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FUNSTON v. UNITED STATES

May 11, 1981

Paul F. FUNSTON, Plaintiff,
v.
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 ...


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