Products Liability Law Daily Patient’s reliance on assurance by doctor related to side effects of shingles vaccine may toll statute of limitations
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Monday, April 9, 2018

Patient’s reliance on assurance by doctor related to side effects of shingles vaccine may toll statute of limitations

By Kathleen Bianco, J.D.

A patient who allegedly had been injured after receiving a vaccine for shingles presented sufficient evidence to raise a genuine issue of material fact related to whether the applicable two-year statute of limitations on her claims had been tolled under the discovery rule, a federal district court in Pennsylvania held in a decision denying the manufacturers’ motion for summary judgment (Billeci v. Merck & Co., Inc., April 5, 2018, Bartle, H.).

A patient who sustained personal injuries following receipt of a shingles vaccine filed suit against the manufacturers alleging claims for negligence, design defect, failure to warn, breach of express warranty, and breach of implied warranty. The vaccine, Zostavax, was manufactured, marketed, and distributed by Merck & Co., Inc. and Merck Sharp & Dohme Corp. and given to the patient at a California health clinic. The patient’s husband also filed a claim for loss of consortium resulting from the injuries sustained by his wife. The defendants moved for summary judgment, asserting that the claims filed by the patient and her husband were barred by the applicable statute of limitations.

Statute of limitations. After examining the facts in this case and applicable choice of law provisions, the court determined that the limitations period for the patient’s claims was two years. Under this standard, the patient’s suit filed on February 2, 2017 was untimely, as she had received the vaccine on September 15, 2014. However, the patient argued that the statute of limitations had been tolled under the discovery rule because she had not known definitively that her injuries were related to the vaccine. While the evidence showed that the patient had suspected from the onset that her injuries had been caused by the vaccination, that suspicion was not confirmed by doctors. Furthermore, a letter sent by the health clinic on February 21, 2015 assured her that her symptoms were not the result of the vaccine. Under the discovery rule, a suspicion of cause can be rebutted, and the statute tolled, if the injured party reasonably relied on the assurances of her doctor or health care provider that her suspicion about the cause of her injury or disease was unfounded.

The patient asserted that from February 2015 to November 2015, she relied upon the letter received from the health clinic to extinguish her suspicions about the cause of her injuries. As a result of this, the patient claimed that the statute of limitations was tolled during that eight-month period. If the eight-month period was excluded, then the patient’s claims would be timely. Based on the facts presented, the court concluded that a reasonable jury could find that the patient had submitted sufficient facts to support the application of the discovery rule and equitable tolling to allow the action to proceed to a trial on the merits. Consequently, the court determined that summary judgment in favor of the manufacturers was not warranted.

The case is No. 17-486.

Attorneys: Mark T. Sadaka (Sadaka Associates, LLC) for Sandra Billeci. Caroline Drew Murray (Venable LLP) for Merck & Co., Inc. and Merck Sharp & Dohme Corp.

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

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