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Militrano v. Lederle Laboratories11/3/2003
Murine Model for Analysis of Neuronal Side Effects of Vaccination, 69 Infec Immun 4217 ; Geier, Affidavit, exhibits 32 and 36; see also a report entitled DPT Vaccine and Chronic Nervous System Dysfunction: A New Analysis, prepared by the Institute of Medicine, attached as exhibit 2 to plaintiff's memorandum in opposition), plaintiff has not shown a factual issue with respect to the accuracy of that aspect of the warning. Moreover, nothing plaintiff has submitted shows that the warnings misstate the frequency of these temporally related side effects. When read as a whole, the warnings supplied by Lederle sufficiently detail the risks of the vaccine that it is entitled to summary judgment dismissing the warning claim, whether premised on negligence or strict liability (see White, 40 OhioSt3d at 397-398, 533 NE2d at 754-755; see also Martin, 83 NY2d at 8 n1, 10-16). Lederle is thus entitled to dismissal of the warning claim regardless of whether it made the initial showing required for application of the presumption set forth in section 300aa-22 (b) (2) of the Act (42 USC ยง 300aa-22 ) - a presumption which deems warnings to be sufficient under certain circumstances.
In the end, the issue in this action should not be whether there was some speculative, theoretical possibility that Lederle could have designed and brought to market a safer vaccine. Rather, the issue is whether fundamental issues of national vaccine policy should be left to the vagaries of a jury's determination on a case-by-case basis. Since I believe, among other things, that the National Childhood Vaccine Injury Act precludes such an outcome, this action should be dismissed.
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