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Erin Holmes; Shawn Holmes v. Merck & Co.

September 25, 2012

ERIN HOLMES; SHAWN HOLMES,
PLAINTIFFS-APPELLANTS,
v.
MERCK & CO., INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada Brian E. Sandoval, District Judge, Presiding D.C. No. 2:04-cv-00608-BES-GWF

The opinion of the court was delivered by: Thomas, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 3, 2009

Resubmitted on April 1, 2011

San Francisco, California

Before: Betty B. Fletcher, Sidney R. Thomas, and N. Randy Smith, Circuit Judges.

Opinion by Judge Thomas

11791

OPINION

Erin and Shawn Holmes appeal the district court's grant of summary judgment in favor of Merck & Company in their diversity action alleging wrongful death. They contend that the district court erred in applying the standards of the National Childhood Vaccine Injury Act (Vaccine Act or the Act), 42 U.S.C. § 300aa-22, to their individual claims for damages. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I

When Jacob Holmes was one year old, his pediatrician administered M-M-R II,*fn1 a vaccine manufactured and distributed by Merck, in conformity with the recommendations set by the Centers for Disease Control and Prevention. Within nine days, Jacob began experiencing seizures and developed encephalopathies. He died approximately six months later.*fn2

Acting on behalf of their son Jacob's estate, Erin and Shawn Holmes petitioned for compensation from a government fund created by the Vaccine Act. They received $250,000 through the program.

Subsequently, acting in their individual capacity and pursuant to Nevada Revised Statute section 41.085, the Holmes initiated this wrongful death lawsuit in Clark County, Nevada.*fn3

Their complaint set forth allegations of negligence, strict product liability, negligent design, failure to warn, misrepresentation, express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and punitive damages. Merck removed the case to the United States District Court for the District of Nevada.

After three years of discovery, Merck filed a motion for summary judgment, arguing, as is relevant here, that the Vaccine Act foreclosed Plaintiffs' lawsuit. The district court only partially agreed, holding that the Act limited Plaintiffs' strict liability and negligence claims to the extent that the claims relied on allegations of design defect and failure to warn. But the district court disagreed with Merck's assertion that the Vaccine Act limited Plaintiffs' other state law claims. The district court therefore granted in part and denied in part Merck's summary judgment motion and requested supplemental briefing on Plaintiffs' claims of misrepresentation, breach of warranty, and punitive damages. Following supplemental briefing on these remaining state law claims, the district court granted Merck summary judgment. Plaintiffs then filed a timely appeal to this court, challenging only the district court's application of Section 22 of the Vaccine Act ...


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