United States District Court, District of Columbia
TERESITA A. CANUTO, Plaintiff,
GLAXOSMITHKLINE, et al., Defendants.
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
se plaintiff Teresita Canuto brings this action against
five vaccine manufacturers (collectively, “vaccine
defendants”), and the Attorney General of the United
States and the “Executive Department of the United
States” (collectively, “federal
defendants”) for injuries she alleges her then-infant
son suffered from allergic reactions to vaccines administered
January 2001 through October 2005. Compl., ECF No. 1, at 5,
8. She alleges that the vaccine defendants failed to warn
that their respective vaccines were not safe for infants with
particular blood types, that her son had allergic reactions
to the vaccines, and that he suffered encephalitis and Autism
Spectrum Disorder as a result. Id. at 5, 11, 40, 43.
She also alleges general “negligence of the Executive
Department.” Id. at 8, 10.
Court granted defendant Pfizer's motion to dismiss for
lack of jurisdiction on September 27, 2018. See
Order, ECF No. 29; Mem. Op., ECF No. 30. After that order and
two extensions, the federal defendants moved to dismiss for
lack of jurisdiction. See Federal Defs.' Mot.
Dismiss (“MTD”), ECF No. 32. That motion is fully
briefed and ripe for review. For the reasons that follow, the
Court will grant the federal defendants' motion to
Court explained in its recent memorandum opinion, the
National Childhood Vaccine Injury Act (“Vaccine
Act”), 42 U.S.C. §§ 300aa-1, et
seq., created a no-fault compensation program for
vaccine-related injuries. Mem. Op. at 2 (citing
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 228 (2011)).
As the Court found, Ms. Canuto had two options after she
received the Federal Circuit's decision denying relief
under the Act: accept the judgment or reject it by filing a
tort claim in federal or state court. Id. at 2-3. By
not filing a civil action within 90 days, Ms. Canuto was
“deemed to have filed an election to accept the
judgment of the court.” 42 U.S.C. § 300aa-21(a).
The Vaccine Act bars civil litigation by claimants who accept
the judgment of the court. Id. §
300aa-11(a)(2)(A). Accordingly, under §
300aa-11(a)(2)(B), the Court was required to dismiss the
action against Pfizer for lack of jurisdiction.
Court sees no reason why the same is not also true with
respect to the federal defendants, and Ms. Canuto fails to
provide one. Instead, she suggests that she did in fact
timely reject the judgment of the Federal Circuit. She
explains that she “used the 90 days of the final
judgment of the Federal Circuit (42 U.S.C. & 300aa-21(a))
in filing a Writ of Certiorari to the Supreme Court (Supreme
Court Case No. 16-1222) but the petition was denied on June
5, 2017.” Pl.'s Opp'n to Federal Defs.'
MTD, ECF No. 37, at 10-11. Only after the Supreme Court
denied her petition for certiorari did Ms. Canuto file this
action. The Court interprets this argument to be that Ms.
Canuto functionally rejected the judgment of the Federal
Circuit by seeking review of that judgment in the Supreme
Court. That, however, was not enough to comply with the clear
requirements of § 300aa-21. Under that section, Ms.
Canuto was required to file with the clerk of the United
States Court of Federal Claims “an election in writing
. . . to file a civil action for damages” in order to
then proceed in state or federal court. 42 U.S.C. §
300aa-21; id. §§ 300aa-11(a)(2)(A) &
(B). Under the plain language of the statute, Ms. Canuto
could not have satisfied the requirement that she file this
election with the clerk of the Court of Federal Claims by
filing a petition for certiorari with the Supreme Court.
the Court will grant the federal defendants' motion to
dismiss for lack of jurisdiction pursuant to 42 U.S.C. §
300aa-11(a)(2)(B). The Court will therefore also dismiss Ms.
Canuto's motion to compel discovery by the federal
defendants. See ECF No. 42. Finally, the Court will
deny Ms. Canuto's three pending motions for default
judgment against the two federal defendants and United States
Attorney Jessie Liu. See ECF Nos. 25-27. As is
evident from the electronic docket in this case, the federal
defendants received two extensions from the Court and then
timely responded to Ms. Canuto's complaint. See
Sept. 18, 2018 Minute Order; Sept. 28, 2018 Minute Order. The
federal defendants are thus not in default.
order accompanies this Memorandum Opinion.
 The Court has not resolved the action
against the remaining vaccine manufacturers because the Court
granted those defendants an extension to respond to Ms.
Canuto's complaint within 30 days of its resolution of
Pfizer's motion to dismiss. See Aug. 24, 2018
Minute Order. The remaining manufacturers filed their joint
motion to dismiss on ...