                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 17-2081
                                     ______________

                              CHRIS JUDAY; PAT JUDAY,
                                                                Appellants

                                             v.

                   MERCK & CO INC; MERCK SHARP & DOHME
                           CORP; ANN REDFIELD
                               ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-16-cv-01547)
                      Honorable Harvey Bartle, III, District Judge
                                   ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   February 6, 2018

            BEFORE: CHAGARES, SCIRICA, and COWEN, Circuit Judges

                                   (Filed: April 4, 2018)
                                     ______________

                                       OPINION*
                                     ______________



____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.

       Plaintiffs Chris Juday and Pat Juday appeal from the order of the United States

District Court for the Eastern District of Pennsylvania granting the motion for summary

judgment filed by Defendants Merck & Co., Inc., and Merck, Sharp & Dohme Corp.

(collectively “Merck”) as well as from the judgment the District Court entered in Merck’s

favor. We will affirm.

                                              I.

       Chris Juday allegedly suffered personal injuries as a result of receiving Zostavax,

Merck’s anti-shingles vaccine. He received the vaccine on March 2, 2014, and Mr. Juday

and his wife, Pat Juday, filed this diversity action on April 5, 2016. Plaintiffs are citizens

of Indiana while the two Merck entities are incorporated and have their principal places

of business in New Jersey. Plaintiffs asserted a number of claims, including negligence,

design defect, failure to warn, breach of express warranty, breach of implied warranty,

negligent misrepresentation, unjust enrichment, and loss of consortium.

       Merck moved for summary judgment on statute of limitations grounds. The

District Court granted this motion and entered judgment in Merck’s favor. It applied

Pennsylvania’s two-year “statute of limitations with its narrower discovery rule” to their

claims of negligence, design defect, failure to warn, negligent misrepresentation, and loss

of consortium. Juday v. Merck & Co., CIVIL Action NO. 16-1547, 2017 WL 1374527,

at *5 (E.D. Pa. Apr. 17, 2017). The District Court considered the unjust enrichment and

warranty causes of action under Indiana’s two-year statute of limitations (and Indiana’s

somewhat more liberal discovery rule). According to the District Court, “[t]he

                                              2
undisputed facts here establish that beginning on at least March 13, 2014, Mr. Juday not

only had an ‘unrebutted suspicion’ that he had suffered an injury from the Zostavax

vaccine administered to him on March 2, 2014, but also had information that there was a

‘reasonable possibility’ [the applicable Indiana standard] that there was a causal

connection between the vaccine and his symptoms.” Id. The District Court also

considered and rejected his belated claim of fraudulent concealment (under both

Pennsylvania as well as Indiana law).

                                               II.

       Plaintiffs specifically invoke Pennsylvania’s discovery rule, observing that “[t]he

limitations period starts when there is an ‘unrebutted suspicion that a claimant has a

particular disease, which is caused by another.’” 1 (Appellants’ Brief at 10 (quoting

Debiec v. Cabot Corp., 352 F.3d 117, 132 (3d Cir. 2003) (emphasis omitted)).) Under

this equitable exception to the general rule that the limitations period begins to run at the

time of injury, the statute of limitations is tolled until the injured party discovers, or

reasonably should discover, that he or she has been injured and that the injury has been

caused by another party. See, e.g., Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). It is



       1
         The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332,
and we possess appellate jurisdiction under 28 U.S.C. § 1291. We exercise de novo
review over a district court’s order granting a motion for summary judgment. See, e.g.,
Seamans v. Temple Univ., 744 F.3d 853, 859 (3d Cir. 2014). Summary judgment is
appropriate if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. See, e.g. Fed. R. Civ. P. 56(a). This Court
reviews “a claim that the district court has prematurely granted summary judgment for
abuse of discretion.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002) (quoting
Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 510 (3d Cir. 1994)).
                                               3
undisputed that the application of this exception generally presents a question of fact.

See, e.g., Sadtler v. Jackson-Cross Co., 587 A.2d 727, 732 (Pa. Super. Ct. 1991).

However, “where the facts are so clear that reasonable minds cannot differ, the

commencement period may be determined as a matter of law.” Cochran v. GAF Corp.,

666 A.2d 245, 248 (Pa. 1995) (citing Hayward v. Med. Ctr. of Beaver Cty., 608 A.2d

1040, 1043 (Pa. 1992), abrogated on other grounds by Fine, 870 A.2d at 860 n.4). It is

also uncontested that the plaintiff bears the burden of proof to show his or her entitlement

to equitable tolling. See, e.g., id. at 249.

       Plaintiffs challenge the District Court’s conclusion that Mr. Juday clearly

possessed an unrebutted suspicion that he had suffered an injury from the Zostavax

vaccine no later than March 13, 2014. According to Plaintiffs, they are seeking

compensation for injury to Mr. Juday’s lungs—and not for his chickenpox infection.

They claim that “the record is strikingly clear that Mr. Juday did not suspect Zostavax

caused any injury to his lungs until, at earliest, April 9, 2014” (Appellant’s Brief at 10),

when Dr. Ikerd, an infectious disease specialist, “confirmed the link between Mr. Juday’s

symptoms and Zostavax” (id. at 7). This action was commenced on April 6, 2016, less

than two years from April 9, 2014. In fact, Mr. Juday was not diagnosed with bronchial

obliterans (as well as restrictive airway disease and pneumonia) until May 1, 2014.

Furthermore, “Mr. Juday [a farmer with a history of allergies, including to corn, bananas,

and soybean oil] first presented to [his primary care physician] Dr. Jon Van Scyoc’s

office with a cough as early as February 24, 2014 – before Mr. Juday received

Zostavax.” (Id. at 11 (citing A91).) In his March 24, 2014 office note, Dr. Van Scyoc

                                               4
indicated that Mr. Juday had been exposed to respiratory illness (which he explained

meant that he probably caught an illness from another person). 2 In the alternative,

Plaintiffs argue that Mr. Juday was not certain that his illness was caused by chickenpox

and clearly was not aware that Zostavax caused his chickenpox. “The District Court

emphasized the March 13, 2014 telephone call Mr. Juday made to his employer as

undisputed evidence that Mr. Juday made the critical connection between chickenpox and

the Zostavax vaccine. However, when questioned by the Defendant about that call, Mr.

Juday testified that he drew no connection between Zostavax and chickenpox at that

point.” 3 (Id. at 14 (citing A94); see also, e.g., A98 (answering question whether he

mentioned Zostavax to his employer because he believed shingles vaccine caused his

sickness in the negative).)

       However, a definitive diagnosis is not required to trigger the running of the statute

of limitations. See, e.g., Debiec, 352 F.3d at 132. “[A] plaintiff clearly need not know

the precise extent of her injuries before the statute will run.” Levenson v. Souser, 557

A.2d 1081, 1090 (Pa. Super. Ct. 1989) (citing Ayers v. Morgan, 154 A.2d 788 (Pa.

1959)). In this case, there was no genuine dispute of material fact as to the existence of


       2
         Plaintiffs also note that Mr. Juday was prescribed an antibiotic for his cough
(which would have no effect on a virus like chickenpox). Ms. Juday (“a registered nurse
who works in pulmonology” (Appellant’s Brief at 4)) testified at her deposition that they
were very concerned about the cough but “had no idea where the cough was coming
from” (A103). “Dr. Van Scyoc was just totally stymied, and I was stymied, and Andrea
Compton [a nurse practitioner] was stymied.” (A106.)
       3
         Furthermore, Compton testified that, among other things, the rash she examined
on March 12, 2014 did not present in the way in which she would expect if it were a
reaction to the vaccine and that “I was thinking I wasn’t sure what the rash was from; it
could be related to a viral – virus” (A111-A112).
                                             5
“unrebutted suspicion that [Mr. Juday] has a particular disease, which is caused by

another,” Debiec, 352 F.3d at 132, more than two years before Plaintiffs filed their

complaint. On March 12, 2014, Plaintiffs reported that Mr. Juday: “Had zostavax 8 days

ago initially fine but developed diffuse raised rash first on right side of trunk but now

spread across back accompanied by low grade fever and cough.” (SA80.) On March 24,

2014, they described Mr. Juday’s condition as a “[r]ash from shingles vaccine improving

but still with persistent cough, Intermittent fever” (SA85) and indicated on April 1, 2014

that “[n]ear same timeframe [i.e., shortly after Mr. Juday received Zostavax] he

developed a dry cough and some fever which persists” (SA89). Ms. Juday also testified

that, among other things, both she and Compton “knew, as nurses, and people who give

vaccines, that, it was a live vaccine, that there was a possibility” that the rash could be

chickenpox. (SA113.) Compton stated in her deposition that she thought Zostavax could

have caused Mr. Juday’s cough “[b]ecause typically some of the adverse reactions to live

vaccines can be fever, cough and rash.” (SA97.) The nurse practitioner accordingly had

Merck notified of these possible reactions to its vaccine.

       In addition, Mr. Juday’s own March 13, 2014 statement to his employer is (as the

District Court aptly put it) especially telling. According to the employer’s disability

report form, Mr. Juday claimed that he could not work because he was suffering from a

“Severe Allergic Reaction to Shingles” (SA125 (emphasis omitted)), which he explained

in his deposition meant a reaction to the shingles vaccine. While he did not recall using

these exact words, Mr. Juday did remember saying that “I had a shingles vaccination and

I was sick.” (A97.) “In everyday parlance, he obviously was informing his employer

                                              6
that a causal connection existed between these two closely occurring events, that is

receipt of the vaccine and his illness.” Juday, 2017 WL 1374527, at *5. We agree that,

under the circumstances, “[t]here is no other rational explanation for saying not only that

he was sick but also in the same breath that he had received the shingles vaccination.” 4

Id.

       The District Court also properly disposed of Plaintiffs’ belated attempt to invoke

the fraudulent concealment exception. A defendant may not invoke the statute of

limitations, “if through fraud or concealment, he causes the plaintiff to relax his vigilance

or deviate from his right of inquiry into the facts.” Fine, 870 A.2d at 860 (citing Deemer

v. Weaver, 187 A. 215, 215 (Pa. 1936)). According to Ms. Juday’s deposition testimony,

Compton told Ms. Juday that “she had talked to Merck and they said they’d never seen

the chickenpox from the vaccine.” (A101.) This hearsay does not satisfy the present

sense impression exception. See, e.g., United States v. Mitchell, 145 F.3d 572, 576 (3d

Cir. 1998) (“(1) the declarant must have personally perceived the event described; (2) the

declaration must be an explanation or description of the event rather than a narration; and



       4
         In Debiec, we concluded that reasonable minds could disagree about whether
three individuals exercised the requisite diligence because medical professionals had
indicated to them that they did not have berylliosis or Chronic Beryllium Disease
(“CBD”). Debiec, 352 F.3d at 133-40. However, this Court also determined that
“Branco should have suspected as early as 1995, and certainly by May 1997, that he
suffered from CBD, and that the tests which followed, negative though they were, cannot
support tolling in light of the doctor’s warnings that the tests were technically
unsatisfactory and that Branco should undergo further testing, and in the absence of
assurance from his physicians that he did not have a beryllium-related disease.” Id. at
138. The present case more closely resembles the circumstances implicated by Branco’s
claims than the circumstances presented by the other Debiec parties.
                                              7
(3) the declaration and the event described must be contemporaneous.” (citations

omitted)). Furthermore, “there is no evidence in the record that Ms. Juday ever told her

husband about this conversation with Ms. Compton.” Juday, 2017 WL 1374527, at *7.

“Ms. Juday was not asked at her deposition if she told her husband about it, and he

likewise was not questioned about it at his deposition. . . . There is no evidence that

Merck knew of a case where the vaccine had caused chickenpox or that it misled

plaintiffs when it reported that it did not think that the vaccine had caused the

chickenpox.” 5 Id.

       Finally, Plaintiffs argue that the District Court abused its discretion and violated

their constitutional rights to due process of law and a trial by jury by disposing of this

case prior to the end of discovery. While Plaintiffs’ counsel evidently referred at oral

argument to ongoing discovery on the issue of fraudulent concealment, it is undisputed

that they never filed an affidavit or declaration under Rule 56(d) or otherwise indicated in

writing that they needed additional discovery. See, e.g., Fed. R. Civ. P. 56(d) (“If a

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present

facts essential to justify its opposition, the court may” defer considering or deny the


       5
         While Plaintiffs cite in their reply brief to the hearsay exception for declarations
against interest as well as a patient information statement and the drug label (which
indicate respectively that cases of chickenpox have been reported and that the vaccine
can cause the individual to develop chickenpox and/or shingles), they did not mention
such matters in their opening brief. See, e.g., Garza v. Citigroup Inc., 881 F.3d 277, 284-
85 (3d Cir. 2018) (observing that appellant generally waives argument if not raised in
opening brief). In any event, it would seem that, given such disclosures, Mr. Juday
should have been able to discover the apparent causal connection between his medical
problems and the vaccine (and, similarly, such publicly available information would
appear to be inconsistent with any claim of “fraudulent concealment”).
                                              8
summary judgment motion, allow time to obtain affidavits or declarations or to take

discovery, or issue any other appropriate order). In any event, the scheduling order

expressly stated that any statute of limitations motion shall be filed and served before

January 5, 2017. A second scheduling order extended this deadline to February 6, 2017.

While Merck conducted discovery and appropriately filed its summary judgment motion

on the deadline, it appears that “[a]t no time while the case was pending before the

district court did Plaintiffs propound any discovery requests on Merck or notice any

depositions.” (Appellee’s Brief at 4.) The District Court subsequently heard oral

argument and ordered additional briefing (and “provided the Plaintiffs a short opportunity

to supplement the record on the issue of fraudulent concealment” (Appellant’s Reply

Brief at 14)). Given these circumstances, we conclude that the District Court neither

abused its discretion nor violated Plaintiffs’ constitutional rights.

                                              III.

         For the foregoing reasons, we will affirm the order and judgment of the District

Court.




                                               9
