Plaintiff knew, or in the exercise of reasonable diligence could have learned that the flu shots caused her illness. In making this determination, the Court must decide whether the Plaintiff possessed sufficient critical facts to put her on notice of a possible invasion of her legal rights to require that she investigate. Zeleznik, at p. 23.
The first task is to determine whether the Plaintiff was aware of the nature and cause of her illness at any point before March 10, 1981. A review of the case establishes that there exists a handful of circumstances that would allow one to infer that the Plaintiff had actual knowledge of her ailment and its cause. For instance, clearly each of the doctors involved in this case (including the obstetrician) was aware that Plaintiff had Guillain Barre Syndrome and that the inoculation was the probable cause. This fact, coupled with the extreme severity of the illness, the length of the Plaintiff's hospitalization, the Plaintiff's overall concern regarding her health, and the seemingly improbable explanation given as to the the way in which she finally discovered her illness' cause, could indeed persuade a factfinder to determine that the Plaintiff knew that the swine flu shots caused her illness.
Weighing against this inference, however, is the direct testimony of Mrs. Shostack that she was never told (before her consultation with Dr. Haase in 1982) that she had Guillain Barre Syndrome. Improbable as the above proposition may seem, Mrs. Shostack appeared to the Court as an honest, intelligent human being, who was concerned with her physical condition. Although she certainly cannot be characterized as a disinterested witness, the Court finds that her testimony was nonetheless credible and that her answers were truthful. Moreover, no witness in this matter specifically testified of telling Plaintiff the exact nature and cause of her disease. In that regard, the Court finds that Mrs. Shostack did not know that the flu inoculation caused here illness before her consultation in Philadelphia.
We now turn to the question of whether Mrs. Shostack, in the exercise of reasonable diligence, should have learned of her illness' cause before March 10, 1981. The Court finds that had Mrs. Shostack made any inquiry with regard to this question, she would have discovered that the flu inoculation probably caused her to contract Guillain Barre Syndrome.
Our inquiry, however, does not end here. As the Court in In Re Swine Flu Products Liability Litigation, supra, pointed out, "the 'should have reasonably known' standard looks not to the likelihood that a plaintiff would in fact have discovered the cause of his injury if she had only inquired, but instead focuses on whether the Plaintiff could reasonably have been expected to make inquiry in the first place." Id. at p. 642, n. 2. To state the standard another way, the Court must determine whether the Plaintiff had sufficient critical facts which would impose upon the Plaintiff a duty of inquiry. Should the Court find that events surrounding an injury or illness should have caused the Plaintiff to become suspicious of a possible invasion of her legal rights, the Court can then find that Plaintiff should have exercised due diligence in attempting to determine the nature injury and its cause.
The application of the standard to the instant case, leads the Court to find that the Plaintiff should have made inquiries into the cause of her illness. A rehash of the facts establishes that there were a host of circumstances which would make the duty of inquiry reasonable and mandated in this case. For instance, it is established that Mrs. Shostack received two flu shots in November of 1977. Approximately five weeks later Mrs. Shostack became ill and was hospitalized for the first time in her life. Her hospitalization lasted for 58 days during which time she suffered from extreme symptoms, including paralysis and a collapsed lung which required a tracheostomy. Additionally, the Plaintiff underwent a battery of tests, including a spinal tap, in order to determine her injury. These facts, in and of themselves, would make it reasonable to expect the Plaintiff to make an inquiry. Additionally though, there exists other circumstances which should have made the Plaintiff inquire about her illness, such as the fact that she had to undergo rehabilitation following her discharge from the hospital. Also, upon returning to work in July of 1977, the Plaintiff's weakened condition caused her to quit her job and even become curious as to why she was unable to perform tasks at her previous level. Plaintiff admits that she thought of asking her doctor about her illness. Finally, during the Plaintiff's pregnancy she was asked on at least two occasions about her illness, and we find that Nurse Davis, at the very least, mentioned the flu shot in connection with her earlier hospitalization.
In light of the above, this Court finds that the circumstances surrounding the Plaintiff's illness should have caused the Plaintiff to exercise due diligence in attempting to find the nature of her illness and its cause at the very latest in July, 1977 -- after she discovered her inability to fulfill the obligations of her employment with Sargent Art's. This factual finding establishes that the accrual date for Statute of Limitations' purposes arose in July, 1977. The Plaintiff's claim, therefore, filed on March 10, 1983, was untimely and is therefore barred by the Federal Tort Claims Act's two-year Statute of Limitations.
It is always difficult to deny a person's otherwise perfectly valid claim for injuries because it is untimely filed. But, as pointed out in Kubrick, the Statute of Limitations is vitally important if there is to be any sense of order in the civil justice system, and the responsibility to file a claim on time must reside with the claimant.
An Order entering judgment in favor of the Defendant follows.
NOW, THIS 2nd day of February, 1988, IT IS HEREBY ORDERED:
1. Judgment is hereby entered in favor of the Defendant.
2. The Clerk of Courts is directed to close this case.
© 1992-2004 VersusLaw Inc.