Brazzell v. U.S., 85-1698

• Decision Date: 31 July 1986
• Docket Number: No. 85-1698,85-1698
• Citation: 788 F.2d 1352
• Parties: Darlene BRAZZELL, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1352

788 F.2d 1352

Darlene BRAZZELL, Appellee, v. UNITED STATES of America, Appellant.

No. 85-1698.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1986.

Decided April 18, 1986.

Order on Rehearing July 31, 1986.

Robert L. Teig, Asst. U.S. Atty., Cedar Rapids, Iowa, for appellant.

Wilford M. Forker, Sioux City, Iowa, for appellee.

Before HEANEY, BOWMAN and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

The United States ("government") appeals from a judgment entered April 4, 1985 in the Northern District of Iowa, Donald E. O'Brien, Chief Judge, after a bench trial holding the government liable in amount of $33,482.95 for injuries sustained by Darlene A. Brazzell ("appellee") as a result of receiving a swine flu vaccination in November 1976. The district court held that under Iowa law, the National Swine Flu Immunization Program Act, and the Federal Tort Claims Act, the government was strictly liable for the failure to warn appellee about the risk of contracting severe and prolonged muscle soreness as a side effect of the swine flu vaccination.

On appeal, the government argues that the district court erred in these respects: finding appellee's action timely; applying Iowa strict liability law; finding that the vaccination was the actual cause of appellee's injuries; and holding that the failure to warn was the proximate cause of appellee's injuries.

We hold that the action was timely; that the district court properly construed our prior holdings on Iowa strict liability law; and that the district court did not err in its analysis of causation. We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Much has been written regarding this country's reaction to the threat of a swine flu epidemic in 1976. E.g., Petty v. United States, 679 F.2d 719, 724-27 (8th Cir.1982) ("Petty I "); Bean v. United States, 533 F.Supp. 571-72 (D.Colo.1980); In re Swine Flu Immunization Products Liability Litigation, MDL # 330, Misc. No. 78-0040 (D.D.C.1979) (multidistrict litigation pretrial order). We assume familiarity with this background and therefore we shall set forth only the essentials of the swine flu immunization program as they relate to the instant appeal.

In response to the perceived threat of an epidemic of swine flu in 1976, Congress, at the Ford Administration's prompting, enacted the National Swine Flu Immunization Program Act, former 42 U.S.C. Secs. 247b(j)-247b(l ) (1976) ("Swine Flu Act"). The Swine Flu Act was designed to make it possible for all adults to receive a free swine flu vaccination. In order to ensure a plentiful supply of vaccine and medical personnel to administer it, the Swine Flu Act provided that all personal injury claims arising out of swine flu vaccinations were to be brought against the United States. The government assumed the liability of all program participants, which included vaccine manufacturers and the medical personnel who gave the vaccinations. The government's liability was to be governed by the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (1982), except that, if asserted liability was predicated on any acts by participants in the program other than the government, such liability might be grounded on any theory available in the state where the vaccination was given. 42 U.S.C. Sec. 247b(k)(2)(A)(i).

Appellee, after observing much of the government's positive publicity on the program, consulted her family doctor to inquire about the advisability of receiving a vaccination. Her doctor advised her that, because of her past history of tuberculosis, she was in a high risk group in being exposed to swine flu and ought to get the vaccination. On November 11, 1976 appellee received the vaccination at her doctor's office in Sioux City, Iowa. Appellee did not see her doctor when she received the vaccination, but was attended to by a nurse. Just prior to receiving the vaccination, appellee was given two printed forms that had been supplied to the doctor by the government. One form gave information on the vaccine, stressing its safety but including a warning about side effects. The other form, which appellee signed, recited that she had read the information form and had been given an opportunity to ask questions. Petty I, supra, 679 F.2d at 722-23 (forms reproduced).

On November 15, 1976 appellee telephoned her doctor complaining of aches, chills and a fever. The doctor recommended aspirin. On November 19 appellee again called her doctor complaining of no relief. The doctor prescribed a strong muscle relaxant. On November 21 appellee visited her doctor complaining of intense muscle pain throughout her entire body, a condition termed "myalgia". The doctor admitted her to a hospital for tests. Appellee remained in the hospital from November 21 to December 8. The hospital records covering this stay indicate that appellee's doctor thought appellee's myalgia was "probably secondary" to having had the swine flu vaccination. In his deposition, the doctor stated that he thought he had told appellee of this preliminary diagnosis while she was in the hospital. Although appellee's condition improved, she continued to suffer muscle pain. She saw her doctor on December 22, 1976 and January 5, 1977. At the latter visit, appellee expressed her belief that the vaccination had caused her troubles. Her doctor, having changed his mind since her hospital stay, assured her that the vaccination's effect had long since worn off. Around this time appellee also began experiencing emotional stress characterized by "tenseness". This tenseness became increasingly severe. Appellee sought the aid of a psychiatrist. The psychiatrist admitted her to a hospital where she remained from April 16, 1977 to May 25, 1977. The psychiatrist concluded that appellee was suffering from anxiety neurosis and depression. In his deposition he stated that the physical stress attendant upon appellee's myalgia was a direct contributing factor of her neurosis. Appellee was still suffering from some symptoms of both myalgia and anxiety neurosis at the time of trial in March 1982.

On February 8, 1980, after discussing with a lawyer the circumstances surrounding her vaccination, appellee filed an administrative claim against the government for injuries she claimed resulted from her vaccination. On September 24, 1980, after her administrative claim was denied, appellee commenced the instant action in the district court under the Swine Flu Act and the Federal Tort Claims Act. Appellee's complaint alleged that the government was liable for the myalgia and anxiety neurosis she contracted as a result of the vaccination because program participants had failed to warn her of the risks of such maladies. The complaint sounded in negligence, strict liability and breach of warranty.

At the bench trial the most significant evidence presented consisted of depositions of appellee, her doctors and the government's doctors. The court also relied on certain factual findings made in the final pretrial order of the District Court for the District of Columbia, where the Judicial Panel on Multidistrict Litigation had sent many of the swine flu cases for coordinated discovery. In re Swine Flu Immunization Products Liability Litigation, supra. In an unreported opinion dated April 4, 1985, ¹ the district court held the government strictly liable for appellee's injuries. The court considered only appellee's strict liability theory for failure to warn of possible side effects because it determined that complete relief could be awarded under that theory. The court found that the vaccination was the actual cause of appellee's myalgia and that the myalgia was a contributing factor in appellee's anxiety neurosis. The court held that under Iowa strict liability tort law the vaccine's manufacturer and appellee's doctor had a duty to warn appellee of the risk of myalgia and had breached that duty. The court held that this failure to warn was the proximate cause of appellee's injuries because the government had failed to rebut a burden shifting presumption which presumes that the failure to warn is the proximate cause in swine flu vaccination cases. The court held the government, in lieu of the program participants, liable to appellee in accordance with the Swine Flu Act. The court awarded appellee $30,000 for past pain and suffering but awarded no damages for permanent injuries. The court also awarded $3,482.95 in unrecompensed medical expenses.

II.

With this background of facts and prior proceedings in mind, we shall consider the government's arguments seriatim.

A. Action's Timeliness

The government argues that appellee's action was time barred under the limitations period for the Federal Tort Claims Act. For a tort action against the government to be timely, the plaintiff must file an administrative claim with the appropriate agency "within two years after such claim accrues." 28 U.S.C. Sec. 2401(b). When a claim accrues under the Tort Claims Act is a matter of federal law. Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983). Although the choice of the appropriate rule for determining when a claim accrues is a matter of law, a district court's findings on the application of that rule are findings of fact and will not be disturbed unless clearly erroneous. Reilly v. United States, 513 F.2d 147, 150 (8th Cir.1975).

The government's argument that appellee's action was untimely is two-tiered. First, the government argues that the court applied the wrong rule as to when a claim under the Swine Flu Act accrues. The court held that appellee's claim accrued on the date she discovered or should have discovered that the vaccination was the cause of her injuries. This discovery rule is in sharp contrast to the more usual date of injury rule, which is simply that the claim accrues at the time of discernible injury, usually the same time as the causitive act. Wollman...