Davis v. Wyeth Laboratories, Inc.

399 F.2d 121 Glynn Richard DAVIS and Florence Davis, husband and wife, Appellants, v. WYETH LABORATORIES, INC., a New York corporation, and American Home Products Corporation, a Delaware corporation, Appellees. No. 20995. United States Court of Appeals Ninth Circuit. Jan. 22, 1968, As Modified on Denial of Rehearing Sept. 10, 1968. Blaine F. Evans (argued), of Elam, Burke, Jeppesen & Evans, Boise, Idaho, for appellant. William C. Roden (argued), R. B. Kading, Jr. (argued), of Richards, Haga & Eberle, Boise, Idaho, for appellee. Before HAMLIN, MERRILL and DUNIWAY, Circuit Judges. MERRILL, Circuit Judge: 1 This case presents the question whether appellee Wyeth Laboratories, Inc., a manufacturer of Sabin polio vaccine, should be held to strict tort liability to one who took the drug and contracted polio as a result. 2 Appellant Glynn Richard Davis took appellee's Type III polio vaccine at a mass immunization climic conducted in West Yellowstone, Montana, in March, 1963. At that time he was thirty-nine years old, in good health, and engaged in the lumber business. Within thirty days he evidenced paralysis and other symptoms of polio, and has remained paralyzed from the waist…