Stahlheber v. American Cyanamid Co.

• Decision Date: 09 February 1970
• Docket Number: No. 54236,No. 1,54236,1
• Citation: 451 S.W.2d 48
• Parties: Virginia STAHLHEBER, Plaintiff-Respondent, and Robert Stahlheber, Plaintiff-Appellant-Respondent, v. AMERICAN CYANAMID COMPANY, Defendant-Appellant-Respondent
• Court: Missouri Supreme Court

Page 48

451 S.W.2d 48

Virginia STAHLHEBER, Plaintiff-Respondent and Robert Stahlheber, Plaintiff-Appellant-Respondent, v. AMERICAN CYANAMID COMPANY, Defendant-Appellant-Respondent.

No. 54236.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 9, 1970.

Sommers & Montrey, Don B. Sommers, St. Louis, for plaintiff-appellant.

Robertson, De Voto, Wieland & Lange, L. A. Robertson, Morton K. Lange, St. Louis, for defendant-appellant.

WELBORN, Commissioner.

Action for damages for personal injuries sustained by plaintiff Virginia Stahlheber, who alleged that she became afflicted with poliomyelitis from taking live virus polio vaccine, manufactured by Lederle Laboratories Division of defendant American Cyanamid Company. She sought damages of $450,000. Her husband, Robert Stahlheber, sought damages of $250,000 for the injuries sustained by his wife. A jury returned a verdict in favor of Virginia Stahlheber for $130,000 and in favor of Robert for $20,000. The defendant appeals from the judgment in favor of both plaintiffs. Plaintiff Robert Stahlheber appeals on the ground that the judgment in his favor is inadequate.

The case was tried on the theory that the defendant negligently failed to warn persons receiving its vaccine of the possibility that adult persons doing so might become afflicted with poliomyelitis.

Poliomyelitis is caused by a virus. Three types of virus, known as Type 1, Type 2 and Type 3, have been identified as causative agents. In 1949, Doctor Enders at Harvard discovered a process for tissue culture of polio virus. This discovery led to the development of vaccine for use against the disease. The first vaccine was produced by Doctor Salk and came into use around 1955. It involved the use of the killed virus, injected into persons.

Around 1955, Doctor Sabin developed a method for production of a live attenuated virus for use as a polio vaccine. An attenuated virus is one which has, through laboratory procedures, been rendered incapable, to the degree at which it is attenuated, of producing disease. The virus employed in live polio vaccine is weakened so that it will not produce the disease in the person receiving it but it will cause the production of antibodies which will thereafter resist the attack by a wild or virulent virus.

Originally, an oral live virus vaccine was administered separately for each of the three types of polio virus. Lederle was licensed by the Surgeon General of the United States for production of the separate or monovalent vaccine on March 27, 1962. On June 25, 1963, Lederle received a license for a trivalent vaccine, or one in which all three types of the attenuated live polio virus were used. The product was produced and sold by Lederle under the trade name 'Trivalent Orimune.'

No charge is here made that the product involved in this case was defective and we need not detail the evidence of defendant of the extensive precautions involved in the licensing and production of the product. Such evidence, in any event, would not be binding upon the plaintiffs.

City-County Charities, Inc., sponsored mass polio immunization programs in St. Louis and St. Louis County. It purchased Trivalent Orimune from Lederle and sponsored its use in 'feedings' on November 24, 1963, January 26, 1964, and April 5, 1964.

One of the 'feeding' stations was at the Crestwood School. Mrs. Stahlheber then 41 years of age, went to the school with her son on April 5, 1964, and took the dosage of Trivalent Orimune there provided for her.

Mrs. Stahlheber had no physical disability at that time except for a rectal abscess which had been discovered when she was hospitalized in December, 1963. The doctor told her that an operation would be required sometime in the future for repair of a fistula.

On April 16, Mrs. Stahlheber noticed a stiffness on the right side of her neck. She went out to lunch with a neighbor the next day, but her neck continued to bother her and the next day she noticed pains in her lower back. She did not feel well over the weekend and, at her husband's insistence, called her doctor on Monday to make arrangements to have the fistula taken care of.

Her physician, Doctor Passanante, told her to come to the Missouri Pacific Hospital on April 22. She did so and was admitted around noon on that date. Except for the cause of her admission, physical examination upon admission was negative. On the first night, she complained to the nurse of severe back pain. She was given a sedative, but it did not relieve her pain. Sometime after midnight she was examined by a doctor who tested the motion of her legs and suggested the possibility of a low back sprain.

Operative repair of the fistula was performed by Doctor Passanante on the morning of April 23. When Mrs. Stahlheber returned to her room from surgery, pain in her back and legs became worse. She was able to walk to the bathroom in the afternoon, but the pain continued to become more severe in her back. Sometime after midnight she noticed that she was unable to move her right leg. Doctor Passanante examined Mrs. Stahlheber early on the morning of the 24th. He found 'only minimal motor function of extensor and flexor groups, right lower extremity. Absent patellar reflex and very minimal ankle reflex * * * No absence of sensation noted.' Doctor Passanante ordered an immediate neurosurgical consultation. Mrs. Stahlheber was examined by Doctor Kendig, a neurosurgeon, who called in Doctor Gitt, a neurologist and psychiatrist. Doctor Gitt examined her, found paralysis of the right leg and a moderate weakness in all muscular movements of the left leg. His tentative diagnosis at that time was meningo-encephalomyelitis. Dr. George Hawkins also examined Mrs. Stahlheber on the 24th and made a note in her hospital record: 'Think this is probably virus--? Poliomyelitis.'

Mrs. Stahlheber's left leg became weaker and eventually both legs and both arms became involved. She could barely move her right finger, could move her left arm slightly, could move her left middle toe and could turn her head to the left.

At Doctor Gitt's suggestion, Mrs. Stahlheber was moved to Barnes Hospital on April 27 so that a respirator would be available should her breathing become involved. The discharge note states that Mrs. Stahlheber was transferred to Barnes 'with (?) signs of Landry's paralysis (?).' The discharge diagnosis at Missouri Pacific Hospital was: 'Landry's paralysis, undetermined.'

Mrs. Stahlheber's paralysis reached its peak about five days after her admission to Barnes. At that time she had lost the use of her right arm completely, could not turn her head and had no control of her bladder or bowel functions. She suffered excruciating pain, 'like hot corkscrews in my legs and my back and my neck.'

Mrs. Stahlheber was taken out of isolation at Barnes after five to seven days. Physical therapy treatment began. Originally, the treatment was in her hospital room. Later, she was taken on her bed to the physical therapy treatment area. Eventually, she went to physical therapy in a wheel chair in which she was tied with a towel.

Mrs. Stahlheber was discharged from Barnes on July 17, 1964. At that time she had no function in the muscles of the legs. Some function with weakness had returned to her arms and a slow gain in strength in those muscles was noted. She had regained bowel and bladder control.

The discharge diagnosis at Barnes was 'Post Infectious Myeloradiculopathy.'

After her discharge from the hospital, she returned for daily physical therapy for several months. Those treatments were reduced to twice a week, then once a month, and, at time of trial, once every four months.

At the time of trial, the condition of her left arm was 'pretty good.' Her right arm was bad; she could not sit up without support; her legs were useless. The only use or motion of her legs was ability to wiggle the left little toe. She was a bedpan patient. She was able, with the aid of a trapeze, to pull hereself to sitting position in her bed, but had to be assisted from the bed to a wheel chair.

On American Cyanamid's appeal, the first contention of appellant which we consider is that no submissible case was made because plaintiffs failed to produce substantial evidence that Mrs. Stahlheber was ever affected with poliomyelitis, Types 1, 2 or 3, or that there was any causal connection between the taking of defendant's vaccine and the disease which struck Mrs. Stahlheber.

Appellant's argument on this point rather well ignores the oftrepeated, elementary rule that on such a contention the evidence must be considered in the light most favorable to the successful party, disregarding evidence of the losing party except insofar as it might aid the successful party. In fact, the argument ignores appellant's statement of the case which, because it clearly demonstrates the substantial nature of plaintiffs' evidence on the nature and cause of Mrs. Stahlheber's illness, we adopt and here set out at length (omitting transcript references):

'Five doctors testified on behalf of plaintiff, and clinically diagnosed plaintiff's illness as poliomyelitis, and expressed the belief that it was caused by the ingestion of the oral polio vaccine manufactured by the defendant.

'Dr. Richard Maxwell, the former Director of the Isolation Hospital in St. Louis for ten years prior to and until 1950, who had seen over 600 polio patients during that time, testified that he had examined Mrs. Stahlheber and had also reviewed the hospital records and found what he considered to be a residual of poliomyelitis. He said he thought it was reasonably probable that she had had poliomyelitis and that it was reasonably probable that there was a causal connection between the oral vaccine and the development of the disease. He said that the virology work-up contained in the hospital records did not play a part in his diagnosis of poliomyelities...