United States District Court, E.D. Pennsylvania
SANDRA BILLECI, et al.
MERCK & CO., INC., et al.
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
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). 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.
first determine the proper limitation period for each count.
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.
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.
considering the defendants' motion for summary judgment,
we must view the facts in the record in the light most
favorable to the plaintiffs.
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.”
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.
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. 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.
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[.]”
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.
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 . ...