccine sample is being stored, the identity of each sample, and the remaining quantities of each sample." Additionally, the order barred plaintiffs from conducting any further testing on the samples and directed them to preserve the samples in the same condition and in the same location as they were on the date the motion had been argued. The order required in a final provision that plaintiffs return all samples to defendants "at the conclusion of this action."

Further litigation regarding plaintiffs' discovery obligations led to entry of an order dated September 10, 2008 that directed plaintiffs to return all vaccine samples within thirty days. It also directed plaintiffs, within three days, to identify "where each vaccine sample is currently being stored, the identity of each sample, and the remaining quantities of each sample, as well as the location where each vaccine sample was being held [on] . . . July 1, 2008 . . . and the remaining quantity of each vaccine sample [on] July 1, 2008."

Plaintiffs sought leave to appeal, which we granted on November 7, 2008. The trial court order was stayed. The appeal was argued on September 30, 2009, and on November 20, 2009, we rendered an opinion reversing the motion judge on various grounds that are not relevant to the present appeal and remanding the matter for further proceedings in light of our opinion. Rivard v. Am. Home Prods., Inc., No. A-1244-08 (App. Div. November 20, 2009).

Three days after issuance of our opinion and the resumption of jurisdiction by the trial court, on November 23, 2009, plaintiffs moved in the pending action to reinstate the claims that had been dismissed by the judge's July 3, 2007 order. Defendants resisted plaintiffs' motion, arguing that plaintiffs had inexplicably waited nine months after the dismissal of their federal action before "filing a new complaint to pursue their vaccine-related claims" and as a result, plaintiffs' action was barred by the statute of limitations. Agreeing with defendants' arguments, the motion judge denied plaintiffs' motion for reinstatement and, for the same reasons, dismissed the claims that had previously been stayed.

We are once more constrained to reverse the motion judge, who failed to appreciate the fact that plaintiffs could not seek reinstatement while we maintained jurisdiction over the matter; failed to recognize that the claims that plaintiffs sought to reinstate had been timely filed as an initial matter and arose out of the same facts upon which the stayed claims were premised, and thus they were not time barred; and improperly dismissed plaintiffs' pending claims for a reason that was inapplicable to them.

Rule 2:9-1 provides that "the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed." The effect of this rule is "to deprive the court below of jurisdiction to act further in the matter under appeal unless directed to do so by the appellate court." Pressler and Verniero, Current N.J. Court Rules, comment 1 on R. 2:9-1 (2011); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 376 (1995). In this case, we issued no directive for action by the trial court, and it was thus powerless to act on any motion by plaintiffs while the second appeal in this matter was pending. As we have stated, plaintiffs' motion to reinstate was filed three days after jurisdiction was returned to the trial court.

Rule 4:9-3 provides in relevant part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

The Court construed this rule in Harr v. Allstate Ins. Co., 54 N.J. 287, 299-300 (1969), stating:

The rule should be liberally construed. Its thrust is directed not toward technical pleading niceties, but rather to the underlying conduct, transaction or occurrence giving rise to some right of action or defense. When a period of limitation has expired, it is only a distinctly new or different claim or defense that is barred. Where the amendment constitutes the same matter more fully or differently laid, or the gist of the action or the basic subject of the controversy remains the same, it should be readily allowed and the doctrine of relation back applied. It should make no difference whether the original pleading sounded in tort, contract or equity, or whether the proposed amendment related to the original or a different basis of action. [Ibid. (citations omitted).]

See also Notte v. Merchants Mut. Ins. Co., 185 N.J. 490 (2006). Although plaintiffs seek reinstatement, not amendment, it would be illogical to impose more severe procedural restrictions on them than the Court has recognized in an amendment context. Further, the claims that plaintiffs seek to reinstate unquestionably fit within the criteria that the Court and rule have established.*fn2

As a final matter, we note that no legal basis existed for the motion judge's determination to dismiss plaintiffs' timely-filed pending claims as barred on statute of limitations grounds. The proper remedy would have been to lift the stay previously imposed on those claims and to have permitted the litigation to continue.

Reversed and remanded for further proceedings.

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