Gannon v. U.S.

• Decision Date: 17 July 2007
• Docket Number: Civil Action No. 03-6626.
• Parties: Jamie GANNON and Rebecca Gannon v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Pennsylvania

571 F.Supp.2d 615

Jamie GANNON and Rebecca Gannon v. UNITED STATES.

Civil Action No. 03-6626.

United States District Court, E.D. Pennsylvania.

July 17, 2007.

Donald S. Mclachlan, Mclachlan Law Offices LLC, Ridgewood, NJ, Stanley P. Kops, Bala Cynwyd, PA, for Jamie Gannon and Rebecca Gannon.

Armelle Vandorp, Colette J. Winston, U.S. Department of Justice, Rupert Mitsch, Paul Levine, Kimberly Ziropoulos, U.S. Department of Justice Ben Franklin Station, Washington, DC, Sonya Fair Lawrence, United States Attorney's Office Department of Justice, Philadelphia, PA, for United States of America.

MEMORANDUM

ROBERT F. KELLY, Senior District Judge.

Plaintiffs, Jamie and Rebecca Gannon, have filed suit against Defendant, the United States of America, under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Jamie Gannon was born on July 22, 1973. Between 1973 and 1976 in Upper Darby, Pennsylvania, he was administered multiple doses of Orimune, an oral poliomyelitis vaccine ("poliomyelitis") manufactured by Lederle Laboratories. In November 2000, Jamie Gannon was diagnosed with a medulloblastoma, which is a type of cancerous brain tumor. Plaintiffs allege that this tumor was caused by a monkey virus, known as Simian Virus 40 ("SV40") and that the Orimune he received was contaminated with this allegedly cancercausing SV40. Their claim against the United States rests on the argument that the United States government negligently licensed Lederle to produce Orimune and to release it to the public. Plaintiffs claim that the United States did not confirm the absence of SV40 at each stage of manufacture allegedly in violation of the federal regulations concerning the licensing, testing, and manufacture of live oral polio vaccine.

On January 23, 2007, this Court commenced a bench trial in this case. The trial began with a Daubert examination of Dr. Adi Gazdar, Plaintiffs' causation expert. For the convenience of the parties, the witness, and this Court, Dr. Gazdar also presented his full testimony as to causation. Defendant then presented the testimonies of its causation experts: Dr. Robert Garcea, Dr. Harald zur Hausen, and Dr. Neal Halsey. These witnesses presented a rebuttal to Dr. Gazdar with respect to Daubert and also presented their full testimonies. The witnesses were presented in this way so that they would not have to be recalled later in the trial.

In a bench trial, this Court's "role as gatekeeper pursuant to Daubert is arguably less essential" because a judge rather than a jury is the fact finder. Clark v. Richman, 339 F.Supp.2d 631, 648 (M.D.Pa. 2004). However, the Third Circuit has given no indication as to how and if Daubert hearings differ for bench trials. Id. "[I]n the absence of prohibition or direction from the Third Circuit, reliability and relevancy challenges to an experts' opinions may be considered during a bench trial." Id. That is what was done here. Because this Court sits as the trier of fact in this case, it was appropriate for testimony as to Daubert as well as to the merits of the case to occur at the same time and out of the standard order of a trial. The bench trial format provided the flexibility to proceed in this manner.

At the conclusion of the testimonies of Dr. Gazdar and Defendant's three experts, this Court denied Defendant's Daubert motion. Defendant also made a Motion pursuant to Federal Rule of Civil Procedure 52(c) for Judgment on Partial Findings as to causation; whether SV40 causes human medulloblastomas and whether it caused Mr. Gannon's medulloblastoma. Plaintiffs filed a Motion to Strike Defendant's Rule 52(c) Motion. Plaintiffs argue that a Rule 52(c) Motion is improper at this time because Plaintiffs, the party bearing the burden of proof, have not presented all of their evidence.

Federal Rule of Civil Procedure 52(c) governs judgments on partial findings in bench trials. Rule 52(c) states:

If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.

This Rule "authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence." Fed.R.Civ.P. 52(c) advisory committee's notes.

Rule 52(c) replaced part of Rule 41(b) that "formerly authorized a dismissal at the close of the plaintiff's case if the plaintiff has failed to carry an essential burden of proof." Id. This now defunct part of Rule 41(b) was referred to as involuntary dismissal. With the enactment of Rule 52(c), judgment on partial findings became the procedural successor to involuntary dismissal. Id.; Rule 41(b) advisory committee's notes. Accordingly, this Court will look to the legal standard previously articulated under Rule 41(b). Fechter v. Ct. Gen. Life Ins. Co., 800 F.Supp. 182, 196 (E.D.Pa.1992); see also 9C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2573.1 (2d ed. 1995) ("The case law developed under Rule 41(b) ... is applicable under Rule 52(c)."). Thus, that legal standard is:

the court is not as limited in its evaluation of the nonmovant's case as it would be on a motion for a directed verdict. The trial judge is not to draw any special inferences in the nonmovant's favor nor concern itself with whether the nonmovant has made out a prima facie case. Instead the court's task is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.

Giant Eagle, Inc. v. Fed. Ins. Co., 884 F.Supp. 979, 982 (W.D.Pa.1995); Fechter, 800 F.Supp. at 196. "Rule 52(c) expressly authorizes the district judge to resolve disputed issues of fact." Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir.2006).

While a judge's legal approach to ruling on a Rule 52(c) motion is the same as that under Rule 41(b), Rule 52(c) has a broader procedural application than Rule 41(b). 9 James Wm. Moore, et al., Moore's Federal Practice § 52.50 (3d ed.2007). First, a judgment on partial findings pursuant to Rule 52(c) can be entered against either the plaintiff or the defendant, rather than just the plaintiff. Id. Second, it allows a judgment to be entered at any time after the affected party has been fully heard with respect to the issue. Id. The court need not wait until the conclusion of that party's case. Id. "The failure of a party to establish an essential issue justifies the immediate termination of the case or claim. Judgment on partial findings conserves time and resources by making it unnecessary for the court to hear evidence on additional facts when the result would not be different even if these additional facts were established." Id.

Plaintiffs' argue that a decision under Rule 52(c) "is based solely after the completion of the non-movant's evidence." (Pl.'s Mot. To Strike Def.'s Rule 52(c) Mot., 5). Plaintiffs are incorrect. Their argument ignores the procedural differences between Rule 52(c) and its predecessor Rule 41(b). While the legal standard for making a judgment under both rules is the same, the clear language of Rule 52(c) shows that a motion for judgment on partial findings need not be made after the close of plaintiff's evidence. In re Anthem Communities/ RBG, LLC, 267 B.R. 867, 876 (Bankr.D.Col.2001) ("[Rule 52(c)] does not contain language requiring a motion at the close of plaintiffs evidence."). Rather, the motion can be made when "a party has been fully heard on an issue." Fed. R.Civ.P. 52(c).

The advisory committee notes for Rule 52(c) lend further support to the understanding that it is procedurally different than Rule 41(b). Those notes state that a judgment on partial findings can be entered "at any time that the court can appropriately make a dispositive finding of fact on the evidence." Fed.R.Civ.P. 52(c) advisory committee notes. Furthermore, a judgment should only be "made after the court has heard all the evidence bearing on the crucial issue of fact." Id. The advisory committee notes for Rule 41(b) also clearly state that involuntary dismissal is replaced by "the new provisions of Rule 52(c), which authorize entry of judgment against the defendant as well as the plaintiff, and earlier than the close of the case of the party against whom judgment is rendered." Fed.R.Civ.P. 41(b) advisory committee notes. Thus, Plaintiffs' argument that this motion is improper because they have not completed their case-in-chief is meritless in light of the Federal Rules.

To determine if Defendant's Rule 52(c) Motion on causation is proper, this Court must decide if Plaintiffs have been fully heard on the causation issue. Plaintiffs argue that they have not because they have other expert and fact witnesses besides Dr. Gazdar. According to Plaintiffs, these witnesses would address the issue of how OPV was contaminated with SV40 and how this vaccine contamination issue shows flaws in the epidemiological data discussed by Defendant's causation experts.

Epidemiology is the field of study in public health and medicine that researches what risk factors cause a disease in human populations. Epidemiologists seek "to determine whether individuals exposed to an agent have a greater risk of developing the disease in question." Siharath v. Sandoz Pharm. Corp., 131 F.Supp.2d 1347, 1356 (N.D.Ga.2001). Here, the epidemiological data addressed whether SV40 is a risk factor that causes human cancers.

Plaintiffs are arguing that the epidemiological evidence referenced and discussed by Defendant's experts incorrectly assumed that only the inactivated polio vaccine ("IPV"), administered between 1955 and 1962, and OPV...