Spencer v. United States, 79-6024-CV-SJ.

• Decision Date: 21 June 1983
• Docket Number: No. 79-6024-CV-SJ.,79-6024-CV-SJ.
• Citation: Spencer v. United States, 569 F.Supp. 325 (W.D. Mo. 1983)
• Parties: Madolene SPENCER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

569 F. Supp. 325

Madolene SPENCER, Plaintiff, v.UNITED STATES of America, Defendant.

No. 79-6024-CV-SJ.

United States District Court, W.D. Missouri, St. Joseph Division.

June 21, 1983.

Clifford J. Shoemaker, Vienna, Va., John C. Risjord, Risjord & Curtis, Kansas City, Mo., Robert F. Sevier, Sevier & Burnett, Liberty, Mo., for plaintiff.

Leon B. Taranto, Trial Atty., Torts Div., U.S. Dept. of Justice, Washington, D.C., Judith M. Strong, Kansas City, Mo., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DIRECTING ENTRY OF JUDGMENT

SACHS, District Judge.

This is a civil action brought against the United States pursuant to the National Swine Flu Immunization Program Act, 42 U.S.C. § 247(b), and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.The plaintiff, Madolene Spencer, is the widow of Charles A. Spencer.She seeks damages from the defendant for the wrongful death of her husband.She alleges that she incurred considerable medical and other expenses on behalf of her husband and that she was totally dependent on her husband for support.A claim for loss of companionship is implicit in her complaint.

Charles Spencer received the swine flu vaccination on November 2, 1976.He was then 55 years old.He subsequently developed Guillain-Barre Syndrome.The plaintiff alleges that Mr. Spencer's Guillain-Barre Syndrome was a consequence of his swine flu vaccination.The United States denies the allegation that there was any causal relationship between the swine flu inoculation in 1976 and Mr. Spencer's GBS, which the parties agree was in an acute stage in March, 1978, immediately prior to Spencer's death on April 30, 1978.

This case was initially transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the District of Columbia for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.Thereafter, it was remanded to this Court for further proceedings and trial.The Final Pretrial Order from the transferee Court provides that where the plaintiff developed GBS at any time after receiving his swine flu vaccination (as is the situation in this case), no theory of liability need be established by the plaintiff in order to recover damages.However, to be entitled to damages, the plaintiff here must prove by a preponderance of the evidence that the swine flu vaccination Mr. Spencer received was more likely than not the cause of the GBS which he later contracted.

As will be shown, the Court believes that plaintiff has carried her burden of proof, and has established liability.The Court concludes that shortly after the inoculation, and within the year 1976, Mr. Spencer developed symptoms of what has subsequently been diagnosed as a mild, "smoldering" case of GBS.The illness progressed in a generally mild form, with improvements and worsening of symptoms.An upper respiratory infection in March, 1978, reacted with the smoldering illness in a manner which caused the disease to flare into its classic, acute stage.The Court's findings of early onset are primarily based on credible and uncontested testimony from Mr. Spencer's daughter and stepdaughter.The medical diagnosis of a comparatively rare phenomenon is based on the testimony of Dr. Charles M. Poser, and supportive medical literature, not adequately met by the government.

Prior to receiving the swine flu vaccination on November 2, 1976, Charles Spencer was an energetic, physically active, outgoing person.He married Mrs. Spencer on January 1, 1947, and they had raised four children.Since March of 1955, he had been working for Transworld Airlines, and at the time he received his vaccination, he was a mechanic in the plasma plating shop.Mr. and Mrs. Spencer camped many weekends, generally with their daughter Debbi, and were quite active with camping clubs.Their vacations usually involved extended camping trips.Mr. Spencer was also an avid bowler.

Approximately one week after Mr. Spencer was inoculated for swine flu, he complained of headaches to his daughter, Debbi Templeton, over the breakfast table one morning, and she suggested that he see a doctor, but Mr. Spencer did not follow up.About two weeks after the inoculation he repeatedly complained to Debbi of his left arm being "dead" and tingling, and of leg cramps.He would make a fist with his hand, and alternately shook both legs, complaining of cramps.

Around Thanksgiving or Christmas of 1976, according to a stepdaughter, Sharon Chapman, Mr. Spencer began experiencing problems with aching and cramping of his legs and a numb feeling in his hands and arms.He complained he was cold.He rubbed his left hand and stamped his feet, mainly his left foot.He also began experiencing severe headaches.Debbi remembers her father reporting that one side of his face was numb, and he had a twitching.These symptoms went on for weeks until his wife convinced him to see the family doctor, Dr. Hayes, in February of 1977.Dr. Hayes' office records of February 25, 1977, indicate that Mr. Spencer came to his office with a complaint of numbness of the left side of his face of two weeks' duration.

After seeing Dr. Hayes, Mr. Spencer continued having difficulty with his legs and his arms and hands.In March of 1977, his wife noticed that while they were camping at Wallace State Park, he seemed weaker than usual and had to stop and rest several times while they were walking around a flat area in the park.Thereafter, he continued having numbness in his hands, arms, legs and feet, and his wife described how he would stamp his feet and shake his hands and flex his muscles and move his fingers to try to get the feeling back in them.His headaches also continued.He indicated to his wife that pain pills deadened the pain somewhat but that the headaches never left him and were constant.

According to a co-employee, Mr. Foster, in the spring of 1977, Mr. Spencer changed in personality, continued to complain of numbness in the head, a constant runny nose, and headaches.His stamina declined and he appeared jovial one minute, lethargic the next.According to Mr. Foster, Mr. Spencer uncharacteristically lost his enthusiasm and had no motivation.According to his son, Durl, Mr. Spencer was more tired in the fall of 1977, had persistent headaches, did not have good control of his limbs and would rub his head and shake his hands and legs as if they were asleep.His color appeared to have changed and he lost his normal agility.He complained to his son Charles that he had numbness in the fingers.At this time, he complained to his daughters of always being cold and he would unexpectedly drop off to sleep.

By Christmas of 1977, Mr. Spencer's condition remained unchanged.Despite the difficulty he was having, he continued to work.At Thanksgiving of 1977, his wife noticed that he got exceedingly tired.Between Christmas of 1977 and March of 1978, Mr. Spencer continued having numbness in his hands and arms, feet and legs.His headaches continued.By the end of March, his wife recalls that the palms of his hands and the tips of his fingers and the soles of his feet and his toes were completely numb.Mr. Spencer was feeling less and less well.On Thursday night, March 30, 1978, he came home from work feeling very badly.The palms of his hands and his fingers were dead and so were the soles of his feet and his toes.Nevertheless, he did not feel he could let down the other members of his bowling team, so he went bowling, but bowled very poorly.The next day, his arms had stiffened up and he was not at all well.His wife had been treating him for a cold for approximately a week at that time.That night, a Friday night, he again tried to go bowling with his league.He was barely able to roll the ball down the alley, couldn't move his arms normally, and came home quite concerned.He went to bed but was unable to sleep, and his wife recalls spending most of the night rubbing his legs and arms and trying to help him get some rest.He finally slept from 3:00 a.m. until 6:00 a.m. when he had to go to the bathroom.His wife was able to get him into the bathroom but then couldn't get him back to bed.She called two of her sons who lived nearby and they came and took their father to Spelman Hospital where he was admitted to the emergency room.

Upon his admission to the hospital, Mr. Spencer was extremely sick, and the diagnosis of Guillain-Barre Syndrome was made very quickly.The admitting doctors were not concerned with taking an extensive history concerning the details of the past months, but rather they were concerned with treating the very acutely ill patient.Mrs. Spencer remembers the doctor in the emergency room examining her husband and coming out very shortly to tell her that Mr. Spencer had Guillain-Barre Syndrome.When she indicated that she had never heard of it and did not know what he was talking about, the doctor told her that she could expect her husband to get a lot sicker before he got better.Inquiry was made, at apparently about that time, if Mr. Spencer had received the swine flu vaccine.¹

Upon admission, Mr. Spencer was without any deep tendon reflexes.Within days, he experienced respiratory failure and a tracheostomy was performed.Further evidence of autonomic dysfunction came in the form of tachycardia, and failure of bowel and bladder function.Because of the extent of his paralysis, Mr. Spencer was tubefed, catheterized, on a respirator, and basically unable to perform any of his bodily functions without assistance.After Mr. Spencer lapsed into a deep coma, he was transferred on April 6, 1978, to St. Lukes Hospital in Kansas City, Missouri.Mr. Spencer succumbed to cardiac respiratory arrest secondary to Guillain-Barre Syndrome and died on April 30, 1978.

The foregoing description is based on the Court's recollection of the testimony and review of the Debbi Templeton deposition.It is adapted from plaintiff's proposed findings...