Opposition Brief — Mazur v. Merck & Co.

SS”

No. 92-453

en | reece OF UME CLERK

Supreme Court of the United States

October Term, 1992

-

ANTHONY MAZUR and EDNA MAZUR

as Parents and Guardians of

LISA MARIE MAZUR, a Minor, and

ANTHONY MAZUR, and EDNA MAZUR,

in their own right,

Petitioners,

MERCK & CO., INC.,

Respondent.

‘

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

©

RESPONDENT'S BRIEF IN OPPOSITION

.

Epwarp M. Posner*

MicHaeEL O’S. FLoyp

WituiAM V. ROEDER

DRINKER BippLe & REATH

— Philadelphia National

Bank Building

1345 Chestnut Street

Philadelphia, PA 19107-3496

(215) 988-2700

Attorneys for Respondent

Merck & Co., Inc.

*Counsel of Record

COUNTER-STATEMENT OF QUESTION

PRESENTED FOR REVIEW

Whether the Court of Appeals correctly followed

long-established precedent of the Pennsylvania Supreme

and Superior Courts in holding that the scope of a vac-

cine manufacturer’s duty to warn of possible health risks

associated with its product is governed by the “rea-

sonableness” standard of Section 388 of the Restatement

(Second) of Torts, and in holding that respondent Merck

satisfied its duty by providing to the Centers for Disease

Control adequate information concerning the vaccine and

by contractually obligating that agency to communicate

the risks and benefits of the vaccine to vaccinees.

ii

TABLE OF CONTENTS

Page

Counter-Statement of Question Presented for Review ._ i

Table of Contents ©...540455 550 0n es Obese eee ii

Table of Authoriltet «640454554555 ee eee iii

Opinions Below .. . ..¢.<.. 20a. ee 2

Counter-Statement of The Case... .....0s0essssaess 2

Petitioners’ Writ of Certiorari Should Be Denied... 7

A. The Petition Raises Only State Law Questions

On Which This Court Has Traditionally

Deferred To The Courts Of Appeals; Moreover,

The Court of Appeals Correctly Applied Penn-

syivania Law. .. ..<iss504009hur yee eee 7

B. The Court Of Appeals Acted Correctly In

Deciding The Case Before It On The Basis Of

Settled Pennsylvania Law...........s.ssse055 12

C. The Court of Appeals’ Decision, Correctly

Applying Pennsylvania Law, Will Not Preclude

Future Plaintiffs From Obtaining Proper

ROGTOOS . ... 5s vive 603 oe 15

ili

TABLE OF AUTHORITIES

Page

Cases

Adickes v . Kress & Co., 398 U.S. 144 (1970).......... 12

Baldino v. Castagna, 478 A.2d 807 (Pa. 1984)...... 10, 11

Berkebile v. Brantly Helicopter Corp., 337 A.2d 893

AA rs eer eee eres 11

Bishop v. Wood, 426 U.S. 341 (1976) ...............04. 8

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ..... 7

ee We ees OP Rec, OE CASTS) onic ccc cicesesessuns 8

City of Houston, Texas v. Hill, 482 U.S. 451 (1987) ....12

Colorado River Water Conservation Dist. v. U.S., 424

She es | ae eh ee ek aak weer rk 13, 15

Commissioner v. Estate of Bosch, 387 U.S. 456 (1967) .... 14

Davis v. Wyeth Laboratories, 399 F.2d 121 (9th Cir.

IES Pe ee ee ee ere eee 12

Hahn v. Richter, No. 00019, Phila., 1992 Pa. Super.

LEXIS 275 (Pa. Super. Ct. Feb. 13, 1992), reh’g

a, re 11, 13, 14

foereme © Promee, 462 U.S. 306 (19635)... ........05000 8

Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971) ...9, 10, 11

Louisiana Power & Light v. Thibodaux, 360 U.S. 25 -

SI aE wale CSE N a hh GARDE EA 800000 08 84awcan ens 15

Makripodis v. Merrell-Dow Pharm. Inc., 523 A.2d 374

Ae re 11

Mazur v. Merck & Co., 742 F. Supp. 239 (E.D. Pa.

iV

TABLE OF AUTHORITIES — Continued

Page

Mazur v. Merck & Co., 767 F. Supp. 697 (E.D. Pa.

i, | Rena Rho pe Pay Ey ey airy tia Mapa a ny ery ee 5, 6

Mazur v. Merck & Co., 964 F.2d 1348 (3d Cir. 1992)

Panama d aeaMn Cake RAG e wen eeiea ee mea ae 6, 9, 10, 11, 12

McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436

rs SN, Rite SDs hy ees cea ennnneushwces Saawen 11

Meredith v. City of Winter Haven, 320 U.S. 228 :

(Rr eee ry Pre re rer rer rr Te 13

Moses H. Cone Hospital v. Mercury Constr. Corp.,

| gg Se | rere rrr por res ti rere 15

Railroad Comm'n of Texas v. Pullman Co., 312 US.

SEN eos cee ae ESA ee ae a a 14

White v. Weiner, 562 A.2d 378 (Pa. Super. Ct. 1989),

aff'd without op., 583 A.2d 789 (Pa. 1991).......... 11

younger & raeiie, GO US. 37 UF EE). oink os ea vce’ 15

Youamim v. Mitier, 425 U.S. 250 (1976) .. 00.6 cc ease 12

StaTUTES/ RULES

28 U.S.C.

I AM Me a wg Pkt, Cran ee cage ee eee 7, 8

EE 2, Rg gy 8 BERG rere a aren mn INEP ROE etn Cyt “eae Foe 1

42 U.S.C.

ee ne Oe ON soy cu wacnwkae set ewenes Beane sees 15 |

Be PEPER TT CECT ERE EE Cre Pe ree ne 16

Rs Dobe a aa eee aaa ce ee ae eee 16

ooo a

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Restatement (Second) of Torts

SF ee ere, Pee rrr er rere. 6, 9, 11

Restatement (Second) of Torts

ME 600 cu eee aaa ee Ree 9, 10

Stern, Cressman & Shapiro, Supreme Court Practice..... 8

No. 92-453

¢

In The

Supreme Court of the United States

October Term, 1992

.

ANTHONY MAZUR and EDNA MAZUR

as Parents and Guardians of

LISA MARIE MAZUR, a Minor, and

ANTHONY MAZUR, and EDNA MAZUR,

in their own right,

Petitioners,

MERCK & CO., INC.

,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

RESPONDENT'S BRIEF IN OPPOSITION

a

Respondent Merck & Co., Inc. (“Merck”)! respect-

fully requests that this Court deny the petition for a writ

of certiorari.

' A listing of Merck’s subsidiaries and joint ventures as

required by Rule 29.1 of this Court are set forth in the appendix.

OPINIONS BELOW

The opinions below are reproduced in the appendix

to the petition.

COUNTER-STATEMENT OF THE CASE

In the late 1970’s, more than 2000 children in Phila-

delphia contracted measles during two major outbreaks

of the disease. In response, the Philadelphia Department

of Public Health required that all school children be vac-

cinated against a variety of pediatric diseases. As part of

the City’s effort, Robert G. Sharrar, M.D. of the Health

Department developed a school-based vaccination pro-

gram, with the assistance, inter alia, of the United States

Centers for Disease Control (“CDC”). The Health Depart-

ment selected the vaccines to be administered in the

program and determined which students should receive

each of them. Dr. Sharrar selected M-M-R® II

(“M-M-R II”) as the vaccine for simultaneous vaccination

against measles, mumps, and rubella (German measles).

Since 1978, Merck has been licensed by the United

States Food and Drug Administration (“FDA”) to manu-

facture and distribute M-M-R II. The FDA approved the

packaging and labeling of the vaccine. A package circular

describing the risks associated with the vaccine’s use, and

other information concerning the vaccine, was and is

distributed with each vial of M-M-R II. At the time of Lisa

Mazur’s vaccination in 1983, the package circular

included the following information concerning subacute

sclerosing panencephalitis (“SSPE”):

There have been reports of subacute sclerosing

panencephalitis (SSPE) in children who did not

have a history of natural measles but did receive

measles vaccine. Some of these cases may have

resulted from unrecognized measles in the first

year of life or possibly from the measles vac-

cination. Based on estimated nationwide mea-

sles vaccine distribution, the association of SSPE

cases to measles vaccination is about one case

per million vaccine doses distributed. This is far

less than the association with natural measles,

5-10 cases of SSPE per million cases of measles.

The results of a retrospective case-controlled

study conducted by the Center for Disease Con-

trol suggest that the overall effect of measles

vaccine has been to protect against SSPE by

preventing measles with its inherent higher risk

of SSPE.

This statement was based on a study undertaken by the

CDC and was approved by the FDA.

The Health Department acquired M-M-R II from the

CDC pursuant to a grant. The CDC purchased the vaccine

from Merck pursuant to a series of contracts between it

and Merck. Each of these contracts contained a “duty to

warn” paragraph, which in pertinent part, obligated the

CDC to

(1) take all appropriate steps to assure that all

vaccine supplied . . . pursuant to the terms of

this contract, shall be administered to each

patient on the basis of an individualized medi-

cal judgment by a physician, or (2) take all

appropriate steps to provide to such patient (or

to the patient’s parent or guardian) meaningful

warnings relatine to the risks and benefits of

vaccination, in form and language understand-

able to such patient, parent or guardian.

In order to fulfill its obligations under this paragraph, the

CDC prepared an “Important Information Statement”,

which contained information on the risks and benefits of

the vaccine. The CDC required every health agency

which obtained M-M-R II from it pursuant to a grant,

including the Philadelphia Health Department, to distrib-

ute the Important Information Statement to the vaccinees

or their parents. The Important Information Statement

was sent to parents of school age children in Phila-

delphia.

Although it is undisputed that the School District

distributed the Important Information Statement, Lisa’s

mother contends she never received it. However, she

does admit being notified of the vaccination program,

and recalled receiving from the School District a letter

with an attached vaccination record and permission form.

Mrs. Mazur contends that she neither signed nor

returned the permission form.

Lisa received M-M-R II on February 26, 1982 at her

school. Edith Frederick, R.N., was responsible for the

vaccination program at Lisa’s school and oversaw the

administration of M-M-R II to Lisa and her classmates.

On November 2, 1983, Lisa was diagnosed as having

SSPE. Lisa’s treating physician does not believe that

M-M-R II caused Lisa’s condition. Similarly, a pediatric

neurologist who provided a second opinion to the

Mazurs does not believe M-M-R II caused Lisa’s condi-

tion.

Despite these medical opinions, in October, 1985, the

Mazurs commenced a civil action in the Court of Com-

mon Pleas, Philadelphia County, Pennsylvania against

Merck alleging that M-M-R II was defective and that it

caused Lisa to develop SSPE. Based on diversity of citi-

zenship, Merck removed the action to the United States

District Court for the Eastern District of Pennsylvania.

Almost four years later, Merck filed a Motion for

Summary Judgment. On June 29, 1990, the District Court

granted the motion in part and denied it in part. Mazur v.

Merck & Co., 742 F. Supp. 239 (E.D. Pa. 1990). The District

Court denied the motion with respect to the federal pre-

emption and statute of limitation defenses. Id. at 266. It

held, however, that under the “learned intermediary

rule”, Merck had a duty to provide warnings only to the

health care profession and that the “mass immunization”

exception to that rule did not apply_in this case. Id. at

255-56. The District Court further found that the package

circular was adequate in-a number of respects, but

reserved judgment on certain other “duty to warn”

issues. Id. at 266.

Following sixty days of additional discovery on the

duty to warn claims, Merck filed a Supplemental Motion

for Summary Judgment.? On June 27, 1991, the District

Court granted Merck’s moticn. Mazur v. Merck & Co., 767

? The parties stipulated in writing that Merck would not

seek summary adjudication on the issue of medical causation,

that the Mazurs had no evidence that M-M-R II was defectively

designed or manufactured, and that all of the Mazurs’ claims

were predicated on the allegation that Merck failed to provide

adequate warnings.

F. Supp. 697 (E.D. Pa. 1991). The District Court held that

Merck met its duty to warn by providing an adequate

warning to a “learned intermediary” (the nurse who

administered the program at Lisa’s school), and, in the

alternative, that Merck exercised reasonable care to

inform users of the risks of its vaccine by contractually

obligating the CDC to warn vaccinees directly. Jd. at 715.

On May 20, 1992, the Court of Appeals for the Third

Circuit affirmed the District Court’s decision to grant

summary judgment. In an opinion by the Honorable

Anthony J. Scirica, the Court of Appeals, after an analysis

of existing Pennsylvania law, held that a vaccine manu-

facturer’s duty to warn is judged under the “reasonable-

ness” standard of Section 388 of the Restatement (Second)

of Torts, and that Merck satisfied its duty by providing to

the CDC adequate information concerning the risks of

Merck’s vaccine and by contractually obligating that

agency to communicate the risks to vaccinees. Mazur v.

Merck & Co., Inc., 964 F.2d 1348, 1353-55, 1369 (3d Cir.

1992).3

On June 18, 1992, the Mazurs’ petition for rehearing

and rehearing en banc was denied by the Court of

Appeals.

3 The Court of Appeals, however, disagreed with the Dis-

trict Court’s conclusion that Nurse Frederick acted as a “learned

intermediary”. 964 F.2d at 1360. Because the court concluded

that Merck satisfied any duty it had to warn users directly, it

was not necessary to decide whether the Pennsylvania Supreme

Court would adopt the “mass immunization” exception to the

“learned intermediary” rule. Nonetheless, the Court of Appeals

concluded for purposes of its analysis that the “mass immuniza-

tion” exception applied in this case. Id. at 1361 n.20, 1364, 1369.

PETITIONERS’ WRIT OF CERTIORARI

SHOULD BE DENIED

The only issue raised by the Petition is whether the

Court of Appeals correctly interpreted and applied the

products liability and negligence laws of the Common-

wealth of Pennsylvania. The Petition thus raises only

state law questions on which this Court has traditionally

deferred to the Courts of Appeals. Moreover, the lower

court’s decision was manifestly correct in its application

of estavlished Pennsylvania law.

There is no proper basis for the Petition for Writ of

Certiorari. This is not a case involving a federal question.

Nor is this a situation where a court of appeals has

rendered a decision in conflict with the decision of

another court of appeals on the same matter. The Court of

Appeals has not departed from the accepted or usual

course of judicial proceedings, thereby calling for an

exercise of the Supreme Court’s power of supervision.

Sup. Cr. Rute 10. In short, there are no special and impor-

tant reasons supporting the request for certiorari in this

case.

A. The Petition Raises Only State Law Questions

On Which This Court Has Traditionally

Deferred To The Courts Of Appeals; Moreover,

The Court of Appeals Correctly Applied Penn-

sylvania Law.

This Court has traditionally deferred to lower federal

courts on questions of state law unless the decision is

clearly erroneous or there is plain error. Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 500 n.9 (1985).4 As the

Court stated in Haring v. Prosise, 462 U.S. 306 (1983):

We emphasize, however, that, standing alone, a

challenge to state-law determinations by the

Court of Appeals will rarely constitute an

appropriate subject of this Court’s review.

Id. at 314 n.8.

The primary reason for this deference is that federal

judges who deal regularly with state law questions are in

the best position to determine how local state courts

would dispose of comparable issues. Butner v. U.S., 440

U.S. 48, 58 (1979). In fact, this Court has accepted inter-

pretations of state law in which the district court and

court of appeals have concurred even if an examination

of the state law issue without such guidance might have

justified a different conclusion. See Haring, 462 U.S. at 314

n.8; Bishop v. Wood, 426 U.S. 341, 346 (1976).

The Petition for Certiorari involves only the law of

Pennsylvania. A Pennsylvania District Court Judge of

long experience and three Circuit Judges whose circuit

includes Pennsylvania concurred in the application of

Pennsylvania law which Petitioners have challenged.

Nothing in the Petition properly supports a request that

4 In 1980, the Court restated the considerations governing -

review on certiorari in Rule 17.1, a predecessor to the current

Rule 10. When revising the Rule, the Court deleted a long-stand-

ing provision that had previously listed a decision by a Court of

Appeals resolving “an important state or territorial question in

a way in conflict with applicable state or territorial law”, as a

reason to consider granting certiorari. STERN, GREssMAN &

SHAPIRO, SUPREME Court Practice at 212 (6th ed. 1986).

ee ee

this Court review the unanimous interpretation of state

law by four lower court federal judges. Indeed, not only

is the Court of Appeals’ decision thoughtful and well-

reasoned, but it also faithfully follows the holdings of the

Pennsylvania Supreme Court.

Petitioners’ statement that the Court of Appeals had

“no clear precedent” on which to base its opinion, Pet.

For Writ OF Cert. at 8, is quite simply untrue. On the

contrary, the Court of Appeals’ decision was based on

long-standing and consistent holdings of the Pennsy]l-

vania Supreme and Superior Courts that dealt clearly and

explicitly with the parameters of a pharmaceutical manu-

facturer’s duty to warn.>

The seminal case is the Pennsylvania Supreme

Court’s decision in Incollingo v. Ewing, 282 A.2d 206 (Pa.

1971). There, the Pennsylvania Supreme Court explained

that ordinarily Pennsylvania follows Section 402A of the

Restatement (Second) of Torts which imposes strict lia-

bility on the manufacturer of a product sold in a defective

condition unreasonably dangerous to the user or con-

sumer. The Court held, however, that these principles of

Section 402A do not apply to “failure to warn” claims

involving prescription drugs, which are “unavoidably

unsafe products” within the meaning of comment k to

Section 402A. Instead, for such products, the standard of

care as defined by Section 388 of the Restatement is

> Reference is primarily made to the Court of Appeals’

decision, particularly at 964 F.2d at 1353-55, 1364-66, for the

court’s reasoning on this issue. A brief summary, however, is

given against the backdrop of certain arguments made by Peti-

tioners.

10

applied. Under this section, the manufacturer has a duty

to exercise “reasonable care” to inform those for whose

use the article is supplied of the facts that make it likely

to be dangerous. Incollingo, 282 A.2d at 220 n.8. See also

964 F.2d at 1353-55. Thirteen years later, the Pennsylvania

Supreme Court reaffirmed the Incollingo holding in Bald-

ino v. Castagna, 478 A.2d 807, 810 (Pa. 1984).

The Court of Appeais believed that there was nothing

unclear or unsettled concerning the applicable Pennsyl-

vania law and stated that “because the M-M-R II vaccine

is an ‘unavoidably unsafe product’, we believe Incollingo

is controlling here.” 964 F.2d at 1354. The Court of

Appeals further recognized that “at least in cases involv-

ing ‘unavoidably unsafe products’, the Pennsylvania

Supreme Court has not distinguished between a prescrip-

tion drug manufacturer’s duty to warn in negligence

versus strict liability.” Id. at 1355 n.8.

Petitioners urge here, as they did below, that Incol-

lingo and Baldino are inapposite because they involved

negligence rather than strict liability causes of action.

However, as the Court of Appeals noted, the court’s

reasoning in Incollingo was based on its analysis of the

proper rules under section 402A with regard to

“unavoidably unsafe products,” not on the absence in

that case of a strict liability failure to warn claim.® This

has certainly been the understanding of the Pennsylvania

6 Significantly, not one of the cases cited by Petitioners in

support of their proposition that under Pennsylvania law negli-

gence concepts have no place in strict liability failure to warn

analysis involves prescription drugs or other “unavoidably

unsafe products” as defined by comment k. -

a a

11

Superior Court, which has uniformly applied the Incol-

lingo/Baldino holding in numerous cases involving a phar-

maceutical manufacturer’s duty to warn. See White v.

Weiner, 562 A.2d 378, 384 (Pa. Super. Ct. 1989), aff’d

without op., 583 A.2d 789 (Pa. 1991); McDaniel v. Merck,

Sharp & Dohme, 533 A.2d 436, 445-46 (Pa. Super. Ct. 1987),

Makripodis v. Merrell-Dow Pharm. Inc., 523 A.2d 374, 377

(Pa. Super. Ct. 1987). See also Hahn v. Richter, No. 00019,

Phila., 1992 Pa. Super. LEXIS 275 (Pa. Super. Ct., Feb. 13,

1992), reh’g granted, May 1, 1992. It is noteworthy that the

Petition for Certiorari does not cite to a single failure to

warn case involving a prescription drug or “unavoidably

unsafe product” that contradicts the law as applied by

the Court of Appeals.

The Court of Appeals also applied Section 388 of the

Restatement in deciding whether Merck reasonably relied

on the CDC’s contractual guarantee that M-M-R II would

be administered by a physician or only after a meaning ful

warning had been provided to the vaccinees or their

parents. In evaluating Merck’s duty to warn under Sec-

tion 388, the court turned to the comments to this section

that provide that a manufacturer may meet its duty to

warn by entrusting the communication of that warning to

a third person.” 964 F.2d at 1367-69. Accordingly, the

” Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 903 (Pa.

1975), is inapposite as it did not involve the application of duty

to warn concepts to an “unavoidably unsafe product”.

Petitioners also cite to the “mass immunization” rule for the

Proposition that Merck had a duty to warn directly vaccinees or

their parents. Pet. For Writ Or Cert. at 16. Petitioners misstate

that rule. The “mass immunization” exception provides that “it

is the responsibility of the manufacturer to see that warnings

12

Court of Appeals correctly concluded, based on estab-

lished law, that Merck had satisfactorily fulfilled its duty

to warn.®

B. The Court Of Appeals Acted Correctly In

Deciding The Case Before It On The Basis Of

Settled Pennsylvania Law.

Petitioners raise an “abstention” issue for the first

time in their Petition for Writ of Certiorari. “Where issues

are neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.”

Adickes v. Kress & Co., 398 U.S. 144, 147 n.2 (1970). Only in

exceptional circumstances will such issues be reviewed.

Youakim v. Miller, 425 U.S. 230, 234 (1976). Compare City of

Houston, Texas v. Hill, 482 U.S. 451, 467 n.16 (1987). Merck

seriously questions whether Petitioners should be able to

raise this issue at this time. However, even if Petitioners

reach the consumer, either by giving warning itself or by oblig-

ating the purchaser to give warning.” Davis v. Wyeth Laborato-

ries, 399 F.2d 121, 131 (9th Cir. 1968). This is exactly what Merck

did here. In effect, Petitioners asked the courts below to adopt

“half” of the “mass immunization” exception.

8 Because the Court of Appeals held that Merck satisfied its

duty to warn as a matter of law, it did not reach the question of

proximate causation. 964 F.2d at 1352 n.3. Petitioners have

always contended that Lisa was vaccinated over her parents’

objections. If, in fact, Lisa’s parents never consented to her

vaccination, it is difficult to conceive how any alleged failure to

warn by Merck could have proximately caused Lisa’s vaccina-

tion or her injuries. In any event, Merck does not concede that

M-M-R II, in fact, caused Lisa Mazur’s SSPE.

13

could properly raise the issue before this Court, their

arguments are meritless.

It is the duty of a federal court sitting in diversity to

decide questions of state law in rendering judgment.

Abstention from this duty is the exception, not the rule. It

is an extraordinary, limited and narrow exception. Colo-

rado River Water Conservation Dist. v. U.S., 424 U.S. 800

(1976). As this Court determined in Meredith v. City of

Winter Haven, 320 U.S. 228 (1943), it is inappropriate for a

federal court sitting in diversity to defer or decline its

decision in a wholly state law case merely because the

answers to questions of state law are difficult or uncer-

tain. Id. at 234-35. In this case, the questions of state law

are not even “difficult” or “uncertain.” The state law is

settled. See supra pp. 7-11. There is no reason, then, to

require the Court of Appeals to “defer” making its deci-

sion on a case that is properly before it.

Petitioners seek to deviate from this Court’s estab-

lished policies, thereby creating a new procedure on how

and when federal courts sitting in diversity should render

judgment. Petitioners ask this Court to require the Court

of Appeals to wait for a ruling on a similar issue from a

state intermediate appellate court, when the Pennsyi-

vania Supreme Court already has squarely addressed the

same issue. In support of such a request, Petitioners rely

on the possibility that the Superior Court en banc might

overturn the panel’s decision in Hahn v. Richter, No.

00019, Phila., 1992 Pa. Super. LEXIS 275 (Pa. Super. Ct.,

Feb. 13, 1992), reh’g granted, May 1, 1992, going so far as

14

to predict its reversal.? Assuming, arguendo, that the

Superior Court did overturn Hahn, that decision would

not be binding on the Court of Appeals. Commissioner v.

Estate of Bosch, 387 U.S. 456, 465 (1967). Would the Court

of Appeals then be required to stay further its decision

until disposition of the inevitable appeal to the Pennsyl-

vania Supreme Court? The same argument as is here

made by Petitioners could be urged to require a federal

court sitting in diversity to “defer” its decision whenever

a case involving similar issues is pending, at any stage, in

the state court system. The adoption of such arguments

would unduly delay federal court decision-making and

interfere with the proper exercise of diversity jurisdic-

tion. a

The Court of Appeals did not abuse its discretion in

deciding the case before it based on what it believed was

controlling authority by the Pennsylvania Supreme

Court. Indeed, the Court of Appeals was obligated to

decide rather than defer the case.!°

® Petitioners’ prediction as to the Superior Court’s decision

is speculative at best. The majority in Hahn applied the same

analysis and reached the same conclusion on the duty to warn

issue as the District Court and the Court of Appeals. Further-

more, a grant of rehearing by the Superior Court gives abso-

lutely no indication as to what the Pennsylvania Supreme Court

might decide.

10 Similarly, traditional doctrines of abstention do not

afford any relief to Petitioners. The present case involves state

common law claims and the state law to be applied is settled.

There is no federal constitutional question that might be mooted

or presented in a different posture by a state court determina-

tion of pertinent state law. See, e.g., Railroad Comm'n of Texas v.

Pullman Co., 312 U.S. 643 (1941). Federal jurisdiction in this case

a

15

C. The Court of Appeals’ Decision, Correctly

Applying Pennsylvania Law, Will Not Preclude

Future Plaintiffs From Obtaining Proper

Redress.

It is the judicial function to decide whether the par-

ticular plaintiff, on the particular facts before the court, is

entitled to redress from the particular defendant. Draw-

ing all inferences against respondent Merck, the Court of

Appeals, as discussed above, applied established Penn-

sylvania law, and determined that Petitioners were not

entitled to recovery for their claims on the specific facts

of this case. The practical effect of the Court of Appeals’

decision is no different from that of any other court

decision.

Petitioners’ assertion that the Court of Appeals’ deci-

sion forecloses any redress for possible claims from

future vaccine-related injuries is otherwise flawed. In

1987, Congress passed the National Childhood Vaccine

Injury Program (the “Act”), 42 U.S.C. §§ 3U0aa-10, et seq.

The Act provides a no fault system of compensation in

has not been invoked to interfere or restrain the state court from

proceeding in litigation with the same parties on the same

issues. See, e.g., Younger v. Harris, 401 U.S. 37 (1971). Nor does

the case involve a difficult question of state law which bears on

policy problems in which the federal court’s action would dis-

rupt the state’s interests. See, e.g., Colorado River Water Conserva-

tion Dist. v. U.S., 424 U.S. 800 (1976); Louisiana Power & Light v.

Thibodaux, 360 U.S. 25 (1959). This case also does not involve

parallel state and federal suits between the same parties where

exceptional circumstances might justify a stay or dismissal of

the federal action. See, e.g., Moses H. Cone Hospital v. Mercury

Constr. Corp., 460 U.S. 1 (1983).

16

which the claimant need not demonstrate that the manu-

facturer was negligent or that the vaccine was defective.

Furthermore, it reduces the difficulty of establishing cau-

sation. Id. at § 300aa-11. Under the Act compensation may

be available for unreimbursable expenses, pain and suf-

fering, loss of earnings, reasonable attorneys’ fees, and

other costs incurred in pursuing a claim. Id. at § 300aa-15.

Petitioners elected not to present a claim under the Act

and attempted to seek recovery through the civil tort

system. Others remain free to seek redress under the Act.

o

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Dated: October 14, 1992 Epwarp M. Posner*

MicHaEL O’S. FLoyp

WILLIAM V. ROEDER

DriNKER BippLe & REATH

Philadelphia National

Bank Building

1345 Chestnut Street

on Serer Philadelphia, PA

KENNETH C. FRAZIER 19107-3496

JOANNE LAHNER (215) 988-2700

Merck & Co., INc.

126 East Lincoln Ave. Attorneys for Respondent

P.O. Box 2000 Merck & Co., Inc.

Rahway, NJ 07065 *Counsel of Record

eT ©

App. 1

APPENDIX

Rule 29.1 Listing

Merck & Co., Inc. Subsidiaries:

Banyu Pharmaceutical Co., Limited

A.S.C. Service Co., Ltd.

Nippon Merck-Banyu Co., Limited

Merck & Co., Inc. Joint Ventures:

Amrad Pharmaceuticals Pty. Ltd.

The du Pont Merck Pharmaceutical Company

Istituto di Ricerche di Biologia Molecolare S.p.A.

Johnson & Johnson Merck Consumer Pharmaceuticals

Company

Laboratories Prosalud, S. de R.L. de C.V.

Maquifar S. de R.L. de C.V.

Prodome Quimica e Farmaceutica Ltda.