Gates v. U.S.

• Decision Date: 10 May 1983
• Docket Number: No. 81-1319,81-1319
• Citation: 707 F.2d 1141
• Parties: 13 Fed. R. Evid. Serv. 712 Marvin T. GATES, Executor of the estate of Fae L. Gates, Deceased, and Marvin T. Gates, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1141

707 F.2d 1141

13 Fed. R. Evid. Serv. 712

Marvin T. GATES, Executor of the estate of Fae L. Gates Deceased, and Marvin T. Gates, individually Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 81-1319.

United States Court of Appeals Tenth Circuit.

May 10, 1983.

Leo H. Whinery, Norman, Okl. (Ed Abel, Oklahoma City, Okl., with him on the briefs), of Abel, Musser, Sokolosky & Clark, Oklahoma City, Okl., for plaintiffs-appellants.

Jeffrey Axelrad, Director, Torts Branch, Washington, D.C. (Stuart E. Schiffer, Acting Asst. Atty. Gen., and Thaddeus B. Hodgdon, Atty., Dept. of Justice, Washington, D.C., and David R. Russell, U.S. Atty., W.D. Okl., Oklahoma City, Okl., with him on the brief), for defendant-appellee.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

This is an appeal from the judgment of the district court dismissing plaintiff's action against the United States for personal injury allegedly caused by the swine flu vaccination administered during the National Swine Flu Immunization Program of 1976, 42 U.S.C. Sec. 247b(j)-(l) (1976) ("Swine Flu Act"). The sole issue was whether the swine flu vaccine received by plaintiff (Fae L. Gates) was the proximate cause of the Guillain-Barre Syndrome ¹ ("GBS") she suffered in the fall of 1977. The district court held that plaintiff had failed to prove causation by a preponderance of the evidence.

The action was brought under the Swine Flu Act by Marvin T. Gates and Fae L. Gates in the United States District Court for the Western District of Oklahoma. The Swine Flu Act provides that the United States shall generally be liable for injuries arising out of administration of the swine flu vaccine and that swine flu actions are deemed to be actions brought under the Federal Tort Claims Act, ("FTCA"). 42 U.S.C. Sec. 247b(k)(2)(A).

Before trial, the parties stipulated that plaintiff had GBS. According to the Final Pretrial Order, she did not have to establish a theory of liability to win her case; she had only to prove the existence of a causal nexus between the swine flu vaccination and her GBS.

In advance of trial, the district court appointed a panel of three medical experts to assist the court in resolving the complex medical issues involved. The panel submitted its findings to the court in a report which was admitted into evidence. At trial, the district court heard testimony from plaintiff's witnesses, expert and lay, and considered the depositions and exhibits offered by both plaintiff and defendant. Among the exhibits was a report prepared by researchers at the Center for Disease Control ("CDC") consisting of epidemiological data based on a nationwide survey after the Swine Flu Program.

The case was tried without a jury; the trial court made the following findings of fact: Plaintiff, an energetic sixty-seven year old woman, received two swine flu inoculations on October 22, 1976 at a public health center in Stillwater, Oklahoma. Her second injection was administered accidentally. She was unaware of this. Her medical history prior to 1976, however, indicates that she had suffered from several ailments. In 1964 she had Meniere's Syndrome, a syndrome of the inner ear that causes hearing difficulties and disturbs one's balance. Plaintiff had hearing problems before and after her immunization; she had chronic tension with elevated blood pressure and was allergic to pollen, grass, and dust. She also had a series of operations: in 1952 several cysts were removed from her right breast; in 1967 she underwent a hysterectomy; in 1972 she had foot surgery; and in 1973 she had an appendectomy and a gall bladder operation.

Shortly after plaintiff was vaccinated, her vaccinated arm became sore and she developed a low-grade fever. About two to three weeks later, she developed shortness of breath, "shakes", and aches in her lower back and legs. In early November of 1976, plaintiff's hands became unsteady, her equilibrium was altered, and her memory began to deteriorate. In December 1976 she developed a rash on the left side of her neck. The medical records for these consultations make no mention of back pain, shortness of breath or imbalance. From December of 1976 to May 1977, she did not consult a physician.

On May 2, 1977 plaintiff went to the Scott and White Memorial Hospital in Texas complaining of pain in her hips. On admission to the clinic, she reported that two months previously she had experienced low back pain. An examination revealed a swelling in her left lower back area. Reflexes were symmetrically normal at the knees and ankles and there was no weakness or paresthesias (a burning, pricking or tingling sensation) in the lower extremities. The physicians at the Scott and White Clinic noted excoriations on her neck and back, which had been present since December 1976. It was observed that these excoriations were self-induced and related to anxiety. The medical records indicate that plaintiff was overweight and had elevated blood pressure.

Based upon the May 1977 medical records from the Scott and White Clinic, all medical experts who testified, either at trial or by deposition, agreed that Ms. Gates had none of the signs or symptoms of GBS at that time.

Although plaintiff testified that her pain and weakness persisted after her visit to Scott and White, she did not consult a physician again until her admission to the Stillwater Municipal Hospital in Stillwater, Oklahoma on September 19, 1977. The final diagnosis of Dr. Frye, the admitting physician, was polyarthralgia (a severe pain in several joints, Stedman's Medical Dictionary at 124 (5th ed. 1982)). Upon admission to the hospital, plaintiff stated that she was well until September 12 when she moved to a new home. Apparently, the activity of moving caused such symptoms as aching in the lower extremities, nausea, vomitting, and difficulty in moving. After showing some improvement on September 30, plaintiff was discharged on her own request.

On October 5, 1977 plaintiff was taken by ambulance to the Scott and White Clinic. Her primary complaint was pain and weakness in her legs. A neurological examination at that time indicated normal motor strength in her upper extremities but marked weakness of the hips, knees, and ankles. Reflexes were absent at the ankles and diminished at the knees. The initial diagnosis was an ascending polyneuritis (an inflammation of a large number of the spinal nerves, id. at 1119).

Electrodiagnostic testing conducted at Scott and White indicated that motor nerve conduction velocity was significantly impaired in plaintiff's lower extremities but mostly normal in the upper ones. Plaintiff's cerebrospinal (relating to the brain and spinal cord, id. at 255) fluid protein level was significantly elevated. Plaintiff was discharged from Scott and White on October 11, 1977 with a final diagnosis of GBS.

The trial court held that plaintiff failed to prove a causal connection between the vaccination and GBS. The court relied on the report prepared by the CDC, which shows that vaccine-related GBS can occur for up to ten weeks after the vaccination. Here, the court observed, the onset of plaintiff's GBS occurred eleven months after the vaccination. The court also considered significant the finding of the panel of experts that the long delay in the onset of GBS after the vaccination extinguished any causal nexus. On March 2, 1981, the district court entered judgment in favor of the United States and dismissed the complaint. This appeal followed.

On appeal plaintiff raises the following issues:

1. Whether the trial court's appointment of a panel of experts was error;

2. Whether the trial court erred in ruling an expert opinion inadmissible;

3. Whether the trial court erred in relying on a Center for Disease Control study as being indicative of a lack of causal relationship;

4. Whether the trial court improperly interpreted and applied Oklahoma law on proximate cause 5. Whether statistical data without independent evidence is sufficient to rebut a prima facie case.

Plaintiff's first two contentions raise issues regarding discretionary rulings by the trial court. Plaintiff challenges the make-up of the panel of experts appointed to assist the trial court because, plaintiff argues, the panel of three experts consisted of two specialists in neurology and one expert witness with a strong predilection to a neurological bias.

The panel consisted of C.H. Milliken, M.D., professor of neurology at the University of Utah; Stanley H. Appel, M.D., professor of neurology at Baylor College of Medicine; and Leonard T. Kurland, M.D., professor of epidemiology and medical statistics at the Mayo Clinic. All members of the panel had had previous experience in diagnosing GBS. The panel was empowered to conduct physical examinations of plaintiff, consider medical literature submitted by the parties, and review past medical records of plaintiff. Two members of the panel conducted separate examinations of plaintiff. The panel was unanimous in its conclusion that plaintiff suffered from GBS but that the time interval between the inoculation and onset of GBS, which the panel determined to be approximately eleven months, was too great for a causal nexus to exist.

Plaintiff argues that the diagnosis and treatment of GBS crosses a broad spectrum of medical disciplines and, therefore, the appointment of a panel of experts consisting of two neurologists and one epidemiologist was erroneous in that the experts' backgrounds in neurology constituted a bias in their conclusions and findings.

The trial judge has broad discretion in regulating trial procedure, including the appointment of a panel of experts to assist the trial court in understanding complex matters. See Fugitt v. Jones, 549 F.2d 1001, 1006 (5th Cir.1977). Fed.R.Evid. 706(a) provides in relevant part that

[t]he court may on its own motion or on a motion of any party enter an order to show cause...