Boruski v. U.S.

• Decision Date: 10 October 1986
• Docket Number: No. 85-2847,85-2847
• Citation: 803 F.2d 1421
• Parties: Valerie BORUSKI, Plaintiff-Appellant, v. The UNITED STATES of America, Merck, Sharp and Dohme Company, and the City of Chicago, a Municipal Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1421

803 F.2d 1421

Valerie BORUSKI, Plaintiff-Appellant, v. The UNITED STATES of America, Merck, Sharp and Dohme Company, and the City of Chicago, a Municipal Corporation, Defendants-Appellees.

No. 85-2847.

United States Court of Appeals Seventh Circuit.

Argued May 12, 1986.

Decided Oct. 10, 1986.

Stephen A. Snakard, McCarthy, Duffy, Neidhart & Snakard, Chicago, Ill., for plaintiff-appellant.

Maureen Kelly, Corp. Counsel Robert Marc Chemers, Pretzel & Stouffer, Michael S. O'Connell, Linda Wawzenski, Dep. Chief, Civ. Div., U.S. Atty's Office, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, WOOD, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

The district court granted summary judgment in favor of defendants on all four counts of plaintiff's complaint alleging personal injury resulting from a vaccination she received as part of a flu immunization program in which all three defendants, the United States, the City of Chicago ("the City"), and Merck, Sharp and Dohme Company ("Merck") (the manufacturer of the vaccine), had some part. Plaintiff appeals claiming the district court ignored genuine issues of material fact and certain of plaintiff's alleged theories.

I. Factual Background

Pursuant to section 317 of the Public Health Service Act, 42 U.S.C. Sec. 247b, the United States promoted a grant program during 1979-80 to assist local governmental agencies, including the City of Chicago, in immunizing persons sixty-five years of age and older, or other high risk persons, against influenza. The plaintiff alleges that the United States authorized, commissioned, and procured the vaccine from the defendant Merck. The United States purchased the vaccine which was then shipped to the City of Chicago to be administered as part of the program.

Plaintiff, a resident of Chicago, then seventy-one years of age, received the flu vaccination from a city employee at the Daley Center on November 19, 1979. Thereafter on November 23, 1979, plaintiff first consulted a doctor, and on December 29 her illness was diagnosed as being Guillain-Barre Syndrome ("GBS"), a paralytic and degenerative condition of the nervous system.

Before being administered the flu shot, plaintiff had been presented with a form prepared and distributed by the United States pursuant to its contract with the vaccine manufacturer, Merck, to warn potential users about the vaccine's risks. That form, complete on one side of legal-size paper, is captioned in boldface capital letters "IMPORTANT INFORMATION ABOUT INFLUENZA AND INFLUENZA VACCINE, 1979-80," and just underneath, as part of the caption, but in smaller print is the admonition to "Please read this carefully." The content of the form is separated in two parallel columns with boldface paragraph subheadings. The left-hand column explains what influenza is, what the vaccine is, and how it is administered, the dosage, and who should consider being vaccinated. It is the right-hand column, however, which is at issue.

At the top of the right-hand column just under the main caption is the boldface paragraph title "POSSIBLE SIDE EFFECTS FROM THE VACCINE." ¹ Among other things, the paragraph points out that although fewer than four percent experience more than a sore-arm reaction for a few days there is the possibility that allergic or more serious reactions or even death could occur. The paragraph then confronts the very disease that plaintiff claims to have contracted from the vaccine. In 1976, the form reveals, about twelve out of every one million adults who received the vaccine developed within ten weeks of vaccination a paralytic condition called the Guillain-Barre Syndrome. GBS is then discussed in more detail. The greater part of the paragraph is in fact devoted to the very ailment plaintiff blames on the vaccine. Other types of neurological illnesses are also mentioned as possibilities.

Across the bottom three inches of the form, directly underneath the preceding two-column information section is an instruction for the recipient to keep the upper, informational part of the form for that person's own records. A horizontal dotted line follows suggesting the form be separated there, the lower part to be completed by the person to be vaccinated and retained by the city. It contains a statement in italics that the person has read the preceding information on the form, has had the chance to ask questions, and has received satisfactory answers. It then states that the person understands the benefits and risks of the vaccine and requests that it be given. ² Following that the recipient is to print his or her name, age, and address, and then sign the form. The plaintiff fully and properly completed the form.

Plaintiff now endeavors to minimize the significance of her receipt of the information sheet and her signature on the statement indicating that she had read and understood it. In her deposition and answers to interrogatories she claims that the information sheet was given to her by a city employee who told her to "scan it" and sign her name, but who offered no information about the vaccine or its risks. There was a long line waiting for the vaccination, she explains, and it was moving quickly. A city employee was, as characterized by plaintiff, pushing people along. Plaintiff says she scanned only a little part of the form and recalls reading only the first paragraph, and did not read the paragraph about possible side effects. However, in her deposition she ultimately responded, "To tell you the truth, I don't remember how much I read." She later stated, "I don't remember if I read it or not."

Thereafter plaintiff filed a four-count complaint against the three defendants jointly and severally seeking $750,000 in damages. Count I is based on strict liability in tort alleging the vaccine was unreasonably dangerous and unsafe. Count II alleges a breach of implied warranty of fitness for the particular purpose and Count III alleges a breach of implied warranty of merchantability, both based upon the Illinois Uniform Commercial Code. Ill.Rev.Stat. ch. 26, Secs. 2-314, 2-315 (1985). Count IV is based on negligence in the manufacture, sale, marketing, promotion, distribution and administration of the vaccine.

II. Consideration by the District Court

The United States filed a motion to dismiss arguing that Counts I through III were barred because the United States had not waived its sovereign immunity under the Federal Tort Claims Act ("FTCA") ³ for actions grounded on strict liability and implied warranties. Count IV was challenged by the government on the basis that it was barred by the discretionary function exception to the FTCA and failed to state a claim. The district court held that it had no subject matter jurisdiction on Counts I through III, but denied the government's motion as to Count IV. The district court likewise denied motions to dismiss by the City and Merck. Subsequently both the United States and Merck filed motions for summary judgment. These motions were allowed and the suit dismissed. The district court on its own motion included the City in the motions for summary judgment and likewise dismissed the suit as to the City.

The trial court concluded that adequate disclosure of the risks had been made to plaintiff, and therefore found that it was unnecessary to consider the other defense theories. The court viewed the underlying premise of all the counts as alleging the failure of the defendants to provide adequate disclosure concerning the risks of injury from the use of the vaccine. Considering the contents of the information form and plaintiff's signed statement at the bottom of the form in which she acknowledged she understood the risks, the district court found no material question of fact to be resolved as to what a reasonable medical practitioner would have disclosed, citing Green v. Hussey, 127 Ill.App.2d 174, 183, 262 N.E.2d 156, 161 (2d Dist.1970) and Guebard v. Jabaay, 117 Ill.App.3d 1, 72 Ill.Dec. 498, 452 N.E.2d 751 (2d Dist.1983). The thrust of plaintiff's argument to the district court was not that a reasonable medical practitioner would have disclosed more, but that a material question of fact existed as to whether the disclosures in the information form were meaningful and understandable. The court viewed that argument as being fully met as a matter of law by the language of the form itself clearly stating the risks, by plaintiff's admission that she only scanned the form, and by her signed consent which stated she had read and understood the risks.

Plaintiff, on appeal, contests the trial court's characterization of the complaint as being premised only on inadequate disclosure, and claims that by doing so the district court ignored the other grounds upon which the counts were premised, as well as the other defense theories raised by the defendants in opposition. It was error, plaintiff claims, to so neatly and conveniently dispose of this whole case.

III. Analysis

The plaintiff does not contend that there was not disclosure, but claims that it was not meaningful and understandable in the mass-immunization context. Plaintiff cites Petty v. United States, 740 F.2d 1428 (8th Cir.1984), Hasler v. United States, 517 F.Supp. 1262 (E.D.Mich.1981), rev'd, 718 F.2d 202 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984), and Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974), to support her theory that "scanning" the information sheet, as she characterizes her actions, neither bars recovery nor precludes further inquiry into the adequacy of the disclosures and the validity of plaintiff's purported consent.

Petty was decided under Iowa, not Illinois, law. 740 F.2d at 1431. The information form warning in Petty was found not to encompass the specific known and material risk of the serum sickness necessary to...