Holmes v. Merck & Co., Inc.

Under Section 22 of the National Childhood Vaccine Injury Act, parents of children injured by a vaccine cannot sue for design defect or failure to warn.

Erin and Shawn Holmes sued Merck & Company for wrongful death, after their one year old son Jacob died within six months of receiving a vaccine produced by Merck. The district court granted summary judgment for Merck, finding that the National Childhood Vaccine Injury Act did not allow the Holmes’ lawsuit claiming design defect and failure to warn. The Holmes appealed this decision, arguing that the court erred in finding that Section 22 of the Act applied to them and thus disallowed their claim for damages wrongful death based on the design defects of the vaccine and Merck’s failure to warn. The Ninth Circuit noted that Section 22 of the Act does not allow claims against drug companies solely for design defect of vaccines. The Court looked to the text of the statute, legislative intent and the approach taken by the courts in other circuits to determine whether Section 22 should be applied to parties other than the individual harmed by the vaccine. The Act’s main purpose was to maintain the national vaccine supply, while efficiently compensating those who are injured by the vaccines. The Court found that this purpose would not be served by failing to apply Section 22 to parties other than the individual harmed. This finding was supported by the structure of the Act, as well as the Third Circuit court’s recent decision in Bruesewtiz v. Wyeth. However, the Court noted that the Act does not foreclose the Holmes of other available state law actions and remedies. AFFIRMED.