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.
Aрpeal 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 Wyеth 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 autоpsy 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 swinе 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 prеsented 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 оf 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,
Timely compliance with Sec. 2401(b) is a jurisdictional prerequisite. Fernandez v. United States,
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 discоvered, 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,
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,
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,
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 Agеncy,
III. When should Sanborn have reasonably discovered the cause of his wife's deаth?
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,
The question whether Sanborn should have reasonably discovered the cause of his wife's death will turn on two issues of fact. But because both issues are in disрute, we cannot say that "Plaintiff knew [or should have known] both the 'existence and the cause of [his] injury' at a time beyond the limitations bar." Gallick v. United States,
A. Press reports in the general community.
The government notes that reports appeаred in the medical literature in late 1976 and early 1977 connecting swine flu vaccinations with neurological problems, and that the vaccination program itself was suspended approximately one week after Mrs. Sanborn was inoculated. The suspension of the program was reported widely in the рress, including in the December 17 and 18, 1976 issues of the Idaho Statesman, a newspaper servicing Sanborn's community. The government argues that because of these press reports, Sanborn should have "reasonably known" of the cause of his wife's death.
There are two difficulties with holding Sanborn, as a matter of law, tо the alleged general community awareness. First, no record has yet been developed to indicate the extent to which Sanborn's immediate community in fact was made aware of the causal connection between the vaccine and GBS-like symptoms. Although Dr. Gabrielson, who treated Mrs. Sanborn whilе she was alive, was aware in early 1977 that the vaccination program had been suspended because of a possible connection to neurological disease, the county coroner himself was apparently sufficiently oblivious to the dangers of the vaccine that he did not advise Sаnborn, when directly asked in February 1977, of a possible link to Mrs. Sanborn's death. The record reflects a genuine dispute over a material fact: the extent of community knowledge during the period Sanborn could properly have brought suit. See Ballew v. A.H. Robins Co.,
Even if the facts indisputably demonstrate some community awareness of the dangers underlying the swine flu program, we have recently held that a series of press releases, accompanied by "Dear Doctor" letters to over 200,000 physicians, did not put a plaintiff who had suffered injuries arising out of her use of the Dalkon Shield intrauterine device on notice for purposes of the discovery rule. See Allen v. A.H. Robins,
B. The county coroner's assurances.
Sanborn avers that when he asked the county coroner whether the swine flu vaccine could have contributed to his wife's death, the coroner--who had not personally performed the autopsy--told him that any symptoms would have appeared immediately after the inoculation and would not have been delayed as long as they had been in Mrs. Sanborn's case. Furthermore, the coroner suggested that Mrs. Sanborn's long history of tranquilizer use, her weakened heart, and a possible viral infection led to her death. Sanborn argues that a "rеasonable person" would have been discouraged, as he was, from inquiring any further; the government contends that a reasonable person would have consulted other medical or legal personnel, particularly when the autopsy did not disclose the cause of death.
Several circuits have suggested that "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." Exnicious v. United States,
The government also argues that the coroner was never informed of Mrs. Sanborn's symptoms and thus could not have been expected to connect them with the vaccine. This contention merely underscores the existence of the issue. Whether 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 оne would naturally presume the coroner to possess in discussing a particular autopsy, is an issue that can only be resolved after additional fact-finding.2
It is disputable whether Sanborn should reasonably have discovered the causal connection between the vaccine and his wife's death. Because this issue is one of fact for the jury, Ballew,
IV. Conclusion
The Supreme Court in Kubrick and our own jurisprudence suggest that the medical malpractice discovery rule must govern Sanborn's FTCA wrongful death claim.
Under the discovery rule, the dispositive issue is whether Sanborn knew or should reasonably have discovered the cause of his wife's death within two years of filing his claim with the government. There is a factual dispute over the extent of general community awareness of the link between the swine flu vaccine and GBS. This community awareness may or may not be sufficient to charge Sanborn with knowledge of the causal connection. In addition, the county coroner's assurances that the inoculation did not cause Mrs. Sanborn's death, and that other causes may instead have been at work, raise an issue of material fact whether Sanborn should have reasonably discovered the cause of his wife's death within the limitations period.
REVERSED.
Notes
See alsо Note, The Fairness and Constitutionality of Statutes of Limitations for Toxic Tort Suits, 96 Harv.L.Rev. 1683, 1684-90 (1983)
The government also argues that because Dr. Gabrielson, who treated Mrs. Sanborn prior to her death, was aware of a possible link between GBS and neurological disease, Sanborn "should have" questioned Dr. Gabrielson, sincе he would then have learned the probable cause of his wife's death. This argument misconstrues the "should have reasonably known" standard, which looks not to the likelihood that a plaintiff would in fact have discovered the cause of his injury if he had only inquired, but instead focuses on whether the plaintiff could reasonably have been expected to make the inquiry in the first place