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BAUM v. UNITED STATES

June 29, 1982

Howard G. BAUM, Executor of the Estate of Towanda M. Baum, Deceased, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: HERMAN

MEMORANDUM

Introduction

 This is an action initiated by the Plaintiff, Howard G. Baum, as executor of the estate of his mother, Towanda M. Baum, (hereinafter referred to as "Mrs. Baum"), pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671, et seq., and the National Swine Flu Immunization Program Act, 42 U.S.C. § 247b. Plaintiff alleges that his mother died of complications arising out of Guillain-Barre Syndrome (hereinafter referred to as "GBS"), which she allegedly developed as a result of receiving a swine flu inoculation.

 GBS is a neurological disorder of unknown cause that affects the peripheral as opposed to the central nervous system, and results in motor weakness and reflex impairment. Medical studies have revealed a number of different antecedent events that seem to trigger the onset of the disorder, although in one-third to one-half of the cases of GBS there is no ascertainable antecedent event. The swine flu immunization program conducted by the federal government in 1976 triggered a dramatic increase in the number of GBS cases among vaccinees, and the program was suspended in December of 1976 because of the apparent risk of GBS complications.

 Plaintiff filed his complaint against the United States of America (hereinafter referred to as "the United States") on March 5, 1979. Pursuant to 28 U.S.C. § 1407, the action was transferred to the United States District Court for the District of Columbia for consolidated multidistrict pretrial proceedings. Baum v. United States of America, Civ.No. 79-275 (Jud.Pan.M.D.L. April 5, 1979) (transfer order). See In re Swine Flu Immunization Products Liability Litigation No. 330, 446 F. Supp. 244 (Jud.Pan.Mult.Lit.1978). In those proceedings, the United States stipulated that GBS can be caused by the swine flu vaccine in certain instances, and that if, in a particular case, the United States concedes that the plaintiff developed GBS at any time, or, if a court so finds, it would not be necessary for the plaintiff to establish a particular theory of liability. The only liability issue in such a case would be causation. In re Swine Flu Immunization Products Liability Litigation, M.D.L. No. 330, Misc.No. 78-0040, slip op. at 9 (D.D.C. Nov. 15, 1979) (final pretrial order).

 Defendant in this case did not concede that Mrs. Baum suffered from GBS. Consequently, the issues at trial were two: first, did Mrs. Baum contract GBS; and second, if she did contract the disease, was the swine flu inoculation she received the proximate cause. Pursuant to the Federal Tort Claims Act, the law of the place where the act or omission occurred applies. 28 U.S.C. § 1346(b). In this instance, the law of Pennsylvania applies. Plaintiff, therefore, was required to prove his case on the above-mentioned issues by a preponderance of the evidence. See Vlases v. Montgomery Ward, 377 F.2d 846, 851 (3d Cir. 1967) (Pennsylvania law requires a preponderance of evidence in favor of plaintiff's basic proposition, but the trier of fact need not be persuaded beyond a reasonable doubt). The proximate cause of an injury, under current Pennsylvania law, is that cause which was a substantial factor in bringing about the injury. Hamil v. Bashline, 392 A.2d 1280, 1284, 481 Pa. 256, 265 (1978).

 With the foregoing in mind, and in compliance with Federal Rule of Civil Procedure 52(a), we present the following findings of fact and conclusions of law.

 Findings of Fact

 The decedent in this case, Towanda M. Baum, was born on June 1, 1911. (Transcript at 48). On July 20, 1975, (Tr. at 92), at age 64, Mrs. Baum was diagnosed as having chronic lymphocytic leukemia (hereinafter referred to as "CLL") (Tr. at 75). CLL is a form of cancer in which hemoglobin (red blood cells) is destroyed by leukemic cells (cancerous cells). By the fall of 1976, Mrs. Baum's CLL was in an advanced state, characterized by severe anemia, a moderate increase in platelets, an enlarged spleen, and a frequent need for blood transfusions to replace the red blood cells destroyed by her malignantly enlarged spleen. (Tr. at 77). Mrs. Baum was receiving bi-weekly blood transfusions, (Tr. at 93), but the transfusions were not maintaining a satisfactory level of red blood cells. (Tr. at 94). As a result of this loss of hemoglobin and her anemic condition, Mrs. Baum suffered from an undue state of fatigue, shortness of breath and generalized weakness (Tr. at 78, 94 & 97). This easy fatigability and decreased exercise tolerance made the normal activities of daily living, such as climbing stairs, difficult for her. (Tr. at 97).

 On October 28, 1976, Dr. Joseph Brazel, the specialist in hematology (blood diseases) and oncology (cancer) who had treated Mrs. Baum since the diagnosis of her disease in July of 1975, administered a swine flu vaccination to Mrs. Baum, in accordance with the instructions issued by the Federal Communicable Disease Center in Atlanta. (Tr. at 76). Several of Mrs. Baum's friends and relatives testified at trial that in the month following her inoculation Mrs. Baum stumbled several times, dropped light items, and complained of foot drop and an inability to grasp objects. (Tr. at 3-5, 32-33, 39-41, 59-61). She began to sleep on the first floor because she was unable to climb the stairs to the second floor unassisted. (Tr. at 20). Around Thanksgiving time, she stopped attending Wednesday evening prayer services, as was her custom, because she could not climb the steps. (Tr. at 24).

 Plaintiff contends that this testimony constitutes evidence of early symptoms of GBS, although the disease did not reach its acute phase until several weeks later. A more likely explanation for Mrs. Baum's decreased motor ability, however, is the severe fatigue and weakness brought on by her CLL. Significantly, Dr. Brazel did not recall, and his records contain no reference to, any specific complaints by Mrs. Baum about a foot drop or a difficulty in grasping during a time when he was seeing her at least monthly. (Tr. at 93, 101). *fn1" He did report at trial that Mrs. Baum suffered from the generalized weakness, shortness of breath, fatigability and anemia symptomatic of CLL. (Tr. at 78, 101). Dr. Brazel admitted that it was not until February of 1977 that he first felt Mrs. Baum had a neurologic cause of her weakness other than the weakness produced by her generalized disability from her CLL and the resulting anemia. Dr. Richard Tenser, an expert in neurology called by the government, indicated that the incidents related by Plaintiff's witnesses were consistent with a generalized weakness from her leukemia. In fact, he testified that the prolonged course of the weakness over several months, from November through February, was more compatible with a diagnosis of leukemic radiculopathy than GBS. (Tr. at 168).

 As a result of Mrs. Baum's weakened condition, Dr. Brazel recommended a splenectomy to decrease the need for transfusions and to raise the platelet count. (Tr. at 77, 93). Although the operation did not take place until December 28, 1976, Dr. Brazel testified that he had made the recommendation from two and one-half to three months prior to that date (Tr. at 77, 93-94).

 After the splenectomy in December, Mrs. Baum's hemoglobin and platelet count did increase, but she remained in a somewhat weakened state and did not show the level of improvement hoped for. (Tr. at 98-99). In late ...


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