Appellate Victory in Oral Polio Vaccine Case

On July 12, the New Jersey Appellate Division decided an important products liability case for a Steptoe client in Moreno v. Wyeth, No. A-3935-07T2. Mark Moreno received several doses of oral polio vaccine in the early 1970s and later developed a brain tumor that he claims was caused by a simian virus that allegedly contaminated his vaccine. Plaintiffs, however, had no records of Moreno’s vaccinations and were unable to recall the name of his pediatrician or where he had been vaccinated. Plaintiffs thus had no way to prove which of the three polio vaccine producers supplied the doses that Moreno received. We moved for summary judgment twice in years past on the ground that plaintiffs could not establish an essential element of their claim—causation—without being able to identify the specific product that allegedly resulted in Moreno’s injury. The trial court denied the motion each time and allowed plaintiffs to engage in extensive discovery. Steptoe then moved a third time for summary judgment, and the case was dismissed. On appeal, plaintiffs urged the appellate division to adopt some form of collective liability under which the burden of proof would shift to each defendant to establish that its product was not involved in the injury. The Steptoe team argued that collective liability is not permitted under New Jersey or New York law (both were potentially at issue) and that its imposition would be unfair and bad public policy in the context of childhood vaccines. The New Jersey Appellate Division agreed and affirmed the judgment in favor of Steptoe's client. The Steptoe team was led by Roger Yoerges, the head of the firm’s Products Liability, Pharmaceutical, and Mass Tort practice group.

Please click here to read the Law 360 article on the victory (subscription required).