Appeal from the United States District Court for the District of New Jersey - Trenton.
Hunter, Weis, Circuit Judges, and Dumbauld,*fn* District Judge.
This case arose from the campaign of the United States to innoculate its population against the Swine Influenza virus. Nine days after receiving a Swine Flu vaccination, Miriam Stich ("Mrs. Stich") became seriously ill. Claiming that she had contacted Guillian-Barre Syndrome ("GBS") or some other disease causally related to the Swine Flu shot, Mr. and Mrs. Stich filed suit against the United States. The United States argued that Mrs. Stich suffered from Herpes Simplex Encephalitis ("HSE"), a disease believed to be unrelated to Swine Flu vaccinations. After a lengthy and complex bench trial, the district court held that plaintiffs had not sustained their burden of proving that Mrs. Stich contracted GBS or some other disease caused by the Swine Flu shot, and entered judgment in favor of the United States. Plaintiffs appeal on a number of grounds. We find no error in the trial court proceedings, and will affirm the judgment of the district court, 565 F. Supp. 1096.
Mrs. Stich received a Swine Flu shot on November 18, 1976. On November 22, 1976 she began to feel ill, suffering from a fever, muscle aches, a headache and general malaise. The family physician, Dr. Joseph Gluck, saw Mrs. Stich at home on November 26th. Although she felt quite unwell, the physical examination revealed nothing remarkable. Dr. Gluck prescribed rest and aspirin.
On November 27, 1976, Mrs. Stich's condition took a dramatic turn for the worse. She was admitted to the Emergency Room of Riverview Hospital in New Jersey completely unconscious, with convulsions and a fever. During her convulsive state, Dr. Gluck noted that Mrs. Stich showed physical signs of decerebration. Dr. Gluck diagnosed the problem as meningoencelphalitis of unknown etiology.
For the next three or four days, Mrs. Stich's level of consciousness varied substantially, although she never completely recovered. By December 2, 1976, she was totally unconscious and unresponsive, and she remained comatose or semi-comatose for the next three to four months.
On February 14, 1977, Mrs. Stich was transferred to the Neurological Institute at Columbia Presbyterian Hospital in New York City. During her stay there, her vital signs were stable and normal. Although she did not respond to external stimuli, she did occasionally open her eyes and look around her room. No verbalization took place.
Mrs. Stich was returned to Riverview Hospital, where she currently remains, on March 8, 1977. As a result of intensive therapy, Mrs. Stich eventually became able to walk with substantial assistance, to feed herself occasionally, and to perform certain other activities of daily living. She remains seriously disoriented, however, and much of her speech is unintelligible. On October 14, 1981 a physical examination revealed that Mrs. Stich was spastic in all four extremities, and continued to exhibit bilateral Babinski reflexes. She could not follow objects or fingers with her eyes, suffered a mild left ptosis (drooping of the eyelid), and would attempt to put into her mouth any object coming into her visual field. In sum, Mrs. Stich's residual intellectual impairment is substantial.
On April 12, 1978, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1976), and the Swine Flu Act, 42 U.S.C. § 247b(k) (1976), Mr. and Mrs. Stich filed suit against the United States in the United States District Court for the District of New Jersey. Plaintiffs contended that Mrs. Stich had contracted either GBS or some other condition as a result of her Swine Flu innoculation. The United States contended that Mrs. Stich's illness was not caused by the Swine Flu shot and that she suffered a viral encelphalitis, probable HSE, unrelated to the flu vaccine.
Plaintiffs' action was transferred by the Judicial Panel on Multi-District Litigation to the United States District Court for the District of Columbia for co-ordinated and consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407 (1976). See In Re Swine Flu Immunization Products Liability Litigation, 89 F.R.D.695 (D.D.C.). On February 5, 1980, plaintiffs' action was remanded to the New Jersey court for a trifurcated trial.*fn1 The final pre-trial order of the District of Columbia court provided that if plaintiffs established that Mrs. Stich had contracted GBS, liability would be conclusively ...