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GRAHAM v. WYETH LABORATORIES, DIV. OF AMERICAN HOME PRODUCTS CORP.

Nos. 88-1337, 88-2302, 89-3066 and 89-3121.

906 F.2d 1399 (1990)

Michelle GRAHAM, an infant under the age of eighteen who sues by her parents, guardians, and next friends, Charles GRAHAM and Tammy Graham, Plaintiffs-Appellees, v. WYETH LABORATORIES, DIVISION OF AMERICAN HOME PRODUCTS CORPORATION, Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

June 25, 1990.

Attorney(s) appearing for the Case

Albert J. Knopp, of Baker & Hostetler, Wayne C. Dabb, Jr., Mary M. Bittence, Cleveland, Ohio, and J. Jeffrey Zimmerman, Washington, D.C., James M. Clark and Fred M. Winner, of Baker & Hostetler, Denver, Colo., Alvin D. Herrington and Debra J. Arnett, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, Kan., Hedy M. Powell (of counsel), Legal Dept. of Wyeth Laboratories, Radnor, Pa., for defendant-appellant.

Marlys A. Marshall, Andrew W. Hutton of Michaud & Hutton, Wichita, Kan., Ted M. Warshafsky of Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Block, Milwaukee, Wis., for plaintiffs-appellees.

Before SEYMOUR and MOORE, Circuit Judges, and GARTH, Senior Circuit Judge.

GARTH, Senior Circuit Judge:

This appeal arises as a result of a $15,000,000 verdict against Wyeth Laboratories (Wyeth), the manufacturer of a DTP vaccine. It presents us with a number of evidentiary and legal questions. The most significant of these are: (1) should judgment NOV have been granted to Wyeth? (2) Are state tort awards for the improper manufacture of vaccines preempted by federal regulation? (3) Does Kansas allow for tort awards based upon strict liability...

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