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To be entitled to a monetary recovery under the Swine Flu Act, a plaintiff must establish by the fair weight or preponderance of the evidence: (1) the nature of his or her illness; (2) a causal nexus with the swine flu vaccine; (3) a theory of liability against the government or program participant, i.e., strict liability, negligence, or breach of warranty; and (4) damages. However, under the terms of the final pre-trial order entered by the Multidistrict court, Plaintiffs who can establish that they contracted Guillain-Barre Syndrome after receipt of the swine flu vaccine need not establish a theory of liability; only causation and damages must then be proven.
Plaintiff Lucy McDonald instituted the present action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1976), and the National Swine Flu Immunization Program of 1976 (Swine Flu Act), formerly codified at 42 U.S.C. § 247b(j)-(l) (1976), seeking to recover compensatory damages for injuries allegedly suffered as a result of her inoculation with the swine influenza vaccine. According to the plaintiff, she was suffering from Guillain-Barre Syndrome (GBS) caused by the swine flu inoculation she received. Defendant contended that the plaintiff’s illness was not GBS, but Transverse Myelitis (TM), a disease of the spinal cord, which has no causal relationship to the swine flu vaccine.
Did the inoculation cause plaintiff’s disease, thereby entitling her to recover damages?
The court found that plaintiff was a healthy individual, with the exception of some insignificant problems, prior to her inoculation with the swine flu vaccine, and that approximately thirty days after the inoculation, she developed the disease she was now suffering from. The court noted that all of the medical witnesses confirmed that it has been medically determined that the swine flu vaccine can cause Guillain-Barre Syndrome. The plaintiff’s experts stated that it would be erroneous to rule out the diagnosis of GBS in the plaintiff’s case because of the involvement of the central nervous system. The court found that the plaintiff’s experts were more credible, more weighty and more believable than that of the defense. A reasonable reading of the evidence and the testimony in the present case led the court to concluded that plaintiff was entitled to recover damages for her condition.