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Campagna v. American Cyanamid Co.3/5/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2001
I. Introduction
Plaintiff John Scott Campagna ("John") was born on June 27, 1979. On December 8, 1979, John's mother, plaintiff Irene Edson, took him to the office of Dr. Charlotorn Locharernkul, who vaccinated John against polio by giving him Orimune OPV, an oral polio vaccine, manufactured by defendant American Cyanamid Company. Shortly thereafter, John was hospitalized with a high fever and a paralyzed left leg. He was discharged from the hospital with a diagnosis of "poliomyelitus, meningoencephalitis and left leg paralysis." In 1994, John, through his guardian ad litem and legal guardian Linda Greco, and his mother commenced this products' liability action against defendant seeking damages, alleging that the vaccine was defective because it did not comply with federal regulations and asserting that defendant failed to adequately warn of the dangers presented by the non-compliant vaccine.
Defendant filed an answer denying the material allegations of the complaint and asserting affirmative defenses. Following discovery, defendant moved for summary judgment, contending that there were deficiencies in plaintiffs' proofs and that there was a lack of proof "that any regulatory violation was a proximate cause of [John's] injuries." With respect to plaintiffs' failure-to-warn claim, defendant asserted that plaintiffs' proofs were deficient and that plaintiffs could not prove that an "allegedly inadequate warning was a proximate cause of [John's doctor's] decision to administer" the Orimune OPV to John. For purposes of the motion, defendant assumed that John's injuries were the result of poliomyelitus.
Plaintiffs opposed defendant's motion. Plaintiffs also cross- moved, seeking summary judgment on their failure-to-warn claim. The motions were argued on October 21, 1998. The motion judge denied defendant's motion, concluding that plaintiffs had raised genuine issues of material fact. The judge also denied plaintiffs' cross-motion, determining that the motion had not been properly filed and that defendant did not have "appropriate time within which to prepare a response or prepare for oral argument."
Thereafter, on March 18, 1999, defendant moved for reconsideration. At the time, the original motion judge was unavailable due to maternity leave. The motion was carried until the judge's return. The reconsideration motion was heard on June 30, 1999. During the motion for reconsideration, defendant told the judge that, for the purposes of that motion, she could "assume that every dose of vaccine ever manufactured was administered to John Campagna with respect to the legal issue we are raising now and that is whether the existence of one or two grade 3-3 monkeys has correlated any increased risk of vaccine- associated polio."
The motion judge granted defendant's motion for reconsideration. On the defective-product claim, the judge determined that, even if she found that the vaccine administered to plaintiff "did not satisfy the [FDA's] regulatory standard," plaintiffs would still have to prove proximate cause. According to the judge, plaintiffs had "not presented proof that any of the regulatory violations that they alleged [had occurred] had any effect on the safety of defendant's vaccine or on its propensity to cause vaccine-associated polio." Expanding on that point, the judge found that plaintiffs had not presented proof that "the alleged non-compliance [with Food and Drug Administration vaccine- manufacturing regulations] made the subject vaccine in question any less safe . . . [than] the vaccine produced in compliance with the federal mand
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