982 F.2d 63
Melissa JONES, an infant under the age of 14 years, by her
father and natural guardian, Richard JONES,
Plaintiff-Appellant,
v.
LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO.,
Defendant-Appellee.
No. 46, Docket 92-7279.
United States Court of Appeals,
Second Circuit.
Argued Nov. 13, 1992.
Decided Dec. 21, 1992.
Richard E. Shandell, New York City (Glaser, Shandell & Blitz, on the brief), for plaintiff-appellant.
Daniel J. Thomasch, New York City (Stephen G. Foresta, Lawrence H. Cooke, II, Donovan Leisure Newton & Irvine, on the brief), for defendant-appellee.
Before: NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.
PER CURIAM:
Melissa Jones appeals from the March 30, 1992, judgment of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge), granting judgment for defendant Lederle Laboratories under Fed.R.Civ.P. 50(b) after a jury returned a verdict in her favor. Jones, a severely retarded thirteen-year-old girl, alleged in a diversity suit that she suffered adverse side effects from the pertussis component of a DTP vaccine manufactured by Lederle, which was administered to her in 1979. At the trial the issue principally contested was whether the "whole cell" pertussis vaccine used by Lederle was unreasonably unsafe, despite its acknowledged benefits, because of the alleged ability of Lederle to develop and manufacture an alternative "acellular" form of pertussis vaccine that would have produced less risk of adverse side effects.
Judge Weinstein ruled that the evidence was insufficient to permit the jury to conclude that "by 1979, the defendant could have developed, produced and proven to the FDA's satisfaction the efficacy and safety of an acellular vaccine for use on Melissa Jones." Jones v. Lederle Laboratories, 785 F.Supp. 1123, 1127 (E.D.N.Y.1992). We affirm on Judge Weinstein's opinion.