JUDAY et al v. MERCK & CO., INC. et al

Filing 34

MEMORANDUM AND ORDER THAT THE MOTION OF DEFENDANT MERCK & CO., INC. AND MERCK SHARP & DOMES, CORP. FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS CHRIS JUDAY AND PAT JUDAY IS GRANTED; ETC.. SIGNED BY HONORABLE HARVEY BARTLE, III ON 4/13/17. 4/17/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRIS JUDAY, et al.

:
:
:
:
:

v.
MERCK & CO., INC., et al.

CIVIL ACTION

NO. 16-1547

MEMORANDUM
Bartle, J.

April 13, 2017
Plaintiffs Chris Juday and his wife Pat Juday, citizens

of Indiana, bring this diversity action against defendants Merck
& Co., Inc. and Merck Sharp & Dohme Corp. (collectively “Merck”),
both of which are incorporated and have their principal places of
business in New Jersey.

Mr. Juday alleges personal injuries and

his wife alleges loss of consortium as a result of the
administration to Mr. Juday of Zostavax, Merck’s live vaccine
designed to prevent shingles. 1
Merck has now moved for summary judgment on the ground
that plaintiffs’ claims are barred by the applicable two-year
statutes of limitations.

Summary judgment may be granted under

Rule 56 of the Federal Rules of Civil Procedure only if there are
no genuine disputes of material fact and Merck is entitled to
judgment as a matter of law.

1. Plaintiffs also sued Ann Redfield, MSN, RN, a citizen of
Pennsylvania. All claims against her have been dismissed.

The following facts are undisputed or taken in the light
most favorable to the non-movants.
Inc., 477 U.S. 242, 255 (1986).

See Anderson v. Liberty Lobby,

Mr. Juday received the Zostavax

vaccine on March 2, 2014 at a pharmacy in Indiana.

The vaccine

had been prescribed a week or so before by his primary care
physician, Dr. Jon Van Scyoc.

By March 10, he began to experience

fever with a temperature of 101°F, a rash on his abdomen and back,
and what looked like chickenpox.

On March 12, he and his wife

went to Prairie Lakes Family Medicine in Indiana where they saw a
nurse practitioner, Andrea Compton.

His medical record of that

visit, which contained information supplied by the Judays, stated:
had Zostavax 8 days ago initially fine but
developed diffuse raised rash first on right
side of trunk but now spread across back
accompanied by low grade fever
Ms. Juday has a bachelor’s degree in nursing and three
classes short of her Master’s degree.

She discussed with Ms.

Compton the possibility that the Zostavax vaccine could be the
cause of her husband’s symptoms.

Ms. Compton was not sure what

illness Mr. Juday had or what was its cause.
Mr. Juday advised his employer on March 13 that he would
not be at work because of illness.

According to the disability

claim form in his employee file, Mr. Juday reported “Severe
Allergic Reaction to Shingles.”

Mr. Juday later clarified at his

deposition that “Shingles” referred to “shingles vaccination.”

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While he does not remember saying the exact words recorded on his
disability form, he does remember telling his employer “I had a
shingles vaccination and I was sick.”
Mr. Juday returned to Prairie Lakes Family Medicine on
March 24 due to his persistent symptoms and again saw Ms. Compton.
The “History of Present Illness” section of the medical records
for that visit contains the following:
here for follow up of reaction after
Zostavax. . . . Rash from shingles vaccine
improving but still with persistent cough,
intermittent fever
There is evidence that Ms. Compton or her assistant
contacted Merck, the manufacturer of Zostavax, at some point in
mid-March 2014 concerning Mr. Juday’s illness.

According to

Ms. Juday, Ms. Compton told her during the March 24 visit to
Prairie Lakes Family Medicine that Merck had no recorded cases of
chickenpox from the vaccine.

Ms. Juday testified that after

learning what Merck had said, she and Ms. Compton discussed that
the vaccine “was maybe one of the possibilities, but we didn’t
really know for sure what it was.”

At no time did Ms. Compton

reach a conclusion as to the cause of Mr. Juday’s illness or
express any opinion to Mr. Juday or his wife on this subject.
During this period, Ms. Juday, herself a nurse, had not
remained idle.

Between one and three weeks after her husband

began to suffer an illness, she printed information from the

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website of Merck and the Center for Disease Control to learn “if
there was any history of it somewhere that someone else had had a
reaction that was similar to his to Zostavax, to see if there was,
you know, any particular thing that they did for it.”

The

information she obtained did not indicate to her any case like her
husband’s.
The plaintiffs again visited Prairie Lakes Family
Medicine on April 1, 2014.

This time Mr. Juday saw Dr. Van Scyoc.

The “History of Present Illness” in the medical record for his
visit noted:
received Zostavax first week of March. Shortly
afterward patient developed a vesicular rash
over the trunk. Near the same timeframe he
developed a dry cough and some fever which
persists. He has had fever daily for about 3
weeks
After examining Mr. Juday, Dr. Van Scyoc concluded that
Zostavax “could be a possibility contributing to [Mr. Juday’s]
symptoms.”

At his deposition, Dr. Van Scyoc testified that he

told Mr. Juday of this possibility.
hearing any such statement.

Mr. Juday does not remember

Ms. Juday does not think the doctor

discussed the subject with her husband.
doctor was “totally stymied.”

She recalls that the

Dr. Van Scyoc, however, referred

Mr. Juday to Dr. Ikerd, an infectious disease specialist.

On

April 9, 2014, Dr. Ikerd confirmed that the cause of Mr. Juday’s
symptoms was the Zostavax vaccine.

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This lawsuit was filed on April 5, 2016, more than two
years after March 2, 2014, the date when Mr. Juday received the
Zostavax vaccine.
The plaintiffs are Indiana citizens who incurred their
alleged injuries in Indiana.
accrued there.

It is undisputed that their claims

Because this diversity action was filed in the

Eastern District of Pennsylvania, we first look to the choice of
law rules of the underlying forum, that is the Commonwealth of
Pennsylvania, to tell us what statutes of limitations to apply.
Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487 (1941).
Under Pennsylvania’s Uniform Statute of Limitations on Foreign
Claims Act, “The period of limitation applicable to a claim
accruing outside this Commonwealth shall be either that provided
or prescribed by the law of the place where the claim accrued or
by the law of this Commonwealth, whichever first bars the claim.”
42 Pa. Cons. Stat. § 5521(b).
Plaintiffs’ complaint contains claims for Negligence
(Count I), Design Defect (Count II), Failure to Warn (Count III),
Breach of Express Warranty (Count IV), Breach of Implied Warranty
(Count V), Negligent Misrepresentation (Count VII), Unjust
Enrichment (Count VIII), and Loss of Consortium (Count IX). 2
Since these claims all accrued in Indiana, we must ascertain for

2. Plaintiffs’ claim for Fraudulent Misrepresentation (Count VI)
has been dismissed.
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each claim whether Pennsylvania or Indiana has the shorter
limitations period.
Pennsylvania has enacted a two-year statute of
limitations for personal injury claims grounded in negligence,
design defect, failure to warn, negligent misrepresentation, and
loss of consortium.

See 42 Pa. Const. Stat. § 5524.

Indiana also

has enacted a two-year statute of limitations for personal injury
claims.

See Ind. Code § 34-11-2-4; Stickdorn v. Zook, 957 N.E.2d

1014, 1020 (Ind. Ct. App. 2011).
Pennsylvania provides for a four-year statute of
limitations for breach of express and implied warranties.
13 Pa. Const. Stat. § 2725; 42 Pa. Const. Stat. § 5525.

In

contrast, Indiana applies a two-year statute of limitations for
breach of warranty claims predicated on a products liability tort
as alleged in the complaint.

See Ind. Code § 34-20-3-1(b).

Those

claims are governed by the Indiana Products Liability Act which
bars such claims more than two years old regardless of the legal
theory on which they are based.
et seq.;

See Ind. Code §§ 34-20-1-1,

Lyons v. Leatt Corp., 2015 WL 7016469 at *2-*3

(N.D. Ind. Nov. 10, 2015).
Plaintiffs also have a claim for unjust enrichment.
They seek to recover from Merck for the cost Mr. Juday incurred
for the vaccine because in their words Mr. Juday “did not in fact
receive safe and effective treatment for the prevention of
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shingles.”

Pennsylvania prescribes a four-year statute of

limitations for such a claim.

42 Pa. Const. Stat. § 5525(4); Cole

v. Lawrence, 701 A.2d 987, 989 (Pa. Super. Ct. 1997).

In Indiana,

the limitations period is six years under certain circumstances.
Ind. Code § 34-11-2-7; see also City of East Chicago, Indiana v.
East Chicago Second Century, Inc., 908 N.E.2d 611, 619 (Ind.
2009).

However, under Indiana law, it is “the nature or substance

of the cause of action, rather than the form of the action, which
determines the applicability of the statute of limitations.”
Shideler v. Dwyer, 417 N.E.2d 281, 285 (Ind. 1981).

Where an

unjust enrichment claim arises out of a tort-based products
liability claim as occurred here, Indiana would apply a two-year
limitations period.

Ind. Code § 34-20-3-1; see Knutson v. UGS,

2007 WL 2122192 at *5 (S.D. Ind. July 19, 2007); see also Schwindt
v. Hologic, Inc., 2011 WL 3806511 at *7 (S.D. Ind. Aug. 26, 2011).
Thus, the limitations periods for the negligence, design
defect, failure to warn, negligent misrepresentation, and loss of
consortium claims are the same in Indiana and Pennsylvania.

For

the breach of warranty and the unjust enrichment claims,
Pennsylvania adopts the Indiana two-year statute of limitations
since Indiana bars those claims first.

In sum, all of plaintiffs’

claims are subject to a two-year time-bar.
Plaintiffs acknowledge that the action was instituted
more than two years after Mr. Juday received the Zostavax vaccine.
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Instead, they assert that their lawsuit is timely because the
discovery rule has tolled the various statutes of limitations for
a sufficient period to allow the lawsuit to proceed.
Under Pennsylvania law, a claim for relief accrues when
the right to sue arises, that is when the injury was inflicted.
Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005).

The Pennsylvania

Supreme Court has written that “[m]istake, misunderstanding, or
lack of knowledge in themselves do not toll the running of the
statute.”

Id.

Pennsylvania, however, has created a discovery

rule which allows for the tolling of the limitations period where
“the injury or its cause was neither known nor reasonably
knowable.”

Id. at 858 (citing Lewey v. H.C. Frick Coke Co.,

31 A. 261 (Pa. 1895)).

It excludes “from the running of the

statute of limitations that period of time during which a party
who has not suffered an immediately ascertainable injury is
reasonably unaware he has been injured, so that he has essentially
the same rights as those who have suffered such an injury.”

Id.

The statute begins to run “when the plaintiff knows, or
reasonably should know:

(1) that he has been injured, and

(2) that his injury has been caused by another party’s conduct.”
Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 500
(Pa. Super. Ct. 1984).

The clock does not start to tick until the

plaintiff knows of his injury or should have known about it

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through the exercise of reasonable diligence.

The Pennsylvania

Supreme Court has explained:
Reasonable diligence is just that, a
reasonable effort to discover the cause of
an injury under the facts and circumstances
present in the case. Long ago we recognized
that ‘there are a few facts which diligence
cannot discover, but there must be some
reason to awaken inquiry and direct
diligence in the channel in which it would
be successful. This is what is meant by
reasonable diligence.’
Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995) (citing Deemer
v. Weaver, 187 A. 215, 217 (Pa. 1936)).
standard.

It is an objective

The court concluded that “the plaintiff’s actions must

be evaluated to determine whether he exhibited ‘those qualities of
attention, knowledge, intelligence and judgment which society
requires of its members for the protection of their own
interests[.]’”

Id.

(citing Burnside v. Abbott Lab., 505 A.2d

973, 988 (Pa. Super. Ct. 1985)).
Whether the plaintiff has exercised reasonable diligence
is generally a jury question.

However, it is a matter of law for

this court to determine the start of the time period “where the
facts are so clear that reasonable minds cannot differ.”

Cochran,

666 A.2d at 248.
Our Court of Appeals in Debiec v. Cabot Corp., 352 F.3d
117, 132 (3d Cir. 2003) held that under Pennsylvania law a
definitive diagnosis of a disease or injury is not required to

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start the running of the statute of limitations:

“unrebutted

suspicion that a claimant has a particular disease, which is
caused by another, is sufficient to start the clock.”

That

suspicion can in some cases be rebutted if a physician tells
plaintiff that he or she does not have a particular disease or
injury.

Id.
The Indiana Supreme Court adopted a discovery rule in

Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84, 87-88 (Ind. 1985),
a case similar to the one pending here:
[T]he statute of limitations . . . commences
to run from the date the plaintiff knew or
should have discovered that she suffered an
injury or impingement, and that it was
caused by the product or act of another. It
is contemplated that persons armed with
these indices have a fair opportunity to
investigate available sources of relevant
information and to decide whether to bring
their claims in court within the time
limitations in the statute.
That court in a later decision held that “the cause of action of a
tort claim accrues and the statute of limitations begins to run
when the plaintiff knew, or in the exercise of ordinary diligence,
could have discovered that an injury had been sustained as a
result of the tortious act of another.”

Wehling v. Citizens Nat’l

Bank, 586 N.E.2d 840, 843 (Ind. 1992).
In Evenson v. Osmose Wood Preserving Co., 899 F.2d 701,
705 (7th Cir. 1990), the Court of Appeals for the Seventh Circuit,
applying Indiana law, explained:
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[A] person knows or should have discovered
the cause of his injury when he has or
should have discovered some evidence that
there was a reasonable possibility that his
injury was caused by the act or product of
another. A reasonable possibility, while
less than a probability, requires more than
the mere suspicion possessed by . . . a
layperson without technical or medical
knowledge.
The Indiana Supreme Court has reiterated that a
plaintiff’s “mere suspicion or speculation that another’s product
caused the injuries is insufficient to trigger the statute.”
Degussa Corp. v. Mullens, 744 N.E.2d 407, 411 (Ind. 2001).
Furthermore, a physician’s statement that there are a “range of
potential causes” without more is not enough.

Id.

Nonetheless,

“‘events short of a doctor’s diagnosis can provide a plaintiff
with evidence of a reasonable possibility that another’s’ product
caused his or her injuries[.]”

Id. (quoting Evenson, 899 F.2d at

705).
It appears that in Pennsylvania an “unrebutted
suspicion,” that is one not negated by a physician or otherwise,
is sufficient to start the clock running.
to be required.

In Indiana, more seems

A plaintiff, at a minimum, must have information

that rises to the level of a “reasonable possibility,” although a
physician’s statement to plaintiff about a mere possibility of
causation does not rise to the level of a reasonable possibility.
On the other hand neither state dictates that a physician advise a

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patient of a causal connection between the act of a third party
and an illness in order to trigger the statute of limitations.
Both states place the burden of proof on the plaintiff to
establish that he or she is entitled to have the limitations
period tolled under the discovery rule.

Cochran, 666 A.2d at 249;

David v. Kleckner, 9 N.E.3d 147, 152 (Ind. 2014).
As noted above, where the causes of action accrued
outside the Commonwealth as happened here, Pennsylvania applies
the statutes of limitations of the state which will bar them
first.

42 Pa. Const. Stat. § 5521(b).

For those claims where the

limitations periods of Indiana and Pennsylvania are the same, we
must determine how the discovery rule of each state affects the
running of its applicable limitations periods.

In Pennsylvania,

the tolling under the discovery rule ends when the plaintiff, in
the exercise of reasonable diligence, has an “unrebutted
suspicion” that there is a connection between the injury and the
symptoms.

In Indiana, it ends when the plaintiff, in the exercise

of ordinary diligence, has information that there is a reasonable
possibility of that connection.

Pennsylvania clearly imposes a

less onerous standard to spark the running of the limitations
period than does Indiana.

That is, the Pennsylvania discovery

rule makes it more difficult for a plaintiff to invoke or maintain
tolling than does the Indiana discovery rule.

Consequently, with

respect to the claims of negligence, design defect, failure to
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warn, negligent misrepresentation, and loss of consortium, we will
apply the Pennsylvania statute of limitations with its narrower
discovery rule since Pennsylvania will necessarily bar these
claims first.
We now turn to the remaining claims.

Indiana prescribes

a two-year statute of limitations for Mr. Juday’s claims for the
breach of express and implied warranties and for unjust
enrichment.

These claims all sound in tort regardless of the

legal theory asserted.
such claims.

Indiana applies its discovery rule to all

See Wehling, 586 N.E.2d at 842.

Pennsylvania on the

other hand has a four-year statute of limitations for breach of
express or implied warranties and does not allow for tolling for
these claims.
breach occurs.

The statute runs without interruption after the
13 Pa. Con. Stat. § 2725; Speicher v. Dalkon

Shield Claimants Trust, 943 F.Supp. 554, 558 (E.D. Pa. Nov. 6,
1996); Northampton Cty. Area Cmty. Coll. v. Dow Chem., U.S.A.,
566 A.2d 591, 599 (Pa. Super. Ct. 1989).

Pennsylvania, however,

will permit a plaintiff to benefit from its discovery rule for a
claim of unjust enrichment but the limitations period is four
years.

See Morgan v. Petrol. Prod. Equip. Co., 92 A.3d 823, 828

(Pa. Super. Ct. 2014).

Thus we apply the Indiana statute of

limitations with its discovery rule to the claims of breach of
express warranty, breach of implied warranty, and unjust

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enrichment because Indiana will bar them as untimely before
Pennsylvania would do so.
Whether tolling has occurred is, of course, a fact
intensive inquiry.

The undisputed facts here establish that

beginning on at least March 13, 2014, Mr. Juday not only had an
“unrebutted suspicion” that he had suffered an injury from the
Zostavax vaccine administered to him on March 2, 2014, but also
had information that there was a “reasonable possibility” that
there was a causal connection between the vaccine and his
symptoms.
We start with the medical records of his March 12, 2014
visit to Prairie Lakes Family Medicine, which contain information
supplied by the Judays.

These records state that he had had a

Zostavax vaccination and eight days later developed a rash on his
trunk which had spread across his back.

At this point, he and his

wife considered his recent vaccination to be a sufficiently
noteworthy event to call it to the attention of Ms. Compton, the
nurse practitioner.
Mr. Juday’s own statements to his employer the next day,
March 13, 2014, are telling.

Significantly, Mr. Juday’s

disability report to his employer on that date, only eleven days
after he received the vaccine injection, stated that the
disability keeping him from work resulted from “Severe Allergic
Reaction to Shingles,” which he explained in his deposition meant
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a reaction to the “shingles vaccination.”

While he does not

recall using the exact words recorded on his disability form, he
does remember that he informed his employer, “I had a shingles
vaccination and I was sick.”

In everyday parlance, he obviously

was informing his employer that a causal connection existed
between these two closely occurring events, that is receipt of the
vaccine and his illness.

There is no other rational explanation

for saying not only that he was sick but also in the same breath
that he had received the shingles vaccination.

We find nothing in

the record which altered his thinking in this regard. 3

Indeed,

his medical records at Prairie Lakes Family Medicine for March 24
and April 1, 2014 confirm the court’s conclusion.
In a final effort to benefit from the discovery rule,
plaintiffs have belatedly asserted that Merck engaged in
fraudulent concealment. 4

Under both Pennsylvania and Indiana law,

fraudulent concealment by a person liable for a claim is a basis
for the tolling of the statute of limitations.

3. We accept for present purposes that neither his physician nor
Ms. Compton said anything to him about the vaccine being a
possible cause of his illness.
4. Plaintiffs did not make this argument in their brief in
opposition to defendants’ motion for summary judgment.
(Doc. # 25). It was not until oral argument that plaintiffs first
raised this issue and thereafter inserted it into a supplemental
brief which the court requested to discuss the statutes of
limitations and the discovery rule under Indiana law.
(Doc. # 32).
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The Pennsylvania Supreme Court cautioned in Fine that a
“defendant may not invoke the statute of limitations, if through
fraud or concealment, he causes a plaintiff to relax his vigilance
or deviate from his right of inquiry into the facts.”
860.

Fraud includes “unintentional deception.”

870 A.2d at

The plaintiff

must prove fraudulent concealment “by clear, precise, and
convincing evidence.”

Id.

The Indiana Supreme Court has held that “the doctrine of
fraudulent concealment operates to estop a defendant from
asserting a statute of limitations defense when that person, by
deception on a violation of duty, has concealed material facts
from the plaintiff thereby preventing discovery of a wrong.”
Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995) (quoting Hosp.
Corp. of America v. Hiland, 547 N.E.2d 869, 873 (Ind. App. Ct.
1990)).

The Court made it clear that “Before the doctrine of

estoppel may be used to bar the defendant’s use of the statute of
limitations, the fraud must be of such character as to prevent
inquiry, or to elude investigation, or to mislead the party who
claims the cause of action.”

Id. at 520 (quoting Guy v. Schuldt,

138 N.E.2d 891, 894 (Ind. 1956); see also Ind. Code § 34-11-5-1.
Plaintiffs rely on the testimony of Ms. Juday at her
deposition to support their argument that Merck engaged in
fraudulent concealment.

Plaintiffs assert in their supplemental

brief that “Ms. Juday testified that Dr. Van Scyoc’s office
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reported that Merck had informed them (Dr. Van Scyoc’s office)
that the development of chickenpox was not a known reaction [to]
the Zostavax vaccine.”

At her deposition, Ms. Juday stated:

Q. Did you continue your discussions [with
Ms. Compton] from March 12, 2014 about what could
be the cause of Mr. Juday’s symptoms?
A.

Yes, we did.

Q. What did you talk about that was – the
cough –
A. She [Ms. Compton] told me that she had
talked to Merck and they said they’d never seen
the chickenpox from the vaccine. So they didn’t
think that’s what it was.
Q. Ms. Compton told you that she had spoken
with Merck?
A.

Yes, I think she did.
*

*

*

Q. Did she tell you that she had spoken
with somebody at Merck?
A. She told me that Merck had said they
didn’t have any recorded cases of chickenpox
from the vaccine.
Plaintiffs’ argument fails.

The statements of

Ms. Juday incorporate the statements of Ms. Compton which in
turn incorporate statements of an unidentified person at Merck.
To the extent that plaintiffs cite the statements of Ms. Juday
for the truth of the matters asserted those statements are
inadmissible hearsay.

While a statement to Ms. Compton by a

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person authorized to speak for Merck may be an admission, the
statement by Ms. Compton to Ms. Juday about what Merck said is
inadmissible hearsay since that part of the combined statements
does not fit within any exception to the hearsay rule.
Fed. R. Evid. 801-05; Fed. R. Civ. P. 56(c)(2); see also Brewer
v. Quaker State Oil Refining Corp., 72 F.3d 326, 329 (3d Cir.
1995).
At most, the statements of Ms. Juday referencing Merck
can only be admitted for the fact that Ms. Compton said it to
her.

However, there is no evidence in the record that Ms. Juday

ever told her husband about this conversation with Ms. Compton.
Ms. Juday was not asked at her deposition if she told her
husband about it, and he likewise was not questioned about it at
his deposition.

Thus there is nothing before the court that he

ever relied upon what Merck purportedly told Ms. Compton so as
to cause any delay in the filing of the lawsuit.
In sum, there is no evidence that Merck concealed any
material fact from or deceived the Judays or violated any duty
Merck owed to them.

There is no evidence that Merck knew of a

case where the vaccine had caused chickenpox or that it misled
plaintiffs when it reported that it did not think that the
vaccine had caused the chickenpox.

There is simply no evidence

that any alleged statement by Merck deflected the Judays in any

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way.

Thus, no basis exists to establish fraudulent concealment

so as to toll the statutes of limitations.
It is clear that by March 13, 2014 Mr. Juday not only
had an “unrebutted suspicion” but also had information there was
“a reasonable possibility” that the vaccine was the source of
his symptoms.

Plaintiffs, who have the burden of proof, have

provided no factual basis to invoke the discovery rule under
either Pennsylvania or Indiana law to toll the commencement of
the limitations periods beyond March 13, 2014.

Unfortunately,

plaintiffs did not act with reasonable or ordinary diligence and
waited more for than two years, until April 5, 2016, to file
their lawsuit.
Accordingly, this action is time-barred.
of defendants for summary judgment will be granted.

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The motion