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LEEPER v. UNITED STATES AMERICA NILES R. LEEPER (03/06/85)

March 6, 1985

LEEPER, NILES R. AND LEEPER, GERALDINE, HIS WIFE
v.
UNITED STATES OF AMERICA NILES R. LEEPER, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. 81-0530).

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

Niles R. Leeper appeals the district court's judgment in his favor on the ground of alleged inadequacy of a $115,905.25 award as damages for injuries he sustained due to an inoculation administered under the National Swine Flu Immunization Program of 1976. ("Swine Flu Act").*fn1 The court denied Mr. Leeper's motion under Fed. R. Civ. P. 52(b) to increase the amounts awarded for past lost earnings and for pain and suffering. We will reverse the district court's judgment as to lost earnings and affirm as to pain and suffering.

I.

Appellant and his wife, Geraldine Leeper, brought this action in the United States District Court for the Middle District of Pennsylvania under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 (1966), as amended by the Swine Flu Act. The complaint, filed on April 22, 1981, sought damages from the United States for injuries due to Guillain-Barre Syndrome,*fn2 which Niles Leeper allegedly sustained following a swine flu inoculation. Prior to trial, the district court dismissed the complaint as to Geraldine Leeper's claim for alleged loss of consortium because she failed to file a timely administrative claim as required by 28 U.S.C. § 2675(a)(1966). The parties stipulated, however, that the Guillain-Barre Syndrome was caused by the swine flu vaccine and that the government was liable to Mr. Leeper. The non-jury trial thus proceeded solely on the issue of damages. On September 29 and November 1, 1983, the appellant presented evidence which we summarize below.

On December 8, 1976, Niles Leeper, who was then a Postmaster for the United States Postal Service, received a swine flu inoculation from a person authorized under the Swine Flu Act to administer the vaccine. About two weeks later, he suffered an unusual and severe pain in his back, followed by tingling and loss of sensation and muscle control in his feet. On December 27, 1976, a local orthopedic surgeon examined Mr. Leeper and referred him to Geisinger Medical Center. The examining physician at that hospital diagnosed the appellant as having Guillain-Barre Syndrome and admitted him for treatment.

After his admission to the hospital, Mr. Leeper suffered a steady progression of ascending paralysis and intensification of pain. He lost control over all his muscles. On January 2, 1977, Mr. Leeper's attending physicians feared that he might become unable to breathe without mechanical assistance. They moved him into the Intensive Care Unit for constant observation in case of respiratory failure. By the next day, the paralysis had ascended to appellant's facial muscles and he was in extreme pain. Mr. Leeper's fear and anxiety level also increased proportionately with his pain and paralysis. He would not allow himself to sleep for fear he might die, and the sleep deprivation led to hallucinations. He remained in the Intensive Care Unit for several days.

The hospital released appellant on March 11, 1977. On an out-patient basis, he gradually continued to improve. He underwent surgery and was hospitalized from August 7 through 16, 1977, to alleviate a neurogenic bladder condition which was caused by Guillain-Barre Syndrome. On September 19, 1977, he returned to work as Postmaster on a part-time basis.

Although he had returned to work, Mr. Leeper still had symptoms of burning, stinging, and painful feet. Even at the time of trial, he continued to suffer residual symptoms of Guillain-Barre Syndrome, including lack of stamina and patience, uncharacteristic disinterest in social activities, and permanent nerve damage in his feet, causing him to suffer unrelenting and painful parathesis.

On December 15, 1983, the district court entered judgment in favor of appellant. Mr. Leeper was awarded the following amounts on his claims for damages:

1. Past Medical Expenses $18,870.84

2. Lost Earnings and Loss of

Earning Capacity:

a. Past Lost Earnings 0

b. Diminution of Pension

Benefits/Lost Sick Leave 7,988.86

c. Lost Self-Employment Income 4,045.55

d. Loss of Earnings Due to

Early Retirement 0

e. Future Loss of Earnings and

Earning Capacity ...


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