30-year-old case nets $23M

© 2009 The Medical-Legal News

A lawsuit against a polio vaccine maker was a $23 million victory for a plaintiff in New York state court, according to law.com of April 2.
The case alleged negligent manufacture and a failure-to-warn regarding the oral polio vaccine Orimune.
Plaintiff Dominick Tenuto believed he contracted polio after touching stool while changing his daughter’s diaper in 1979. The infant daughter had just had an oral polio vaccination. Tenuto’s hand surgery made him a high risk for contracting polio and he alleged that he should have been better warned. 
The law.com article noted that the case (Tenuto v. Lederle Laboratories, 001134/1981) was originally filed in 1981 and that several lawyers had worked on it.
During the trial the U.S. Supreme Court handed down its ruling in Wyeth v. Levine, which rebuffed the idea of FDA-approval-as-preemptive-immunity in drug label failure-to-warn cases.
In another vaccine- and preemption-related matter, a federal court recently ruled (in Bruesewitz v. Wyeth) that claims concerning design defects in childhood vaccinations are barred by the federal National Childhood Vaccine Injury Act. However, the ruling clashes with a Georgia Supreme Court holding in American Home Products Corp. v. Ferrari. The recent Wyeth v. Levine case may not apply to these split-decision cases, as Wyeth concerned implied preemption and the latter cases involve express preemption, according to The Legal Intelligencer of April 2. •