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March 31, 2003


The opinion of the court was delivered by: Thomas I. Vanaskie, Chief Judge


The plaintiffs commenced these proceedings in the Court of Common Pleas of Lackawanna County on March 22, 2002. The plaintiffs are parents and their children who allegedly have been exposed to mercury contained in Thimerosal, a preservative found in various childhood vaccines. They contend that this alleged exposure caused neurological damage and neurodevelopmental injuries to the children, specifically, "degenerative or regressive, late onset autism." (Exhibit A, Dkt. Entry 1, Complaint, ¶¶ 6-10.) The following defendants are alleged to have manufactured the vaccines that contained Thimerosal: Aventis Pasteur Inc., GlaxoSmithKline, Merck & Co., American Home Products Corp. d/b/a Wyeth Lederle, Baxter International, and Abbott Laboratories.*fn1 The Complaint also named Eli Lilly & Co. as a defendant. Eli Lilly allegedly manufactured Thimerosal and sold it to vaccine manufacturers during the relevant time period. The plaintiffs allege state law claims for strict products liability, negligence, and fraud. (Id.) They seek money damages and equitable relief, including the immediate recall of all vaccines containing Thimerosal, (id., ¶ 65), and an order directing the defendants to warn of the dangers associated with these vaccines containing Thimerosal. (Id., ¶ 66.)

On April 25, 2002, the defendants removed this matter to this Court asserting that this Court had both diversity and federal question jurisdiction over plaintiffs' claims. On April 30, 2002, the plaintiffs filed a motion to remand this case to the state court, arguing that this Court lacked subject matter jurisdiction over this matter. (Dkt. Entry 13.) On May 21, defendants Aventis Pasteur, GlaxoSmithKline, Merck & Co., American Home Products, and Abbott Laboratories filed a motion to dismiss. (Dkt. Entry 23.) They argued that under the National Vaccine Injury Compensation Act (the "Vaccine Act"), 42 U.S.C. § 300aa et seq., this case properly belongs in the United States Court of Federal Claims. Defendant Eli Lilly filed a separate motion to dismiss and asserted that the plaintiffs had failed to state a claim upon which relief can be granted for the state causes of action. (Dkt. Entry 22.)

All motions have been briefed thoroughly. Defendants have submitted supplemental authority to apprise the Court of pertinent decisional and statutory developments. Having carefully considered the parties' submissions and the applicable case law, I have concluded that this case was not subject to being removed to federal court. That is, at the time of removal there was not complete diversity between the defendants and the plaintiffs, and the complaint did not involve a substantial question of federal law. Thus, plaintiffs' motion to remand will be granted and defendants' dispositive motions will be dismissed as moot.


In 1986 Congress enacted the Vaccine Act, which creates a federal no-fault remedial scheme for vaccine-related injuries in which plaintiffs first pursue their claims through the Court of Federal Claims. See 42 U.S.C. § 300aa et seq. The policy of the statute is to expedite the award of damages and protect vaccine manufacturers from burdensome litigation. H.R. Rep. No. 99-908, at 4, reprinted in 1986 U.S.C.C.A.N. 6344, 6345. Under the Act, a victim of a "vaccine-related injury or death" may file a petition for compensation with a specialized tribunal of special masters of the Court of Federal Claims (the "Vaccine Court"). 42 U.S.C. § 300aa-11(a)(1). The Act prohibits such victims from filing a civil action for damages of more than $1,000 against "a vaccine manufacturer or administrator" in either state or federal court without first filing a petition for relief in the Vaccine Court. 42 U.S.C. § 300aa-11(a)(2)(A). If the victim of a vaccine-related injury or death first files a civil action in either state or federal court, "the court shall dismiss the action." 42 U.S.C. § 300aa-11(a)(2)(B).

In addition to limiting the venues available to plaintiffs, the Vaccine Act also limits the available remedies. Under the Act, a petitioner suffering from a "vaccine-related injury" may recover actual nonreimbursable medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $250,000 in damages for pain and suffering or emotional distress, and reasonable attorneys' fees and costs. Petitioners may not recover punitive damages. 42 U.S.C. § 300aa-15(a),(d),(e). After the Vaccine Court issues a judgment, the petitioner may choose to reject the judgment and pursue a tort action in state or federal court. The Act continues to restrict these suits in various ways. For example, vaccine manufacturers may not be held liable for "unavoidable" side effects of a properly-manufactured vaccine that was accompanied by proper directions and warnings even if the vaccine was defectively designed. 42 U.S.C. § 300aa-22(b)(1). Civil actions must also be trifurcated into following stages: liability, compensatory damages, and punitive damages. 42 U.S.C. § 300aa-23(a)-(d).

It is undisputed that the plaintiffs in the matter sub judice did not file a petition with the Vaccine Court. Therefore, if this Court has removal jurisdiction over this case, and if the plaintiffs' injuries are properly considered to be "vaccine-related" injuries under the Vaccine Act (an issue disputed by the parties),*fn2 the Court would be required to dismiss the case without prejudice to allow the plaintiffs to pursue their claims in the Vaccine Court.


A. Plaintiffs' Procedural Challenge to the Removal

The defendants bear the burden of establishing removal jurisdiction and demonstrating compliance with all pertinent procedural requirements. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.), cert. denied, 498 U.S. 1085 (1991); Steel Valley Auth. v. Union Switch & Signal Div., Am. Standard, Inc., 809 F.2d 1006, 1111 (3d Cir. 1987). Removal statutes are to be strictly construed and all doubts resolved in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Boyer, 913 F.2d at 111; Landman v. Borough of Bristol, 896 F. Supp. 406, 408 (E.D.Pa. 1995).

One of the procedural requirements of removal is that the defendants must remove the case within thirty days of service of the complaint. 28 U.S.C. § 1446(b). Although the plaintiffs concede that the petition for removal was timely filed within thirty days of the filing of the complaint, they argue that all defendants were required to join in the removal petition within that time. (Pl. Brief in Support of Mot. to Remand, Dkt. Entry 14, at 2, citing Morgantini v. Armstrong Blum Mfg. Co., No. Civ. A. 00-6343, 2001 WL 283135, at *2-*3 (E.D.Pa. Mar. 19, 2001).) The defendants agree that they must clearly and unambiguously join in or otherwise consent to a co-defendant's removal, but contend that this consent can be expressed in separate filings by each defendant. (Def. Brief in Opp. to Remand, Dkt. Entry 27, at 8.)

Every defendant who has been served has filed a consent to removal. (See Dkt. Entries 3 (Eli Lilly), 5 (Merck), 7 (Abbott), 9 (Baxter International), 10 (Pfizer), 11(Aventis), 12 (Medisca), 15 (GlaxoSmithKline), 16 (Integra), and 17 (Gallipot).)*fn3 Two of these consents, that of Integra and Gallipot, were filed thirty-one days after the date of service upon Aventis, the first-served defendant. (Dkt. Entries 16-17.) Defendants contend that these consents were timely because they were filed within thirty days from the date of service on Integra and Gallipot. (Def. Brief in Opp. to Remand, Dkt. Entry 27, at 9 & n. 7.)

As this Court has previously noted, see Pocono Spring Civic Ass'n v. Rich One Inc., No. 00-CV-2034, 2001 WL 114390, at *2 (M.D.Pa. Jan. 29, 2001), there is "a split of decisions regarding whether the thirty-day period runs from the date of service upon the first-served defendant or the date upon which each individual defendant is served." There are many decisions, however, that would allow each defendant thirty days from the date it was served to express its consent to removal. See Marano Enters. v. Z-Teca Rests. L.P., 254 F.3d 753, 756-57 (8th Cir. 2001) (later-served defendants may remove a case to federal court, even it earlier-served defendants failed to do so within thirty days); McKinney v. Bd. of Trustees, 955 F.2d 924, 928 (4th Cir. 1992) (holding that each defendant has thirty days from its service to join in removal); Brierly v. Alusuisse Flexible Packaging Inc., 184 F.3d 527, 533 (6th Cir. 1999), cert. denied, 528 U.S. 1076 (2000) (agreeing with McKinney); Orlick v. J.D. Carton & Son, Inc., ...

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