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Kehler v. Hood

United States District Court for the Eastern District of Missouri, Eastern Division

May 30, 2012, Decided; May 30, 2012, Filed

No. 4:11CV1416 FRB



This cause is before the Court on third party defendant Novartis Vaccines and Diagnostic, Inc.'s Motion to Dismiss (Doc. #12); defendants Dr. Diane Hood and Internal Medicine of St. Luke's, LLC's Motion for Judgment on the Pleadings (Doc. #22); and plaintiffs Larry and Ann Kehler's Motion to Remand (Doc. #17). All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).

Plaintiff Larry Kehler and his wife, Ann Kehler, originally brought this action in the Circuit  [*2] Court of St. Louis County, Missouri, alleging that defendant Dr. Diane Hood and her employer, Internal Medicine of St. Luke's, LLC (St. Luke's), were negligent in their failure to obtain Mr. Kehler's informed consent prior to the administration of the H1N1 vaccination and in their failure to obtain a consult from a specialist prior to the administration of the vaccination. Plaintiffs allege that, in the circumstances of this case, such failure(s) resulted in a severe case of transverse myelitis to Mr. Kehler upon the administration of the vaccination, and in Mrs. Kehler's loss of consortium. Defendants Dr. Hood and St. Luke's thereafter brought third party product liability/failure to warn claims against Novartis Vaccines and Diagnostic, Inc. (Novartis), 1 the alleged manufacturer of the H1N1 vaccine, seeking indemnification and/or contribution if plaintiffs were to prevail on their claims. Novartis removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute, averring that its manufacture of the H1N1 vaccine was pursuant to the directive of and under contract with the United States government in order to prevent an influenza pandemic in  [*3] the United States.

Novartis now seeks to dismiss Dr. Hood and St. Luke's third party action, as well as plaintiffs' original claims, arguing that such action(s) are barred by the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. § 247d-6d. Defendants Dr. Hood and St. Luke's likewise invoke the PREP Act and seek to dismiss plaintiffs' claims as raised against them. In response, plaintiffs concede that any claims against Novartis are barred under the PREP Act and argue that, in the absence of viable claims against third party defendant Novartis, there exists no independent federal jurisdiction by which this Court may determine plaintiffs' State law claims against defendants Dr. Hood and St. Luke's. Plaintiffs therefore argue that, in the event Novartis no longer remains a party to this action, plaintiffs' original claims against Dr. Hood and St. Luke's should be remanded to State court for further proceedings.

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2012 U.S. Dist. LEXIS 74502 *

LARRY KEHLER, et al., Plaintiffs, v. DR. DIANE HOOD, et al., Defendants/Third Party Plaintiffs, v. NOVARTIS VACCINES AND DIAGNOSTIC, INC., Third Party Defendant.


vaccine, third party, plaintiffs', myelitis, plaintiff's claim, federal jurisdiction, federal question, subject matter jurisdiction, manufacturer