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HAGGERTY EX REL. HAGGERTY v. WYETH AYERST PHARM.

January 4, 2000

MARY ELIZABETH HAGGERTY, BY HER MOTHER AND NATURAL GUARDIAN GERALDINE HAGGERTY, PLAINTIFFS,
V.
WYETH AYERST PHARMACEUTICALS, A DIVISION OF AMERICAN HOME PRODUCTS CORPORATION, MERCK & CO., INC., AND EDWARD REILLY, M.D., DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge.

MEMORANDUM & ORDER

Plaintiffs, Mary Haggerty and her mother (collectively, "the Haggertys"), instituted this action against defendants Wyeth Ayerst Pharmaceuticals (a division of American Home Products Corp.) (hereinafter, "Wyeth"), Merck & Co., Inc. ("Merck"), and Edward Reilly, M.D., in the Supreme Court for the State of New York, Kings County, on September 8, 1999, asserting various claims for personal injuries allegedly arising from defendants' actions in manufacturing, distributing, and administering certain vaccines. On October 19, 1999, defendant Merck, joined by Dr. Reilly,*fn1 timely filed notice removing the action to this Court pursuant to 28 U.S.C. § 1446, alleging federal question jurisdiction under the National Childhood Vaccine Injury Act ("the Vaccine Act," or "the Act"), 42 U.S.C. § 300aa-1-300aa-34.*fn2 Plaintiffs now move for an order remanding the case to the state court, as well as for costs and attorneys' fees pursuant to 28 U.S.C. § 1447(c). For the reasons stated below, plaintiffs' motion to remand is granted, and plaintiffs' motion for costs and attorneys' fees is denied.

BACKGROUND

The facts here recited are gleaned from the allegations of the Complaint in the underlying state action, as well as from a decision of the United States Court of Appeals for the Federal Circuit in a related case. See Haggerty v. Sec'y of Health and Human Services, 178 F.3d 1312, 1998 WL 904734 (Fed.Cir. 1998).*fn3 On May 7, 1993, Mary Haggerty, a normal, healthy child of 18 months at the time, was administered one or more routine vaccine injections in the office of defendant Dr. Reilly. Later that day, she suffered a seizure and was hospitalized. It subsequently emerged that the child had suffered an encephalopathy within hours of the vaccination. Mary remains severely impaired, and suffers from residual seizure disorder.

On April 21, 1995, plaintiffs petitioned the Court of Federal Claims to recover damages under the Vaccine Act. The Act establishes a scheme of recovery for injuries and deaths traceable to vaccinations, which is designed to work faster and with greater ease than the civil tort system. Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995). As described by the Court in Whitecotton, the scheme provides that claims are heard in the first instance by special masters, adjudicated informally, and then accorded expeditious review. Id. at 270, 115 S.Ct. 1477. The Act achieves its objective of streamlining the claims process in large part by the establishment of standards of proof, under which patients who are administered a vaccine, and who suffer injuries within specified intervals after, have the benefit of a presumption that their symptoms were caused by the vaccine. 42 U.S.C. § 300aa-11 (c)(1)(C)(i); 300aa-13(a)(1); 300aa-14.

Of significance for this case, the Act also provides that no person

may bring a civil action for damages in an amount greater than $1,000 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 or death associated with the administration of a vaccine after the effective date of this subpart [October 1, 1988], and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed in accordance with section 300aa-16 of this title, for compensation under the [National Vaccine Injury Compensation] Program for such injury or death and (i)(I) the United States Claims Court has issued a judgment under section 300aa-12 of this title on such petition, and (II) such person elects under section 300aa-21(a) of this title to file such an action, or (ii) such person elects to withdraw such petition under section 300aa-21(b) of this title or such petition is considered withdrawn under such section.

42 U.S.C. § 300aa-11(2)(A) (emphasis supplied).

The Haggertys filed a petition for compensation under the National Vaccine Injury Compensation Program. In accordance with the provisions of the Act, their petition was referred to a special master, who reviewed the documentary evidence submitted and held an evidentiary hearing. On March 4, 1997, the special master denied the petition, finding that the timing of Mary's injury did not qualify her for the statutory presumption of causation. Haggerty v. Sec'y of Health and Human Services, No. 98-5049, 1998 WL 904734, at *1 (Fed.Cir. Dec. 29, 1998). On November 14, 1997, the Court of Federal Claims affirmed, and by its unpublished decision of December 29, 1998, the Court of Appeals for the Federal Circuit affirmed again. In September of this year, by their filing in Kings County Supreme Court, the Haggertys exercised their right under the above-cited provisions of the Act to pursue their claims by a civil action for damages in state court.

DISCUSSION

A state court action may be removed to federal court "if it qualifies as a `action . . . of which the district courts of the United States have original jurisdiction,' unless Congress expressly provides otherwise." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1998) (quoting 28 U.S.C. § 1441(a)). Defendants Merck and Reilly invoke this Court's original federal question jurisdiction over "[a]ny civil action . . . founded on a claim or right arising under the Constitution, treaties or laws of the United States" in support of their petition of removal. 28 U.S.C. § 1441(b); see also 28 U.S.C. § 1331.

Under long-standing Supreme Court precedents, the analysis of whether a claim "arises under" federal law is determined by the "`well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Rivet, 118 S.Ct. at 925 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). A defense that raises a federal question is inadequate to confer federal jurisdiction. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Thus, "a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

An "independent corollary" to the well-pleaded complaint rule, id. at 22, 103 S.Ct. 2841, "is the further principle that a plaintiff may not defeat removal by omitting to plead necessary federal questions." Rivet, 118 S.Ct. at 925 (internal quotations omitted). As the Court explains in Rivet,

[i]f a court concludes that a plaintiff has `artfully pleaded' claims in this fashion, it may uphold removal even though no federal question appears on the face of the plaintiff's complaint. The artful pleading doctrine allows removal where ...

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