10.08.08
By CHRIS BLANK

JEFFERSON CITY, Mo. - A Missouri appeals court Tuesday upheld an $8.5 million judgment for a St. Louis man who contracted polio after receiving an oral vaccine as a child.

A three-judge panel of the Court of Appeals' Eastern District also ruled that the vaccine's manufacturer owed about $2.8 million for prejudgment interest on top of the award because it refused to accept a pretrial settlement offer that was less than the amount awarded by a jury.

Cortez Strong contracted polio in June 1987, shortly after receiving a second dose of the vaccine Orimune, which was made by American Cyanamid Co. Strong said he was frequently teased, struggled to fit in with other children and now has limited use of his left arm and right hand.

Strong sued American Cyanamid and the pediatrician who administered the vaccine. In 2005, a St. Louis jury cleared the doctor of liability but ordered American Cyanamid to pay Strong $1.5 million for pain and suffering, $2 million for future lost earnings and $5 million for future pain and suffering.

The company appealed, contending there was insufficient evidence that it was legally liable for Strong's injuries. The company also sought to have the judgment reduced or set aside or that a new trial be ordered.

Strong also appealed, seeking to be allowed to introduce rebuttal evidence against the physician and to have American Cyanamid be ordered to pay interest on the award.

The appeals court rejected each request except Strong's appeal for prejudgment interest.

Judge Kenneth M. Romines dissented from Tuesday's 2-1 ruling, contending a new trial was warranted because Strong's attorneys didn't prove part of their case. Romines also disagreed with the majority and would have allowed Strong to present his rebuttal evidence against his doctor.

Polio is caused by three types of viruses. Oral vaccines for the three types were derived from strains that use living but weakened virus. American Cyanamid grew larger volumes of the vaccine by passing it through the kidney cells of monkeys, which results in "production seeds." Federal regulations required that the "seeds" be tested on monkeys to determine if they could cause illness.

American Cyanamid was purchased in 1994 and is now part of New Jersey-based Wyeth. The vaccine given to Strong was discontinued in 2000.

A spokesman for Wyeth said Tuesday the company is studying its next step.

"We are considering our appellate options and recourse for further review," spokesman Doug Petkus said. "We still believe the case was wrongly decided."

But an attorney for Strong said he believes the appeals court ruling will likely be the last legal hurdle.

"It's been a long time coming for Cortez, and we couldn't be happier," attorney Thomas Germeroth said.