No. 3-01-0624

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

KRYSTAL K. DICKEY, Mother and    ) Appeal from the Circuit Court

Next Friend of Gina M. Dickey,   ) for the 14th Judicial Circuit

a Minor,					   ) Whiteside County, Illinois

						   )

	Plaintiff-Appellant,	   )

						   )	No. 00-L-26

	v.					   )

						   )

CONNAUGHT LABORATORIES, INC.,	   )	Honorable Dan Dunagan

						   )	Judge, Presiding

	Defendant-Appellee.		   )

_________________________________________________________________

	Modified Upon Denial of Rehearing

JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

	Krystal K. Dickey, as mother and next friend of plaintiff,

Gina M. Dickey, filed a complaint in Illinois state court seeking

recovery against defendant, Connaught Laboratories, Inc., for

injuries she suffered from the administration of diphtheria,

tetanus and pertussis (DTP) vaccine.  In response, defendant

filed a motion for summary judgment.  The trial court granted

defendant's motion.  Plaintiff now appeals.  We affirm.

FACTS

	On June 23, 1994, Gina Dickey was born as a healthy, normal

baby.

	On October 11, 1994, Gina received an administration of DTP vaccine.  Later on that day, she began to suffer jerking spasms

lasting between 5 to 10 minutes each.  Her condition continued to

worsen.  On February 24, 1995, Dr. Taravath, a pediatric

neurologist, diagnosed plaintiff with a vaccine encephalopathy

resulting in developmental delay.  

	On October 24, 1997, plaintiff's mother, as her next friend,

filed a petition on her behalf in the United States Court of

Federal Claims (claims court), seeking compensation for

plaintiff's injuries pursuant to the National Childhood Vaccine

Injury Act of 1992 (Vaccine Act or Act).  (42 U.S.C. §300 et seq. (1994)).  On February 26, 1998, the claims court dismissed the

petition as untimely, stating that pursuant to section 300aa-

16(a)(2) of the Vaccine Act, no petition seeking compensation for

a vaccine-related injury could be filed after 36 months from the

date of the occurrence of the first symptom of injury.  

	On April 1, 1998, the claims court entered a judgment

dismissing the petition as untimely.  On April 28, 1998, pursuant

to section 300aa-21(a), plaintiff filed an election to file a

civil action.

	On October 21, 1999, plaintiff filed a complaint in state

court, seeking recovery from defendant for the injuries she

suffered from the administration of the DTP vaccine.  Defendant

moved for summary judgment, asserting that the action was time-

barred because of plaintiff's failure to file her petition in the

claims court within 36 months from the date of the first symptom

of her vaccine-related injury.  The trial court granted summary judgment against plaintiff, dismissing her complaint.  

	On appeal, plaintiff presents the issue of whether the

Vaccine Act preempts state law, namely, Illinois's statute of

limitations.  The instant case is one of first impression, as no

other Illinois court has yet ruled on this issue.

ANALYSIS

Preemption

	Plaintiff contends that the Vaccine Act does not preempt

state law, based upon the language of the federal Vaccine Act,

its legislative history, and the relevant case law.  She contends

that the trial court erred in granting defendant's motion for

summary judgment because the federal Vaccine Act cannot be

applied to bar Illinois's statute of limitations for minors.

	We affirm a trial court's decision to grant summary judgment

if the pleadings, depositions, affidavits, and admissions show

there are no genuine issues of material fact remaining and that

the motion was properly granted as a matter of law.  Our review

is de novo.  Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 708 N.E.2d 1219 (1999).

	Plaintiff is correct that the Vaccine Act does not preempt

state law.  Federal law can preempt state law under the supremacy

clause in three circumstances: (1) where Congress has expressly

preempted state action (express preemption); (2) where Congress

has implemented a comprehensive regulatory scheme in an area,

thus removing the entire field from state realm (implied field

preemption); or (3) where state action actually conflicts with federal law (implied conflict preemption).  Sprietsma v. Mercury Marine, 197 Ill. 2d 112, 757 N.E.2d 75 (2001).  

	Here, none of the three preemption situations exists. 

Express preemption exists where Congress specifically states that

a particular federal law preempts a certain state law. 

Sprietsma, 197 Ill. 2d at 118, 757 N.E.2d at 79.  There is no express preemption in this case, because Congress has not

specifically stated in the Vaccine Act that the Act will preempt

state statutes of limitations. 

	Neither is there any implied conflict preemption.  Implied

conflict preemption exists where it is impossible for a private

party to comply with both state and federal requirements, or

where state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress. 

Sprietsma, 197 Ill. 2d at 120, 757 N.E.2d at 81.  In this instance, the federal Vaccine Act does not conflict with Illinois

procedure.  Rather, it is designed to work in conjunction with

state law.  The Vaccine Act provides a federal no-fault system

for compensating vaccine-related injuries or death by

establishing a claim procedure involving the United States Court

of Federal Claims and special masters.  42 U.S.C. §300aa-12

(1994).  Whether or not compensation is awarded, the Act provides

that the petitioner may make an election either to accept the

judgment or to file a state civil action for damages for such

injury or death.  42 U.S.C. §300aa-21(a) (1994). 

	The final category, implied field preemption, is also not present.  Implied field preemption occurs where Congress has

implemented a comprehensive regulatory scheme in an area, thus

removing the entire field from the state realm.  Sprietsma, 197 Ill. 2d at 115, 757 N.E.2d at 78.  Here, the Vaccine Act does not

occupy the entire field of vaccine manufacturing regulation.  As

we have previously discussed, the Act specifically allows

petitioners to pursue alternative state remedies.  

	Therefore, we agree with plaintiff that the federal Vaccine

Act does not preempt state law.  However, Congress, without a

finding of preemption, may mandate that a party first timely file

with an administrative agency before the party may proceed to a

state civil action.  See McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989) (no preemption violation where Federal Tort Claims Act (28 U.S.C.A. §§1346(b), 2675(a)) requires a claimant

timely present the claim to the appropriate federal agency as a

jurisdiction prerequisite to filing suit).  Here the Vaccine Act

created a panel of special masters appointed by the judges of the

court of claims to review petitions, conduct all proceedings, and

render decisions.  Decisions may be reviewed, upon request of a

party, by the court of claims.  In these circumstances, we see no

reason why McAfee could not be appropriately extended to the Vaccine Act’s procedural scheme.

	Turning to the merits of plaintiff’s argument, in order to

ascertain the correct application of the federal act, we look to

the rules of statutory construction.  The primary rule of

statutory interpretation and construction, to which all other canons and rules are subordinate, is to ascertain and effectuate

the true intent and meaning of the legislature.  In interpreting

a statute that has not yet been judicially interpreted, a court

must give the legislative language its plain and ordinary

meaning.  If the language of the statute is plain, clear and

unambiguous, and if the legislative intent can be ascertained

therefrom, it must prevail and will be given effect by the courts

without resorting to other aids of construction.  Trigg v. Sanders, 162 Ill. App. 3d 719, 515 N.E.2d 1367 (1987).

	Here, the plain language of the Act demonstrates that

injured parties are required to file their claim within the Act's

statutory time allowances before the party may bring a separate

action in state court.  Section 300aa-16(a)(2) explains that:

"[I]f a vaccine-related injury occurred as a result of the

administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the

expiration of 36 months after the date of the occurrence of the

first symptom or manifestation of onset or of the significant

aggravation of such injury[.]"  (Emphasis added.)  42 U.S.C. §300aa-16(a)(2) (1994).  

	The right to litigate the matter in state court is also lost

if the injured party fails to follow the federal statutory

guidelines.  Section 300aa-11(a)(2)(A) states that "[n]o 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 *** 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."  (Emphasis added.) 42 U.S.C.

§300aa-11(a)(2)(A) (1994).  Section 300aa-11(a)(2)(B) explains

further that, "[i]f a civil action which is barred under

subparagraph (A) is filed in a State or Federal court, the court

shall dismiss the action."  42 U.S.C. §300aa-11(a)(2)(B) (1994). 

We believe this language clearly and unambiguously prohibits both

an action and a remedy in state or federal court unless there has

been a timely filing with the claims court.

	In this case, pursuant to the plain language of the federal

act, we find that the trial court was correct in its decision to

summarily dismiss plaintiff's state claim against defendant for

its production of DTP vaccine.  Plaintiff experienced her first

symptoms of DTP vaccine related injury on October 11, 1994. 

Pursuant to section 300aa-16(a)(2), she had until October 11,

1997, to file a petition for compensation in the federal claims

court.  Plaintiff's petition was not filed until October 24,

1997.  Thus, the action was appropriately dismissed when the

claim was asserted in state court on October 21, 1999.  

	As a counterargument, plaintiff cites to two cases, SchaferSchaefer v. American Cyanamid Co., 20 F.3d 1 (1st Cir. 1994), and Cook v. Children's Medical Group, 756 So. 2d 734 (Miss. 1999), in support of her contention that a party whose petition pursuant to the

Vaccine Act is time-barred in the federal claims court still

possesses a viable action in state court, so long as the action

complies with the state's statutory limitations period. 

	However, neither case can be appropriately applied in this

instance.  SchaferSchaefer only addresses the question of whether the Act applies to family members of a person who has been injured by certain vaccines.  SchaferSchaefer, 20 F.3d at 1.  Contrary to plaintiff's counterargument, nowhere in Schaefer is there any discussion concerning whether the child’s claim for damages

arising from the administration of DTP vaccine still exists in

state court despite his or her failure to meet the federal

Vaccine Act's filing limitations requirements.  

	Cook itself contradicts plaintiff's counterargument.  Although Cook acknowledges that section 300aa--16(a)(2) may be equitably tolled in situations where the petitioner has been

delayed in filing through fraud or misrepresentation, Cook explains that outside of such situations, an action time-barred

by the federal Vaccine Act will not be saved by a more generous

state statutory limitations period.  See Cook, 756 So. 2d at 742. 

	In this instance, no allegations of fraud or

misrepresentation have been raised.  Hence, Thus, as we have previously

discussed, plaintiff's action was appropriately dismissed by the

state court because of her failure to file a petition in the

federal claims court within 36 months from the date of the

occurrence of the first symptom of injury resulting from the administration of the DTP vaccine.

	Plaintiff also contends that the Vaccine Act contravenes

Illinois's special protection of minors' rights.  She maintains

that the Vaccine Act's three-year statute of limitations violates

public policy because its limitations period is more restrictive

than the Illinois statute of limitations, which allows minors to

bring a tort action two years after attaining the age of 18 (735

ILCS 5/13-211 (West 1998)).

	However, upon review of the relevant case law, we find that

Congress did consider public policy in its drafting of the

Vaccine Act.  Currently, McDonald v. Lederle Laboratories, 341 N.J. Super. 369, 775 A.2d 528 (2001), is apparently the only

court in the United States to discuss whether, pursuant to the

Vaccine Act, the failure to timely petition in the federal claims

court bars the pursuit of a subsequent state tort action in spite

of the state's differing and longer statutory limitations period. 

In holding that it does, the New Jersey superior court explained

the purposes of the Vaccine Act.  One of those purposes was to

keep manufacturers of vaccines in the market.  Vaccine

manufacturers had presented Congress with evidence that the costs

related to tort insurance and defense of civil litigation had

begun to dwarf their vaccine production revenues.  Congress was

concerned with the consequences resulting from a loss of

manufacturers.  The withdrawal of even a single manufacturer

would present the very real possibility of vaccine shortages,

and, in turn, increasing numbers of unimmunized children, and, perhaps, a resurgence of preventable diseases.  See McDonald v. Lederle Laboratories, 341 N.J. Super. at 375-77, 775 A.2d at 532- 33. 

	Congress consequently sought to lower the costs associated

with complex tort procedures by providing fairly generous, more

easily obtainable awards for vaccine-related injuries, thereby

discouraging victims from bringing traditional tort actions. 

Congress focused on affording an injured party an expedited

procedure, and so it created the no-fault federal judgment system

to encourage the use of the program and discourage utilization of

the traditional tort-law avenues which, unlike the program,

required proof of causation, injury, negligence and defect, and

held out the prospect of protracted litigation and settlement

negotiations with manufacturers.  Congress wanted victims to

first try the program with the expectation that its results would

be accepted.  Unless a petitioner was required to fully

adjudicate a claim, pursuant to the program's expedited

procedures, Congress's objectives would not be realized.  Thus,

the Act expressly warns that, if a claim is not filed with the

program within its time restrictions, a victim's traditional tort

claim will not be saved by a state statute of limitations that

extends beyond the limitation period prescribed by the Act.  See

McDonald, 341 N.J. Super. at 377, 775 A.2d at 533.

	We agree with this analysis of the Act and find no violation

of Illinois's public policy.  The trial court's order granting

summary judgment in favor of defendant and against plaintiff was correct, and accordingly, we affirm its decision.

	In seeking rehearing, plaintiff cited the recent Illinois

Supreme Court decision in Belleville Toyota, Inc. v. Toyota Motor Sales, USA, Inc., 199 Ill. 2d 325, 770 N.E.2d 177 (Rehearing Denied, May 29, 2002).  Plaintiff did not explain what

significance she believed that case bore to our decision, and we

have been unable to discern its relevance.  Neither the trial

court’s order nor this court’s opinion was based on a lack of

jurisdiction.  Indeed, both courts exercised jurisdiction in

finding plaintiff’s claim barred by her failure to timely file

her petition with the claims court and thereby timely exhaust her

statutory remedies.

CONCLUSION

	In light of the foregoing analysis, we affirm the trial

court's decision to summarily grant defendant’s motion for summary judgment

and dismiss plaintiff's state claim against defendant for its part in the

manufacture money

damages for injuries resulting from the administration of DTP

vaccine.

	Affirmed.

	SLATER, J., concurs.  BRESLIN, J., dissents. 

	No. 3--01--0624

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

KRYSTAL K. DICKEY, a Mother	)	Appeal from the Circuit Court

and Next Friend of GINA M.	)	for the 14th Judicial Circuit,

DICKEY, a minor,			)	Whiteside County, Illinois

	Plaintiff-Appellant,	)

						)

	v.					)	No. 00-L-26

						)

CONNAUGHT LABORATORIES, INC.,	)	Honorable Dan Dunagan	

	Defendant-Appellee.		)	Judge, Presiding

_________________________________________________________________

	JUSTICE BRESLIN, dissenting:

_________________________________________________________________

	I respectfully dissent because I do not agree with the majority's conclusion that Krystal's the plaintiff's right to file her state

law claim was barred by a failure to timely file a petition under the Vaccine Act.

	The Vaccine Act does not explicitly provide that plaintiffs

are prohibited from filing their actions in state court if they do

not first timely file a petition under the Act.  The Act states

that once the Court of Federal Claims (Court of Claims) has entered

a judgment, plaintiffs must either elect to accept the award and

formally abandon their tort rights or reject the award and proceed

by way of civil action.  See 42 U.S.C.A. §§ 300aa-11(a)(2)(A)(i) &

300aa-21(a) (West 2002).  The Act does not state, however, that if

a petition is not filed within the applicable statutory period, a

plaintiff is barred forever from seeking a state law remedy.  See Cook v. Children's Medical Group, 756 So. 2d 734 (2000) (determining that if a petition under the Vaccine Act is dismissed

as being time-barred in the Court of Claims, a plaintiff should be

allowed to bring suit under state law).  

	Although the majority correctly notes that the Vaccine Act

does not preempt state law, it concludes that the Act mandates that

plaintiffs first file their actions with the Court of Claims. 

While the Act creates an additional method for plaintiffs to

recover for injuries due to the administration of the DTP vaccine,

it does not explicitly restrict the rights of plaintiffs to pursue

traditional state tort remedies.  See 42 U.S.C.A. §§ 300aa-

11(a)(2)(A) & 300aa-21(a) (West 2002).

	Though the filing of Krystal's the plaintiff's petition in this case was

untimely, Krystal she should still be able to pursue a civil action in

state court because she substantively complied with the requirements of the Act.  The Act allows a plaintiff to bring civil

actions where the Court of Claims "has issued a judgment *** on

such petition." 42 U.S.C.A. § 300aa-11(a)(2)(A)(i)(I) (West 2002). 

Judgment is defined as "[t]he final decision of the court resolving

the dispute and determining the rights and obligations of the

parties."  Black's Law Dictionary 842 (6th ed. 1990).  In my view,

the Court of Claims' dismissal of Krystal's this Vaccine Act claim was a

final judgment that triggered her the plaintiff's right of election to

file in state court.  See Evans v. Lederle Laboratories, 167 F.3d 1106, 1109 n.4 (1999) (determining that the Vaccine Act does not

require a judgment on its merits).

	Furthermore, a consideration of public policy supports a

finding that the Vaccine Act does not prohibit Krystal Dickey, as

mother and next friend of minor, Gina Dickey, from filing  an

action in state court without first pursuing a claim under the

Vaccine Act.  As noted by the majority, minors are given special

protection for their legal rights.  See, for example, 735 ILCS

5/13-211 (West 2000) (allowing minors to file tort actions within

two years after attaining the age of 21).  Moreover, courts have

been hesitant to deprive minors of their rights because of the

mistakes of their guardians or lawyers.  See Dachs v. Louis A. Weiss Memorial Hospital, 156 Ill. App. 3d 465, 509 N.E.2d 489 (1987) (stating that statutes of limitations consistently have been

construed to preserve a minor's right to a day in court).  As such,

the Vaccine Act should be interpreted to give the fullest

protection possible to minors so that they may obtain fair compensation as a result of vaccine-related injuries. 

	Accordingly, I disagree with the majority's conclusion because

the plain language of the Vaccine Act does not act to bar Krystal's

the plaintiff's right to file her action in state court and because

a consideration of public policy supports a determination that

minors are to be afforded the fullest possible rights to recover

for their vaccine-related injuries.