Swine Flu Products Liability Litigation, In re

• Decision Date: 25 June 1985
• Docket Number: No. 84-4082,84-4082
• Parties: In re SWINE FLU PRODUCTS LIABILITY LITIGATION. Monte SANBORN, Plaintiff-Appellant, v. UNITED STATES of America; and Wyeth Laboratories, Inc., a New York corporation doing business in Idaho, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 637

764 F.2d 637

In re SWINE FLU PRODUCTS LIABILITY LITIGATION Monte SANBORN, Plaintiff-Appellant, v. UNITED STATES of America; and Wyeth Laboratories, Inc., a New York corporation doing business in Idaho Defendants-Appellees.

No. 84-4082.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1985.

Decided June 25, 1985.

Randolph E. Farber, Boise, Idaho, for plaintiff-appellant.

Cathy R. Silak, Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before HUG, FARRIS, and BOOCHEVER, Circuit Judges.

FARRIS, Circuit Judge:

Monte Sanborn appeals the grant of summary judgment in the District Court of Idaho, Callister, J., in which the district court found that Sanborn's wrongful death claim was time-barred. Sanborn had brought a Federal Tort Claims Act wrongful death and survival action against the United States and Wyeth Laboratories, the administrator and the manufacturer of the swine flu vaccine which allegedly resulted in the death of Sanborn's wife. See 28 U.S.C. Sec. 1346(b) and Sec. 2671. The district court dismissed both claims as time-barred; Sanborn appeals only the wrongful death claim.

Sanborn's wife Edna was vaccinated under the National Swine Flu Immunization Program in Idaho on or about December 12, 1976. The United States suspended the immunization program on December 16, 1976, after reports in the medical literature indicated a link between the vaccine and Guillain-Barre Syndrome, a rare neurological disease. Mrs. Sanborn died on January 4, 1977; an autopsy did not reveal the cause of death.

Apart from a single post-autopsy consultation with Dr. Donndelinger, the county coroner who supervised the autopsy, Sanborn took no steps to discover the cause of his wife's death until August 1979, when he then read a magazine article describing a link between the swine flu vaccination and GBS. In January 1980, he read a second article in his local newspaper describing a suit brought by a woman who had allegedly contracted GBS after receiving the swine flu vaccine. On May 2, 1980, Sanborn filed an administrative claim with the U.S. Public Health Service; he subsequently brought suit in federal district court.

The district court dismissed Sanborn's claim on two grounds. The court held that a FTCA wrongful death claim "accrues" on the date of death; Sanborn's failure to bring his claim within two years of January 4, 1977 meant that it was barred by the FTCA's two-year statute of limitations. See 28 U.S.C. Sec. 2401(b) ("A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.") Alternatively, the court found that even if the medical malpractice "discovery rule" governed, Sanborn's claim was barred for failure to bring suit within two years of the time that he knew, or in the exercise of reasonable diligence should have known, of his wife's injuries and their cause.

Sanborn timely appeals; we have jurisdiction under 28 U.S.C. Sec. 1291.

I. Standard of review.

The district court's grant of summary judgment, based on a finding that Sanborn's claim was barred by 28 U.S.C. Sec. 2401(b), must be reviewed de novo. Raddatz v. United States, 750 F.2d 791, 795 (9th Cir.1984). "[W]here the issue of limitations involves determinations [of when a claim begins to accrue], summary judgment cannot be granted unless the evidence is so clear that there is no genuine factual issue...." Lundy v. Union Carbide Corp., 695 F.2d 394, 397-98 (9th Cir.1982) (quoting Williams v. Borden, Inc., 637 F.2d 731, 738 (10th Cir.1980)).

Timely compliance with Sec. 2401(b) is a jurisdictional prerequisite. Fernandez v. United States, 673 F.2d 269, 271 (9th Cir.1982); Blain v. United States, 552 F.2d 289, 291 (9th Cir.1977). Federal rather than state law controls when the statute of limitations accrues for a personal injury action brought under the Federal Tort Claims Act. See, e.g., Poindexter v. United States, 647 F.2d 34, 36 (9th Cir.1981).

II. The applicable accrual rule for Sanborn's wrongful death claim.

We first decide whether Sanborn's claim "accrued" 1) at the time of his wife's death, or 2) at the time when he discovered, or in the exercise of reasonable diligence should have discovered, both the injury and the cause of his wife's death. There is general agreement that a medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes. United States v. Kubrick, 444 U.S. 111, 120 n. 7, 100 S.Ct. 352, 358 n. 7, 62 L.Ed.2d 259 (1979) (citation of cases); Waits v. United States, 611 F.2d 550, 552 (5th Cir.1980); Kossick v. United States, 330 F.2d 933 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); Quinton v. United States, 304 F.2d 234 (5th Cir.1962). The Circuits are, however, split on whether the medical malpractice discovery rule should be extended to wrongful death claims under the FTCA. Compare Garrett v. United States, 640 F.2d 24, 26 (6th Cir.1981), and Young v. United States, 184 F.2d 587, 588 (D.C.Cir.1950), and Gallick v. United States, 542 F.Supp. 188, 191 (M.D.Pa.1982) (swine flu wrongful death claim accrues at death), and Wolfenbarger v. United States, 470 F.Supp. 943 (E.D.Tenn.1979), and Pringle v. United States, 419 F.Supp. 289, 291 (D.S.C.1976), with Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982) (medical malpractice discovery rule appropriate in wrongful death case where plaintiff faces comparable problems in discerning fact and cause of injuries), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983), and Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); see also McGowan v. University of Scranton, 759 F.2d 287, 297 (3d Cir.1985) ("the compensatory goals of the tort system--the compensation of innocent victims and the deterrence of tortious conduct--are better served by applying the discovery rule in both [personal injury and survival actions]"); see generally Annot., Statute of Limitations Under Federal Tort Claims Act, 29 ALR Fed. 482 at Sec. 7 (1976 & 1984 Supp.) (discussing split in circuits).

We have never explicitly held that the discovery rule applies to a wrongful death action under the FTCA. However, we have noted that the discovery rule applies "in certain cases, usually involving medical malpractice or hidden injuries," and have performed a discovery rule analysis for a FTCA wrongful death claim. See Dyniewicz v. United States, 742 F.2d 484, 486-87 (9th Cir.1984). Furthermore, in "a wave of recent decisions" the courts have applied the discovery rule in non-FTCA claims to medical malpractice-based suits. See Restatement (Second) of Torts Sec. 899, Comment e, at 445 (1979), quoted in Kubrick, 444 U.S. at 121 n. 7, 100 S.Ct. at 359 n. 7. And in the only Supreme Court decision in the area, the Court has held that a medical malpractice claim brought under the FTCA accrues when the plaintiff learns or should reasonably have learned of both the injury and the cause of his affliction. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259; see also Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (applying discovery rule to claim under Federal Employers' Liability Act).

In all of these cases applying the discovery rule, the traditional tort rule that a claim accrues at the time of injury has been supplanted because "the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician." Kubrick, 444 U.S. at 120 n. 7, 100 S.Ct. at 358 n. 7 (citation omitted); see Dyniewicz, 742 F.2d at 486; Barrett, 689 F.2d at 327; Davis v. United States, 642 F.2d 328, 330-31 (9th Cir.1981); Stoleson, 629 F.2d at 1269; Steele v. United States, 599 F.2d 823, 828 (7th Cir.1979). Joining the general trend toward applying the discovery rule in latent disease cases, these courts have recognized that a plaintiff who is "blamelessly ignorant of the existence or cause of his injury should be accorded the benefits of the more liberal accrual standard," Barrett, 689 F.2d at 327, since it is not until he learns of both the fact of injury and its cause that the malpractice plaintiff falls "on the same footing as any negligence plaintiff." Davis, 642 F.2d at 331; see also Kubrick, 444 U.S. at 124, 100 S.Ct. at 360.

The rationale of the medical malpractice discovery rule is fully applicable to Sanborn's wrongful death claim. On the date of Mrs. Sanborn's death the medical and general communities were still ascertaining whether a GBS victim even had any rights against the manufacturer and administrator of the swine flu vaccine. We do not ignore the traditional concerns that a claim be time-barred when "evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). But under these facts, fundamental fairness concerns must prevail. See Urie v. Thompson, 337 U.S. at 169-70, 69 S.Ct. at 1024-25. ¹ We follow the suggestion of Kubrick and Dyniewicz, and apply the medical malpractice discovery rule to Sanborn's FTCA wrongful death claim.

III. When should Sanborn have reasonably discovered the cause of his wife's death?

The dispositive issue becomes whether Sanborn knew or should have reasonably discovered the cause of his wife's death prior to May 2, 1978--two years before he actually filed an administrative claim with the government. See 28 U.S.C. Sec. 2401(b). "The 'cause' is known when the immediate physical cause of the injury is discovered." Dyniewicz, 742 F.2d at 486 (citing Davis, 642 F.2d at 331). Because there is no evidence that Sanborn actually knew of the cause, the government's statute of limitations defense...