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Billeci v. Merck & Co., Inc.

United States District Court, E.D. Pennsylvania

April 5, 2018

MERCK & CO., INC., et al.


          BARTLE, J.

         Plaintiff Sandra Billeci and her husband Dennis Billeci have sued defendants Merck & Co., Inc. and Merck Sharp & Dohme Corp. (collectively “Merck”) for personal injuries arising out of Sandra Billeci's receipt of the Zostavax vaccine for the prevention of shingles. Merck is alleged to have manufactured, marketed, and distributed Zostavax. Ms. Billeci brings claims for negligence, design defect, failure to warn, breach of express warranty, and breach of implied warranty. Her husband has a claim for loss of consortium. Defendants have now moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that the action is barred by the applicable statute of limitations.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).[1] A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the nonmovant. Id. at 252.


         We must first determine the proper limitation period for each count.

         Ms. Billeci received the vaccine in the state of California where both she and her husband reside. Because this diversity action is pending in the United States District Court for the Eastern District of Pennsylvania, we must look to the choice of law rule of the underlying forum, that is the Commonwealth of Pennsylvania. Klaxon Co. v. Stenton 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). Thus, for each count, the relevant shorter statute of limitations governs.

         For the personal injury counts sounding in tort, both California and Pennsylvania have a two year limitations period. Cal. Civ. Proc. Code § 335.1; 42 Pa. Const. Stat. § 5524. In California, breach of warranty claims arising from the sale of goods are typically subject to a four-year statute of limitations. Cal. Com. Code § 2725. However, the two-year limitations period governing tort claims applies instead when, as here, the breach of warranty involves a personal injury. Cal. Civ. Proc. Code § 335.1; Rivas v. Safety-Kleen Corp., 119 Cal.Rptr.2d 503, 513-14 (Ct. App. 2002); Becker v. Volkswagen of Am., Inc., 52 Cal.App.3d 794, 802 (1975). Pennsylvania's limitations period for breach of warranty is four years. 13 Pa. Const. Stat. § 2725. Since we must always apply the shorter deadline, the applicable time-bar here for all counts, both in tort and contract, is two years.


         In considering the defendants' motion for summary judgment, we must view the facts in the record in the light most favorable to the plaintiffs.

         Ms. Billeci received the Zostavax vaccine (“the shingles vaccine”) on September 15, 2014 at a Kaiser Permanente (“Kaiser”) facility in Vallejo, California. Less than a month later, on October 9, 2014 she contacted by telephone Dr. Irina Rozen, a physician at the Kaiser facility. Dr. Rozen recorded in her log that Ms. Billeci complains of “‘strange sensations all over body' - feels like skin hypersensitivity - ‘skin is too sensitive' intermittent and various places.” Dr. Rozen noted that Ms. Billeci had received the shingles vaccine three to four weeks ago. She diagnosed Ms. Billeci with “tingling sensation.”

         A month and a half later, on November 24, 2014, Ms. Billeci visited Dr. Rozen at her office. Dr. Rozen's notes of the visit show that Ms. Billeci had a “chief complaint of skin problem” and that she “complains about itchy skin[, ]” “mainly [on] legs and arms[, ]” which is “[m]uch better [t]oday.” Ms. Billeci remembered asking Dr. Rozen on this date if the shingles vaccination was related to her problems of itchy skin. Dr. Rozen's response to this question is not contained in the record. She diagnosed Ms. Billeci with pruritus, which she described in her deposition as itchiness of the skin.

         Ten days later, Ms. Billeci spoke with Dr. Rozen on the phone. Ms. Billeci complained of continued “itching/slight prickling all over her body - describes ‘as if she has a wool sweater on.'” Dr. Rozen's notes reveal that laboratory tests previously performed on Ms. Billeci revealed no rash and the source of the itching was unclear.[2] Dr. Rozen prescribed Doxepin for the itchiness. She noted that Ms. Billeci was “slightly neutropenic, ” meaning that she had a slightly low white blood cell count. Ms. Billeci recalled telling Dr. Rozen that she wondered if the shingles vaccine was the reason she was experiencing the itchiness.

         Ms. Billeci spoke with an internal medicine specialist from Kaiser, Dr. Robert Quon, over the telephone on December 19, 2014. In his record, Dr. Quon described Ms. Billeci as a patient “with migratory pruritus that followed [her] Zoster vacc[ine].” During the call, Ms. Billeci described her symptoms as a “sensation of hypersensitivity and itching” and explained that they are “better when [she wears] lightweight clothing . . . [and] use[s] Doxepin[.]”

         Later that month on December 30, 2014 Ms. Billeci consulted Dr. Emerita Natividad Brigino-Buenaventura of Kaiser by phone. Dr. Brigino-Buenaventura's observations of the encounter show that Ms. Billeci had experienced eight weeks of “[h]eightened nerve sensitivity - pinprick sensation all over body.” Dr. Brigino-Buenaventura's notes document that Ms. Billeci received the shingles shot on September 15, 2014 and that Ms. Billeci reported to Dr. Brigino-Buenaventura that she may have felt the pinprick sensation at “about that time.” According to the notes, the sensations “seem to be waxing and waning[.]” Dr. Brigino-Buenaventura diagnosed Ms. Billeci with abnormal skin sensitivity and noted “could be adverse effect from ZOSTER VIRUS Live vaccine[.]” Significantly, Dr. Brigino-Buenaventura told Ms. Billeci that the vaccine could be the cause of her abnormal skin sensitivity and that symptoms usually wane over time. She prescribed Ms. Billeci Doxepin.

         On January 22, 2015 Ms. Billeci called Dr. Rozen and left a message with a nurse stating that she wanted to “talk . . . about [her] chronic reaction to shingles.” According to the message, Ms. Billeci had “looked it up on the internet” and felt that she was having a reaction to the vaccine. While Ms. Billeci does not remember telling the nurse, she remembers having looked up information about the shingles vaccine on the internet. When asked in her deposition whether remembered reporting to the doctor's office that she had looked up information on the internet and if she had found anything about a chronic reaction to the vaccine, she responded: “I did look for things on the internet about [the] shingles vaccination, and . ...

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