Glynn Richard Davis v. United States

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 Were 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 42 C.F.R. § 73.110 et seq.

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…

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 “approximately 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…

642 F.2d 328 Glynn Richard DAVIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 77-1942. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 12, 1979. Decided April 20, 1981. Rehearing and Rehearing In Banc Denied May 28, 1981. Blaine Evans, Boise, Idaho, and Avrm G. Alder, Freedman, Borowsky & Lorry, Philadelphia, Pa., for plaintiff-appellant. William Kanter, Civil Division, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Idaho. Before MERRILL, TANG and SCHROEDER, Circuit Judges. MERRILL, Circuit Judge: Background 1 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 were 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…