VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00526
Package ID: USCOURTS-cofc-1_13-vv-00526
Petitioner: J.R.S.
Filed: 
Decided: 2018-02-26
Vaccine: hepatitis B; rotavirus; DTaP; Hib; IPV; pneumococcal conjugate
Vaccination date: 2011-07-25
Condition: death allegedly from posterior reversible encephalopathy syndrome (PRES) following multiple vaccines
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Ryan L. Swick and Mary M. Swick, as legal representatives and parents of their deceased minor child, J.R.S., filed a petition under the National Vaccine Injury Compensation Program. J.R.S. was born on May 14, 2011, after 36 weeks and 3 days of gestation. He experienced brief breathing difficulties requiring intubation for less than 24 hours after birth and had some early feeding difficulties, but gained weight. On July 25, 2011, at approximately ten weeks old, J.R.S. received the hepatitis B, rotavirus, diphtheria-tetanus-acellular pertussis (DTaP), Haemophilus influenzae type b (Hib), inactivated poliovirus (IPV), and pneumococcal conjugate vaccines during a well-child visit. Concerns at this visit included constipation, which was being managed with glycerin suppositories, and daily early-morning crying. Between the vaccination date and his death, J.R.S. continued to experience episodes of constipation and fussiness. In early August 2011, he vomited a large amount on one occasion. In the days preceding his death, his mother, father, and two older siblings were ill with colds. On the evening of August 10, 2011, J.R.S. began coughing, which woke him from sleep. The evidence was inconsistent regarding his sleeping position, but he was found in the prone position with a blanket covering his head. His mother found him warm, sweaty, pale, limp, and still. She initiated CPR and called 911. Emergency medical technicians arrived around 10:00 a.m. on August 11, 2011, found no signs of life, transported him to a local hospital, and he was pronounced dead at 10:39 a.m. that day. An autopsy was performed by Deputy State Medical Examiner Dr. Dennis F. Klein. A brain specimen was sent to neuropathologist Dr. Patricia A. Kirby, who reported congestion and focal perivascular hemorrhages in the pons, congested basal meninges with smear subarachnoid hemorrhages, and a persistent but involuting external granular layer in the cerebral cortex. She found no acute or remote hypoxic-ischemic neuronal injury, no cortical lamination anomaly, and white matter within normal limits. Dr. Kirby concluded that the brain examination did not reveal a central nervous system cause of death and that the findings were consistent with an asphyxial death. Dr. Klein concluded the cause of death was sudden unexplained infant death, and due to the circumstances of being found prone with a blanket covering his head and the brain findings consistent with asphyxia, he ruled the manner of death undetermined. The petitioners' expert, neurologist Dr. Walter E. Kozachuk, proposed that J.R.S. died from posterior reversible encephalopathy syndrome (PRES) caused by the vaccinations and argued against a SIDS diagnosis. He later suggested additional autopsy studies and consultation with other specialists but these were not pursued. The respondent relied on Dr. Michael H. Kohrman, a board-certified pediatric neurologist, who disputed the PRES diagnosis, stated the autopsy was consistent with asphyxia or SIDS, and found no evidence linking the death to the vaccines. Special Master Christian J. Moran denied compensation on February 26, 2018. He found Dr. Kohrman's credentials stronger than Dr. Kozachuk's, and noted that neither expert had specialized neuropathology or immunology expertise. The Special Master also considered a Maryland disciplinary reprimand of Dr. Kozachuk, noting his failure to disclose it in a later report, but concluded this did not alter the outcome as the primary issue was the unreliability of the PRES diagnosis. The Special Master found that J.R.S.'s fussiness was more likely due to constipation, that a single vomiting episode was insufficient to support a PRES diagnosis, and that the petitioners failed to persuasively challenge the neuropathologist's autopsy conclusions. Because the petitioners failed to prove J.R.S. had PRES, the Special Master did not reach the Althen causation analysis. No compensation was awarded. Petitioners were represented by Richard H. Moeller of Berenstein, Moore, Heffernan, Moeller & Johnson, L.L.P. Respondent was represented by Ryan D. Pyles of the United States Department of Justice.

Theory of causation field:
Petitioners alleged that the hepatitis B, rotavirus, DTaP, Hib, IPV, and pneumococcal conjugate vaccines administered on July 25, 2011, to J.R.S., then approximately 10 weeks old, caused his death on August 11, 2011, from posterior reversible encephalopathy syndrome (PRES). The Special Master denied compensation, finding that petitioners failed to prove J.R.S. suffered from PRES. The Special Master noted that petitioners' expert, Dr. Walter E. Kozachuk (neurology), proposed the PRES diagnosis and argued against SIDS, but questioned his qualifications in immunology and pathology, and noted his failure to disclose a Maryland disciplinary reprimand. Respondent's expert, Dr. Michael H. Kohrman (pediatric neurology), disputed the PRES diagnosis and vaccine causation. The Special Master found Dr. Kohrman's credentials stronger and found Dr. Kozachuk's PRES diagnosis unsupported by the evidence, citing J.R.S.'s fussiness as more likely constipation and a single vomiting episode as insufficient. The Special Master also found the autopsy findings, as interpreted by neuropathologist Dr. Patricia A. Kirby, were not indicative of PRES and were consistent with asphyxia. Because the injury (PRES) was not established, the Special Master did not conduct an Althen causation analysis. Decision date: February 26, 2018. Petitioners' attorney: Richard H. Moeller. Respondent's attorney: Ryan D. Pyles.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_13-vv-00526-0
Date issued/filed: 2016-01-29
Pages: 16
Docket text: PUBLIC ORDER/RULING (Originally filed: 01/07/2016) regarding 50 Findings of Fact & Conclusions of Law. Signed by Special Master Christian J. Moran. (SP) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00526-UNJ Document 53 Filed 01/29/16 Page 1 of 16
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
RYAN L. SWICK and MARY M. SWICK, *
legal representatives and parents of their * No. 13-526V
deceased minor child, J.R.S., * Special Master
* Christian J. Moran
Petitioners, *
* Filed: January 7, 2016
*
v. * Findings of fact; onset
*
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard H. Moeller, Berenstein, Moore, Heffernan, Moeller & Johnson, L.L.P.,
Sioux City, IA, for petitioners;
Ryan Daniel Pyles, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED RULING FINDING FACTS1
On July 29, 2013, Ryan and Mary Swick filed a petition on behalf of their
deceased son, J.R.S., under the National Vaccine Injury Compensation Program
(the “Vaccine Program”), 42 U.S.C. § 300aa-10 through 34 (2012). This ruling is
focused on resolving inconsistent factual details surrounding J.R.S.’s death on
August 11, 2011. When special masters are confronted with discrepancies among
medical records and affidavits, they are encouraged to hold a hearing to evaluate
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
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the testimony of the affiants. See Campbell v. Sec’y of Health & Human Servs.,
69 Fed. Cl. 775, 779-80 (2006). This has occurred.
Procedural History
On July 25, 2011, J.R.S. received the hepatitis B, rotavirus, diphtheria-
tetanus-acellular pertussis (“DTaP”), haemophilus influenzae type b, inactivated
poliovirus (IPV), and pneumococcal conjugate vaccines. Pet. ¶ 5. Mr. and Mrs.
Swick (“the Swicks” or “petitioners”) allege a vaccination, or combination of
vaccinations, caused J.R.S.’s death a month later. Id. ¶¶ 21, 23. To support their
claim for compensation, petitioners filed medical records (exhibits 1-6, 8-10) and
affidavits (exhibits 7, 15).
In addition to submitting the medical records and affidavits, petitioners were
ordered to file an expert report outlining the basis of their theory. Neurologist Dr.
Walter Kozachuck’s first report opined that J.R.S. died as a result of posterior
reversible encephalopathy syndrome, which can begin soon after vaccination.
Exhibit 11 at 12. The Secretary filed her Rule 4 report shortly after Dr.
Kozachuck’s report, and concluded there was insufficient evidence to prove
petitioners are entitled to compensation. Resp’t’s Rep. at 10. With her report, the
respondent submitted blog posts by Mrs. Swick dated April 26, 2012 (updated
April 27, 2012) and February 20, 2012. Exhibit A; exhibit B.
The case was then transferred to the undersigned. Order, filed June 5, 2014.
Following the transfer, Dr. Kozachuck authored a supplemental expert report in
response to the Secretary’s Rule 4 report. This report was filed on August 19,
2014. The supplemental report concluded that additional autopsy studies are
required to rule out sudden infant death syndrome (SIDS) as a cause of death and
establish a more certain cause of death. See exhibit 13 at 3.
After reviewing the filings in the case, the undersigned determined that there
were factual discrepancies concerning the time period from J.R.S.’s vaccination
through his death. Specifically, differences exist between medical records,
affidavits, blog posts, and manuscripts regarding J.R.S.’s temperament, cough,
vomiting, and C-Phen intake, as well as what transpired the morning of J.R.S.’s
death, and whether anyone else was ill in the Swicks’ home around the time J.R.S
died.
On October 30, 2014, a fact hearing was held to address factual
discrepancies in the record by evaluating the testimony of the affiants. Five people
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testified. The undersigned has considered their testimony as well as the
documentary evidence.
Following the hearing, petitioners filed proposed findings of fact on
December 22, 2014, which outline the chronology of events leading to J.R.S.’s
death. On January 20, 2015, respondent submitted her response to petitioners’
proposed findings of fact. The Secretary agreed with, or did not dispute, many of
petitioners’ proposed facts. She did, however, object to certain proposed facts, in
particular challenging the proposed timeline for J.R.S.’s symptom onset, and
whether he was found with a blanket over his head, which affects whether
asphyxia could be ruled out as a cause of death. See Resp’t’s Resp. to Pet’rs’
Proposed Findings of Fact at ¶¶ 26-28, 36-40, 47. The facts still in dispute are the
focus of the analysis below.
Standard for Finding Facts
Petitioners are required to establish their case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C. §
300aa–11(c)(2). Medical records created contemporaneously with the events they
describe are presumed to be accurate. Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras, in which the petitioners
asserted that their daughter, Nicole, began having seizures within one day of
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receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).
Decisions by judges of the Court of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
The presumption that contemporaneously-created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a symptom first
appeared despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that contemporaneous written records are accurate,
testimony is required to be “consistent, clear, cogent, and compelling.” Blutstein
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v. Sec’y of Health & Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed.
Cl. Spec. Mstr. June 30, 1998).
Special masters will consider various explanations for inconsistencies
between contemporaneously created medical records and later given testimony.
The Court of Federal Claims listed four such explanations. Inconsistencies can be
explained by: (1) a person’s failure to recount to the medical professional
everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported to her or him; (3) a person’s
faulty recollection of the events when presenting testimony; or (4) a person’s
purposeful recounting of symptoms that did not exist. La Londe v. Sec’y Health &
Human Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013), aff’d, 746 F.3d 1334 (Fed.
Cir. 2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously-written medical records to be more probative than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.
1992).
The relative strength or weakness of the testimony of a fact witness affects
whether this testimony is more probative than medical records. An assessment of a
fact witness’s credibility may involve consideration of the person’s demeanor
while testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).
These criteria are considered in the analysis below.
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Summary of Undisputed Facts
The respondent does not dispute many of the underlying facts proposed by
petitioners. The parties do not dispute the dates of J.R.S.’s birth (May 14, 2011),
vaccinations (July 25, 2011), or date of death (August 11, 2011). They also do not
dispute the location of the Swicks’ home, the Swicks’ education, the history of the
Swicks’ other children, and the account of J.R.S.’s birth and medical history up to
his leaving the hospital. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶
1-9, 11-12. Respondent also did not dispute J.R.S.’s healthy appearance on May
28-30, 2011, or the history of J.R.S.’s vaccinations. Id. at ¶¶ 15, 24. Finally, the
facts outlining the events beginning with arrival of the emergency medical
technicians (EMTs) and proceeding through to J.R.S.’s autopsy were supported by
medical records and not disputed by the parties. Id. at ¶¶ 41-45.
Two other proposed facts were not disputed by the respondent, although
clarified. First is J.R.S.’s gestation at birth. Petitioners and respondent agree to 36
weeks and 3 days despite slight variations in the medical records. See id. at ¶ 10.
Second is J.R.S.’s weight gain after birth. Respondent noted that J.R.S. lost weight
after birth, but subsequently regained 3 ounces in 3 days, which led to the
documented positive comments regarding his weight gain. Id. at ¶ 14.
Discussion and Assessment of Parties’ Arguments and Evidence
The parties dispute the facts in six general areas. Those areas are: (1) the
degree, if any, to which J.R.S.’s temperament became more “fussy” after
vaccination; (2) when J.R.S. began coughing after his vaccination; (3) the
magnitude and characterization of J.R.S.’s oral expelling which occurred roughly
four to five days before J.R.S.’s death; (4) whether J.R.S. ingested C-Phen; (5) the
events that occurred from the time J.R.S. was taken to his bed the morning of
August 11, 2011, until the arrival of the EMTs later that morning; and (6) whether
anyone was ill in the Swicks’ home immediately prior to J.R.S.’s death.
The submitted evidence is summarized below in six sections.
J.R.S.’s Temperament before and after his July 25, 2011 Vaccinations
The Swicks have testified and stated in their affidavits that prior to J.R.S.’s
July 25, 2011 vaccinations, he was a content and happy child, rarely fussy or
colicky. See Tr. 15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4. In contrast, after
vaccination, J.R.S. was fussy, inconsolable, and had a decreased appetite. See Tr.
15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4. Respondent argues that a shift in
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J.R.S’s temperament is not corroborated by the medical record as ample evidence
shows the temperament issues identified by the Swicks pre-date J.R.S.’s
vaccinations. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶ 19-20, 26-
27. To understand if J.R.S. experienced a temperament shift post-vaccination, it is
necessary to look at the corresponding medical records for periods both before and
after the July 25 vaccination.
Temperament before the July 25, 2011 Vaccination
At a June 21, 2011 medical appointment, the doctor noted that J.R.S. was
receiving more formula, but was fussier with formula than with breast milk.
Exhibit 2 at 10. On June 23, 2011, Mrs. Swick called the doctor and reported
J.R.S. was constipated and fussy. Id. at 13. On June 24, 2011, Mrs. Swick called
the doctor again and reported fussiness. However, by June 28, 2011, Mrs. Swick
reported J.R.S.’s “fussiness has greatly improved.” Id. at 16, 19.
At the July 12, 2011 doctor’s visit, Mrs. Swick reported that J.R.S. had a
fever and was vomiting prior to his last bowel movement, and reported that those
issues resolved with the bowel movement. Exhibit 2 at 22. As a result, J.R.S. was
given a daily glycerin suppository to help with constipation. Id.
On July 25, 2011, J.R.S. was seen for a well child examination. Id. at 25.
J.R.S. received his vaccinations at this examination. Id. at 27. The records from
the examination also note J.R.S. was experiencing 2 A.M. to 7 A.M. crying
episodes, and that the prescribed glycerin suppositories were helping his
constipation. Id. at 25.
Temperament after the July 25, 2011 Vaccination
Mrs. Swick testified that J.R.S.’s constipation returned during the two week
period between July 25, 2011, and August 11, 2011. She stated: “[Constipation]
was pretty constant. We were still using the suppositories, they just didn’t seem to
be working as well as they had before. He wasn’t going regularly now. Now it
could be every three or four days.” Tr. 39.
Mrs. Swick further testified that J.R.S.’s outbursts and crying were random
after he received his July 25, 2011 vaccinations. Tr. 24. She testified that J.R.S.
previously cried only “when he was hungry or when his tummy hurt when he was
constipated.” Id. The distinction being drawn between J.R.S.’s pre- and post-
vaccination outbursts is not clear based on the medical records or testimony. As
discussed previously, prior to vaccination, principally between June 21, 2011, and
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July 11, 2011, Mrs. Swick thought J.R.S. was fussier than normal, principally due
to constipation. Exhibit 2 at 10-22. Then there was a break in uncharacteristic
fussiness between July 11, 2011, and July 25, 2011, ostensibly because the
constipation had subsided. See id. at 25.
Mrs. Swick’s testimony states J.R.S. was constipated for multiple days at a
time between July 25, 2011, and August 11, 2011. It would not be surprising for a
constipated four-month-old baby to be fussy. Thus, Mrs. Swick’s observation and
testimony that J.R.S. was fussy is credited. However, Mrs. Swick was not
persuasive in attempting to distinguish J.R.S.’s random outbursts and crying from
those previously triggered by constipation.
The parties remain free, within the confines of these factual findings, to
argue causation regarding J.R.S.’s temperament shifts.
J.R.S’s Cough
The Swicks testified that J.R.S. developed a cough roughly five days after he
received his July 25, 2011vaccinations, and that the cough progressively got more
frequent, though still intermittent. Tr. 22, 46 to 47, 65. They also testified that the
cough progressed to the point that it would wake him up. Tr. 22, 65. In contrast to
this testimony, respondent highlights the Iowa medical examiner’s records, and
multiple blog posts by Mrs. Swick, as fixing the onset of the cough much closer to
the date of J.R.S.’s death. See exhibit 6 at 11; exhibit A at 2; exhibit B at 4.
Specifically, respondent relies on a notation in the medical examiner’s
August 11, 2011 report, which is contemporaneous with J.R.S.’s death. The
medical examiner’s report states: “coughing started 8-10-11 – coughed up /
gagging clear phlegm – 0200 8/11/11.” Exhibit 6 at 11. August 10, 2011, was 17
days after J.R.S.’s vaccination, and one day before his death.
Additionally, Mrs. Swick’s February 2012 blog post, the closest in time to
J.R.S.’s August 2011 death, does not mention J.R.S. having a cough, and the April
2012 blog post states: “I was a few weeks late on getting [J.R.S.] his shots, but the
night we came home [July 25, 2011], [J.R.S.] had a slight fever, (normal), and then
later developed a cough. The night he developed the cough he passed away.”
Exhibit A; exhibit B.
Respondent argues that if J.R.S. had a cough, it would have been mentioned
in the February 2012 blog post, which is closest in time to J.R.S.’s death. Further,
Mrs. Swick’s April 2012 blog post, which is closer in time to J.R.S.’s death than
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either her affidavit or testimony, puts J.R.S.’s cough onset as August 10, 2011, not
days before.
The August 11, 2011 statement regarding the timing of the onset of J.R.S.’s
cough states “coughing started 8-10-11.” Exhibit 6 at 11. The specific onset date
is clear. Although the Swicks provided this history in an extremely stressful
situation, the preponderance of the evidence suggests the Swicks, as the diligent
parents they are, would have noted all of J.R.S.’s coughing, even slight coughing,
that began in proximity to the date of his death. There is no such notation of an
earlier cough, and no explanation for the absence of the notation.
Due to the specificity and timeliness of the August 11, 2011 statement, its
evidentiary value outweighs other contrary evidence about J.R.S.’s coughing. The
February 2012 blog post contains no information about J.R.S.’s cough, but the lack
of mention of a cough is not important because the Swicks agree he had a cough.
See Murphy, 23 Cl. Ct. at 733. The April 26, 2012 blog post is consistent with the
finding that the cough started on August 10, 2011. Mrs. Swick posted, “[t]he night
he developed the cough he passed away.” Exhibit A at 2. Although Mrs. Swick
attempted to explain the April 26, 2012 blog post (Tr. 29 to 31), this testimony
does not overcome the August 11, 2011 statement. See Cucuras, 993 F.2d at 1528.
Therefore, the undersigned finds the preponderance of the evidence establishes that
J.R.S.’s cough began on August 10, 2011.
Oral Expelling Magnitude
Petitioners allege that J.R.S. had a significant vomiting incident four to five
days before his death. Pet’rs’ Proposed Findings of Fact at ¶ 33. Various
testimony characterized J.R.S.’s vomit as “more than a baby would be expected [to
vomit.]” Id. The basis for petitioners’ assertion is the testimony of Mr. and Mrs.
Swick and Mrs. Meyer. Mrs. Meyer is the wife of one of Mr. Swick’s coworkers,
and witnessed J.R.S.’s early August vomiting episode. The Secretary, in response,
states one alleged episode of vomiting is insufficient to conclude that J.R.S. was
suffering from an ongoing disease process. Resp’t’s Resp. to Pet’r’s Proposed
Findings of Fact at ¶ 33.2
The testimony presented by petitioners through Mr. Swick and Mrs. Meyer
leaves no doubt that J.R.S. threw up, as opposed to spit up, and that the volume
2 It appears the Secretary’s response is focused on establishing as fact that the record is
insufficient to conclude J.R.S. suffered from an ongoing disease process, not on disputing the
magnitude of J.R.S.’s vomiting incident four to five days before his death. Resp’t’s Resp. to
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produced relative to J.R.S.’s age and size was significant. Tr. 73 to 74, 85 to 88. It
is unclear whether the Secretary is disputing these facts by citing Mrs. Meyer’s
testimony that she was “puked on a lot of times.” Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 33; Tr. 86. Regardless, Mrs. Meyer’s testimony as
to her experience with children’s vomiting supports her ability to recognize an
anomalous quantity of vomit.
Petitioners ask for a finding that the incident Mrs. Meyer witnessed in early
August was more severe than J.R.S.’s previous vomiting. See Pet’rs’ Proposed
Findings of Fact at ¶ 33. As pointed out by respondent, however, the record shows
that Mr. Swick was not aware of J.R.S.’s prior vomiting. Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 33; Tr. 81 to 82. Additionally, Mrs. Meyer could
not, and Mrs. Swick did not, testify to the magnitude of the vomit in early August
2011 relative to J.R.S.’s earlier vomiting. While the evidence supports a finding
that J.R.S. vomited four to five days prior to August 11, 2011, petitioners request a
further finding that the quantity was very large, and therefore unique from previous
vomiting episodes. See Pet’rs’ Proposed Findings of Fact at ¶ 33. Probative
evidence, however, does not support a finding that J.R.S.’s early August vomiting
incident was unique.
Nonetheless, the parties remain free, within the confines of these factual
findings, to argue the significance of J.R.S.’s early August vomiting.
C-Phen
It is undisputed that the Swicks attempted to give J.R.S. roughly one-quarter
milliliter of C-Phen for his cough on the morning of August 11, 2011. Tr. 41.
However, while petitioners state that J.R.S. spit the entire amount out, respondent
says such a statement is conclusory. Resp’t’s Resp. to Pet’r’s Proposed Findings
of Fact at ¶ 35. The active ingredients in C-Phen, chlorpheniramine and
dextromethorphan, were part of the comprehensive toxicology panel performed on
J.R.S.’s heart blood and were reported as negative. Exhibit 6 at 20. While the
toxicology panel suggests that J.R.S. did not consume any C-Phen, the evidence is
not definitive, as questions remain regarding the rate of metabolism of C-Phen.
Pet’r’s Proposed Findings of Fact at ¶ 33. Regardless, a factual finding comparable to what the
Secretary is requesting is beyond what the testimony of the lay witnesses supports, or what the
undersigned can find based on that testimony. Such a finding is squarely in the realm of what an
expert witness would opine on, as opposed to the lay witness testimony at issue in this hearing.
10

Case 1:13-vv-00526-UNJ Document 53 Filed 01/29/16 Page 11 of 16
Therefore, the parties remain free, within the confines of these factual findings, to
argue the significance of J.R.S.’s receiving C-Phen.
The Morning of August 11, 2011
Testimony surrounding the morning of August 11, 2011, concentrated on
three main issues: (1) whether a blanket was covering J.R.S.’s face when he was
found by Mrs. Swick; (2) how J.R.S. was laid to sleep; and (3) J.R.S.’s
physiological condition when found. Issue one is analyzed and resolved below,
while issues two and three remain unresolved. While unresolved, the clarifications
provided below on issues two and three should assist the parties in directing their
respective experts.
The parties dispute whether J.R.S. was found with a blanket covering his
head. See Pet’r’s Proposed Findings of Fact at ¶ 36; Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 36. Mrs. Swick testified that she found J.R.S. on
his stomach, face sideways, with a blanket covering his body to roughly his
armpits. Tr. 34, 57. These statements, however, represent a change in the
petitioners’ assertions. Compare Pet’rs’ Proposed Findings of Fact at ¶ 36 (stating
that “[t]here was nothing in contact with J.R.S.’s face; the blanket on him was
covering his body below his armpits”) with exhibit 4 at 2 (where the emergency
medical service report states that Mrs. Swick found J.R.S. with a “blanket over
[his] head”), and exhibit 7 at ¶ 15(f) (aff., dated July 23, 2013) (Mrs. Swick
indicates that “there was a blanket on his head”). Additionally, respondent notes
other documents which support that J.R.S.’s face was covered by a blanket when
found by Mrs. Swick. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶ 36
(citing exhibit 6 at 8 and 10, exhibit B at 3, and exhibit 19 at 5-6).
Though respondent has identified significant contemporaneous records and
temporally closer statements that argue against Mrs. Swick’s oral testimony, that
evidence still must be balanced against the persuasiveness of Mrs. Swick’s
testimony. See Reusser, 28 Fed. Cl. at 523; Campbell, 69 Fed. Cl. at 779.
Regarding this specific aspect of Mrs. Swick’s testimony, the undersigned finds
that the records created contemporaneously are more persuasive than Mrs. Swick’s
testimony years later.
As discussed previously, to overcome the presumption that
contemporaneous written records are accurate, testimony is required to be
“consistent, clear, cogent, and compelling.” Blutstein, 1998 WL 408611, at *5.
Mrs. Swick’s July 2013 affidavit and October 2014 oral testimony, however, are
11

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inconsistent. In the July 2013 affidavit, Mrs. Swick averred that the state medical
examiner’s report contained errors, to include that “there was a blanket on his
head, but it was not wrapped around his head or situated in any other way that
would have obstructed his breathing or caused suffocation.” Exhibit 7 at ¶ 15(f).
In contrast, in October 2014 Mrs. Swick was asked, “[w]hen you found [J.R.S.],
how far up was the blanket on his body?” To which Mrs. Swick responded,
“[m]aybe his armpits.” Tr. 57. The lack of consistency about the location of the
blanket diminishes the persuasiveness of Mrs. Swick’s testimony.
Furthermore, more than three years transpired between August 2011 and
October 2014, when Mrs. Swick testified. The lapse of time with associated
decline in memory is an additional factor reducing the overall persuasiveness of
Mrs. Swick’s testimony. Regardless of the myriad explanations for the various
inconsistencies, the undersigned finds the contemporaneous documentation
regarding how J.R.S. was found relative to his blanket more persuasive than Mrs.
Swick’s later October 2014 testimony. The undersigned finds that J.R.S. was
discovered on August 11, 2011, with a blanket covering his head.
The remaining issues are how J.R.S. was laid to sleep, and J.R.S.’s
physiological condition when found. While no definitive finding can be made, it is
possible to narrow the parties’ disputes.
Regarding how J.R.S. was laid to sleep, it is unclear whether Mr. Swick
placed J.R.S. on his back (supine) or stomach (prone) the morning of August 11,
2011. Contemporaneous records suggest prone. See exhibit 6 at 10. Mr. Swick,
however, testified to placing him supine. Tr. 65. Mrs. Swick testified that she was
unsure how they usually placed him in his crib, and also testified that J.R.S. could
roll over. Tr. 42. Respondent challenges the contention that J.R.S. could roll over,
and notes that it is undisputed that J.R.S. was found in the prone position. Resp’t’s
Resp. to Pet’r’s Proposed Findings of Fact at ¶ 34; exhibit 6 at 8.
In addition to the evidence being unclear, the significance of how J.R.S. was
placed to sleep is also unclear. Therefore, an expert’s opinion about causation may
draw support from either scenario, that is, J.R.S. was laid to sleep on his back, or
on his stomach. If using either scenario, the expert must thoroughly explain why
J.R.S.’s original position upon being placed to sleep matters in his (or her) opinion.
The final issue to address is J.R.S.’s physiological condition, that is,
temperature and overall appearance, when Mrs. Swick found him, until the time
the EMTs arrived. Mr. Swick testified that J.R.S. was warm when found the
12

Case 1:13-vv-00526-UNJ Document 53 Filed 01/29/16 Page 13 of 16
morning of August 11, 2011. Tr. 69 to 70. Mrs. Swick testified that J.R.S. was
warm to the touch, sweaty, pale, limp, and still. Exhibit 6 at 10; Tr. 34 to 37. She
also testified that just before she stopped CPR, the area below J.R.S.’s lips started
to turn blue, but his lips were not blue, nor his face. Tr. 37. This testimony by the
petitioners is credible. Further, respondent does not dispute the Swicks’ subjective
impressions. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶ 38-40.
While the physiological conditions above are findings of fact, the
undersigned declines at this time to draw any further inference from them. For
example, whether J.R.S. was still alive when found depends on all evidence,
including expert reports, and cannot be determined based on the evidence currently
of record.
Illness in the Swicks’ Home
The Swicks testified that J.R.S. was the only sick family member during the
time surrounding his death. Tr. 24, 53, 78. Respondent highlights a
contemporaneous notation in the medical examiner’s report which asks, “Anyone
Else in Household or Other Contacts (e.g. daycare) Recently Ill?” Exhibit 6 at 11.
In response, “Yes” is selected, with a handwritten note stating, “colds both parents
and 2 older sibs [siblings] all in past 2 wks.” Id.
The contemporaneous medical examiner’s report is persuasive. The report is
more persuasive not only because it is contemporaneous, unlike the Swicks’ more
recent testimony, but also because it includes a specific notation which identifies
the family (both parents and two older siblings) and a timeframe in which the
illnesses occurred. Exhibit 6 at 11. While a scrivener’s error in selecting “yes” or
“no” could be imagined, it strains reasonableness to argue that not only did the
person completing the form err in selecting yes or no, but went so far as to provide
details to support the erroneous marking. Given the greater persuasiveness of the
medical examiner’s contemporaneous report, the undersigned finds the
preponderance of the evidence supports that both J.R.S.’s parents and two older
siblings were sick at some point during the two weeks prior to J.R.S.’s death.
13

Case 1:13-vv-00526-UNJ Document 53 Filed 01/29/16 Page 14 of 16
Specific Findings of Fact
The undisputed and clarified facts, as listed above, and found in Petitioners’
Proposed Findings of Fact and the Response to Petitioners’ Proposed Findings of
Fact, are adopted by the undersigned as findings of fact.
The undersigned has considered the respondent’s additional proposed
findings of fact, but finds them to either be a restating of the undisputed existing
record, or the domain of expert opining, and therefore does not address them.
Finally, the following findings of fact reflect the determinations concerning
the six general areas of dispute above:
J.R.S.’s Temperament
1. J.R.S.’s normal temperament was to cry only when hungry, constipated,
or his tummy hurt. Tr. 24.
2. J.R.S.’s temperament was fussier than normal between June 21 and July
11, 2011. Exhibit 2 at 10-22.
3. J.R.S. was constipated for portions of time between June 21 and July 11,
2011. Exhibit 2 at 10-22.
4. J.R.S.’s temperament was not fussier than normal, and he was not
constipated, between July 12 and July 24, 2011. See exhibit 2 at 10-22. However,
J.R.S. was experiencing early AM crying episodes during this period. Id. at 25.
5. J.R.S.’s temperament after his July 25, 2011 vaccinations was fussier
than normal, and comparable to his fussier than normal temperament between June
21 and July 11, 2011. Tr. 15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4.
6. J.R.S. was constipated for portions of time between July 25 and August
11, 2011. Tr. 39.
14

Case 1:13-vv-00526-UNJ Document 53 Filed 01/29/16 Page 15 of 16
J.R.S’s Cough
7. J.R.S.’s cough began the evening of August 10, 2011. Exhibit 6 at 11.
The cough was significant enough that it woke J.R.S. from his sleep and compelled
the Swicks to give J.R.S. C-Phen. Tr. 33, 40 to 41.
Oral Expelling Magnitude
8. Around July 12, 2011, J.R.S. vomited prior to a bowel movement. The
bowel movement resolved the vomiting issue. Exhibit 2 at 22.
9. Four to five days before his death, J.R.S. had a single vomiting incident
in which he vomited a significant amount relative to his size and age. Tr. 73 to 74,
85 to 88.
C-Phen
10. The Swicks gave J.R.S. one-quarter milliliter of C-Phen on the morning
of August 11, 2011. Tr. 41.
11. J.R.S., in response to receiving the C-Phen, spit up. Tr. 41.
12. The active ingredients in C-Phen were not found in the toxicology panel
performed on J.R.S.’s blood following his death. Exhibit 6 at 20.
The Morning of August 11, 2011
13. Mrs. Swick found J.R.S. with a blanket covering his head. Exhibit 6 at
8, 10; exhibit 4 at 2; exhibit 7 at ¶ 15(f); exhibit B at 3; exhibit 19 at 5-6.
14. When Mrs. Swick found J.R.S. he was warm to the touch, sweaty, pale,
limp, and still. Exhibit 6 at 10; Tr. 34 to 37, 69 to 70. His face and lips were not
blue, but the area below J.R.S.’s lips started to turn blue just before Mrs. Swick
stopped performing CPR. Tr. 37.
15

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Illness in the Swicks’ Home
15. The Swicks and J.R.S.’s two older siblings were sick at some point
during the two weeks prior to J.R.S.’s death. Exhibit 6 at 11.
Conclusion
The parties are ordered to provide these Findings of Fact to any expert
whom they may retain to offer an opinion in this case. An expert’s assumption of
any fact that is inconsistent with these findings of fact will not be credited. Burns
v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that
the special master did not abuse his discretion in refraining from conducting a
hearing when the petitioner’s expert “based his opinion on facts not substantiated
by the record”).
A status conference is set for Wednesday, January 20, 2016 at 11:30 A.M.
Eastern Time. The parties should be prepared to discuss the next step in this case.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
16

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_13-vv-00526-1
Date issued/filed: 2018-03-26
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 2/26/2018) regarding 95 DECISION of Special Master. Signed by Special Master Christian J. Moran. (MRG) Service on parties made.
--------------------------------------------------------------------------------
Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
RYAN L. SWICK and MARY M. SWICK, *
legal representatives and parents of their * No. 13-526V
deceased minor child, J.R.S., * Special Master
* Christian J. Moran
Petitioners, *
* Filed: February 26, 2018
v. *
* Entitlement, infant’s death,
SECRETARY OF HEALTH * posterior reversible
AND HUMAN SERVICES, * encephalopathy syndrome
* (PRES)
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard H. Moeller, Berenstein, Moore, Heffernan, Moeller & Johnson, L.L.P.,
Sioux City, IA, for petitioners;
Ryan D. Pyles, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION DENYING COMPENSATION1
The facts in this case are sad. A medical examiner found that the death of
J.R.S., who was nearly 3 months old, was “unexplained.” Exhibit 6 at 15. J.R.S.’s
parents, Ryan L. Swick and Mary M. Swick, claim that vaccinations caused their
son to die approximately 17 days following their administration.
Although their story is emotionally compelling, the petitioners’ evidence is
not legally persuasive. Beyond sympathy, the Swicks’ claim that the vaccinations
caused J.R.S.’s death depends on the value of an opinion from their expert, Walter
E. Kozachuk, a doctor who specializes in neurology. However, his qualifications
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 2 of 15
and credentials in the relevant disciplines are not as strong as the background of
Michael H. Kohrman, a board-certified neurologist whom the Secretary has
retained. Besides the disparity in credentials between the experts, the diagnosis
that Dr. Kozachuk has proposed is not reliable or persuasive. Dr. Kozachuk has
opined that J.R.S. suffered from posterior reversible encephalopathy syndrome
(PRES), but the evidence does not support this diagnosis. Because the remainder
of Dr. Kozachuk’s opinion that the vaccinations caused J.R.S.’s death depends
upon the diagnosis of PRES, Dr. Kozachuk’s overall opinion on causation is not
persuasive. A full discussion follows.
Facts2
The relevant facts in this tragic case can be stated relatively succinctly.3 For
a more detailed recitation of information, see Ruling Finding Facts, issued Jan. 7,
2016; Pet’rs’ Proposed Findings of Fact, filed Dec. 22, 2014; and Resp’t’s Resp. to
Pet’rs’ Proposed Findings of Fact, filed Jan. 20, 2015.
After a gestation of 36 weeks and 3 days, J.R.S. was born on May 14, 2011.
Soon after delivery, he had some difficulty breathing and required intubation for
less than 24 hours. Exhibit 10 at 2-3. Although he had some additional difficulties
with feeding (an immature and disorganized suck), he gained weight shortly after
being born.
J.R.S. often experienced constipation that seemed to make him fussy. J.R.S.
had a well-child examination on July 25, 2011. Concerns included constipation
that glycerin suppositories were helping and crying from 2:00 AM to 7:00 AM
daily. Exhibit 2 at 25. During this appointment, J.R.S. received the hepatitis B,
rotavirus, diphtheria-tetanus-acellular pertussis, haemophilus influenzae type b,
inactivated poliovirus, and pneumococcal conjugate vaccines. Id. at 26.
Between July 25, 2011, and August 11, 2011, J.R.S. continued to have
episodes of constipation during which he was fussy. In early August, he vomited a
large amount once. Findings of Fact at 14-15.
2 As discussed in the procedural history below, some of the facts were found after a
hearing during which percipient witnesses testified.
3 In accord with 42 U.S.C. § 300aa-13(a)(1), the undersigned has considered the entire
record. However, this decision does not discuss all the evidence.
2

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 3 of 15
In the days before J.R.S.’s death on August 11, 2011, his mother, father, and
two older siblings were ill with colds. Exhibit 6 at 11 (medical examiner’s
questionnaire). In the evening of August 10, 2011, J.R.S. began to cough and his
coughing woke him from his sleep. Findings of Fact at 15.
The evidence regarding whether J.R.S. was placed on his back (supine) or
stomach (prone) was inconsistent and no finding is required. J.R.S. was found in
the prone position. A blanket was covering his head. Exhibit 6 at 10; Findings of
Fact at 15.
When Mrs. Swick found J.R.S., he was warm to the touch, sweaty, pale,
limp, and still. His face and lips were not blue, but the area below J.R.S.’s lips
started to turn blue just before Mrs. Swick stopped performing CPR. Findings of
Fact at 15.
Mrs. Swick called 911 and emergency medical technicians arrived at their
house at approximately 10:00 AM. J.R.S. did not show signs of life. Exhibit 4 at
1, 2, 6; exhibit 5 at 9. The EMTs brought J.R.S. to a local hospital, where he was
pronounced dead at 10:39 AM. Exhibit 5 at 10, 11, 21.
Dennis F. Klein, M.D., a deputy state medical examiner, performed an
autopsy on August 12, 2011. From the autopsy, Dr. Klein submitted a brain
specimen to the University of Iowa for a neuropathologic consultation. Exhibit 6
at 16. The neuropathologist, Patricia A. Kirby, M.D., examined the brain on
September 2, 2011, and submitted her report on September 7, 2011. Id. at 28. Dr.
Klein sent his report to various people on September 12, 2011. Id. at 14.
In her neuropathology report, Dr. Kirby found “the midbrain, medulla and
pons show congestion with focal perivascular hemorrhages in the pons. The basal
meninges are congested with smear subarachnoid hemorrhages. The cerebral
cortex has persistent but involuting external granular layer.” Dr. Kirby continued:
“[t]he neocortex shows no acute or remote hypoxic-ischemic neuronal injury and
there is no cortical lamination anomaly.” She also found “the white matter is
within normal limits.” Exhibit 6 at 29-30. Dr. Kirby’s case summary states
“examination of the brain fails to reveal a C[entral] N[ervous] S[ystem] cause of
death. Although somewhat non-specific, the findings would be in keeping with an
asphyxial death.” Id. at 28.
The opinion of the medical examiner, Dr. Klein, was that J.R.S. died of
“sudden unexplained infant death.” Id. at 20. Dr. Klein added: “Due to the
circumstances of how the decedent was found, prone with blanket covering the
3

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 4 of 15
head and the non-specific findings in the brain that would be in keeping with
asphyxia[,] death caused by asphyxia cannot be ruled out. The manner of death is
UNDETERMINED.” Id. at 21.
Procedural History4
The Swicks allege a vaccination, or combination of vaccinations, caused
J.R.S.’s death. Pet., ¶¶ 21, 23. To support their claim for compensation,
petitioners filed medical records (exhibits 1-6, 8-10) and affidavits (exhibits 7, 15).
In addition, petitioners were ordered to file an expert report outlining the basis of
their theory. Dr. Kozachuk’s first report opined that J.R.S. died as a result of
PRES, which can begin soon after vaccination and can last for weeks if it is not
fatal. Exhibit 11 at 12. In presenting PRES as a diagnosis, Dr. Kozachuk also
argued over the course of approximately seven pages that J.R.S. did not die from
SIDS. Id. at 1-7, 12.5
The Secretary filed a Rule 4 report shortly after Dr. Kozachuk’s report, and
concluded there was insufficient evidence to prove petitioners are entitled to
compensation. Resp’t’s Rep. at 10. With the report, the respondent submitted blog
posts by Mrs. Swick that called into question the factual basis for some of Dr.
Kozachuk’s assumptions. Id. at 7-9. As to Dr. Kozachuk’s opinion, the Secretary
noted that Dr. Kozachuk has presented an opinion involving primarily immunology
and pathology. Given Dr. Kozachuk’s focus on neurology, the Secretary
“question[ed] Dr. Kozachuk’s qualifications to opine in these specialized fields,
especially since his opinion appears to contradict the conclusion of the medical
examiner.” Id. at 9-10.
The case was then transferred to the undersigned. Order, filed June 5, 2014.
Following the transfer, Dr. Kozachuk authored a supplemental expert report in
response to the Secretary’s Rule 4 report. This report was filed on August 19,
2014. The supplemental report concluded that additional autopsy studies were
required to rule out SIDS as a cause of death and to establish a more certain cause
4 The procedural history largely, but not entirely, repeats the procedural history provided
in the Ruling Finding Facts.
5 The Swicks filed the articles that Dr. Kozachuk cited in his January 6, 2014 report in
March 2017.
4

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 5 of 15
of death. See exhibit 13 at 2. Dr. Kozachuk also identified a neuroscientist and
molecular biologist who could perform additional studies. Id. at 3.
After reviewing the filings in the case, the undersigned determined that there
were factual discrepancies concerning the time period from J.R.S.’s vaccination to
his death. On October 30, 2014, a fact hearing was held to address factual
discrepancies in the record by evaluating the testimony of the affiants. Five people
testified. The undersigned considered their testimony as well as the documentary
evidence.
Following the hearing, the Swicks suggested findings of fact. Pet’rs’
Proposed Findings of Fact, filed Dec. 22, 2014. The Secretary addressed those
proposals. Resp’t’s Resp. to Pet’rs’ Proposed Findings of Fact, filed Jan. 20, 2015.
On January 7, 2016, the undersigned issued a Ruling Finding Facts.
In the ensuing status conference, the undersigned asked whether the Swicks
wanted to obtain additional expert reports, including reports from the doctors
whom Dr. Kozachuk identified in his second expert report. The undersigned also
asked whether the Swicks wanted to obtain additional material from the autopsy.
For both questions, the Swicks indicated that they would consider these ideas. The
Swicks also stated that they intended to obtain a revised report from Dr. Kozachuk
in which he considered the Findings of Fact just issued.
The Swicks presented a new report from Dr. Kozachuk on April 29, 2016.
Exhibit 21. While Dr. Kozachuk noted the Findings of Fact, the essence of his
opinion did not change. Dr. Kozachuk stood by his assertion that J.R.S. suffered
from PRES, not SIDS. For more information about SIDS, Dr. Kozachuk
recommended that Dr. Kinney, a prominent researcher in this field, be consulted.
Dr. Kozachuk also maintained that the vaccinations caused J.R.S. to suffer PRES.
Id. at 2.
In the next status conference, the Swicks’ attorney represented that he
intended to attempt to consult with Dr. Kinney. However, the undersigned
informed Mr. Moeller that Dr. Kinney appears not interested in participating in
litigation. The Secretary’s attorney stated that he had learned that the Maryland
State Board of Physicians had reprimanded Dr. Kozachuk. Later, on the day of the
status conference, the Secretary filed the public order of reprimand as exhibit D.
Mr. Moeller stated that he would consult his clients about their preferred course of
action.
5

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 6 of 15
In a July 11, 2016 status report, the Swicks stated that they were attempting
to consult with Dr. Miller, a neuropathologist who has testified on behalf of other
petitioners in the Vaccine Program. In the next status conference, the Secretary
questioned whether there was a reasonable basis for continued pursuit of this
claim.
On August 17, 2016, the Swicks stated in a status report that they were not
retaining Dr. Miller. Accordingly, the next step was to allow the Secretary time to
respond to Dr. Kozachuk’s reports. Order, issued Aug. 24, 2016.
The Secretary’s expert is Dr. Kohrman. Dr. Kohrman disputed the diagnosis
of PRES based upon the autopsy. Dr. Kohrman also stated: “[J.R.S.]’s autopsy is
consistent with asphyxia as noted by the medical examiner but was ruled a SIDS
case. He was at risk for SIDS based on his prematurity, and being found in the
prone position with his head covered.” Exhibit E at 10. Dr. Kohrman also opined:
“There is no evidence to link the causation of J.R.S.’s death to his vaccinations on
July 25, 2011.” Id.
In the status conference to discuss Dr. Kohrman’s report, the Swicks were
asked whether they wanted to obtain a responsive report from Dr. Kozachuk. The
Swicks expressed some interest in conferring with Dr. Kozachuk, and also
proposed consulting with Dr. Miller again. See order issued Nov. 10, 2016. Any
efforts were not fruitful as the Swicks stated that they would not be presenting any
more expert reports. See Pet’rs’ Status Rep., filed Jan. 19, 2017.
In a February 9, 2017 status conference, the parties discussed ways of
submitting the case for adjudication. The Swicks stated that a hearing was unlikely
to generate new evidence, and, therefore, the special master should decide the case
based upon experts’ reports. The Secretary agreed that the case could be submitted
on the papers.
Following this status conference, the Swicks filed the articles that Dr.
Kozachuk had cited in his first report. The Secretary filed four additional articles.
Once the evidence was complete, the parties were ordered to submit briefs
and, within the briefs, to address the reliability of Dr. Kozachuk’s opinion in light
of the Secretary’s revelation that the Maryland State Board of Physicians had
reprimanded him. The Swicks filed a brief on June 12, 2017. The Swicks
generally supported their claim. With respect to Dr. Kozachuk’s discipline, the
Swicks maintained that Dr. Kozachuk had not misrepresented his credentials
because “[h]is reports were submitted before any disciplinary action was taken and
6

Case 1:13-vv-00526-UNJ Document 96 Filed 03/26/18 Page 7 of 15
before any sanctions were imposed.” Pet’rs’ Br. at 14. The Swicks further argue
“the underlying allegations and findings in the disciplinary action do not challenge
Dr. Kozachuk’s credibility.” Id. Finally, they also argue that Maryland law would
preclude a finder of fact from considering the disciplinary report. Id. at 15 n.5
(citing Pepsi Bottling Group v. Plummer, 130 A.3d 1047, 1059 (Md. App. 2016)).
The Secretary responded on August 2, 2017. For Dr. Kozachuk, the
Secretary argued that although the special master could consider his reports, they
should be given less weight. Resp’t’s Br. at 16-19.
Because the time for filing a reply brief has expired, the case is ready for
adjudication.
Analysis
The Swicks have failed to present preponderant evidence that the
vaccinations caused J.R.S.’s death. Two points underlie this conclusion.
Preliminarily, Dr. Kozachuk has offered opinions in fields in which he lacks
expertise and Dr. Kozachuk’s background in neurology is not as strong as Dr.
Kohrman’s background in neurology. The second and more important reason for
denying compensation is that the Swicks have not established that J.R.S. suffered
from PRES.
I. Dr. Kozachuk’s Expertise
The question of Dr. Kozachuk’s qualifications was first raised more than
three years ago. The Secretary’s report specifically noted the discrepancy between
Dr. Kozachuk’s practice area, neurology, and the disciplines on which he was
opining.
Multiple cases have endorsed a special master’s consideration of an expert’s
credentials. See Depena v. Secʼy of Health & Human Servs., No. 13-675V, 2017
WL 1075101 (Fed. Cl. Spec. Mstr. Feb. 22, 2017), mot. for rev. denied, 133 Fed.
Cl. 535, 547-48 (2017), appeal docketed, No. 2017-2527 (Fed. Cir. Sep. 8, 2017);
Copenhaver v. Secʼy of Health & Human Servs., No. 13-1002V, 2016 WL
3456436 (Fed. Cl. Spec. Mstr. May 31, 2016), mot. for rev. denied, 129 Fed. Cl.
176 (2016). In this light, a recitation of the expert’s qualifications is appropriate.
Dr. Kozachuk lists his credentials on his curriculum vitae, which was filed
on January 6, 2014, as exhibit 12. Dr. Kozachuk attended college in Canada and
received a medical degree from the University of Saskatchewan in 1980. He had a
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rotating internship at the Hurley Medical Center in Flint, Michigan from 1980 to
1981. Then for approximately two years, he worked as a family physician. From
1983 through 1986, he was a neurology resident at the Cleveland Clinic
Foundation and, in the following year, he worked as an internal medicine resident
at the same institution. From 1988 through 1990, Dr. Kozachuk held a fellowship
at the National Institute on Aging in the laboratory of neuroscience. Next, he
worked at Johns Hopkins Medical School as an associate in CNS vasculitis. He
also was simultaneously working as a neurologist in private practice. Exhibit 12 at
6.
It appears that in December 1993, Dr. Kozachuk’s focus shifted as he began
working for various companies investigating pharmaceuticals. This work seems to
have lasted through 2001. See id. at 3-4. Since 1996, he has worked as “part-time
neurological consultant” to various private practices. Most of this work appears to
focus on treating patients with “head trauma and spinal cord injury.” Id. at 2. As
of the submission of his curriculum vitae, Dr. Kozachuk’s “current position” was
at the “Neuroscience Team,” which provides “clinical diagnoses of patients with
both Neurological and Neuropsychological conditions.” Id.6
As the Secretary points out (Resp’t’s Br. at 7-8), Dr. Kozachuk’s curriculum
vitae is also notable for what it does not say. For example, the curriculum vitae
does not list a board certification with the American Board of Psychiatry and
Neurology. The curriculum vitae does not list any teaching responsibilities at a
university or hospital. The curriculum vitae does not list any current hospital
privileges with the most recent affiliation occurring in 1994.
These absences lead the Secretary to argue: “Head to head in the field of
neurology, respondent’s expert, Dr. Kohrman, obviously has far superior
credentials to Dr. Kozachuk.” Resp’t’s Br. at 7. Dr. Kohrman received a medical
degree from Rush Medical College in Chicago, Illinois, in 1981. He then had an
internship and residency in the pediatric Department of the University of Chicago
Hospitals and Clinics. He then had a three-year fellowship in pediatric neurology
again at the University of Chicago. In 1987, he became board-certified in
psychiatry and neurology with a special competency in child neurology. In that
same year, he also became board-certified in pediatrics. He has since obtained
6 The Secretary presented an excerpt from the website theneuroscienceteam.com that
indicates that Dr. Kozachuk’s areas of special interest include “Reactions to Vaccines, and the
study of Autoimmunology.” Exhibit C at 1.
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more board certifications in various other disciplines. Exhibit F (curriculum vitae)
at 2.
Beginning in 1986 and continuing for more than three decades, Dr. Kohrman
has served as faculty member at various medical schools. One of his current
responsibilities is to direct the Department of Pediatric Neurology at Akron
Children’s Hospital. Id. at 1.
Dr. Kohrman’s curriculum vitae lists other achievements, such as authoring
articles, conducting pharmaceutical research, and acting as a peer reviewer for
various journals. These contributions further demonstrate Dr. Kohrman’s expertise
in the field of neurology.
The field of neurology, however, is not the only relevant field. Dr.
Kozachuk has offered opinions about immunology (explaining how a vaccine can
cause PRES) and pathology (challenging the finding that J.R.S. died from SIDS).
Dr. Kozachuk forthrightly identified other doctors who would be more qualified to
issue opinions about these topics. See exhibit 11 at 12 ¶ 15; exhibit 13 at 3.
However, the Swicks did not present a report from anyone who concurred with Dr.
Kozachuk’s opinions in this case.
Like Dr. Kozachuk, Dr. Kohrman appears to lack any specialized training in
immunology and pathology. However, any deficit in Dr. Kohrman’s background
carries less consequence because the petitioners bear the burden of presenting a
persuasive case. See Dean v. Secʼy of Health & Human Servs., No. 13-808V,
2017 WL 2926605, at *18 n.12 (Fed. Cl. Spec. Mstr. June 9, 2017).
In short, ample evidence supports a finding that on neurologic topics, Dr.
Kohrman has more extensive expertise. The evidence also supports a finding that
neither Dr. Kozachuk nor Dr. Kohrman is particularly knowledgeable in
immunology and pathology. These findings are important for the analysis that
follows in the section below.
But, before leaving the topic of qualifications and credentials, there is one
more topic to explore — Maryland’s reprimand of Dr. Kozachuk. Procedurally, it
is important to note that Dr. Kozachuk’s three reports and the Maryland
disciplinary order are exhibits in this case. The Secretary did not file a motion to
strike Dr. Kozachuk’s reports and the Swicks did not file a motion to strike the
disciplinary order. Thus, because the reports and the disciplinary order are part of
the record, the undersigned must consider them. See 42 U.S.C. § 300aa-13(a).
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The directive for a special master to determine compensation based upon
“the record as a whole” appears tempered by Vaccine Rule 8(b)(2), stating the
special master “must consider all relevant and reliable evidence.” This
qualification implicitly seems to recognize that “the record as a whole” may
contain some evidence that might not be relevant and some that might not be
reliable. Cf. Paterek v. Secʼy of Health & Human Servs., 527 F. App’x 875, 884
(Fed. Cir. 2013) (noting that a special master does not commit legal error in
finding some medical history “not relevant”).
Thus, the ensuing question is: is the Maryland disciplinary order relevant?
(As an order from an adjudicatory body, the order is prima facie reliable.) The
Secretary argues that the Maryland disciplinary order is relevant to Dr. Kozachuk’s
credibility as an expert witness. Quoting Contreras v. Secʼy of Health & Human
Servs., 121 Fed. Cl. 230, 238 (2015) (Contreras VI), vacated on other grounds, 844
F.3d 1363 (Fed. Cir. 2017)), the Secretary contends “‘an expert who is not credible
does not, as a general rule, provide reliable expert testimony.’” Resp’t’s Br. at 18.
The Maryland disciplinary order reduces Dr. Kozachuk’s credibility. While
the underlying misconduct may not directly affect Dr. Kozachuk’s credibility as
defined by the Federal Rule of Evidence 608, the more important issue is that Dr.
Kozachuk displayed a lack of candor by not bringing forth the discipline against
him. As to this point, the Swicks’ defense of Dr. Kozachuk is based upon an error
in regard to the disclosure of his discipline.
The Swicks assert that Dr. Kozachuk’s “reports were submitted before any
disciplinary action was taken and before any sanctions were imposed.” Pet’rs’ Br.
at 14. The foundation for this argument is an assertion that “Dr. Kozachuk’s most
recent report was filed on August 19, 2014.” Id. However, as the Secretary noted,
“Petitioners appear to have inadvertently missed Dr. Kozachuk’s report that was
internally dated by him on April 29, 2016.” Resp’t’s Br. at 17 n.8. Thus, Dr.
Kozachuk had an opportunity in his April 2016 report to disclose the reprimand
from his licensing body issued on April 25, 2016. Dr. Kozachuk’s lack of candor
makes his case similar to the lack of candor displayed by the Secretary’s expert in
Contreras VI, 121 Fed. Cl. at 239 (noting that the expert witness’s lack of candor
was one of five reasons that special master should have “at the very least . . .
significantly discount[ed]” the opinion from that expert).
While Dr. Kozachuk’s failure to disclose the reprimand diminishes his
credibility, ultimately this lapse did not alter the decision in this case. Dr.
Kozachuk’s main deficit is his lack of qualifications. Dr. Kozachuk’s lack of
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experience is separate from any misgivings about his disciplinary record and his
lack of disclosure. In other words, even if Dr. Kozachuk had not engaged in any
conduct warranting professional discipline that he should have disclosed, the
outcome would have been the same.
II. Dr. Kozachuk’s Diagnosis of PRES
The parties dispute whether J.R.S. suffered the injury for which the Swicks
seek compensation. On this issue, the Swicks bear the burden of proof.
Broekelschen v. Sec'y of Health & Human Servs., 618 F.3d 1339, 1346 (Fed. Cir.
2010); Lombardi v. Sec'y of Health & Human Servs., 656 F.3d 1343, 1352 (Fed.
Cir. 2011) (“under Broekelschen, identification of a petitioner's injury is a
prerequisite to an Althen analysis of causation”). In doing so, the special master is
“not ‘diagnosing’ vaccine-related injuries.” Knudsen v. Sec'y of Health & Human
Servs., 35 F.3d 543, 549 (Fed. Cir. 1994). Rather, the special master evaluates the
evidence presented and determines whether the petitioners have met their burden
of establishing that the vaccinee suffers from the disease. See Lombardi, 656 F.3d
at 1353–56 (reviewing evidence that the special master considered in determining
whether petitioner suffered from a particular disease and finding that the special
master's factual findings were not arbitrary or capricious).
In the discussion of whether the Swicks met their burden of establishing, by
preponderant evidence, that J.R.S. suffered from PRES, the parties touch on the
diagnostic criteria. See Pet’rs’ Br. at 24-26 (citing Dr. Kozachuk’s reports and
four articles); Resp’t’s Br. at 9 (citing Dr. Kohrman’s report and two articles). An
abstract from a case report of a 19-year-old pregnant woman with PRES states
“Diagnosis of the syndrome can be difficult.” Exhibit 33 (Mehtap Honca et al.,
Posterior Reversible Encephalopathy Syndrome in an Eclamptic Patient After
Cardiac Arrest; Case Report and Literature Review, 42 Turk. J. Anaesth. Reanim.
50-53 (2014)) at 50.7
For setting out relevant diagnostic factors, the Endo article is useful because
it focuses on pediatric cases of PRES. These authors defined PRES as “a clinical
and radiological syndrome, characterized by headache, confusion, seizures, and
visual disturbance associated with transient characteristic lesions on neuroimaging,
predominantly in the posterior part of the brain.” Exhibit 29 (Ayumi Endo et al.,
Posterior reversible encephalopathy syndrome in childhood: report of four cases
and review of the literature, 28(2) Pediatr Emerg Care 153-57 (2012)) at 153.
7 The petitioners’ cover page to exhibit 33 does not cite the article accurately.
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Whether PRES can occur in children as young as J.R.S. is not entirely clear as
another article analyzed pediatric cases of PRES and found that none happened in
an infant. Exhibit E, tab 4 (Vivek Gupta et al., Imaging Findings in Pediatric
Posterior Reversible Encephalopathy Syndrome (PRES): 5 Years of Experience
From a Tertiary Care Center in India, 31(9) J. Child Neuro. 1166-73 (2016)) at
1167.
While Gupta states an “autopsy in posterior reversible encephalopathy
syndrome is distinctly rare,” id. at 1171, the record in this case contains one article
about the neuropathology of a fatal PRES case. The authors in that article reported
that at the autopsy from an eight-year-old girl, “the occipital and cerebellar white
matter and focal occipital cortical gray matter showed a spectrum of microvascular
changes.” Exhibit 40 (John N. Kheir et al., Neuropathology of a fatal case of
posterior reversible encephalopathy syndrome, 13(5) Pediatr. Dev. Pathol. 397-403
(2010)) at 397.
To support Dr. Kozachuk’s diagnosis of PRES in J.R.S., the Swicks cite two
symptoms and one set of signs as identified by him. For symptoms, the Swicks
point to J.R.S.’s fussiness after the July 25, 2011 vaccinations, which may have
been due to constipation, and the single episode of vomiting. To the Swicks,
J.R.S.’s fussiness “correlated to symptoms of headache, confusion, and decreased
alertness in adult.” Pet’rs’ Br. at 25. For signs of PRES, Dr. Kozachuk notes
various findings on J.R.S.’s autopsy. See id. at 24, quoting exhibit 11 (Dr.
Kozachuk’s first report) at 12.
The Swicks’ presentation is not persuasive. As to symptoms, the fussiness
can be set aside because it is more likely than not that J.R.S. was constipated. See
exhibit E at 9-10. Eliminating fussiness leaves a single episode of vomiting,
involving a relatively large amount of vomit. However, vomiting – even large
amounts – is relatively common in children less than four months as any parent
knows. This is far too slender a reed to support the PRES diagnosis.
As to signs at autopsy, the Swicks are in a difficult position because they are
taking a position contrary to the evaluation of the neuropathologist who examined
J.R.S.’s brain. Dr. Kirby’s case summary states “examination of the brain fails to
reveal a CNS cause of death. Although somewhat non-specific, the findings would
be in keeping with an asphyxial death.” Exhibit 6 at 28. Implicitly, the Swicks are
challenging Dr. Kirby’s finding, essentially arguing that she missed signs of PRES.
In trying to establish, on a more likely than not basis, the soundness of Dr.
Kozachuk’s diagnosis, the Swicks have a challenging task, as autopsy reports “are
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contemporaneous records made by a health care professional outside the context of
litigation, and should be given the same probative weight as other medical
records.” Nordwall v. Sec’y of Health & Human Servs., 83 Fed. Cl. 477, 488
(2008), app. dismissed voluntarily, 331 Fed. App’x 720 (Fed. Cir. 2009). The
Swicks’ challenge is even greater because in trying to overturn Dr. Kirby’s
neuropathological finding, they are relying upon a doctor who appears to have no
specialized training in neuropathology and who even recommended that they seek
the assistance of a neuropathologist. Under these circumstances, the Swicks have
failed to present persuasive evidence that J.R.S.’s autopsy supports the finding of
PRES.8
In finding that the Swicks failed to meet their burden of proving that J.R.S.
had PRES, the undersigned has considered the parties’ arguments about whether
J.R.S.’s death should alternatively be categorized within the group known as
Sudden Infant Death Syndrome (SIDS). This general debate encompasses a
specific controversy over the significance or non-significance of how J.R.S. was
found on the morning of his death — on his stomach. Overall, these disputes were
not particularly insightful. While ruling out other possible reasons for J.R.S.’s
death could advance the Swicks’ case to some degree, the Swicks do not prevail
simply by establishing, on a more likely than not basis, that J.R.S. did not die from
asphyxia or SIDS. The Swicks’ burden is to establish that J.R.S. had PRES.9 For
the reasons explained above, the evidence falls far short.
8 A final piece of evidence weighing against the Swicks is that the Secretary’s expert, Dr.
Kohrman, stated that J.R.S.’s autopsy “demonstrated no evidence for PRES.” Exhibit E at 9.
While Dr. Kohrman’s opinion aligns with Dr. Kirby’s conclusion, Dr. Kohrman’s opinion about
neuropathology seems to suffer from a similar impairment as Dr. Kozachuk’s opinion: a relative
lack of expertise in neuropathology. In addition, Dr. Kohrman’s analysis is relatively
conclusory. Given the numerous technical terms in the autopsy, the Secretary would have been
better served if Dr. Kohrman had explained more thoroughly how he reached his opinion. For
these reasons, the undersigned has not given Dr. Kohrman’s opinion about neuropathology much
weight.
9 Dr. Kozachuk’s opinion is that J.R.S. did not die from SIDS. Exhibit 21. Although Dr.
Kozachuk recommended additional studies and additional experts, the Swicks did not obtain
them. Thus, the Swicks base their claim “upon the facts showing that J.R.S.’s demise was not
consistent with the usual associations of SIDS, and instead that the child died as a result of
posterior reversible encephalopathy syndrome, or PRES, caused by his vaccinations.” Pet’rs’ Br.
at 16.
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The Swicks have failed to establish that Dr. Kozachuk presented a
persuasive opinion that J.R.S. suffered from PRES. This gap in their proof means
that they are not entitled to compensation.
III. Vaccines as a Potential Cause of PRES
Even if the Swicks had established on a more-likely-than-not basis that
J.R.S. suffered from PRES, they would still be required to prove with preponderant
evidence that the vaccines caused J.R.S.’s PRES. This evaluation would require an
assessment of the evidence in light of the Federal Circuit's three-prong test set forth
in Althen v. Secʼy of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). See Broekelschen, 618 F.3d at 1350.
The parties submitted evidence in support of their respective positions. This
evidence included the reports from the experts, medical literature, and testimony
from the experts. The parties summarized this evidence in their briefs. See Pet’rs’
Br. at 19-36; Resp’t’s Br. at 13-16. The undersigned has considered the evidence
and arguments.
Nevertheless, the undersigned declines to determine, strictly as a
hypothetical matter, how the causation evidence preponderates. As the Federal
Circuit has explained, “[i]n the absence of a showing of the very existence of any
specific injury of which the petitioner complains, the question of causation is not
reached.” Lombardi, 656 F.3d at 1353.
In addition, the inquiry into causation is “frequently more difficult.”
Hibbard v. Secʼy of Health & Human Servs., 698 F.3d 1355, 1365 (Fed. Cir.
2012). Since any analysis would necessarily be counter-factual in that it would
assume that J.R.S. suffered from PRES when preponderant evidence shows that he
did not, exploring the more challenging question of whether any relevant vaccine
can cause PRES is not necessary to decide the Swicks’ case. Therefore, no
findings are made regarding their proof under Althen.
Conclusion
The loss of a beloved child so early in his life caused immense grief for the
Swicks. They deserve sympathy.
However, special masters are tasked with determining whether petitioners
have established that they are entitled to compensation based upon the evidence.
Here, the Swicks have not established, on a more likely than not basis, a critical
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step in their proof — namely, that J.R.S. suffered from PRES. Without this
predicate finding, the Swicks cannot prevail.
The Clerk’s Office is instructed to issue a judgment in accord with this
decision.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
15