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LEEPER v. UNITED STATES

December 15, 1983

Niles R. LEEPER, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 I. INTRODUCTION

 The plaintiff, Niles R. Leeper, was injected with swine flu vaccine on December 8, 1976. He contracted Guillain-Barre syndrome and was hospitalized from December 27, 1976 to March 12, 1977. Plaintiff brought suit against the United States of America and, on September 22, 1983, the United States entered into a stipulation with the plaintiff wherein it accepted liability. Trial on damages was conducted on September 29, and November 1, 1983. Our task is now to determine, from the testimony presented, what amount of money will fairly compensate the plaintiff for the injury he has suffered.

 II. FACTUAL BACKGROUND

 The course of plaintiff's illness can be characterized as a period of physical and psychological devastation followed by a most remarkable recovery. Following the plaintiff's admission to Geisinger Medical Center on December 27, 1976, the disease progressed over the course of a week until the plaintiff was totally paralyzed. Dr. Cohn, plaintiff's neurologist, testified that the paralysis stopped just short of involving the respiratory muscles to the extent that a respirator would be required. There was concern, however, that the disease would progress to the extent that Mr. Leeper would be unable to breathe for himself, and Dr. Cohn testified that this concern was related to him. Both Dr. Cohn and the plaintiff testified that he was in extreme pain during this period as well as extreme anxiety. Dr. Cohn expressed the plaintiff's understandable anxiety very graphically when he stated that "Every time he closed his eyes, he thought he was going to die. (N.T. 20). Plaintiff, his daughters, and his wife all testified movingly to his extreme helplessness, apprehension and, to some extent, embarrassment, during his period of hospitalization. Dr. Cohn prescribed thorazine for the plaintiff's anxiety which the doctor termed as "out of control" as of January 13, 1977 (N.T. 19), and Mr. Leeper was not taken completely off thorazine until May 25, 1977 (N.T. 36). Physically, plaintiff's condition had at least stabilized as of the first week of January, albeit at a very low ebb. By January 11, 1977, plaintiff was removed from the intensive care unit and transferred to the rehabilitation unit. By February 16, 1977 there was a slow return of function to the muscle groups, and by March 9, 1977, plaintiff was able to walk with the aid of a walker. He was discharged from the hospital on March 12, 1977.

 Happily, plaintiff is a remarkable man, and he has made a remarkable recovery. The slow but steady course of his progress was reflected in Mrs. Leeper's testimony at trial, as well as in her diary, which was admitted. Mrs. Leeper's diary, which covers March 12, 1977 -- April 20, 1977, attests to continued pain in Mr. Leeper's legs and feet throughout that period as well as tiredness. The diary does, however, evidence a determined return to activity on plaintiff's part. For example, an entry dated April 13, 1977, indicates that the plaintiff, an accomplished pianist, was again practicing the piano with his friends. Dr. Cohn was increasingly pleased with plaintiff's progress at visits on April 20, 1977, May 25, 1977, and August, 1977. On August 11, 1977 plaintiff was readmitted to Geisinger for a transurethra resection of the prostate which, his urologist Dr. Rose testified, was necessitated by the Guillain-Barre Syndrome.

 Plaintiff returned to work on September 19, 1977. He has enjoyed a more or less complete recovery. He does suffer residual pain and tingling in his feet as well as restless leg syndrome which may be permanent. There was also considerable testimony as to a loss of stamina manifested in more frequent naps, and in some reduction in plaintiff's activities in community affairs and loss of interest in Leeper's Music House, a music store which had been operated principally by Mrs. Leeper.

 III. SPECIFIC CLAIMS FOR DAMAGES

 With this general factual background, we analyze plaintiff's separate claim for damages as described in the post trial briefs submitted by the parties.

 There is apparently no dispute that the medical expenses are fully reimbursable as claimed by the plaintiff, and we will therefore award the sum of $18,870.84 for medical expenses.

 B. Lost Earnings and Lost Earning Capacity

 Plaintiff has claimed entitlement to damages for past lost earnings, future loss of earnings and lost earning capacity, earnings loss resulting for early retirement, loss of pension benefits, and loss of self-employment income. Naturally, the appropriateness of much of the damages claimed in this category hinges on the effect of the Guillain-Barre Syndrome on plaintiff's ability to continue his job as postmaster of Burnham, Pennsylvania and to continue to assist in maintaining Leeper Music House, the family business. As we have previously described, the residual effects of the plaintiff's illness principally involve a tingling sensation in his feet which has remained undiminished in the six years since he returned to work and which occasionally progresses to his legs, arms and torso. There was also testimony that plaintiff has suffered from a loss of stamina which is manifested in reduced extra-employment activities and in lunch-hour naps. There was no testimony presented to suggest that plaintiff is disabled ...


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