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September 13, 1990


The opinion of the court was delivered by: Munson, District Judge.


The complaint in the instant action was filed on October 20, 1981. The action is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., and the National Swine Flu Immunization Program of 1976 (the "Swine Flu Act"), 42 U.S.C. § 247b. As the result of a swine flu shot, plaintiff, Irene Weldon, claims to have contracted various ailments, most notably neurological disorders: Guillain-Barre Syndrome ("GBS"), and viral meningio-encephalitis. Complaint ¶ 5. The United States of America (the "government") presently moves for summary judgment dismissing the complaint. The plaintiff also moves for summary judgment on two issues. She asks the court to find as a matter of law the inadequacy of the consent form which she signed prior to receiving the shot. Second, she seeks a holding that she suffered a central nervous system disorder.

In general, there is no dispute as to the facts which underlie plaintiff's complaint. The dispute between the parties revolves around the conclusions to be drawn from the underlying facts.


On November 16, 1976 plaintiff received a swine flu vaccination at the PennCan Mall in North Syracuse, New York. Before she received the shot plaintiff signed a consent form which, among other information, stated: "As with any vaccine or drug, the possibility of severe or potentially fatal reactions exists." For more than two years following the shot, plaintiff sought medical care for various complaints, including sore throats, swollen left jaw, chest pain and colds. During this period, she also claims to have suffered on numerous occasions from being generally weak and being weak in the legs or knees.

On February 19, 1979 plaintiff was admitted to Saint Joseph's Hospital, Syracuse, New York. She sought care with respect to an illness which had its onset in the previous month. She complained of a high fever, shakes, body aches, loss of appetite, stiff neck, lethargy and sleeping all the time. Her temperature at the time of her initial examination at the hospital was 102.4°F. Plaintiff was admitted to the Intensive Care Unit ("ICU"). The extensive, if not overwhelming, record presented to the court indicates that plaintiff was transferred out of ICU "to the floor," but neither party has indicated when this happened. During her stay at the hospital, among many other procedures, a tracheostomy was performed on plaintiff; she required the assistance of a respirator; she had a catheter attached to her bladder which was not functioning; and nasogastric tubes were implaced to feed her.

Plaintiff was discharged from the hospital on April 25, 1979. Government's Exhibit ("Govt's Exh.") 1A, at 322. She, however, was transferred to the Extended Care Facility ("ECF") at St. Joseph's Hospital and was discharged from that facility in early May of 1979. Id. at 550. A report prepared under the name of Dr. Thomas Scalea summarized plaintiff's stay at St. Joseph's Hospital prior to her transfer to the ECF. Id. at 5. Dr. Scalea's report listed as final diagnoses: Viral Meningo-encephalitis, Guillain-Barre syndrome, Interstitial lung disease, and Urinary tract infection. Upon plaintiff's discharge from the ECF, Dr. Patricia Elliott signed a form entitled, "Physician's Statement For Determination Of Employment." In that form Dr. Elliott reported plaintiff's diagnosis as "(1) Guillain-Barre Syndrome, Encephalo Myelitis, (2) Urinary retention." Plaintiff's Exhibit 1, at 5.

The government has highlighted several pieces of laboratory and clinical evidence gathered during plaintiff's stay at St. Joseph's. First, it points to the laboratory results from examining plaintiff's spinal fluid. Her cerebrospinal fluid ("CSF") contained an increased white cell count and low sugar. In addition, there was an initially high CSF protein count, which then decreased. See Docket No. ("Doc.") 87. Clinically, plaintiff's knee reflexes on admission were hyperactive; she demonstrated a Babinski's sign;*fn1 she had a high fever; she had persistent bladder infection; and there was a finding "compatible with left optic nerve dysfunction." Govt's Exh. 1A, at 43.


The government moves for summary judgment on four grounds. First, it contends that plaintiff has offered no evidence to establish that her 1979 illness was GBS. Second, the government argues that plaintiff has failed to raise a genuine issue of fact that her swine flu shot caused her illness in 1979. Third, the government claims that, given plaintiff's failure to provide evidence that she suffered from GBS, she has not shown any theory of liability on which she may prevail. Finally, the government argues that summary judgment is appropriate because of the admissions resulting from the plaintiff's failure to respond to the re-service of the government's first request for admissions. This request was originally answered by the plaintiff pro se. After the plaintiff retained attorney Stephen Lance Cimino, the government re-served the first request for admissions. However, the first request was not answered after the re-service.

Prior to addressing these contentions, the court will review the question of which substantive law is applied to the instant action. Plaintiff has filed this action pursuant to the Swine Flu Act and the FTCA. Under both provisions, the court is to apply the substantive law of the State of New York. See former 42 U.S.C. § 247b(k)(2)(A)(i); Grill v. United States, 516 F. Supp. 15, 17 (S.D.N.Y. 1981) (Swine Flu Act), aff'd without opinion sub nom., United States v. Solomon, 697 F.2d 300 (2d Cir. 1982); 28 U.S.C. § 1346(b); Young v. United States, 542 F. Supp. 1306, 1310 (S.D.N.Y. 1982) (FTCA).

The government's first contention is that plaintiff will not be able to prove that she was afflicted with GBS. The government has presented for the court the depositions and affidavits of numerous physicians familiar with plaintiff's case. All concur that plaintiff did not suffer from GBS. In light of a new review of plaintiff's medical records, plaintiff's treating neurologist and interns agree that the original diagnosis, that plaintiff suffered from GBS, was incorrect. In this regard the neurologist, Dr. Antonio V. Marasigan, states: "the increased white cell count, low CSF sugar, and positive Babinski signs are all characteristic of infection of the central nervous system and the increase in the number of cells in the CSF is inconsistent with Guillain-Barre, as is an initially high CSF protein count which decreases while the clinical picture worsens." Affidavit of Dr. Antonio V. Marasigan, Govt's Exh. 49, at 3.

The government points out that plaintiff has not identified any expert witness who will testify that she suffered from GBS. Plaintiff responds that she has raised a genuine issue as to this fact because, as the court has noted, upon plaintiff's discharge from St. Joseph's, she was diagnosed as having ...

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