Sheehan v. Pima County, 2

• Decision Date: 14 December 1982
• Docket Number: CA-CIV,No. 2,2
• Citation: 135 Ariz. 235,660 P.2d 486
• Parties: Mary SHEEHAN, individually as surviving wife of Daniel J. Sheehan, deceased and on behalf of the surviving children of the deceased, Plaintiff/Appellant/Cross Appellee, v. PIMA COUNTY, Arizona, a political subdivision and the Board of Supervisors, Defendants/Appellees, and Lederle Laboratories, a foreign corporation; American Cyanamid Co., a foreign corporation; Pfizer, Inc., dba Pfizer Laboratories Division, Defendants/Appellees/Cross Appellants. 4284.
• Court: Arizona Court of Appeals

Page 486

660 P.2d 486

135 Ariz. 235

Mary SHEEHAN, individually as surviving wife of Daniel J. Sheehan, deceased and on behalf of the surviving children of the deceased, Plaintiff/Appellant/Cross Appellee, v. PIMA COUNTY, Arizona, a political subdivision and the Board of Supervisors, Defendants/Appellees and Lederle Laboratories, a foreign corporation; American Cyanamid Co., a foreign corporation; Pfizer, Inc., dba Pfizer Laboratories Division, Defendants/Appellees/Cross Appellants.

No. 2 CA-CIV 4284.

Court of Appeals of Arizona Division 2.

Dec. 14, 1982.

Rehearing Denied Feb. 4, 1983.

Review Denied March 8, 1983.

Ettinger & Deckter, P.C. by Louis L. Deckter and Jack A. Ettinger, Tucson, for plaintiff/appellant/cross appellee

Leonard Everett, Tucson, for defendant/appellee Pima County.

Chandler, Tullar, Udall & Redhair by D.B. Udall, Tucson, for defendants/appellees/cross appellants Lederle Laboratories & American Cyanamid Co.

Fish, Briney, Duffield, Miller, Young & Adamson, P.C. by Richard Briney and Richard Duffield, Tucson, for defendant/appellee/cross appellant Pfizer, Inc.

OPINION

HOWARD, Chief Judge.

This is a wrongful death action. Daniel J. Sheehan died after contracting polio from his daughter, Nuria, who had been given a dosage of the Sabin Oral Polio Vaccine.

Appellant filed this lawsuit against appellees based upon strict liability in tort contending that since the vaccine was unavoidably unsafe, the failure to warn them of the danger of contact polio rendered the product defective. See Restatement (Second) of Torts, § 402(A), Comment k. The jury returned a defense verdict, hence this appeal. The drug companies have filed cross-appeals which will be treated as cross-issues since they prevailed below and are not aggrieved parties. See DeLozier v. Smith, 22 Ariz.App. 136, 524 P.2d 970 (1974); Aegerter v. Duncan, 7 Ariz.App. 239, 437 P.2d 991 (1968).

On November 16, 1976, Mary Sheehan took her two-month-old daughter, Nuria, to a northside Tucson "Well Baby Clinic" so that Nuria could receive her polio vaccine. The order for the vaccine was given by a pediatric nurse practitioner and administered by a licensed practical nurse. Although there was a medical doctor present at the clinic, this doctor did not see the Sheehans. "Well Baby Clinics" are operated by the Pima County Health Department out of five substations in the Tucson area. They provide free preventative services to children up to six years of age.

The Sabin Oral Polio Vaccine contains a live attenuated virus. It is undisputed that the deceased died from a case of contact polio due to the vaccine administered to his daughter.

The original polio vaccine was discovered by Jonas Salk. It was administered by an intramuscular injection and the vaccine contained no live virus. Dr. Sabin discovered an oral vaccine which used a live virus and is administered orally. After the Sabin vaccine came on the market it replaced the Salk vaccine since Sabin was considered by the American Academy of Pediatricians and applicable federal authorities as more effective than the Salk vaccine. In 1976, although the Salk vaccine was licensed for use in the United States, it was not being manufactured here and there was evidence that for all intents and purposes it was not available. The evidence disclosed that the chance of getting contact polio from the Sabin vaccine was 1 in 5,000,000. The evidence also disclosed that Mrs. Sheehan was never warned by appellee about this risk.

Appellant presents the following issues for review. Did the trial court err (1) in denying her motion for judgment notwithstanding the verdict or for a new trial; (2) in refusing her requested Instruction # 4; (3) in denying her motion in limine; (4) in admitting evidence of the receipt of Social Security benefits by Mary Sheehan; (5) in admitting evidence of the number of reported contact polio cases per million population, and (6) in refusing to admonish the jury when counsel for Pima County was allegedly guilty of misconduct?

As we have previously noted, the drug companies filed "cross-appeals." They contend they were entitled to a directed verdict because there was no proof as to which drug company manufactured the vaccine given to Nuria. Lederle separately contends that it complied with applicable case law by obligating the state to give the purchaser (user) a warning. See Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir.1968). ¹ Pfizer separately contends that since the vaccine is a prescription drug, it cannot be held liable. See Dyer v. Best Pharmacal, 118 Ariz. 465, 577 P.2d 1084 (App.1978). Since we do not agree with appellant's contentions, we need not decide these cross-issues.

The first two questions appellant presents are inextricably intertwined. The trial court denied appellant's request to give the following instruction:

"Where a user is injured by a product distributed without a required warning it is presumed that the user would have read any warning provided and acted so as to minimize the risk." (Emphasis added)

Appellant contends the trial court erred in refusing this instruction and that the presumption mentioned therein was never rebutted, thus mandating the court's entry of judgment n.o.v. or a new trial. We do not agree.

Appellant's authority for her proposed instruction is the case of Reyes v. Wyeth Laboratories, Inc., 498 F.2d 1264 (5th Cir.1974), cert. den. 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688. Reyes involved the contracting of paralytic poliomyelitis through ingestion of the Sabin vaccine by an eight-month-old child who was given the vaccine at a county health clinic by a public health nurse who had read the warning contained in the package insert but who did not pass the warning on to the child's mother. On the issue of proximate cause and the warning, the court stated:

"... Where a consumer, whose injury the manufacturer should have reasonably foreseen, is injured by a product sold without a required warning, a rebuttable presumption will arise that the consumer would have read any warning provided by the manufacturer, and acted so as to minimize the risks. In the absence of evidence rebutting the presumption, a jury finding that the defendant's product was the producing cause of the plaintiff's injury would be sufficient to hold him liable.

Such a test makes sense in this case. The jury found that the defendant's polio vaccine caused Anita Reyes's polio. Testimony by her mother as to what she would have done, had proper warnings been provided, would have been both speculative and self-serving. Thus we turn to the Technical Chemical presumption that a warning, had it been given, would have been heeded. Buttressing the presumption that Mrs. Reyes might have taken preventive steps is the testimony of Reyes' expert, Dr. Ramiro Casson, that some pediatricians in Hidalgo County, at least by the time of trial, had begun administering killed-virus vaccine to infants in order to build up their level of antibodies before feeding them the live-virus drug. Tending to rebut the presumption that Mrs. Reyes would have behaved differently had she been warned was the fact that she twice returned to the Mission Clinic for further doses of vaccine, even after Anita contracted polio. Yet it is patent from her testimony that Mrs. Reyes had not, even then, been informed of the danger of the polio vaccine, and did not in fact understand what medication Anita was to receive. The legal presumption suggested by the Technical Chemical opinion thus operates here to provide the final element necessary to hold Wyeth Laboratories liable for Anita Reyes' poliomyelitis. Aware of its unavoidable dangers and cognizant that it foreseeably would not be dispensed as a prescription drug, Wyeth nonetheless failed to warn Mrs. Reyes that its vaccine could cause polio in some few of the millions receiving the medication. Administered without a warning, the vaccine was 'defective', hence unreasonably dangerous. According to the test we have distilled above, we must assume in the absence of evidence to the contrary that Anita's parents would have acted on the warning, had it been given. Perhaps this would have prevented her polio. It unquestionably would have avoided Wyeth's liability."

The Technical Chemical case mentioned is the case of Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.1972) which involved a suit against a manufacturer of a can of freon which exploded in the plaintiff's hand as he was attempting to put its contents into the air-conditioning unit of his automobile. The plaintiff in Technical Chemical attached a hose from the high pressure side of his air conditioning compressor to a can of freon rather than joining a hose from the low pressure side which was the proper procedure and the can exploded. The explosion was a possible result which the directions on the can's label did not mention.

The proferred instruction here tells the jury that it can presume that if the Sheehans had been warned about the possibility of contact polio, they would not have allowed Nuria to receive the vaccine. We do not believe such an instruction is applicable to the facts here. ² The stated presumption is, in essence, a presumption of due care. It "... is founded on a law of nature and has for its motives the fear of pain, maiming and death." Davis v. Boggs, 22 Ariz. 497, 508, 199 P. 116, 120 (1921). If a person is warned that if he fails to hook up the air conditioning hose a certain way the...