Draisma v. United States, 78-441.

• Decision Date: 23 June 1980
• Docket Number: No. 78-441.,78-441.
• Citation: 492 F. Supp. 1317
• Parties: Frederick DRAISMA and Wilma Draisma, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

492 F. Supp. 1317

Frederick DRAISMA and Wilma Draisma, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 78-441.

United States District Court, W. D. Michigan, S. D.

June 23, 1980.

COPYRIGHT MATERIAL OMITTED

Henry L. Guikema, Murray, Mroz & Guikema, Grand Rapids, Mich., for plaintiffs.

Thaddeus B. Hodgdon, Trial Atty., Torts Branch, U.S. Dept. of Justice, Washington, D. C., for defendant.

OPINION

ENSLEN, District Judge.

This is an action brought under the Federal Tort Claims Act (FTCA) 28 U.S.C. § 2671, et seq. as authorized by the National Swine Flu Immunization Act of 1976, 42 U.S.C. § 247b(k)(1). Plaintiffs filed their Complaint on June 20, 1978 after complying with the administrative claims procedure required by the FTCA. Shortly thereafter the action was transferred to the District of Columbia for coordinated pretrial proceedings under the guidance of Judge Gesell. At the close of 1979, after his final pretrial order, Judge Gesell remanded the case to this Court for further proceeding. The parties met for a Pretrial Conference on March 12 of this year and trial was held April 28-30.

As a result of the United States Admissions filed on March 11, 1980, which acknowledged that the swine flu vaccination caused FREDERICK DRAISMA to contract the Guillain-Barre Syndrome (GBS), and that the government was liable for the proximate injuries flowing therefrom, the only remaining issue was that of damages. The following is a brief history of Plaintiff's injury for which the Court must assess damages:

On November 17, 1976 Frederick Draisma was inoculated with a swine flu vaccination in Wyoming, Michigan, administered by participants of the National Swine Flu Immunization Program. The first symptoms of the Guillain-Barre Syndrome appeared on December 5 of the same year. The symptoms which initially consisted of a tingling sensation in the extremities did not abate, but progressed to tactile impairment, loss of control of limbs, and stiffness and pain in the extremities and torso which necessitated hospitalization on December 12. Plaintiff's condition continued to deteriorate and culminated in general paralysis requiring transfer on December 21 to the intensive care unit where his vital signs would be constantly monitored and respiratory aids would be available if needed. During the following couple of weeks his illness peaked and then began to subside enabling his transfer out of intensive care on December 31, and discharge from Butterworth Hospital on January 11, 1977.

Plaintiff was then admitted to Mary Free Bed Hospital where he stayed and underwent rehabilitative physical therapy until April 8, 1977. When he left Mary Free Bed he still required a walker in order to ambulate and was not able to return to his work as a carpenter on a part time basis until July 22, 1977. Even then he was still required to perform rehabilitative exercises at home. To this date he has been unable to return to general carpentry duties which require heavy lifting or other strenuous exertion, but he has managed to work full time as a "finish" carpenter since December 1977.

The above capsule of Frederick Draisma's illness and residual deficits contains the outline of many elements of his damages claim and also point to the basis of his wife, Wilma Draisma's claim for loss of consortium. The following will delineate the Court's particular findings of fact and conclusions of law.

Medical Expenses

The Plaintiff is entitled to compensation for all of the reasonable medical expenses resulting from GBS. Schulte v. Holliday, 54 Mich. 73, 19 N.W. 752 (1884), Gowdy v. United States, 271 F.Supp. 733, 749 (D.C.1967).

Defendant has not contested either the liability for, or the reasonableness of the Plaintiff's medical expenses set forth in Exhibits J and K. The summary of these damages set forth in Exhibit J reflects a total of $20,976 for which the Defendant is liable.

Past Pain and Suffering — Intangible Injuries

The Plaintiff argues that he is entitled to damages for intangible injuries which he breaks down into the following physical and emotional components: physical pain; fear of his own death and anxiety over the uncertainty of recovery; loss of enjoyment of life; and inconvenience, humiliation and embarrassment. The Defendant, again, has not contested its liability for this general element of damages-pain and suffering — but is merely differing in the amount which it believes will fairly compensate.

The Plaintiff's position regarding the various components of intangible injuries which are compensable is supported by long established Michigan case law. In 1890 the Supreme Court of Michigan upheld the following instruction:

The elements of damages which the jury are to take into account consist of all effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff endured, the loss of time, all bodily and mental suffering, impairment of capacity to earn money, the pecuniary expenses, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and in considering what would be a just sum in compensation for the suffering or injury the jury are not only at liberty to consider the bodily pain, but mental suffering, anxiety, suspense and fright which may be treated as elements of the injury . . Sherwood v. Railroad Company, 82 Mich. 374, 46 N.W. 773 (1890). See also Gowdy v. United States, 271 F.Supp. 733, 750 (D.C.1967).

To answer the question of "how much", the Court, as the fact finder, must examine the circumstances surrounding Mr. Draisma's hospitalization and subsequent recovery. Shortly after Plaintiff received the swine flu inoculation he noticed tingling, numbness and weakness in his toes and fingers. As is typical with GBS, these nervous disorders progressed inward. In his worst state, he could not move his feet or hands, could not feed himself, had difficulty swallowing, and was told to concentrate on breathing so that he would not have to be put on a respirator. During this time he was placed in intensive care and Plaintiff testified to being seriously concerned about his survival.

After the paralysis began to subside, Plaintiff was released from the general hospital and placed in Mary Free Bed Hospital, where he underwent physical therapy. Initially, he had severe pain throughout his back when he attempted to sit up. He was encouraged, however, to do as much for himself as possible. Eventually he could get into a wheelchair and feed himself. Throughout this period his physical therapist encouraged him to stretch his muscles to prevent stiffening and atrophy. Mr. Draisma's compliance with this program and constant striving to get his body back in shape for normal life was credited for his quick recovery. In order to be fairly compensated for the intangible injuries Mr. Draisma incurred during his hospitalization from December 12, 1976 to April 8, 1977 the Court has determined he should be awarded $150 per day.

Once Mr. Draisma returned home his life did not immediately return to normal. In order to re-enter his home his family placed a plank from the car to his steps, and he crawled in. When on level ground, he progressed from using a walker to a cane; and by July 1977, he was able to walk independently. Throughout this period he continued an exercise program to build up the muscles that were weakened during the inactivity caused by his illness. Initially, he received some professional help in this area as an out-patient of Mary Free Bed. For the intangible injuries suffered by Mr. Draisma during his home recuperation until he returned to work on July 22, 1977, he should be awarded $75 per day in damages.

In late July Mr. Draisma was able to return to work in a part time capacity. He was not, however, able to resume his full responsibilities as a general carpenter. Having done his exercises faithfully at home he expected to be able to perform his old activities at a satisfactory level. His daughter attested to his discouragement after his first day at work when he came home and cried because of his diminished capacity. Even the most rudimentary carpentry tasks, involving the use of a hammer, were no longer second nature, but were a constant effort requiring all his strength and perseverance. Although his family thought it was too early to return to work, and he was still required to do special stretching and strengthening exercises, he felt he had to work as much as possible since all their savings had been drained and they had already received as much help from friends and neighbors as he (as a proud, formerly self-sufficient family man) could accept. When he was able to resume working full days, he found that he required much more rest than before. Rather than taking a quick break at noon for lunch, Mr. Draisma has had to lay down and rest during his lunch hour, and during his morning and afternoon breaks. Then when he returned home in the evening he was exhausted, without the energy required to perform simple household tasks like mowing the yard, or other general home maintenance, which he was accustomed to performing.

His recreational pursuits have also been limited. He can no longer hunt or perform other such activities which require much exertion. When his wife goes shopping, he will find a place where he can sit until she is ready to go home. Although he still bowls on a weekly basis, it leaves him in considerable pain that following night.

To adequately compensate Mr. Draisma for the pain and suffering and other intangible injuries from the time he went back to work until the time of the trial (April 30, 1980) he should receive $8,000 per year.

Past Loss of Consortium

Under Michigan law the Defendant is liable for loss of consortium to the injured party's spouse caused by its tortious conduct. This element of damages is explained in a recent Michigan Supreme Court case:

Loss of consortium technically

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