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McDonald v. Lederle Laboratories2/18/2004
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2004
Michael McDonald was born on April 13, 1989. Shortly after being inoculated, at the age of three months, with a vaccine against diphtheria, pertussis, and tetanus (DPT) manufactured by defendants, Michael allegedly manifested an adverse reaction, as a result of which he currently suffers from a seizure disorder, encephalopathy, mental retardation, and developmental delay. In McDonald v. Lederle Laboratories, 341 N.J. Super. 369 (App Div. 2001) (McDonald I), we affirmed the Law Division judge's dismissal of Janet McDonald's claim, as Guardian ad Litem, holding that Janet's failure to prosecute and file a timely petition under the National Vaccine Injury Compensation Act, 42 U.S.C.A. ยงยง 300aa-1 to -34 (the Act), precluded her from pursuing a subsequent state tort action on her son's behalf. Pointing out that the Act does not preclude parents from filing claims for their own losses, we reversed and remanded the dismissal of Janet's individual claims for medical expenses and loss of services, society, and companionship to afford the Law Division the opportunity to rule on the viability of those claims.
On remand, defendants' motion for summary judgment was granted, dismissing Janet's remaining claims. The Law Division judge found that: (1) all Janet's claims were derivative of Michael's and, therefore, could not stand alone; (2) Janet's past and future claims for medical bills were preempted by the Act; and (3) Janet's per quod claim for loss of society and companionship is not recognized in New Jersey.
We hold that Janet's only viable state per quod claim, her alleged loss of Michael's services, survives, notwithstanding its dependency on proof of liability for Michael's injuries because it is not cognizable under the Act. Accordingly, we reverse the order for summary judgment and remand for trial Janet's claim for loss of Michael's services. The order dismissing Janet's claims for loss of society and companionship, and Michael's past and future medical expenses is affirmed.
On appeal, Janet argues that her individual state per quod claims for medical expenses and loss of society, services, and companionship are not precluded by the Act and the statute of limitations on those claims is tolled by the application of N.J.S.A. 2A:14-2.1. Defendants concede that N.J.S.A. 2A:14-2.1 tolls the statute of limitations by staying Janet's claims for damages resulting from Michael's injuries during his minority. However, defendants counter, asserting that all of Janet's claims are derivative in nature and, therefore, cannot stand alone, given our previous holding in McDonald I invalidating her claim as guardian on behalf of Michael. They also argue that Janet's claims for medical expenses are the same as those previously brought on behalf of Michael and, therefore, preempted by the Act. Finally, defendants assert that we do not recognize common law per quod claims for loss of society and companionship.
We consider first Janet's claims for Michael's medical expenses. The Law Division judge found that the Act preempted Janet's claims for medical expenses. Generally, the congressional or federal agency purpose is the touchstone for analyzing the applicability of preemption. There are several ways to prove preemption. First,"Congress explicitly may express its intent to preempt state law." Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 615 (1999) (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S. Ct. 1145, 1150, 99 L. Ed. 2d 316, 325 (1988)). Second,"preemption may be inferred where the federal legislation is so comprehensive that it creates the inf
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