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Juday v. Merck & Co., Inc.

United States District Court, E.D. Pennsylvania

July 12, 2019

MERCK & CO., INC., et al.


          Bartle, J.

         Chris Juday and his wife Pat Juday, no strangers to this court, have filed a second action against defendants Merck & Co., Inc. and Merck Sharp & Dohme Corp. This time, they characterized their complaint as a “Federal Rule 60(d)(1) Independent Action.” They seek to set aside a summary judgment order entered against them in the first action, Juday v. Merck & Co., Civil Action No. 16-1547, and to reinstate the complaint in that action. Defendants have now moved to dismiss the pending complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Defendants rely on the doctrine of res judicata.


         When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must do more than raise a “mere possibility of misconduct.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

         On a motion to dismiss under Rule 12(b)(6), the court may consider “allegations contained in the complaint, exhibits attached to the complaint, and matters of public record” as well as “an undisputedly authoritative document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 279-80 (3d Cir. 2018) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).


         In the first action, Chris Juday claimed that he had suffered injuries as a result of the administration of Zostavax, Merck's vaccine to prevent shingles. His wife sued for loss of consortium.[1] This court granted summary judgment in favor of both defendants and against the Judays on the ground that their claims were barred by the statute of limitations. Juday v. Merck & Co., Inc., 2017 WL 1374527 (E.D. Pa. Apr. 17, 2017). The Court of Appeals affirmed. Juday v. Merck & Co., Inc., 730 Fed.Appx. 107 (3d Cir. 2018). The undisputed facts in this first action established that Chris Juday was injected with the Zostavax vaccine on March 2, 2014 and was aware of the purported connection between the vaccine and his injury, that is the onset of shingles, by at least March 13, 2014. He and his wife did not file their lawsuit until April 5, 2016, which was after the relevant two-year statute of limitations had expired.

         Not deterred after judgment was entered against them in the first action, the Judays filed a motion to intervene in another Zostavax multidistrict litigation action pending before the undersigned in order to obtain discovery which, in their view, would aid them in seeking to reopen their first action that they had lost in this court and the Court of Appeals. This court, denying the motion to intervene, characterized it as a “fishing expedition.” Dotter v. Merck & Co., Inc., et al., No. CV 16-4686, 2018 WL 5303326, at *2 (E.D. Pa. Oct. 24, 2018).

         We further explained that “it is improper for parties to institute meritless litigation so as to vitiate without any valid reason the finality of the judgment against them.” Id. The court thereafter denied the Judays' motion for reconsideration. Dotter v. Merck & Co., Civil Action No. 16-4686 (E.D. Pa. Dec. 17, 2018).

         At the same time that the Judays filed their motion for reconsideration, they moved under Rule 60(b) for relief from the judgment in their initial action. Again, this court denied the motion. We commented that “[t]here are no extraordinary circumstances presented here to justify relief” and that “unhappiness about an adverse result is not a basis for undermining the finality of judgments.” Juday v. Merck & Co., 329 F.R.D. 151, 155 (E.D. Pa. 2018). Plaintiffs have filed a notice of appeal with respect to this order. That appeal is pending.

         Persisting in their efforts to overturn this court's and the Court of Appeals' rulings that their Zostavax claims are time-barred, the Judays have now filed this independent action under Rule 60(d)(1) to relieve them from the judgment entered against them in their first action. They seek to have that first action reopened and allowed to proceed. The Judays, for the first time, contend that the statute of limitations was tolled under the National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. § 300aa-16.[2]

         According to their pending complaint in this second action, the Judays had filed a petition in the United States Court of Federal Claims on April 29, 2015. In the petition, Chris Juday sought compensation under the Vaccine Act, 42 U.S.C. §§ 300aa-1, et seq. for his injuries suffered as a result of Zostavax. On June 11, 2015, 43 days later, his petition was dismissed on the ground that he had “failed to demonstrate that he had received a vaccine covered under the Vaccine Program.” The decision of the Special Master further stated, “This case is dismissed for insufficient proof and for failure to prosecute.” Juday v. Sec. of Health and Human Services, 2015 WL 4053498, at *2 (Fed. Cl., June 11, 2015).

         The Judays also allege in their pending complaint that they timely filed an election under § 300aa-21(a) of the Vaccine Act with the Clerk of the Court of Federal Claims to file a civil action, and on information and belief they state that the Clerk informed the defendants about the Judays' election ...

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