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Flu shot recipient can’t sue under Vaccine Act, rules Federal Circuit

Flu shot recipient can’t sue under Vaccine Act, rules Federal Circuit

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A Vaccine Act plaintiff failed to show by a preponderance of the evidence that a flu vaccination caused damage to her autonomic nerves, the Federal Circuit has ruled in affirming a special master’s determination that she was not entitled to compensation.

The plaintiff, a 41-year-old woman, got a flu shot in November 2003 and a week later felt tired, achy and nauseated. She later developed dizziness and weakness that continued for months. A neurologist she saw concluded that it was “certainly possible” she had developed dysautonomic neuropathy from the flu vaccination.

After a series of tests on the plaintiff’s autonomic nervous system – which keeps the body’s internal systems in balance – a specialist found the “it was unclear” whether autonomic dysfunction contributed to her symptoms. Another neurologist found that her symptoms were “suggestive” of autonomic neuropathy.

The plaintiff filed a claim under the Vaccine Act under the theory that the flu vaccine caused an autoimmune reaction that damaged her autonomic neuropathy.

A special master held a two-day hearing and concluded that the preponderance of the evidence showed that the plaintiff did not have autonomic neuropathy. The Court of Federal Claims agreed, and the Federal Circuit affirmed.

“[The plaintiff’s] theory of causation is that the vaccine provoked her immune system to attack her autonomic nerves, causing damage to those nerves that manifested as dysautonomia. … “Therefore, even assuming the medical plausibility of [her] theory of causation – that the vaccine triggered an immune response that damaged her autonomic nerves – her failure to show that she had autonomic neuropathy [is] fatal to her case,” the court said.

A dissenting judge complained that the majority opinion was not using the correct burden-shifting framework.

U.S. Court of Appeals, Federal Circuit. Hibbard v. HHS, No.2012-5007. Nov. 2, 2012.

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