Loren Neddeau v. Rite Aid of Connecticut, Inc. et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS (# 101)

The plaintiff, Loren Neddeau, filed a three-count complaint in this action on January 26, 2015.   The complaint names as defendants Rite Aid of Connecticut, Inc. (Rite Aid), and Anthony Alessio.   On February 11, 2015, the defendants moved to dismiss on the grounds that (1) pursuant to the National Childhood Vaccine Injury Act;  42 U.S.C. § 300aa–11(a)(2)(A);  dismissal is required because the plaintiff filed no claim for compensation from the National Vaccine Compensation Injury Program;  and (2) the plaintiff's claim is barred by the statute of limitations.   The plaintiff filed an opposing brief on February 17, 2015.   The motion was argued on March 30, 2015.   On March 31, 2015, the plaintiff filed a supplemental brief regarding material submitted by the defendants at oral argument and the motion was submitted.

FACTS

When the court's jurisdiction is challenged by a motion to dismiss, the court must take the facts to be those alleged in the challenged pleading and those necessarily implied by the explicit allegations.  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   The court must then construe those facts in a manner most favorable to the pleader.  Id. On the other hand, neither conclusions of law nor opinions are taken as true.   See Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009) (on a motion to dismiss, the court considers facts alleged in and necessarily implied by the complaint and any undisputed facts established by affidavit).   Viewing the allegations in this light, the pertinent facts are as follows.

On October 6, 2012, the plaintiff received a flu vaccine at the Rite Aid Pharmacy in Pawcatuck.   Pharmacist Anthony Alessio administered the flu shot by injecting it into the plaintiff's left shoulder.   Alessio administered the shot improperly, resulting in injury to the plaintiff's left shoulder and arm.

DISCUSSION

Practice Book § 10–30(a) provides as follows:  “A motion to dismiss shall be used to assert:  (1) lack of jurisdiction over the subject matter ․” “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Housatonic Railroad Co v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).   It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has jurisdiction.  Matthews v. SBA, Inc., 149 Conn.App. 513, 528–29, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).

The first ground of the present motion is that federal law—the National Childhood Vaccine Injury Act (P.A. 99–660), specifically, 42 U.S.C. § 300aa–11(a)(2)(A)—requires that the complaint be dismissed because the plaintiff has not filed a claim for compensation from the National Vaccine Compensation Injury Program.   The defendants argue that the plaintiff's injuries are “vaccine-related” because they resulted from the administration of the flu vaccine.

The plaintiff argues that her negligence claim is not covered, and its dismissal is not required, by the National Childhood Vaccine Injury Act (“the Act”) because her claim is not vaccine-related within the meaning of the Act. The court agrees.

42 U.S.C. § 300aa–11(a)(2)(A) provides:  “No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount 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 after October 1, 1988, and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed, in accordance with section 300aa–16 of this title, for compensation under the Program for such injury or death ․”

Shyface v. Secretary, Health & Human Services, 165 F.3d 1344, 1351–53 (Fed.Cir.1999), makes clear that the Act does not apply to injuries which are unrelated to the vaccine, as distinguished from the manner in which it is administered.  Shyface adopted the Restatement (Second) of Torts rule in the context of determining whether an alleged injury was “vaccine-related”:  “the vaccine must be a substantial factor in bringing about the harm.”  Id., 1353.  “In order to show that the vaccine was a substantial factor in bringing about the injury, the petitioner must show a medical theory causally connecting the vaccination and the injury.   There must be a logical sequence of cause and effect showing that the vaccination was the reason for the injury.”  (Internal quotation marks omitted.)  Id., 1352–53.

In their brief, the defendants cite Amendola v Secretary, Dept. of Health and Human Services, 989 F.2d 1180 (Fed.Cir.1993), for the proposition that, where alleged negligence is related to the administration of a vaccine, the resulting injury is “vaccine-related.”  Amendola, however, is not controlling because it involves a situation quite different from the present case.   The Federal Circuit affirmed a decision of the Court of Federal Claims sustaining the decision to dismiss not a lawsuit but the plaintiffs' petition for compensation pursuant to the Act. Id., 1181.   The plaintiffs' petition had been dismissed because they had previously brought a civil action in a New York court seeking compensation for the same injuries, which resulted in a final judgment in favor of the pediatrician.  Id. Amendola involved plaintiffs who had already litigated their claim in state court and subsequently tried to bring an action pursuant to the Act. In contrast, the present case involves a plaintiff bringing a state law claim and a defendant arguing that the claim should be brought pursuant to the Act.

Amendola does, however, offer guidance as to what constitutes a “vaccine-related” injury, as this was a secondary issue raised by the plaintiffs.   In Amendola, a pediatrician allegedly negligently administered a DPT injection to a baby who had exhibited negative reactions to a previous DPT injection.   Id. The alleged injury was caused by the effects of the vaccine, and the doctor was allegedly negligent in his decision to administer the vaccine under the circumstances.  Id., 1187.   The court concluded that the injury was “vaccine-related,” reasoning that the alleged negligence involved a judgment call about whether to administer the vaccine rather than incidental negligence “unrelated to the vaccine's effects,” such as dropping an infant or using a contaminated needle.  Id.

To the extent that Amendola pertains to the present case, it supports the opposite conclusion from that argued by the defendants.   In the present case, the only allegation that specifically describes how Alessio's conduct was negligent is that he “improperly stuck the needle too high” in the plaintiff's arm.   The plaintiff alleges more generally that Alessio “improperly administered the flu vaccine ․ improperly stuck the needle ․ failed to take necessary steps or procedures to reduce the risk of injury;  and ․ failed to follow company procedures on reducing injuries ․” The plaintiff has alleged that her injuries were caused by negligence in the physical process of injecting the vaccine, not by the effects of the vaccine.   Therefore, the present case more closely resembles the hypothetical scenarios of a dropped infant or a contaminated needle than it does the facts of Amendola.

Likewise, in Aull v. Secretary of Health & Human Services, 65 Fed. Cl. 400, 406 (2005), aff'd, 462 F.3d 1338 (Fed.Cir.2006), the Court of Federal Claims applied Amendola and held that “where the alleged negligence concerns the physical effects of the vaccine upon the body, Congress intended resort to the NCVIA first.”   In Aull, a child died from pneumonia after allegedly negligent treatment following a vaccine that had weakened his immune system.   Id., 401–02.   The court concluded that the death was associated with the physical effects of the vaccine and thus was “vaccine-related.”  Id., 407.   Aull is readily distinguishable from the present case because negligently treating post-vaccine symptoms is not the same as injecting the right vaccine in the wrong part of the arm.

The defendants' second claim is that the suit is barred by the applicable statute of limitations, General Statutes § 52–584, because the motion for statutory extension of time was filed on the second anniversary of the allegedly negligent administration of the vaccine.   This claim is rejected for two reasons.   First, the bar of the statute of limitations is a defense:  except where a time limitation is part of a statutory cause of action, it is not a jurisdictional matter.   Second, the defendants' claim that the statute of limitation expires on the day before the anniversary of the allegedly negligent act has no merit.   See Gurliacci v. Mayer, 218 Conn. 531, 536, 590 A.2d 914 (1991) (where accident occurred on February 2, 1983, two-year statute of limitations passed on February 2, 1985).

For the foregoing reasons, the motion to dismiss is denied.

Cole–Chu, J.

Cole–Chu, Leeland J., J.