Drugs - Products Liability/Vaccine Law

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)

This case began in 1978 and has generated numerous lawsuits stretching over more than 23 years.  On November 4, 1978, Dr. Fetick administered Orimune to three-month-old Danny Callahan.  American Cyanamid manufactured Orimune, an oral poliomyelitis vaccine. Danny appeared in good health until December 2, when diagnosed with an unrelated perirectal abscess. Following negligent treatment by Cardinal Glennon Hospital and St. Louis University (SLU), Danny contracted polio, which permanently paralyzed his legs and left arm.  The bitterness and protracted litigation probably arose because of the very tenuous theory of causation, even to the issue of whether the perirectal abscess was mismanaged at all.  But, as is common with cases of this kind, jury sympathy prevailed and the plaintiffs were awarded $16,000,000 by the jury in the original case.  (See Callahan v. Cardinal Glennon Children's Hosp., 901 S.W.2d 270 (Mo. App. 1995) and Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993)).  Subsequent litigation has wrestled with contribution claims among the Dr. Fetick, the hospital defendant, the vaccine manufacturer, and the vaccine distributor.  (See St. Louis University v. Hesselberg Drug Company, 35 S.W.3d 451 (Mo. App. 2000)).  This case is the most recent in the family, and deals with Dr. Fetick's claim for contribution and a separate direct claim that his reputation was injured because the vaccine injured the plaintiff and he was blamed in the original litigation.  The core of the case turns on the Missouri doctrine on what rights a settling party gives up, which include most rights of contribution unless the settling party completely extinguishes the liability of the defendant from whom contribution is sought.  Since American Cyanamid was sued by several other parties, the court found that Dr. Fetick had not extinguished its liability and thus could not proceed with this contribution claim.

In Missouri, a plaintiff claiming for emotional distress must show the distress to be "medically diagnosable and significant." Bass v. Nooney, 646 S.W.2d 765 (Mo. banc 1983).  This does not require that there be a concomitant physical injury, but it does require that the plaintiff seek medical diagnosis and treatment.  In this case the plaintiff could not show any concrete evidence of emotional distress, nor any evidence that his reputation was harmed or that he had suffered any financial loses due to harm to his reputation.  The court dismissed his claims.

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