NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3936-07T23936-07T2

JAMIE GANNON and REBECCA

GANNON, individually and as

husband and wife,

Plaintiffs-Appellants,

v.

AMERICAN HOME PRODUCTS, INC.;

AMERICAN CYANAMID COMPANY,

LEDERLE LABORATORIES, and

WYETH-LEDERLE VACCINES,

Defendants-Respondents.

_______________________________________________________

Argued December 8, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3443-03.

Stanley P. Kops (Law Offices of Stanley P. Kops) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellants (MacLachlan Law Offices and Mr. Kops, attorneys; Mr. Kops, on the brief).

Roger W. Yoerges (Steptoe & Johnson, LLP) of the Washington, D.C. bar, admitted pro hac vice, argued the cause for respondents (Porzio, Bromberg & Newman, and Mr. Yoerges, attorneys; Kenneth R. Meyer, of counsel and on the brief; Mr. Yoerges, on the brief).

The opinion of this court was delivered by

MESSANO, J.A.D.

Plaintiffs Jamie and Rebecca Gannon appeal from the grant of summary judgment dismissing their complaint against defendants American Home Products Corporation (American), American Cyanamid Company (Cyanamid), and Lederle Laboratories (Lederle) (collectively, defendants). We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

I.

Plaintiff's amended complaint, filed June 11, 2003, alleged that between September 1973 and August 1976, he was administered "five doses of Orimune trivalent vaccine," an oral polio vaccine, at the offices of his pediatrician in Pennsylvania. The complaint further alleged that American manufactured the Orimune vaccine that "caused cancer in plaintiff . . . ." The complaint named Cyanamid, "an owned subsidiary of" American, and Lederle "a wholly-owned division" of American and/or Cyanamid, as defendants.

Plaintiff contended that Orimune "was improperly manufactured and . . . contained contaminants, including . . . SV40," a simian virus. Plaintiff alleged that defendants "manufactured [the vaccine] without complying with the regulatory mandate and/or [their] report and application for the licensing of Orimune." Plaintiff sought damages, claiming that Orimune caused him to develop "an SV40 cancerous brain tumor." Defendants filed an answer generally denying plaintiff's claims.

Also in 2003, plaintiff filed a claim in the federal district court for the Eastern District of Pennsylvania, naming the United States as defendant, and seeking relief under the Federal Tort Claims Act, 28 U.S.C.A.