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COHEN v. UNITED STATES

April 20, 1983

SONIA COHEN, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: SAND

SAND, J.

 This action has been brought under the National Swine Flu Immunization Act of 1976, 42 U.S.C. § 247b(j)(1). The case had been transferred to the United States District Court for the District of Columbia and before that court, a final pretrial Order, in re Swine Flu Immunization Products Liability Litigation, M.D.L. Docket No. 330, Misc. No. 78-0040, ALL CASES (hereafter "M.D.L. P.T.O.") was entered. Thereafter, the case was remanded to this Court for purposes of local discovery and trial. The case has been tried to the Court pursuant to the aforesaid pretrial order and a pretrial order, solely governing this case, dated December 22, 1981 (hereafter "P.T.O."). By agreement, the trial was bifurcated, and only issues relating to liability were submitted to the Court. The following constitutes our findings of fact and conclusions of law, pursuant to F.R.C.P. 52(a).

 Introduction

 Plaintiff's contention is that she became ill with Guillain-Barre Syndrome (hereafter sometimes referred to as "G.B.S.") as a result of receiving a swine flu vaccination and sustained serious, permanent disabilities. Plaintiff's sole claim relates to G.B.S. and no other injuries or disabilities are claimed. *fn1" The defendant disputes that plaintiff contracted G.B.S. and claims that plaintiff is a "malingerer." For the reasons set forth below, we have concluded that plaintiff did not contract G.B.S. and is not suffering from any disabilities resulting therefrom. This conclusion is dispositive of the issues before this Court and we limit our findings of fact and conclusions of law to this single issue. *fn2"

 Findings of Fact

 It is undisputed that on October 15, 1976, plaintiff received a swine flu inoculation at Co-Op City, Bronx, New York, under defendant's swine flu program and that the swine flu vaccine was researched, tested, developed, manufactured, marketed, promoted, distributed and administered by the United States and by program participants. P.T.O. para. 2. A mass immunization program in influenza involving so many people had never before been undertaken by the United States Government. Id. "Over forty-five million Americans -- or one third of the adult population -- were vaccinated." Bean v. United States, D. Colo., Civ. Action 79-F-571, Memo Opinion (August 19, 1980) p.3 (discussing the history of the immunization program and the ensuing legislation and litigation.)

 Plaintiff's History and Medical Evidence supporting a claim of Guillain-Barre Syndrome

 Plaintiff's case was predicated on:

 A) her testimony as to the symptoms and disorders she sustained and the medical advices she had received;

 B) the expert testimony of Dr. Blatt;

 C) the proceedings before the Social Security Administration which plaintiff contends constitutes a determination which collaterally estops defendant from contesting plaintiff's claim that she contracted G.B.S. (See p. slip op. 14, infra).

 A. Plaintiff's testimony, briefly summarized, is that she was born in Poland *fn3" on August 21, 1942 and after divorcing her first husband, married Ralph Fol on September 10, 1976. She was a graduate of Thomas Edison College, having obtained a degree in chemistry that year. Her employment history includes work in 1973 as a medical technologist and in other related capacities. She also worked as a companion-caretaker for elderly and disabled persons. In October, 1976, a few weeks after her marriage, she took a position taking care of a blind woman who lived in Co-Op City which employment occasioned her moving out of the apartment she shared with her husband and father-in-law and into this woman's apartment in Co-Op City. On October 15, 1981, while en route to do some shopping, she passed a place at which swine flu shots were being administered. After a brief conversation with a person she describes as a "clerk", she received an inoculation. She had some further discussion with the "clerk" concerning plaintiff's volunteering to assist in the program.

 Plaintiff testified that at this time, she began to feel ill and a doctor was called who told her to rest. She said that she was unable to stay because of the demands of her job and proceeded to a supermarket. While shopping, she experienced chest pains and felt feverish and returned to the Co-op City apartment to rest.

 According to plaintiff, some time within one to three weeks after receiving the inoculation, she saw a Dr. Migden at his office on East 14th Street in Manhattan. She complained of feeling feverish and of a funny feeling in her hands and legs. Plaintiff testified that Dr. Migden extracted some spinal fluid and told plaintiff that she had G.B.S. She testified that Dr. Migden had advised hospitalization which she refused because of the expense and that she saw him three or four times. Dr. Migden died in 1977. *fn4"

 The credibility of plaintiff's description of her treatment by Dr. Migden and his diagnosis was the subject of challenge by defendant's medical experts. First, they note that she had said that she couldn't remember the physician's name. See, history given to Dr. Peter Tsairis, as set forth in his report dated September 21, 1981, Defendant's Exhibit 6. *fn5" Yet this same doctor was described by plaintiff as being an old friend who was assisting plaintiff in her application to medical school. Second, plaintiff has at times stated that no spinal tap was done. *fn6" Dr. Tsairis expressed doubt that such a procedure would be conducted in an office unless it was proximate to a hospital or adequate medical facilities. Finally, the plaintiff's subsequent symptoms are said by defendant's experts to be inconsistent with a diagnosis of G.B.S., but a physician diagnosing a patient as suffering from G.B.S. would have been more emphatic and insistent on the need for hospitalization than appears to have occurred here.

 The Court finds that Dr. Migden either did not in fact make a definitive diagnosis that plaintiff was suffering from G.B.S. or, if he did so, that diagnosis was incorrect and based on inadequate data as subsequent events made clear.

 Although plaintiff claims that she experienced significant pain and disability following her visits to Dr. Migden, it appears that there is a hiatus in her seeking medical aid based on her claim of G.B.S. following a swine flu shot. Plaintiff contends that she saw several doctors, including one who had kept her waiting for 4-1/2 hours, who refused to treat her after being told of the swine flu shot because of a reluctance on their part to "get involved" with the government. Plaintiff is vague as to the names, dates and locations of these occurrences.

 Plaintiff testified that within thirty days of receiving the shot on October 15, 1976, she experienced fever and chest pains, which subsided; that within three or four weeks, she started experiencing weakness in her lower extremities and hands; that after exercise, there was some improvement; that she was compelled to leave her job on October 29, 1976 when she was suffering from a condition she described as "paralysis"; that she returned to work for five weeks in 1977 and was compelled to quit because she had relapsed and ...


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