See also: Brief - Physician fails in emotional distress claiming against drug manufacturer for injury to patient - Fetick v. American Cyanamid Co., 38 S.W.3d 415 (Mo. 2001)
|||THE COURT COURT OF APPEALS OF THE STATE OF MISSOURI EASTERN DISTRICT
|||Case Number: ED77539
|||November 14, 2000
|||ST. LOUIS UNIVERSITY, APPELLANT V. HESSELBERG DRUG COMPANY, RESPONDENT.
|||Counsel for Appellant: Rex Carr Counsel for Respondent: David P. Donovan
|||R. Dowd, P.J., and Rhodes Russell, J., concur.
|||The opinion of the court was delivered by: Richard B. Teitelman, Judge
|||Appeal From: Circuit Court of the City of St. Louis, Hon. David C. Mason
|||Opinion Vote: AFFIRMED.
|||Appellant St. Louis University (hereinafter, "SLU") appeals
the judgment entered in the Circuit Court of the City of St. Louis granting
Respondent Hesselberg Drug Company's motion to dismiss SLU's claim for contribution.
|||FACTUAL AND PROCEDURAL BACKGROUND
|||In November 1978, a polio vaccine was administered to Daniel Callahan,
Jr. by his pediatrician, Dr. Fetick. The vaccine Daniel received, Orimune,
was manufactured and distributed by Lederle Laboratories, a division of
American Cyanamid Co. ("Cyanamid") and sold to Dr. Fetick by Hesselberg
Drug Company ("Hesselberg"). Daniel developed a bacterial infection
a few weeks later. During treatment for the bacterial infection by the staff
of Cardinal Glennon Hospital ("Cardinal Glennon"), it was discovered
that Daniel had contracted poliomyelitis which resulted in permanent triplegia.
|||Daniel Callahan, by his next friend and mother, Vickie Callahan, filed
suit against Cardinal Glennon; SLU, the staff physician's employer; Dr.
Fetick; and Cyanamid in the Circuit Court of the City of St. Louis, Cause
No. 852-00091. This suit consisted of medical malpractice claims against
the medical providers and a products liability claim against the polio vaccine's
manufacturer. Dr. Fetick entered into a settlement with the plaintiff before
the trial. Daniel dismissed his claim against Cyanamid the day after corporate
representatives of Cyanamid falsely testified in depositions that its polio
vaccine was manufactured in compliance with federal regulations and no defective
vaccine was ever distributed by Cyanamid.
|||The case proceeded to trial solely on the malpractice claims, and judgment
was entered against Cardinal Glennon and SLU in the amount of $16,000,000.00
(later reduced to $15,710,000.00). Callahan v. Cardinal Glennon, et al.,
863 S.W.2d 852 (Mo.banc 1993) (hereinafter, Callahan). The evidence showed
that had Daniel Callahan been properly treated by Cardinal Glennon and SLU
with the correct antibiotic, the endotoxins would not have been released
in his immune system and the immune system would not have been suppressed
to allow the polio virus to overcome the suppressed immune system, resulting
in paralysis. SLU paid a total of $14,724,731.44 in satisfaction of that
judgment. The only issue presented to and decided by the Callahan jury was
whether Cardinal Glennon and SLU provided substandard care to Daniel in
treating his bacterial infection. The issue of whether or not a defective
vaccine contributed to Daniel's injuries was never presented to the jury.
|||It was subsequently discovered in actions filed against the United States
in the United States District Court for the District of Maryland by other
injured children that Cyanamid, the vaccine's manufacturer, had in fact
failed to manufacture or test the polio vaccine administered to Daniel in
compliance with government regulations. Discovery showed that Cyanamid's
testimony in Callahan was false. Contribution suits followed. Cardinal Glennon,
Dr. Fettick and SLU sought contribution from Cyanamid and Hesselberg in
Missouri state court. SLU also brought suit against the United States in
the federal district court, as the United States was responsible for regulation
of production and approval for sale of the polio vaccine.
|||In the Missouri litigation, St. Louis University, et al. v. American Cyanamid
Co., et al., Cause No. 942-11090, Cyanamid moved for partial summary judgment
on the issue of causation, arguing that the Callahan malpractice judgment
precluded SLU from establishing the causation necessary to prove that the
polio vaccine manufactured and distributed by Cyanamid and retailed by Hesselberg
was defective and caused Daniel to contract poliomyelitis and become paralyzed.
|||The Missouri case was voluntarily dismissed by SLU without prejudice on
September 29, 1998, on Cyanamid's motion that the United States was an indispensable
party to the action and the United States could not be served in Missouri.
SLU then refiled in the Maryland District Court and attempted to join both
Cyanamid and Hesselberg as defendants in a case to be consolidated with
the pending federal tort claim against the United States. Hesselberg successfully
contested personal jurisdiction in that court and was dismissed without
|||In April 1999, the Maryland District Court in the federal tort claim ruled
that the Callahan judgment collaterally estopped SLU from proving that the
defective vaccine, and not SLU's negligence, caused Daniel's paralysis in
its contribution action against the United States. St. Louis University
v. United States, No. JFM-95-3639 (D.Md. Apr. 29, 1999). *fn1
The court determined that SLU had failed to meet its burden to prove causation
because (1) the testimony of SLU's experts was insufficient to establish
that the alleged excessive neurovirulence of the Orimune caused Danny Callahan
to contract polio, and (2) because none of SLU's experts expressed an opinion
that, if Danny Callahan had been given a vaccine that satisfied the neurovirulence
requirements of the applicable regulations, he would not have contracted
|||In July 1999, the same Maryland District Court ruled that the Callahan
judgment also collaterally estopped SLU from litigating that issue in SLU's
contribution claim against Cyanamid. American Cyanamid v. St. Louis University,
No. JFM-99-1316 (D.Md. July 30, 1999). These orders have been appealed to
the Fourth Circuit Court of Appeals. The appeals are pending.
|||In September, 1999, SLU refiled its contribution claim against Hesselberg
in the Circuit Court of the City of St. Louis. Hesselberg moved to dismiss
that action. Judge Mason granted Hesselberg's motion based on (1) SLU's
failure to state a claim for failure to warn and (2) the alleged collateral
estoppel effect of the Maryland District Court's rulings in SLU's actions
against the United States and Cyanamid. SLU appeals from that Order.
|||On appeal, SLU argues that the trial court erred in (1) dismissing its
strict liability contribution claim on the grounds that a drug retailer
cannot be held liable for injuries due to a defective drug that the retailer
could not have foreseen was defective, because SLU's contribution claim
is based on a manufacturing defect, not failure to warn of foreseeable harm;
and (2) dismissing its contribution claim under the doctrine of collateral
estoppel because the trial court should not have relied on a federal court
ruling that was inconsistent with the court's previous determination of
the same issues. SLU argues that it did not have a full and fair opportunity
to litigate whether a defective vaccine contributed to Daniel Callahan's
|||STANDARD OF REVIEW
|||We will affirm the judgment of dismissal if it can be sustained on any
ground supported by the motion to dismiss. Id. Although the trial court's
evidentiary findings warrant deference from this Court, that deference does
not apply where the law has been applied in error. Ryan, 16 S.W.3d at 648
(citations omitted). We review all determinations of law de novo. Id.
|||Collateral estoppel is an affirmative defense. Rule 55.08. Sustaining
a motion to dismiss based on an affirmative defense requires that the defense
be irrefutably established by the pleadings. Ryan v. Ford, 16 S.W.3d 644,
648 (Mo.App. W.D. 2000), citing Murray v. Fleischaker, 949 S.W.2d 203, 205
(Mo.App. S.D. 1997). When reviewing the trial court's dismissal of a cause
of action, we examine "the pleadings, allowing them their broadest
intendment, treating all facts alleged as true, and construing the allegations
favorably to the pleader." Bellos v. Winkles, 14 S.W.3d 653, 655 (Mo.App.
E.D. 2000) (citation omitted).
|||Hesselberg's motion to dismiss argued that SLU is collaterally estopped
from bringing this action and that SLU had failed to state a claim upon
which relief may be granted. The trial court granted the motion on both
grounds, determining that Hesselberg could not be liable when a Maryland
federal court had already determined that SLU could not prove its theory
of causation. Specifically, if SLU could not prove that the failure of Cyanamid,
the drug's manufacturer, to meet federal regulations caused Danny Callahan
to contract polio, then Hesselberg, the retail drug company from which the
vaccine was purchased, was not strictly liable for being in the stream of
commerce that caused the vaccine to be delivered to Callahan. The trial
court also determined that SLU's claim against Hesselberg was barred by
collateral estoppel because of the prior Maryland federal court decisions.
The trial court did not err in dismissing SLU's claim.
|||A non-party to an earlier adjudication may assert collateral estoppel,
or issue preclusion, against a party to the prior suit to bar relitigation
of an issue in a subsequent proceeding. Mueller v. Lemay Bank & Trust
Co., 990 S.W.2d 690, 691 (Mo.App. E.D. 1999), citing Oates v. Safeco Ins.
Co. of Am., 583 S.W.2d 713, 719 (Mo. banc 1979). Nevertheless, "[w]here
there is a question of whether a previous decision went to the merits of
the case, no preclusive effect is given to the earlier decision." Hayes
v. United Fire & Cas. Co., 3 S.W.3d 853, 856 (Mo.App. E.D. 1999), citing
Hangley v. American Family Mutual Ins. Co., 872 S.W.2d 544, 548 (Mo.App.
W.D. 1994). In determining if a claim is barred by collateral estoppel,
we consider four factors: (1) was the issue decided in the prior adjudication
identical with the issue presented in the present action; (2) did the prior
adjudication result in a judgment on the merits; (3) was the party against
whom collateral estoppel is asserted a party or in privity with a party
to the prior adjudication; and (4) did the party against whom collateral
estoppel is asserted have a full and fair opportunity to litigate in the
prior suit. Horwitz v. Horwitz, 16 S.W.3d 599, 603 (Mo.App. E.D. 2000),
citing Meckfessel v. Fred Weber, Inc., 901 S.W.2d 335, 339 (Mo.App. E.D.1995).
|||First, the issue decided in the previous adjudication is identical to
the issue presented in the current action. In SLU's suit against the United
States and the current action against Hesselberg, SLU alleged that the oral
polio vaccine administered to Danny Callahan was defective because it did
not comply with certain federal regulations. SLU's contribution claim against
Hesselberg necessarily would require SLU to prove that the alleged defect
in the vaccine that Hesselberg sold to Dr. Fetick caused Callahan's injuries.
The Maryland District Court determined that "none of SLU's experts
have expressed an opinion that, if Callahan had been given a vaccine that
satisfied the neurovirulence requirement of the applicable regulations,
he would not have contracted polio." *fn2
As such, the Maryland District Court previously decided the issue that SLU
seeks to raise now in a Missouri court.
|||Second, the prior litigation resulted in a judgment on the merits. A "judgment
on the merits is one rendered after argument and investigation and when
it is determined which party is in the right, as distinguished from a judgment
rendered upon some preliminary or technical point, or by default, and without
trial." Hayes v. United Fire & Cas. Co., 3 S.W.3d at 856 (citations
omitted). In granting summary judgment in favor of the United States, the
federal district court relied on the ground that SLU had failed to prove
that the alleged regulatory violations caused Danny Callahan to contract
polio. Therefore, the court did not render its decision on a preliminary
or technical point. Furthermore, Missouri courts have held that a summary
judgment is a determination on the merits for collateral estoppel purposes.
Williams v. Rape 990 S.W.2d 55, 56 (Mo.App. W.D. 1999); Meyer v. Enoch,
807 S.W.2d 156, 159 (Mo.App. E.D. 1991).
|||Penultimately, SLU was a party to the judgment in the previous decision.
|||Fourth, SLU had a full and fair opportunity to litigate the causation
issue in SLU v. United States. In making this determination, we further
consider the following factors: (1) did the person against whom estoppel
is asserted have a strong incentive to litigate the first action; (2) does
the second forum afford the party against whom estoppel is asserted procedural
opportunities not available in the first action; (3) is the prior judgment,
upon which estoppel is based, inconsistent with one or more prior judgments;
and (4) was the forum in the first action substantially inconvenient to
the party against whom estoppel is asserted. Bi-State Development Agency
v. Whelan Sec. Co., 679 S.W.2d 332, 336-337 (Mo.App. E.D. 1984), citing
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330-332, 99 S.Ct. 645,
651-652, 58 L.Ed.2d 552 (1979); United States v. Karlen, 645 F.2d 635, 639
|||SLU had a strong incentive to litigate the first action and, as the plaintiff,
chose the forum. SLU was given ample opportunity to present evidence to
the federal court demonstrating that the alleged regulatory violations caused
Danny Callahan to contract polio, but could not meet this burden. Furthermore,
the Maryland District Court's judgment does not conflict with any previous
judgments. *fn3 As such, SLU was not denied
a full and fair opportunity to litigate this issue.
|||SLU argues that the Maryland District Court's ruling is inconsistent with
a ruling entered in Missouri state court prior to SLU filing its case in
federal court. This argument is not persuasive. The Missouri court determined
that SLU was not collaterally estopped from bringing an action for contribution
against Cyanamid and Hesselberg. The Maryland District Court likewise determined
that SLU could bring a contribution claim. However, the Maryland District
Court subsequently determined, after hearing SLU's evidence, that it could
not prove causation. This determination is not inconsistent with the Missouri
court's prior ruling.
|||The trial court did not err in dismissing SLU's cause of action against
Hesselberg, as it is barred by the doctrine of collateral estoppel. *fn4
The judgment of the trial court granting Hesselberg's motion to dismiss
|||*fn1 . Specifically, the federal court
decided that, because of the jury verdict in Callahan, SLU was collaterally
estopped from contesting four facts that the jury had necessarily already
determined: 1. SLU's conduct in treating Danny Callahan's bacterial infection
fell below the prescribed standard of care and constituted negligence; 2.
but for SLU's treatment of the bacterial infection, Danny's immune system
would not have been suppressed; 3. but for the suppression of Danny Callahan's
immune system by SLU's negligence, the live polio virus would not have been
able to replicate fast enough to result in poliomyelitis; and 4. but for
SLU's negligence, Danny Callahan would not be paralyzed.
|||*fn2 . Without presenting this necessary
evidence, then, SLU was deemed to have not met its burden of proof as to
causation, and summary judgment was granted against it.
|||*fn3 . SLU argues that it never had
a fair opportunity in the original malpractice case to litigate whether
SLU's negligence or a defect in the polio vaccine caused Daniel Callahan's
paralysis, and the U.S. District Court erred in assigning collateral estoppel
to that case on the issue of causation. That question is for the Fourth
Circuit to decide. The question before this Court is whether the summary
judgment entered against SLU in U.S. District Court collaterally estops
SLU from relitigating the same issue against a different party in a different
|||*fn4 . We need not reach SLU's remaining
point on appeal, as we may affirm a dismissal on any correct ground. Ampleman
v. Scheweppe, 972 S.W.2d 329, 332, (Mo.App. E.D. 1998).
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