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