of the peripheral nerves out into the extremities.
Contrasted to this testimony, Plaintiff's experts all state that it would be absolutely erroneous to rule out the diagnosis of GBS in this Plaintiff because of the involvement of the central nervous system. They describe her case as a classic GBS case, with not only the two major features of the NINCDS criteria, but many of the other features which lead to the conclusion of GBS. They unequivocally subscribe to the theory that involvement of the central nervous system should not rule out a diagnosis of GBS in such a case. The Plaintiff's experts further testified that as there is more medical knowledge accrued concerning GBS, it is becoming increasingly apparent that it is not uncommon to have central nervous system involvement in a GBS case. Perhaps most dramatic of the testimony in this area was that of Dr. Shane, the pathologist. As noted, he testified that he has in fact examined spinal columns removed from documented GBS patients, and in a number of these cases has positively pathologically shown that GBS had indeed affected the patients within their spinal column.
The medical witnesses for the Plaintiff have impressive credentials and have not only treated numerous GBS patients and written widely on the subject, but indeed, one of the medical witnesses, Dr. Lichtenfeld, has also been afflicted with the GBS syndrome and as a result of his own affliction, has become deeply involved in the study of the syndrome and its many symptoms. They were firm in their opinions that GBS can affect and include the central nervous system, and because this Plaintiff has so many of the symptoms normally associated with GBS, that it would be highly inappropriate to rule out that diagnosis simply because of the presence of central nervous system features.
On the other hand, the defense medical experts vacillated somewhat, including one doctor, Dr. Reinmuth, who changed his opinion as to causation after he had been supplied by the Government with a study by Dr. Kurland of a small number of TM patients in one area of the United States,
a study which most of the other doctors testified would be of questionable relevance to this case because of the different criteria used in selecting the patients used in the study.
Most importantly, however, several of the experts indicated that they would have to ignore some of what the Court finds were the more pertinent symptoms of the Plaintiff in order to diagnose her case as TM, including such findings as the flaccidity in her lower extremities, the flaccidity in her bladder, the electrodiagnostic testing, the involvement of the upper extremities, and the temporal evolution of the disease process. In other words, to rely on or to credit the testimony of the defense medical experts, one would have to ignore many of the symptoms which abound in the Plaintiff's disease-racked body. On the other hand, this Plaintiff has produced in Court an overwhelming volume of credible evidence from witnesses with impeccable credentials, that she does indeed have GBS and that it is a direct result of the vaccine which she received as part of the government's immunization program in 1976.
A basic duty of the fact finder is to determine the credibility of the testimony, and the weight to be given to all of the evidence in the case. Kerns v. Consolidated Rail Corp., 90 F.R.D. 134, 140 (E.D.Pa.), aff'd, 673 F.2d 1300 (3d Cir.1981); Kerry Coal Co. v. United Mine Workers, 488 F. Supp. 1080, 1095 (W.D.Pa.1980), aff'd, 637 F.2d 957 (3d Cir.), cert. denied, 454 U.S. 823, 102 S. Ct. 109, 70 L. Ed. 2d 95 (1981). This task is not made easier when, as here, all of the expert witnesses have such distinguished and recognized reputations. Without intending to disparage any witness, we do specifically find, however, that the testimony and evidence of the Plaintiff's experts is more credible, more weighty and more believable than that of the defense. As pointed out before, there are too many holes in the defense medical testimony, too many symptoms ignored, too many findings thought to be erroneous, and too much weight given to a single factor (spinal cord involvement) to overcome the strong and positive testimony of the Plaintiff's witnesses.
Plaintiff's medical witnesses have impeccable training, have researched and written extensively and have significant clinical backgrounds in the neurological, pathological and urological fields of medicine. Their testimony was clear, impelling, and well-documented, and their conclusions comported with reason and common sense.
The Plaintiff's duty in this case is not to prove her contention beyond a reasonable doubt, nor is it her burden to prove every opinion contrary to those of her own experts. Her burden is to prove her case by the fair weight and preponderance of the evidence. Hamil v. Bashline, 481 Pa. 256, 264-66, 392 A.2d 1280 (1978). A reasonable reading of the evidence and the testimony in this case reveals that she has done that beyond question and that she is entitled to recover damages for her condition.
A. Amendment of the Administrative Claim
On November 1, 1978, the Plaintiff, through counsel,
timely filed her administrative claim, Standard Form 95, with the Director, Division of Public Health Services Claims pursuant to 28 U.S.C. § 2675(a). She requested damages from the United States in the amount of one million dollars ($1,000,000). The Defendant denied the administrative claim on March 31, 1980 and the instant action was thereafter filed. The Plaintiff seeks to recover damages in excess of the amount claimed at the administrative level.
Under the Federal Tort Claims Act, a claimant is limited in the recovery at trial to the amount he or she claimed administratively unless "the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim." 28 U.S.C. § 2675(b).
In support of the Plaintiff's contention that this case fits within either or both of the above-cited exceptions, it is first argued that "at the time of the filing of her Administrative Claim, the full extent of the Plaintiff's illness and disability and her corresponding need for treatment was not known and could not have been determined. . . ."
On the issue of the Plaintiff's future needs, the uncontradicted testimony of Dr. Lichtenfeld established that the nature of Lucy McDonald's illness was such that the extent of her disability and the need for future care and treatment could not be predicted in 1977 or 1978. Consistent with this was the testimony of Dr. Poser who stated that only after the May, 1982 electrodiagnostic testing of Dr. Janerich and the August, 1982 urodynamic study of Dr. Rhamy were completed could the permanency of the Plaintiff's disability be firmly established and an accurate prognosis and long-term treatment plan be developed. Such evaluations were first recommended by Dr. Poser after his initial examination of the Plaintiff on May 11, 1982. Both doctors testified that the recovery phase of GBS may extend over a few years and opined that it may be impossible and indeed misleading to attempt to predict the future course of the disease at an earlier point in time. Dr. Rosenblatt, a defense witness, also noted that it may take several months to years for the GBS symptoms to resolve. Significantly, Dr. Lichtenfeld testified that with respect to his own case of GBS virtually all the prognostications made at the two-year mark ultimately turned out to be wrong. As noted previously, prior to this year Plaintiff did not have the benefit of any significant neurological or urological treatment for her illness.
In fact, Joyce Harring, a registered nurse who appeared on behalf of the Plaintiff, testified that subsequent to her discharge from Allied, it appeared that Lucy McDonald was simply "dumped in her home and totally neglected." Under these circumstances, we believe it would be unreasonable to expect Plaintiff or her counsel to be apprised of the full medical and economic consequences of Lucy McDonald's disease process at the time the administrative claim was submitted.
In an analogous context, this Court has permitted an amendment of an administrative claim in a swine flu case on the basis that the illness involved was:
[A] very subtle and complex injury, an injury which is to this day a mystery to the medical field. Were we dealing with a broken arm or leg, we might impose upon the Plaintiff a more serious burden of proving that the present prognosis was discoverable. But inasmuch as we are dealing with the neurological effects of the injection of a drug, we are compelled to allow Plaintiff to amend his claim.