PHILADELPHIA – On Thursday, a trio of judges from the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of a couple’s lawsuit, brought after they allegedly suffered injuries resulting from a shingles vaccine and later determined to be filed too late.
Judge D. Brooks Smith authored the Court’s opinion in this matter, writing on behalf of himself and fellow judges Thomas M. Hardiman and Cheryl Ann Krause.
Plaintiffs Chris and Pat Juday sought compensation for certain injuries allegedly caused by Zostavax, a shingles vaccine. However, by the time they sued drug maker Merck, the applicable statutes of limitations had run—absent proper tolling
Through its tolling inquiry, the trial court examined the Judays’ alleged evidence of Merck’s fraudulent concealment of certain information about Zostavax. Finding no evidence of wrongdoing, the District Court granted summary judgment to Merck and the Third Circuit affirmed.
“The Judays sought post-judgment relief based in part on Federal Rule of Civil Procedure 60(b)(6), which accounts for ‘any other reason that justifies relief.’ They flagged their prior counsel’s ‘failure to request any discovery,’ despite the production in other litigation of evidence allegedly demonstrating fraudulent concealment,” Smith said.
“But prior counsel had otherwise participated in the litigation – via briefing and oral argument – so the District Court surmised that counsel ‘made a deliberate, maybe improvident’ choice not to pursue discovery in this litigation. The Court denied vacatur because counsel’s behavior fell short of the ‘extraordinary circumstances’ justifying the reopening of a final judgment.”
The Judays timely appealed, leading the Third Circuit to reconsider the District Court’s Rule 60(b)(6) decision in a “limited and deferential” manner, only on the point of whether or not the Court abused its discretion.
“The Court was justified in determining that prior counsel’s conduct did not fall to a level warranting Rule 60(b)(6) relief. In this litigation, refraining from discovery was not ‘neglect so gross that it is inexcusable.’ Moreover, we are unpersuaded that this is a situation in which, ‘without [Rule 60(b)(6)] relief, an extreme and unexpected hardship would occur,” Smith said.
“As the Judays concede, their complaint was filed late. It therefore suffered the appropriate consequence of dismissal. Because we observe no abuse of discretion in the District Court’s decision, we will affirm.”
U.S. Court of Appeals for the Third Circuit case 19-1144
U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-01547
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com