## Facts

- Two separate actions were brought on behalf of minors Anne Gottsdanker and James Phipps (and their parents) after each child developed poliomyelitis shortly after inoculation with Salk polio vaccine manufactured by Cutter Laboratories.
- The plaintiffs’ theory was not that the vaccine failed to prevent polio, but that it directly caused polio because it contained live poliomyelitis virus.
- Each complaint alleged negligence, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for the intended purpose.
- The actions were consolidated for trial.
- The jury returned general verdicts for the minors and their parents, awarding substantial damages.
- The jury appended an explanatory statement finding Cutter not negligent, but finding for plaintiffs solely on breach of warranty because the vaccine, when given, caused poliomyelitis.
- Cross-appeals challenged, among other matters, the sufficiency of evidence and the legal basis for warranty liability.

## Issues

1. Whether substantial evidence supported findings that the vaccine contained live poliovirus and that inoculation caused the children’s poliomyelitis.
2. Whether Cutter could be held liable for breach of implied warranties of merchantability and fitness despite a jury finding of no negligence.
3. Whether lack of contractual privity between Cutter and the injured children (and parents) barred implied warranty recovery.

## Decision

- The court affirmed the judgments imposing liability on Cutter.
- The court held substantial evidence supported the findings of defect (live virus in vaccine) and causation (inoculation caused poliomyelitis in each child).
- The court upheld recovery on implied warranty grounds even though the jury found Cutter not negligent.
- The court rejected privity as a barrier to implied warranty liability for an injection product intended for human health that reached the ultimate consumer and caused harm.

## Legal Principles

- A product intended to protect health that instead causes the very disease it is designed to prevent may breach implied warranties of merchantability and fitness.
- Implied warranty liability may exist independent of negligence; proof of fault is not required where the claim rests on the product’s defective condition and resultant injury.
- For products intended for human consumption or injection, implied warranties of safety can extend to the ultimate consumer despite the absence of direct contractual privity with the manufacturer.
- Appellate review sustains a verdict where there is substantial evidence supporting defect and causation, even when the jury’s explanatory statement indicates liability rested on warranty rather than negligence.

## Conclusion

The court affirmed damages against the vaccine manufacturer because the evidence supported that the vaccine was defective and caused poliomyelitis, and implied warranty liability could be imposed without a finding of negligence and without contractual privity between the injured children and the manufacturer.


Gottsdanker v. Cutter Labs., 182 Cal. App. 2d 602, 6 Cal. Rptr. 320 (Cal. Ct. App. 1960)