Grinnell v. Charles Pfizer & Co.

• Decision Date: 30 June 1969
• Citation: 79 Cal.Rptr. 369,274 Cal.App.2d 424
• Court: California Court of Appeals Court of Appeals
• Parties: Richard C. GRINNELL, Plaintiff and Respondent, v. CHARLES PFIZER & COMPANY, Inc., a corporation, Defendant and Appellant. Carlos BENEDETTI, Plaintiff and Respondent, v. CHARLES PFIZER & COMPANY, Inc., a corporation, Defendant and Appellant. Civ. 24150.

Page 369

79 Cal.Rptr. 369

274 Cal.App.2d 424

Richard C. GRINNELL, Plaintiff and Respondent, v. CHARLES PFIZER & COMPANY, Inc., a corporation, Defendant and Appellant.

Carlos BENEDETTI, Plaintiff and Respondent, v. CHARLES PFIZER & COMPANY, Inc., a corporation, Defendant and Appellant.

Civ. 24150.

Court of Appeal, First District, Division 1, California.

June 30, 1969.

Rehearing Denied July 30, 1969.

Hearing Denied Aug. 27, 1969.

Barfield, Barfield & Dryden, San Francisco, for appellant; Cyril Viadro San Francisco, of counsel.

Hoberg, Finger, Brown & Abramson, San Francisco, for respondent Richard C. Grinnell.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Edward J. Niland, Stanley A. Ibler, Jr., San Jose, for respondent Carlos Benedetti.

MOLINARI, Presiding Justice.

Defendant appeals from judgments on jury verdicts awarding plaintiff Grinnell $60,000 damages and plaintiff Benedetti $80,000 damages for injuries sustained from ingesting Sabin oral polio vaccine, Type I, furnished by defendant manufacturer. Defendant also appeals from the orders denying its motion for judgments notwithstanding the verdicts.

The Facts

In May of 1962 six San Francisco Bay area medical societies (hereinafter referred to as 'BAMAC') ¹ joined together to coordinate and publicize an areawide polio immunization program and contracted with L. C. Cole & Company to carry out the necessary organizational and promotional efforts. The date for immunization throughout the Bay area under the so-called 'KO Polio' campaign was September 23, 1962, and the first news releases on the program went out in late July and the intensity of the publicity increased as the target date neared. In June 1962 defendant made a quotation to BAMAC for furnishing the vaccine and ultimately sold the needed doses to BAMAC. Plaintiff Grinnell participated in the 'KO Polio' program and received Type I oral polio vaccine. At that time he was 58 years of age. Plaintiff Benedetti also received the vaccine on September 23, 1962, at which time he was 33 years of age. Shortly thereafter plaintiff Grinnell contracted Type I polio which left him with a partially paralyzed and weakened left arm. Plaintiff Benedetti also became ill with Type I polio. Other facts are set out below where pertinent to the discussion.

Procedural Background

Originally each plaintiff brought his separate action for personal injuries on the theories of negligence, breach of implied warranty and breach of express warranty. The complaints were subsequently amended to include a cause of action based on strict liability in tort, and the cases were consolidated for trial. At the close of the trial, the judge determined that he would not instruct on the theory of strict liability apparently because the evidence did not establish a 'defect' in the polio vaccine. However, he concluded that the case should be submitted only on the theories of express warranty and implied sales warranty and the jury was so instructed. The jury returned verdicts for both plaintiffs and the court subsequently denied defendant's motion for judgments notwithstanding the verdicts.

Contentions

The major contentions of defendant are that plaintiffs failed to prove that their respective illnesses were vaccine induced and that they also failed to prove the breach of either an implied or express warranty. ²

The Theory of Strict Liability

Before proceeding to the merits of defendant's arguments, we first observe that in cases involving personal injuries resulting from defective products, the theory of strict liability in tort had virtually superseded the concept of implied warranties. (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049.) As we pointed out in Alvarez v. Felker Mfg. Co., 230 Cal.App.2d 987, 1005, 41 Cal.Rptr 514, 525: 'The nature of the strict liability of a manufacturer resulting from the sale of defective products was finally put to rest by Greenman which declared that such liability is not one governed by the law of contract warranties or the implied warranties of the sales act but by the law of strict liability in tort, and that the rules defining and governing warranties 'connot properly be invoked to govern the manufacturer's liability to those injured by its defective products unless those rules also serve the purposes for which such liability is imposed. " In the light of this rule we believe that if the trial court was justified in submitting the case to the jury on the basis of implied warranty liability, it also had cause to instruct on the law of strict liability in tort. The fact that no instruction was given by the trial court on the law of strict liability in tort does not preclude reliance on that theory since the basic elements to be proved are the same. (See Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049; Davis v. Wyeth Laboratories, Inc., 9 Cir., 399 F.2d 121, 126; Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. (1966) 791, 804--805; Cf. Rose v. Melody Lane, 39 Cal.2d 481, 488, 247 P.2d 335.) ³ Although the trial court instructed in terms of the implied warranty of fitness for the purpose for which the vaccine was sold provided for in former Civil Code, section 1735, ⁴ which was in force at the time the subject vaccine was ingested, the effect of these instructions was to instruct on the theory of strict liability in tort since 'The section imposes an absolute liability regardless of negligence.' (Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 689, 163 P.2d 470, 472; and see Greenman v. Yuba Power Products, Inc., supra.) ⁵ Accordingly, in the discussion that follows we will deal with the rules involving strict liability in tort rather than the superseded implied warranty concept.

In view of the foregoing, we observe that it is clearly the law in California that the theory of strict liability in tort is available in cases where the vaccinated individual contracts the disease the vaccine was designed to protect against. In the only other California polio vaccine case which has come to our attention liability was predicated upon the breach of the implied warranty of fitness and merchantability when defective Salk polio vaccine was administered to the plaintiffs and caused them to contract polio. (See Gottsdanker v. Cutter Laboratories (1960) 182 Cal.App.2d 602, 6 Cal.Rptr. 320, 79 A.L.R.2d 290.) However, in Greenman the Gottsdanker case was cited with approval as an example of the extension of the doctrine of strict liability. (At p. 62 of 59 Cal.2d, 27 Cal.Rptr. 697, 377 P.2d 897.) We note, moreover, that the doctrine of strict liability in tort has been applied to a vendor of prescription drugs. (Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 710--711, 60 Cal.Rptr. 398.)

We, therefore, advert to the rule of strict liability which is stated thusly in Greenman: 'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (59 Cal.2d at p. 62, 27 Cal.Rptr. at p. 700, 377 P.2d at p. 900.) In applying the rule to the instant case, we note, initially, that it is undisputed that the subject vaccine was placed on the market by defendant with knowledge that persons who ingested it would use it without inspection for defects. Accordingly, our inquiry is directed to whether it was proved that the vaccine was defective and, if so, whether the defect caused injury to plaintiffs. In this regard, we here point out that the instant case was litigated in such a manner that the evidence adduced on the issues of defectiveness and causation was practically inseparable. Accordingly, some of the same evidence was adduced by plaintiffs to prove, and by defendant to disprove, defectiveness and causation.

Defectiveness and Causation

Defendant argues, in the context of implied sales warranty, that there was no breach because the product was non-defective and was reasonably fit for the purpose intended. Defendant contends, further, that plaintiffs have not sustained their burden of proving the actual cause of their injury. The latter argument is particularly grounded on the fact that recognized experts in the field testified at the trial that there is no definite way to establish that any individaul case of polio was induced by vaccine. In considering these arguments we note, initially, that there is no direct evidence of any impurity or dangerous virulence in the vaccine ingested by plaintiffs. ⁶ We also note that it is undisputed that polio is caused by a virulent virus; that if a person has polio it is caused either by a wild-virus strain or by a vaccine- induced strain; and that if the vaccine is produced as it should be it must be free of virulent particles, that is, all of the particles should be attenuated or non-virulent. Accordingly, it is apparent that if the vaccine did cause plaintiffs' illnesses, the inference is warranted that the vaccine did contain virulent particles, and, therefore, that it was defective.

The burden of proof is on the plaintiffs to prove that the vaccine was defective and that the defect caused their injuries. (Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 650, 55 Cal.Rptr. 94; Erickson v. Sears, Roebuck & Co., 240 Cal.App.2d 793, 798, 50 Cal.Rptr. 143.) They were not, however, required to prove their case beyond a reasonable doubt, but were only required to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of defendant was a substantial factor in bringing about the polio suffered by plaintiffs. (Prosser on Torts (3d ed. (1964)) p. 345; Lysick v. Walcom, 258 Cal.App.2d 136, 153, 65 Cal.Rptr. 406; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 261, 37 Cal.Rptr. 896, 391 P.2d 168.) As stated by...