Rohrbough v. Wyeth Laboratories, Inc.
| Decision Date | 23 October 1990 |
| Docket Number | No. 89-3315,89-3315 |
| Citation | 916 F.2d 970 |
| Parties | Prod.Liab.Rep.(CCH)P 12,629 Tyressa Jane ROHRBOUGH, an infant who sues by Donald E. Rohrbough, her parent and next friend, and Donald E. Rohrbough and Debby S. Rohrbough, individually, Plaintiff-Appellant, v. WYETH LABORATORIES, INC., a corporation, Defendant-Appellee, United States of America, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jerald Elton Jones (argued), Kathryn K. Allen (on brief), West & Jones, Clarksburg, W.Va., for plaintiff-appellant.
Lowell Steven Fine (argued), Alembik, Fine & Callner, P.A., Atlanta, Ga., John M. Slack, III, Jackson & Kelly, Charleston, W.Va., Hedy M. Powell, Julia Feliciano, Wyeth-Ayerst Laboratories, Michael T. Scott, Reed, Smith, Shaw & McClay (on brief), Philadelphia, Pa., for defendant-appellee.
Stuart M. Gerson, Asst. Atty. Gen., Michael Jay Singer, William G. Cole, Civ. Div., U.S. Dept. of Justice, Michael J. Asture, General Counsel, Dept. of Health and Human Services, Washington, D.C., Catherine C. Lorraine, Associate Chief Counsel for Enforcement, Food & Drug Admin., Rockville, Md., for amicus curiae.
Before WIDENER, PHILLIPS and MURNAGHAN, Circuit Judges.
Tyressa J. Rohrbough and her parents, Donald E. and Debby S. Rohrbough, appeal from the district court's grant of summary judgment against them in their products liability action against Wyeth Laboratories, Inc. (Wyeth). Because we agree with the district court that plaintiffs adduced insufficient evidence that Wyeth's product caused the injuries in question, we affirm.
In reviewing the district court's grant of summary judgment, we view the underlying facts in the light most favorable to the Rohrboughs. See Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988). Tyressa Rohrbough was born on September 14, 1983. On November 29, 1983, Tyressa received her first diphtheria, tetanus, and pertussis (DTP) vaccination, which caused her no ill effects. Tyressa received her second DTP shot on February 2, 1984, and later that day she suffered a seizure that necessitated her hospitalization. Wyeth manufactured the DTP vaccine given to Tyressa on February 2. Tyressa was released from the hospital after experiencing no further seizures, and she received a one-half dose of DT 1 vaccine, also manufactured by Wyeth, on March 22 or 23, 1984. Tyressa suffered a second seizure and was rehospitalized. Since that time, Tyressa continues to suffer repeated seizures and developmental retardation.
The Rohrboughs filed a seven-count products liability action against Wyeth on June 6, 1985, alleging that the vaccines proximately caused Tyressa's condition. Plaintiffs' theories of liability included design and manufacturing defects, breach of express and implied warranties, and failure to warn. 2 After ample time for discovery, and almost four years after plaintiffs commenced this action, Wyeth filed two motions for summary judgment, one of which concerned the issue of causation. 3 On August 10, 1989, the district court entered its order granting summary judgment for Wyeth, and plaintiffs now appeal. 719 F.Supp. 470.
An essential element of plaintiffs' cause of action is proof that defendant's vaccine caused plaintiffs' injuries, and proof of causation must be by expert testimony. Cf. Hicks v. Chevy, 358 S.E.2d 202, 205 (W.Va.1987). 4 In addition, an expert's opinion as to proximate cause must be stated in terms of reasonable probability. See Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335, 340 (1980). 5
As the district court noted, 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 minor plaintiff's treating physician; and Dr. William Cox, an expert in pathology. Although we decline to base our decision on the existence or absence of any particular language, the district court's grant of summary judgment for Wyeth was appropriate and called for unless the testimony of at least one of these experts fairly establishes that it is reasonably probable that Wyeth's vaccine caused Tyressa Rohrbough's condition.
Dr. Tilelli's affidavit states that "[u]se of the descriptive term Lennox Gastaut to describe the seizure pattern displayed by Tyressa Rohrbough would not contraindicate DPT vaccine as a possible cause of her injuries." 6 Dr. Tilelli does not claim that the vaccine probably caused Tyressa Rohrbough's injuries. Rather, Dr. Tilelli only asserts that use of the term Lennox Gastaut would not rule out the vaccine as a possible cause.
In her deposition, Dr. Crumrine, Tyressa Rohrbough's treating physician, testified concerning the cause of her patient's condition as follows:
I guess you can't say, then, that to a reasonable degree of medical certainty or scientific certainty that DPT vaccine caused Tyressa's first seizure on February 4, [sic] 1984?
(Footnote added.) The above questions admittedly were propounded in terms of a somewhat higher standard of proof than plaintiffs must satisfy. See Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335, 340 (1980) (). Although it stretches the imagination to say that Dr. Crumrine's testimony would have been any different had the questions incorporated a differing standard of proof, that is, that she would have given her opinion that the vaccine was the reasonably probable cause in spite of her testimony that she could not determine a cause to a reasonable degree of medical certainty, we need not rely on intuition. The question is not what Dr. Crumrine would have said, but what she did say, and she simply did not testify that the vaccine was a reasonably probable cause of the infant's condition. Thus, Dr. Crumrine's deposition testimony and Dr. Tilelli's affidavit are insufficient evidence upon which a jury verdict for plaintiffs might be based and thus defeat defendant's motion for summary judgment. 8
Like the testimony of his colleagues, Dr. Cox's deposition testimony does not support plaintiffs' sought-for conclusions. Dr. Cox testified at length concerning the possible ways by which DTP vaccine might cause neurological damage such as that displayed by Tyressa Rohrbough. When questioned concerning the cause of Tyressa's problems, however, Dr. Cox declined to state that in his opinion Tyressa's injuries were caused by Wyeth's vaccine:
(J.A. at 995.) When asked directly whether he had an opinion as to the cause of the minor plaintiff's condition, Dr. Cox testified as follows:
My opinion is that following the second immunization shot that she received, that 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 DPT.
(J.A. at 945.) This testimony, the most favorable to plaintiffs that Dr. Cox provided in his deposition, still does not suffice to establish an issue of proximate cause for summary judgment purposes. As the district court recognized, all Dr. Cox established was that a temporal link existed in other cases between the vaccine and a reaction like that displayed by Tyressa Rohrbough. Dr. Cox did not testify that the literature supported a causal link between the vaccine and the reaction in other cases, much less that the vaccine caused the reaction in this particular case.
We agree with the district court that, if limited to the evidence set forth above, summary judgment in this case would be "unproblematic." In an affidavit attached to plaintiffs' response to defendant's motion for summary judgment, however, Dr. Cox states:
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.
This statement alone would appear to defeat defendant's motion for summary judgment unless, as the district court found, Dr. Cox's affidavit is in such conflict with his earlier deposition testimony that the affidavit should be disregarded as a sham issue of fact.
In Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir.1984), this court considered a situation in which a plaintiff, when faced with a summary judgment motion, submitted an affidavit that contradicted his prior sworn deposition testimony:
"If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit...
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