Thimeorsal legal case moves forward

[Guest guest]

<>[ Siegel of Waters & Kraus, along with Martzell & Bickford

argued the motion.]

In the

United States Court of Appeals

for the Fifth Circuit

_______________

No. 03-30958

_______________

Moss, Individually and On Behalf of Amber Moss;

Janice Moss,

Plaintiffs-Appellants,

VERSUS

Merck & Company, et Al.,

Defendants,

Merck & Company,

Aventis Pasteur Inc.,

Individually and as Successor in Interest,

Also Known as Connaught Laboratories Inc.,

Also Known as Pasteur Merieux, Also Known as Pasteur Merieux Connaught;

Eli Lilly & Company, and Wyeth,

Defendants-Appellees,

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________

Before , Benavides, and

Pickering, Circuit Judges.

Jerry E. , Circuit Judge:

Plaintiffs and Janice Moss (“the Mosses”), the parents of a young

child who, they allege, developed autism as a result of receiving

vaccines containing mercury, wish to pursue state law tort claims for

injuries they suffered as a result of the child’s condition. Although

their claims are not barred by the literal terms of the National

Childhood Vaccine Injury Act of 1986 (the “Vaccine Act”), 42 U.S.C. §

300aa-1/ et seq/., defendants urge the alternate theories that the

statute is broad enough implicitly to preempt any claims it fails

directly to address, and that the purpose of the statute requires us to

construe its express terms broadly and in a way that robs the plaintiffs

of the right to sue.

In the district court, defendants Merck & Company, Aventis Pasteur Inc.,

and Wyeth, Inc. (the “Vaccine Defendants”), obtained a dismissal on the

ground that the Vaccine Act precludes the Mosses’ pursuit of a tort

remedy for a vaccine-related injury. / Cf./ Fed. R. Civ. P. 12((1).

Defendant Eli Lilly & Company (“Eli Lilly”), the manufacturer of

Thimerosal, the mercury-containing preservative used in several

childhood vaccines, obtained a dismissal on the ground that it too is a

vaccine manufacturer entitled to the protections of the Vaccine Act.

Relying on the text of the statute and eschewing the defendants’

invitation to re-write a complex federal regulatory scheme to suit their

purposes, we reverse and remand with instruction.

I.

A.

Eli Lilly seeks to be treated on like terms as the Vaccine Defendants.

Because Thimerosal is not a vaccine, its producers are not vaccine

manufacturers as that term is defined in the Vaccine Act, 42 U.S.C. §

300aa-33(3), so they are not entitled to the protections of the Act’s

restriction on the filing of suits.^1

The Vaccine Act is a remedial program designed to provide swift

compensation for persons injured by vaccines, while ensuring that the

nation’s supply of vaccines isn’t unduly threatened by the costs and

risks of tort litigation. To that end, victims of a “vaccine-related

injury or death,” as that term is defined in 42 U.S.C. § 300aa-33(5),

are barred from seeking redress in the courts unless they have first

filed a claim for recovery in a specialized Vaccine Court.^2 / See/ §

300aa-11(a)(2)A).

Operating under lower standards of proof, claimants can seek a

compensatory award from the government, acceptance of which causes them

to waive any further tort rights./ See/ § 300aa-21(a). The claimant may

instead decline the award and pursue traditional tort relief, but with

certain restrictions such as an inability to recover punitive damages./

See/ §§ 300aa-21(a), 300aa-22. / See also Schafer v. Am. Cyanamid Co./,

20 F.3d 1, 3 (1st Cir. 1994) (Breyer, C.J.) (detailing the restrictions

on suits).

The Vaccine Act does not apply to all vaccine-related lawsuits, however,

but only those brought against a “vaccine administrator or

manufacturer.” § 300aa-11(a)(2)(A). The Act defines “vaccine

manufacturer” as “any corporation, organization, or institution, whether

public or private . . . which manufactures, imports, processes, or

distributes under its label any vaccine set forth in the Vaccine Injury

Table.” § 300aa-33(3). Still, the statute does not define the term

“vaccine,” requiring us to ascertain the meaning of that word through

ordinary principles of statutory construction. In the absence of a

controlling definition, we interpret statutes according to their plain,

ordinary meaning.^3

Under the plain meaning of the Vaccine Act, Eli Lilly is not a vaccine

manufacturer, so the Mosses are not barred from suing it. It is settled

that Thimerosal, when used as a preservative, is a component of a

vaccine rather than an adulterant. / Leroy v. Sec’y of Health & Human

Servs./, 2002 U.S. Claims LEXIS 284, *18-*19 (Fed. Cl. 2002) (citing

cases). Nonetheless, its status as a vaccine component no more makes

Thimerosal a “vaccine” than does the inclusion of a piston under the

hood of an automobile make that object an “engine.”

Thimerosal is part of the finished product, to be sure, but it is not

the finished product itself, and on its face the statute governs only

lawsuits filed against manufacturers of a completed vaccine shipped

under its own label and listed in the Vaccine Injury Table. Not

surprisingly, Thimerosal is not sold as a vaccine, nor is it listed in

the statute’s table.

If a plaintiff is able to trace his injury to the manufacturer of a

chemical that does not, in and of itself, qualify for protection under

the Vaccine Act, there is nothing in the Act that prevents him from

going to court and attempting to prove that his injuries were caused by

that chemical. The burden of proof at trial may be complicated by the

difficulty inherent in demonstrating that the injury was proximately

caused by that singular component, rather than the vaccine itself, but

this does not mean the Vaccine Act prevents plaintiffs from trying; it

only prohibits them from filing the Thimerosal-based claim against the

manufacturer of a vaccine, something Eli Lilly cannot claim to be solely

on the basis of its manufacture of Thimerosal.

B.

Eli Lilly argues that our conclusion contradicts the Vaccine Court’s

analysis in/ Leroy/. Specifically, it reads/ Leroy/ as having decided

that victims of Thimerosal-related injuries are free to pursue claims

for relief in the Vaccine Court, and that today’s decision gives rise to

the prospect of double recovery.

We disagree. In/ Leroy/, the Vaccine Court was presented with a

jurisdictional challenge premised on the notion that Thimerosal is

present in vaccines only as an adulterant or contaminant. / Leroy/, 2002

U.S. Claims LEXIS 284, at *10. Because the Vaccine Act does not apply to

injuries caused by those sorts of impurities,/ see/ § 300aa-33(5), the

classification of Thimerosal under one of those headings would have left

plaintiffs free to sue vaccine manufacturers in traditional courts so

long as they argued that it was the Thimerosal and not the vaccine that

caused their injuries. The Vaccine Court rejected the challenge,

however, concluding that Thimerosal is a component of the vaccines in

which it is found. / Id./ at *27-*29. As a result, the Vaccine Court

concluded, the Vaccine Act encompasses claims filed/ against a

manufacturer or administrator/ of a vaccine premised on the allegation

that an injury was caused by a vaccine containing Thimerosal. / Id./ at *66.

/ Leroy/, therefore, stands for nothing more than the unremarkable

proposition that a Thimerosal-related injury, occurring as a result of

the administration of a vaccine, is a vaccine-related injury within the

meaning of the Vaccine Act. That does not end our inquiry, however,

because a claim is barred under the statute only if it alleges a

vaccine-related injury and is filed against a vaccine manufacturer. §

300aa-11(a)(2)(A). It is this latter requirement that Eli Lilly fails to

meet, and, as a result, the Vaccine Act affords it no cover from the

Mosses’ claims.

II.

The Mosses’ suit against the Vaccine Defendants relies on Louisiana tort

law and seeks recompense for injuries incurred in a personal capacity.

Just as the Vaccine Act does not protect all defendants, it does not

apply to all tort suits having some connection to the administration of

a vaccine. Rather, the restriction on filing tort claims applies only to

those who have “sustained a vaccine-related injury or death and who

[are] qualified to file a petition for compensation under the Program.”

§ 300aa-11(a)(9). In this way, the Vaccine Act treats “the tort suit

procedural bar and Vaccine Court compensation as opposite sides of the

same coin.”/ Schafer/, 20 F.3d at 5. The program delays the filing of

only those tort claims for which it first provides an alternate source

of compensation.

To file a petition for compensation, a claimant must be either a person

who has sustained a vaccine-related injury, orSSif the victim is a

minor, disabled or deceasedSSthat person’s legal representative. §

300aa-11((1)(A). Any person who fits one of those descriptions and

“meets the requirements of subsection ©(1) of this section” may file a

petition for compensation. / Id./

Of singular importance is the requirement in § 300aa-11©(1)(A) that

the claimant be able to state in an affidavit that he “received a

vaccine set forth in the Vaccine Injury Table or, if such person did not

receive such a vaccine, contracted polio, directly or indirectly, from

another person who received an oral polio vaccine.” Because and

Janice Moss neither received a vaccine nor contracted polio from someone

who did, they are unable to satisfy the requirements of subsection

©(1). As a result, they are ineligible to file a petition,/ see/ §

300aa-11((1)(a), and the Vaccine Act’s restriction on the filing of

tort suits does not apply to them,/ see/ § 300aa-11(a)(9).^4

That much is plain on the face of the statute, but the lack of statutory

ambiguity does not stop the Vaccine Defendants from arguing that a

literal application of the regulatory scheme “will thwart the intent and

purpose of the Act, and interfere with its operation.” Because the

Vaccine Act was motivated by a desire to unburden vaccine manufacturers

from the costs and risks of tort litigation, the argument goes, the Act

should be construed as barring those claims as well.

We disagree. If it is indeed the case that loss-of-consortium claims

frustrate this complex federal regime, Congress can enact a change. For

all we know, this possibility/ was/ considered, and a conscious decision

was made not to regulate consortium claims. Either way, it is not for

this court to decide what Congress should have done, but only to apply a

statute that on its face has nothing to say about consortium claims.

Because the Vaccine Act neither provides a mechanism for their recovery

on a loss of consortium suit, nor openly bars their right to pursue

remedies afforded by state tort law, the Mosses may pursue their claims.^5

As an alternate strain of their defense, the Vaccine Defendants contend

that the district court properly dismissed the Mosses’ claims because

they are implicitly preempted by the Vaccine Act. We reject this

argument, too, for we will not lightly infer that Congress has

implicitly preempted state claims using an instrument that explicitly

preempts other claims, s/ee, e.g.,// Freightliner Corp. v. Myrick/,//

514 U.S. 280, 288 (1995), and the Vaccine Defendants offer no persuasive

reason to make that inferential leap in this case. / Accord// Schafer/,

20 F.3d at 6-7.

Congress could not have been much more plain in its desire/ not/ to

preempt tort claims filed by persons who are ineligible to recover in

the Vaccine Court.^6 We therefore agree with the First Circuit

thatSSassuming/ arguendo/ that state tort law permits claims for loss of

consortium (and about which we express no opinion)SSthere is nothing in

the Vaccine Act that implicitly or explicitly prevents this suit from

going forward. / Schafer/, 20 F.3d at 2.

III.

For the foregoing reasons, the judgment is REVERSED and the Mosses’

claims reinstated. At oral argument, the Mosses represented that they

would be satisfied with an order staying their suit until the Vaccine

Court renders a decision on the award, if any, to Amber. The case is

therefore REMANDED with instruction to stay the proceeding pending a

result in the Vaccine Court, and for any further proceedings that are

not inconsistent with this opinion.****

/ Fitzgerald Oathout/

///Schwartz, Junell, Greenberg & Oathout, L.L.P./

///909 Fannin, Suite 2000/

///Houston, Texas 77010/

///(713) 752-0017 Telephone/

///(713) 752-0327 Fax/

///moathout@.../

[Guest guest]

Has anyone else used this firm? I have been in contact with them

but have not finalized anything...would love any feedback on this..

Thanks

Sherry

> <>[ Siegel of Waters & Kraus, along with Martzell &

Bickford

> argued the motion.]

>

>

> In the

>

> United States Court of Appeals

>

> for the Fifth Circuit

>

> _______________

>

> No. 03-30958

>

> _______________

>

>

>

> Moss, Individually and On Behalf of Amber Moss;

>

> Janice Moss,

>

> Plaintiffs-Appellants,

>

> VERSUS

>

> Merck & Company, et Al.,

>

> Defendants,

>

> Merck & Company,

>

> Aventis Pasteur Inc.,

>

> Individually and as Successor in Interest,

>

> Also Known as Connaught Laboratories Inc.,

>

> Also Known as Pasteur Merieux, Also Known as Pasteur Merieux

Connaught;

>

> Eli Lilly & Company, and Wyeth,

>

> Defendants-Appellees,

>

>

> _________________________

>

> Appeal from the United States District Court

>

> for the Western District of Louisiana

>

> _________________________

>

>

>

> Before , Benavides, and

>

> Pickering, Circuit Judges.

>

> Jerry E. , Circuit Judge:

>

> Plaintiffs and Janice Moss ( " the Mosses " ), the parents of a

young

> child who, they allege, developed autism as a result of receiving

> vaccines containing mercury, wish to pursue state law tort claims

for

> injuries they suffered as a result of the child's condition.

Although

> their claims are not barred by the literal terms of the National

> Childhood Vaccine Injury Act of 1986 (the " Vaccine Act " ), 42

U.S.C. §

> 300aa-1/ et seq/., defendants urge the alternate theories that the

> statute is broad enough implicitly to preempt any claims it fails

> directly to address, and that the purpose of the statute requires

us to

> construe its express terms broadly and in a way that robs the

plaintiffs

> of the right to sue.

>

> In the district court, defendants Merck & Company, Aventis Pasteur

Inc.,

> and Wyeth, Inc. (the " Vaccine Defendants " ), obtained a dismissal

on the

> ground that the Vaccine Act precludes the Mosses' pursuit of a

tort

> remedy for a vaccine-related injury. / Cf./ Fed. R. Civ. P. 12(

(1).

> Defendant Eli Lilly & Company ( " Eli Lilly " ), the manufacturer of

> Thimerosal, the mercury-containing preservative used in several

> childhood vaccines, obtained a dismissal on the ground that it too

is a

> vaccine manufacturer entitled to the protections of the Vaccine

Act.

> Relying on the text of the statute and eschewing the defendants'

> invitation to re-write a complex federal regulatory scheme to suit

their

> purposes, we reverse and remand with instruction.

>

> I.

>

> A.

>

> Eli Lilly seeks to be treated on like terms as the Vaccine

Defendants.

> Because Thimerosal is not a vaccine, its producers are not vaccine

> manufacturers as that term is defined in the Vaccine Act, 42

U.S.C. §

> 300aa-33(3), so they are not entitled to the protections of the

Act's

> restriction on the filing of suits.^1

>

> The Vaccine Act is a remedial program designed to provide swift

> compensation for persons injured by vaccines, while ensuring that

the

> nation's supply of vaccines isn't unduly threatened by the costs

and

> risks of tort litigation. To that end, victims of a " vaccine-

related

> injury or death, " as that term is defined in 42 U.S.C. § 300aa-33

(5),

> are barred from seeking redress in the courts unless they have

first

> filed a claim for recovery in a specialized Vaccine Court.^2 /

See/ §

> 300aa-11(a)(2)A).

>

> Operating under lower standards of proof, claimants can seek a

> compensatory award from the government, acceptance of which causes

them

> to waive any further tort rights./ See/ § 300aa-21(a). The

claimant may

> instead decline the award and pursue traditional tort relief, but

with

> certain restrictions such as an inability to recover punitive

damages./

> See/ §§ 300aa-21(a), 300aa-22. / See also Schafer v. Am. Cyanamid

Co./,

> 20 F.3d 1, 3 (1st Cir. 1994) (Breyer, C.J.) (detailing the

restrictions

> on suits).

>

> The Vaccine Act does not apply to all vaccine-related lawsuits,

however,

> but only those brought against a " vaccine administrator or

> manufacturer. " § 300aa-11(a)(2)(A). The Act defines " vaccine

> manufacturer " as " any corporation, organization, or institution,

whether

> public or private . . . which manufactures, imports, processes, or

> distributes under its label any vaccine set forth in the Vaccine

Injury

> Table. " § 300aa-33(3). Still, the statute does not define the term

> " vaccine, " requiring us to ascertain the meaning of that word

through

> ordinary principles of statutory construction. In the absence of a

> controlling definition, we interpret statutes according to their

plain,

> ordinary meaning.^3

>

> Under the plain meaning of the Vaccine Act, Eli Lilly is not a

vaccine

> manufacturer, so the Mosses are not barred from suing it. It is

settled

> that Thimerosal, when used as a preservative, is a component of a

> vaccine rather than an adulterant. / Leroy v. Sec'y of Health &

Human

> Servs./, 2002 U.S. Claims LEXIS 284, *18-*19 (Fed. Cl. 2002)

(citing

> cases). Nonetheless, its status as a vaccine component no more

makes

> Thimerosal a " vaccine " than does the inclusion of a piston under

the

> hood of an automobile make that object an " engine. "

>

> Thimerosal is part of the finished product, to be sure, but it is

not

> the finished product itself, and on its face the statute governs

only

> lawsuits filed against manufacturers of a completed vaccine

shipped

> under its own label and listed in the Vaccine Injury Table. Not

> surprisingly, Thimerosal is not sold as a vaccine, nor is it

listed in

> the statute's table.

>

> If a plaintiff is able to trace his injury to the manufacturer of

a

> chemical that does not, in and of itself, qualify for protection

under

> the Vaccine Act, there is nothing in the Act that prevents him

from

> going to court and attempting to prove that his injuries were

caused by

> that chemical. The burden of proof at trial may be complicated by

the

> difficulty inherent in demonstrating that the injury was

proximately

> caused by that singular component, rather than the vaccine itself,

but

> this does not mean the Vaccine Act prevents plaintiffs from

trying; it

> only prohibits them from filing the Thimerosal-based claim against

the

> manufacturer of a vaccine, something Eli Lilly cannot claim to be

solely

> on the basis of its manufacture of Thimerosal.

>

> B.

>

> Eli Lilly argues that our conclusion contradicts the Vaccine

Court's

> analysis in/ Leroy/. Specifically, it reads/ Leroy/ as having

decided

> that victims of Thimerosal-related injuries are free to pursue

claims

> for relief in the Vaccine Court, and that today's decision gives

rise to

> the prospect of double recovery.

>

> We disagree. In/ Leroy/, the Vaccine Court was presented with a

> jurisdictional challenge premised on the notion that Thimerosal is

> present in vaccines only as an adulterant or contaminant. /

Leroy/, 2002

> U.S. Claims LEXIS 284, at *10. Because the Vaccine Act does not

apply to

> injuries caused by those sorts of impurities,/ see/ § 300aa-33(5),

the

> classification of Thimerosal under one of those headings would

have left

> plaintiffs free to sue vaccine manufacturers in traditional courts

so

> long as they argued that it was the Thimerosal and not the vaccine

that

> caused their injuries. The Vaccine Court rejected the challenge,

> however, concluding that Thimerosal is a component of the vaccines

in

> which it is found. / Id./ at *27-*29. As a result, the Vaccine

Court

> concluded, the Vaccine Act encompasses claims filed/ against a

> manufacturer or administrator/ of a vaccine premised on the

allegation

> that an injury was caused by a vaccine containing Thimerosal. /

Id./ at *66.

>

> / Leroy/, therefore, stands for nothing more than the unremarkable

> proposition that a Thimerosal-related injury, occurring as a

result of

> the administration of a vaccine, is a vaccine-related injury

within the

> meaning of the Vaccine Act. That does not end our inquiry,

however,

> because a claim is barred under the statute only if it alleges a

> vaccine-related injury and is filed against a vaccine

manufacturer. §

> 300aa-11(a)(2)(A). It is this latter requirement that Eli Lilly

fails to

> meet, and, as a result, the Vaccine Act affords it no cover from

the

> Mosses' claims.

>

> II.

>

> The Mosses' suit against the Vaccine Defendants relies on

Louisiana tort

> law and seeks recompense for injuries incurred in a personal

capacity.

> Just as the Vaccine Act does not protect all defendants, it does

not

> apply to all tort suits having some connection to the

administration of

> a vaccine. Rather, the restriction on filing tort claims applies

only to

> those who have " sustained a vaccine-related injury or death and

who

> [are] qualified to file a petition for compensation under the

Program. "

> § 300aa-11(a)(9). In this way, the Vaccine Act treats " the tort

suit

> procedural bar and Vaccine Court compensation as opposite sides of

the

> same coin. " / Schafer/, 20 F.3d at 5. The program delays the filing

of

> only those tort claims for which it first provides an alternate

source

> of compensation.

>

> To file a petition for compensation, a claimant must be either a

person

> who has sustained a vaccine-related injury, orSSif the victim is a

> minor, disabled or deceasedSSthat person's legal representative. §

> 300aa-11((1)(A). Any person who fits one of those descriptions

and

> " meets the requirements of subsection ©(1) of this section " may

file a

> petition for compensation. / Id./

>

> Of singular importance is the requirement in § 300aa-11©(1)(A)

that

> the claimant be able to state in an affidavit that he " received a

> vaccine set forth in the Vaccine Injury Table or, if such person

did not

> receive such a vaccine, contracted polio, directly or indirectly,

from

> another person who received an oral polio vaccine. " Because

and

> Janice Moss neither received a vaccine nor contracted polio from

someone

> who did, they are unable to satisfy the requirements of subsection

> ©(1). As a result, they are ineligible to file a petition,/ see/

§

> 300aa-11((1)(a), and the Vaccine Act's restriction on the filing

of

> tort suits does not apply to them,/ see/ § 300aa-11(a)(9).^4

>

> That much is plain on the face of the statute, but the lack of

statutory

> ambiguity does not stop the Vaccine Defendants from arguing that a

> literal application of the regulatory scheme " will thwart the

intent and

> purpose of the Act, and interfere with its operation. " Because the

> Vaccine Act was motivated by a desire to unburden vaccine

manufacturers

> from the costs and risks of tort litigation, the argument goes,

the Act

> should be construed as barring those claims as well.

>

> We disagree. If it is indeed the case that loss-of-consortium

claims

> frustrate this complex federal regime, Congress can enact a

change. For

> all we know, this possibility/ was/ considered, and a conscious

decision

> was made not to regulate consortium claims. Either way, it is not

for

> this court to decide what Congress should have done, but only to

apply a

> statute that on its face has nothing to say about consortium

claims.

> Because the Vaccine Act neither provides a mechanism for their

recovery

> on a loss of consortium suit, nor openly bars their right to

pursue

> remedies afforded by state tort law, the Mosses may pursue their

claims.^5

>

> As an alternate strain of their defense, the Vaccine Defendants

contend

> that the district court properly dismissed the Mosses' claims

because

> they are implicitly preempted by the Vaccine Act. We reject this

> argument, too, for we will not lightly infer that Congress has

> implicitly preempted state claims using an instrument that

explicitly

> preempts other claims, s/ee, e.g.,// Freightliner Corp. v.

Myrick/,//

> 514 U.S. 280, 288 (1995), and the Vaccine Defendants offer no

persuasive

> reason to make that inferential leap in this case. / Accord//

Schafer/,

> 20 F.3d at 6-7.

>

> Congress could not have been much more plain in its desire/ not/

to

> preempt tort claims filed by persons who are ineligible to recover

in

> the Vaccine Court.^6 We therefore agree with the First Circuit

> thatSSassuming/ arguendo/ that state tort law permits claims for

loss of

> consortium (and about which we express no opinion)SSthere is

nothing in

> the Vaccine Act that implicitly or explicitly prevents this suit

from

> going forward. / Schafer/, 20 F.3d at 2.

>

> III.

>

> For the foregoing reasons, the judgment is REVERSED and the

Mosses'

> claims reinstated. At oral argument, the Mosses represented that

they

> would be satisfied with an order staying their suit until the

Vaccine

> Court renders a decision on the award, if any, to Amber. The case

is

> therefore REMANDED with instruction to stay the proceeding pending

a

> result in the Vaccine Court, and for any further proceedings that

are

> not inconsistent with this opinion.****

>

> / Fitzgerald Oathout/

> ///Schwartz, Junell, Greenberg & Oathout, L.L.P./

> ///909 Fannin, Suite 2000/

> ///Houston, Texas 77010/

> ///(713) 752-0017 Telephone/

> ///(713) 752-0327 Fax/

> ///moathout@s.../

[Guest guest]

All:

I spoke with a paralegal at the below mentioned law firm this

afternoon...don't waste your time if the statuate of limitations has

run out for your child. Waters & Kraus is no longer taking civil

cases pertaining to Thimerosal...matter of fact, the only thing the

paralegal recommended was contacting my state's Bar Association.

Another door slammed in our faces.

Rob

> <>[ Siegel of Waters & Kraus, along with Martzell &

Bickford

> argued the motion.]

>

>

> In the

>

> United States Court of Appeals

>

> for the Fifth Circuit

>

> _______________

>

> No. 03-30958

>

> _______________

>

>

>

> Moss, Individually and On Behalf of Amber Moss;

>

> Janice Moss,

>

> Plaintiffs-Appellants,

>

> VERSUS

>

> Merck & Company, et Al.,

>

> Defendants,

>

> Merck & Company,

>

> Aventis Pasteur Inc.,

>

> Individually and as Successor in Interest,

>

> Also Known as Connaught Laboratories Inc.,

>

> Also Known as Pasteur Merieux, Also Known as Pasteur Merieux

Connaught;

>

> Eli Lilly & Company, and Wyeth,

>

> Defendants-Appellees,

>

>

> _________________________

>

> Appeal from the United States District Court

>

> for the Western District of Louisiana

>

> _________________________

>

>

>

> Before , Benavides, and

>

> Pickering, Circuit Judges.

>

> Jerry E. , Circuit Judge:

>

> Plaintiffs and Janice Moss ( " the Mosses " ), the

parents of a

young

> child who, they allege, developed autism as a result of receiving

> vaccines containing mercury, wish to pursue state law tort claims

for

> injuries they suffered as a result of the child's condition.

Although

> their claims are not barred by the literal terms of the National

> Childhood Vaccine Injury Act of 1986 (the " Vaccine Act " ),

42

U.S.C. §

> 300aa-1/ et seq/., defendants urge the alternate theories that the

> statute is broad enough implicitly to preempt any claims it fails

> directly to address, and that the purpose of the statute requires

us to

> construe its express terms broadly and in a way that robs the

plaintiffs

> of the right to sue.

>

> In the district court, defendants Merck & Company, Aventis Pasteur

Inc.,

> and Wyeth, Inc. (the " Vaccine Defendants " ), obtained a

dismissal

on the

> ground that the Vaccine Act precludes the Mosses' pursuit of a

tort

> remedy for a vaccine-related injury. / Cf./ Fed. R. Civ. P. 12(

(1).

> Defendant Eli Lilly & Company ( " Eli Lilly " ), the

manufacturer of

> Thimerosal, the mercury-containing preservative used in several

> childhood vaccines, obtained a dismissal on the ground that it too

is a

> vaccine manufacturer entitled to the protections of the Vaccine

Act.

> Relying on the text of the statute and eschewing the

defendants'

> invitation to re-write a complex federal regulatory scheme to suit

their

> purposes, we reverse and remand with instruction.

>

> I.

>

> A.

>

> Eli Lilly seeks to be treated on like terms as the Vaccine

Defendants.

> Because Thimerosal is not a vaccine, its producers are not vaccine

> manufacturers as that term is defined in the Vaccine Act, 42

U.S.C. §

> 300aa-33(3), so they are not entitled to the protections of the

Act's

> restriction on the filing of suits.^1

>

> The Vaccine Act is a remedial program designed to provide swift

> compensation for persons injured by vaccines, while ensuring that

the

> nation's supply of vaccines isn't unduly threatened by the

costs

and

> risks of tort litigation. To that end, victims of a " vaccine-

related

> injury or death, " as that term is defined in 42 U.S.C. §

300aa-33

(5),

> are barred from seeking redress in the courts unless they have

first

> filed a claim for recovery in a specialized Vaccine Court.^2 /

See/ §

> 300aa-11(a)(2)A).

>

> Operating under lower standards of proof, claimants can seek a

> compensatory award from the government, acceptance of which causes

them

> to waive any further tort rights./ See/ § 300aa-21(a). The

claimant may

> instead decline the award and pursue traditional tort relief, but

with

> certain restrictions such as an inability to recover punitive

damages./

> See/ §§ 300aa-21(a), 300aa-22. / See also Schafer v. Am.

Cyanamid

Co./,

> 20 F.3d 1, 3 (1st Cir. 1994) (Breyer, C.J.) (detailing the

restrictions

> on suits).

>

> The Vaccine Act does not apply to all vaccine-related lawsuits,

however,

> but only those brought against a " vaccine administrator or

> manufacturer. " § 300aa-11(a)(2)(A). The Act defines

" vaccine

> manufacturer " as " any corporation, organization, or

institution,

whether

> public or private . . . which manufactures, imports, processes, or

> distributes under its label any vaccine set forth in the Vaccine

Injury

> Table. " § 300aa-33(3). Still, the statute does not define

the term

> " vaccine, " requiring us to ascertain the meaning of that

word

through

> ordinary principles of statutory construction. In the absence of a

> controlling definition, we interpret statutes according to their

plain,

> ordinary meaning.^3

>

> Under the plain meaning of the Vaccine Act, Eli Lilly is not a

vaccine

> manufacturer, so the Mosses are not barred from suing it. It is

settled

> that Thimerosal, when used as a preservative, is a component of a

> vaccine rather than an adulterant. / Leroy v. Sec'y of Health &

Human

> Servs./, 2002 U.S. Claims LEXIS 284, *18-*19 (Fed. Cl. 2002)

(citing

> cases). Nonetheless, its status as a vaccine component no more

makes

> Thimerosal a " vaccine " than does the inclusion of a piston

under

the

> hood of an automobile make that object an " engine. "

>

> Thimerosal is part of the finished product, to be sure, but it is

not

> the finished product itself, and on its face the statute governs

only

> lawsuits filed against manufacturers of a completed vaccine

shipped

> under its own label and listed in the Vaccine Injury Table. Not

> surprisingly, Thimerosal is not sold as a vaccine, nor is it

listed in

> the statute's table.

>

> If a plaintiff is able to trace his injury to the manufacturer of

a

> chemical that does not, in and of itself, qualify for protection

under

> the Vaccine Act, there is nothing in the Act that prevents him

from

> going to court and attempting to prove that his injuries were

caused by

> that chemical. The burden of proof at trial may be complicated by

the

> difficulty inherent in demonstrating that the injury was

proximately

> caused by that singular component, rather than the vaccine itself,

but

> this does not mean the Vaccine Act prevents plaintiffs from

trying; it

> only prohibits them from filing the Thimerosal-based claim against

the

> manufacturer of a vaccine, something Eli Lilly cannot claim to be

solely

> on the basis of its manufacture of Thimerosal.

>

> B.

>

> Eli Lilly argues that our conclusion contradicts the Vaccine

Court's

> analysis in/ Leroy/. Specifically, it reads/ Leroy/ as having

decided

> that victims of Thimerosal-related injuries are free to pursue

claims

> for relief in the Vaccine Court, and that today's decision

gives

rise to

> the prospect of double recovery.

>

> We disagree. In/ Leroy/, the Vaccine Court was presented with a

> jurisdictional challenge premised on the notion that Thimerosal is

> present in vaccines only as an adulterant or contaminant. /

Leroy/, 2002

> U.S. Claims LEXIS 284, at *10. Because the Vaccine Act does not

apply to

> injuries caused by those sorts of impurities,/ see/ §

300aa-33(5),

the

> classification of Thimerosal under one of those headings would

have left

> plaintiffs free to sue vaccine manufacturers in traditional courts

so

> long as they argued that it was the Thimerosal and not the vaccine

that

> caused their injuries. The Vaccine Court rejected the challenge,

> however, concluding that Thimerosal is a component of the vaccines

in

> which it is found. / Id./ at *27-*29. As a result, the Vaccine

Court

> concluded, the Vaccine Act encompasses claims filed/ against a

> manufacturer or administrator/ of a vaccine premised on the

allegation

> that an injury was caused by a vaccine containing Thimerosal. /

Id./ at *66.

>

> / Leroy/, therefore, stands for nothing more than the unremarkable

> proposition that a Thimerosal-related injury, occurring as a

result of

> the administration of a vaccine, is a vaccine-related injury

within the

> meaning of the Vaccine Act. That does not end our inquiry,

however,

> because a claim is barred under the statute only if it alleges a

> vaccine-related injury and is filed against a vaccine

manufacturer. §

> 300aa-11(a)(2)(A). It is this latter requirement that Eli Lilly

fails to

> meet, and, as a result, the Vaccine Act affords it no cover from

the

> Mosses' claims.

>

> II.

>

> The Mosses' suit against the Vaccine Defendants relies on

Louisiana tort

> law and seeks recompense for injuries incurred in a personal

capacity.

> Just as the Vaccine Act does not protect all defendants, it does

not

> apply to all tort suits having some connection to the

administration of

> a vaccine. Rather, the restriction on filing tort claims applies

only to

> those who have " sustained a vaccine-related injury or death and

who

> [are] qualified to file a petition for compensation under the

Program. "

> § 300aa-11(a)(9). In this way, the Vaccine Act treats " the

tort

suit

> procedural bar and Vaccine Court compensation as opposite sides of

the

> same coin. " / Schafer/, 20 F.3d at 5. The program delays the

filing

of

> only those tort claims for which it first provides an alternate

source

> of compensation.

>

> To file a petition for compensation, a claimant must be either a

person

> who has sustained a vaccine-related injury, orSSif the victim is a

> minor, disabled or deceasedSSthat person's legal

representative. §

> 300aa-11((1)(A). Any person who fits one of those descriptions

and

> " meets the requirements of subsection ©(1) of this

section " may

file a

> petition for compensation. / Id./

>

> Of singular importance is the requirement in § 300aa-11©(1)(A)

that

> the claimant be able to state in an affidavit that he " received

a

> vaccine set forth in the Vaccine Injury Table or, if such person

did not

> receive such a vaccine, contracted polio, directly or indirectly,

from

> another person who received an oral polio vaccine. " Because

and

> Janice Moss neither received a vaccine nor contracted polio from

someone

> who did, they are unable to satisfy the requirements of subsection

> ©(1). As a result, they are ineligible to file a petition,/ see/

§

> 300aa-11((1)(a), and the Vaccine Act's restriction on the

filing

of

> tort suits does not apply to them,/ see/ § 300aa-11(a)(9).^4

>

> That much is plain on the face of the statute, but the lack of

statutory

> ambiguity does not stop the Vaccine Defendants from arguing that a

> literal application of the regulatory scheme " will thwart the

intent and

> purpose of the Act, and interfere with its operation. " Because

the

> Vaccine Act was motivated by a desire to unburden vaccine

manufacturers

> from the costs and risks of tort litigation, the argument goes,

the Act

> should be construed as barring those claims as well.

>

> We disagree. If it is indeed the case that loss-of-consortium

claims

> frustrate this complex federal regime, Congress can enact a

change. For

> all we know, this possibility/ was/ considered, and a conscious

decision

> was made not to regulate consortium claims. Either way, it is not

for

> this court to decide what Congress should have done, but only to

apply a

> statute that on its face has nothing to say about consortium

claims.

> Because the Vaccine Act neither provides a mechanism for their

recovery

> on a loss of consortium suit, nor openly bars their right to

pursue

> remedies afforded by state tort law, the Mosses may pursue their

claims.^5

>

> As an alternate strain of their defense, the Vaccine Defendants

contend

> that the district court properly dismissed the Mosses' claims

because

> they are implicitly preempted by the Vaccine Act. We reject this

> argument, too, for we will not lightly infer that Congress has

> implicitly preempted state claims using an instrument that

explicitly

> preempts other claims, s/ee, e.g.,// Freightliner Corp. v.

Myrick/,//

> 514 U.S. 280, 288 (1995), and the Vaccine Defendants offer no

persuasive

> reason to make that inferential leap in this case. / Accord//

Schafer/,

> 20 F.3d at 6-7.

>

> Congress could not have been much more plain in its desire/ not/

to

> preempt tort claims filed by persons who are ineligible to recover

in

> the Vaccine Court.^6 We therefore agree with the First Circuit

> thatSSassuming/ arguendo/ that state tort law permits claims for

loss of

> consortium (and about which we express no opinion)SSthere is

nothing in

> the Vaccine Act that implicitly or explicitly prevents this suit

from

> going forward. / Schafer/, 20 F.3d at 2.

>

> III.

>

> For the foregoing reasons, the judgment is REVERSED and the

Mosses'

> claims reinstated. At oral argument, the Mosses represented that

they

> would be satisfied with an order staying their suit until the

Vaccine

> Court renders a decision on the award, if any, to Amber. The case

is

> therefore REMANDED with instruction to stay the proceeding pending

a

> result in the Vaccine Court, and for any further proceedings that

are

> not inconsistent with this opinion.****

>

> / Fitzgerald Oathout/

> ///Schwartz, Junell, Greenberg & Oathout, L.L.P./

> ///909 Fannin, Suite 2000/

> ///Houston, Texas 77010/

> ///(713) 752-0017 Telephone/

> ///(713) 752-0327 Fax/

> ///moathout@s.../

[Guest guest]

I was just speaking to them too (Vicki @ Waters and Krauss). They are taking

the files within the 3 years of diagnosis (statute of limitations),and sending

them to " Vaccine Court " where they are reviewed for acuracy I guess, and they

just get held onto until

the damn Vaccination Injury Act table changes to include injuries other than

anaphylaxis. Lets pray for more and better research. My Pediatricians all say

its bull, and that its the only study ever that they have seen released and

retracted... and that was bad for us.

Chris

<tt>

All:<BR>

<BR>

I spoke with a paralegal at the below mentioned law firm this <BR>

afternoon...don't waste your time if the statuate of limitations has <BR>

run out for your child. Waters & amp; Kraus is no longer taking civil <BR>

cases pertaining to Thimerosal...matter of fact, the only thing the <BR>

paralegal recommended was contacting my state's Bar Association.<BR>

<BR>

Another door slammed in our faces.<BR>

<BR>

Rob<BR>

<BR>

<BR>

& gt; & lt; & gt;[ Siegel of Waters & amp; Kraus, along with Martzell & amp;

<BR>

Bickford <BR>

& gt; argued the motion.]<BR>

& gt; <BR>

& gt; <BR>

& gt; In the<BR>

& gt; <BR>

& gt; United States Court of Appeals<BR>

& gt; <BR>

& gt; for the Fifth Circuit<BR>

& gt; <BR>

& gt; _______________<BR>

& gt; <BR>

& gt; No. 03-30958<BR>

& gt; <BR>

& gt; _______________<BR>

& gt; <BR>

& gt; <BR>

& gt; <BR>

& gt; Moss, Individually and On Behalf of Amber Moss;<BR>

& gt; <BR>

& gt; Janice Moss,<BR>

& gt; <BR>

& gt; Plaintiffs-Appellants,<BR>

& gt; <BR>

& gt; VERSUS<BR>

& gt; <BR>

& gt; Merck & amp; Company, et Al.,<BR>

& gt; <BR>

& gt; Defendants,<BR>

& gt; <BR>

& gt; Merck & amp; Company,<BR>

& gt; <BR>

& gt; Aventis Pasteur Inc.,<BR>

& gt; <BR>

& gt; Individually and as Successor in Interest,<BR>

& gt; <BR>

& gt; Also Known as Connaught Laboratories Inc.,<BR>

& gt; <BR>

& gt; Also Known as Pasteur Merieux, Also Known as Pasteur Merieux <BR>

Connaught;<BR>

& gt; <BR>

& gt; Eli Lilly & amp; Company, and Wyeth,<BR>

& gt; <BR>

& gt; Defendants-Appellees,<BR>

& gt; <BR>

& gt; <BR>

& gt; _________________________<BR>

& gt; <BR>

& gt; Appeal from the United States District Court<BR>

& gt; <BR>

& gt; for the Western District of Louisiana<BR>

& gt; <BR>

& gt; _________________________<BR>

& gt; <BR>

& gt; <BR>

& gt; <BR>

& gt; Before , Benavides, and<BR>

& gt; <BR>

& gt; Pickering, Circuit Judges.<BR>

& gt; <BR>

& gt; Jerry E. , Circuit Judge:<BR>

& gt; <BR>

& gt; Plaintiffs and Janice Moss ( & quot;the Mosses & quot;), the<BR>

parents of a <BR>

young <BR>

& gt; child who, they allege, developed autism as a result of receiving <BR>

& gt; vaccines containing mercury, wish to pursue state law tort claims <BR>

for <BR>

& gt; injuries they suffered as a result of the child's condition. <BR>

Although <BR>

& gt; their claims are not barred by the literal terms of the National <BR>

& gt; Childhood Vaccine Injury Act of 1986 (the & quot;Vaccine Act & quot;),<BR>

42 <BR>

U.S.C. § <BR>

& gt; 300aa-1/ et seq/., defendants urge the alternate theories that the <BR>

& gt; statute is broad enough implicitly to preempt any claims it fails <BR>

& gt; directly to address, and that the purpose of the statute requires <BR>

us to <BR>

& gt; construe its express terms broadly and in a way that robs the <BR>

plaintiffs <BR>

& gt; of the right to sue.<BR>

& gt; <BR>

& gt; In the district court, defendants Merck & amp; Company, Aventis Pasteur <BR>

Inc., <BR>

& gt; and Wyeth, Inc. (the & quot;Vaccine Defendants & quot;), obtained a<BR>

dismissal <BR>

on the <BR>

& gt; ground that the Vaccine Act precludes the Mosses' pursuit of a <BR>

tort <BR>

& gt; remedy for a vaccine-related injury. / Cf./ Fed. R. Civ. P. 12(<BR>

(1). <BR>

& gt; Defendant Eli Lilly & amp; Company ( & quot;Eli Lilly & quot;), the<BR>

manufacturer of <BR>

& gt; Thimerosal, the mercury-containing preservative used in several <BR>

& gt; childhood vaccines, obtained a dismissal on the ground that it too <BR>

is a <BR>

& gt; vaccine manufacturer entitled to the protections of the Vaccine <BR>

Act. <BR>

& gt; Relying on the text of the statute and eschewing the<BR>

defendants' <BR>

& gt; invitation to re-write a complex federal regulatory scheme to suit <BR>

their <BR>

& gt; purposes, we reverse and remand with instruction.<BR>

& gt; <BR>

& gt; I.<BR>

& gt; <BR>

& gt; A.<BR>

& gt; <BR>

& gt; Eli Lilly seeks to be treated on like terms as the Vaccine <BR>

Defendants. <BR>

& gt; Because Thimerosal is not a vaccine, its producers are not vaccine <BR>

& gt; manufacturers as that term is defined in the Vaccine Act, 42 <BR>

U.S.C. § <BR>

& gt; 300aa-33(3), so they are not entitled to the protections of the <BR>

Act's <BR>

& gt; restriction on the filing of suits.^1<BR>

& gt; <BR>

& gt; The Vaccine Act is a remedial program designed to provide swift <BR>

& gt; compensation for persons injured by vaccines, while ensuring that <BR>

the <BR>

& gt; nation's supply of vaccines isn't unduly threatened by the<BR>

costs <BR>

and <BR>

& gt; risks of tort litigation. To that end, victims of a & quot;vaccine-<BR>

related <BR>

& gt; injury or death, & quot; as that term is defined in 42 U.S.C. §<BR>

300aa-33<BR>

(5), <BR>

& gt; are barred from seeking redress in the courts unless they have <BR>

first <BR>

& gt; filed a claim for recovery in a specialized Vaccine Court.^2 / <BR>

See/ § <BR>

& gt; 300aa-11(a)(2)A).<BR>

& gt; <BR>

& gt; Operating under lower standards of proof, claimants can seek a <BR>

& gt; compensatory award from the government, acceptance of which causes <BR>

them <BR>

& gt; to waive any further tort rights./ See/ § 300aa-21(a). The <BR>

claimant may <BR>

& gt; instead decline the award and pursue traditional tort relief, but <BR>

with <BR>

& gt; certain restrictions such as an inability to recover punitive <BR>

damages./ <BR>

& gt; See/ §§ 300aa-21(a), 300aa-22. / See also Schafer v. Am.<BR>

Cyanamid <BR>

Co./, <BR>

& gt; 20 F.3d 1, 3 (1st Cir. 1994) (Breyer, C.J.) (detailing the <BR>

restrictions <BR>

& gt; on suits).<BR>

& gt; <BR>

& gt; The Vaccine Act does not apply to all vaccine-related lawsuits, <BR>

however, <BR>

& gt; but only those brought against a & quot;vaccine administrator or <BR>

& gt; manufacturer. & quot; § 300aa-11(a)(2)(A). The Act defines<BR>

& quot;vaccine <BR>

& gt; manufacturer & quot; as & quot;any corporation, organization, or<BR>

institution, <BR>

whether <BR>

& gt; public or private . . . which manufactures, imports, processes, or <BR>

& gt; distributes under its label any vaccine set forth in the Vaccine <BR>

Injury <BR>

& gt; Table. & quot; § 300aa-33(3). Still, the statute does not define<BR>

the term <BR>

& gt; & quot;vaccine, & quot; requiring us to ascertain the meaning of that<BR>

word <BR>

through <BR>

& gt; ordinary principles of statutory construction. In the absence of a <BR>

& gt; controlling definition, we interpret statutes according to their <BR>

plain, <BR>

& gt; ordinary meaning.^3<BR>

& gt; <BR>

& gt; Under the plain meaning of the Vaccine Act, Eli Lilly is not a <BR>

vaccine <BR>

& gt; manufacturer, so the Mosses are not barred from suing it. It is <BR>

settled <BR>

& gt; that Thimerosal, when used as a preservative, is a component of a <BR>

& gt; vaccine rather than an adulterant. / Leroy v. Sec'y of Health & amp; <BR>

Human <BR>

& gt; Servs./, 2002 U.S. Claims LEXIS 284, *18-*19 (Fed. Cl. 2002) <BR>

(citing <BR>

& gt; cases). Nonetheless, its status as a vaccine component no more <BR>

makes <BR>

& gt; Thimerosal a & quot;vaccine & quot; than does the inclusion of a piston<BR>

under <BR>

the <BR>

& gt; hood of an automobile make that object an & quot;engine. & quot;<BR>

& gt; <BR>

& gt; Thimerosal is part of the finished product, to be sure, but it is <BR>

not <BR>

& gt; the finished product itself, and on its face the statute governs <BR>

only <BR>

& gt; lawsuits filed against manufacturers of a completed vaccine <BR>

shipped <BR>

& gt; under its own label and listed in the Vaccine Injury Table. Not <BR>

& gt; surprisingly, Thimerosal is not sold as a vaccine, nor is it <BR>

listed in <BR>

& gt; the statute's table.<BR>

& gt; <BR>

& gt; If a plaintiff is able to trace his injury to the manufacturer of <BR>

a <BR>

& gt; chemical that does not, in and of itself, qualify for protection <BR>

under <BR>

& gt; the Vaccine Act, there is nothing in the Act that prevents him <BR>

from <BR>

& gt; going to court and attempting to prove that his injuries were <BR>

caused by <BR>

& gt; that chemical. The burden of proof at trial may be complicated by <BR>

the <BR>

& gt; difficulty inherent in demonstrating that the injury was <BR>

proximately <BR>

& gt; caused by that singular component, rather than the vaccine itself, <BR>

but <BR>

& gt; this does not mean the Vaccine Act prevents plaintiffs from <BR>

trying; it <BR>

& gt; only prohibits them from filing the Thimerosal-based claim against <BR>

the <BR>

& gt; manufacturer of a vaccine, something Eli Lilly cannot claim to be <BR>

solely <BR>

& gt; on the basis of its manufacture of Thimerosal.<BR>

& gt; <BR>

& gt; B.<BR>

& gt; <BR>

& gt; Eli Lilly argues that our conclusion contradicts the Vaccine <BR>

Court's <BR>

& gt; analysis in/ Leroy/. Specifically, it reads/ Leroy/ as having <BR>

decided <BR>

& gt; that victims of Thimerosal-related injuries are free to pursue <BR>

claims <BR>

& gt; for relief in the Vaccine Court, and that today's decision<BR>

gives <BR>

rise to <BR>

& gt; the prospect of double recovery.<BR>

& gt; <BR>

& gt; We disagree. In/ Leroy/, the Vaccine Court was presented with a <BR>

& gt; jurisdictional challenge premised on the notion that Thimerosal is <BR>

& gt; present in vaccines only as an adulterant or contaminant. / <BR>

Leroy/, 2002 <BR>

& gt; U.S. Claims LEXIS 284, at *10. Because the Vaccine Act does not <BR>

apply to <BR>

& gt; injuries caused by those sorts of impurities,/ see/ §<BR>

300aa-33(5), <BR>

the <BR>

& gt; classification of Thimerosal under one of those headings would <BR>

have left <BR>

& gt; plaintiffs free to sue vaccine manufacturers in traditional courts <BR>

so <BR>

& gt; long as they argued that it was the Thimerosal and not the vaccine <BR>

that <BR>

& gt; caused their injuries. The Vaccine Court rejected the challenge, <BR>

& gt; however, concluding that Thimerosal is a component of the vaccines <BR>

in <BR>

& gt; which it is found. / Id./ at *27-*29. As a result, the Vaccine <BR>

Court <BR>

& gt; concluded, the Vaccine Act encompasses claims filed/ against a <BR>

& gt; manufacturer or administrator/ of a vaccine premised on the <BR>

allegation <BR>

& gt; that an injury was caused by a vaccine containing Thimerosal. / <BR>

Id./ at *66.<BR>

& gt; <BR>

& gt; / Leroy/, therefore, stands for nothing more than the unremarkable <BR>

& gt; proposition that a Thimerosal-related injury, occurring as a <BR>

result of <BR>

& gt; the administration of a vaccine, is a vaccine-related injury <BR>

within the <BR>

& gt; meaning of the Vaccine Act. That does not end our inquiry, <BR>

however, <BR>

& gt; because a claim is barred under the statute only if it alleges a <BR>

& gt; vaccine-related injury and is filed against a vaccine <BR>

manufacturer. § <BR>

& gt; 300aa-11(a)(2)(A). It is this latter requirement that Eli Lilly <BR>

fails to <BR>

& gt; meet, and, as a result, the Vaccine Act affords it no cover from <BR>

the <BR>

& gt; Mosses' claims.<BR>

& gt; <BR>

& gt; II.<BR>

& gt; <BR>

& gt; The Mosses' suit against the Vaccine Defendants relies on <BR>

Louisiana tort <BR>

& gt; law and seeks recompense for injuries incurred in a personal <BR>

capacity. <BR>

& gt; Just as the Vaccine Act does not protect all defendants, it does <BR>

not <BR>

& gt; apply to all tort suits having some connection to the <BR>

administration of <BR>

& gt; a vaccine. Rather, the restriction on filing tort claims applies <BR>

only to <BR>

& gt; those who have & quot;sustained a vaccine-related injury or death and <BR>

who <BR>

& gt; [are] qualified to file a petition for compensation under the <BR>

Program. & quot; <BR>

& gt; § 300aa-11(a)(9). In this way, the Vaccine Act treats & quot;the<BR>

tort <BR>

suit <BR>

& gt; procedural bar and Vaccine Court compensation as opposite sides of <BR>

the <BR>

& gt; same coin. & quot;/ Schafer/, 20 F.3d at 5. The program delays the<BR>

filing <BR>

of <BR>

& gt; only those tort claims for which it first provides an alternate <BR>

source <BR>

& gt; of compensation.<BR>

& gt; <BR>

& gt; To file a petition for compensation, a claimant must be either a <BR>

person <BR>

& gt; who has sustained a vaccine-related injury, orSSif the victim is a <BR>

& gt; minor, disabled or deceasedSSthat person's legal<BR>

representative. § <BR>

& gt; 300aa-11((1)(A). Any person who fits one of those descriptions <BR>

and <BR>

& gt; & quot;meets the requirements of subsection ©(1) of this<BR>

section & quot; may <BR>

file a <BR>

& gt; petition for compensation. / Id./<BR>

& gt; <BR>

& gt; Of singular importance is the requirement in § 300aa-11©(1)(A) <BR>

that <BR>

& gt; the claimant be able to state in an affidavit that he & quot;received<BR>

a <BR>

& gt; vaccine set forth in the Vaccine Injury Table or, if such person <BR>

did not <BR>

& gt; receive such a vaccine, contracted polio, directly or indirectly, <BR>

from <BR>

& gt; another person who received an oral polio vaccine. & quot; Because<BR>

<BR>

and <BR>

& gt; Janice Moss neither received a vaccine nor contracted polio from <BR>

someone <BR>

& gt; who did, they are unable to satisfy the requirements of subsection <BR>

& gt; ©(1). As a result, they are ineligible to file a petition,/ see/ <BR>

§ <BR>

& gt; 300aa-11((1)(a), and the Vaccine Act's restriction on the<BR>

filing <BR>

of <BR>

& gt; tort suits does not apply to them,/ see/ § 300aa-11(a)(9).^4<BR>

& gt; <BR>

& gt; That much is plain on the face of the statute, but the lack of <BR>

statutory <BR>

& gt; ambiguity does not stop the Vaccine Defendants from arguing that a <BR>

& gt; literal application of the regulatory scheme & quot;will thwart the <BR>

intent and <BR>

& gt; purpose of the Act, and interfere with its operation. & quot; Because<BR>

the <BR>

& gt; Vaccine Act was motivated by a desire to unburden vaccine <BR>

manufacturers <BR>

& gt; from the costs and risks of tort litigation, the argument goes, <BR>

the Act <BR>

& gt; should be construed as barring those claims as well.<BR>

& gt; <BR>

& gt; We disagree. If it is indeed the case that loss-of-consortium <BR>

claims <BR>

& gt; frustrate this complex federal regime, Congress can enact a <BR>

change. For <BR>

& gt; all we know, this possibility/ was/ considered, and a conscious <BR>

decision <BR>

& gt; was made not to regulate consortium claims. Either way, it is not <BR>

for <BR>

& gt; this court to decide what Congress should have done, but only to <BR>

apply a <BR>

& gt; statute that on its face has nothing to say about consortium <BR>

claims. <BR>

& gt; Because the Vaccine Act neither provides a mechanism for their <BR>

recovery <BR>

& gt; on a loss of consortium suit, nor openly bars their right to <BR>

pursue <BR>

& gt; remedies afforded by state tort law, the Mosses may pursue their <BR>

claims.^5<BR>

& gt; <BR>

& gt; As an alternate strain of their defense, the Vaccine Defendants <BR>

contend <BR>

& gt; that the district court properly dismissed the Mosses' claims <BR>

because <BR>

& gt; they are implicitly preempted by the Vaccine Act. We reject this <BR>

& gt; argument, too, for we will not lightly infer that Congress has <BR>

& gt; implicitly preempted state claims using an instrument that <BR>

explicitly <BR>

& gt; preempts other claims, s/ee, e.g.,// Freightliner Corp. v. <BR>

Myrick/,// <BR>

& gt; 514 U.S. 280, 288 (1995), and the Vaccine Defendants offer no <BR>

persuasive <BR>

& gt; reason to make that inferential leap in this case. / Accord// <BR>

Schafer/, <BR>

& gt; 20 F.3d at 6-7.<BR>

& gt; <BR>

& gt; Congress could not have been much more plain in its desire/ not/ <BR>

to <BR>

& gt; preempt tort claims filed by persons who are ineligible to recover <BR>

in <BR>

& gt; the Vaccine Court.^6 We therefore agree with the First Circuit <BR>

& gt; thatSSassuming/ arguendo/ that state tort law permits claims for <BR>

loss of <BR>

& gt; consortium (and about which we express no opinion)SSthere is <BR>

nothing in <BR>

& gt; the Vaccine Act that implicitly or explicitly prevents this suit <BR>

from <BR>

& gt; going forward. / Schafer/, 20 F.3d at 2.<BR>

& gt; <BR>

& gt; III.<BR>

& gt; <BR>

& gt; For the foregoing reasons, the judgment is REVERSED and the <BR>

Mosses' <BR>

& gt; claims reinstated. At oral argument, the Mosses represented that <BR>

they <BR>

& gt; would be satisfied with an order staying their suit until the <BR>

Vaccine <BR>

& gt; Court renders a decision on the award, if any, to Amber. The case <BR>

is <BR>

& gt; therefore REMANDED with instruction to stay the proceeding pending <BR>

a <BR>

& gt; result in the Vaccine Court, and for any further proceedings that <BR>

are <BR>

& gt; not inconsistent with this opinion.****<BR>

& gt; <BR>

& gt; / Fitzgerald Oathout/<BR>

& gt; ///Schwartz, Junell, Greenberg & amp; Oathout, L.L.P./<BR>

& gt; ///909 Fannin, Suite 2000/<BR>

& gt; ///Houston, Texas 77010/<BR>

& gt; ///(713) 752-0017 Telephone/<BR>

& gt; ///(713) 752-0327 Fax/<BR>

& gt; ///moathout@s.../<BR>

<BR>

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