Jane Doe, Individually and as Parent and Guardian of Baby Doe, et al. v. Merck & Co., Inc., et al.

On July 17, 2017, Petitioner Jane Doe, on behalf of her then minor, and disabled son, Baby Doe, filed this lawsuit in the Eastern District of New York under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. § 300aa-1, et. seq., seeking punitive damages against Merck under §11(a)(2)(A), and equitable relief against the Secretary of Health and Human Services [HHS] under §31, Citizens Action, alleging defendants are in violation of their respective licensing, product warning, labeling and reporting duties for the Food and Drug Administration’s [“FDA’s”] measles, mumps and rubeola [“MMR”] vaccine licensed to pharmaceutical defendant-respondent Merck & Co., Inc. Petitioners present the following questions: I. Should Courts extend the precedent of Jacobson v. Massachusetts, 197 U.S. 11 (1905), for the legal requirement that a vaccine licensed through HHS, that is mandated, be necessary, harm-avoidant, proportional and non-discriminatory, requiring individualized exemptions for those eligible and not suitable for vaccinations? II. Whether the Second Circuit erred finding plaintiff failed to exhaust remedies for a claim “MMR causes autism,” overlooking petitioner had exhausted below on the “MMR\TCV 1 causes autism” and “TCV causes autism” theories, and 1 Thimerosal is an organic compound that contains ethyl mercury and is found in Thimerosal Containing Vaccines “TCVs”.