Ninth Circuit Affirms Dismissal of Vaccine Injury Lawsuit Involving Child’s Death – Holmes v. Merck

By October 3, 2012 July 18th, 2019 Dangerous Drugs

As a dangerous drug attorney, I handle all types of injury claims arising from the use of purportedly safe medications, including prescription and over-the-counter drugs as well as medical devices. But I rarely handle vaccine injury claims, in part because they are covered by a different law: the National Childhood Vaccine Injury Act. In Holmes et al. v. Merck, a family sued the maker of a measles, mumps and rubella vaccine, alleging that the vaccine killed their young son. In addition to receiving compensation through a fund created by the Act, they sued in Nevada, arguing the vaccine was dangerous and that they should have been warned of its risks, among other claims. The Ninth U.S. Circuit Court of Appeals ultimately found Merck’s liability was limited under the act and upheld summary judgment for Merck.
Jacob Holmes received the MMR vaccine at age one, according to the CDC’s recommendations. Within nine days, he started having seizures and developing serious brain dysfunctions. He ultimately died at 18 months. His parents, Erin and Shawn Holmes, petitioned for and were granted $250,000 from a fund created by the NCVIA. They later filed a wrongful death suit in Nevada state court, alleging strict liability, failure to warn, negligence and breaches of various warranties. After substantial discovery, Merck moved for summary judgment, arguing that the NCVIA foreclosed or limited the claims. The district court granted partial summary judgment and requested briefing on the limited claims, but eventually granted summary judgment on all of the claims. The family appealed.
The Ninth started by noting the history of the NCVIA, which was created to balance the need for a robust national immunization program with compensation for those who were injured by a vaccine. The Act created a no-fault right to compensation as well as a “Vaccine Court” where claimants must exhaust their remedies before they may file lawsuits. However, the exhaustion requirement does not apply to parents or guardians recovering for their own injuries. The Act also eliminates liability of vaccine manufacturers for failure to warn or “unavoidable side effects.” In their appeal, the Holmeses argue that because they as individuals are not eligible for Vaccine Court compensation, the limitations on Merck’s liability cannot apply to their own claims. The Ninth Circuit disagreed. The sections preempting side effect and failure to warn claims do not distinguish between victims and their parents, it said. Thus, the Holmeses could not sue on those claims, and they did not challenge summary judgment on the other claims, so the Ninth upheld summary judgment.
This is a special case because most dangerous drug cases don’t have to do with vaccines. But in my work as a pharmaceutical liability lawyer, I do frequently make claims that a drug manufacturer failed to warn patients about risks or defectively designed or manufactured a drug. All of these are the kind of “strict liability” claims that would be foreclosed by the NCVIA. These kinds of claims are often used when the manufacturer knew or should have known about the dangers of the drug; some manufacturers have even been caught attempting to cover up dangers of their drugs. As a defective prescription drug attorney, I believe holding these companies legally and financially responsible for the injuries they cause helps protect the larger public.


If you or someone you love suffered a serious injury or death because of a drug or medical device that wasn’t as safe as it should have been, call Carey, Danis & Lowe to discuss how we can help. For a free, confidential case evaluation, you can send us a message through our website or call toll-free at 1-877-678-3400 today.
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Jury Finds for Pharmaceutical Company in New Jersey Levaquin Side Effects Lawsuit
Federal Circuit Denies Damages to Woman Claiming Injuries From Vaccine – Lombardi v. Secretary of HHS
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