In Re Swine Flu Products Liability Litigatio

764 F.2d 637 (9th Cir. 1985)

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Nature of the Case

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Facts

P's wife was vaccinated under the National Swine Flu Immunization Program 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. P 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, P filed an administrative claim with the U.S. Public Health Service; he subsequently brought suit in federal district court. The district court dismissed P's claim in that it was barred by the FTCA's two-year statute of limitations. The court also found that even if the medical malpractice 'discovery rule' governed, P'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. P appealed.