MARK MORENO v. AMERICAN HOME PRODUCTS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3935-07T23935-07T2

MARK MORENO, an adult

incapacitated person,

EILEEN MORENO, mother and

natural guardian of MARK

MORENO, an adult incapacitated

person, and EILEEN MORENO,

individually,

Plaintiffs-Appellants,

v.

AMERICAN HOME PRODUCTS, INC.,

AMERICAN CYANAMID COMPANY,

PFIZER, INC., PFIZER, LTD.,

WYETH LABORATORIES, INC. and

WYETH PHARMACEUTICALS, INC.,

Defendants-Respondents.

____________________________________

 

Argued December 8, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-577-02.

Stanley P. Kops (Law Offices of Stanley

P. Kops) of the Pennsylvania bar,

admitted pro hac vice, argued the cause

for appellants (MacLachlan Law Offices,

and Mr. Kops, attorneys; Donald S.

MacLachlan and Mr. Kops, on the brief).

Kenneth R. Meyer argued the cause for

respondents Pfizer, Inc. (formerly Chaz

Pfizer & Co., Inc.) and Pfizer, Ltd.

(Porzio, Bromberg & Newman, attorneys;

Mr. Meyer, of counsel and on the brief;

Brian P. Sharkey and Genevieve M. Spires,

on the brief).

Roger W. Yoerges (Steptoe & Johnson) of

the District of Columbia bar, admitted pro

hac vice, argued the cause for respondents

American Cyanamid Company, Lederle Laboratories, a division of American Cyanamid Company, Wyeth (formerly American Home Products, Inc.), and Wyeth Pharmaceuticals, Inc. (formerly Wyeth Laboratories, Inc.) (Porzio, Bromberg

& Newman, and Mr. Yoerges, attorneys;

Kenneth R. Meyer, of counsel and on the brief; Mr. Yoerges, on the brief).

PER CURIAM

In 2002, plaintiffs, Mark Moreno (Moreno) and his mother Eileen Moreno-Grabinski (Grabinski), commenced this product-liability action involving an oral polio vaccine (OPV) administered to Moreno on two or three occasions between 1968 and 1970. They claim that at least one of the doses was defective because the manufacturer failed to screen, inspect and test for infective Simian Virus 40 (SV40), which caused Moreno to develop a brain tumor and consequential permanent disabilities. Unable to identify the responsible manufacturer, plaintiffs named as defendants all those licensed to produce OPV at the relevant time Lederle Laboratories, then a division of American Cyanamid, Pfizer and Wyeth Laboratories. Despite extensive discovery, plaintiffs remain unable to identify the manufacturer. For that reason, summary judgment was entered in favor of all defendants in February 2008.

On appeal, plaintiffs argue that they should have been permitted to proceed with their claims on one of several theories of collective liability. They also contend that the summary judgments were improperly granted before discovery was complete. We reject those arguments and affirm.

When considered in the light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the pleadings and papers submitted on defendants' motions for summary judgment permit the following findings. Moreno was born in New York City in 1968 and received two or three doses of OPV between 1968 and 1970. Moreno's brain tumor was diagnosed in 1970. Since 1971 or 1972, Moreno and Grabinski have lived in New Jersey. Moreno is permanently disabled as a consequence of that tumor. On this record, it is unclear whether tests of the tissue of Moreno's brain tumor were positive for SV40.

Grabinski does not remember when, where or by whom the vaccine was administered. She recalls, however, that one dose was administered by squeezing liquid into her son's mouth. From the record provided on appeal, it is not clear whether one or more of the defendants produced OPV to be delivered in that manner.

Federal regulations that were in place when Moreno's OPV was produced required the licensed manufacturers to test for and neutralize SV40 with an antiserum that would destroy its capacity to infect living cells. As noted above, plaintiffs allege that the manufacturer of at least one of the doses of OPV administered to Moreno failed to comply. Some experts are of the opinion that there is a link between SV40 and brain tumors. The benefits of the OPV as well as its contribution to the near-eradication of polio are widely recognized. In re Sabin Oral Polio Vaccine Prods. Liab. Litig., 763 F. Supp. 811, 813 (D. Md. 1991), aff'd, 984 F.2d 124 (4th Cir. 1993).

We begin our discussion of the issues by addressing a potentially dispositive claim. Plaintiffs argue that summary judgment should not have been granted because they had discovery motions pending when the decision was rendered.

The claim does not require extended discussion. R. 2:11-3(e)(1)(E). "'When the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information.'" Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 591 (App. Div. 2001) (quoting J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996)). Decisions relevant to discovery are subject to reversal only upon a showing of abuse of discretion. Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007).

As noted above, this litigation was commenced in 2002. Motions for summary judgment based on plaintiffs' inability to identify the wrongdoer were denied in July 2003 and again in July 2004; in both instances discovery orders and orders enforcing prior discovery orders followed. Defendants filed these motions for summary judgment in June 2007.

Discovery in several cases involving the same defendants and similar claims was managed jointly. Rivard, supra, 391 N.J. Super. at 151-52. During a hearing held on July 3, 2007, plaintiffs' counsel raised the issue of outstanding discovery due under prior orders of the court. The judge indicated that from his perspective, all discovery had been completed with the exception of his review of defendants' privilege logs. Nonetheless, the judge invited plaintiffs' attorney to submit copies of orders that plaintiffs relied upon to suggest otherwise.

On July 30, 2007, plaintiffs filed opposition to defendants' summary judgment motions. In their response to defendants' statement of uncontested facts, plaintiffs' counsel made the following assertions: "Discovery has not been completed. Defendants' counsels' warrants are untrue"; "[p]laintiffs have demanded from [d]efendants hundreds if not thousands of documents that were missing from the various submissions to [p]laintiff[s] of [d]efendants' documents specifically, in most instances, from American Cyanamid. This has been recorded with this [c]ourt in numerous letters some of which are attached as Exhibit 5."

We have reviewed the correspondence included in Exhibit 5. It does not explain why there is a likelihood that this discovery would supply information relevant either to the identity of the manufacturer or to any theory of collective liability. The content of the letters is fairly summarized as a catalogue of complaints about defendants' compliance with references to items missing and without any explanation of the potential significance to the issues of manufacturer identification or a theory of collective liability.

Long after filing their opposition to defendants' motions for summary judgment on July 30, 2007, plaintiffs filed discovery motions, some seeking to enforce prior orders, including discovery orders issued more than one year before July 3, 2007, and others seeking additional discovery. These motions were filed on October 17, 2007, November 8, 2007 and January 16, 2008. The motions refer to information about production and distribution, use of monkeys that were positive for SV40, "seed" books and standard operating procedures. Some of the materials relate to activities long after Moreno received his last dose of OPV.

Because plaintiffs had no information about when, where or by whom Moreno's OPV was dispensed, they could not identify the manufacturer even if they had complete records on distribution to doctors, clinics and other dispensers. With regard to theories of collective liability, plaintiffs do not direct us to anything in the papers submitted on their discovery motions indicating that the materials they sought would disclose relevant evidence. We have reviewed the materials and found nothing that has relevance to any theory of collective liability, at least no relevance that is apparent to us.

Given the prolonged period of discovery, the timing of the filing of these motions, and plaintiffs' failure to assert facts or present arguments demonstrating a likelihood that additional discovery would supply information material to the summary judgment motions, there is no basis for this court to conclude that the judge abused his discretion in denying any of these discovery motions or proceeding to rule on the merits. Accordingly, we reject this claim.

We turn to consider plaintiffs' objection to the grant of defendants' motions for summary judgment. There is a preliminary question as to whether this case should be governed by the law of New York, the state in which the trial judge inferred the vaccine was administered based on plaintiffs' residence at the time, or the law of New Jersey, where plaintiffs have resided for longer than thirty-five years. When there is no distinction between the laws of two states having an interest in the litigation, "there is no choice-of-law issue to be resolved" and our courts apply New Jersey law. P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 143 (2008). Because we conclude that there is no distinction in the laws of the states that is material in this case, we need not decide which state has greater interest in this litigation.

Under the law of both states, the "traditional element of causation-in-fact" is "ordinarily an indispensable ingredient of a prima facie case" in a products liability action. Shackil v. Lederle Labs., 116 N.J. 155, 162-63 (1989); Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 25 (App. Div. 1989); Namm v. Charles E. Frosst & Co., Inc., 178 N.J. Super. 19, 27 (App. Div. 1981); accord Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1073 (N.Y.) (noting that "[i]n a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required"), cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989).

Plaintiffs apparently accept their inability to identify the wrongdoer and establish the "reasonable connection between the act or omission of the defendant and the damages which plaintiff has suffered." Shackil, supra, 116 N.J. at 162 (citation and internal quotations omitted). On appeal they claim a right to proceed on alternative theories of collective liability that allow "plaintiffs to shift to [a] defendant or group of defendants the burden of proof on the causation issue." Id. at 163.

Several theories of collective liability have been applied by the courts of New Jersey and New York. We address them below.

"Concert of action," applies to "allocate[] responsibility among parties who 'in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or . . . lend aid or encouragement to the wrongdoers, or ratify and adopt the wrongdoer's acts done for their benefit . . . .'" Ibid. (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts, 46 at 323 (5th ed. 1984)); accord Canavan v. Galuski, 769 N.Y.S.2d 629, 631-32 (App. Div. 2003) (noting that parallel activity is inadequate), appeal denied, 814 N.E.2d 460 (2004). Plaintiffs contend they are entitled to proceed under this theory.

Plaintiffs, however, have no evidence of joint cooperation by the defendants, a tacit understanding between them or conduct amounting to ratification of the acts of a wrongdoer. On appeal, plaintiffs contend that with additional discovery they may have been able to establish that defendants knew about and shared information about SV40. Even if they did establish knowledge of infective SV40 and sharing of information, that would show, at best, culpable parallel action. But, to proceed on this theory, plaintiffs needed proof of cooperative, concerted action in furtherance of a common plan or design to commit a tortious act. Evidence of independent failures to test or to disclose unacceptable results is not enough.

"Enterprise liability," an extension of the "concert of action" theory, was recognized in a case involving six manufacturers of blasting caps and their trade association who "exercise[d] actual collective control over a particular risk-creating product. . . ." Hall v. E.I. Du Pont de Nemours & Co., 345 F. Supp. 353, 376 (E.D.N.Y. 1972); Shackil, supra, 116 N.J. at 164 (citation and internal quotations omitted). Upon a prima facie showing of conditions giving rise to enterprise liability, the defendants have the burden of exculpating themselves. Shackil, supra, 116 N.J. at 164. The evidence in this case, however, is that the production of OPV was regulated by the government, not the manufacturers.

"Alternative liability" applies where there is evidence that more than one defendant was "negligent in respect of the plaintiff" and it is not possible to identify the one who caused the injury. Id. at 165. As explained in Shackil, the theory was developed in a case where two hunters fired guns in plaintiff's direction and one hit plaintiff. Ibid. In that circumstance, both were deemed responsible on the ground that "it would be unjust to require the victim to isolate the guilty defendant." Ibid. In this case, the element essential to this form of liability is absent there is no evidence that each defendant was negligent in respect of Moreno. Proof of negligence by a defendant relevant to Moreno requires some proof that OPV produced by that defendant was administered to Moreno.

Another theory of alternative liability is "market-share liability." The New Jersey Supreme Court has held that market-share liability cannot be applied to relieve a plaintiff of the obligation of identifying the manufacturer of a childhood vaccine that causes damage. Id. at 158, 191. The Court reasoned that Congress had considered the problem of vaccine- induced injuries and provided a remedy that does not require the injured party to identify a manufacturer. Id. at 184. The Court also considered "the regressive effect that collective liability would have on the social policy of encouraging vaccine production and research." Id. at 188. On those bases, the Court rejected application of market-share liability in cases involving vaccines and confined that holding "solely to the context of vaccines." Id. at 191. The Court explained that its decision "should not be read as forecasting an inhospitable response to the theory of market-share liability in an appropriate context, perhaps one in which its application would be consistent with public policy and where no other remedy would be available." Ibid. (emphasis added).

Plaintiffs contend that the federal remedy is not available to them and Shackil does not apply. Plaintiffs do not support that assertion with any citation to the record or legal argument. See Rivard, supra, 391 N.J. Super. at 152 (referring to either Moreno v. Am. Home Prods., Inc. or Gannon v. Am. Home Prods., Inc., we noted "at least one of these cases is admittedly not within the Vaccine Court's jurisdiction"). Nonetheless, the Supreme Court's holding in Shackil is primarily based upon its assessment of the public policy favoring the development of vaccines. In our view, Shackil bars plaintiffs' reliance on this theory.

The Court of Appeals for the State of New York has accepted and applied the theory of market-share liability in cases involving damages for serious illness developed by the children of mothers who took diethylstilbestrol (DES) during pregnancy. Hymowitz, supra, 539 N.E.2d at 1071-72. New York's highest court, however, carefully limited its acceptance of market-share liability to that drug. Id. at 1072-73, 1075. The Court identified factors warranting a special rule for plaintiffs asserting product liability claims against manufacturers of DES:

[T]he DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, generically marketed product, which causes injury many years later, and which has evoked a legislative response reviving previously barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action.

[Id. at 1075.]

Thus, the Court's central reasons for applying market-share liability to DES were that "so many manufacturers, each behind a curtain, contributed to the devastation" by "produc[ing] an identical, generically marketed product" and the New York Legislature's clear expression of public policy favoring recovery by those harmed by DES. Ibid.

The evidence in Hymowitz was that "[a]ll DES was of identical chemical composition" and injurious because of its composition. Id. at 1072. In that context, the Court concluded that "[u]se of a national market is a fair method . . . of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy" to "provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants." Id. at 1078; see In re DES Market Share Litigation, 591 N.E.2d 266, 301-03, 306-08 (N.Y. 1992) (applying and explaining Hymowitz).

Here, the allegation is quite different. Plaintiffs claim the manufacturer who produced the injurious dose or doses administered to Moreno failed to comply with federal regulations relevant to neutralization of SV40 and consequently produced a deviant or defective vaccine. This is a claim of defect caused by deviation from the rules governing production. This distinction between common use of a defective formula and a manufacturer's deviation from a protocol requiring neutralization of a virus that is a component of a vaccine is significant.

The distinction between design defect and defect caused by improper production was a factor a California court deemed critical in refusing to apply market-share liability in a case involving a polio vaccine. Sheffield v. Eli Lilly & Co., 192 Cal. Rptr. 870, 876 (Ct. App. 1983). Although the Supreme Court of California had applied market-share liability in a case involving DES, the intermediate appellate court determined it had no application in the context of a polio vaccine alleged to be "deviant" and "defective" because the manufacturer failed to destroy "the infectivity potential of the virus." Id. at 873, 876. The court reasoned that harm was caused by the manufacturer who produced the defective vaccine, not a defective design used by all manufacturers who had a share of the market and on that ground fairly held responsible to the extent of their contribution to the risk. Id. at 879-80; see Shackil, supra, 116 N.J. at 169-70 (discussing Sheffield and Sindell v. Abbott Labs., 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980)). On Sheffield's reasoning, this court has held that market-share liability "simply does not work when the defect is attributable to a manufacturing flaw." McLaughlin v. Acme Pallet Co., 281 N.J. Super. 565, 570 (App. Div. 1995).

Since Hymowitz, the New York Court of Appeals has explained that market-share liability applied in the context of DES because "(1) the manufacturers acted in a parallel manner to produce an identical, generically marketed product; (2) the manifestations of injury were far removed from the time of ingestion of the product; and (3) the Legislature made a clear policy decision to revive these time-barred DES claims." Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1067 (N.Y. 2001). And, the New York courts have declined to apply the theory in cases that do not meet that criteria. See ibid. (noting that "guns are not identical, fungible products"); Brenner v. Am. Cyanamid Co., 699 N.Y.S.2d 848, 851, 853-54 (N.Y. App. Div. 1999) (declining to apply market-share liability in a case involving lead poisoning from paint on several grounds including the fact that that lead-based paint is not "an identical, generically marketed product") (citation and internal quotations omitted); In re New York State Silicone Breast Implant Litig., 631 N.Y.S.2d 491, 494 (N.Y. Sup. Ct. 1995) (breast implants are not fungible), aff'd o.b., 650 N.Y.S.2d 558 (N.Y. App. Div. 1996).

In our view, the precedents discussed above require a court applying New York law to reject application of market-share liability in cases involving a vaccine that is defective due to failure to comply with protocols and not attributable to a flawed common generic formula. Deviant defective doses are not generic and fungible doses.

We also deem it significant that in applying market-share liability to DES the New York Court of Appeals relied upon public policy expressed by the Legislature. Plaintiffs have not pointed us to any comparable legislative expression of public policy relevant to vaccines, and several courts that have considered the issue, like our Supreme Court in Shackil, have concluded that public policy does not favor application of collective liability to the manufacturers of vaccines. See, e.g., Sheffield, supra, 192 Cal. Rptr. at 883.

Because plaintiffs cannot rely on market-share liability under New Jersey or New York law, this difference in law is not material.

In order to withstand a defendant's motion for summary judgment based on a plaintiff's failure to identify the wrongdoer and proceed on a theory of collective liability, a plaintiff must present sufficient evidence of the facts that entitle the plaintiff to invoke a theory of collective liability. See Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 465 (1999) (discussing the showing required to shift the burdens of production and persuasion under the theory of alternative liability accepted in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975)); Shackil, supra, 116 N.J. at 172-73 (discussing proofs essential to shift the burden of production under the rule established in NOPCO Chem. Div. v. Blaw-Knox Co., 59 N.J. 274 (1971)). Plaintiffs did not make that showing under New Jersey or New York law. Accordingly, summary judgment was properly granted.

Affirmed.

 

Improperly pleaded as Charles Pfizer and Company.

The orders of February 14 and 15, 2008, grant summary judgment to these defendants: Wyeth; American Cyanamid Company and Lederle Laboratories, a Division of American Cyanamid Company; Pfizer, Inc.; Pfizer, Ltd.; Wyeth Pharmaceuticals Inc. (formerly Wyeth Laboratories, Inc.); American Home Products, Inc.; Wyeth Laboratories, Inc.; Wyeth Lederle Vaccines; and Charles Pfizer and Co.

Plaintiffs assert that the tissue is positive for SV40 without benefit of citation to the record in their brief on appeal. R. 2:6-2(a)(4). In their statement of material facts in opposition to defendants' summary judgment motion, however, they simply stated: "Defendants have had the opportunity to test Mark Moreno's tumors, but have not furnished their tests results to this [c]ourt or to [p]laintiffs."

Noting information from Physicians' Desk Reference (PDR) provided by defendants in support of their motions for summary judgment, which we do not find in the record provided on appeal, the trial judge found that two manufacturers were distributing OPV in disposable droppers. Plaintiffs submitted

advertisements indicating that at least one manufacturer produced disposable droppers, but there is nothing in the record that we can reasonably construe as establishing that no other manufacturers used a similar delivery system.

The licensing and regulation of OPV manufacturers and the availability of scientific evidence establishing a link between SV40 and brain tumors is discussed in Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129, 140-51 (App. Div. 2007), and Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 549-50 (App. Div.), certif. denied, 168 N.J. 294 (2001).

Although plaintiffs opposed the summary judgment motions on the ground they could identify the manufacturer of one of the doses administered to Moreno based upon Grabinski's description of the method used to administer it, on appeal they do not argue that the judge erred in rejecting that claim. Moreover, even their argument with respect to discovery is cast in terms of collective liability, not the identity of the manufacturer. Plaintiffs frame the issue as follows: "The motions to compel the necessary evidence should have been granted, since they were addressed to various issues of collective liability under the laws of New York and New Jersey."

Plaintiffs also rely on "concurrent wrongdoing." That doctrine applies to the allocation of responsibility for damages caused by two or more tortfeasors. Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 245 (1981); Ravo v. Rogatnick, 514 N.E.2d 1104, 1106 (N.Y. 1987). It has no relevance here.

(continued)

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A-3935-07T2

July 12, 2010