TOM S. LEE, United States District Judge.
This cause is before the court on plaintiffs' motion to remand. Defendants have responded in opposition, and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that plaintiffs' motion to remand is due to be denied.
The plaintiffs in this case are the parents of children who are alleged to have suffered injuries as a result of their having received one or more childhood vaccines containing a preservative known as thimerosal. In a companion case, Collins, et al. v. American Home Products Corp., et al., Civil Action No. 3:01CV979LN, these same plaintiffs sued in their capacity as parents and next friends of their respective children, seeking to recover damages for their children's injuries alleged to have been caused by the thimerosal-containing vaccines,. In this case, these same plaintiffs seek to recover medical expenses incurred by them and reasonably expected to be incurred by them in the future on account of their children's injuries, as well as damages for their own emotional distress alleged to have proximately resulted from their children's injuries.
The Collins case, like the present case, was originally filed in the Circuit Court of Hinds County, and was removed to this court by the nonresident defendants. In Collins, this court, after initially concluding in a memorandum opinion and order dated June 21, 2001, that it lacked either federal question jurisdiction or jurisdiction based on diversity of citizenship, concluded upon reconsideration that there was diversity jurisdiction, as there was no reasonable possibility that the plaintiffs could establish a basis for recovery against the resident defendants. The court then dismissed the case since all the plaintiffs' claims were barred by the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-1. The question is whether that same result should occur here; and in the court's opinion it should, for just as these plaintiffs had no cognizable claims against the resident defendants in Collins, they have no cognizable claims of their own against the resident defendants.
The Vaccine Act provides that "[n]o person may bring a civil action . . . against a vaccine administrator or manufacturer in a state or federal court for damages arising from a vaccine-related injury or death . . . unless a petition has been filed" first in the Court of Federal Claims, and mandates that if a claimant files such a suit "in a State or Federal court" prior to petitioning the Court of Federal Claims, such state or federal court "shall dismiss the action." 42 U.S.C. § 300aa-11(a); see also Shalala v. Whitecotton, 514 U.S. 268, 270, 115 S.Ct. 1477, 1478, 131 L.Ed.2d 374 (1995) ("A claimant alleging that more than $1,000 in damages resulted from a vaccination after the Act's effective date in 1988 must exhaust the Act's procedures and refuse to accept the resulting judgment before filing any de novo civil action in state or federal court.").
As respects the ultimate source of their alleged right of recovery, plaintiffs' claims in this case are the same as their claims as parents and next friends in Collins, namely, that their children have been harmed from exposure to mercury contained in thimerosal, which was used as a preservative in vaccines administered to their children. All that distinguishes this case from Collins is the fact that the plaintiffs herein purport to seek recovery in their own right, and not on behalf of their children, of medical expenses incurred for their children, and that they seek to recover damages for their own emotional distress. So far as the propriety of removal goes, however, these distinctions are immaterial, for plaintiffs have no cognizable claim for these alleged damages.
As in Collins, the plaintiffs in this case have alluded to over-the-counter products; but it is plain that they have traced their children's injuries to having been injected with thimerosal-containing vaccines.
First, plaintiffs' claim for medical expenses is barred by the Vaccine Act to the same extent as their claim in Collins to recover such expenses in their capacity as representatives of their respective children. Under the Vaccine Act, a petition for compensation may be brought by "any person who has sustained a vaccine-related injury [or] the legal representative of such person if such person is a minor or is disabled. . . ." 42 U.S.C. § 300aa-11(b)(1)(A) (emphasis added). The Act further provides that compensation "shall include" medical and remedial expenses incurred "by or on behalf of" the injured person. See 42 U.S.C. § 300aa-15(a). Thus, plaintiffs cannot avoid applicability of the Vaccine Act, and the Act's tort suit ban, merely by suing in their own name for costs that are compensable under the Act. See Shafer v. American Cyanamid Co., 20 F.3d 1, 5 (1st Cir. 1994) (stating that "if [the plaintiff] cannot file a petition with the Vaccine Court, the Act says a tort suit does not apply to him," but if he can file such a petition, then the tort suit ban does apply).
The court agrees with defendants that plaintiffs would be precluded from suing for these costs in any event since they have already sued inCollins for these same damages on behalf of their respective children.See Lane v. Webb, 220 So.2d 281, 285 (Miss. 1969) (holding that "where the father . . . brings a suit as next friend of his minor child, he waives on the child's favor his right to recover the expenses of hospital treatment, and is thereafter estopped to claim them in a separate suit.").
Moreover, as defendants correctly argue, Mississippi law does not recognize a claim for emotional distress damages on behalf of parents for injuries alleged to have resulted in the manner charged by plaintiffs herein. Cf. Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1122 (Miss. 1989) (stating, "If this Court is unwilling to allow parents to recover damages for the severe personal injury of their child, we certainly will not allow recovery of damages by a parent f or the alleged malicious prosecution of one's minor child.") (citing Butler v. Chrestman, 264 So.2d 812, 817 (Miss. 1972), and Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 156, 141 So.2d 226, 236 (1962)), in which the court stated that "`. . . if a minor sustains personal injuries under such circumstances of wilfulness, aggravation, or oppression as to justify an imposition of exemplary or punitive damages, upon the wrongdoer, the right of recovery thereof is in the child, and that there can be no recovery of the item by the parent in his own right.' It is also said: . . . that the measure of damages in a parent's action for injuries to a minor child, other than a case of seduction, is the actual damage which the plaintiff has suffered. . . .'").
Accordingly, for the same reason this court ultimately denied plaintiffs' motion to remand in Collins, the court herein concludes that plaintiffs' motion to remand should be denied.
It is therefore ordered that plaintiffs' motion to remand is denied.
SO ORDERED.