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Reilly v. Wyeth

September 28, 2007


Appeal from the Circuit Court of Cook County. No. 02 L 014697. Honorable Lynn Egan, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

Published opinion

Druanne Reilly, as mother and next friend of Christopher Reilly, brought this action seeking recovery against defendants (vaccine defendants*fn1 and thimerosal defendants*fn2 ) for her son's autism, which was allegedly caused by his exposure to the mercury-based preservative, thimerosal, contained in several childhood vaccines. Druanne and her husband Ronald Reilly also individually brought an intentional infliction of emotional distress claim due to their son's injuries. The circuit court dismissed the minor plaintiff's claims pursuant to section 2-619(a)(1) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(1) (West 2004)) for failing to exhaust his remedies under the National Childhood Vaccine Injury Act of 1986 (the Vaccine Act or Act) (42 U.S.C. §300aa-1 et seq. (2000)).Additionally, the circuit court dismissed the parents' intentional infliction of emotional distress claim pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2004)), finding that defendants' alleged conduct could not constitute extreme and outrageous conduct as a matter of law.

On appeal, plaintiffs contend that they are not precluded from filing a state court action against defendants because: (1) Christopher did not suffer a "vaccine-related injury" as that term is defined under the Act; (2) the thimerosal defendants are not vaccine manufacturers or administrators under the Vaccine Act; (3) Christopher is not "qualified" to file a petition under the Act because his petition is admittedly time-barred and the Act does not preempt state law; (4) the Act's lack of an equitable tolling provision violates Illinois public policy, which provides special protection to minors; and (5) the limitations period under the Act violates Christopher's due process and equal protection rights under the United States Constitution. Additionally, plaintiffs contend that the circuit court erred in dismissing their claim for intentional infliction of emotional distress. For the following reasons, we affirm the judgment of the circuit court in part and reverse and remand in part.


As alleged in plaintiffs' complaint, Christopher was born in 1995 and was administered a series of routine childhood vaccinations over the course of two years that contained the mercury-based preservative thimerosal. He subsequently developed certain disabilities, and in October 1998, he was diagnosed with autism, a neurological disorder. Plaintiffs alleged that defendants manufactured or caused thimerosal to be placed into certain vaccines administered to Christopher and that the exposure to the thimerosal caused his autism. The complaint was brought under theories of product liability, breach of warranty, negligence, consumer fraud, and battery. Additionally, plaintiffs Druanne and Ronald Reilly brought individual claims for intentional infliction of emotional distress, essentially alleging that defendants intentionally or knowingly added a known dangerous substance into a product designed, sold, and distributed for injection into infants and toddlers.

Thereafter, defendants sought dismissal of all claims brought on behalf of Christopher based on the argument that the state court lacked subject matter jurisdiction over these claims. Specifically, defendants maintained that plaintiffs were required to exhaust the remedies provided for by the Vaccine Act in the United States Court of Federal Claims before proceeding in state court. Defendants also moved to dismiss the intentional infliction of emotional distress count pursuant to sections 2-615 and 2-619(a)(9) of the Code. 735 ILCS 5/2-615, 2-619(a)(9) (West 2004). They maintained that defendants' conduct was strictly regulated and approved by the Food and Drug Administration (FDA). In support, they appended to their motion the relevant provisions of the Code of Federal Regulations that outline the FDA's requirements for the approval, manufacture, and labeling of vaccines. The trial court took judicial notice of these regulations.*fn3 Based on this affirmative matter, defendants argued that the legitimate making and selling of FDA-approved thimerosal-containing vaccines could not constitute "extreme and outrageous" conduct. Defendants also argued that plaintiffs failed to plead the severe emotional distress element with the requisite specificity.

The circuit court dismissed the representative claims brought on behalf of Christopher without prejudice for lack of subject matter jurisdiction because they stemmed from a "vaccine-related injury" covered under the Vaccine Act. Additionally, after several opportunities to amend, the court dismissed the intentional infliction of emotional distress claim with prejudice, finding that the federal regulations demonstrated that the manufacturing and selling of FDA-approved vaccines could not, as a matter of law, be characterized as extreme and outrageous conduct. Plaintiffs filed a timely appeal.


In ruling on the circuit court's dismissal order, we are asked to address the subject matter jurisdiction of the circuit court with respect to the claims brought on behalf of Christopher. Defendants sought to dismiss these claims pursuant to section 2-619(a)(1) of the Code (735 ILCS 5/2-619(a)(1) (West 2004)). A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other matters that act to defeat the claim. Cohen v. McDonald's Corp., 347 Ill. App. 3d 627, 632, 808 N.E.2d 1, 5 (2004). Specifically, it provides for the involuntary dismissal of a cause of action based on the court's lack of subject matter jurisdiction. Kinn v. Prairie Farms/Muller Pinehurst, 368 Ill. App. 3d 728, 730, 859 N.E.2d 99, 101 (2006). Our review is de novo. Kinn, 368 Ill. App. 3d at 730, 859 N.E.2d at 101.

Plaintiffs contend that the circuit court erred in granting dismissal on the basis that plaintiffs were required to exhaust their administrative remedies under the Vaccine Act. 42 U.S.C. §300aa-11 (2000). In order to fully understand plaintiffs' arguments, a basic understanding of the Vaccine Act's purpose and administrative framework is necessary.

Enacted in 1986, the Vaccine Act established a remedial no-fault compensation program for vaccine related injuries or death. 42 U.S.C. §300aa-10 et seq. (2000). The Act was designed to protect the nation's vaccine supply and to create a fair and easily-administered program to provide compensation for vaccine-related injuries. H.R. Rep. No. 99-908, at 5-7 (1986), as reprinted in 1986 U.S.C.C.A.N. 6344, 6346-48. The statute has a twofold policy: to expedite the award of damages and to protect vaccine manufacturers from burdensome litigation. H.R. Rep. No. 99-908, at 4 (986), as reprinted in U.S.C.C.A.N. 6344-45. The program requires that a person seeking compensation for a vaccine-related injury must first file a petition against the United States Secretary of Health and Human Services before traditional tort remedies may be pursued. 42 U.S.C. §300aa-11(a)(2)(A) (2000); Shalala v.Whitecotton, 514 U.S. 268, 270, 131 L.Ed. 2d 374, 378, 115 S.Ct. 1477, 1478 (1995) (explaining that a claimant alleging an injury after the Vaccine Act's effective date "must exhaust the Act's procedures * * * before filing any de novo civil action in state or federal court").

The claims are then heard by special masters appointed by the Court of Federal Claims, are adjudicated informally (42. U.S.C. §300aa-12(d)(2) (2000)), and are then accorded expeditious review by the Court of Federal Claims and the Federal Circuit Court of Appeals (42 U.S.C. §300aa-12(e)(2) (2000)); Whitecotton, 514 U.S. at 270, 131 L.Ed. 2d at 378, 115 S.Ct. at 1478). Compensation awards are paid from the Vaccine Injury Compensation Trust Fund, which is financed by excise taxes on certain vaccines. 42 U.S.C. §300aa-15(2) (2000); 26 U.S.C. §9510(b)(1) (2000). The Vaccine Act does not totally preempt all traditional tort remedies for covered damages. Rather, after the Court of Federal Claims renders a ruling on a claim, the claimant may accept or reject any award. If he accepts an award, he waives further tort rights; if he declines it, he may pursue traditional tort relief, with some restrictions. 42 U.S.C. §§300aa-21, 300aa-22 (2000).

Specifically pertinent to this appeal, section 300aa-11(a)(2)(A) of the Act provides in relevant part that:

"No person may bring a civil action for damages *** against a vaccine administrator or manufacturer in a State or Federal Court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine *** unless a petition has been filed *** for compensation under the Program for such injury." 42 U.S.C. §300aa-11(a)(2)(A) (2000).

The Act further provides that "[i]f a civil action which is barred under [the Act] is filed in a State or Federal court, the court shall dismiss the action." 42 U.S.C. §300aa-(a)(2)(B)(2000).

Plaintiffs raise various arguments contending that they are not required to exhaust their administrative remedies under the Vaccine Act before filing their claims on behalf of Christopher in state court. Initially, we address plaintiffs' argument that they are not required to comply with the Vaccine Act's procedural requirements because Christopher has not suffered a "vaccine-related injury" as that term is defined in the Act. The Vaccine Act defines "vaccine-related injury" as follows:

"an illness, injury, condition or death associated with one or more of the vaccines set forth in the Vaccine Injury Table [42 C.F.R. § 100.3 (2006)], except that term does not include an illness, injury, condition, or death associated with an adulterant or contaminant intentionally added to such a vaccine." 42 U.S.C. §300aa-33(5) (2000).

Plaintiffs argue that they were harmed by thimerosal, and that thimerosal is not a vaccine but, rather, a preservative added to multidose vials to extend a vaccine's viable life. They allege that the thimerosal as used in the vaccines administered to Christopher falls under the exception because it is an "adulterant or contaminant" that was intentionally added to the vaccines. As a result, they maintain that they ...

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