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N.J. SC dismisses suit against makers of polio vaccine

By Jessica M. Karmasek | Aug 16, 2012


TRENTON, N.J. (Legal Newsline) - The New Jersey Supreme Court, in a ruling Wednesday, dismissed a lawsuit filed by a man who claims a polio vaccine -- given to him when he was a young child -- lead to his cancerous brain tumor.

Plaintiff Jamie Gannon, born in 1973, received five doses of the vaccine between 1973 and 1976. In November 2000, he was diagnosed with medulloblastoma.

Contending that there was a link between that particular type of tumor and a simian viral contaminant found in polio vaccines, known as SV40, Gannon and his wife, Rebecca, pursued various forms of relief in both federal and state courts.

In the federal court action, the plaintiffs sought relief from the federal government pursuant to the Federal Tort Claims Act, contending that the government was negligent in permitting the polio vaccine to be sold to the public.

Their lawsuit was dismissed following a partial bench trial, based on the government's motion for judgment on partial findings. That judgment was affirmed by the U.S. Court of Appeals for the Third Circuit.

In the state court action, the Gannons raised product liability claims against defendants American Home Products Inc., American Cyanamid Company, Lederle Laboratories and Wyeth-Lederle Vaccines.

The plaintiffs asserted the companies were the entities that had manufactured or distributed the polio vaccine given to Gannon. In particular, they claim that the vaccine was manufactured by Lederle Laboratories.

A trial court granted summary judgment in favor of defendants, concluding that the couple lacked sufficient evidence to prove the identity of the manufacturer of the polio vaccine that Gannon was given. It also ruled that the plaintiffs were collaterally estopped from bringing the cause of action based on the prior judgment entered in federal court.

New Jersey's Appellate Division later reversed both aspects of the trial court's judgment.

The panel first concluded that the trial court had utilized an "incorrect standard" in evaluating the sufficiency of the product identification evidence because it failed to afford plaintiffs the benefit of the inferences to which they were entitled as the non-moving parties in the context of a summary judgment motion.

It also concluded that there were equitable considerations that militated against granting collateral estoppel effect to the judgment of the federal court, including the status of discovery in the state court matter and the pendency of similar state court litigation involving other plaintiffs.

The appeals court reversed the trial court's grant of summary judgment and remanded the case.

At that time, the state's high court granted the companies' petition for certification.

In its 38-page ruling this week, the Court reversed the appellate division's judgment.

Justice Helen E. Hoens, writing for the Court, explained that federal principles must govern the preclusive effect of a federal judgment.

For collateral estoppel purposes, the Gannons were afforded "a full and fair opportunity" to be heard on the essential claims of their dispute and the appellate panel erred in concluding that equitable considerations demand that they be permitted to have their claims heard again, she said.

"Were we to adopt the panel's rationale, we would create an avenue for endless re-litigation of issues already adjudicated based only on the happenstance of another plaintiff with another expert or another disease or another approach," Hoens wrote.

"To equate the mere existence of another similar litigant, as did the appellate panel, to the threat of inconsistency sufficient to serve as an equitable exception to the doctrine is not only plainly inconsistent with the principles of collateral estoppel but would effectively obliterate the doctrine."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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