Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1980)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1980)

Monte SANBORN, Plaintiff-Appellant,v.UNITED STATES of America; and Wyeth Laboratories,Defendants-Appellees.

No. 87-3881.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1988.Decided July 28, 1988.

Before EUGENE A. WRIGHT, BRUNETTI and TROTT, Circuit Judges.


MEMORANDUM* 

Monte Sanborn appeals the determination on remand that his claim for damages under the Swine Flu Act is time barred. See Sanborn v. United States, 660 F. Supp. 1129 (D. Idaho 1987). The trial court's findings were clearly erroneous. Reversed.

BACKGROUND

Edna Sanborn received a swine flu inoculation on December 12, 1976. The government suspended the immunization program four days later, having discovered a possible link between the vaccine and Guillian-Barre Syndrome (GBS), a rare neurological disease. Mrs. Sanborn died in early January 1977.

More than three years later, Mr. Sanborn filed an administrative claim against the United States, alleging that the swine flu vaccine caused Edna's death. When the government denied his claim he sued in federal court.1 

In 1984, the court granted summary judgment, dismissing Sanborn's claim as time-barred. This court reversed and remanded, directing the trial court to make explicit findings of two material facts. In re Swine Flu Litigation, 764 F.2d 637, 641, 642 (9th Cir. 1984). It is from the judgment after remand, and an award of costs, that Sanborn now timely appeals.

FACTS

Following Edna's death, the local chief coroner, Dr. Donndelinger, sent Deputy Coroner Charles McCarty to investigate the death and obtain Edna's medical history from her husband and from her treating physician, Dr. Gabrielson.

The autopsy failed to explain Edna's demise, listing her cause of death as "unknown." In the following weeks Mr. Sanborn twice asked the coroner whether the swine flu vaccine might be associated with his wife's death. According to the district court: "In those conversations, Monte Sanborn asked Dr. Donndelinger whether the Swine Flu vaccination could have caused Edna Sanborn's death. Dr. Donndelinger testified that he did not have a specific recollection of the conversation but he did recall discussing a possible correlation between the Swine Flu shot and Edna Sanborn's death." Sanborn v. United States, 660 F. Supp. at 1130 (emphasis added).2 

Sanborn testified that the coroner told him the incubation period was too long, that a more likely explanation of his wife's death was a combination of medications, weakened heart, and an unidentified virus, and that some deaths every year simply could not be explained. When asked, the coroner did not dispute that testimony. See supra note 2.

Sanborn testified further that he did not have reason to question the coroner's analysis until August 1979 when he read a magazine article describing a case where a Swine Flu vaccine recipient suffered injury that manifested itself more than twenty days after the date of inoculation. He testified that this was the first indication he had that the coroner's statement on the incubation period of GBS was erroneous.

In January 1980 Sanborn read newspaper articles about a Swine Flu vaccine lawsuit filed by a local couple. He communicated with those plaintiffs, and through them their attorneys, and filed his administrative claim that spring.

ANALYSIS

Sanborn's claim is governed by the statute of limitation in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b), requiring presentation of the tort claim "within two years after such claim accrues.... " Edna died January 5, 1977. Monte filed his claim on May 2, 1980.

When this court reversed and remanded the summary judgment, we held explicitly that " [t]he rationale of the medical malpractice discovery rule is fully applicable to Sanborn's wrongful death claim." 764 F.2d at 640. Sanborn's claim accrued only when he learned of "both the fact of injury and its cause.... " Id. (emphasis added). We ruled that "the government's statute of limitations defense ultimately turns on whether Sanborn failed to exercise due diligence." Id. The dispositive issue was when Sanborn should reasonably have discovered the cause of his wife's death. We ordered resolution of two associated issues of material fact.

We review the court's findings for clear error. Fed. R. Civ. P. 52(a).

[A] finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide the factual issues de novo. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985) (citations omitted). Upon thorough review of the entire record, we are left with the definite and firm conviction that a mistake has been committed. We discuss the two findings in turn.

GENERAL COMMUNITY AWARENESS:

The first issue to be decided on remand was "whether the general community awareness [of the connection between the vaccine and GBS-like symptoms] was sufficient to find that Sanborn should reasonably have known the cause of his wife's death." 764 F.2d at 641. With regard to that inquiry we noted expressly that " [e]ven if the facts indisputably demonstrate some community awareness of the dangers underlying the Swine Flu Program," that would not necessarily put Sanborn "on notice for purposes of the discovery rule." Id. (citing Allen v. A.H. Robins Co., 752 F.2d 1365, 1370-71 (9th Cir. 1985)).

The district court relied on several indicia of community knowledge: copies of articles in the local press, testimony of local physicians and public health personnel,3  and testimony of a Justice Department paralegal as to filings of Swine Flu claims in the area. On these facts it found "pervasive community knowledge that there was some link between the Swine Flu vaccine and GBS and various deaths," and ruled that Sanborn should reasonably have known the cause of his wife's death. We disagree.

If newspaper articles discussed some possible line between the Swine Flu vaccine and paralysis,4  many of them contained statements by federal health officials denying any cause for alarm or any conclusion that the vaccine caused the health problems. Several articles indicated that death had occurred in elderly patients, and that the association of vaccine and death might be mere coincidence.5  There was no evidence that the community linked symptoms like Edna Sanborn's to GBS and the vaccine.

The evidence adduced at trial demonstrated only that others, too, "inquire [d] about the correlation of the swine flu vaccine and Guillian Barre after learning of it through the media." It did not speak to others' understanding of the link between the vaccine and GBS. It established that 22 claims were filed, but failed to indicate whether they were filed solely on the basis of community knowledge or prompted by peculiar facts or knowledge.

The evidence of community knowledge revealed at best a tenuous connection between the vaccine and various deaths. It did not establish knowledge of a causal connection between the vaccine and symptoms experienced by Edna Sanborn. It was impermissible for the factfinder to draw from the limited evidence before him a "finding" that Sanborn should reasonably have discovered the cause of his wife's death or that he was on notice for purposes of the discovery rule, prior to May 2, 1978.

CORONER'S ASSURANCES:

The second issue to be decided on remand was " [w]hether Sanborn had reason to know that the coroner was ignorant of Mrs. Sanborn's physical condition and withheld discussion of her symptoms, or whether Sanborn merely relied on the knowledge which one would naturally presume the coroner to possess in discussing a particular autopsy." 764 F.2d at 642 (emphasis added).

The trial court ruled that "Sanborn's own negligence was responsible for the county coroner's assurances." It concluded that Sanborn "was unreasonable in failing to fully communicate his wife's symptoms to the county coroner. He was also unreasonable in simply accepting the county coroner's assurances. With the information he possessed in January 1977, Monte Sanborn should have been aware of his wife's injury and its probable cause."

That analysis denies Sanborn any benefit of the rule we cited with approval in his original appeal: "Where a claimant is given a 'credible explanation' of his condition not pointing to malpractice, he may not be found to have failed to exercise reasonable diligence because he did not earlier pursue his claim." Id. at 641 (citing, e.g., Exnicious v. United States, 563 F.2d 418, 421 (10th Cir. 1977)).

In making its finding regarding the coroner's assurances, the district court erred by focusing on what Sanborn through "negligence" failed to say, rather than whether he (1) knew of the coroner's ignorance of his wife's symptoms and (2) then withheld that information from him.

Sanborn testified that he did not understand the relevance of his wife's symptoms. All expert witnesses testified that a lay person could not have known the symptoms relevant to identification of GBS. No evidence was adduced to suggest that Sanborn withheld information that he knew the coroner lacked. The court itself termed Sanborn's failure to communicate all of his wife's symptoms "a mystery." 660 F. Supp. at 1132.

We conclude that the court erred in its analysis of Sanborn's reliance on the coroner's assurances. It focused on the fact that the coroner had an incomplete medical history, rather than on whether Sanborn, knowing of the coroner's ignorance, withheld important information. That focus was improper and the finding was clearly erroneous.

We REVERSE the judgment of dismissal and the judgment for costs and remand for trial.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The National Swine Flu Immunization Program of 1976, Pub. L. 94-380, 42 U.S.C. § 247b(k) (1976), established, among other things, the United States' liability for "personal injury or death arising out of the administration of the swine flu vaccine under the swine flu program" and provided for district court jurisdiction of such claims

 2

That account of the testimony is misleading. The coroner denied emphatically that any such "correlation" obtained

On cross-examination Dr. Donndelinger was asked about Sanborn's deposition testimony:

Q. Now, do you recall Monte Sanborn calling you and telling you that his wife had had a Swine Flu shot--around December 6, 1976?

A. Yes.

Q. And did you think, in your opinion, that a Swine Flu shot could be the cause of her death?

A. No.

* * *

A. ... I remember the Swine Flu shot coming up in this case. It would be with--in conversation with him--and I remember that I would--I'd consider it not--not connected.

* * *

A. I know Swine Flu--the question of--relationship or causal relationship between her death and a Swine Flu shot came up and I know I would respond to that as no.

Q. That it was not the cause of her death?

A. Yes, that's correct.

Transcript/Donndelinger-Cross at 54-55. Similarly, id. at 57-58 (emphasis added):

Q. Well I want to represent to you, testimony of Monte Sanborn from his deposition, And ask if you would agree that this conversation could have occurred, that is, a conversation between the two of you. Now, Monte Sanborn asked you, in the initial conversation, "could the Swine Flu shot have caused the death of my wife?" And your response was, "when did she have the shot?" And he said, "the first week of December." And your response was, "well, that's too long, the separation is too long in time. I don't think its connected, in my opinion Swine Flu shot didn't cause the death." Is that the kind of conversation that could well have occurred?

A. Yes.

Q. Okay. Could that--the essence of that conversation have been repeated in the second conversation after you had the results of the toxicology screens back?

A. Yes.

 3

The significant paragraph in each affidavit provided only that "several [or, a few] patients inquire [d] about the correlation of the swine flu vaccine and Guillian Barre after learning of it through the media", Ex. 3, p 4 (Affidavit of Dr. Reed) and Ex. 5, p 4 (Affidavit of Dr. Curran); or that " [health agencies] received numerous [or, several] inquiries from the general public and attorneys about the possible link between the swine flu vaccine and Guillian-Barre and requesting information on how to file a claim." Ex. 7, p 9 (Affidavit of Robert Medlin, Immunization Program Coordinator, Bureau of Preventive Medicine, Idaho Division of Health) and Ex. 8, p 9 (Affidavit of Patricia Herbel)

 4

Nothing in the evidence suggests that Sanborn should reasonably have equated the press clipping references to "paralysis" with Mrs. Sanborn's "difficulty reaching and grabbing things," with her [not] walking steady at all [so that eventually Sanborn] felt that [he] had to carry her out to the car, because she was unable to negotiate on her own power." Transcript/Sanborn-Direct at 13

Sanborn testified that when he read of "paralysis," he understood that term to refer to complete immobility, total loss of motor function in limbs. He testified that his wife's symptoms were less drastic. Dr. Gabrielson testified by deposition that he observed no "major neurological defects" when Mrs. Sanborn visited his office the day before her death. Ex. 16 at 116.

No evidence was adduced that others in the community had a better understanding of the term "paralysis" as used in the media reports of GBS. No one from the coroner's office ever asked Sanborn whether his wife had exhibited what now are styled important neurological symptoms--even though he twice asked whether the Swine Flu vaccination might not have caused her death.

 5

The trial court statement that these articles "discuss [ed] the correlation between the Swine Flu vaccine and GBS" is misleading. Those articles, Trial Exhibit 1, tended to stress federal officials' assurances that the reported deaths "were not related to the vaccine," that the decedents were elderly heart attack victims, that the "swine flu program is safe." The true "correlation" between the vaccine and GBS was learned only later