$22.5 Million After His Infant Daughter's Live Polio Vaccine Left a Staten Island Man Paralyzed

In May 1979, a Staten Island pediatrician, Dr. Leroy Schwartz, gave a five-month-old girl a second dose of Orimune, a live-virus oral polio vaccine made by Lederle Laboratories, a division of American Cyanamid Company. The girl's father, Dominick Tenuto, was about to have elective surgery. According to the complaint, Dr. Schwartz never asked whether Tenuto had been vaccinated against polio and never warned the parents that a child who takes the oral vaccine sheds live virus, or what precautions an adult caring for her should take. After the operation, Tenuto cared for his daughter with a fresh surgical wound on his hand, and changed her diapers.

Within 30 days of the vaccination he began showing symptoms of paralytic poliomyelitis, was hospitalized and was diagnosed with the disease. The polio left him a permanent paraplegic. He lost his job in a back office on Wall Street, where he held a Series 7 license to sell securities, and by the time of trial he was living in a small wheelchair accessible apartment, using a board to get in and out of bed, and facing post polio syndrome. The trial judge later wrote that the disease cost him his job, his marriage and the enjoyment of his life.

Tenuto and his wife sued Lederle Laboratories and Dr. Schwartz in Supreme Court, Richmond County, in 1981, under index No. 1134/81. The claim against Lederle was that the company failed to warn physicians that a vaccinated child could shed live virus and infect an unvaccinated adult in close contact with her. The case spent most of the next two decades in procedural fights. The trial court granted Dr. Schwartz summary judgment in December 1992, the Appellate Division, Second Department affirmed in 1994, and on October 23, 1997 the New York Court of Appeals reversed, holding that a pediatrician can owe the parents of an infant patient a duty of ordinary care and malpractice that includes warning them of their own health risks from the vaccination and advising them how to avoid those risks. The case reached the Second Department four times before it was ever tried.

The trial finally took place thirty years after Tenuto contracted the disease, while the United States Supreme Court was deciding Wyeth v. Levine, which held that federal drug regulation does not bar state failure to warn claims. In March 2009 a Richmond County jury found Lederle liable and awarded Dominick Tenuto $22.5 million: $12 million for almost 30 years of past pain and suffering, $5.5 million for future pain and suffering over a 20 year life expectancy, $2.5 million for past lost earnings and $2.5 million for future medical expenses. The jury was permitted to consider punitive damages and declined to award any. Tenuto, then 61, told the Staten Island Advance, 'I've gotten some measure of relief that the truth finally was told in an open court of law.'

Lederle said it would appeal and moved to throw the verdict out, arguing federal preemption, lack of proximate cause and prejudice from the punitive damages charge, or in the alternative for a new trial or a reduced award. Justice Joseph J. Maltese denied the motion in its entirety, first by written order on October 28, 2009 and then in a full written decision on February 17, 2010 that called the award not excessive and directed the clerk to enter judgment for $22,500,000 plus interest, costs and disbursements. That decision names Benedict Morelli of Morelli & Ratner, along with Martin Edelman and Louis Mauriello, as counsel for Tenuto. No later appellate decision in the case has been published.