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Juday v. Merck & Co., Inc.

United States District Court, E.D. Pennsylvania

April 17, 2017

CHRIS JUDAY, et al.
v.
MERCK & CO., INC., et al.

          MEMORANDUM

          Bartle, J.

         Plaintiffs Chris Juday and his wife Pat Juday, citizens of Indiana, bring this diversity action against defendants Merck & Co., Inc. and Merck Sharp & Dohme Corp. (collectively “Merck”), both of which are incorporated and have their principal places of business in New Jersey. Mr. Juday alleges personal injuries and his wife alleges loss of consortium as a result of the administration to Mr. Juday of Zostavax, Merck's live vaccine designed to prevent shingles.[1]

         Merck has now moved for summary judgment on the ground that plaintiffs' claims are barred by the applicable two-year statutes of limitations. Summary judgment may be granted under Rule 56 of the Federal Rules of Civil Procedure only if there are no genuine disputes of material fact and Merck is entitled to judgment as a matter of law.

         The following facts are undisputed or taken in the light most favorable to the non-movants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Mr. Juday received the Zostavax vaccine on March 2, 2014 at a pharmacy in Indiana. The vaccine had been prescribed a week or so before by his primary care physician, Dr. Jon Van Scyoc. By March 10, he began to experience fever with a temperature of 101°F, a rash on his abdomen and back, and what looked like chickenpox. On March 12, he and his wife went to Prairie Lakes Family Medicine in Indiana where they saw a nurse practitioner, Andrea Compton. His medical record of that visit, which contained information supplied by the Judays, stated:

had Zostavax 8 days ago initially fine but developed diffuse raised rash first on right side of trunk but now spread across back accompanied by low grade fever

         Ms. Juday has a bachelor's degree in nursing and three classes short of her Master's degree. She discussed with Ms. Compton the possibility that the Zostavax vaccine could be the cause of her husband's symptoms. Ms. Compton was not sure what illness Mr. Juday had or what was its cause.

         Mr. Juday advised his employer on March 13 that he would not be at work because of illness. According to the disability claim form in his employee file, Mr. Juday reported “Severe Allergic Reaction to Shingles.” Mr. Juday later clarified at his deposition that “Shingles” referred to “shingles vaccination.” While he does not remember saying the exact words recorded on his disability form, he does remember telling his employer “I had a shingles vaccination and I was sick.” Mr. Juday returned to Prairie Lakes Family Medicine on March 24 due to his persistent symptoms and again saw Ms. Compton. The “History of Present Illness” section of the medical records for that visit contains the following:

here for follow up of reaction after Zostavax. . . . Rash from shingles vaccine improving but still with persistent cough, intermittent fever

         There is evidence that Ms. Compton or her assistant contacted Merck, the manufacturer of Zostavax, at some point in mid-March 2014 concerning Mr. Juday's illness. According to Ms. Juday, Ms. Compton told her during the March 24 visit to Prairie Lakes Family Medicine that Merck had no recorded cases of chickenpox from the vaccine. Ms. Juday testified that after learning what Merck had said, she and Ms. Compton discussed that the vaccine “was maybe one of the possibilities, but we didn't really know for sure what it was.” At no time did Ms. Compton reach a conclusion as to the cause of Mr. Juday's illness or express any opinion to Mr. Juday or his wife on this subject.

         During this period, Ms. Juday, herself a nurse, had not remained idle. Between one and three weeks after her husband began to suffer an illness, she printed information from the website of Merck and the Center for Disease Control to learn “if there was any history of it somewhere that someone else had had a reaction that was similar to his to Zostavax, to see if there was, you know, any particular thing that they did for it.” The information she obtained did not indicate to her any case like her husband's.

         The plaintiffs again visited Prairie Lakes Family Medicine on April 1, 2014. This time Mr. Juday saw Dr. Van Scyoc. The “History of Present Illness” in the medical record for his visit noted:

received Zostavax first week of March. Shortly afterward patient developed a vesicular rash over the trunk. Near the same timeframe he developed a dry cough and some fever which persists. He has had fever daily for about 3 weeks

         After examining Mr. Juday, Dr. Van Scyoc concluded that Zostavax “could be a possibility contributing to [Mr. Juday's] symptoms.” At his deposition, Dr. Van Scyoc testified that he told Mr. Juday of this possibility. Mr. Juday does not remember hearing any such statement. Ms. Juday does not think the doctor discussed the subject with her husband. She recalls that the doctor was “totally stymied.” Dr. Van Scyoc, however, referred Mr. Juday to Dr. Ikerd, an infectious disease specialist. On April 9, 2014, Dr. Ikerd confirmed that the cause of Mr. Juday's symptoms was the Zostavax vaccine.

         This lawsuit was filed on April 5, 2016, more than two years after March 2, 2014, the date when Mr. Juday received the Zostavax vaccine.

         The plaintiffs are Indiana citizens who incurred their alleged injuries in Indiana. It is undisputed that their claims accrued there. Because this diversity action was filed in the Eastern District of Pennsylvania, we first look to the choice of law rules of the underlying forum, that is the Commonwealth of Pennsylvania, to tell us what statutes of limitations to apply. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487 (1941). Under Pennsylvania's Uniform Statute of Limitations on Foreign Claims Act, “The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.” 42 Pa. Cons. Stat. § 5521(b).

         Plaintiffs' complaint contains claims for Negligence (Count I), Design Defect (Count II), Failure to Warn (Count III), Breach of Express Warranty (Count IV), Breach of Implied Warranty (Count V), Negligent Misrepresentation (Count VII), Unjust Enrichment (Count VIII), and Loss of Consortium (Count IX).[2]Since these claims all accrued in Indiana, we must ascertain for each claim whether Pennsylvania or Indiana has the shorter limitations period.

         Pennsylvania has enacted a two-year statute of limitations for personal injury claims grounded in negligence, design defect, failure to warn, negligent misrepresentation, and loss of consortium. See 42 Pa. Const. Stat. § 5524. Indiana also has enacted a two-year statute of limitations for personal injury claims. See Ind. Code § 34-11-2-4; Stickdorn v. Zook, 957 N.E.2d 1014, 1020 (Ind.Ct.App. 2011).

         Pennsylvania provides for a four-year statute of limitations for breach of express and implied warranties. 13 Pa. Const. Stat. § 2725; 42 Pa. Const. Stat. § 5525. In contrast, Indiana applies a two-year statute of limitations for breach of warranty claims predicated on a products liability tort as alleged in the complaint. See Ind. Code ยง 34-20-3-1(b). Those claims are governed by the Indiana Products Liability Act which bars such claims more than two years old regardless of the legal theory on which ...


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