Shackil v. Lederle Laboratories, a Div. of American Cyanamid Co.

Decision Date31 July 1989
Citation561 A.2d 511,116 N.J. 155
Parties, 58 USLW 2104, Prod.Liab.Rep. (CCH) P 12,244 Clara Morgan SHACKIL, Albert Shackil, and Deanna Marrero, p/p/a her mother and next friend, Clara Morgan Shackil, Plaintiffs-Respondents, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.; and Parke-Davis, a division of Warner-Lambert Co., and Eli Lilly and Company, Defendants-Appellants, and Wyeth Laboratories, a division of American Home Products Corporation; Wyeth Laboratories, Inc.; Pittman-Moore and its successor, The Dow Chemical Company and Leo Feld, M.D., Defendants.
CourtNew Jersey Supreme Court

J. Peter Coll, Jr., a member of the New York bar, for defendants-appellants Lederle Laboratories (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, Livingston, attorneys, J. Peter Coll, Jr. and James L. Melhuish, of counsel, James L. Melhuish, Livingston, and William J. Ruane, on the briefs).

Myron J. Bromberg, for defendant-appellant Parke-Davis (Porzio, Bromberg & Newman, attorneys, Anita Hotchkiss, of counsel, Moira L. Brophy and Lauren E. Handler, Morristown, on the briefs).

John L. McGoldrick, for defendant-appellant Eli Lilly and Co. (McCarter & English, attorneys, Marie S. Woodbury, a member of the Kansas and the Missouri Bars and Harvey L. Kaplan, a member of the Missouri Bar, of counsel; John L. McGoldrick, Marie S. Woodbury, Harvey L. Kaplan, John F. Brenner, Keith E. Lynott, and Jerry P. Sattin, on the briefs).

Jan R. Schlichtmann, a member of the Massachusetts bar, for plaintiffs-respondents (Blume, Vazquez, Goldfaden, Berkowitz & Oliveras, attorneys, John M. Blume, Newark, and Michael R. Hugo, a member of the Massachusetts bar, of counsel).

Thomas F. Campion submitted a brief on behalf of amici curiae Merck & Co., Inc., Abbott Laboratories, and The Upjohn Co. (Shanley & Fisher, Morristown, attorneys for Merck & Co., Inc., Tompkins, McGuire & Wachenfeld, Newark, attorneys for Abbott Laboratories, and Lamb, Hartung, Coughlin, Kretzer & Reinman, Jersey City, attorneys for The Upjohn Co., Thomas F. Campion, Joan S. Antokol, Morristown, and Larry M. Pollack, Wayne, on the briefs).

John B. Kearney and John Philip Kirchner submitted a brief on behalf of amicus curiae American Academy of Pediatrics (Kenney & Kearney, Cherry Hill, attorneys).

Arthur Ian Miltz, Livingston, submitted a brief on behalf of amicus curiae Association of Trial Lawyers of America, New Jersey Branch (Miltz & Mantel, attorneys, Arthur Ian Miltz and Marc E. Lesser, Livingston, on the brief).

Charles J. Walsh submitted a brief on behalf of amici curiae E.R. Squibb & Sons, Inc., McNeilab, Inc., Ortho Pharmaceutical Corp., and Janssen Pharmaceutica, Inc. (Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, attorneys, Charles J. Walsh, Stuart M. Feinblatt, and Kathleen Burns, Newark, on the brief).

The opinion of the Court was delivered by


This is a medical-malpractice and products-liability action arising out of the 1972 inoculation of the infant plaintiff with a combined diphtheria-pertussis-tetanus vaccine, commonly known as DPT vaccine. Despite extensive discovery, plaintiffs were unable to identify the manufacturer of the DPT vaccine administered to the infant plaintiff. The issue is whether, in the context of childhood vaccinations, New Jersey should substitute for the element of causation-in-fact a theory of "market share" liability, thereby shifting to defendant manufacturers the burden of proof on the issue of causation.

We conclude that the imposition of a theory of collective liability in this case would frustrate overarching public-policy and public-health considerations by threatening the continued availability of needed drugs and impairing the prospects of the development of safer vaccines. Moreover, we are satisfied that an alternative compensation scheme established by Congress, entitled the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.A. §§ 300aa-1 to -34 (West Supp.1988), will fulfill in large measure the goal of providing compensatory relief to vaccine-injured plaintiffs.

We therefore reverse the judgment of the Appellate Division and reinstate summary judgment in favor of defendant manufacturers.


Underlying this appeal is a profound human tragedy. On October 24, 1972, two days before her second birthday, plaintiff Deanna Marrero was given a final "booster" shot of a DPT vaccine by Dr. Feld, defendant pediatrician. Plaintiff Clara Morgan Shackil, the child's mother, noticed that within twenty-four hours of the inoculation Deanna displayed symptoms of extreme pain. The rapid deterioration of her condition resulted in the loss of her then-acquired verbal, motor, and mental capacities. Deanna, now eighteen years of age, has been diagnosed as having chronic encephalopathy and severe retardation. She is institutionalized and requires constant care.

In April 1985, thirteen years after the inoculation that allegedly caused plaintiff's condition, Deanna Marrero and her parents brought suit against Dr. Feld and Lederle Laboratories, one of the manufacturers of DPT during 1971-72. The complaint asserted theories of negligence, breach of warranty, misrepresentation, and strict liability based on design defect. Plaintiffs' delay in filing suit was occasioned by the fact that it was not until 1984 that Mrs. Shackil became aware of the linkage between brain damage and the pertussis portion of the DPT vaccine.

Largely because of the extensive time that had elapsed between the inoculation and the lawsuit, plaintiffs were unable to establish that Lederle Laboratories in fact manufactured the vaccine that caused Deanna's injuries. The pediatrician, Dr. Feld, retained no records that would have revealed the brand name of the vaccine administered, and his pharmacist is no longer alive. In his deposition, Dr. Feld testified that he had used Lederle's vaccine "for the most part"; however, he also indicated that on occasion he had used DPT vaccines manufactured by Eli Lilly, Wyeth Laboratories, Parke-Davis, and Pitman-Moore. Dr. Feld did not mention the name of National Drug Company, the only remaining manufacturer of DPT at the time of Deanna's inoculation.

Plaintiffs amended their complaint to include the additional manufacturers referred to in Dr. Feld's deposition but not National Drug Company. After several months of discovery however, plaintiffs were still unable to identify the manufacturer of the vaccine administered to Deanna. Consequently, defendants Lederle, Eli Lilly, Wyeth, and Parke-Davis moved for summary judgment based on plaintiffs' failure to satisfy an essential element of a prima facie case--the identity of the manufacturer and distributor of the DPT dosage.

Relying on Namm v. Charles E. Frosst & Co., 178 N.J.Super. 19, 427 A.2d 1121 (App.Div.1981), the trial court granted defendant manufacturers' motions for summary judgment and entered orders dismissing the complaints as to those defendants. The Appellate Division granted leave to appeal and reversed. Shackil v. Lederle Laboratories, 219 N.J.Super. 601, 530 A.2d 1287 (1987).

In the Appellate Division the case produced three opinions, two leading to a reversal and remand, and one to an affirmance. The lead opinion explained that although the trial court was correct in relying on Namm to dismiss the complaint, the Appellate Division's role was "to determine what the Supreme Court would do if faced with the problem before us." 219 N.J.Super. at 621, 530 A.2d 1287. The lead opinion held that the rejection of collective liability theories, "which have been developed in states with views of tort law similar to our own[,] would be an unwarranted deviation from what we believe to be a course already charted by our Supreme Court." Ibid.

The lead opinion examined and summarized the current theories of concert of action, alternative liability, enterprise liability, and market-share liability, id. at 622-30, 530 A.2d 1287, as do we, infra at 514-515. According to the lead opinion a "risk-modified market share" approach was most aptly suited to the circumstances of this case. Under that approach

[a] plaintiff should first demonstrate that the specific manufacturer of a defective product proven to have caused the injury cannot be identified, and join the manufacturers of a substantial share of the relevant market, defined as all who could have distributed the product to the plaintiff. Once this has been accomplished, the burden is placed on the defendants to exculpate themselves by proving either non-participation, possession of a reduced market share or that their product engendered a lower risk. Our aim should be to determine the percentage of the potential risk to the plaintiff caused by each manufacturer of the product, and in this respect our resolution of this issue departs somewhat from a pure market share analysis. [Id. at 630-31, 530 A.2d 1287.]

Under the lead opinion, on remand the trial court was to impose risk-modified market-share liability as a substitute for the causation-in-fact requirement "only if the standards to which plaintiffs seek to hold defendants have not been preempted by federal regulation, and if plaintiffs otherwise demonstrate that the product, with its recognized utility, was indeed defective, given the existing technology when it was manufactured and distributed." Id. at 634, 530 A.2d 1287 (citing Feldman v. Lederle Laboratories, 97 N.J. 429, 452, 479 A.2d 374 (1984)).

A second opinion, concurring in the judgment of remand and not foreclosing the availability of market-share liability, agreed that reliance on Namm, supra, 178 N.J.Super. 19, 427 A.2d 1121, would be misplaced, and that a remand would appropriately "permit development of an adequate record from which the Supreme Court can review the matter in the context of specific factfinding." 219 N.J.Super. at 640-41, 530 A.2d 1287. The concurring member added that the remand should...

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