Products Liability Law Daily Discovery rule does not toll patient’s claim that Merck’s shingles vaccine caused lung injury or chicken pox
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Thursday, April 5, 2018

Discovery rule does not toll patient’s claim that Merck’s shingles vaccine caused lung injury or chicken pox

By Pamela C. Maloney, J.D.

A patient’s attempt to use the discovery rule to salvage product liability claims against the manufacturer of an anti-shingles vaccine filed more than two years after he developed chickenpox and a persistent cough after receiving the vaccine failed on appeal. The U.S. Court of Appeals for the Third Circuit upheld the district court’s ruling that there was no evidence to support the patient’s argument that the discovery rule tolled Pennsylvania’s two-year statute of limitations until an infectious disease specialist informed him of the link between the vaccine and his symptoms, which occurred within the two-year timeframe (Juday v. Merck & Co., Inc., April 4, 2018, Cowen, R.).

The patient, who received Zostavax, an anti-shingles vaccine manufactured by Merck & Co., Inc., on March 2, 2014, filed a lawsuit in a federal district court in Pennsylvania against the drug company on April 5, 2016, alleging personal injuries as a result of the vaccination. The complaint contained claims for negligence, failure to warn, breach of express warranty, breach of implied warranty, negligent misrepresentation, unjust enrichment, and a loss of consortium claim made by the patient’s wife. The district court granted Merck’s motion for summary judgment (see Products Liability Law Daily’s April 18, 2017 analysis), ruling that the patient failed to provide any evidence to support his argument that the discovery rule tolled the running of Pennsylvania’s two-year statute of limitations.

On appeal the patient argued that he was seeking compensation for an injury to his lungs, not for his chickenpox infection, and that the evidence clearly showed he did not suspect the vaccine had caused the lung injury until April 9, 2014, at the earliest, when an infectious disease specialist confirmed the link between the patient’s symptoms and the vaccine. He also argued, in the alternative, that he was not certain that his illness had been caused by chickenpox and was not aware that the vaccine had caused his chickenpox.

Discovery rule. In upholding the district court’s holding, the appellate court explained that a definitive diagnosis was not required to trigger the running of the statute of limitations. Based on the evidence presented, there was no genuine issue of material fact in this case to counter an unrebutted suspicion that the patient had "a particular disease ... caused by another" more than two years before the complaint was filed. Specifically, the record showed that eight days after receiving the vaccination, the patient reported to a nurse practitioner that he had developed a rash accompanied by a low-grade fever and cough. During a second visit about two weeks later, the nurse practitioner described the patient’s condition as "a rash from the shingle vaccine improving but still with persistent cough and [i]ntermittent fever." About a week later, the patient’s primary care physician indicated that shortly after the patient had received the vaccine, he had developed a dry cough and a fever that "persists." In addition, both the nurse practitioner and the patient’s wife, a registered nurse, testified in their depositions that they knew there was a possibility the patient’s rash could be chickenpox and the nurse practitioner further stated that she thought the vaccine might have caused the patient’s cough as it was one of the possible adverse reactions linked to live vaccines. The nurse practitioner also stated that she had notified Merck of the patient’s possible reactions to the vaccine, including fever, rash and cough.

The record also showed that the patient first presented to his primary physician with a cough a week before he received the vaccine and that during a visit several weeks after his chickenpox symptoms occurred, his primary care physician noted that the patient had been exposed to a respiratory illness which he likely caught from another person.

Finally, the patient himself had filed a disability form with his employer in which he claimed that he could not work because he was suffering from a "severe allergic reaction to Shingles," which he explained in his deposition meant a reaction to the shingles vaccine.

Fraudulent concealment exception. The appellate court also upheld the district court’s finding that the patient failed to provide evidence to support his claim that the fraudulent concealment exception to the statute of limitations applied in this case. Although his wife testified in her deposition that she had been told by the nurse practitioner that she had contacted Merck and that the company had informed her they had never seen chickenpox from the vaccine, this hearsay statement was not enough to satisfy the exception’s present sense impression requirement. Furthermore, there was no evidence in the record that Merck knew of a case in which its vaccine had caused chickenpox or that Merck had misled the patient when it reported that it did not think the vaccine had caused his chickenpox.

The case is No. 17-2081.

Attorneys: Michael S. Katz (Lopez McHugh LLP) for Chris Juday and Pat Juday. Maura L. Burke (Fox Rothschild LLP) for Merck & Co., Inc. and Merck Sharp & Dohme Corp.

Companies: Merck & Co., Inc.; Merck Sharp & Dohme Corp.

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