A $15 Million DPT Vaccine Verdict Against Wyeth, Reversed on Appeal

In March 1980, a couple took their infant daughter, a few months old, for a routine diphtheria, pertussis, and tetanus shot made by Wyeth Laboratories. The child was left with severe, permanent brain damage. The parents sued Wyeth in the U.S. District Court for the District of Kansas, sitting in Wichita.

The family hired the Wichita firm Michaud, Hutton & Bradshaw and brought in Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch of Milwaukee. Ted Warshafsky tried the case and commuted between Milwaukee and Wichita while it was underway. Victor Harding worked the cross-examinations. The preparation was vast: over the roughly ten years the matter ran, the lawyers reviewed some 40,000 articles and 20,000 documents.

Causation was the fight. Wyeth argued that the vaccine had not caused the child's injury, while the plaintiffs put on scientific proof tying the DPT shot to the brain damage. On October 15, 1987, the jury returned a verdict of $15 million in compensatory damages.

The case opened a door for others. The trial judge agreed to release Wyeth's internal company records to the public, which let other doctors, scientists, and lawyers pursue claims tied to suspected DPT injuries. Warshafsky counted the result among the cases he was proudest of.

The verdict did not survive appeal. On June 25, 1990, the Tenth Circuit reversed and ordered a new trial on all issues. The court found that the district judge had wrongly kept out testimony from two Wyeth experts, a pediatric ophthalmologist and a pediatric radiologist, who would have told the jury that the child suffered a stroke before the vaccination. It also faulted the admission of a redacted American Medical Association report under the learned treatise rule.

A second problem was the plaintiffs' own science. A key expert had testified that the vaccine's endotoxin level was 240 micrograms per milliliter, then later conceded an order of magnitude error: the real figure was closer to 20. The appeals court treated that as newly discovered evidence weighing in favor of a retrial.

With the judgment reversed, the $15 million was never paid as a final award. The case went back to the District of Kansas for further proceedings, which continued into 1991.