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SHOSTACK v. UNITED STATES

February 2, 1988

Stephanie Zientek Shostack, Plaintiff
v.
United States of America, Defendant



The opinion of the court was delivered by: CONABOY

 Richard P. Conaboy, United States District Judge

 PROCEDURAL HISTORY

 On August 18, 1983, Plaintiff commenced this action against the United States of America pursuant to the National Swine Influenza Immunization Program of 1976, 42 U.S.C. § 247(b). The Swine Flu Act established a national program of immunization for a disease popularly known as swine flu. In order to induce private companies to manufacture the needed vaccine, the United States substituted itself as the Defendant and assumed all liability for damages. In doing so, Congress incorporated as the remedy the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Accordingly, a recipient of the vaccine claiming to have been injured would sue the United States instead of the manufacturer of the drug.

 In her complaint, Plaintiff alleges that an administrative claim was properly filed with the appropriate agency on March 10, 1983, and that the claim was denied on April 18, 1983.

 As a defense, the United States has raised the statute of limitations arguing that Plaintiff failed to file an administrative claim within two years after her cause of action accrued, as required by the Federal Torts Claim Act.

 By agreement of the parties, the case was bifurcated and a trial was held to resolve the factual issue concerning the accrual date of the Plaintiff's injury for statute of limitations purposes. On February 2, 1987, the Court heard testimony on the statute of limitations issue. Additionally, the deposition of Dr. Ki Bum Lee was submitted for consideration. Thereafter, the parties filed briefs supporting their positions. This matter is ripe for disposition.

 The following testimony was heard by the Court. For the sake of clarity, the Court has rearranged the testimony of the witnesses.

 Testimony of Stephanie Zientek Shostack

 Mrs. Shostack, the Plaintiff in this matter, testified that she received swine flu inoculations during the first week of November, 1976 and again two weeks later at the Laurel Mall in Hazleton, Pennsylvania. Approximately five weeks later, in early January, 1977, the Plaintiff became ill and consulted Dr. Albert Zogby, her family physician. Dr. Zogby treated the Plaintiff for 3 or 4 days at her home and advised her at the time that she was suffering from "the flu or grippe". The Plaintiff testified that on or about January 12, 1977, she encountered numbness in her fingers and toes, could not swallow, and had a sharp pain in her lower part of her back. As such, Dr. Zogby admitted Plaintiff on January 12, 1977 to St. Joseph's Hospital for treatment of what Plaintiff believed to be the flu.

 The Plaintiff testified that she remained in the hospital for 58 days, during which time she had a weight loss of approximately 40 pounds; suffered a one-month period of paralysis on her right side; underwent a tracheostomy; at times was disoriented; and was placed on a respirator. However, the Plaintiff testified that during and after her hospitalization no one indicated to her that she was suffering from Guillain-Barre Syndrome or that the flu shots were diagnosed as the cause of her illness. Moreover, Plaintiff stated that she was not questioned about her inoculations. Additionally, the Plaintiff testified that she never inquired about her illness or its cause; instead, her only concern was to get well.

 Following her discharge from the hospital, on March 8, 1977, the Plaintiff testified that she underwent a period of rehabilitation and had occasion to see Dr. Zogby twice. During the summer of 1977, Dr. Zogby indicated to Mrs. Shostack that she would be able to return to work. As a result, she accepted employment at the Sargent Art's Company in July, 1977, but left that position because she was unable to complete her first day on the job due to weakness. She testified that her inability to work caused her concern and made her wonder why she could not work the way in which she did before her illness. She further testified that her weakness even caused her to want to talk to Dr. Zogby about her condition, however, Dr. Zogby was deceased by that time. Mrs. Shostack also indicated that she never considered asking Dr. Corazza about her condition.

 Mrs. Shostack testified that she did not make the connection between the flu shot and her illness and, for that matter, was unaware of the fact that she contracted Guillain Barre Syndrome until 1982. During the beginning of that year, her husband read in the paper that the Government was being sued by people who had received the swine flu shot, and had reactions to the inoculation similar to hers. The Shostacks contacted Attorney Ustynoski approximately two weeks later. Attorney Ustynoski obtained the Plaintiff's medical records. Plaintiff did not review or discuss the medical records with her lawyer before traveling to Philadelphia, Pennsylvania for a consultation with Dr. G.R. Haase. Dr. Haase reported Plaintiff as having told him that she had a ...


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