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Barnes v. United States

argued: June 14, 1982.



Aldisert, Gibbons and Higginbotham, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

The government's appeal from a judgment in a claim under the Swine Flu Act*fn1 tracks a narrow compass. It complains that the district court's award of damages for lost future earnings was excessive and punitive because it did not account for future income taxes and was not reduced to present worth. We conclude that the district court's fact finding was not clearly erroneous and that the court did not err in the selection, interpretation, or application of legal precepts. Accordingly, we affirm.*fn2


At the end of November 1976, Sandra Barnes, a young mother of a baby daughter, returned from maternity leave to her position as a therapeutic recreation counselor. Like millions of Americans, she received a swine flu shot at her place of employment; unlike most Americans, Sandra Barnes contracted Guillain-Barre Syndrome, and walked for the last time in her life into a hospital emergency room on Christmas Eve, 1976. Today she is a paraplegic, confined to a wheel chair except for periods of exercise.

In late 1978, Mrs. Barnes and her husband brought this action against the United States under the Swine Flu Act. Congress, by abrogating all causes of action against participating vaccine manufacturers and health care providers and substituting an exclusive right of action against the United States, intended this legislation to encourage participation in the federal swine flu immunization program. See Titchnell v. United States, 681 F.2d 165, 168 & n.2 (3d Cir. 1982); 42 U.S.C. §§ 247b(k) (2)-(3). The right of action created by the Act is governed by the procedural requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., which, in turn, adopts with some exceptions the law of the state in which the cause of action arose. Id. at §§ 1346(b), 2674.

The United States stipulated to liability but contested the amount of damages. Before the trial began, the Pennsylvania Supreme Court decided Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), which substantially changed the measure of damages for loss of future earnings under Pennsylvania law. Reversing prior Pennsylvania decisions, the court held that both inflation and a plaintiff's productivity increases may be considered in computing lost future earnings. To account for inflation, it adopted the "total offset" method: the loss of future earnings equals present wages, adjusted for productivity increases, multiplied by estimated work years; this product is not reduced to present value because future interest rates and future inflation are conclusively presumed to be equal and offsetting.

The district court adopted the calculation for lost future wages presented by plaintiff's expert witness, Dr. Reuben Slesinger, professor of economics at the University of Pittsburgh. Dr. Slesinger first calculated the salary Sandra Barnes would have received under her contract, which would have expired on June 30, 1983. He calculated lost wages for subsequent years by multiplying the annual wage under her contract for the year 1983, $22,221, by 28, the number of years government statistics indicated she would have remained in the work force. The sum of these two figures is $665,716.

The district court found this approach both "conservative" and "realistic":

While the amount is great, we believe it is a conservative approach to the problem since Dr. Slesinger's computation does not speculate that Mrs. Barnes would have been promoted to a higher paying position one or more times; neither does it contemplate salary raises encompassed in future contracts. Both of these possibilities are realistic. Mrs. Barnes had been a good worker and had been promoted during her first four years on the job. As to future salary raises, in these days, salaries nearly always go up, and we believe that this finding of future lost wages of $665,716 is realistic.

516 F. Supp. at 1388.

The district court held that the total offset method of calculating lost earnings controlled in Swine Flu Act cases arising in Pennsylvania, and that the computations made by Dr. Slesinger were consistent with this approach. The government proffered no expert testimony or other evidence on computation of lost wages, and it made no effort at trial to quantify the effect, if any, that consideration of federal income taxes might have on Dr. Slesinger's estimates of future income. Its only evidence on taxes was Sandra Barnes' 1976 "W-2" form, which it offered not to show taxes incurred by Mrs. Barnes, but to show actual 1976 wages because of an alleged ...

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