ROHRBOUGH BY ROHRBOUGH v. Wyeth Laboratories, Inc.

• Decision Date: 10 August 1989
• Docket Number: Civ. A. No. 85-121-C.
• Citation: 719 F. Supp. 470
• Parties: Tyressa Jane ROHRBOUGH, an infant who sues by Donald E. ROHRBOUGH, her parent and next friend, and Donald E. Rohrbough and Debby S. Rohrbough, Plaintiffs, v. WYETH LABORATORIES, INC., a corporation, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

719 F. Supp. 470

Tyressa Jane ROHRBOUGH, an infant who sues by Donald E. ROHRBOUGH, her parent and next friend, and Donald E. Rohrbough and Debby S. Rohrbough, Plaintiffs, v. WYETH LABORATORIES, INC., a corporation, Defendant.

Civ. A. No. 85-121-C.

United States District Court, N.D. West Virginia, Elkins Division.

August 10, 1989.

COPYRIGHT MATERIAL OMITTED

Kathy Allen, Gerald Jones, Larry O. Ford, Jones, Williams, West & Jones, Clarksburg, W.Va., for plaintiffs.

John M. Slack, III, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., Hedy M. Powell, Wyeth Laboratories, Philadelphia, Pa., Lowell S. Fine, Jane Fugate Thorpe, Harvey Spiegel, Alembik, Fine & Callner, P.A., Atlanta, Ga., for defendant.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

The minor plaintiff in this action suffers from a mixed seizure disorder that she claims was caused by a vaccine manufactured by the defendant. The defendant now moves for summary judgment on all claims, and in a separate motion claims that the plaintiff has failed to present sufficient evidence that Wyeth's vaccines caused the plaintiffs' injuries.

I. Background

Wyeth manufactures Wyeth Diphtheria and Tetanus Toxoids and Pertussis Vaccine Absorbed Aluminum Phosphate Absorbed Ultrafined Triple Antigen ("Wyeth DTP"), a combination of three immunizing agents for use in immunization of infants and children against the diseases of diphtheria, tetanus and pertussis, or whooping cough. Wyeth also manufactures Wyeth Diphtheria and Tetanus Toxoid Absorbed Aluminum Phosphate Absorbed Ultrafined Pediatric ("Wyeth DT"), a combination of diphtheria and tetanus toxoids used to immunize infants and children against diphtheria and tetanus.

The minor plaintiff was born on September 14, 1983. She was first administered a DTP vaccine on November 29, 1983, and suffered no unusual effects. She was administered a DTP vaccine on February 2, 1984. That vaccine was from Lot 74101 of the Wyeth DTP. Later that day, she suffered a seizure which required hospitalization. She was administered a half-dose of Wyeth DT on March 22, 1984. The following day, she experienced another seizure. Since that time she has become profoundly retarded and has suffered repeated seizures, which some doctors have diagnosed as a seizure disorder described clinically as Lennox-Gastaut Syndrome. Lennox-Gastaut is a label for a set of symptoms, rather than an identifiable disease. The minor plaintiff and her parents are now suing Wyeth, claiming design and manufacturing defects, breach of express and implied warranties and failure to warn.

Ideally, vaccines are manufactured from portions of the bacteria that cause a particular disease or the toxins that the bacteria naturally secrete. Many vaccines, such as the tetanus component of Wyeth's DTP, do not actually include parts of the bacteria; rather, they are manufactured by collecting the toxins secreted by the bacteria, rendering them harmless (known as converting the toxins to toxoids), and making the vaccine from the toxoids. In other cases, the vaccine may be manufactured from portions of the bacterium cell. Unfortunately, the medical community is uncertain which toxins or proteins are necessary components of a pertussis vaccine. Therefore, the Wyeth DTP vaccine, approved by Bureau of Biologics of the Food and Drug Administration (FDA), is a "whole cell" vaccine. That is, it is manufactured from whole killed cells of Bordetella pertussis, the bacteria that causes pertussis. Making a vaccine from the whole cell apparently guarantees that all of the necessary components are included. Whole cell vaccines are the only type approved for use in this country, and the federal government allegedly encourages administration of the whole cell vaccine to all children.

Although the whole cell vaccine has proven very effective in preventing pertussis, it also causes side effects in a small percentage of the population. These side effects may range from temporary swelling around the point of injection to the severe seizures and brain damage suffered by Tyressa Rohrbough. Because of these side effects, researchers are attempting to develop an "acellular" vaccine that is either made from toxins or that includes only the components necessary to prevent the disease. To date, several acellular vaccines have been developed, including two known as "B" and "T" type. No acellular vaccine has been approved for use in the United States, because the FDA is not convinced that existing acellular vaccines are either as effective as the whole cell vaccine or any safer.

The defendant is moving for summary judgment, arguing that the plaintiffs cannot sustain their burden of proof on any claim, and also that the plaintiffs' expert witnesses have not been able to offer any affirmative evidence of causation.

II. Causation

In order to maintain a cause of action in tort against the defendant, the plaintiffs must establish that the defendant's vaccines caused the minor plaintiff's injuries. Because the subject matter of the case is of a high degree of scientific complexity, proof of causation must be by expert testimony. Hicks v. Chevy, 358 S.E.2d 202, 205 (W.Va.1987); Fitzgerald v. Manning, 679 F.2d 341, 350 (4th Cir.1982). Because the defendant has moved for summary judgment, the plaintiffs may not rest on their pleadings, but must come forward with evidence —in the form of affidavits, deposition testimony, answers to interrogatories or admissions — that demonstrates the existence of a genuine issue of material fact. F.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The plaintiffs have offered the testimony of three experts: Dr. John Tilelli, an expert in pediatrics and toxicology, Dr. Patricia Crumrine, an expert in pediatric neurology and the plaintiff's treating physician, and Dr. William Cox, an expert in pathology.

Dr. Tilelli's only statement on the subject of causation was that, "Use of the descriptive term Lennox Gastaut to describe the seizure pattern displayed by Tyressa Rohrbough would not contraindicate DTP vaccine as a possible cause of her injuries." Tilelli Affidavit at paragraph 17. Dr. Crumrine testified that she could not "say to a reasonable degree of medical certainty" that the plaintiff's seizure disorder would be any different had she not received the two vaccinations she did, Crumrine Deposition at 85, or that the disorder was due to the vaccine. Id. at 40. Neither Dr. Tilelli nor Dr. Crumrine is willing affirmatively to attribute the minor plaintiff's injuries to the vaccine, although neither is willing to rule it out.

Dr. Cox testified at his deposition, on November 22, 1988, that he does not believe that the DT vaccine causes brain damage. Cox Deposition at 139. As for the DTP vaccine, he gave a series of possible "mechanisms" by which it may cause injury, but was unable to state which of these mechanisms might have been at work in the plaintiff, and admitted that it was possible that none was. Id. at 74. He testified that he would defer to the pediatric neurologist concerning the plaintiff's diagnosis, id. at 128, but was willing to state that, if the minor plaintiff had infantile spasms or Lennox-Gastaut, "it would be unrelated to her DTP." Id. at 117.

The strongest testimony that Dr. Cox could muster in favor of the plaintiffs' case during his deposition was that, in his opinion, "following the second immunization shot that she received, ... the manifestations that she subsequently demonstrated were consistent with those which have been repeatedly demonstrated in the literature to be associated with a reaction to the pertussis component of DTP." Cox Deposition at 24. This simply says that the reaction and the vaccine have been temporally linked in other cases; it does not say that they have been causally linked in other cases, much less in the present case.

Were the above the only expert opinion available, summary judgment would be unproblematic. There is nothing in the deposition testimony of Drs. Crumrine or Cox, or the affidavit of Dr. Tilelli that affirmatively supports the plaintiffs' theory of causation. However, in an affidavit dated May 9, 1989, `and attached to the plaintiffs' Memorandum in Opposition to Wyeth Laboratories, Inc.'s Motion for Summary Judgment on Causation Issues, Dr. Cox states:

9. It is my opinion that the DPT vaccine administered to Tyressa Rohrbough on February 2, 1984 caused the neurological injuries from which she has suffered and continues to suffer.

Standing alone, this statement would defeat the motion for summary judgment. For two different reasons, however, this statement may not be eligible to play this role. First, if a statement in an affidavit that contradicts earlier deposition testimony constitutes an attempt by the nonmoving party to create a sham issue of fact, it may be disregarded. Second, an expert opinion, submitted in opposition to a summary judgment motion, may be disregarded if it is not supported by facts.

Six circuits, including the Fourth, have held that "a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir.1986); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Barwick v. Celotex Corp., 736 F.2d 946, 959-60 (4th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir.1983); but see Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980). This is so because, "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary...