I recently wrote about a case dismissing a lawsuit filed by parents who believe a vaccine was responsible for the death of their young son. Now, as a pharmaceutical liability attorney, I was interested to see another vaccine injury case. The plaintiff in Hibbard v. Secretary of Health and Human Services was Jennifer Hibbard, an adult who claimed a flu vaccine gave her a neurological disorder called dysautonomia. She pursued compensation through the federal Vaccine Act, a 1986 law that set up a special system for compensating people who believe they were hurt by a vaccine. The parties agreed that she had dysautonomia, but the Federal U.S. Circuit Court of Appeals upheld a special master’s finding that the disorder’s connection to the vaccine was not proven.
In May of 2003, Hibbard went to the emergency room after fainting. A neurological exam found no problems. In November of 2003, she got a flu shot. A week later, she began to feel tired, achy and nauseated. Her doctor suspected a sinus infection and prescribed antibioics, but they didn’t help. Over the next few years, she saw specialists including several neurologists, who narrowed her problem to dysautonomia, a malfunction of the automatic nervous system that affected her heart rate. In 2007, she petitioned for compensation under the Vaccine Act; her expert witness, a neurologist, testified that she likely had an autoimmune reaction to the flu shot that attacked her nervous system—an autonomic neuropathy that led to dysautonomia. In a two-day hearing, the opposing expert conceded the diagnosis but disagreed about causation. The special master ultimately ruled that there was insufficient evidence that she had autonomic neuropahy, and the Court of Federal Claims upheld that finding.
The Federal Circuit upheld, finding that Hibbard did not prove she had autonomic neuropathy. Though both sides agree that the dysautonomia diagnosis was correct, it said, the connection to autonomic neuropathy was not made strongly enough to overrule the special master’s fact-intensive findings. And because the autonomic neuropathy was a vital link in the chain of causation, the court said, it is irrelevant whether the special master weighed the autonomic neuropathy diagnosis more heavily than the connection to the vaccine. The theory of causation Hibbard advanced said the vaccine caused an autoimmune reaction that caused autonomic neuropathy, thus leading to the dysautonomia diagnosis. If the automatic neuropathy link was not proven, proving the connection to the vaccine wasn’t necessary in any case. Thus, the Federal Circuit upheld the denial of her claim. A dissent argued that the autonomic neuropathy finding was unsupported and that the government was required to present an alternative theory of causation.
I sympathize with the difficulties faced by this plaintiff. Many neurological injuries are tough to prove, because they’re usually invisible or easily mistaken for other conditions. A broken arm is hard to miss, but nerve damage manifests in many ways and, as this case shows, can be misdiagnosed repeatedly. The same is true of many other injuries I see in my work as a dangerous drug attorney. Emotional trauma, head injuries leading to personality changes and even chronic pain are difficult to prove because they can’t be photographed or objectively tested—but they are real to the people who live with them. Part of my job as a defective drug lawyer is to help plaintiffs make their strongest cases in court, so they can claim fair compensation for injuries caused by someone else’s bad decisions.


Carey, Danis & Lowe represents clients across the United States who have suffered a serious injury or lost a loved one because of a defective drug or a failure to give adequate warnings about a drug’s safety. To learn more or tell us your story, call today for a free compensation at 1-877-678-3400 or send us a message online.
Similar blog posts:
Ninth Circuit Affirms Dismissal of Vaccine Injury Lawsuit Involving Child’s Death – Holmes v. Merck
Federal Circuit Denies Damages to Woman Claiming Injuries From Vaccine – Lombardi v. Secretary of HHS
Court Rules Nurse May Testify Within Medical Specialty in Pharmaceutical Liability Cases – Williams v. Baxter Healthcare Corp. et al.