Leeper v. U.S.
| Decision Date | 06 March 1985 |
| Docket Number | No. 84-5103,84-5103 |
| Citation | 756 F.2d 300 |
| Parties | LEEPER, Niles R. and Leeper, Geraldine, his wife v. UNITED STATES of America. Appeal of Niles R. LEEPER. |
| Court | U.S. Court of Appeals — Third Circuit |
Stanley M. Shingles (Argued), Philadelphia, Pa., for appellant.
Frederick E. Martin (Argued), Asst. U.S. Atty., Lewisburg, Pa., for appellee.
Before ADAMS, HIGGINBOTHAM and SLOVITER, Circuit Judges.
Niles R. Leeper appeals the district court's judgment in his favor on the ground of alleged inadequacy of a $115,905.25 award as damages for injuries he sustained due to an inoculation administered under the National Swine Flu Immunization Program of 1976. ("Swine Flu Act"). 1 The court denied Mr. Leeper's motion under Fed.R.Civ.P. 52(b) to increase the amounts awarded for past lost earnings and for pain and suffering. We will reverse the district court's judgment as to lost earnings and affirm as to pain and suffering.
Appellant and his wife, Geraldine Leeper, brought this action in the United States District Court for the Middle District of Pennsylvania under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680 (1966), as amended by the Swine Flu Act. The complaint, filed on April 22, 1981, sought damages from the United States for injuries due to Guillain-Barre Syndrome, 2 On December 8, 1976, Niles Leeper, who was then a Postmaster for the United States Postal Service, received a swine flu inoculation from a person authorized under the Swine Flu Act to administer the vaccine. About two weeks later, he suffered an unusual and severe pain in his back, followed by tingling and the loss of sensation and muscle control in his feet. On December 27, 1976, a local orthopedic surgeon examined Mr. Leeper and referred him to Geisinger Medical Center. The examining physician at that hospital diagnosed the appellant as having Guillain-Barre Syndrome and admitted him for treatment.
which Niles Leeper allegedly sustained following a swine flu inoculation. Prior to trial, the district court dismissed the complaint as to Geraldine Leeper's claim for alleged loss of consortium because she failed to file a timely administrative claim as required by 28 U.S.C. Sec. 2675(a) (1966). The parties stipulated, however, that the Guillain-Barre Syndrome was caused by the swine flu vaccine and that the government was liable to Mr. Leeper. The non-jury trial thus proceeded solely on the issue of damages. On September 29 and November 1, 1983, the appellant presented evidence which we summarize below.
After his admission to the hospital, Mr. Leeper suffered a steady progression of ascending paralysis and intensification of pain. He lost control over all his muscles. On January 2, 1977, Mr. Leeper's attending physicians feared that he might become unable to breathe without mechanical assistance. They moved him into the Intensive Care Unit for constant observation in case of respiratory failure. By the next day, the paralysis had ascended to appellant's facial muscles and he was in extreme pain. Mr. Leeper's fear and anxiety level also increased proportionately with his pain and paralysis. He would not allow himself to sleep for fear he might die, and the sleep deprivation led to hallucinations. He remained in the Intensive Care Unit for several days.
The hospital released appellant on March 11, 1977. On an out-patient basis, he gradually continued to improve. He underwent surgery and was hospitalized from August 7 through 16, 1977, to alleviate a neurogenic bladder condition which was caused by Guillain-Barre Syndrome. On September 19, 1977, he returned to work as Postmaster on a part-time basis.
Although he had returned to work, Mr. Leeper still had symptoms of burning, stinging, and painful feet. Even at the time of trial, he continued to suffer residual symptoms of Guillain-Barre Syndrome, including lack of stamina and patience, uncharacteristic disinterest in social activities, and permanent nerve damage in his feet, causing him to suffer unrelenting and painful paresthesias.
On December 15, 1983, the district court entered judgment in favor of appellant. Mr. Leeper was awarded the following amounts on his claims for damages:
1. Past Medical Expenses $18,870.84
2. Lost Earnings and Loss of
Earning Capacity
a. Past Lost Earnings 0
b. Diminution of Pension
Benifits/Lost Sick Leave 7,988.86
c. Lost Self-Employment
Income 4,045.55
d. Loss of Earnings Due
to Early Retirement 0
e. Future Loss of Earnings
and Earning Capacity 0
3. Mental and Physical Pain and
Suffering
a. Past 75,000.00
b. Future 10,000.00
-----------
Total $115,905.25
On December 27, 1983, Mr. Leeper filed a motion pursuant to Fed.R.Civ.P. 52(b) to amend the district court's findings and
judgment as to lost earnings and pain and suffering. The district court denied the motion on February 1, 1984. Mr. Leeper filed a notice of appeal on February 13, 1984.
Prior to returning to work, Mr. Leeper utilized his accumulated sick leave, which amounted to $13,155.64 in payments from the Postal Service. If Mr. Leeper had not been ill, he would have received the same amount as salary. The parties stipulated that this use of sick leave during his illness and convalescence also diminished the value of Mr. Leeper's forthcoming pension by $7,988.86. The district court, however, awarded the lost pension benefits due to use of sick leave as the measure of income lost during Mr. Leeper's absence from work and not the $13,155.64 in wages which he claims he also lost during that time. (App. at 217).
In his reconsideration opinion, the district judge explained that "[b]ecause the United States was both tortfeasor and employer, we did not apply the collateral source rule," and therefore did not award the $13,155.64 in alleged lost wages. (App. at 221-22). The gravamen of Mr. Leeper's argument here is that the district court misapplied the law. He contends that under the Pennsylvania collateral source rule, the district court should have awarded him the amounts for the wages as well as the pension benefits which he lost due to his use of sick leave during his bout with Guillain-Barre Syndrome.
In FTCA cases, federal courts must use the applicable state law in the computation of non-punitive damages. 28 U.S.C. Sec. 2674. Thus, in determining whether the district court properly awarded appellant only the lost pension benefits on his claim for earnings lost during the course of his illness, the standard of review is whether that court erred in its interpretation and application of Pennsylvania's collateral source rule.
Generally, the collateral source rule allows the victim of a tort to recover for damages caused by the tortfeasor regardless of compensation received from other independent or "collateral" sources. Denardo v. Carneval, 297 Pa.Super. 484, 444 A.2d 135 (1982). In FTCA cases, where, as here, the government is both the tortfeasor and the employer, there is often uncertainty as to whether the government's payments to the tort victim constitute a collateral source. "The application or nonapplication of the rule encompasses many different situations and each one must be analyzed separately." Feeley v. United States, 337 F.2d 924, 927-28 (3d Cir.1964).
The Pennsylvania Supreme Court has held that there can be no recovery for past earnings where there is no actual loss of income. Antonelli v. Tumolo, 390 Pa. 68, 132 A.2d 285 (1957). The Pennsylvania court found that the plaintiff in that case suffered no actual loss during his time away from work because he was paid wages out of his sick leave. 390 Pa. at 74, 132 A.2d at 288. Pennsylvania does allow recovery, however, in cases where employees have continued to receive their salaries pursuant to state statutes while disabled and away from work. Palandro v. Bollinger, 409 Pa. 296, 186 A.2d 11 (1962); City of Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 10 A.2d 434 (1940). The court found such payments to be more in the nature of disability benefits, similar to workmen's compensation, rather than pure salary.
A tort victim can also recover lost earnings where there has been an actual loss of income or an employment benefit. Kagarise v. Shover, 218 Pa.Super. 287, 275 A.2d 855 (1971). In this case, the defendant was allowed to submit testimony that Kagarise, a school teacher, had received full or partial payments from a sick pay program for ten (10) of the thirty-nine (39) days of work she had missed due to her injuries. The jury apparently deducted the First, the court found the case to be similar to Palandro and City of Philadelphia, supra, in which employees continued to receive wages in the form of disability or sick payment compensation, as statutory fringe benefits of their jobs. 218 Pa.Super. at 290, 275 A.2d at 856. Second, and presumably in response to Antonelli, the court stated:
compensation she received from her award of damages for lost wages. The Superior Court of Pennsylvania held that the collateral source rule had been violated when the trial court allowed the jury to consider this evidence. 218 Pa.Super. at 291, 275 A.2d at 857.
[A]ppellant suffered an actual loss for the days she missed from school in the form of a reduction from her accumulated sick leave. If appellant were to miss any more days from school because of sickness or injury, she would not be compensated, though but for the accident her salary would have been continued. If appellant had already missed ten days of her work prior to her injuries, the accident would have caused her to lose all her pay, and appellee would have been liable for that...
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