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Law School Case Brief

Gottsdanker v. Cutter Labs. - 182 Cal. App. 2d 602 (1960)


The rule that privity of contract is a requirement for implied warranty liability is followed in California as to most manufactured products.


Two children contracted poliomyelitis shortly after being inoculated with Salk vaccine manufactured by defendant. On the premise that defendant's vaccine caused the illness it was designed to prevent, an action for damages was brought in behalf of each child. The actions were consolidated for trial. Jury verdicts were in favor of the two children for a total of $ 139,000, and for their parents for $ 8,300 in special damages.

There was substantial evidence to sustain a finding that the vaccine contained live virus of poliomyelitis, and that the injected vaccine caused the disease in each child. The essence of plaintiffs' claim was not that the vaccine failed to prevent polio, but that it actually and directly caused it.

Three causes of action were submitted to the jury in each case. One was in negligence, one for breach of an implied warranty of merchantability and one for breach of implied warranty of fitness for the intended purpose. But only two forms of verdict were presented to the jury in each case, one for the plaintiff generally, without separation of the causes of action, and one for the defendant. The trial court entered judgment in favor of plaintiffs on the two causes of action for breach of implied warranty, and in favor of defendant on the counts for negligence. Defendant appealed from the judgments against it. Plaintiffs appealed from the judgments against them on the causes of action for negligence, asserting that the jury's written statement must be disregarded as surplusage, leaving only the signed verdict forms in favor of plaintiffs on the complaints generally, and that the evidence is insufficient to support verdicts against plaintiffs on the issue of negligence.


Whether implied warranties of merchantability and of fitness apply under the facts of this case.




The court affirmed the trial court's order. It held that the absence of privity did not bar recovery on implied warranty from the manufacturer. The patients, and not the doctors, were the ultimate consumers of the vaccine. Nothing in the directions contained on the boxes of the vaccine was inconsistent with the implied warranties of fitness and merchantability. There was substantial evidence to sustain the jury's finding that the inoculation caused the patients to suffer polio. The manufacturer's vaccine contained live and active poliomyelitis virus, and thus the vaccine was neither merchantable nor fit for its intended purpose. The vaccine was not within the scope of Cal. Health & Safety Code § 1623.

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