United States Court of Appeals

Fifth Circuit

FILED

March 23, 2006

Charles R. Fulbruge III

Clerk

In the United States Court of Appeals

For the Fifth Circuit

No. 02-60995

ROBERT EDGAR HOLDER, By and Through His Natural Parents and

General Guardians, Valley Holder and Brenda Holder; MATTHEW 

CLAYTON HOLDER, By and Through His Natural Parents and 

General Guardians, Valley and Brenda Holder,

Plaintiffs - Appellants,

v.

ABBOTT LABORATORIES, INC., ET AL.,

Defendants, 

ABBOTT LABORATORIES INC.; AMERICAN HOME PRODUCTS CORP., doing 

business as Wyeth, Wyeth Laboratories Inc., Wyeth-Ayerst, 

Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle 

Vaccines, and Lederle Laboratories; AVENTIS PASTEUR INC., 

Individually and as Successor in Interest to Connaught Laboratories, Inc.; 

BAXTER INTERNATIONAL, INC.; 

ELI LILLY AND COMPANY; GDL INTERNATIONAL INC.; 

GLAXOSMITHKLINE, Individually and as Successor in Interest to SmithKline Beecham

Corp.; KING PHARMACEUTICALS, INC.; MERCK & COMPANY, INC.;

SIGMA-ALDRICH, INC.; SPECTRUM CHEMICAL

MANUFACTURING CORP.; GREGORY S. MARANTO M.D.; RUSH

MEDICAL GROUP, Professional Association; JOHN DOES,

Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi
1

42 U.S.C. §§ 300aa-1 - 300aa-34.

2The non-resident defendants were Abbott Laboratories Inc.; American Home Products Corp.,

doing business as Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth

Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories; Aventis Pasteur, Inc., individually and

as successor in interest to Connaught Laboratories, Inc.; Baxter International, Inc.; Eli Lilly and

Company; GDL International, Inc; GlaxoSmithKline, individually and as successor in interest to

2

Before BENAVIDES, STEWART, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

This suit was filed in state court on behalf of children who suffered neurological

damage allegedly caused by vaccines containing Thimerosal that in turn contained mercury.

The case was removed to federal district court. That court denied the plaintiffs’ motion to

remand and then dismissed all claims against all defendants, relying on the National

Childhood Vaccine Injury Act of 1986.1 We affirm the district court’s denial of remand and

dismissal of claims relating to the manufacture of vaccines, but reverse the dismissal of the

claims relating to the manufacture of Thimerosal.

I

Mississippi residents Valley and Brenda Holder broughtsuit on behalf of their minor

childrenMatthew andClayton, alleging that the children sustained neurological damage from

mercury found in Thimerosal, a preservative contained in some childhood vaccines. The

Holders sued Mississippi residents Gregory S. Maranto, M.D. and Rush Medical Group,

P.A., who are alleged to have administered vaccines, and out-of-state defendants, who are

alleged to have manufactured, designed, marketed, or sold Thimerosal and vaccines that

contained Thimerosal.2 One of the out-of-state defendants removed the case to federal
SmithKline Beecham Corp; King Pharmaceuticals, Inc.; Merck & Company, Inc.; Sigma-Aldrich,

Inc.; Spectrum Chemical Manufacturing Corp.; and Medeva Pharmaceuticals, Inc.

3

See 28 U.S.C. §§ 1332, 1441(b), 1446.

4

42 U.S.C. §§ 300aa-1 - 300aa-34.

5

385 F.3d 568, 576 (5th Cir. 2004) (en banc) (holding that there is no improper joinder when

“the allegation of improper joinder rests only on a showing that there is no reasonable basis for

predicting that state law would allow recovery against the in-state defendant and that showing is

equally dispositive of all defendants”), cert. denied, 125 S. Ct. 1825 (2005).

3

district court based on diversity jurisdiction,3claiming, among other things, that the

Mississippi residents were improperly joined because the Holders’ claims against those

defendants are procedurally barred by the National Childhood Vaccine Injury Act.4 The

district court concluded that the Vaccine Act barsthe Holders’ claims against all defendants.

It denied the Holders’ motion to remand and then dismissed their claims in their entirety.

The Holders appealed, but the case was stayed for an extended period at the Holders’

request, then at the expiration of the stay, dismissed without prejudice to reinstatement, and

subsequently reinstated.

The issues presented are whether the district court erred in denying remand, and if

not, whether it erred in dismissing all the Holders’ claims against all defendants. The

Holders contend that even if the Vaccine Act forecloses the claims they have made, it

forecloses all claims against all defendants and that, based on this court’s decision in

Smallwood v. Illinois Central Railroad Co.,

5

the case must therefore be remanded to state

court. Alternatively, the Holders contend that their claims against three defendants are not

foreclosed by the Vaccine Act and although removal was proper, dismissal as to those three
6Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311 (5th Cir.

2002) (holding that an order denying remand based on improper joinder is reviewed de novo);

Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir. 2002) (stating that an

order granting a motion to dismiss is reviewed de novo).

7

343 F.3d 765 (5th Cir. 2003), cert. denied, 125 S. Ct. 1823 (2005).

8

408 F.3d 177 (5th Cir. 2005).

9

381 F.3d 501 (5th Cir. 2004).

10385 F.3d at 571.

11Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).

4

defendants was not. Our review of both the order denying remand and the order dismissing

all claims is de novo.

6

II

We do not write on a clean slate in this case. After the Holders appealed, this court

decided two other vaccine cases from the same district court, Collins v. American Home

Products Corp.7and McDonal v. Abbott Laboratories,

8

as well as a vaccine case from a

Louisiana district court, Moss v. Merck &Co.9 This court’s decision in Smallwood,resolving

issuessurrounding removal based on improperjoinder, also issued while the Holders’ appeal

was pending.10

The Smallwood decision provides the procedural framework for deciding whether

remand was required. This court has “recognized two ways to establish improper joinder:

‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to

establish a cause of action against the non-diverse party in state court.’”11 There is no

contention that the Holdersfraudulently pled jurisdictional facts. Our focus is on the second
12Id.

13Id. at 574.

14Id.

15Id. at 575;see also Rainwater v. Lamar Life Ins. Co., 391 F.3d 636, 638-39 (5th Cir. 2004)

(noting that the Smallwood “common defense” rule only applies if the defense is “dispositive of all

claims against all defendants”).

16408 F.3d at 184 (holding that claims against vaccine manufacturers were subject to the

Vaccine Act but claims against Thimerosalmanufacturers were not; therefore, the cause was properly

removed based on a fraudulent joinder theory).

5

means of establishing improper joinder, and Smallwood tells us the test is “whether the

defendant has demonstrated that there is no possibility of recovery by the plaintiff against

an in-state defendant, which stated differently meansthat there is no reasonable basisfor the

district court to predict that the plaintiff might be able to recover against an in-state

defendant.”12

Even if the defendant meets this burden, however, Smallwood teachesthat there is no

improper joinder if the basis for concluding that there can be no recovery from “the in-state

defendant necessarily compels the same result for the nonresident defendant.”13 In such a

case, “there is only a lawsuit lacking in merit,” not a showing that joinder was improper.14

Accordingly, “[w]hen the only proffered justification for improper joinder is that there is no

reasonable basis for predicting recovery against the in-state defendant[s], and that showing

is equally dispositive of all defendants rather than [dispositive of] the in-state defendants

alone,” then joinder was not improper.15 Our holdings in McDonal v. Abbott Laboratories16
17381 F.3d 501, 503-04 (5thCir. 2004) (holding that the Vaccine Act does not apply to claims

against Thimerosal manufacturers because Thimerosal is a vaccine component, not a vaccine or an

adulterant or contaminant within the meaning of the Vaccine Act).

1842 U.S.C. § 300aa-33(5) (defining “vaccine-related injury or death” as “an illness, injury,

condition, or death associated with one or more of the vaccinesset forth in the Vaccine Injury Table,

except that the term does not include [conditions] associated with an adulterant or contaminant

intentionally added to such a vaccine”); see also Moss, 381 F.3d at 503-04 (“It is settled that

Thimerosal, when used as a preservative, is a component of a vaccine rather than an adulterant.”).

1942 U.S.C. § 300aa-11(a)(1). It provides:

A proceeding for compensation under the Program for a vaccine-related injury or

death shall be initiated by service upon the Secretary and the filing of a petition

containing the matter prescribed by subsection (c) of this section with the United

States Court of Federal Claims. The clerk of the United States Court of Federal

Claims shall immediately forward the filed petition to the chief special master for

assignment to a special master under section 300aa-12(d)(1) of this title.

6

and Moss v. Merck & Co.17 compel the conclusion that the Vaccine Act forecloses the

present suit against the non-diverse defendants but not all the diverse defendants; therefore,

the Holders’ joinder of the non-diverse defendants was improper and remand to state court

was not warranted.

The parties have grouped the defendants into three categories. One group is the instate, non-diverse defendants who allegedly administered vaccines, the second group has

been called the “Vaccine Defendants,” because they allegedly manufactured vaccines, and

the third group has been called the “Thimerosal Defendants,” because they allegedly

manufactured Thimerosal, a preservative that was added to vaccines by the vaccine

manufacturers.

The Vaccine Act requires that claims “for a vaccine-related injury or death”18 must

first be brought in the United States Court of Federal Claims.19 Suit in state and federal
20Id. § 300aa-11(a)(2)(A). It provides:

No 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 froma vaccine-related injury or death associated

with the administration of a vaccine after October 1, 1988, and no such court may

award damages in an amount greater than $1,000 in a civil action for 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 and–

(i)(I) the United States Court of Federal Claims has issued a judgment under section

300aa-12 of this title on such petition, and

(II) such person elects under section 300aa-21(a) of this title to file such an action,

or

(ii) such person elects to withdraw such petition under section 300aa-21(b) of this

title or such petition is considered withdrawn under such section.

21Id. § 300aa-11(a)(2)(B) (“If a civil action which is barred under subparagraph (A) is filed

in a State or Federal court, the court shall dismiss the action.”).

22Id. § 300aa-11(a)(2)(A).

7

courts is barred unless and until there has been compliance with section 300aa-11(a)(2)(A)

of the Act.20 If a civil action barred under section 300aa-11(a)(2)(A) is brought in state or

federal court, the court is required to dismiss the action.21

The Holders concede that they have not filed a petition seeking compensation for the

injuries alleged in this action with the United States Court of Federal Claims. The question

is whether they were required to, and ifso, whether all their claims against all defendants are

“against a vaccine administrator or manufacturer.”22

At oral argument, the Holders argued for the first time that the Vaccine Act does not

bar their claims against the in-state defendants because their Complaint includes a claim for

loss of consortium suffered by the Holders in their individual capacity as parents, separate
23See Moss, 381 F.3d at 505 (holding that the Vaccine Act does not bar a parent’s claim for

loss of consortium suffered as a result of his child’s vaccine-related injuries).

24McDonal v. Abbott Laboratories, 408 F.3d 177, 185 (5th Cir. 2005) (“[T]he claims

asserting vaccine-related injuries brought against the resident Healthcare defendants and the

nonresident Vaccine defendants were required to have first been brought in the Vaccine Court.”). 

25Moss, 381 F.3d at 503-04 (“[Thimerosal’s] status as a vaccine component no more makes

Thimerosal a ‘vaccine’than doesthe inclusion of a piston under the hood of an automobile make that

object an ‘engine.’”).

26McDonal, 408 F.3d at 185; Moss, 381 at 503-04 (“Because Thimerosal is not a vaccine, its

producers are not vaccine manufacturers as that term is defined in the Vaccine Act . . ., so they are

not entitled to the protections of the Act’s restrictions on the filing of suits.”).

8

and apart from claims on behalf of their children.23 This argument is waived and in any

event lacks merit. Valley and Brenda Holder appear in the Complaint solely in a

representative capacity. Even when read liberally, the Complaint is devoid of any claim for

damages suffered by Valley and Brenda Holder in their individual capacities.

There can be no doubt that the non-diverse defendants who allegedly administered

vaccines and the Vaccine Defendants who allegedly manufactured vaccines come within

section 300aa-11(a), as this court held in McDonal.

24 But Moss held that Thimerosal is a

component of a vaccine, not a vaccine,25 and that claims against Thimerosal manufacturers

are not governed by the Vaccine Act.26 There is no requirement that redress for vaccinerelated injuries against Thimerosal manufacturers be pursued in accordance with section

300aa-11(a).

The Holders’ allegations in their complaint do not distinguish between the Vaccine

Defendants and the Thimerosal Defendants. The Holders alleged that each defendant was
27For example, the Holders allege in paragraph 35 of their pleadings that:

In researching, manufacturing, designing, modifying, testing, or failing to test,

warning or failing to warn, distributing, offering for sale, supplying, selling,

marketing, warranting, re-branding, manufacturing for others, packaging and

advertising the aforementioned mercury-containing products [i.e., Thimerosal

additives and vaccines], Defendants did so with conscious, willful and wanton

disregard for the safetyof persons who would be injected with the mercurywhich was

intentionally added to the vaccines. 

Compl. ¶ 35 (alteration added).

9

both a Thimerosal and a vaccine manufacturer or supplier.27 Because the Vaccine Act bars

all claims against the non-diverse defendants but not claims against the diverse defendants

regarding the manufacture, marketing and distribution of Thimerosal, the district court did

not err in denying the Holders’ motion to remand.

III

For the reasons we have just discussed, the district court had subject matter

jurisdiction because removal was proper and there was diversity jurisdiction. It is also clear

from the foregoing that the court did not err in dismissing the Holders’ claims against the

non-diverse defendants who administered vaccines. 

Asto the Vaccine Defendants, as we noted above, the Holders alleged that all diverse

defendants manufactured or distributed both vaccines and Thimerosal. But in their briefing

in this court, the Holders effectively concede that the Vaccine Defendants did not

manufacture or distribute Thimerosal separate and apart from vaccines and that, in light of
28The Holders’ Reply Brief states:

Pursuant to the McDonal decision, if this Court determines that the “common

defense” theory does not apply, the present action should be affirmed only as to the

“Vaccine Defendants” and remanded to the District Court as to the “Thimerosal

Defendants” (i.e. Eli Lilly and Co., Sigma-Aldrich, Inc., and Spectrum Chemical

Manufacturing Corp.) as they do not fall within any of the provisions of the Vaccine

Act.

* * *

In McDonal v. Abbott Laboratories, this Court held that the action wasto be affirmed

as to the “Vaccine Defendants”, but that the dismissal as to the “Thimerosal

Defendants” was reversed and remanded to the District Court. As the same

arguments were made both in the McDonal case and the present action, the analysis

of that case should be Followed [sic] if the Court determines that the “common

defense” theory is not applicable. [Citations omitted].

10

McDonal, dismissal as to those defendants was proper.28

However, the Vaccine Act does not bar the Holders’ claims against the Thimerosal

Defendants for the reasons previously discussed, and the district court erred in dismissing

the Holders’ claims against those defendants on that basis. Nevertheless, the Thimerosal

Defendants contend that there are independent grounds supporting dismissal of all claims

against them. Eli Lilly and Company filed a motion to dismiss asserting that it did not

manufacture any vaccines that could have been administered to the Holders’ children.

Sigma-Aldrich, Inc. asserts that it filed an answer to the Holders’ complaint denying that it

had ever been in the business ofmanufacturing vaccines. Spectrum Chemical Manufacturing

Corp. was granted additional time to file an answer, but the case was dismissed before it did

so. It asserts, however, that it would have denied manufacturing any vaccines. None of

these arguments supports dismissal on the record before this court.

First, none of these defendants has denied manufacturing, marketing or distributing
29This includes all defendants identified in footnote 2, supra, other than Medeva

Pharmaceuticals, who is not a party on appeal, and appellees Eli Lilly and Company, Sigma-Aldrich,

Inc., and Spectrum Chemical Manufacturing Corp.

11

Thimerosal. Second, even had they done so, and even had all defendants filed motions to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on that basis, these are not

matters that could be resolved from the face of the Holders’ complaint. There was no

evidence before the district court to support any contention that the Thimerosal Defendants

did not manufacture or distribute Thimerosal, and the parties never joined issue on that

question because the district court stayed all proceedings except those pertaining to the

propriety of remanding the case to state court. Accordingly, the district court erred in

dismissing claims that the Thimerosal Defendants manufactured or distributed Thimerosal.

King Pharmaceuticals, Inc. has not filed a brief in this court. The Holders appear to

treat King as part of the Vaccine Defendants and has not argued that this defendant is a

Thimerosal Defendant. Accordingly, the Holders have not shown that the district court erred

in dismissing all claims against King.

* * * 

For the foregoing reasons, we: 1) AFFIRM the district court’s denial of the Holders’

motion to remand, 2) AFFIRM the district court’s dismissal of the Holders’ claims against

Gregory S. Maranto, M.D. and Rush Medical Group, P.A., 3) AFFIRM the district court’s

dismissal of the claims against the Vaccine Defendants,29but 4) REVERSE the district

court’s dismissal of the claims against Eli Lilly and Company, Sigma-Aldrich, Inc., and
12

Spectrum Chemical Manufacturing Corp. and REMAND only the claims that those

defendants manufactured, marketed, designed or distributed Thimerosal.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART