The opinion of the court was delivered by: PRATT
Plaintiffs brought this action to recover for injuries claimed to have been caused by a Swine Flu vaccine administered to plaintiff Lawrence Rein on December 14, 1976, as part of the National Swine Flu Immunization Program. Jurisdiction is not disputed. 28 U.S.C. § 1346(b) and 42 U.S.C. § 247b.
Upon the consent of the parties the court ordered that the issue of causation be tried separately. To that end, evidence was presented to the court sitting without a jury on December 21, 1981. For the plaintiff two witnesses testified, plaintiff Lawrence Rein and one of his treating doctors, Matthew Greenberg. Defendant presented no live witnesses. Testimony of defendant's expert medical witness, Dr. Thomas G. Kantor had been written out in advance of trial; since plaintiff did not wish to cross-examine Dr. Kantor, he was not called to court to testify, and his testimony was submitted in writing. In addition, defendant submitted the deposition of Dr. Joseph D. Schattner, one of plaintiff's treating physicians, as well as portions of depositions taken as part of the proceedings before Hon. Gerhard A. Gesell while the case was in the multidistrict litigation stage. The portions of the depositions submitted by defendant in that connection are listed in the pretrial order and they include excerpts from the depositions of doctors Davenport, Henderson, Marine, Meiklejohn, Nathanson, Retailliau, Salk, Schoenbaum and Stuart-Harris.
The court has considered carefully the live testimony, the deposition testimony, the exhibits submitted and the arguments of counsel. This memorandum constitutes the court's decision and includes the court's findings and conclusions pursuant to FRCP 52(a).
It is undisputed that plaintiff received a Swine Flu shot on December 14, 1976. He claims that there was an immediate reaction of swelling, redness and pain in the right arm which later extended to the right leg, causing him to spend three weeks in bed and away from work. Gradually, over succeeding months and years, the pain has diminished and has now virtually stopped except for an occasional flare-up. He claims that the symptoms were caused by the Swine Flu vaccine.
Defendant acknowledges that plaintiff did develop some condition after the shot, but claimed that it was minor in its symptoms and that its connection with the administration of the vaccine was only temporal and coincidental. Defendant argues that plaintiff has failed to satisfy his burden of proving a causal relationship between the vaccine and his symptoms.
Plaintiff begins with a high degree of statistical improbability weighing against his contention. A reaction of the type claimed is virtually unknown in the medical literature and by the experts whose opinions have been brought to the court's attention. Statistics, of course, are not decisive on issues of individual causation. They do, however, help place the issue in perspective. In addition, they focus the court's attention in this case upon the credibility of the plaintiff and the reliability of his reports of the particular symptoms claimed to have been suffered shortly after the vaccine was administered.
Plaintiff testified that before the innoculation he had never missed time from work, was in good health except for minor colds and a heart murmur that he had had for years, that he had no medical problems until the vaccine, and that, in particular, he had suffered from no muscle or nerve problems. He further testified that on the day following administration of the vaccine he experienced "excruciating pain" of a shooting variety in his right arm, that he could not raise his right arm without such pain, and that the pain continued for some three weeks during which time he remained home from work. He testified that he went to the emergency room of Mount Sinai Hospital, but they would not treat him and, instead, referred him to his own physician, Dr. Greenberg.
Rein testified that his pain was focused primarily in his right arm and right side, and that, in addition, his right leg was numb, but with a feeling that was unlike the pain in his arm. The pain tapered off after three weeks but he testified that the numbness persisted. More recently, changes in weather tend to precipitate further episodes of pain.
On cross-examination Rein testified that he had experienced no muscle problems and no migrane headache problems. He also testified that his wife had taken his temperature when his pain symptoms appeared, and that he had told Dr. Greenberg and Dr. Schattner that he had suffered from fever. He acknowledged that he could now do everything by way of activities that he could before the shot.
Dr. Matthew Greenberg, plaintiff's treating physician, in part corroborated, but in part undercut plaintiff's testimony. On direct examination he testified that he had seen plaintiff on December 27, 1976, 13 days after the shot. At that time, plaintiff complained of pains in his arms and legs, particularly joint pains which seemed to be focused on the elbows, wrists, and foot. Dr. Greenberg saw no signs of swelling or redness, although he did find tenderness and limited motion. In his opinion, there was a "very likely probability" that the symptoms experienced by Rein were caused by the Swine Flu vaccine. Dr. Greenberg based his opinion on the facts that there was a temporal relationship, that Rein had had no prior joint pains, that he had had one other patient with an almost identical problem involving ankle swelling after a Swine Flu vaccination, and the fact that immune, complex reactions frequently follow administration of protein vaccines.
Dr. Greenberg's testimony on cross-examination, however, contradicted in part the picture given that far in the trial of virtually problem-free health for Rein. From 1966 to 1976 Dr. Greenberg frequently treated Rein for a variety of problems including multiple treatments for upper respiratory infections, but also for back pain and headaches which may have been related to an automobile accident in 1968, muscle spasms in 1970, lost vision in one eye in 1971, neuritis and a numbness in the face, right arm and right leg in 1972, shortness of breath in 1973, and muscle spasms with neck and right shoulder pain in 1975. Among the foregoing, of particular significance are the complaints by Rein of numbness in his face, right arm and right leg in 1972, and the muscle spasms with neck and right shoulder pain in 1975. Those incidents flatly contradict Rein's own testimony that he had had no muscle problems prior to the Swine Flu vaccine.
It further appeared from Dr. Greenberg's testimony that on December 20th, four days after the vaccine was administered, and three days after Rein testified that he had experienced excruciating pain so severe that he could not raise his arm, Dr. Greenberg had a visit from Rein in which he examined and treated him for an upper respiratory infection, but made no note whatsoever of any complaint about arm pains. If plaintiff experienced on December 15 the pain that he described at trial, it is inconceivable that he would not have mentioned it to Dr. Greenberg on December 20th. Since he failed to mention the pain, the court finds that he had not yet experienced it.
On January 3, 1977, a week after Dr. Greenberg's examination of Rein for the joint pains, he again treated him for the upper respiratory infection, but made no note whatsoever about joint or muscle pains. A month later, on February 3, 1977, Dr. Greenberg further treated Rein for upper respiratory infection and noted no complaints of pain with respect to the wrists or elbows. At no time did Dr. Greenberg notice any swelling or redness on any part of Rein's body. Dr. Greenberg's preliminary diagnosis was arthritis, although he could not determine the precise type. He was satisfied that it was not rheumatoid arthritis or osteoarthritis, and he was also satisfied that it was not gout. In June of 1977, Rein complained of tenderness in the wrists, elbows and of foot pain. This is the first occasion that Dr. Greenberg noted such ...