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Civil Practice – Collateral Estoppel – Contribution – Polio Vaccine

Where a university that paid a $16 million Missouri state-court judgment to the family of a boy paralyzed after receiving the oral polio vaccine Orimune is seeking contribution from the federal government, which tested and approved the vaccine, and from the parent company of the vaccine’s manufacturer, the 4th Circuit reverses the district court’s conclusion that the government, but not the parent company, is liable in contributions to the university.

The government’s liability in contribution is dependent on the university’s ability to establish that the government can be held liable on the tort claim in the underlying action. The government contends that the university presented no evidence showing that the government’s violations of the original polio vaccine regulations proximately caused the injuries suffered by the child. According to the government, the district court’s approach to the case amounts to the imposition of absolute liability for the government, which is inconsistent with the requirements of the Federal Tort Claims Act and does not meet the causation requirements of the Federal Tort Claims Act and does not meet the causation requirements of Missouri law. Given the absence of any admissible proximate cause evidence, the government contends that the district court must have reached its decision by giving collateral estoppel effect to its decision in In re Sabin Oral Polio Vaccine Prods. Liab. Litig., 774 F. Supp. 952 (D. Md. 1991) (Sabin ), but that collateral estoppel cannot be applied against the government in this case.

Because there is no evidence that the government’s regulatory violations proximately caused the child’s injury, the university has failed to show that it is entitled to contribution from the government. We therefore reverse the district court’s grant of partial summary judgment in favor of the university and we remand for the entry of judgment in favor of the government.

Reversed and remanded.


Luttig, J.: I would affirm the district court’s judgment in this case under the binding precedent of the circuit. In In re Sabin Oral Polio Vaccine Products Liability Litigation, 984 F.2d 124 (4th Cir. 1993) (Sabin IV), we determined that under a tort regime, identical in all relevant respects to the one at issue here, an injury, identical to the one at issue here, was proximately caused by tortious conduct identical to that alleged here. On the basis of the reasoning which we adopted in that case, I must conclude that our application here of Missouri state law yields the conclusion that plaintiff proffered sufficient evidence to establish the legally necessary causation for it to prevail.

I respectfully dissent.

U.S. v. St. Louis University (Traxler, J.) No. 02-1351, July 16, 2003; USDC at Baltimore, Md. (Motz) Mary McE. Leach, USDOJ, for appellant; Marc S. Moller for appellee · VLW 003-2-141, 20 pp.

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