A man who claims a polio vaccine he was given as a baby caused his brain tumor cannot revive his lawsuit against several drug manufacturers and distributors, the state Supreme Court ruled Wednesday.
The court’s 5-1 decision bars Jamie Gannon from going ahead with the lawsuit in state court after it was dismissed twice previously, once in federal court and once at the state level.
Gannon claimed Orimune, the vaccine he was given in the mid-1970s as an infant, contained a simian virus known as SV40 that caused him to develop a brain tumor that was diagnosed in 2000.
Gannon and his wife brought two legal actions in 2003, one in state court claiming product liability against American Home Products Corporation (now known as Wyeth), American Cyanamid Company and Lederle Laboratories, and one in federal court that sought to find the government negligent for allowing the vaccine to be sold to the public.
Both lawsuits were dismissed. A federal judge ruled in 2007 that Gannon hadn’t shown a connection between the vaccine and his cancer, and the state case was dismissed in 2008 by a judge in Bergen County who wrote that Gannon couldn’t prove which manufacturer produced the vaccine.
The state judge also ruled that Gannon was barred from pursuing the state claim because of the federal dismissal. An appellate court reversed in 2010, leading to the Supreme Court appeal.
In Wednesday’s ruling, the justices concluded that the appeals panel incorrectly applied the law in allowing the suit to proceed.
“Plaintiffs were afforded a full and fair opportunity to be heard on the essential claims of their dispute,” the majority wrote. “The appellate panel erred in concluding that equitable considerations demand that plaintiffs be permitted to have their claims heard again.”
In a dissenting opinion, Judge Dorothea O’C. Wefing agreed with the appeals court that Gannon should have the opportunity to offer evidence to the lower court of special circumstances that might warrant the case going forward.
“If, on remand, plaintiffs are unable to demonstrate the presence of such special circumstances, defendant would then be entitled to summary judgment,” Wefing wrote. “I can perceive no basis, however, to preclude plaintiffs from making that effort.”
Gannon couldn’t immediately be reached for comment Wednesday, and his attorney didn’t return a phone message.
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