St. Louis Univ. v. Hesselberg Drug Co.

• Decision Date: 14 November 2000
• Citation: 35 S.W.3d 451
• Parties: (Mo.App. E.D. 2000) St. Louis University, Appellant v. Hesselberg Drug Company, Respondent. ED77539
• Court: Missouri Court of Appeals

35 S.W.3d 451 (Mo.App. E.D. 2000)

St. Louis University, Appellant v. Hesselberg Drug Company, Respondent.

ED77539

Missouri Court of Appeals Eastern District

11/14/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. David C. Mason

Counsel for Appellant: Rex Carr

Counsel for Respondent: David P. Donovan

Opinion Summary: St. Louis University appeals the circuit court judgment dismissing SLU's claim for contribution against Hesselberg Drug Company.

Division One holds: SLU's action against Hesselberg is barred by the doctrine of collateral estoppel. The issue SLU seeks to litigate was previously decided by the United States District Court for the District of Maryland, which determined that SLU was unable to meet its burden of proof and granted summary judgment against SLU.

Richard B. Teitelman, Judge

Appellant St. Louis University (hereinafter, "SLU") appeals the judgment entered in the Circuit Court of the City of St. Louis granting Respondent Hesselberg Drug Company's motion to dismiss SLU's claim for contribution. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1978, a polio vaccine was administered to Daniel Callahan, Jr. by his pediatrician, Dr. Fetick. The vaccine Daniel received, Orimune, was manufactured and distributed by Lederle Laboratories, a division of American Cyanamid Co. ("Cyanamid") and sold to Dr. Fetick by Hesselberg Drug Company ("Hesselberg"). Daniel developed a bacterial infection a few weeks later. During treatment for the bacterial infection by the staff of Cardinal Glennon Hospital ("Cardinal Glennon"), it was discovered that Daniel had contracted poliomyelitis which resulted in permanent triplegia.

Daniel Callahan, by his next friend and mother, Vickie Callahan, filed suit against Cardinal Glennon; SLU, the staff physician's employer; Dr. Fetick; and Cyanamid in the Circuit Court of the City of St. Louis, Cause No. 852-00091. This suit consisted of medical malpractice claims against the medical providers and a products liability claim against the polio vaccine's manufacturer. Dr. Fetick entered into a settlement with the plaintiff before the trial. Daniel dismissed his claim against Cyanamid the day after corporate representatives of Cyanamid falsely testified in depositions that its polio vaccine was manufactured in compliance with federal regulations and no defective vaccine was ever distributed by Cyanamid.

The case proceeded to trial solely on the malpractice claims, and judgment was entered against Cardinal Glennon and SLU in the amount of $16,000,000.00 (later reduced to $15,710,000.00). Callahan v. Cardinal Glennon, et al., 863 S.W.2d 852 (Mo.banc 1993) (hereinafter, Callahan). The evidence showed that had Daniel Callahan been properly treated by Cardinal Glennon and SLU with the correct antibiotic, the endotoxins would not have been released in his immune system and the immune system would not have been suppressed to allow the polio virus to overcome the suppressed immune system, resulting in paralysis. SLU paid a total of $14,724,731.44 in satisfaction of that judgment. The only issue presented to and decided by the Callahan jury was whether Cardinal Glennon and SLU provided substandard care to Daniel in treating his bacterial infection. The issue of whether or not a defective vaccine contributed to Daniel's injuries was never presented to the jury.

It was subsequently discovered in actions filed against the United States in the United States District Court for the District of Maryland by other injured children that Cyanamid, the vaccine's manufacturer, had in fact failed to manufacture or test the polio vaccine administered to Daniel in compliance with government regulations. Discovery showed that Cyanamid's testimony in Callahan was false. Contribution suits followed. Cardinal Glennon, Dr. Fettick and SLU sought contribution from Cyanamid and Hesselberg in Missouri state court. SLU also brought suit against the United States in the federal district court, as the United States was responsible for regulation of production and approval for sale of the polio vaccine.

In the Missouri litigation, St. Louis University, et al. v. American Cyanamid Co., et al., Cause No. 942-11090, Cyanamid moved for partial summary judgment on the issue of causation, arguing that the Callahan malpractice judgment precluded SLU from establishing the causation necessary to prove that the polio vaccine manufactured and distributed by Cyanamid and retailed by Hesselberg was defective and caused Daniel to contract poliomyelitis and become paralyzed.

The Missouri case was voluntarily dismissed by SLU without prejudice on September 29, 1998, on Cyanamid's motion that the United States was an indispensable party to the action and the United States could not be served in Missouri. SLU then refiled in the Maryland District Court and attempted to join both Cyanamid and Hesselberg as defendants in a case to be consolidated with the pending federal tort claim against the United States. Hesselberg successfully contested personal jurisdiction in that court and was dismissed without prejudice.

In April 1999, the Maryland District Court in the federal tort claim ruled that the Callahan judgment collaterally estopped SLU from proving that the defective vaccine, and not SLU's negligence, caused Daniel's paralysis in its contribution action against the United States. St. Louis University v. United States, No. JFM-95-3639 (D.Md. Apr. 29, 1999).¹ The court determined that SLU had failed to meet its burden to prove causation because (1) the testimony of SLU's experts was insufficient to establish that the alleged excessive neurovirulence of the Orimune caused Danny Callahan to contract polio, and (2) because none of SLU's experts expressed an opinion that, if Danny Callahan had been given a vaccine that satisfied the neurovirulence requirements of the applicable regulations, he would not have contracted polio.

In July 1999, the same Maryland District Court ruled that the Callahan judgment also collaterally estopped SLU from litigating that issue in SLU's contribution claim against Cyanamid. American Cyanamid v. St. Louis University, No. JFM-99-1316 (D.Md. July 30, 1999). These orders have been appealed to the Fourth Circuit Court of Appeals. The appeals are pending.

In September, 1999, SLU refiled its contribution claim against Hesselberg in the Circuit Court of the City of St. Louis. Hesselberg moved to dismiss that action. Judge Mason granted Hesselberg's motion based on (1) SLU's failure to state a claim for failure to warn and (2) the alleged collateral estoppel effect of the Maryland District Court's rulings in SLU's actions against the United States and Cyanamid. SLU appeals from that Order.

On appeal, SLU argues that the trial court erred in (1) dismissing its strict liability contribution claim on the grounds that a drug retailer cannot be held liable for injuries due to a defective drug that the retailer could not have foreseen was defective, because SLU's contribution claim is based on a manufacturing defect, not failure to warn of foreseeable harm; and (2) dismissing its contribution claim under the doctrine of collateral estoppel because the trial court should not have relied on a federal court ruling that was inconsistent with the court's previous determination of the same issues. SLU argues that it did not have a full and fair opportunity to litigate whether a defective vaccine contributed to Daniel Callahan's injuries.

STANDARD OF REVIEW

We will affirm the judgment of dismissal if it can be sustained on any ground supported by the motion to dismiss. Id. Although the trial court's evidentiary findings warrant deference from this Court, that deference does not apply where the law has been applied in error. Ryan, 16 S.W.3d at 648 (citations omitted). We review all determinations of law de novo. Id.

Collateral estoppel is an affirmative defense. Rule 55.08. Sustaining a motion to dismiss based on an affirmative defense requires that the defense be irrefutably established by the pleadings. Ryan v. Ford, 16 S.W.3d 644, 648 (Mo.App. W.D. 2000), citing Murray v. Fleischaker, 949 S.W.2d 203, 205 (Mo.App. S.D. 1997). When reviewing the trial court's dismissal of a cause of action, we examine "the pleadings, allowing them their broadest intendment, treating all facts alleged as true, and construing the allegations favorably to the pleader." Bellos v. Winkles, 14 S.W.3d 653, 655 (Mo.App. E.D. 2000) (citation omitted).

DISCUSSION

Hesselberg's motion to dismiss argued that SLU is collaterally estopped from bringing this action and that SLU had failed to state a claim upon which relief may be granted. The trial court granted the motion on both grounds, determining that Hesselberg could not be liable when a Maryland federal court had already determined that SLU could not prove its theory of causation. Specifically, if SLU could not prove that the failure of Cyanamid, the drug's manufacturer, to meet federal regulations caused Danny Callahan to contract polio, then Hesselberg, the retail drug company from which the vaccine was purchased, was not strictly liable for being in the stream of...