important. If the court were to find that plaintiff suffered
from Guillain-Barre Syndrome, she would not be required to
prove a theory of liability for her injuries, e.g., negligence
or breach of warranty. The government has so stipulated in the
Multi-District Litigation relating to swine flu cases. In Re
Swine Flu Immunization Products Liability Litigation, MDL
Docket No. 330, ¶ 9 (November 15, 1979) (Final Pretrial Order);
see Government's Brief in Support of its Motion, Doc. 50, at 5
n. 4; Government's Reply Brief, Doc. 79, at 6 n. 4. That
stipulation is binding on the instant action. See In Re Swine
Flu, supra, ¶ 9.
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
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 GBS.
She also argues in her Memorandum of Law that she did suffer
Swine flu cases are essentially medical malpractice cases.
Unthank v. United States, 732 F.2d 1517, 1521 (10th Cir. 1984).
Under New York law which governs in this case, "unless the
alleged act of malpractice falls within the competence of a lay
jury to evaluate, it is incumbent upon the plaintiff to present
expert testimony in support of the allegations to establish a
prima facie case of malpractice." Keane v. Sloan-Kettering
Institute for Cancer Research, 96 A.D.2d 505, 506, 464 N.Y.S.2d
548, 549 (2d Dept. 1983). The rule of providing expert
testimony in medical malpractice cases applies to non-jury
cases. Sitts v. United States,
811 F.2d 736, 740 (2d Cir. 1987). It does not apply, however, to
circumstances in which "anyone would be expected to identify
without difficulty" the proper medical procedure, such as which
leg to take off or which tooth to take out. Id. at 741. This
court has no difficulty holding that the issue of whether
plaintiff suffered from GBS falls outside the unassisted
competence of a lay trier-of-fact.
Furthermore, in the instant case the government has proffered
substantial amounts of evidence that plaintiff did not suffer
from GBS. As a result, there is no doubt that "plaintiff cannot
prevail without introducing expert medical testimony."
Id. Plaintiff has, however, neither tendered an affidavit or
deposition testimony, nor identified a qualified expert who
will testify that she suffered from GBS. Plaintiff's own
argument that she suffered from GBS will not suffice to deny
the government summary judgment on the issue of whether she
suffered from GBS. Keane v. Sloan-Kettering Institute for
Cancer Research, 96 A.D.2d at 506, 464 N.Y.S.2d at 549.
Plaintiff's attempt to establish a genuine issue of fact by
relying on the diagnosis upon her discharge is to no avail. All
the doctors who made that diagnosis have subsequently revised
it based upon further review of the clinical and laboratory
findings. In affidavits presented by the government, they now
unanimously conclude that plaintiff did not suffer from GBS.
See, e.g., Docs. 85, 87, & 91. These affidavits cast serious
doubt on the diagnoses upon which plaintiff relies. Given the
fact that plaintiff has not produced one expert who opines that
she suffered from GBS, the government is entitled to summary
judgment on the issue and the court concludes as a matter of
law that plaintiff did not suffer from GBS.
At oral argument plaintiff's counsel asked the court to deny
summary judgment pursuant to Fed.R.Civ.P. 56(f). Rule 56(f)
permits the court to deny entry of summary judgment if it
should "appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present
affidavit facts essential to justify the party's opposition."
In this case the court is precluded from denying the
government's motion pursuant to Rule 56(f). Plaintiff has not
provided the affidavit which the Rule contemplates. Without the
affidavit, the plaintiff may not invoke the aid of Rule 56(f).
Burlington Coat Factory Wrhse. Corp. v. Esprit de Corp,
769 F.2d 919, 926 (2d Cir. 1985). Furthermore, as is all too
readily apparent, this action has been pending since 1981 which
indicates that plaintiff has had more than ample time to
conduct discovery and investigation. See Baylis v. Marriott
Corp., 906 F.2d 874, 878 (2d Cir. 1990) (rejecting plaintiffs'
contention that district court should have permitted more
discovery in part because the action had been pending since
1985). The court declines to deny summary judgment on Rule
The government's second contention is that the plaintiff has
failed to raise a genuine issue of fact regarding whether the
swine flu shot caused her illness that she suffered in 1979. In
this prong of its argument, the government argues that the
court should hold that plaintiff has not set forth specific
facts going to causation even though she has produced an expert
who has opined that her 1979 illness was caused by the swine
flu shot. The government maintains that this expert, Dr. Joseph
Bellanti, professes a theory of causation that is merely an
hypothesis and therefore not to be accorded any weight, even on
a motion for summary judgment. The government cites numerous
swine flu cases in which federal courts have not credited Dr.
Bellanti's trial testimony because it was found to be
conjecture. See, e.g., Novak v. United States, 865 F.2d 718,
722-23, 725 (6th Cir. 1989); Gicas v. United States,
508 F. Supp. 217, 220 (E.D.Wisc. 1981). Plaintiff, in turn, claims
to know of cases in which courts accepted Dr. Bellanti's
testimony. Despite this claim, she has not provided the court
with one citation.
Dr. Bellanti's theory of causation was summarized in his
deposition. He stated:
I think we have to put . . . in perspective . . .
the history of when [the plaintiff] was
immunized in November of
1976, the initial findings that occurred within a
month, the weakness of the legs, the falling
asleep and tingling of the hand, and then later
what appeared to be a natural infection occurring
in 1977, and then in January of 1979 a flu-type
virus where there was then an exacerbation of this
neurologic involvement, with weakness, inability
to stand, inability to use the arms and
extremities. Then her speech became slurred.
So we are not talking about a single insult.
We're talking about an immunization that was given
that set up a sensitization. She had initial
symptoms that were evanescent, that appeared and
Then when she got the natural infection, there
was an exacerbation or what I call an anamnestic
response, and that is a hastening of the immune
response that then causes further damage.
Bellanti Deposition ("Dep."), Govt's Exh. 15, at 39-40.