SCRANTON – CVS Pharmacy is seeking to dismiss the strict liability claim brought forward by a Northeastern Pennsylvania man, who alleged he contracted septic arthritis and a number of other injuries after receiving a Pneumovax vaccine from a store location in East Stroudsburg.
Vincent W. Fala and Judith A. Fala of Dingman’s Ferry first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 2 versus Pennsylvania CVS Pharmacy, LLC, of Woonsocket, R.I.
“On or about Oct. 4, 2018, plaintiffs Vincent W. Fala presented to the CVS pharmacy located at 5122 Milford Road, East Stroudsburg, Pennsylvania, to receive a pneumococcal vaccine,” the suit said.
“Plaintiff Vincent W. Fala was prescribed the Pneumovax 23 vaccine by Martin Duclose, M.D. on Oct. 4, 2018, while at the CVS. The Pneumovax 23 vaccine, with National Drug Code 00006-4837-03, was then administered to plaintiff Fala in his right arm by an individual in a white coat believed to be a pharmacist working at the CVS whose name is Eric T. Wild.”
After receiving the vaccine, Fala said he began having pain/discomfort in his right shoulder.
“On Monday, Oct. 8, 2018, Vincent W. Fala presented to Main Line Health’s Bryn Mawr Hospital with complaints of ‘right upper extremity pain and swelling. Upon examination in the Emergency Department at Bryn Mawr Hospital, Mr. Fala was found to have a fluid collection present in the area of his right shoulder,” the suit stated.
“The fluid was noted to be yellow and turbid and had a white blood cell count of 82,000 with 94% polys (neutrophils), and as such Mr. Fala was believed to have septic arthritis.”
After a right shoulder MRI, Fala was taken to the operating room on Oct. 8, 2018, for incision and drainage of superficial and deep abscess and the diagnosis at the time was noted by Dr. Freedman to be right shoulder septic arthritis. During the procedure, Dr. Freedman noted that there were pus collections and a “massive rotator cuff tear.”
“During the surgical procedure on Oct. 8, 2018, performed by Dr. Freedman, three wound swabs were taken and sent for routine bacterial culture analysis. After 48 hours, all three wound swab cultures taken during the Oct. 8, 2018, surgical procedure showed no growth of any bacteria/pathogen. Mr. Fala remained hospitalized through Oct. 13, 2018, at Bryn Mawr Hospital, at which time he was discharged to an inpatient rehabilitation facility for further care, management, and treatment,” per the suit.
“On or about Oct. 26, 2018, Mr. Fala followed-up with Bartholomew Bono, M.D., the Infectious Disease specialist who had seen Mr. Fala while he was in Bryn Mawr Hospital, and at that time Dr. Bono noted, all of the cultures taken were sterile and that “the other possible diagnosis is pseudoseptic arthritis of the shoulder, which has been reported following pneumococcal vaccination.”
Plaintiff Vincent M. Fala suffered pseudoseptic arthritis of the right shoulder; aseptic inflammatory arthritis; immune-mediated inflammatory reaction; increased risk of infection; lack of immunity/failed pneumococcal vaccine administration; rotator cuff injury/tear(s); shoulder injury resulting from vaccine administration; pain and suffering; right shoulder injury; musculoskeletal injuries and other injuries.
UPDATE
Due to the similarity of the lawsuit with a prior-filed version of the same suit, apart from one strict liability claim, U.S. District Court for the Eastern District of Pennsylvania Judge Malachy E. Mannion consolidated the cases on Oct. 23.
CVS filed to dismiss the case on Nov. 13, for its alleged failure to state a claim.
“There is no basis to depart from established Pennsylvania law. Mr. Fala was not ‘sold’ a vaccine; he was provided a healthcare service. A pharmacist is alleged to have administered an injectable vaccine Pneumovax 23 vaccine in accordance to a prescription from a physician,” the dismissal motion stated, in part.
“Imposing liability on Pennsylvania CVS Pharmacy, LLC for an alleged defect in this injectable vaccine prescribed by a physician and designed and manufactured by another party is inconsistent with Pennsylvania law, and therefore, plaintiffs’ Section 402A claims should be dismissed as a matter of law.”
CVS said the plaintiffs provided no justification for a strict liability claim.
“Plaintiffs’ amended complaint fails to address the most basic issues for a Section 402A strict liability claim: What were the alleged design defects? What were the alleged manufacturing defects? What warnings were allegedly inadequate and/or not provided with the vaccine? How did these alleged defects allegedly cause plaintiff injury? There is no plausible cause for relief without this information,” per counsel for the defendant.
For counts of professional negligence, corporate negligence, vicarious liability, spousal consortium and strict products liability, the plaintiff is seeking in excess of $75,000, plus interest, costs, and delay damages
The plaintiff is represented by H. Leon Aussprung and James E. Hockenberry of the Law Office of Leon Aussprung, in Philadelphia.
The defendant is represented by Albert B. Tomlinson and Amalia V. Romanowicz of Post & Schell, also in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-01801
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com