PHILADELPHIA -- The U.S. District Court for the Eastern District of Pennsylvania dismissed July 12 a Pennsylvania couple's second negligence case against Merck & Co. Judge Harvey Bartle III ruled on the case.
Chris Juday and Pat Juday filed the second lawsuit against Merck in hopes of overturning a summary judgment against them in their first lawsuit. They simply restated that Merck was negligent concerning its Zostavax product, a vaccine to prevent shingles. Despite Pat Juday’s allegations for loss of consortium, a court granted summary judgment for Merck in its initial filing.
The couple sued again, and Merck filed a motion to dismiss for failure to state a claim, and the district court granted it.
It agreed with Merck’s defense that res judicata blocks this litigation. For res judicata to come into a play, a final judgment would have had to be ruled on a previous suit with the parties followed by another suit for the same cause of action.
The court said, “In the first action, there was a judgment in favor of defendants and against the Judays on the ground that the action was time-barred. This was a judgment on the merits. Thus, all three requirements for the invocation of res judicata have been met.”
The court also shut down the Judays' argument that tolling made the statute of limitations under the Vaccine Act inapplicable. The court said it “has no applicability here” since it only relates to state claims before a federal district court.
A previous Supreme Court ruling came down more than eight months before the Judays filed their motion for the first lawsuit. “That ruling could have and should have been raised at that time if the Judays deemed it relevant,” said the federal court. “It is now too late.”
The district court also noted that the Judays cannot go any further in the matter.
In their first lawsuit, the Judays said Chris Juday was injected with the medicine March 2, 2014, but then suffered shingles around March 13, 2014. However, he and Pat Juday did not file the lawsuit until April 5, 2016. This is beyond the allotted two-year statute of limitations, so the court dismissed the first case and an appeals court affirmed.
The Judays did not give up. They requested the green light to intervene in another Zostavax case that was pending. They felt this would allow them to reopen their first action. The current court denied the motion and called out the Judays for their “fishing expedition” and denied their motion for reconsideration and their motion for relief from the judgment in their first action.
Matters did not end there either. There’s a notice of appeal for this order that is currently pending.