Gardasil MDL Court Dismisses Plaintiffs Who Had Not Timely Filed in Vaccine Court

We are not speaking for anyone else (clients, colleagues, our firm, etc.)  when we say that drug and device product liability cases should be patterned after the Vaccine Act (42 U.S.C. Section 300aa-1 et seq.).  It is faster, fairer, more predictable, and cheaper for everyone.  From the defense side, we like that actions under the Vaccine Act will not be decided by runaway juries.  And we suppose that is the main reason why plaintiff lawyers abhor the Vaccine Act and do whatever they can to avoid it.

In re Gardasil Products Liab. Litig., 2024 U.S. Dist. LEXIS 135736 (W.D. N.C. July 31, 2024), is a multidistrict litigation (MDL) that should never have existed. In this recent decision, yet another plaintiff effort to sidestep the Vaccine Act compensation system failed.  To our jaundiced, defense hack eyes, it appears that this is an entirely predictable instance of a vast plaintiff MDL client solicitation dredging up stale plaintiffs. The problem for the four plaintiffs at issue here is that filing a Vaccine Act claim in “Vaccine Court” is a prerequisite to any subsequent civil suit.  “[N]o one may bring ‘a civil action for damages’ against a vaccine manufacturer ‘for damages arising from a vaccine-related injury” unless she has first timely filed and exhausted a petition for compensation in the U.S. Court of Federal Claims.” You noticed that word “timely,” right?  One of the four plaintiffs never filed a claim in Vaccine Court at all, while the other three plaintiffs filed belated petitions with the Vaccine Court, which were thrown out on timeliness grounds.  The Vaccine Act requires that a petition for compensation must be filed within 36 months of “the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of [a vaccine-related] injury.”

The plaintiff who never filed a claim in Vaccine court ended up giving up, and did not respond to the defendant’s motion to dismiss the MDL claim.  Adios. The other three plaintiffs did not go down without a fight.

To avoid the defense motions to dismiss, the three plaintiffs who had been bounced from the Vaccine court on timeliness grounds collaterally attacked the Vaccine Court judgments dismissing their cases. They also made the inevitable request for relief under a discovery rule, and made weak equitable tolling arguments that involved only general allegations with no direct contact between the defendant and the plaintiffs. 

The MDL court rejected the collateral attack on multiple grounds.  First, as a matter of procedure, the MDL court held that it had no power to second guess the Vaccine Court’s decision.  “[T]he decision as to the application of the Vaccine Act’s limitations period to petitioners in the Vaccine Court is properly decided by those Special Masters.”  Nothing in the Vaccine Act empowers courts in subsequent civil actions to review Vaccine Court decisions.  The plaintiffs pushed hard for de novo review. But they are separate proceedings.  Moreover, the MDL court reasoned that Vaccine Act timeliness should not turn on the vagaries of different states’ laws. In any event, there is no mechanism whereby a reviewing district court could remand a case to Vaccine Court.  All of which suggests that a collateral attack on Vaccine Court decisions is simply unavailable.

What the plaintiffs were really seeking here was a way to bypass the Vaccine Court altogether, in ex post facto fashion.  The MDL court was not having that. 

Then the MDL court did something smart.  After holding that it could not review the Vaccine Court’s determinations of untimeliness, it held that it would sustain the untimeliness finding even if it did conduct such a review.  The discovery rule does not apply to the Vaccine Act.  Then the court held that there were no circumstances external to the plaintiff’s own conduct that could justify tolling.  There was no showing of diligence and extraordinary circumstances.  Instead, the plaintiffs’ equitable tolling argument was premised on non-individualized, vague allegations of “fraud” and “concealment.”  In essence, the equitable tolling argument merely repackaged the discovery rule arguments under another name. “In sum, even if the Court were empowered to decide the issue of ‘equitable tolling’ de novo, it would reach the same conclusion that the Plaintiffs’ Vaccine Court petitions were untimely and dismiss their claims on that basis.”  Now, even if there is an appeal to the Fourth Circuit, and even if the Fourth Circuit disagrees with the determination of unreviewability, it can still affirm the dismissals.