A growing legacy of lawsuits from the federal government's swine flu vaccination debacle brought more than 50 lawyers from across the country to a federal courtroom here yesterday to begin a billion-dollar legal battle likely to employ hundreds of lawyers for several years.
They were the vanguard of a significant new offshoot of the nation's legal profession: lawyers representing thousands of Americans who allegedly suffered paralysis, pain and death from the shots the government wanted to give everyone in 1976 to stop an expected outbreak of swine flu.
It turned out that few swine flu cases were ever reported, but the flu shots themselves prompted widespread complaints about serious side effects and the vaccination program was finally suspended.
Those complaints spawned 1,400 claim totaling mor than $660 million that already have been filed against the government and thousands more are expected to be filed within the next year. Only two claims, to taling less than $100, have been paid and only 51 others have made their way into deferal court so far.
But the vave of litigation has begun. A new section of the Justrice Department already has been organized to organized to defend the government against the claims. A "steering committee" of 12 lawyers and a "liaison counsel" have been set up to represent the general interests of the claimants and their attorneys. And a new private legal publication, the Swine Flu Claim and Litigation, the Swine Flu Claim and Litigation Reporter has already attracted 100 lawyers paying $600 a year each to subscribe to it.
The specific purpose of yesterday's session in the courtroom of Judge Gehard A. Gesell was to begin laying the ground rules for pretrial proceedings "In Re Swine Flu Immunization Products Liability Litigation, Docket No. 330, Misc. No. 78-0040."
The attorneys who appeared in court yesterday either already have filed lawsuits against the government over the swine flu program, or expect to file in the future.
They spend most of the three-hour proceeding discussing such matters as the accessibility of government documents concerning the swine flu program, and agreeing among themselves on how they would cooperate in the pretrial stages.
The steering committee they selected includes attorneys from California to Vermont, with the Washington firm of Sutherland, Asbill and Brennan serving as the local clearing-house for swine flu litigation matters.
Many lawyers had their copies of the Swine Flue . . . Reporter, which is published by Andrews Publication Inc., of Edgemont, Pa., sdtarted last September and appears twice a month.
The Reporter's publisher, Leonard Andrews, said he specializes in special interest legal publications and that the $600 yearly cost of such bulletins saves attorneys "more than that in research time alone."
Since it began publication, the newsletter has reprinted administrative claims filed against the swine flu programs, all public court documents dconcerning the Justice Departement's handling of litigation, and detailed statistics relating to the swine flu claims.
The Reporter also included in one of its recent issues a profile of Judge Gesell-"bright, stern jurist," said the publication-and its publisher said the future issues will contain previously confidential government material about the swine flu vaccination program.
Gesell is handling the cases under a relatively rare federal judicial process known as "multidistrict litigation" in which, for the convenince of the parties and the judiciary, similar cases filed in federal courts across the country are merged before one judge for all or part of their duration.
The process is usually in such situations as airline crashes in which victims live in places other than where the crash occured, notionwide stockholder disputes and product liability cases. Other cases pending across the country that have received "multidistrict" treatment involve claims against intrauterine birth control devices and microwave oven design, for example.
In Gesell's case, it is unlikely he will ever try a swine flu incident case himself since each will be sent back to the district from whence it came. However, his rulings made during the pretrial stage will govern how all the swine flu area around the country will be handled.
Gesell, known for the swift manner in which he handles cases, warned the attorneys yesterday that he expects the case to move "promptly." He told them to use their "ingenuity and common sense" to move the cases along, and make it clear he expected full cooperation from both sides.
Justice Department attorney Jeffrey Axelrad said yesterday that 1,363 claims have been filed so far. Of those claims, 402 allege that they contracted Guillian-Barre paralysis as a result of the shots, he said. The program was halted when the first reports of those paralysis were made.
The Judicial Panel on Multidistrict Litigation said on Feb. 28 it was assigning the swine flu cases to Judge Gesell because all of the actions "involve substantial common questions of fact concerning the development, production, testing and administration of the swine flu vaccine."