Glynn Riсhard DAVIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 77-1942
United States Court of Appeals, Ninth Circuit
April 20, 1981
Rehearing and Rehearing In Banc Denied May 28, 1981
Argued and Submitted Dec. 12, 1979.
Moreover, we explicitly declined to decide “the extent to which, if the EPA relies on water quality evidence in measuring the benefits of requiring a particular technology for a category or subcategory of point sоurces, it must also consider water quality evidence at particular sites in passing on applications for variances.” 615 F.2d at 807 n.9. Here, EPA did not rely on water quality evidence and thus the question posed but not answered in Pacific Fisheries need not be answered here. We also note, as we did there, that a fundamental purpose of the Act was to free EPA from the incubus “of proving in every case the application of an effluent limitation at a specific site will improve water quality at that site.” 615 F.2d at 807 n.8. Thus, even if EPA could base industry guidelines to a limited degree on local water quality considerations, if we were to permit companies to seek variances from these guidelines on the basis of water quality at particular sites, we would be returning water pollution control to its ineffective pre-1972 status in defiance of Congress‘s desire “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
In short, our decision in Pacific Fisheries has not suddenly rehabilitated the discredited approach of water quality based рollution control. The Administrator‘s holding that the Act does not permit either industry-wide guidelines or variances to be based solely or in large part on local water quality considerations is not inconsistent with our Pacific Fisheries opinion.
Finally, the Companies argue on the basis of Costle v. Pacific Legal Foundation, 1980, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329, that if any material issues of fact were present further hearings should have been provided before the Administrator decided. However, the Companies do not contend that there were any such issues, and the Administrator accepted all of the State Board‘s factfindings for purposes of his opinion. We need not consider the merits of the Company‘s claim that a hearing would be required in different circumstances.
The decision of the Administrator is affirmed.
William Kanter, Civil Division, Washington, D.C., for defendant-appellee.
Before MERRILL, TANG and SCHROEDER, Circuit Judges.
MERRILL, Circuit Judge:
Background
The Sabin Type III oral polio vaccine was administered to appellant Davis as part of a nationwide campaign initiated by the government of the United States to eradicate paralytic poliomyelitis (polio) in this country. Mass immunization centers werе established in cooperation with state and local medical authorities, and the campaign was widely publicized.1 The Division of Biologic Standards (DBS) of the National Institutes of Health, a part of the United States Department of Health, Education and Welfare, was charged with testing and licensing manufacture of the vaccine, pursuant to
The vaccine was administered to appellant Davis at one of these centers in March, 1963. Within thirty days, appellant was paralyzed from the waist down and exhibited other symptoms of polio. Davis brought suit against the manufacturer of the drug, Wyeth Laboratories, Inc., in 1964.
In the course of that litigation, in October, 1965, defendant Wyeth Laboratories, Inc., noticed the deposition of Dr. Ruth Kirschstein, the chief of the pathology section of the laboratory of Viral Immunology, DBS, accompanied by a subpoena duces tecum ordering her to bring to the deposition, inter alia, all records of DBS relating to lot No. 03503 of the Sabin Type III oral polio vaccine. The vаccine ingested by Davis was from this lot. Appellant‘s attorney was present at this deposition. Dr. Kirschstein brought with her records documenting the results of a single neurovirulence test;2
the results fell within acceptable limits.3
Appellant alleges that not until 1973 did he learn from an attorney representing a plaintiff in another suit4 that DBS had conducted another neurovirulence test on lot Nо. 03503, and that the results of that test did not fall within the acceptable range.5 In April, 1973, appellant filed a notice of claim under the Federal Tort Claims Act (FTCA)
The district court granted summary judgment for the United States, holding that Davis’ suit was barred by the two-year statute of limitations which applies to all actions brought under the FTCA.
Davis appeals, contending that either: (1) the cause of action did not accrue until he learned, in 1973, of the facts indicating the government‘s responsibility for his paralysis; or (2) the statute was tolled by the government‘s fraudulent concealment of the results of the second test.
We affirm the district court‘s grant of summary judgment.
Accrual of the Action
A two-year statute of limitations applies to all suits brought under the FTCA.
The general rule in tort law is that the claim accrues at the time of the plaintiff‘s injury. In the area of medical malpractice this has been felt to be unduly harsh in thosе cases where the fact of injury remains undisclosed. The rule accordingly has widely been modified to provide that a claim does not accrue until the injury has manifested itself. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed.2d 1282 (1949). The Restatement (Second) of Torts § 899, Comment e, quoted in United States v. Kubrick, supra, 444 U.S. at 120 n.7, 100 S.Ct. at 358 n.7, reflects this change:
“In a wave of recent decisions [it has been held] that the statute must be construed as not intended to start tо run until the plaintiff has in fact discovered the fact that he has suffered injury or by the exercise of reasonable diligence should have discovered it.”
“[We] are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. [Citations omitted]. We should regard the plea of limitations as a ‘meritorious defense, in itself serving a public interest.’ [Citations omitted].”
The Court then made it plain that it was not prepared to go further than the government concession. It refused to defer accrual until fault as well as injury and cause had been discovered; it would not hold that “the statute is not to run until the plaintiff is led to suspect negligence.” Id. at 124, 100 S.Ct. at 124.
With knowledge of the fact of injury and its cause the malpractice plaintiff is on the same footing as any negligence plaintiff. The burden is then on plaintiff to ascertain the existence and source of fault within the statutory period. It follows that diligence or lack оf diligence in these efforts is irrelevant. In the absence of fraudulent concealment it is plaintiff‘s burden, within the statutory period, to determine whether and whom to sue. Kubrick makes this plain. Once a plaintiff knows that harm has been done to him, he must, the Court states, “determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more thаn two years have passed from the plaintiff‘s discovery of the relevant facts about injury.” Id.
In the present case, appellant was aware in April, 1963, that he had been injured and that the Sabin vaccine was the likely cause of his injury.9 With knowledge of the fact of injury and its cause, appellant was at the time of his injury placed on the same footing as other negligence plaintiffs. The claim, then, accrued at the time of injury and the statute started to run. It was up to him to “determine within the period of limitations whether to sue or not.” Id.
We conclude that in the absence of fraudulent concealment, appellant‘s claim against the United States was barred by limitations.
Fraudulent Concealment
Apрellant contends that even if the cause of action accrued prior to 1973, the statute was tolled by the government‘s fraudulent concealment of the results of the second test during the October, 1965, deposition of Dr. Kirschstein. This argument fails, since the two-year period had already elapsed.
We conclude that appellant‘s action was barred by the applicable statute of limitations. The decision of the district court granting summary judgment is affirmed.
TANG, Circuit Judge, dissenting.
I respectfully dissent. Quite simply, the record fails to support the majority‘s assertion that “appellant was aware in April 1963, that the Sabin vaccine was the likely cause of Davis’ injury.” First, although Davis contacted polio in April 1963, he was hospitalized until October 25, 1963, and it is unclear when he had sufficiently recovered to be aware of anything. At best, the record indicates that Davis was functioning again in “аpproximately June, 1963” when he began to write letters inquiring about his disease. Clerk‘s Transcript Vol. IA, at 243.
More importantly, although Davis may have wondered in the summer of 1962 if the vaccine had induced his disease, “questioning” and a “knowing” causation cannot be equated. The Kubrick court plainly held that the statute begins to run only when a plaintiff is “armed with the facts about the harm done to him . . .” 444 U.S. at 123, 100 S.Ct. at 360. In other words, the plaintiff must be in “possession of the critical facts that he has been hurt and who has inflicted the injury” because “the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.” Id. at 122, 100 S.Ct. at 359 (emphasis added). In Kubrick, the plaintiff had surgery in April and developed a hearing lоss in mid-June. In succeeding months, he consulted several specialists who diagnosed his malady as “bilateral nerve disease“. Finally, in January (some 7 months after injury), a doctor told Kubrick that it was “highly possible” that a treatment administered after surgery caused his deafness. At that point, the court held, Kubrick knew of his injury and its cause and the statute began to run.
Here, Davis may have suspected that the vaccine caused his disease (just as Kubrick may have suspected his recent surgery was in some way connected), but apparently no one, much less a doctor, would even suggest a “high possibility” that the two events were causally linked. To the contrary, all authorities consulted apparently assured Dаvis that oral Sabin vaccine could not be proved to cause the disease. For example, sometime in October, 1963, still searching for the cause of his disease, Davis wrote to the Washington State Department of Health. In recounting his story, he stated:
During the last six months I have had around 20 Drs. check me and everyone of them have sаid I was paralyzed, which I was just a little bit aware of. Not one of them would say a damn thing or admit it could have been due to the cube that was the cause of my illness . . . [sic]
Clerk‘s Transcript, Vol. IA, at 286.
Consistent with this description, on October 25, 1963, Davis was discharged with a diagnosis of paralytic poliomyelitis “due to undetermined cause“. Id. at 241. Interestingly, in fact, the Idaho State epidemiologist refused to report Davis’ case as poliomyelitis, and, in the Fall of 1964 was still diagnosing Davis’ disease as “lower neuron disease with paralysis—etiology unknown“. Id. at 245.
Moreover, the scientists to whom Davis wrote, and the articles he read, failed to suggest a causal connection between the
The record available to me, then, suggests that Davis was still struggling to determine the cause of his injury by the critical date in October 1963, and well beyond. In any event, at the least the question when Davis knew (1) of his injury (paralysis) and (2) its cause (the vaccine) should be a factual determination for the jury, and I would reverse the premature grant of summary judgment. Such a result is justified since the Government, as the moving party, has failed to carry its burden of demonstrating the аbsence of a genuine issue of material fact. See also Marshall v. Kimberly-Clark Corp., 625 F.2d 1300, 1302 (5th Cir. 1980) (“A dispute over the facts surrounding the date the statute of limitations began ‘would alone warrant denial of the motion for summary judgment.’ “); see generally Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100, 103 (9th Cir. 1979).
In sum, I agree that the majority properly states the Kubrick rule. On this record, however, I fail to see how it can affirm the summary judgment.