Erin Holmes v. Merck & Company, Inc.

Erin and Shawn Holmes appeal the district court’s grant of summary judgment in favor of Merck & Company in their diversity action alleging wrongful death. They contend that the district court erred in applying the standards of the National Childhood Vaccine Injury Act (Vaccine Act or the Act), 42 U.S.C. § 300aa-22, to their individual claims for damages. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

I

When Jacob Holmes was one year old, his pediatrician administered M-M-R II, a vaccine manufactured and distributed by Merck, in conformity with the recommendations set by the Centers for Disease Control and Prevention. Within nine days, Jacob began experiencing seizures and developed encephalopathies. He died approximately six months later. Acting on behalf of their son Jacob’s estate, Erin and Shawn Holmes petitioned for compensation from a government fund created by the Vaccine Act. They received $250,000 through the program.

Subsequently, acting in their individual capacity and pursuant to Nevada Revised Statute section 41.085, the Holmes initiated this wrongful death lawsuit in Clark County, Nevada. Their complaint set forth allegations of negligence,…