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HAMMOND v. UNITED STATES

January 31, 1975

HENRY HAMMOND, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: PLATT

Memorandum and Order

 PLATT, D. J.

 This case was filed under the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346(b), 2671-2680, to recover $5,000,000 damages for injuries to plaintiff, Henry Hammond, allegedly caused by the negligence of the Government.

 Plaintiff claims that the employees of the Division of Biologics Standards of the National Institute of Health, Department of Health, Education and Welfare negligently administered certain safety regulations pertaining to the manufacture and release of Sabin Oral Poliovirus Vaccine resulting in plaintiff's having contracted paralytic poliomyelitis and thereafter negligently misrepresented that the vaccine did in fact meet the requirements of these regulations. Specifically plaintiff complains that on or about June 14, 1962 a mobile truck unit employed by said Department of Health furnished plaintiff with a Type III Sabin Oral Poliovirus Vaccine, identified as Lot 18, manufactured by Wyeth Laboratories, Inc. which had been approved for release by the United States Government. As a result of the ingestion of said vaccine plaintiff sustained the injury for which he now seeks recovery.

 On July 19, 1965, plaintiff commenced an action in the Supreme Court of the State of New York, County of Kings, against the manufacturer of the vaccine, Wyeth Laboratories, Inc., for alleged negligence in its production and testing of Lot 18, seeking recovery for the same injuries complained of here.

 On September 8, 1966, in preparation for trial, plaintiff participated in the taking of depositions of Dr. Roderick Murray, then Director of the Division of Biologics Standards, and Dr. Ruth Kirschstein, then Chief of the Pathology Section of the Laboratory of Viral Immunology, Divisions of Biologics Standards, U.S. Department of Health, Education and Welfare, which depositions described, in seventy-seven (77) pages of transcript, the involvement of the Government in the testing and releasing of the vaccine in question.

 Finally, on June 13, 1973, eleven years after plaintiff contracted paralytic poliomyelitis, and eight years after plaintiff filed suit against the manufacturer, Wyeth Laboratories, plaintiff filed an administrative claim with the Department of Health, Education and Welfare, and on June 4, 1974, plaintiff filed the suit which is presently before us.

 As a threshold defense, the Government has moved for an order dismissing the action on the grounds that the Court lacks jurisdiction over the subject matter, and that the complaint fails to state a claim upon which relief can be granted. Both of these grounds are based upon the assertion that plaintiff's alleged claim is barred by the two-year statute of limitations provided for in the Federal Tort Claims Act, 28 U.S.C. § 2401(b). Since, however, the Court has considered matters outside the pleadings which were presented by the parties, the Court will treat this motion as one for summary judgment and dispose of it as provided by Rule 56 of the Federal Rules of Civil Procedure.

 DISCUSSION

 The statute of limitations applicable to the Federal Tort Claims Act is a jurisdictional requisite to suit in the federal courts. If an action is not begun within the prescribed period, a federal district court is without jurisdiction to entertain it. Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969); Turkett v. United States, 76 F. Supp. 769, 770 (N.D. N.Y. 1948). See Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047, 1048-9 (3d Cir. 1971); Crown Coat Front Co. v. United States, 363 F.2d 407, 411 (2d Cir. 1966), rev'd on other grounds, 386 U.S. 503, 18 L. Ed. 2d 256, 87 S. Ct. 1177 (1967); Isthmian Steamship Co. v. United States, 302 F.2d 69, 70 (2d Cir. 1962).

 The Supreme Court has ruled that this limitation period as well as any other limitation upon which the Government consents to be sued "must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S. Ct. 269, 273, 1 L. Ed. 2d 306 (1957); United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058 (1941).

 Suits against the United States can only be brought in the manner prescribed. The extent of the Government's consent to be sued under 28 U.S.C. § 1346 is jurisdictional and where there has been no specific authority granted, a court has no power to hear the matter raised. United States v. Carey Terminal Corp., 209 F. Supp. 385, 386 (E.D.N.Y. 1962); Pargament v. Fitzgerald, 391 F.2d 934 (2d Cir. 1968), affirming, 272 F. Supp. 553 (S.D.N.Y. 1967).

 The Statute

 The Federal Tort Claims Act statute of limitations in effect when the plaintiff contracted polio, and also in effect when plaintiff first commenced his action against Wyeth Laboratories provided:

 
28 U.S.C. § 2401
 
Time for commencing action against the United States (applicable to claims accruing on or ...

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