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Dickey v. Connaught Laboratories

November 5, 2002

KRYSTAL K. DICKEY, MOTHER AND NEXT FRIEND OF GINA M. DICKEY, A MINOR, PLAINTIFF-APPELLANT,
v.
CONNAUGHT LABORATORIES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 14th Judicial Circuit Whiteside County, Illinois No. 00-L-26 Honorable Dan Dunagan Judge, Presiding

The opinion of the court was delivered by: Justice McDADE

Modified Upon Denial of Rehearing

Krystal K. Dickey, as mother and next friend of plaintiff, Gina M. Dickey, filed a complaint in Illinois state court seeking recovery against defendant, Connaught Laboratories, Inc., for injuries she suffered from the administration of diphtheria, tetanus and pertussis (DTP) vaccine. In response, defendant filed a motion for summary judgment. The trial court granted defendant's motion. Plaintiff now appeals. We affirm.

FACTS

On June 23, 1994, Gina Dickey was born as a healthy, normal baby.

On October 11, 1994, Gina received an administration of DTP vaccine. Later on that day, she began to suffer jerking spasms lasting between 5 to 10 minutes each. Her condition continued to worsen. On February 24, 1995, Dr. Taravath, a pediatric neurologist, diagnosed plaintiff with a vaccine encephalopathy resulting in developmental delay.

On October 24, 1997, plaintiff's mother, as her next friend, filed a petition on her behalf in the United States Court of Federal Claims (claims court), seeking compensation for plaintiff's injuries pursuant to the National Childhood Vaccine Injury Act of 1992 (Vaccine Act or Act). (42 U.S.C. §300 et seq. (1994)). On February 26, 1998, the claims court dismissed the petition as untimely, stating that pursuant to section 300aa-16(a)(2) of the Vaccine Act, no petition seeking compensation for a vaccine-related injury could be filed after 36 months from the date of the occurrence of the first symptom of injury.

On April 1, 1998, the claims court entered a judgment dismissing the petition as untimely. On April 28, 1998, pursuant to section 300aa-21(a), plaintiff filed an election to file a civil action.

On October 21, 1999, plaintiff filed a complaint in state court, seeking recovery from defendant for the injuries she suffered from the administration of the DTP vaccine. Defendant moved for summary judgment, asserting that the action was time-barred because of plaintiff's failure to file her petition in the claims court within 36 months from the date of the first symptom of her vaccine-related injury. The trial court granted summary judgment against plaintiff, dismissing her complaint.

On appeal, plaintiff presents the issue of whether the Vaccine Act preempts state law, namely, Illinois's statute of limitations. The instant case is one of first impression, as no other Illinois court has yet ruled on this issue.

ANALYSIS

Preemption

Plaintiff contends that the Vaccine Act does not preempt state law, based upon the language of the federal Vaccine Act, its legislative history, and the relevant case law. She contends that the trial court erred in granting defendant's motion for summary judgment because the federal Vaccine Act cannot be applied to bar Illinois's statute of limitations for minors.

We affirm a trial court's decision to grant summary judgment if the pleadings, depositions, affidavits, and admissions show there are no genuine issues of material fact remaining and that the motion was properly granted as a matter of law. Our review is de novo. ...


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