## Facts

- In 1962, Karen Hicks received an oral polio vaccine (OPV) during a public vaccination campaign when she was about five years old; she later alleged additional OPV doses in 1968 and 1971.
- Decades later, Hicks was diagnosed with two malignant brain tumors and alleged they were caused by simian virus 40 (SV40) contamination in OPV.
- Hicks and her husband sued Charles Pfizer & Co., alleging Pfizer manufactured the OPV that Hicks ingested and that the vaccine was the source of SV40 exposure.
- Due to the passage of time, many potentially relevant public-health and campaign records were destroyed or unavailable; other defendants were dismissed during discovery, leaving Pfizer as the primary defendant.
- The only evidence offered to link Pfizer to the vaccine used in the 1962 campaign consisted of several contemporaneous local newspaper articles stating Pfizer supplied the OPV for the campaign.
- Pfizer moved for summary judgment, arguing plaintiffs lacked competent evidence that Pfizer manufactured the specific OPV administered to Hicks and objected to the newspaper articles as hearsay.

## Issues

1. Whether contemporaneous newspaper articles identifying Pfizer as the OPV supplier were admissible under a hearsay exception, specifically Federal Rule of Evidence 807 (residual exception).
2. Whether, if admitted, the articles and related circumstantial evidence created a genuine dispute of material fact on product identification sufficient to defeat summary judgment on plaintiffs’ tort and warranty claims.

## Decision

- The court admitted the 1962 newspaper articles under Federal Rule of Evidence 807.
- The court held the articles had sufficient guarantees of trustworthiness, addressed a material fact, were more probative than other reasonably obtainable evidence given missing records, and admission served the interests of justice.
- Considering the admissible articles and the summary-judgment standard (drawing reasonable inferences for plaintiffs), the court found a genuine dispute as to whether Pfizer supplied the OPV administered to Hicks.
- The court denied Pfizer’s motion for summary judgment.

## Legal Principles

- Product-liability plaintiffs must produce evidence that the defendant manufactured or supplied the specific product alleged to have caused the injury; proof that the defendant made similar products is insufficient.
- Under Fed. R. Evid. 807, hearsay may be admitted if it has equivalent circumstantial guarantees of trustworthiness, is offered to prove a material fact, is more probative than other evidence reasonably obtainable, and admission serves the rules’ purposes and the interests of justice.
- In long-latency cases where ordinary product-identification records are unavailable, contemporaneous and consistent historical reporting may qualify for admission under Rule 807 and may support a triable issue on product identification.

## Conclusion

The court allowed plaintiffs to use contemporaneous newspaper accounts to support product identification under the residual hearsay exception and, with that evidence, held that a reasonable jury could find Pfizer supplied the OPV at issue, requiring denial of summary judgment.


Hicks v. Charles Pfizer & Co., 466 F. Supp. 2d 799 (E.D. Tex. 2005)