The opinion of the court was delivered by: EDELSTEIN
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., in conjunction with the National Swine Flu Immunization Program Act ("Swine Flu Act"), 42 U.S.C. § 247b. Plaintiff alleges that on or about November 17, 1976, she received a swine flu vaccination at United Hospital in Port Chester, New York, as a result of which she sustained injury. The action was transferred to the District of Columbia for coordinated and consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407. Upon completion of these proceedings, the case was remanded to this district for trial. See Final Pretrial Order, In Re Swine Flu Immunization Products Liability Litigation, MDL No. 330, Misc. No. 78-0040 (D.D.C. Nov. 15, 1979).
After a full trial on the merits, and after consideration of all the evidence, the court finds that plaintiff was adequately warned of the potential risks of the swine flu vaccination and finds no liability on the part of defendant. The court makes the following Findings of Fact and Conclusions of Law.
The Swine Flu Act was an attempt by the Federal Government to inoculate the entire adult population of the United States against the threat of a swine flu epidemic. It was the largest immunization program in this country's history, and over 45 million Americans-or one-third of the adult population-were vaccinated. The initial vaccination was on October 1, 1976, and the program was suspended on December 16, 1976. The program, for which $ 135 million was initially appropriated by Congress, called for using both private and public health care systems to achieve its goal of inoculating the entire adult population by the end of November 1976. The November deadline was critical since the season of intense flu transmission in the United States is generally considered to be September through March.
The Swine Flu Act became law on August 12, 1976 and was applicable to all swine flu inoculations administered after September 30, 1976. Important provisions of the Act include the following:
1. The Act creates a cause of action against the United States for any personal injury or wrongful death sustained as a result of the swine flu inoculation resulting from the act or omission of a program participant upon any theory of liability that would govern in an action against such program participant including negligence, strict liability in tort, and breach of warranty; 42 U.S.C. § 247b(k)(2)(A);
2. It makes that cause of action the exclusive remedy (42 U.S.C. § 247b(k)(3)) and abolishes the cause of action against the vaccine manufacturer; and
3. It makes the procedures of the FTCA applicable to suits brought pursuant to the Swine Flu Act (42 U.S.C. § 247b(k)).
The program was prompted in part by the medical discovery in early February, 1976 at Fort Dix, New Jersey, of military servicemen having a new strain of influenza virus antigenically related to the virus prevalent during the 1918-19 swine flu pandemic. That pandemic was responsible for 20 million deaths worldwide, including 500,000 in the United States alone. Prior to 1930, this strain was the predominant cause of influenza in the United States. Since 1930, the virus had been limited to transmission among swine only with occasional transmission from swine to human, with no secondary person-to-person transmission.
History has demonstrated that no swine flu epidemic occurred during the winter of 1976-77. As one might expect, many people who were inoculated incurred discomforts, illnesses, or injuries in a period relative to the vaccination. Lawsuits such as the instant one were filed throughout the country for illnesses allegedly resulting from the swine flu immunization program. In addition, numerous administrative claims have been filed.
1. Plaintiff Georgia Young
was born on December 11, 1932.
2. In her childhood years, plaintiff reacted allergically to several types of food, for which she was vaccinated by a physician. In her early twenties, plaintiff had an allergic reaction after receiving an oral polio vaccination. However, plaintiff had no history of allergic reaction to egg.
3. On November 17, 1976, plaintiff was a resident of the State of New York.
4. On November 17, 1976, plaintiff received a swine flu inoculation at United Hospital, Port Chester, New York pursuant to the Swine Flu Act. Port Chester, New York is in the Southern District of New York.
5. Plaintiff went to United Hospital with a friend, Blanche Fowler. When they arrived at the hospital, plaintiff and Ms. Fowler joined a group of people ...