The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION AND ORDER
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
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
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,
These factors are relevant because they relate to the actual
diagnosis of plaintiff's illness. The government contends that
plaintiff suffered from a disease of the central nervous
system. Plaintiff, to the contrary, contends that she suffered
from both a central nervous system disorder and Guillain-Barre
Syndrome which effects the peripheral nervous system. The
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 ...