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May 11, 1981

Paul F. FUNSTON, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: MUIR

I. Introduction.

In this action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and the National Swine Flu Immunization Program of 1976, Pub.L.No.94-380, § 2, 90 Stat. 1113 (1976) codified at 42 U.S.C. § 247b(k)(2)(A) before the enactment of Pub.L.No.95-626, § 202, 92 Stat. 3551 (1978), Paul F. Funston seeks damages from the United States as a result of injuries caused by the Guillain-Barre Syndrome suffered by Funston following the administration of a swine flu vaccination. Jurisdiction is based on 28 U.S.C. § 1346(b). Prior to the trial of this action, a claim by Shirley M. Funston, Paul Funston's wife, for damages she suffered as the result of her husband's affliction was dismissed because of her failure to file a timely administrative claim as required by 28 U.S.C. § 2675(a). The Government has stipulated that the Guillain-Barre Syndrome exhibited by Paul Funston was caused by the swine flu inoculation and that the Government is liable to Mr. Funston. A trial to the Court on the issue of damages was held on April 14 and 15, 1981 and because of a misunderstanding between counsel as to whether Paul Funston's work life expectancy had been stipulated which did not surface until closing arguments, further evidence on that issue was taken on April 22, 1981. The following constitute the Court's findings of fact, discussion, and conclusions of law.

 II. Findings of Fact.

 1. The Plaintiff filed the appropriate administrative claim on August 15, 1978.

 2. The Plaintiff's administrative claim was deemed denied on February 15, 1979.

 3. This action was commenced on December 4, 1979.

 4. The President of the United States on March 24, 1976, announced that he was recommending to Congress a mass vaccination program for all Americans to combat the swine influenza virus. (Undisputed finding of fact, hereinafter designated "U").

 5. Congress passed a Special Appropriations Bill of $ 135,064,000.00 for the purchase of swine flu vaccine and the administration of the program to distribute it, and the President signed the Bill on April 15, 1976. Pub.L. 94-266, 90 Stat. 363 (1976). (U)

 6. On August 12, 1976, Congress passed the National Swine Flu Immunization Program of 1976 Pub.L. 94-380, 90 Stat. 1113 (1976), codified at 42 U.S.C. § 247b(j)-(l ) until the enactment of Pub.L. 95-626, § 202, 92 Stat. 3551 (1978). (U)

 7. The Swine Flu Immunization Program was established, conducted, and supported by the Department of Health, Education and Welfare. (U)

 8. The Government executives within HEW, who are responsible for making the decisions concerning the establishment, conduct, and support of the Swine Flu Program, were the Assistant Secretary for Health, the Director of the Center for Disease Control, the Director of the Bureau of Biologics, and the Deputy Director of the National Institute of Allergies and Infectious Diseases. (U)

 9. The mass inoculation of the American public began on October 1, 1976. (U)

 10. The United States assumed the sole responsibility for informing potential recipients of the vaccine of the risks and benefits of receiving swine influenza vaccine. 42 U.S.C. §§ 247b(j)(1)(F) before its amendment by Pub.L. 95-626.

 11. The personnel at the Center for Disease Control were responsible and developed the informed consent form which was required to be used to advise potential recipients of the vaccine of the risks and benefits of receiving swine influenza vaccine. (U)

 12. The Bureau of Biologics was responsible for and developed the package insert circulars that were included with each package of swine influenza vaccine distributed. (U)

 13. The manufacturers of swine flu vaccine sold all of the vaccine to the United States. (U)

 14. The United States controlled the distribution of the swine flu vaccine. (U)

 15. On November 2, 1976, at approximately 2:30 P.M., the swine flu vaccine was administered to Paul F. Funston, the Plaintiff, under the Swine Flu Immunization Program. The vaccine was injected into him at the Muncy Senior High School, Muncy, Pa., under the sponsorship of the Pennsylvania Department of Health. (U)

 16. On the day of the shot Plaintiff's arm swelled and itched, his toes severely tingled and the tip of his tongue tingled. On the next two days the Plaintiff could not control his fingers properly. During this period Plaintiff did not experience any pain.

 17. As a result of the inoculation referred to above, Paul F. Funston sustained Guillain-Barre Syndrome. (U)

 18. Symptoms of Guillain-Barre Syndrome are a deficiency in sensation and of motor abilities starting at the extremities and ascending the arms and legs to the torso involving a danger to the respiratory muscles and a potential for death.

  19. There is no known cure for Guillain-Barre Syndrome other than supportive treatment.

 20. Some victims of Guillain-Barre Syndrome completely recover.

 21. As a result of the Swine Flu inoculation of November 2, 1976, Paul F. Funston developed Guillain-Barre Syndrome on or about November 26, 1976.

 22. As a result of the onset of the Guillain-Barre Syndrome Paul F. Funston was admitted to the Divine Providence Hospital in Williamsport, Pennsylvania on November 26, 1976 where he remained until December 13, 1976.

 23. While Plaintiff, Paul F. Funston, was in the Divine Providence Hospital he was placed in the Intensive Care Unit until such time as the treating physicians no longer considered the possibility that the Guillain-Barre Syndrome would cause his death.

 24. During the time he was in intensive care, Plaintiff was paralyzed even to the extent of being lagophthalmic.

 25. Plaintiff was incapable of feeding himself until December 25, 1976 when he was able to bring a piece of fruit to his mouth.

 26. On December 13, 1976 Paul F. Funston was transferred to the Williamsport Hospital where he was kept until January 28, 1977.

 27. After recovering from his paralysis and until the time of trial Paul F. Funston has been continually affected by the residual paraparesis caused by the Guillain-Barre Syndrome.

 28. Paul F. Funston was born September 28, 1934.

 29. Mr. Funston is a sheet metal lay out man by occupation. He was employed by Koppers Sprout-Waldron in that capacity from 1955 until November 1976.

 30. Because of the residual effects of the Guillain-Barre Syndrome Paul Funston was placed on disability retirement by his employer, Koppers Sprout-Waldron, On October 28, 1977.

 31. On or about May 8, 1978, Mr. Funston attempted to return to work at Koppers Sprout-Waldron but was unable to perform his previous job because of residual effects of the Guillain-Barre Syndrome.

 32. Plaintiff was unable to perform a clerical job provided for him on May 8, 1978 and ceased working on May 10, 1978, when he collapsed and was taken to the hospital in an unconscious condition.

 33. As a result of the Guillain-Barre Syndrome Paul Funston has been unable to perform his ordinary and usual occupation as a sheet metal layout man from November 26, 1976 until the date of trial. (U)

 34. There is no known cure for the residual symptoms of Guillain-Barre Syndrome from which Mr. Funston presently suffers.

 35. It is highly doubtful that Mr. Funston will regain normal strength in his legs and torso even with an exercise program.

 36. The only type of occupation that Mr. Funston was physically capable of performing at the time of trial and will be able to perform for the remainder of his life would be a clerical type job in a dust free environment at which he could sit, stand, or walk at his option and would not be required to lift any substantial weight with regularity.

 37. Plaintiff has marketable skills and the intelligence to enter one or more of the following semi-skilled jobs: receiving clerk, shipping clerk, dispatch clerk, inventory clerk, warehouse clerk, rate clerk.

 38. Skills which Mr. Funston developed in his position with Koppers Sprout-Waldron would not be readily transferrable to such positions.

 39. Mr. Funston's excellent employment record for one employer over 22 years enhances his employability.

 40. The Federal "Target on Jobs, Tax Credit Program" whereby an employer may obtain a $ 3,000 tax credit for employing each handicapped worker also enhances the Plaintiff's employability despite his partial disability and age.

  41. With vocational counseling, selective placement and on the job training, the Plaintiff is employable.

 42. Return to gainful productive activity would be psychologically and emotionally beneficial to counter Plaintiff's present reactive depression and loss of self-esteem.

 43. Because of the degree of physical limitation which presently exists and will continue to exist in Paul Funston and because of his easy fatiguability Paul Funston would be unable to meet the production requirements at entry level in other unskilled positions.

 44. Paul Funston has been totally disabled as a result of the Guillain-Barre Syndrome through 1980 and will be partially disabled for the remainder of his life.

 45. Paul Funston retains one-half of his earning capacity.

 46. Plaintiff regained one-half of his former earning capacity as of January 1, 1981.

 47. Paul Funston's life expectancy is 26.9 years.

 48. Paul Funston's work-life expectancy is 17.2 years.

 49. Prior to November 1976 in addition to working at Koppers Sprout-Waldron Paul Funston was also engaged in a family-operated business of preparing and selling trailers at which he worked an average of six hours a day after finishing his day's work at Koppers Sprout-Waldron.

 50. As a result of the residual effects of the Guillain-Barre Syndrome Paul Funston is no longer physically capable of engaging in the family-operated business to the extent he was formerly able to do so.

 51. As a result of the Guillain-Barre Syndrome, Paul Funston has undergone great pain and suffering, both physical and mental, from November 1976 until the time of trial.

 52. As a result of the Guillain-Barre Syndrome, Paul Funston will suffer great pain and suffering, both physical and mental, for the remainder of his life.

 53. As a result of the Guillain-Barre Syndrome Paul Funston has incurred medical bills in the amount of $ 10,310.37.

 54. Mr. Funston's last day of employment prior to onset of Guillain-Barre Syndrome was November 19, 1976.

 55. A general pay increase which would have resulted in an increase in Plaintiff's pay had he not suffered Guillain-Barre Syndrome to $ 6.63 per hour was granted on October 31, 1977.

 56. A merit increase was granted Mr. Funston on November 29, 1976, to an hourly rate of $ 6.11. This was Mr. Funston's only merit increase since 1973.

 57. Other employees with similar longevity and experience received additional increases to the following hourly rates: November 6, 1978, $ 7.08; April 3, 1979, $ 7.27; October 8, 1979, $ 8.00; October 8, 1980, $ 8.76.

 58. As a result of his inability to work at Koppers Sprout-Waldron, Paul Funston has suffered lost wages in the amount of $ 59,526.10 from the date of the onset of the Guillain-Barre Syndrome until the date of trial.


58.1. The amount of lost wages is calculated by multiplying the following number of hours by the following hourly rates for each year indicated:

  1976 200 hours at $ 6.11 = $ 1,222.00 1977 1760 hours at $ 6.11 = $ 10,753.60 320 hours at $ 6.63 = $ 2,121.60 1978 1800 hours at $ 6.63 = $ 11,934.00 280 hours at $ 7.08 = $ 1,982.40 1979 40 hours at $ 7.08 = $ 283.20 1520 hours at $ 7.27 = $11,050.40 520 hours at $ 8.00 = $ 4,160.00 1980 1560 hours at $ 8.00 = $ 12,480.00 520 hours at $ 8.76 = $ 4,555.20 1981 until 4/14/81 600 hours at $ 8.76 = $ 5,256.00 Total = $ 65,798.40 Less adjustment for 1981 (2,644.30) Less adjustment for vacation pay (3,644.30) Total lost wages until April 14, 1981


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