Johnson v. American Cyanamid Co.

• Decision Date: 19 May 1986
• Docket Number: No. 57368,57368
• Parties: , 66 A.L.R.4th 55, 54 USLW 2628 Emil E. JOHNSON, Appellee, v. AMERICAN CYANAMID COMPANY and Lederle Laboratories, et al., Appellants.
• Court: Kansas Supreme Court

Page 1318

718 P.2d 1318

239 Kan. 279, 66 A.L.R.4th 55, 54 USLW 2628

Emil E. JOHNSON, Appellee, v. AMERICAN CYANAMID COMPANY and Lederle Laboratories, et al Appellants.

No. 57368.

Supreme Court of Kansas.

May 19, 1986.

Syllabus by the Court

1. Although in standard products liability litigation plaintiff may utilize a strict liability design defect theory, such strict liability cause of action must be prohibited for public policy reasons where the product complained of is an unavoidably unsafe product within the purview of comment k to § 402A of Restatement (Second) of Torts (1963). In such special circumstances, plaintiff may proceed on a design defect theory only on the basis of negligence.

2. Although unavoidably unsafe products, like all other products, are subject to strict liability for manufacturing defects, such products are subject merely to negligence liability for warning defects. Just as liability for failure to warn of product risk is based on negligence, adequacy of warning is also judged under a reasonableness standard.

3. The holding of Turnbull v. Byram, 235 Kan. 891, Syl. p 2, 684 P.2d 429 (1984), requiring a case to be remanded for new trial where one of the parties found negligent by the jury is held not to be negligent as a matter of law upon appellate review, is distinguished and held to be inapplicable to the facts herein.

4. In a personal injury action by an individual acquiring polio as a result of his daughter's polio vaccination seeking damages against the manufacturer of the polio vaccine and the physician administering the vaccine, the record is examined and it is held the trial court erred: (1) in denying the vaccine manufacturer's motion for a directed verdict; and (2) in submitting the issue of the vaccine manufacturer's liability to the jury.

Donald R. Newkirk, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued, and Susan P. Selvidge and David G. Seely, and Larry Wall, of Stratton, Russell, Toomey & Wall, Wichita, were with him on briefs, for appellants.

Gerald L. Michaud, of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, argued, and Mark B. Hutton, and Dwight A. Corrin, of Corrin & Krysl, Chartered, Wichita, Jerry W. Hannah, of Hamilton and Hannah, Topeka, and William S. Bowers, Ottawa, were with him on brief, for appellee.

Wayne T. Stratton and Charles R. Hay, of Goodell, Stratton, Edmonds & Palmer, Topeka, were on the amicus curiae brief, for Kansas Medical Soc.

Gerald W. Gorman and John A. Vering III, of Dietrich, Davis, Dicus, Rowlands, Schmitt & Gorman, Kansas City, Mo., and Allen R. Slater, Olathe, were on the amicus curiae brief, for American Academy of Family Physicians.

Thomas Scarlett, chief counsel, and Ann H. Wion, Associate Chief Counsel for Drugs & Biologics, Food & Drug Admin., Rockville, Md., Gene W. Matthews, Legal Advisor to Center for Disease Control, Atlanta, Ga., Benjamin Burgess, U.S. Atty Robert L. Howard, of Foulston, Siefkin, Powers & Eberhardt, Wichita, and Donald R. Harris and Richard L. Verkler, of Jenner & Block, Chicago, Ill., were on the amicus curiae brief, for American Academy of Pediatrics.

Richard K. Willard, Acting Asst. Atty. Gen., Robert L. Willmore, Deputy Asst. Atty. Gen., and John F. Cordes and Mark B. Stern, Attys., Dept. of Justice, Washington, D.C., were on the amicus curiae brief, for U.S.

Daniel F. Sullivan, of Daniel F. Sullivan & Associates, Seattle, Wash., was on the amicus curiae brief, for Jonas E. Salk, M.D., and Darrell J. Salk, M.D.

Jerry I. Meyers, of Berger, Kapetan, Malakoff & Meyers, Pittsburgh, Pa., was on the amicus curiae brief, for Concerned Scientists and Citizens.

McFARLAND, Justice:

Emil E. Johnson brought this personal injury action alleging he had contracted poliomyelitis as a result of his infant daughter having been vaccinated by defendant physician, Vernon Branson, utilizing Orimune, an oral polio vaccine manufactured by Lederle Laboratories (a division of defendant American Cyanamid Company). Henceforth in the opinion, the manufacturer of the vaccine will be referred to as American Cyanamid. The jury was instructed on comparison of fault as between the two defendants (no issue of fault was submitted as to the plaintiff). The jury assessed 100% of fault against defendant American Cyanamid and awarded $2,000,000.00 actual damages and $8,000,000.00 punitive damages. American Cyanamid appeals from the judgment against it but specifically does not appeal from the jury's finding of zero fault on the part of defendant Branson.

FACTS RELATIVE TO PLAINTIFF'S ILLNESS

On September 26, 1975, plaintiff took his infant daughter Laurie to the child's pediatrician, Dr. Vernon Branson, where Orimune, an oral polio vaccine manufactured by American Cyanamid, was administered to her. The sequence of polio vaccination was completed by additional administration of the same vaccine by the same physician on November 24, 1975, and January 14, 1976. In December of 1975 plaintiff became ill and was admitted to the University of Kansas Medical Center on December 9 where his illness was diagnosed as bulbar paralytic poliomyelitis. Plaintiff contends he is totally disabled as a result of the disease. At trial, it was contested whether or not Laurie's vaccination program was the cause of plaintiff's illness, but this is not an issue on appeal.

HISTORY OF POLIO VACCINES

By virtue of the nature of claims of liability asserted against American Cyanamid, much of the evidence at trial concerned the history of the disease poliomyelitis and efforts to control the disease, namely, the development of vaccines and the federal government's efforts to vaccinate the public. Polio was first identified as a disease in the 19th century. Its occurrence became more frequent and in 1952 it claimed 57,897 victims in the United States alone. The federal government and private medical research facilities commenced an all-out effort to conquer the dreaded killer and crippler of so many children and adults. A major breakthrough occurred when Dr. Jonas Salk developed a killed or "inactivated" polio vaccine. This vaccine must be administered by injection. By 1955 the Salk vaccine was being distributed extensively in the United States and new cases of polio were reduced to less than 5,000 per year by 1959. In the late 1950's a new polio vaccine was developed by Dr. Albert Sabin and was widely tested in Europe. The Sabin vaccine is a live polio vaccine which contains greatly weakened or attenuated polio virus. The Sabin vaccine must be given orally.

Although the Salk vaccine had greatly reduced the incidence of polio, the disease remained a significant health threat and pressure was mounting for a federally In the last twenty-five years the Sabin v. Salk controversy has rolled on unabated. The minority Salk supporters, spearheaded mainly by Dr. Salk himself, have never ceased to advocate the superiority of the Salk vaccine in the numerous forums involving federal public health officials. The Sabin supporters include all major public and private health organizations and assert Sabin is the vaccine of choice. There are advantages to the Sabin vaccine. It is administered orally--usually on a sugar cube to individuals old enough to eat sugar cubes. The Salk vaccine can only be injected through a needle. The injections are time-consuming and require individual administration by trained medical personnel. Further, injections are less well received by poorly educated persons and resistance thereto is stronger. Additionally, there is substantial medical evidence that the immunity induced by the Sabin vaccine is longer lasting and does not require boosters as may be necessary with the Salk vaccine.

funded immunization program to bring the disease under control and, it was hoped, eliminate it. By 1961, the bitter controversy was in full bloom as to which of the two types of vaccines--Sabin or Salk--should be the weapon used in the battle against the disease. At that time only the Salk vaccine was being produced in this country although the Sabin vaccine had been used very successfully in [239 Kan. 282] Europe. The American Medical Association urged, in 1961, the use of the Sabin vaccine. The federal government solicited American drug firms to produce the Sabin vaccine. United States manufacturers of the Salk vaccine opposed the introduction of the Sabin vaccine. Three manufacturers agreed to manufacture the Sabin vaccine (including American Cyanamid). The Sabin vaccine rapidly replaced the Salk vaccine in the United States and no Salk vaccine has been manufactured in this country since 1968. American Cyanamid is the only United States firm manufacturing polio vaccine at the present time and it manufactures the Sabin type.

Ironically, the very cause of the longer-lasting immunity of the Sabin vaccine gives rise to the major drawback of this vaccine. The Sabin vaccine must be given orally, as the weakened virus gives immunity by proliferating in the intestines, thereby triggering the body's immune system. For reasons unknown, occasionally, but on a rather predictable ratio of incidence, the virus reproduced in the intestinal tract is a virulent virus, not the weakened Sabin virus. When this occurs, the individual receiving the virus, and persons in close contact with such individual, may acquire polio as a result of the vaccination. This unfortunate event occurs some five to ten times each year in the United States. This risk from the Sabin vaccine has been there from the beginning of its usage. It is a known risk and has been argued at every phase in the long-standing Salk-Sabin controversy.

The very ability of the Sabin vaccine to infest others is, in the broad public health view, a plus factor. Unlike the Salk vaccine, the Sabin vaccine can vaccinate persons in contact with vaccinated persons because the intestines secrete the virus. Usually, the virus so secreted is the same weakened type as was used in the vaccine. Hence, such...