918 F.2d 724 (8th Cir. 1990), 89-5349, Osborn v. United States

Docket Nº:89-5349.
Citation:918 F.2d 724
Party Name:Joseph OSBORN and Pamela Osborn, individually and as father and mother and guardians ad litem of Shawna Osborn, Appellants, v. UNITED STATES of America, Appellees.
Case Date:November 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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918 F.2d 724 (8th Cir. 1990)

Joseph OSBORN and Pamela Osborn, individually and as father

and mother and guardians ad litem of Shawna

Osborn, Appellants,

v.

UNITED STATES of America, Appellees.

No. 89-5349.

United States Court of Appeals, Eighth Circuit

November 5, 1990

Submitted May 14, 1990.

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Lembhard G. Howell, Seattle, Wash., for appellants.

Mary McElroy Leach, Dept. of Justice, Washington, D.C., for appellees.

Before JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Joseph and Pamela Osborn, individually and as parents and guardians ad litem of their daughter, Shawna Osborn, appeal from the dismissal of their federal tort claim action asserting that a United States Air Force clinic negligently administered a diphtheria, pertussis, and tetanus (DPT) vaccination, causing Shawna to develop seizures and neurological injury. The sole issue in the case is when did the Osborns, and more specifically Pamela Osborn, first have sufficient knowledge of Shawna's injury and its cause so as to trigger the running of the two-year statute of limitations, 28 U.S.C. Sec. 2401(b) (1988). The district court held that Mrs. Osborn had sufficient knowledge no later than her May 6, 1983, conversation with Dr. Bruce Oksol and that the Osborns' claim was therefore time-barred. Osborn v. United States, 713 F.Supp. 341, 346 (D.N.D.1989). The Osborns argue that their claims were timely because they did not have sufficient knowledge until a conversation with Dr. Dennis Bartholomew on March 8, 1984. We reverse the judgment of the district court.

Shawna Osborn was born March 18, 1981, (Osborns' App. at 77) and was, for the first seventeen months of her life, an apparently healthy child. (Osborns' App. at 52, 105, 128.) On June 22, August 24, and October 28 of 1981, she received her first, second, and third DPT vaccinations. (Osborns' App. at 95, 102.) A corpsman at the Immunization Clinic of the Grand Forks Air Force Base Hospital administered the shots. The clinic provided no oral or written information about the potential adverse reactions to the DPT shot, nor did Shawna in fact appear to suffer any ill effects from any of her first three DPT vaccinations. (Osborns' App. at 103-04.)

On August 7, 1982, Shawna suffered her first seizure while sitting in her high chair eating dinner. (Osborns' App. at 106-07.) She was rushed to the base's emergency room and was admitted to the hospital, where she stayed for two days. The doctors diagnosed her as having had a febrile seizure (seizure with fever) along with an ear infection. (Osborns' App. at 23.) Doctors told Mrs. Osborn that many children under age two have occasional febrile seizures and that most outgrow them. (Osborns' App. at 108-110).

On September 14 and November 1, 1982, Shawna again had febrile seizures and was admitted to the hospital. (Osborns' App. at 26, 111, 33.) During the September hospitalization, she had a second seizure within twenty-four hours, resulting in a diagnosis of "complex febrile seizures." (Osborns' App. at 28-29.) In November, doctors diagnosed Shawna as having "complex seizure disorder." (Osborns' App. at 34.) They prescribed Phenobarbital to prevent further seizures. (Osborns' App. at 31.) An electroencephalogram taken on October 12 showed normal results. (Govt.'s App., Vol. I at Sec. 11.)

On December 7, 1982, Mrs. Osborn took Shawna to the immunization clinic for her fourth DPT shot. Before the shot was administered, Mrs. Osborn stopped at the

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base's pediatric clinic and had a brief conversation with Dr. Andrew Schuman, one of Shawna's pediatricians. (Osborns' App. at 122.) Mrs. Osborn expressed concern that the DPT could give Shawna a fever that could, in turn, trigger another seizure. Dr. Schuman assured Mrs. Osborn that "the shot was perfectly safe" and "not to worry." (Osborns' App. at 123.) Approximately one hour after receiving her fourth DPT vaccination, Shawna experienced her first non-febrile seizure. (Osborns' App. at 123.) Her mother took her to the family practice clinic, where she was examined and sent home. Shortly after returning home, Shawna suffered a grand mal seizure. (Osborns' App. at 124.) Her parents took her to the emergency room where doctors examined her and found nothing wrong. That evening at home, Shawna had another seizure. (Osborns' App. at 124.) Her parents took her to the emergency room, where she had a petit mal seizure. One of Shawna's pediatricians examined her, then sent her home. (Osborns' App. at 124.)

Following a referral from the base's family practice clinic, Dr. Ross Pettit, a pediatric neurologist, examined Shawna on December 16. (Osborns' App. at 51-53.) He diagnosed her as having a seizure disorder, but identified no cause for her problem. (Osborns' App. at 52.) He did note on his report, a copy of which he forwarded to the Osborns, that the December 7 seizures followed DPT and oral polio vaccinations. (Osborns' App. at 51.) Because of her adverse reaction to Phenobarbital, Shawna was switched to another medication, Dilantin. (Osborns' App. at 56-57.) Mrs. Osborn testified in a deposition that Dr. Pettit assured her, as had one of Shawna's pediatricians, that after a minimum of one year on Dilantin, Shawna would probably be free of seizures. (Dep. of Pamela Ann Osborn, Osborns' App. at 128.) According to Dr. Pettit, if she remained seizure-free for two years after being weaned from Dilantin, then she probably would have no further problem. Id.

On January 12, 1983, Shawna had another EEG, this time with abnormal results. (Osborns' App. at 54; Govt.'s App., Vol. I at Sec. 15.) Over the next several months, she continued to have seizures and was hospitalized on several occasions. (Osborns' App. at 39, 43, 44, 62, 65.) On May 6, 1983, Mrs. Osborn had a conversation with Dr. Bruce Oksol, a physician at the pediatric clinic, regarding immunizations to prepare Shawna for preschool. At that time, Dr. Oksol wrote on Shawna's immunization record: "Seizure disorder. Not to get any more DPT vaccine (no pertussis)." (Osborns' App. at 21.) Dr. Oksol also told Mrs. Osborn that Shawna should not get any more of the pertussis vaccine. (Osborns' App. at 133.) Mrs. Osborn concluded that pertussis was the "disease that gives you the fever so that [stopping pertussis] was fine with me." (Osborns' App. at 133.)

On September 14, 1983, Dr. Pettit again evaluated Shawna. (Osborns' App. at 58-59.) His record stated that he did not know the etiology of Shawna's seizures. (Osborns' App. at 59.) Shawna's disorder continued to grow worse, and, in November 1983, she was sent to Wilford Hall, U.S. Air Force Medical Center at Lackland Air Force Base, Texas, where she was evaluated by pediatric neurologists for two weeks. (Osborns' App. at 47-50.) Drs. John Malstrom and Richard Tredeau at Wilford Hall told Mrs. Osborn they did not know the cause of Shawna's seizures; Dr. Malstrom told Mrs. Osborn that Shawna would probably outgrow the seizures. (Osborns' App. at 137-38.)

On March 8, 1984, Shawna suffered multiple seizures and Mrs. Osborn took her to the emergency room. (Osborns' App. at 138.) At the emergency room, Mrs. Osborn spoke with Dr. Dennis Bartholomew. After taking an extensive medical history, Dr. Bartholomew told Mrs. Osborn that the DPT vaccination can cause seizures and that the seizures Shawna had on December 7, 1982, may have been precipitated by the DPT shot she had received earlier that day. 1 Dr. Bartholomew further stated that

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children with "a low threshold" for seizures, such as Shawna, should not be given the pertussis vaccine and that it was improper for the clinic to have administered the fourth DPT shot to Shawna. 2

The Osborns filed a claim with the United States Air Force on October 15, 1985, alleging negligence in the December 7, 1982, administration of the DPT vaccination to Shawna. The Air Force investigated the claim and denied it on June 19, 1986. On September 11, 1986, the Osborns filed this action, claiming that Shawna suffered from a generalized seizure disorder as a result of the December 1982 vaccination. The Osborns sued the United States,

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Wyeth Laboratories, Inc., and Connaught Laboratories, Inc. The court later dismissed Wyeth Laboratories from the case. Connaught entered into a settlement with the Osborns, which was followed by a dismissal. After substantial discovery, including more than 50 depositions, the United States moved for summary judgment based on the statute of limitations.

Applying the preponderance of evidence standard, the district court concluded that the Osborns' claim accrued on or before May 6, 1983, when Dr. Oksol told Mrs. Osborn that Shawna should not be given any more pertussis vaccine. 713 F.Supp. at 346. The district court outlined a number of facts and conclusions on which it relied, including: that Shawna's initial seizures were febrile; that Shawna's first non-febrile seizures occurred shortly after the fourth DPT shot; that Shawna's mother observed a "drastic change" in Shawna's condition starting two months after the fourth DPT shot; that none of the physicians "stated an opinion that the seizures were caused by the DPT shots"; and that the statement of Dr. Bartholomew in March 1984 that Shawna should receive no more DPT did not provide any additional information beyond what Dr. Oksol had told Mrs. Osborn in May 1983. Id. at 345-46. Accordingly, the district court held that the Osborns had not met their burden of establishing that their claim was filed within two years of its accrual, and it was therefore barred by 28 U.S.C. Sec. 2401(b). 3 Id. at 346.

I.

Compliance with the statute of limitations of 28 U.S.C. Sec. 2401(b) is a jurisdictional prerequisite to suit under the Federal Tort Claims Act...

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