Loge v. United State

662 F.2d 1268 (8th Cir. 1981)

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Nature of the Case

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Facts

In 1963, HEW licensed Lederle Laboratories to manufacture Orimune-a trivalent, live, oral poliovirus vaccine. The vaccine is composed of all three Sabin strains of live poliovirus corresponding to the three different types of polio (known as Types 1, 2, and 3), thus the designation 'trivalent.' Not only is the vaccine's recipient immunized from polio, but unimmunized persons who come into close contact with the recipient also are immunized through a shed virus which spreads from the recipient to the 'contact.' Because Sabin strains contain the live polio virus, there is a risk that either a recipient or a contact could develop polio. HEW promulgated regulations pertaining to the safety and potency of these strains which serve to protect susceptible persons from contracting the disease. A risk-free alternative was the Salk vaccine in which the virus is killed so that the recipient cannot contract polio nor can the recipient shed a live virus to unimmunized contacts. HEW promoted the use of risk-bearing vaccines because they are able to effect total immunization of the public through transmission of the shed virus with less than total inoculation. P's infant was vaccinated with Orimune. One-month later P was stricken with poliomyelitis, Type 2. She is now a paraplegic. P sued the United States and unknown employees of the Department of HEW. P alleged that D was negligent in licensing all spread virus vaccines including Orimune, without requiring the manufacturer to produce the required regulatory information and was negligent by licensing all live oral poliovirus vaccines without testing their safety for persons in close proximity to those inoculated. P pleaded that under Bivens v. Six Unknown Federal Narcotics Agents she had a cause of action for damages directly under the Constitution for deprivation of P's rights under the Fifth Amendment and her right of privacy. They claim that the government knowingly deprived P of these rights in pursuing a national policy to vaccinate everyone against polio, including persons such as P who did not voluntarily submit to the immunization program. The lower court then ruled that under the choice of law provisions that neither the District of Columbia (the place of the negligent omissions and acts) nor the law of Arkansas (the place of harmful impact) imposed a duty of care upon a person for activity similar to D's in this case. The case was dismissed for failure to state a claim. P appealed.