Perry v. U.S.
| Decision Date | 20 March 1985 |
| Docket Number | No. 84-8138,84-8138 |
| Citation | 755 F.2d 888 |
| Parties | Talmadge Henderson PERRY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John E. Stell, Jr., Winder, Ga., Clifford J. Shoemaker, Vienna, Va., for plaintiff-appellant.
Nina L. Hunt, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before JOHNSON and CLARK, Circuit Judges, and LYNNE *, District Judge.
Appellant Talmadge H. Perry brought this action pursuant to the Swine Flu Act, 42 U.S.C.A. Sec. 247b et seq., and the Federal Tort Claims Act, 28 U.S.C.A. Sec. 1346(b), seeking damages for injuries allegedly sustained in connection with a swine flu inoculation. Trial was held in the United States District Court for the Northern District of Georgia, on the issues of diagnosis and causation. The district court found that appellant had failed to prove by a preponderance of the evidence that the vaccine was the cause of his physical impairment. We affirm.
Appellant was inoculated with swine flue vaccine on November 5, 1976. That evening he suffered a fever and chill. Over the next few days he experienced dizziness and nausea. During the last part of November 1976, Perry experienced some numbness on the left side of his body, and began to have difficulty with balance and coordination. Because of his dizziness and coordination problems, Perry took a leave from his job as a Georgia State Trooper. On December 6, Perry was admitted to DeKalb General Hospital, where he was placed under the care of Dr. Russell Wallace, a neurologist, who continued to see him as a patient up to the time of the trial.
Appellant told Dr. Wallace that in 1968 he had had a series of symptoms similar to those he was currently experiencing. In particular, he had had a three-month episode of dizziness that had made it impossible for him to drive his car. Although appellant did not place much significance on this episode during the trial, he stated on a questionnaire filled out for the Georgia Highway Patrol that his dizziness had forced him to resign from the Highway Patrol in September 1968.
During appellant's hospitalization in December 1976, Dr. Wallace performed an exhaustive array of tests in an effort to diagnose and treat appellant's condition. Physical examinations revealed slightly slurred speech, mild incoordination and numbness on the left side of the body and nystagmus, a dancing or shimmering of the eyes. The results of numerous neurological tests and a lumbar puncture were all normal.
Appellant has continued under Dr. Wallace's care for the past six years. He has been hospitalized on several occasions and subjected to more neurological tests, all of which produced negative results. He has continued to have varying degrees of incoordination of his left leg and arm, and has experienced problems with sleeping, concentration and decreased endurance. He has suffered depression as a result of his debilitation.
During the trial the court heard testimony from four physicians. The first, testifying for appellant, was Dr. Wallace, the neurologist who had been his treating physician. Dr. Wallace described the tests that had been performed in December 1976, and stated that his diagnosis at the time of appellant's discharge in December 1976 was possible inflammation of the brain stem of unknown cause. In January 1977, Dr. Wallace explained, he had been questioned by appellant's counsel as to whether he believed that the vaccine could have been a cause of appellant's affliction. Dr. Wallace stated that appellant's condition was difficult to define and its cause could not be identified; he also stated that he believed the vaccine "triggered" appellant's problems, though he could neither prove nor dispute that it was the cause of them. When appellant was readmitted to the hospital in February 1977, Dr. Wallace's discharge diagnosis was "brain stem lesion, questionably related to swine flu immunization." Dr. Wallace ultimately diagnosed appellant's condition as encephalitis. He stated at trial that he believed "to a reasonable medical certainty" that appellant's encephalitis was caused by the swine flu vaccine. He testified that he could not explain precisely how the vaccine had caused the illness, but he believed that the connection was supported by the time of the onset of appellant's symptoms, the fact that the swine flue vaccine had been connected with other neurological disorders such as Guillain-Barre Syndrome (GBS), and the fact that encephalitis in general tended to be triggered by stressful occurrences such as vaccinations. Dr. Wallace admitted, however, that prior to the trial he had heard of no documented connection between encephalitis and the swine flue vaccine, and that he could not rule out the possibility that the temporal proximity of appellant's vaccination and the onset of the symptoms was a coincidence. He also stated that proof of a connection between encephalitis and the vaccine could not be established by a single case, but would have to be established by epidemiological studies.
Dr. Kibler, a neurologist under whom Dr. Wallace trained, testified for the government. After examining appellant's medical records and conducting a physical examination of appellant himself, Dr. Kibler diagnosed appellant's condition as labyrinthitis (or inflammation of the inner ear). He stated that affliction was perhaps similar to the episode that appellant had suffered in 1968. He based his diagnosis on the fact that appellant's neurological tests had been normal, and that one-sided incoordination or numbness was not typical of organic brain disease. He did state, however, that as appellant's treating physician, Dr. Wallace was in a better position to make a diagnosis than he was. When asked whether he believed the swine flu vaccine could have been the cause of appellant's condition, Dr. Kibler stated that it's "something that one would think about," but "somewhere along the line you have to show some kind of statistical relation to make that connection valid".
Dr. Goldfield, an epidemiologist who testified for appellant, presented evidence of a statistical relationship between encephalitis and the swine flue vaccine. In formulating his conclusion, Dr. Goldfield looked at three sets of data involving cases of encephalitis: 1) the data used by the Center for Disease Control to analyze the relationship between the swine flu vaccine and various neurological disorders: 2) case histories that Dr. Goldfield had collected during his several years of work with swine flu cases: 3) data collected by the Annual Encephalitis Survey Summary. Using figures from the first two sources, Dr. Goldfield projected the incidence of encephalitis following administration of the swine flu vaccine in the general population. He then compared this figure to the incidence of encephalitis not specifically associated with the vaccine in the general population, to find the "relative risk" of encephalitis associated with the vaccine. Dr. Goldfield determined by this method that the relative risk was 8.3 or that, if the illness occurred within six weeks of the vaccination, there was an 87% probability that the affliction was caused by the vaccine. Dr. Goldfield admitted, however, that although he was not a neurologist, he had "rediagnosed" as encephalitis a number of the cases in the first two collections of data that neurologists had diagnosed differently. He also stated that this rediagnosis had increased the number of cases in which encephalitis had followed administration of the swine flu vaccine. He stated, however, that, even if one were to use a figure representing post-vaccine cases of encephalitis which was only half as large as the figure he used, the relative risk would still be 4. Or, in other words, there would still be a greater than 75% likelihood that the vaccine was the cause of the encephalitis.
Dr. Coatsworth, a neurologist who testified for the government, was the final expert witness. He had examined appellant's records and read the deposition testimony of the other physicians, but had not conducted a physical examination of appellant. He claimed that there was insufficient clinical and laboratory evidence on which to...
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