VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00789
Package ID: USCOURTS-cofc-1_15-vv-00789
Petitioner: I.R.M.
Filed: 2015-07-27
Decided: 2020-08-20
Vaccine: Flumist / live attenuated influenza vaccine (LAIV)
Vaccination date: 2014-09-24
Condition: sudden unexplained death in childhood (SUDC) / alleged fatal seizure after Flumist
Outcome: denied
Award amount USD: 

AI-assisted case summary:
On July 27, 2015, Lindsey and Raynard Martin, as representatives of the estate of their deceased son, I.R.M., filed a petition under the National Vaccine Injury Compensation Program. They alleged that the intranasal Flumist version of the influenza vaccine, administered on September 24, 2014, caused their son's death two days later. The petitioners' theory of causation posited that the live attenuated influenza vaccine (LAIV) triggered an innate immune or cytokine response in a child with an unrecognized structural brain vulnerability, leading to a fatal seizure during sleep. I.R.M., born September 1, 2011, had a history of recurrent ear infections and an ear deformity but no significant neurological history prior to the vaccination. On September 24, 2014, at approximately 4:00 p.m., he received the Flumist vaccine intranasally. No immediate post-vaccination reactions like fever or lethargy were noted, and he was reportedly active and playing the following day. On the morning of September 26, 2014, nearly 40 hours after vaccination, I.R.M. seemed tired and was difficult to wake. His babysitter later put him down for a nap. When his mother arrived around 4:00 p.m., she found him unresponsive, face down in vomit, with discoloration and a stiff jaw. Paramedics transported him to Riverside Hospital, where he was pronounced dead at 5:05 p.m. The autopsy did not determine a definitive cause of death. Key organs, including the heart, were donated, limiting examination. The forensic pathologist noted no congenital abnormalities or trauma, listing the cause of death as undetermined. Pathological findings included mild to moderate pulmonary and cerebral edema and congestion, equivocal focal acute hypoxic-ischemic changes in the hippocampus, and a hippocampal malformation. Genetic testing could not rule out a cardiac channelopathy. Petitioners presented three experts: Dr. Douglas Miller (neuropathologist), who opined that I.R.M. had an undiagnosed structural brain abnormality predisposing him to fatal seizures and that Flumist likely triggered the event; Dr. Marcel Kinsbourne (pediatric neurologist), who supported a seizure-threshold theory based on temporal proximity and reported malaise; and Dr. Alan Levin (immunologist and pathologist), who proposed Flumist caused an innate immune response with cytokine production that could lower seizure threshold. The respondent relied on two experts: Dr. Brent Harris (pediatric neuropathologist), who accepted the possibility of a hippocampal abnormality and seizure but found no identifiable vaccine trigger, and Dr. Christine McCusker (pediatric immunologist), who disputed the cytokine theory, stating Flumist would not produce the proposed systemic immune effects. Chief Special Master Brian H. Corcoran denied entitlement on May 8, 2020, finding the causation theory scientifically unreliable and unsupported by the record, noting the absence of post-vaccination symptoms, the nonspecific nature of the reported tiredness, the lack of autopsy evidence of inflammation, and the experts' reliance on temporal proximity. He concluded that the evidence did not preponderantly support the theory that Flumist caused a fatal seizure through the proposed mechanism. Judge Marian Blank Horn denied petitioners' motion for review on August 20, 2020, agreeing that the special master's evaluation was reasonable and that the record did not show a logical sequence connecting the Flumist vaccine to I.R.M.'s death by a preponderance of the evidence. No compensation was awarded.

Theory of causation field:
Flumist/live attenuated influenza vaccine (LAIV) administered on September 24, 2014, to I.R.M. (age 3.06 years). Alleged injury: sudden unexplained death in childhood (SUDC) on September 26, 2014, approximately 40-49 hours post-vaccination, attributed to a fatal seizure during sleep. Petitioners' theory: Flumist triggered an innate immune response and cytokine production (specifically IL-1 beta), which lowered the seizure threshold in a child with an unrecognized hippocampal malformation, leading to a fatal seizure. Petitioner experts: Dr. Douglas Miller (neuropathologist) opined on brain abnormality and vaccine-triggered seizure; Dr. Marcel Kinsbourne (pediatric neurologist) supported a seizure-threshold theory based on temporal proximity and malaise; Dr. Alan Levin (immunologist/pathologist) proposed the cytokine mechanism. Respondent experts: Dr. Brent Harris (pediatric neuropathologist) accepted hippocampal abnormality and potential seizure but found no vaccine trigger; Dr. Christine McCusker (pediatric immunologist) rebutted the cytokine/systemic inflammatory mechanism. Key evidence: I.R.M. had no immediate post-vaccination reaction; was active on Sept. 25; seemed tired and difficult to wake on Sept. 26 morning; found unresponsive after a nap; autopsy cause undetermined, with hippocampal malformation noted; no autopsy evidence of systemic inflammatory response. Chief Special Master Brian H. Corcoran denied entitlement on May 8, 2020, finding the causation theory scientifically unreliable and unsupported by the record. Judge Marian Blank Horn denied review on August 20, 2020, agreeing with the Special Master's assessment. Attorneys: Richard Gage for Petitioner, Julia M. Collison for Respondent. No award.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-00789-0
Date issued/filed: 2020-06-08
Pages: 46
Docket text: PUBLIC DECISION (Originally filed: 05/08/2020) regarding 85 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:15-vv-00789-MBH Document 86 Filed 06/08/20 Page 1 of 46
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-789V
(to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
LINDSEY MARTIN and RAYNARD * Chief Special Master Corcoran
MARTIN, as representatives of the estate of *
I.R.M., deceased, *
* Filed: May 8, 2020
Petitioners, *
* Sudden unexplained death in
v. * children; Althen prong one; Innate
* immune response; Cytokines;
SECRETARY OF HEALTH AND * Brain malformation; Expert
HUMAN SERVICES, * competence; Seizure.
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.
Julia M. Collison, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION DENYING ENTITLEMENT1
On July 27, 2015, Lindsay and Raynard Martin filed a Petition under the National Vaccine
Injury Compensation Program (the “Vaccine Program”2), on behalf of their deceased son, I.R.M.,
alleging that the Flumist version of the influenza (“flu”) vaccine he received on September 24,
2014, caused his death two days later. Pet. at 1-2 (ECF No. 1). A hearing in this matter was held
on May 23–24, 2019.
1 This Decision will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access
to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
Otherwise, the entire Decision will be available to the public in its current form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Case 1:15-vv-00789-MBH Document 86 Filed 06/08/20 Page 2 of 46
Having had the opportunity to consider the medical records, expert reports, and testimony
adduced at hearing, I now deny entitlement to a damages award. This claim arises from an immense
tragedy—but my sympathies for the Martins’s suffering are not a sufficient basis for a favorable
decision. At bottom, the causation theory offered herein is scientifically unreliable, especially in
light of the unpersuasive testimony offered by two of Petitioners’ three experts. And although it is
not unreasonable for Petitioners to have speculated that a vaccine I.R.M. received two days prior
to his death might have played some role in the occurrence, the medical record in this case does
not preponderantly support that conclusion.
I. Factual Background
I.R.M. was born full-term on September 1, 2011. Ex. 8 at 103. Before he was two years
old, I.R.M. was noted to have an ear deformity (Ex. 3 at 170), and he had tubes placed in his ears
due to recurrent ear infections. Ex. 4 at 201, 206-7; Ex. 3 at 153. The record establishes no other
notable health concerns. For his early years of life, I.R.M. received his usual vaccines on schedule
without notable complications.
On September 24, 2014, at approximately 4:00pm, I.R.M. (now three years old) received
a dose of Flumist (the quadrivalent live attenuated influenza vaccine (“LAIV”))3 intranasally (the
manner of this particular vaccine’s administration) at a well-child visit to his pediatrician. Ex. 3
at 234–39. The records reveal no evidence of any immediate or transient reaction of the kind
often associated with vaccination, such as fever or lethargy. Indeed, as Petitioners have admitted,
I.R.M. was active and playing on the first day following vaccination—September 25, 2014 – with
no indication of a concerning reaction. Ex. 73 (Affidavit of Lindsey Martin, dated March 25,
2019) at 1-2. By the morning of September 26, 2014, however—now almost 40 hours post-
vaccination—I.R.M. seemed tired in the recollection of Mrs. Martin, who reports unusual
difficulties in waking him. Pet. at 1; Ex. 9; Ex. 73 at 2.
Mrs. Martin took I.R.M. to his babysitter’s home later that morning. Ex. 78 at 1
(declaration of Karla Sue Hubacher). Although the babysitter recalls that morning passing
“unremarkably,” she asserted in statements prepared closer to the 2019 trial date that I.R.M.
seemed tired and was reluctant to eat; her contemporaneous statement to police officers noted no
such concerns. Id.; Ex. 55 at 15. She also has maintained in more recent statements that I.R.M.
specifically informed her that he did not feel well, and she therefore opted to have him nap, still
assuming that he was simply tired. Ex. 78 at 1–2.
3 “LAIV; a live, attenuated, cold-adapted trivalent vaccine containing temperature-sensitive type A and B strains of
influenza virus that can replicate in the nasal passages but not in the lower respiratory tract; administered intranasally
for immunization against influenza in persons ages 2 through 49 years.” Influenza Virus Vaccine Dorland’s Illustrated
Medical Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=116536 (last visited May 5, 2020)
(Dorland’s Online).
2

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At approximately 1:30 p.m., I.R.M. was put down for a nap. Ex. 4(2) at 125; Ex. 55 at 15.
The babysitter informed the initial police responders that she had checked on I.R.M. during his
nap and had noticed nothing of concern. However, when Mrs. Martin later came to pick I.R.M.
up around 4:00 p.m., she discovered him face down in vomit, his nose and ears discolored, and
his jaw stiff, making CPR difficult. Ex. 55 at 15; Ex. 73 at 3. Paramedics were contacted and
transported I.R.M. to the Riverside Hospital emergency room in Columbus, Ohio, where
resuscitation attempts continued in the emergency room. Tragically, all such efforts proved
unsuccessful, and I.R.M. was pronounced dead at 5:05 p.m., on September 26, 2014. Ex. 4(2) at
125–26; Ex. 55 at 15.
Autopsy efforts thereafter to ascertain the cause of I.R.M.’s death were complicated by the
fact that key organs, including the heart, had been harvested for donation, inhibiting direct
dissection or visualization of the heart grossly or microscopically, to rule out cardiac infections or
cardiomyopathies. Ex. 4(2) at 135; Ex. C at 6. The autopsy report, prepared by Dr. Kent
Harshbarger, a forensic pathologist for Franklin County, Ohio, and based on examination
performed September 28, 2014, officially states that the cause of death was undetermined, with no
congenital abnormalities or signs of trauma noted. Ex. 5 at 142. The pathological findings at
autopsy for I.R.M included mild to moderate pulmonary edema and congestion, mild to moderate
cerebral edema and congestion, equivocal focal acute hypoxia-ischemia changes in the
hippocampus, and hippocampal malformation. Ex. C at 6 (citing Ex. 5). Genetic testing could not
rule out a cardiac channelopathy. Ex. 6.
II. Expert Reports and Hearing Testimony
A. Petitioner’s Experts
1. Dr. Douglas Miller – Dr. Miller, a neuropathologist, testified at hearing and
filed a single expert report. Report, dated April 4, 2018, filed as Ex. 70 (ECF No. 60-1) (“Miller
Rep.”). He offered the opinion that the Flumist vaccine likely caused I.R.M.’s death, based on his
contention that I.R.M. possessed a previously-undiagnosed structural brain abnormality that made
him susceptible to seizures in sleep capable of causing death. Tr. at 35–36.
Dr. Miller studied biology in college and graduated from Williams College in 1974 with
highest honors. Miller CV, filed on April 9, 2018 as Ex. 71(ECF No. 60-2). He then earned his
M.D. at the University of Miami School of Medicine in 1978. Id. at 1. Two years later he obtained
his Ph.D. in physiology and biophysics from the University of Miami. Id. After his formal
education he began his residency training at the Massachusetts General Hospital, where he was a
anatomic pathology resident from 1980 to 1982. Id.; Tr. at 5. Then he served as a neuropathology
resident from 1982 to 1984. Tr. at 5. Dr. Miller also serves on the editorial boards of three
neurology or neuropathology journals. Tr. at 10. Dr. Miller is not an immunologist. Id. at 36.
Dr. Miller is currently a clinical professor at the University of Missouri School of
Medicine, and (since the fall of 2018) has been interim chair for the Department of Pathology and
3

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Anatomical Sciences, where he performs different teaching duties. Tr. at 6–8. He identified himself
as the sole neuropathologist in Central Missouri, resulting in him being called on to assist medical
examiners in autopsies (sometimes in criminal contexts) where neuropathologic issues are raised.
Id. at 7. In such circumstances, he will commonly examine brain or other central nervous system
tissues to evaluate “unexpected findings.” Id. at 8–9.
Dr. Miller first discussed his evaluation of the coroner’s report for I.R.M. He deemed the
“most important thing” derived from the report the fact that it did not specify “an anatomic cause
of death,” meaning (as the examiner concluded) I.R.M.’s death fell generally into the category of
sudden unexpected death of a child, or “SUDC.” Tr. at 12, 13. He noted that the medical examiner
observed no presence of an infectious process in the lungs, although they were slightly heavy and
revealed some congestion and edema. Id. at 12.4 He considered I.R.M.’s brain weight, however,
to be remarkable for a three-year-old, adding that the brain itself showed the existence of cerebral
edema or swelling. Id. at 12–13, 38–39. He also noted that genetic testing performed by the
examiner to look for evidence of congenital cardiac arrhythmias was negative. Id. at 13. Overall,
Dr. Miller did not contest the examiner report’s findings, and observed that his interpretation of
them was little different from the observations of Respondent’s pathologist expert, Dr. Harris. Id.
at 24, 64-65.
Beyond the report, Dr. Miller evaluated slides of brain tissue samples taken from I.R.M.
He noted that one slide revealed a “piece of temporal lobe with hippocampus,” part of the brain
that he deemed critical to memory formation. Miller Rep. at 4; Tr. at 14. He particularly pointed
out the “dentate gyrus” section of the hippocampus tissue sample (which, he explained, resembles
a sweeping animal horn). Id. at 15. This section is comprised of a curved “line of small granular
neurons,” and acts as a gate to regulate impulses from the nervous system coming into the
hippocampus (a brain zone in which seizure activity can be generated). Id. at 14, 18. The neurons
of which the dentate gyrus is constituted are particularly sensitive to lack of oxygen (hypoxia) or
reduced blood supply (ischemia). Id. at 14–16.
Normally the dentate gyrus would be expected to form a thin and narrow band of tightly-
packed cells, but the dentate gyrus evident from the slide in question appeared “anatomically
abnormal,” something Dr. Miller proposed I.R.M. had likely been born with (and thus pre-dated
vaccination). Tr. at 16, 41. Medical studies, however, have associated abnormal development of
the dentate gyrus with not only seizure propensity (since it was often seen in patients diagnosed
with epilepsy), but also have proposed that this kind of abnormality might explain sudden infant
death syndrome (“SIDS”) as the product of single nocturnal seizure, although SIDS has been more
closely associated with other risk factors (in particular sleeping in a prone position). Id. at 17–18,
41, 43; H. Kinney et al., Sudden Death, Febrile Seizures, and Hippocampal and Temporal Lobe
4 Dr. Miller did allow for the possibility that I.R.M. might have had asthma based upon his autopsy lung presentation.
Tr. at 38.
4

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Maldevelopment in Toddlers: A New Entity, 12 Pediatr. Dev. Pathol., 6:455–63 (2009), filed as
Ex. 64 (ECF No. 46-1) (“Kinney I”). Dr. Hannah Kinney, a Harvard Medical School pathologist,
is the primary author of Kinney I, and she has performed extensive research into the possible
causes of SIDS and SUDC.
Such a sleep seizure might result in a “fatal event” characterized by a cessation of breathing
and brain edema. Tr. at 18. Dr. Miller deemed it “well settled” that children with this particular
brain abnormality possess a risk factor for unexplained death, noting that they are overrepresented
amongst those with diagnosed epilepsy who die (an occurrence termed sudden unexplained death
in epilepsy, or “SUDEP”), as well as in SIDS or SUDC. Tr. at 19–20, 41, 62, 293.5 He later
admitted, however, that Kinney I expressly did not state that this hippocampal anomaly was also
associated with SIDS—and although he claimed familiarity with “subsequent studies” since
Kinney I’s publication in 2009 making this link, he did not file any in this matter.6 Id. at 43; Kinney
I at 8 (“[a]lthough prone sleep position is associated with SIDS, febrile seizures and hippocampal
abnormalities are not”). He also noted that because the presence of the abnormality could only be
detected on autopsy, its exact causal role in seizure or sudden unexplained death was ultimately
unknown. Id. at 43, 44 (“[y]ou can’t say that the seizure was generated by the abnormality”).
Another component of Dr. Miller’s causation opinion was rooted in the interplay of the
concept of “seizure threshold” with brain abnormalities akin to what I.R.M. is alleged to have
possessed. The neurons making up the dentate gyrus are pyramidal, or triangular, in structure, and
evidence of their cell death (whether due to hypoxic or ischemic insult) can easily be discerned
under magnification given the idiosyncratic form of these neurons. Tr. at 20–21. A child possessing
the abnormality alleged herein could be characterized as having a lower threshold to seizure, and
might even have had subclinical seizures in the past. Id. at 22. Thus, evidence of some prior
subclinical seizures would support the contention that a later seizure explained sudden death. Id.
at 24. He saw some such evidence from I.R.M.’s brain tissue slides (although he admitted the
evidence was at best “suggestive” of prior seizures). Id. at 23.
In a subsequent discussion of some of the SUDC-oriented literature filed in this case (and
some items that were only filed after), including Kinney I, Dr. Miller acknowledged that these
articles largely did not address “vaccination or infection to any significant degree at all” as a
possible risk factor. Tr. at 293, 299–301. But he emphasized Kinney I’s embrace of the concept
5 Dr. Miller claimed to be “in the middle of” preparing his own paper based on a survey of over 1,000 child autopsies
that he represented further supported his contention of the association between this brain abnormality and unexplained
death, although it was not filed in this case (and may not yet have been published). Tr. at 19.
6 After the hearing, Petitioners filed an additional article co-authored by Dr. Kinney addressing SUDC, but which was
created two years before the 2009 Kinney article discussed by Dr Miller at hearing. See H. Kinney et al., Sudden Death
in Toddlers Associated with Developmental Abnormalities of the Hippocampus: A Report of Five Cases, 10 Pediatr.
Dev. Pathol. 208-23 (2007), filed as Ex. 80 (ECF No. 76-2). This article is also identical to Petitioners’ earlier, timely-
filed Ex. 31.
5

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that the dentate gyrus abnormality (which serves as “a gate for electrical impulses in the
hippocampus”) results in a lower seizure threshold—meaning, in turn (in Dr. Miller’s estimation)
that “anything else” (such as the early phases of sleep) could help increase the risk of seizure. Id.
at 294–95, 301–02. Dr. Miller admitted, however, that such literature at most only associated
various factors with sudden death— the articles did not state that such a factor caused a lowering
of the seizure threshold. Id. at 302. In addition, some of these articles spoke either of febrile seizure
and SUDC in the presence of the hippocampal abnormality, or acknowledged that a significant
percentage of SUDC cases (a third) did not involve hippocampal abnormalities. Id. at 304.
On the slides containing I.R.M.’s brain tissue samples, Dr. Miller saw evidence of both
existing and prior seizures. He pointed out “scattered pyramidal neurons” from one of I.R.M.’s
slides that appeared to him to have suffered some kind of hypoxic/ischemic injury. Miller Rep. at
5; Tr. at 22. Such processes would have preceded I.R.M.’s death. Id. at 61–62. Dr. Miller even
observed something that could be a “scar” reflecting prior neuron death (and thus evidencing an
earlier, subclinical seizure), although he was somewhat equivocal in so asserting. Tr. at 22
(previous seizure “could” result in the finding Dr. Miller observed). Dr. Miller also proposed that
one of the slides he reviewed (prepared from sample tissue at his request for this case) revealed
“Chaslin gliosis,” or the abnormal presence of astrocytes,7 that have in the past been considered
“suggestive” of epilepsy or prior seizures—although Dr. Miller readily admitted that this evidence
was “not entirely specific,” and did not otherwise prove that I.R.M. had in fact previously
experienced seizures. Miller Rep. at 4; Tr. at 22–24.
Dr. Miller then turned to the more overt evidence derived from the factual circumstances
of I.R.M.’s death. Noting that I.R.M. died after being put down for a nap, and that he was found
with vomit around his head, Dr. Miller deemed it likely that I.R.M. suffered “the kind of event that
Dr. Kinney and her colleagues have been describing in association with his hippocampal
abnormality”—a seizure event in sleep. Tr. at 24. A reasonable explanation for why I.R.M. suffered
a seizure at this time was, in Dr. Miller’s view, I.R.M.’s receipt of the Flumist vaccine a few days
prior. Id. at 25. Vaccination of this kind would, he maintained, cause the production of “a variety
of inflammatory cytokines” that could thereafter cross the blood-brain barrier, enter the brain, and
(among other things) help lower the seizure threshold, contributing to a predisposition to seizure
(as Dr. Miller surmised was the case with I.R.M., given the evidence of his hippocampal
abnormality). Id. at 25–26.
Those cytokines would include “neuromodulators or synaptic modulators” that could
impact “the electrical activity of the brain,” thereby causing a lowered seizure threshold in a
different way. Tr. at 34, 295. Dr. Miller did not, however, identify a specific cytokine that might
be to blame for this aberrant response (and disclaimed the expertise necessary to do so). Id. at 54–
7 Chaslin gliosis is “[a] condensation of usually delicate horizontal glial fibers that are normally found in the cortex,
immediately beneath the pial surface, thought to be a consequence of convulsions.” William Pryse-Phillips,
Companion to Clinical Neurology 180 (2003).
6

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55. He also proposed that sleep itself was probably a contributing factor, noting that the connection
between the relevant hippocampal abnormality and sudden child death typically observed death
occurring while sleeping. Id. at 27–28. He deemed the risk heightened during the non-rapid-eye-
movement (“REM”) sleep phase. Id. at 44–45.
Importantly, Dr. Miller admitted that he could not with certainty diagnose a pre-death
seizure as having occurred in I.R.M.’s case, given that a seizure is an “electrical event,” the
evidence of which would not be present at the time a pathologist reviewed brain tissue samples.
Tr. at 31. He also agreed it could not be determined from the medical examiner report precisely
when such possible prior seizures might have occurred (although he speculated it could be virtually
any time in a given day, even if most likely during sleep) or what might have triggered them. Id.
at 48–49, 63. But he felt nevertheless the brain abnormalities he observed were “hints” that seizure
activity was possible for I.R.M., and might have previously occurred. Id. at 31–32.
Regarding when I.R.M.’s alleged vaccine-caused seizure occurred, Dr. Miller noted that
prior to being placed down for a nap, there was no outward evidence that I.R.M. was experiencing
any kind of encephalopathic process. Tr. at 26. But the fact that I.R.M. was found to be somewhat
stiff later that afternoon suggested that his death occurred close in time to the nap’s start (or “a
couple of hours before he was found”), as it would take time for rigor mortis to occur, and I.R.M.
was more likely in an early sleep cycle in which a seizure might occur. Id. at 27–29, 32. The
subsequent death process, however, would not be immediate, but would have occurred over several
minutes, as the brain was deprived of oxygen. Id. at 29. The evidence of I.R.M.’s swollen brain
did not rebut this view, Dr. Miller asserted, noting that a child’s brain could swell rapidly, and the
edema evident was not otherwise inconsistent with sudden death in sleep. Id. at 30.
Dr. Miller also proposed that the timeframe from vaccination to I.R.M.’s death was
medically acceptable. Although he acknowledged that “there’s a fairly rapid time course for some
of these proinflammatory cytokines to have blood levels that go up and then come back down,”
that would “not necessarily reflect what’s going on in the brain,” such that elevated levels of
cytokines could continue to exist in the brain even while levels in the blood were declining. Tr. at
35. He added that other vaccines might have a longer timeframe from administration to onset of
clinical evidence of pathology, but for “ordinary childhood vaccinations,” the risk would in his
view peak between two and three days, dropping off thereafter. Id. at 57.8 Dr. Miller noted that
8 On redirect, Dr. Miller discussed some of Respondent’s literature pertaining to the expected timeframes for the
peaking of proinflammatory cytokines induced by vaccination, arguing that the better articles suggested a peak within
24 hours. Tr. at 297, 310; Y. Kashiwagi et al., Production of Inflammatory Cytokines in Response to Diphtheria-
Pertussis-Tetanus (DPT), Haemophilus Influenzae Type B (Hib), and 7-valent Pneumococcal (PCV7) Vaccines, 10
Human Vacc. & Immunotherapeutics, 3:677-85 (2014), filed as Ex. A-9 (ECF No. 35-10) (“Kashiwagi”). Dr. Miller
admitted, however, that Kashiwagi observed “roughly similar” cytokine profiles in such a timeframe before and after
vaccination, whether or not a patient had experienced a fever, and also that Kashiwagi did not include the flu vaccine
at all in its tests of the impact of vaccines on proinflammatory cytokine levels. Id. at 310. By contrast, a different
article filed by Respondent was specific to Flumist, but showed a longer timeframe for cytokine upregulation. See M.
Barria et al., Localized Muscosal Response to Intranasal Live Attenuated Influenza Vaccine in Adults, J. Infectious
Diseases 207:115-24 (2013), filed as Ex. A-7 (ECF No. 35-8). Dr. Miller deemed the distinction in findings among
7

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vaccine-induced cytokine upregulation was the core aspect of this component of his opinion—as
well as the fact that he did not have a background in immunologic matters, and did not otherwise
include this part of his opinion offered at trial in his original written report. Id. at 36–37, 50, 54.
There were evidentiary limitations, however, to this sub-element of Dr. Miller’s opinion.
Dr. Miller admitted that he could not recall if Kinney I addressed the theorized role of cytokines
in unexplained infant/child death from seizure (Tr. at 45), although he purported that because it
was understood medically that fever (which can be a response to an infectious process) is mediated
by cytokines, Kinney I’s implication that fever or a febrile-induced seizure might be involved in
an unexplained death would mean that “cytokine actions” were in turn likely causal. Id. at 47. He
otherwise agreed that those articles he had filed did not support this part of Petitioner’s case. Id. at
46-47.
Dr. Miller also acknowledged that not all cytokines were proinflammatory, yet it was that
kind of cytokine in particular that was associated with a lowered seizure threshold. Tr. at 47. He
noted that there was no way to determine from the evidence available the precise nature of the
theorized aberrant cytokine response. Id. at 50. At most, the day prior to his death (as well as the
morning of), I.R.M. was reported to be “unusually lethargic,”9 which could be interpreted as
evidence of “something wrong with his brain,” which would in turn likely have been cytokine-
mediated. Id. at 58–59. And he could not reference any literature filed in this case supporting the
contention that the Flumist version of the flu vaccine could cause seizures (although he claimed
familiarity with unfiled literature showing “some increase in neurological manifestations” for both
children and adults after receipt of this form of the vaccine). Id. at 53. Indeed, he could point to no
“red flag” evidence from the autopsy report connecting the vaccination to I.R.M.’s death, other
than the fact of the vaccination itself plus the lack of evidence of any other potentially explanatory
factor. Id. at 57–58.
One issue coloring the entirety of Dr. Miller’s testimony was the question of whether
opinions he has offered in prior Vaccine Program cases (along with existing scientific and medical
literature relevant therein) involving SIDS had any bearing herein. On the one hand, Dr. Miller
was careful to state that the present claim is (from a literal standpoint) “not a SIDS case,” given
that I.R.M. was three when he received Flumist, whereas the SIDS classification applies only to
infants who die before the age of one. Kinney at 2; Tr. at 42. The theory that a vaccine could cause
SIDS also is based on the notion that “medullary abnormalities” present in infant brains, when
combined with other factors, could precipitate unexplained death, factors not bearing on the death
of a three-year-old (whose brain development is more advanced). Id. at 51. It was for this reason,
these items of literature meaningless, however, because “vaccines work by stimulating mechanisms that are common
across multiple types of antigens,” and hence in his view Kashiwagi’s findings still had weight. Tr. at 310–11.
9 Dr. Miller also noted that the Flumist vaccine’s package insert expressly predicts lethargy as a possible vaccine
response, adding that this response would likely be cytokine-mediated. Tr. at 59–60. It does not appear in this case,
however, that the package insert was ever filed to substantiate this assertion.
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Dr. Miller explained, that he mostly did not file literature relevant to SIDS that would have
supported certain aspects of his opinion herein. Id. at 42–43, 47.
At the same time, however, Dr. Miller admitted there were “similarities” between the kind
of causation theory he has offered numerous times in SIDS cases and the present matter. In
particular, he acknowledged that he had previously opined about the role of cytokines in causing
SIDS by impacting brain structures, but that such contentions had been generally rejected (with
the exception of one case that, at least as of the time of his testimony, was on appeal).10 Tr. at 52.
On redirect, Dr. Miller attempted to bulwark Petitioners’ contentions about cytokines
crossing the blood-brain barrier (a topic that is facially outside of his primary area of expertise).
He argued that “multiple papers” supported the concept, and attempted to discuss the biological
mechanisms by which this could occur. Tr. at 296. Here, he maintained, the cytokines would be
actively transported via receptors in the blood-brain barrier’s epithelial cells and/or brain blood
vessel capillaries, meaning that a high concentration of cytokines in the blood was not relevant to
whether transportation was occurring. Id. at 296–97. He added on redirect that he felt that any time
an “inflammatory process” (whether due to infection or vaccination) caused an elevation of
cytokines like IL-1β in the blood, “some level” of them would also get into the brain (although he
provided no substantiation for this opinion, which unquestionably falls outside of Dr. Miller’s
expertise). Id. at 308.
2. Dr. Marcel Kinsbourne – Dr. Kinsbourne, a pediatric neurologist by
training, prepared two reports in this case and testified at hearing. Tr. at 65–120; Report, dated
December 17, 2015, filed as Ex. 10 (ECF No. 12-2) (“Kinsbourne Rep.”); Report, dated April 28,
2017, filed as Ex. 56 (ECF No. 44-1) (“Kinsbourne Supp. Rep.”). He opined that the Flumist
vaccine triggered an immune-caused reaction in I.R.M., lowering his seizure threshold and
resulting in his subsequent death. Tr. at 69–70.
Dr. Kinsbourne is board certified in pediatrics. Kinsbourne CV at 1–2, filed on December
23. 2015 as Ex. 11 (ECF No. 12-3) Ex. 44 (ECF No. 81-1) (“Kinsbourne CV”). He received his
medical degree in England, and he has been licensed to practice medicine in North Carolina since
1967. Id. From 1967 to 1974, Dr. Kinsbourne served as an associate professor in pediatrics and
neurology and a senior research associate at Duke University Medical Center before holding a
series of academic positions, including professorships in pediatrics, neurology, and psychology.
Id. His clinical experience includes serving as a senior staff physician in Ontario from 1974 to
1980, and a clinical associate in neurology at Massachusetts General Hospital from 1981 to 1991,
although (as noted in other cases) many years have passed since he regularly saw patients. He is
10 Dr. Miller was likely recalling the case Boatmon v. Sec’y of Health & Human Servs., 941 F.3d 1351 (Fed. Cir.
2019). The special master’s decision in that SIDS case accepting Dr. Miller’s causation theory was overturned by the
Court of Federal Claims, and the Federal Circuit upheld that determination - although the Federal Circuit had not yet
issued its decision as of the date of Dr. Miller’s testimony in this matter.
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on the editorial board of several journals that deal with the brain, such as Brain and Cognition and
Brain Research. Kinsbourne CV at 2–3.
Cross-examination of Dr. Kinsbourne established a number of reasons to question the
degree to which his professional qualifications and experience (especially at present) made him a
good “fit” to opine on the issues in contention. Specifically, he admitted (a) having no hospital-
based clinical practice for approximately 25 years, (b) that he only occasionally sees patients on
referral, (c) that he had not treated a seizure or evaluated its cause in that entire period, and (d) that
his focus since ceasing to regularly see patients had been on teaching (mainly as a professor of
psychology teaching neuroscience to graduate psychology students), although he argued that he
nevertheless frequently considered issues pertaining to neurology and the brain. Tr. at 67, 87–90.
He similarly acknowledged that he lacked training and expertise in immunologic matters generally,
and the study of cytokines specifically, deferring on such issues to Petitioner’s third expert, Dr.
Levin. Id. at 91–92.
Dr. Kinsbourne began his testimony by noting that I.R.M. had generally been healthy
before receiving the Flumist vaccine. Tr. at 70. However, by the second day after vaccination, he
seemed lethargic to his caregivers—the kind of reaction well understood, Dr. Kinsbourne
maintained, to be vaccine caused, and more specifically cytokine-mediated. Id. at 71–72.11 To
explain how this could occur, Dr. Kinsbourne proposed that an innate (and hence mostly
immediate and nonspecific) reaction to vaccination would generate proinflammatory cytokines
that would “enter the brain” and specifically impact the hypothalamus. Id. at 71–73.
Dr. Kinsbourne next reviewed (and largely reiterated) Dr. Miller’s testimony, endorsing its
logic but endeavoring to add some detail to the theory presented earlier at hearing. See generally
Tr. at 73-77. He thus agreed with Dr. Miller that the hippocampal region of the brain had
significance with respect to seizures, and that a child with a “dentate abnormality” would be
especially susceptible to seizure activity due to a lower threshold for seizure, although that
susceptibility was distinguishable from a seizure trigger. Id. at 74–75, 103. He also briefly
discussed Kinney I in the context of such brain abnormalities, noting that even though the article
did not specifically identify vaccines as a trigger for seizure under such circumstances, it did
mention infection, and “one could conceive of a vaccination as being a mild controlled infection.”
Id. at 76.
The opinions expressed in Dr. Kinsbourne’s two reports are inconsistent, a fact he readily
acknowledged at hearing. In his first report, he admitted, he was “basically deferring to Dr. Levin”
that brain swelling had caused I.R.M.’s death. Tr. at 98. However, he subsequently altered his
11 Dr. Kinsbourne discounted the possibility that this lethargy could have reflected a postictal state, i.e. recovery from
an undiagnosed seizure the night before I.R.M.’s death. Tr. at 315–16. The description of I.R.M.’s status from the
record and the recollection of Mrs. Martin only suggested that I.R.M. did not feel well, not that he “was in the lower
level of consciousness” that would reflect a true postictal state. Id. at 316-17.
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opinion in conformity with Dr. Miller’s views about the purported brain abnormality observed in
autopsy and its likely association with seizure susceptibility. Id. at 92, 98, 101–02. He did note
that the autopsy revealed brain swelling, but attributed it to the seizure (rather than being the cause
of it, as he had previously opined). Id. at 99; Kinsbourne Rep. at 4 (“[t]he cytokine storm caused
[I.R.M.’s] brain cells to swell and rendered cerebral blood vessels permeable, permitting edema to
accumulate,” and thereafter resulted in his death).12 He affirmatively stated that his most up-to-
date opinion in this case was to be found in his second report. Tr. at 119.
In particular, Dr. Kinsbourne maintained, a vaccine like Flumist would contain some live
viral antigens comparable to a natural infection, which could have the same triggering effect, and
likely affected I.R.M. in the timeframe experienced. Tr. at 76–77, 112. As a LAIV, Flumist is
administered by spray directly into the mucosal areas of the nose, and formulated to induce a
systemic response akin to what is “observed after natural infection,” but without the degree of viral
replication in the upper or lower respiratory areas. Id. at 77–78; R. Cox et al., Influenza Virus:
Immunity and Vaccination Strategies. Comparison of the Immune Response to Inactivated and
Live, Attenuated Influenza Vaccines, 59 Scand. J. Imm. 1-15 (2004), filed as Ex. 19 (ECF No. 13-
1) (“Cox”). Dr. Kinsbourne deemed Flumist particularly useful for young children, given its
method of administration, and added that it would result in the production of proinflammatory
cytokines that he maintained would be “actively transported” into the brain, although he did not
specify how this would actually occur. Id. at 79.
On cross examination, Dr. Kinsbourne admitted he could not explain why prior
vaccinations I.R.M. had received had not similarly triggered seizure. Tr. at 104. He could only
observe that it was common in vaccine injury cases for a child to have no prior reaction before a
more serious occurrence, noting that in such cases “other circumstances in place” were probably
contributing to the vaccine’s impact. Id. Any prior vaccines I.R.M. received had likely also caused
a cytokine response akin to what he opined had occurred here, but medical science simply could
not explain why those occasions did not produce the fatal outcome at issue. Id. at 105.
To bulwark his contentions about the capacity of the flu vaccine generally to cause injury,
Dr. Kinsbourne referenced some literature discussing encephalopathies in children believed to be
associated with a wild flu virus strain. Tr. at 80–82; T. Togashi et al., Influenza-Associated Acute
Encephalopathy in Japanese Children in 1994-2002, 103 Virus Res. 75–78 (2004), filed as Ex. 51
(ECF No. 15-8) (“Togashi”). In Togashi, a particular flu viral strain (also included in the version
of Flumist received by I.R.M.) was detected in the cerebrospinal fluid of a group of Japanese
children suffering from an acute encephalopathy. Tr. at 81; Togashi at 77. A large percentage of
the studied sample also displayed increased levels of several different proinflammatory cytokines
(the existence of which Dr. Kinsbourne attributed to an immune response), and Togashi speculates
12 Dr. Kinsbourne also admitted that an element of the opinion in his first report that had been carried over to the
second, despite the change in overall focus —that “cytokines upregulate glutamate production” sufficient to induce
brain edema—was likely inaccurate (and certainly no longer relevant given his reliance on Dr. Miller’s opinion). Tr.
at 100 (“I’m not sure that I was right about that”), 101.
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that the measured cytokines might have played some pathologic role in the disease process,
perhaps by weakening the blood-brain barrier. Togashi at 78. But Dr. Kinsbourne admitted that he
did not contend that I.R.M. had suffered an encephalopathy, and Togashi’s authors say nothing
about vaccines being potentially causal of any injury process associated with encephalopathy—in
fact, they reached the opposite conclusion. Id. (“[t]he best way to avoid this severe complication
is no doubt prevention by influenza vaccination”); Tr. at 107. Dr. Kinsbourne also claimed that
Cox observed increased levels of similar cytokines after vaccination, although that article does not
squarely address post-vaccination cytokine levels, focusing instead on antibody levels. Cox at 5–
7.
These cytokines, Dr. Kinsbourne opined, would “make neurons more excitable,” thereby
exceeding certain levels maintained in the brain. Tr. at 85. As the ratio between inhibiting factors
and exciting factors (here, proinflammatory cytokines allegedly induced by vaccination) became
unbalanced, the seizure threshold would be reduced, thereby increasing the risk of seizure. Id. at
85–86, 108. Thus (and consistent with Dr. Miller’s testimony), I.R.M.’s purported brain
malformity already rendered him susceptible to seizure, but the addition of a vaccine that
encouraged lowering of the threshold only worsened conditions. Id. at 86.
Dr. Kinsbourne was unsure as to how much excess cytokine dysregulation per se had
caused I.R.M.’s proposed seizure, versus a “modest amount” of cytokines being sufficient to
precipitate a lowered threshold in a child with a susceptibility due to brain malformity, as alleged
to be the case here. Tr. at 99–100. He similarly could not identify the specific cytokines likely
most responsible herein for allegedly helping trigger a seizure in I.R.M. At most, he noted that
literature associated IL-1β with seizure activity, although he had “no idea” how much of the
cytokine would be required to induce seizure. Id. at 106. He also was unable to opine as to how
long the brain would have to be exposed to cytokines to have resulted in the purported seizure in
question, speculating that perhaps 10 to 15 minutes would be sufficient. Id. at 116–17. He did,
however, maintain that I.R.M.’s purported lethargy the morning prior to his death could establish
the existence of elevated cytokine levels. Id. at 118. Ultimately, Dr. Kinsbourne acknowledged
that the medical science relevant to how cytokines might encourage seizures was beyond his ken
(although he believed there was support for the contention), and deferred to Dr. Levin on the
subject. Id. at 96–97, 117.
There were other acknowledged deficiencies with Dr. Kinsbourne’s aforementioned
theory. First, he agreed that regardless of his personal views, it was not “well known” among the
medical and scientific community that Flumist vaccine causes seizure regardless of mechanism.
Tr. at 97. Indeed, he could not identify literature directly addressing the contention, although he
proposed that what was known about the association between other flu vaccines and seizure was
relevant as well to a different formulation of the flu vaccine, like Flumist. Id. He also allowed that
literature such as Togashi involved wild flu virus-induced fever preceding encephalopathies, and
not vaccines. Id. at 97–98. Here, there is no evidence that I.R.M. had a fever on the morning of his
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death (and indeed beyond claims of lethargy, no evidence he experienced any reaction at all post-
vaccination).
The circumstances in which I.R.M. died were significant to Dr. Kinsbourne’s opinion—in
particular the fact that he had been asleep. Dr. Kinsbourne distinguished between deep REM sleep,
when dreaming occurs, and the lighter, initial phase (non-REM sleep). Tr. at 83. The earlier non-
REM phase was the time of greatest seizure susceptibility, and hence when I.R.M. most likely
experienced the alleged seizure that caused his death—a conclusion bulwarked by the extent of
rigor mortis that I.R.M. displayed when he was discovered three or four hours after being placed
down for a nap. Id. at 83-84, 114. I.R.M.’s existing seizure threshold had, Dr. Kinsbourne
proposed, likely been lowered by the vaccine received two to three days earlier. Id. at 84–85. Of
course, the record in this case reveals that I.R.M. slept two nights post-vaccination without incident
(other than allegations of seeming lethargic upon waking) prior to the nap in question, but Dr.
Kinsbourne nevertheless maintained that (to his knowledge) this was the first time I.R.M. had
“gone to sleep in the period that followed an influenza vaccination.” Id. at 84.
On cross, Dr. Kinsbourne agreed that existing literature on SUDC did not discuss whether
vaccines could trigger death. Tr. at 108–09. Yet such literature did observe other factors—in
particular sleep position and the very fact of sleeping were linked to unexplained death, along with
febrile seizures for children with hippocampal abnormalities. Id. at 109-11; Kinney at 5–8. He
accepted the possibility that a different trigger could have caused the relevant purported seizure.
Id. at 114–15. However, the time interval from vaccination to I.R.M.’s death was in his view
acceptable enough to conclude the vaccine was the most likely trigger here. Id. at 116.
3. Dr. Alan Levin – Dr. Levin, a trained immunologist and pathologist,
testified at hearing and prepared two reports as well. Tr. at 121–67; Report, dated December 17,
2015, filed as Ex. 12 (ECF No. 12-4) (“Levin Rep.”); Report, dated April 27, 2017, filed as Ex. 57
(ECF No. 44-2). He proposed that I.R.M.’s receipt of Flumist was associated with his death,
although (like Dr. Kinsbourne) he revised his opinion somewhat after Dr. Miller weighed in with
a pathologist’s reading of the medical examiner’s report.
Dr. Levin has a master's degree in biochemistry and received his medical degree
from the University of Illinois in 1964. Levin CV at 1, filed on Dec. 23, 2015 as Ex 13P (ECF No.
12-5). Dr. Levin also received a juris doctor from Golden Gate University in San Francisco in
August 1995 and currently practices law. Id. at 1–2. He is board certified in allergy, immunology,
and clinical pathology. Id.; Tr. at 122. His CV lists numerous publications and states these
publications are primarily in the subjects of immunology, immunopathology, cancer biology and
treatments. See Levin CV at 4–5.
Dr. Levin claimed as well to have done research on immunologic issues, but “mostly for
the Vaccine Court”—suggesting he deems work on petitions as an expert to be akin to research
into the background medical or scientific question. Tr. at 123. He is not board certified in
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neuropathology, however (unlike Drs. Miller and Harris), and deferred to Dr. Miller on issues in
this case relevant to pathology (while maintaining he did have some up-to-date expertise with
pathologic issues). Id. at 143–44.
As with Dr. Kinsbourne, Respondent devoted some cross-examination time to highlighting
issues with Dr. Levin’s expert qualifications. In particular, Dr. Levin graduated from law school
25 years ago, and appears largely since that time to have been a practicing attorney rather than
immunologist or pathologist (although the clients he had represented often have brought claims
that impinge on the kinds of medical and scientific issues litigated in the Vaccine Program). Tr. at
138–39. He is not the primary physician for any patients today, even though he does see a few
patients every month, and (as noted above) has kept up to date his medical licenses. Id. at 140–41.
He also has not published any medical academic articles for over 20 years. Id. at 141.
Dr. Levin began his testimony with a general discussion of the immune system. He
objected to separating it into innate versus adaptive branches, maintaining instead that it is better
thought of as an overall system of “growth and differentiation,” through which animals have
developed means of responding to pathogens in the environment. Tr. at 124–25, 136. Traditionally,
the innate branch reflects the “soldiers at the gate”—cells that act in immediate response to
pathogenic patterns with some degree of recognition. Id. at 125–26. The adaptive branch, by
contrast, is comprised of cells that can respond to invading pathogen “tertiary structure” in a more
specific way, but which takes longer to be effective. Id. at 126. Vaccines function by immediately
provoking an inflammatory response in which cytokines generated in response to the vaccine in
turn communicate with, and thereby activate, other immunologic cells (including anti-
inflammatory cytokines that work later to “turn off the immune response”). Id. at 126–27.
In the kind of aberrant response to a vaccination alleged to have occurred in this case, Dr.
Levin reasoned, the driver of the disease process is the body’s immune response, which involves
inflammation. Tr. at 127, 129. Citing Cox, Dr. Levin observed that Flumist (as a LAIV) was
formulated to cause a “very vigorous protective response” that would be more effective than the
more-typical subcutaneous injection, because the LAIV would introduce a small part of a live virus
into the nose, thereby ensuring a systemic response comparable to what would be experienced
after a wild virus infection (albeit on a more limited scale). Id. at 129–32. The fact that the relevant
formulation of the vaccine likely contained the H3N1 wild virus strain was also significant, and
he deemed it a “superantigen” that would provoke an even more vigorous immune response. Id. at
152–53.13
13 Dr. Levin claimed that a number of papers supported this contention, although some of them were not referenced
in his report (or were only filed on the eve of hearing). Tr. at 153; W. Fischer et al., Live Attenuated Influenza Vaccine
Strains Elicits a Greater Innate Immune Response Than Antigenically-Matched Seasonal Influenza Viruses During
Infection of Human Nasal Epithelial Cell Cultures, 32 Vaccine 15:1761–67 (2014), filed as Ex. 77 (ECF No. 71-1)
(“Fischer”). But although Fischer (a study mainly seeking to compare the viral replication allowed by a LAIV versus
a wild type flu virus comparable to the LAIV’s viral components) did establish some of the immunologic benefits of
a LAIV, it says nothing about the allegedly pathologic effect of the cytokines such a vaccine would upregulate (which
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Because of the vaccine’s strong immune system-stimulating properties, Dr. Levin
reasoned, I.R.M. likely experienced “systemic” inflammation, outside of the central nervous
system, from receipt of the Flumist vaccine. Tr. at 156. He did not characterize this immune
response as a “cytokine storm,” however (contrary to Dr. Kinsbourne’s initial report, filed
simultaneously with Dr. Levin’s first report). Id. at 157; see Kinsbourne Rep. at 4. As a result, he
argued, the Flumist vaccine caused a seizure through the purported introduction of
proinflammatory cytokines into the brain. Tr. at 137, 152, 161.14 Notably, however, Dr. Levin’s
reports (which were filed prior to Dr. Miller’s) make no mention of seizure as having played any
role in I.R.M.’s death; Dr. Levin maintained at hearing that he “probably” did discuss seizure in
one of the reports, but this is incorrect. Id. at 155; but see Levin Rep. at 7 (“[t]he most probable
diagnosis is respiratory arrest secondary to cerebral edema”). His supplemental report is similarly
focused on cerebral edema.15
Dr. Levin could not identify the amount of cytokines necessary to spark this purported
reaction, but stated that in his opinion I.R.M.’s immune response had been sufficiently
“dysregulated” to harm him—largely due to some innate susceptibility to an immune response
(which he did not equate with the purported susceptibility to seizure that I.R.M.’s brain
abnormality was alleged to have incurred). Tr. at 150, 152. To support such contentions, Dr. Levin
discussed certain literature filed in this case that he maintained observed a relationship between
seizure activity and certain cytokines, like IL-1β. Tr. at 163–64; A. Vezzani et al., Il-1
Receptor/Toll-like Receptor Signaling in Infection, Inflammation, Stress and Neurodegeneration
Couples Hyperexcitability and Seizures, 25 Brain, Behavior and Imm. 1281–89 (2011), filed as
Ex. 69 (ECF No. 69) (“Vezzani”).
Vezzani (a review article) discusses some prior study’s findings that identified certain
cytokines (including IL-1β) within the CNS as contributing to the pathogenesis of existing
seizures, through impact of neuron excitability (as mentioned by Dr. Kinsbourne). Vezzani at
1283. However, Vezzani focuses more on the expression of such cytokines from inside the brain
by immune cells located there, like microglia, and/or attributable to direct/existing brain infection
or injury, than on the concept alleged herein—that cytokines induced by the immune system in the
did not include IL-1β), although Dr. Levin claimed that he believed such articles did stand for that conclusion. Tr. at
154; Fischer at 6–7.
14 Dr. Levin also cited other literature previously referenced by Dr. Kinsbourne, like Togashi, to underscore the point
that components of Flumist had been associated with neurologic injury in the past. Tr. at 132–33. However, his opinion
did not seem to turn on the proposition that any specific components of the vaccine are central to the harm it allegedly
caused, as opposed to the vaccine’s general capacity to provoke an inflammatory response. Id. at 161–62.
15 Even though Dr. Levin appeared at hearing to have accepted Dr. Miller’s opinion that seizure was the best
explanation for I.R.M.’s death, he had trouble letting go of his initial assertion that intracranial pressure caused by
brain edema was to blame for I.R.M.’s death. Tr. at 148–49, 156. In particular, he maintained the cytokines also
impacted the separation of endothelial cells (making up the blood-brain barrier) in the brain, resulting in more edema
than should normally occur. Id. at 166–67.
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periphery would migrate into the CNS—and says nothing about the capacity of vaccines to initiate
such a process. Vezzani at 1287–88 (“the evidence that innate immune responses . . . may converge
on common targets to increase neuronal excitability which can be sufficient to trigger seizures . .
. provides mechanistic insights to bridge the proposed causal link between CNS infections or brain
damage and epilepsy”) (emphasis added).
Dr. Levin accepted that I.R.M. had previously received the flu vaccine without a similar
reaction, but stressed the significance of the Flumist version as the special factor precipitating
injury. Tr. at 150–51. He deemed significant that Flumist is administered in the nose, since this
occurred in “proximity to the brain”—although he did not explain how such proximity made a
pathologic reaction more likely, other than assuming that this was self-evident. Id. at 151, 152. Dr.
Levin did emphasize that, under his theory, cytokines produced in response to the vaccine needed
to reach the brain (and thus cross the blood-brain barrier) in order to have the effect alleged. Id. at
159. He agreed on cross-examination, however, that the presence of cytokines in the brain could
also be the result of seizures rather than solely their cause. Id. at 319.
Regarding timing, Dr. Levin deemed the almost two-day period from receipt of the vaccine
to I.R.M.’s death to be medically acceptable. Tr. at 134–36. Certain literature, he reported,
suggested the immune response to Flumist was more robust than what a wild virus would elicit.
Id. at 133–34. Dr. Levin opined that the Flumist immune response would occur very fast, within
minutes to hours. Id. at 131. But even though there is no evidence that I.R.M. experienced any
reaction to the vaccine before the morning of September 26th (when he seemed lethargic) -- almost
40 hours post-vaccination, and thus far longer than the immediate reaction Dr. Levin seemed to
embrace -- Dr. Levin still felt that this timeframe was acceptable, arguing that the alleged malaise
I.R.M. displayed could be reasonably attributable to vaccine-induced cytokines. Id. at 135. As he
saw it, the brain malformity observed from I.R.M.’s autopsy simply did not get sufficiently
“excited” to react to the additional cytokines until that morning (thus suggesting it was only then
that there were enough cytokines to cause a reaction). Id. at 158.
On cross, Dr. Levin asserted that literature on SUDC did establish that vaccines had been
implicated in children’s unexplained deaths, although he could not recall what articles precisely
set forth this claim. Tr. at 160. He similarly maintained that the Flumist package insert noted the
possibility of seizure as an adverse event (Id.)—a contention that cannot be substantiated or
confirmed, since Petitioners never filed the package insert as an exhibit (despite being given the
opportunity to do so post-hearing). Id. at 60–61.
B. Respondent’s Experts
1. Dr. Brent Harris – Dr. Harris, a pediatric neuropathologist, testified for
Respondent and prepared two expert reports as well. Tr. at 170–212; Report, dated December 12,
2016, filed as Ex. C (ECF No. 38-1) (“Harris Rep.”); Report, dated April 10, 2019, filed as Ex. E
(ECF No. 67-1) (“Harris Supp. Rep.). He deemed it likely that I.R.M. had experienced a seizure
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resulting in SUDC, but opined that no trigger or instigating cause, including the Flumist vaccine,
could be identified. Tr. at 189.
Dr. Harris earned his B.A. in biology from Colby College in Waterville, ME, in 1986.
Harris CV at 1, filed on December 19, 2016 as Ex. D (ECF No. 38-9). From 1988 to 1995 he
earned his master’s degree in biochemistry from Hahnemann University in Philadelphia, a Ph.D.
from Georgetown University, and an M.D. from Georgetown University School of Medicine. Id.
Afterwards, he served as an anatomic pathology intern and resident at Stanford University School
of Medicine from 1995 to 1997. Id. He was the chief resident at Stanford University School of
Medicine, Department of Anatomic Pathology from 1997 to 1998. Id. He completed a
neuropathology fellowship at Stanford University School of Medicine from 1997 to 1999 and
another fellowship in Neurobiology at Stanford University School of Medicine from 1999 to 2002.
Id.
Currently, Dr. Harris serves as an associate professor at Georgetown University School of
Medicine in its pathology and neurology departments. Tr. at 171–72. He also has an adjunct role
at the VA Medical Center in D.C. and as the sole neuropathology consultant for the D.C. Medical
Examiner’s Office. Id. at 172. He reviews about thirty pediatric autopsies a year—including
autopsies for unexplained deaths in children and infants—for the D.C. Medical Examiner’s Office.
Id. In the last few years he has reviewed several hundred pediatric autopsies. Id. Dr. Harris is
board certified in anatomic pathology and neuropathology and by the National Board of Medical
Examiners. Harris CV at 3. He is not an immunologist and was therefore reluctant to discuss the
cytokine-generative impact of vaccines. Tr. at 201.
Dr. Harris openly acknowledged the extent to which his opinion embraced many of the
same conclusions set forth in Dr. Miller’s opinion. Thus, he accepted the existence of I.R.M.’s
brain edema resulting in it being heavy, although he utilized a comparison chart that revealed the
measured weight as not significantly heavier than what was considered normal for a three-year-
old boy. Tr. at 183–84, 211. He also concurred with Dr. Miller regarding the existence of the
hippocampal abnormality in the dentate gyrus region of I.R.M.’s brain, and the association of such
an abnormality with seizure. Id. at 185, 197.
Dr. Harris similarly accepted Dr. Miller’s points about the presence of gliosis (as observed
in the relevant brain tissue slides) suggesting that I.R.M. had suffered prior seizure activity,
although he deemed the gliosis “not an entirely specific finding,” noting that it was often seen in
individuals who had previously experienced seizure but did not help identify when such activity
had occurred. Tr. at 188–89, 196. He otherwise felt that “there really wasn’t much there” to
consider in the examination findings; he acknowledged the existence of heavy lungs and some
proof of bronchial inflammation, but noted that the heart was removed and he never saw any
analysis of it (although he expressed the view it was likely normal), or any genetic findings that
might have been explanatory. Id. at 185–86.
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Besides consideration of the medical examiner’s report, Dr. Harris provided his views on
SUDC. He proposed SUDC was a “more generalized term” applied to sudden deaths in young
children over the age of one, where “we don’t have good evidence at the time of autopsy for what
the exact cause of death is,” often because of the absence of a known preceding illness or
explanatory incident. Tr. at 178. He agreed that Kinney I (which he also filed) supported the
association between hippocampus malformations and SUDC, noting that this kind of brain
malformation would act as a focus for “epileptogenic activity,” by causing altered “firing patterns”
for neurons in this brain region. Id. at 179, 186, 205.16 As he explained, that region of the brain
was “particularly susceptible” to interruptions in oxygen or blood flow, such that seizure activity
could produce visible evidence of hypoxic or ischemic damage to this part of the hippocampus—
as occurred herein. Id. at 190–91
Dr. Harris disputed the concept that a focal seizure would always have some trigger,
opining instead that the mere existence of a brain abnormality could be enough by itself. Tr. at
181, 199. He also questioned whether Kinney I had identified a precise mechanism by which death
would occur in such cases, noting that at most the article identified sleep position, plus the very
fact of sleep contributing to a lower seizure threshold, as primary causal factors. Tr. at 180.17 Sleep
position in particular was an important factor in SUDC, Dr. Harris maintained, because sleep
position impacted how an individual breathes, and compromised airways (evidenced by vomit
around a deceased child) were often believed to be an initiating factor in a child’s seizure. Id. at
182.
By contrast, other related literature also co-authored by SIDS/SUDC expert Dr. Kinney
had not identified vaccination as even temporally close to an instance of SUDC, and he was not
otherwise aware of any literature or medical community views associating Flumist with seizure.
Tr. at 189-90; H. Kinney et al., Sudden Death in Toddlers Associated with Developmental
Abnormalities of the Hippocampus: A Report of Five Cases, 10 Ped. & Develop. Pathol. 208-23
(2007), filed as Ex. 31 (ECF No. 14-1) (“Kinney II”). Kinney II observed that the primary
difference between SIDS and SUDC, besides age, was the discovery of the hippocampal
abnormality, with sleep position being a constant risk factor for both SIDS and SUDC. Kinney II
at 213, 219. In addition, in three of the five individual cases discussed in Kinney II, the child
displayed the existence of a prior wild virus infection. Id. at 220.
With respect to timing, Dr. Harris felt that it was likely I.R.M. died earlier in his nap, given
the evidence of edema that subsequently developed. Tr. at 177. He also felt the extent of rigor
mortis observed when I.R.M. was found corroborated a pathologic process occurring earlier that
16 Dr. Harris acknowledged he is not an epileptologist with the necessary background to go deeply into this topic—
although neither were any of Petitioners’ experts, despite the numerous opinions offered in this case about seizure
thresholds and propensities of children with epilepsy or SUDEP. Tr. at 179.
17 SUDEP also often occurs at night while asleep, and without any other identifiable trigger, bulwarking the degree to
which sleep might be causal factor. Tr. at 180–81. A SUDEP diagnosis would require an epilepsy diagnosis or
evidence of a prior seizure, however. Id. at 194.
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day, although he could not pinpoint the rigor’s start. Id. The autopsy findings (which revealed
hypoxic/ischemic injury mostly isolated to the hippocampus rather than widespread in the brain)
suggested to him that the seizure occurred simultaneously with such localized injuries—not that
one followed the other. Id. at 191–92. The brain edema observed in the medical examiner’s report
likely occurred thereafter, in response to the hypoxic/ischemic injury, and would have happened
rapidly. Id. at 193, 195, 203, 211.
All of the above underscored for Dr. Harris the ultimately-unexplained nature of I.R.M.’s
death. The hippocampal abnormality observed in autopsy suggested that I.R.M. was likely prone
to seizures (or, as Petitioners prefer to say, had a lower seizure threshold). Tr. at 197, 203.
However, Dr. Harris could not on the basis of this record opine as to the precise instigating factor
for seizure herein, although he did accept it likely that seizure was the immediate cause of death
(as well as the possibility that some unidentified trigger was responsible). Id. at 198, 203. To some
extent, he said, it was just as speculative to propose I.R.M. had seized during the nap on September
26th as to deem his death attributable to vomiting while in a prone sleep position, thereby
impacting his brain oxygenation. Tr. at 193–94. Ultimately, however, Dr. Harris seemed to
embrace the likelihood that I.R.M.’s seizure was attributable to airway obstruction caused by
vomiting in a prone sleep position. Id. at 206.
One question raised in Dr. Harris’s testimony was the extent to which the medical record
supported the conclusion that I.R.M. might have had an epileptic condition before vaccination, or
would have been likely to develop one. He noted that I.R.M. could have experienced seizures
earlier in his life that simply were not recognized as such, especially given the difficulties in
parents understanding the relevant clinical warnings. Tr. at 181, 187. At the same time, a child
could possess the same kind of hippocampal malformation without any seizure history at all. Id.
at 187. However, if I.R.M. had experienced a pre-vaccination seizure, that made it more likely he
could have one in the future. Id. at 188.
Dr. Harris also commented upon other aspects of Petitioners’ causation theory. He
questioned whether a systemic inflammatory response to the Flumist vaccine could have triggered
a seizure herein, noting that the existing autopsy report provided none of the evidence that would
support that contention. Tr. at 195 (“you would expect to see changes in the skin, you would expect
to see influx of eosinophils in organs, changes in the weight of the organs, and we didn’t see any
of those changes”). He did not deem the brain edema and associated weight gain for I.R.M.’s brain
to constitute such evidence. Id. Ultimately he rejected the contention that an immunological trigger
could have caused I.R.M.’s likely seizure, speculating that (like all humans) I.R.M. had probably
experienced other immune challenges in his life but weathered them without incident. Id. at 199,
207.
On cross examination, Dr. Harris agreed that I.R.M.’s lethargy the morning of his death
was comparable to the kind of post-vaccination malaise individuals often feel, although he could
not comment on whether such malaise was still possible nearly two days after receipt of a vaccine.
19

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Tr. at 202. He also expressed uncertainty as to whether some additional factor (beyond I.R.M.’s
likely seizure propensity or the fact he was sleeping) could have further “lowered” his seizure
threshold, reiterating his view that a person with the hippocampal abnormality at issue could have
a seizure with no additional trigger at all. Id. at 204–05.
2. Dr. Christine McCusker – Dr. McCusker is a pediatric immunologist, and
she prepared one report and also testified at the hearing. Tr. at 213–91; Report, dated December
12, 2016, Filed as Ex. A (ECF No. 35-1) (“McCusker Rep.”).18 Dr. McCusker opined that the
Flumist vaccine could not have instigated a seizure in I.R.M. via an innate immune response and
mediated by proinflammatory cytokines.
Dr. Christine McCusker earned a master’s degree in Molecular Virology in 1988, followed
by an M.D. in 1993, at McMaster University, in Hamilton, Ontario. McCusker CV at 1, filed on
December 19, 2016 as Ex. B (ECF No. 37-3). She served as a pediatric resident at Montreal
Children's Hospital, McGill University, from 1993 to 1996. Id. at 1. Then, she was then a clinical
fellow in allergy and immunology at McGill University from 1996 to 1999. Id. at 2. Dr. McCusker
is board certified in pediatrics. Id. She is currently the division director of pediatric allergy,
immunology, and dermatology at the Montreal Children's Hospital at McGill University Health
Center and is the director of the Clinical Immunology Lab. Tr. at 215. Id. She also conducts
research on developmental immunology, vaccines and immunology, and serves on the boards of
several journals. Id. at 215–20.
Dr. McCusker’s opinion in this case was rooted in some core contentions about cytokines
and the roles they play in the human immune response. Dr. McCusker stressed that cytokines—
proteins released by immune system cells to perform communications tasks—were not “one
thing.” Tr. at 236, 238. Rather, they have many different functions, and more than 80 have been
identified. Id. at 236–37. Cytokines are often lumped together with chemokines, but Dr. McCusker
maintained that the latter perform a distinguishable function (by acting as “addressants” that
instruct other cells where to go, as opposed to travelling to such other cells themselves to deliver
information, as cytokines do). Id. at 236.
Because of the functional importance and power of cytokines, the immune system tightly
regulates their release. Tr. at 237, 247. IL-1β, for example (which Dr. McCusker deemed a
common cytokine), is as quickly released as it is controlled, with excess amounts inactivated after
being picked up by a “decoy receptor.” Id. at 237. As a result, Dr. McCusker maintained, cytokines
act rapidly and over short distances in the body, with their dissemination and circulation ultimately
limited. Id. at 237–38. She specifically disputed the concept that cytokines themselves regularly
“travel” from a peripheral site of vaccination to places like the brain, or that they could cause
edema there. Id. at 242, 244–45. Rather (and using the example of cytokines implicated in
18 Respondent filed a second expert report from Dr. McCusker after the hearing’s conclusion, and I address its contents
and admissibility below.
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“sickness behavior” after vaccination), cytokines responsible for fever accomplish this most often
by causing peripheral nerves at the site of vaccination to communicate signals to the brain
(specifically the hypothalamus), “instructing” such CNS locations to initiate a fever in response to
an infection. Id. at 241–43, 249. Even in the circumstances of a true “cytokine storm” (which even
Dr. Levin discounted as having occurred in this case) featuring uncontrolled cytokine circulation,
few cytokines would still travel into the brain. Id. at 248–49.
Dr. McCusker did not dispute that in rare circumstances19 certain cytokines (including IL-
1β, one of the cytokines primarily identified by Petitioners’ experts) can permeate the blood-brain
barrier, but she deemed the process usually controlled by receptors or limited in other ways. Tr. at
251–53, 287. Cytokines are also expressed directly within the brain by certain cellular structures
located there with the capacity to produce messenger molecules, such as microglia, but the
circumstances in which this would occur vary. Id. at 245–46. In some cases, the cells responsible
for production of such cytokines inside the brain might create them in connection with the
maintenance and extension of pathways relevant to memory (and in response to nerve signaling
from outside the blood-brain barrier), and hence would be “key elements in all these normal brain
functions.” Id. at 247, 249–51. Alternatively, cytokines might be produced within the brain in
response to CNS injury, like seizure, as part of the CNS’s immune “repair mechanism.” Id. at 255.
But Dr. McCusker rejected Petitioners’ experts’ contention that proinflammatory cytokines
regularly permeate the blood-brain barrier after vaccination as a matter of course. Id. at 279.20
Dr. McCusker took issue with the contention of Petitioners’ experts about the kinds of post-
vaccination symptoms that might be attributed to proinflammatory cytokines. Some such
symptoms might be specific to the vaccine’s method of administration; thus, in Dr. McCusker’s
understanding, people receiving Flumist vaccine often reported a runny nose, consistent with the
vaccine’s intranasal administration (and this is the response she would usually expect to see if
excess cytokine upregulation were at issue). Tr. at 239, 269–70.21 Vaccines could also, she
admitted, cause fever or malaise, although to her knowledge the incidence of fever was no higher
than what a placebo version of a vaccine like Flumist would be expected to induce. Id. at 240. In
19 Dr. McCusker also noted in her report that it appeared “massive doses” of cytokines were necessary to truly permeate
the blood-brain barrier, as alleged occurred here, adding that some of the literature offered by Petitioner for this
proposition also required the interaction of an endotoxin for the amounts necessary. Tr. at 256–58; McCusker Rep. at
10; Tomohisa Tanaka et al., Lipopolysaccharide Treatment and Inoculation of Influenza A Virus Results in Influenza
Virus—Associated Encephalopathy—Like Changes in Neonatal Mice, 16 J. of NeuroVirology 125–32 (2010), filed
on Feb. 26, 2016 as Ex. 48 (ECF No. 17-3).
20 In addressing literature offered by Petitioners to bulwark this contention, Dr. McCusker observed that the articles
in question only stood for the proposition that cell structures like microglia could promote internally the production
of different cytokines with differing functions, all as part of the process of brain maintenance—and thus the fact that
cytokines were found in the brain did not mean they had traveled there from the periphery. Tr. at 279–81.
21 By contrast, Dr. McCusker disputed Dr. Levin’s argument that Flumist would generally induce fever—especially
in a short timeframe. Tr. at 278–79.
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fact, the post-vaccination malaise that Petitioners’ experts proposed had occurred here was not the
product of the main cytokines implicated in the inflammatory response to Flumist. Id. at 243. She
allowed, however, that certain cytokines (not including IL-1β) were upregulated for a one to two-
day period after vaccination, although she disputed that the amounts in question were notably
elevated. Id. at 243-44; Y. Kashiwagi et al., Production of Inflammatory Cytokines in Response to
Diphtheria-Pertussis-Tetanus (DPT), Haemophilus Influenzae Type B (Hib), and 7-valent
Pneumococcal (PCV7) Vaccines, 10 Human Vacc. & Immunotherapeutics, 3:677–85 (2014), filed
as Ex. A-9 (ECF No. 35-10) (“Kashiwagi”).
Petitioners’ contentions about the possible impact of cytokines on I.R.M.’s brain
malformity were also addressed by Dr. McCusker. She flatly denied that cytokines would cause
brain edema, as Dr. Levin posited, noting that the communication “job” cytokines perform would
not directly cause such inflammation, and emphasizing that the primary cytokines located in the
brain do not serve this purpose. Tr. at 259.22 She also questioned how cytokines would lower
seizure threshold in a child possessing the hippocampal abnormality in question. She maintained
that there was no evidence in this case that in fact sufficient amounts of cytokines were present in
I.R.M.’s brain at any time to be harmful, but even if they had been, her understanding based on
existing science was that cytokine function would be the same for brains with or without such
malformation—discounting the idea that the propensity for seizure from the malformity itself
would also feature a sensitivity to cytokines. Id. at 259–60. Indeed, if Petitioners were correct in
their argument, then I.R.M. should have experienced a reaction (possibly manifesting as a seizure)
earlier in his life, since he likely had the hippocampal abnormality before vaccination, and had
previously had other vaccines or wild infections, all of which would similarly have upregulated
cytokine production. Id. at 261–63.23
Dr. McCusker moved on to a discussion of the Flumist vaccine itself. She agreed that
Flumist, a LAIV, would cause the innate immune system to produce some proinflammatory
(meaning intended to increase the immune response) cytokines. Tr. at 287–89.24 Flumist is
22 Dr. McCusker later considered some of the literature cited by Dr. Levin for this proposition. Tr. at 276–77. Some
of these articles involved flu infections coupled with toxicity in the body promoted by a different organ failure, while
others merely reflected the creation of cytokines in response to disease, rather that driving it or crossing the blood-
brain barrier to cause it. Id.
23 Although, Dr. McCusker admitted, some literature filed by Petitioner did establish the existence of certain cytokines
in the brain in the post-seizure period, and that introduction of cytokines like IL-1β could “change the excitability of
neurons,” there was no evidence the same cytokine was initially causal of the seizure – and rather was more likely a
response to initial seizure activity. Tr. at 281, 82; Vezzani at 1284 (noting “evidence that IL-1βeta is produced by
activated microglia and astrocytes in response to pro-convulsant injuries”) (emphasis added). And such literature,
again, did not address the transport of cytokines, induced by vaccination or otherwise, from the periphery into the
brain. Id. at 283.
24 Dr. McCusker felt it important to take care in specifying what “pro-inflammatory” meant, since not all such
proinflammatory results were the same, with some cytokines having a more targeted purpose rather than simply
unleashing generalized inflammation of the kind associated with infection as Petitioners’ experts seemed to maintain.
Tr. at 288–90.
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administered in the nose25 with a goal of initially developing “local immunity” at the specific site
of likely infection. Tr. at 227, 234, 285; Cox at 10. By having the vaccine elicit an initial immune
response in the respiratory epithelia, the chance of blocking an infectious process at that same
location (where the process would otherwise commonly begin) is increased. Tr. at 234. A vaccine
administered in the arm, by contrast, might create systemic immune responses, but immune cells
produced from this response would need to be “called” to the airway situs of infection to be as
effective. Id. at 235. Dr. McCusker also noted that Flumist contains “attenuated” viral strains,
meaning the viral components have been processed in such a way as to reduce their “pathological
effect,” while retaining sufficient infectious capabilities of the live virus to ensure an adaptive
immune response. Id. As a result, the wild virus components of Flumist are “not as virulent,”
giving the immune system “a little bit of an upper hand” in responding to the vaccine. Id. at 228.
The strength of Flumist’s immunogenicity (both in terms of localized and systemic
response) has been directly studied. Tr. at 228–29; M. Barria et al., Localized Muscosal Response
to Intranasal Live Attenuated Influenza Vaccine in Adults, J. Infectious Diseases 207:115–24
(2013), filed as Ex. A-7 (ECF No. 35-8) (“Barria”). Barria’s authors evaluated the response to
Flumist in 79 subjects (aged 18–49) by evaluating blood samples taken before administration of
the vaccine, and then three versus thirty days post-vaccination. Barria at 116. Barria found that
Flumist provided a greater local immune response in the mucosal area of its administration, but
without a corresponding “robust” systemic response, as measured by “the formation of systemic
antibodies in the form of IgG.” Tr. at 229; Barria at 115.
More relevant to this case, Barria observed no change in serum cytokine profiles (in
comparison to the impact of a wild viral infection) or concentrations between the date of the
vaccine’s administration and three days later. Barria at 120–21; Tr. at 229–30. IL-1β, the cytokine
most identified herein by Petitioners’ experts as causal, barely varied in amounts from before to
after vaccination—and was in fact the least prevalent of the eleven specifically-measured
cytokines. Barria at 118 (Figure 1 C). Thus, Barria’s authors concluded—contrary to a central
contention of Petitioners’ experts—that the Flumist LAIV did not produce a notable systemic
immune response (evidenced by increased cytokines or antibodies). Tr. at 230; Barria at 120. This
kind of finding was, Dr. McCusker suggested, a basis for questioning the overall efficacy of
Flumist (when coupled with other evidence establishing that the localized immune response that a
LAIV like Flumist did provide was itself not all that effective). Tr. at 230–31.
Dr. McCusker contested Flumist’s capacity to encourage production of some of the
cytokines specifically referenced by Petitioners’ experts. The causation theory offered in this case
25 Dr. Levin had deemed significant the fact that Flumist was administered near the brain (Tr. at 151, 152), but Dr.
McCusker observed in response that this could not be so important a factor—for if it were true, then for virtually any
common upper respiratory infection, “we’d be in deep trouble with every inhalation” merely due to the proximity of
infection to the brain. Tr. at 291.
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proposes that upregulation of IL-1β can promote seizures, and assumes that Flumist would trigger
this upregulation. But Barria, Dr. McCusker pointed out, not only shows no unusual elevation of
this cytokine overall within three days of vaccination, but it was not one of the cytokines that was
elevated in the first place. Tr. at 233; Barria at 118. In fact, IL-1β would not be expected to rise in
amount even in the aftermath of a wild flu virus infection, since it is not part of the usual response
to such an infection. Tr. at 233. Flumist would thus not, in her view, likely encourage production
of the particular proinflammatory cytokines referenced by Petitioners’ experts. Id. at 277–78.
Overall, Dr. McCusker flatly denied the contention that Flumist was associated with
seizure. Tr. at 240-41. She contrasted it with other vaccines, which she represented do report
seizure as an adverse event where accompanied by fever. Id. at 241, 285. She saw no evidence in
this case that I.R.M.’s death had any immunologic trigger. Id. at 283. And she questioned whether
the particular cytokines most associated with administration of Flumist could cause seizure. Id. at
286.
Dr. McCusker next discussed what prior exposure to a particular antigen in a vaccine like
Flumist would mean, immunologically, for a second, subsequent exposure. As she explained, the
usual expected recall response26 that a vaccine is designed to elicit in subsequent exposure to a
specific infection is blunted with the flu vaccine, since its formula is regularly altered each year
(in anticipation of what the coming flu season will look like). Tr. at 231. This is especially true
with young children, who would likely receive a flu vaccine every year. Id. The record evidence
in this case demonstrated that I.R.M. in fact had received the vaccine three or four times before,
although Dr. McCusker could not say if the formulations did in fact differ. Id. at 232.
Dr. McCusker devoted some of her testimony to critiquing Petitioners’ literature offered in
this case. Togashi, for example, involved an acute encephalopathy precipitated by a wild infection,
an experience not comparable to the impact of an attenuated virus in a vaccine (and also involving
an injury not alleged in this case). Tr. at 264–66. The studied patients in Togashi, moreover,
experienced fever and other acute symptoms before their CNS symptoms (which included seizure),
whereas there is no evidence here that I.R.M. experienced a fever. Id. at 265.
Another article referenced by Petitioners as supporting their contention that LAIV
components result in upregulation of proinflammatory cytokines did not discuss the specific kinds
of cytokines alleged by Petitioners’ experts to lower seizure thresholds—in particular IL-1β. Tr.
at 266–69; W. Fischer et al., Live Attenuated Influenza Vaccine Strains Elicits a Greater Innate
Immune Response Than Antigenically-Matched Seasonal Influenza Viruses During Infection of
26 Challenge-rechallenge has been described as occurring “when a person (1) is exposed to one antigen, (2) reacts to
that antigen in a particular way, (3) is given the same antigen again, and (4) reacts to that antigen similarly. Typically,
the second reaction is faster and more severe.” Nussman v. Sec'y of Health & Human Servs., 83 Fed. Cl. 111, 119
(Fed. Cl. 2008) (internal citations omitted) (quoting Nussman v. Sec'y of Health & Human Servs., No. 99-500V, 2008
WL 449656, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2008)); see also Capizzano v. Sec’y of Health & Human Servs., 440
F.3d 1317, at 1322 (Fed. Cir. 2006) (“A rechallenge event occurs when a patient who had an adverse reaction to a
vaccine suffers worsened symptoms after an additional injection of the vaccine.”).
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Human Nasal Epithelial Cell Cultures, 32 Vaccine 15:1761–67 (2014), filed as Ex. 77 (ECF No.
71-1) (“Fischer”). Fischer did not observe an increase in IL-1β, and recognized that the LAIV
vaccine was effective in eliciting certain chemokines not associated with the immune system
reaction to a wild flu virus infection. Fischer at 7 (“[LAIV] vaccination likely results in a
substantially different immune cell recruitment than wild type infection”). Thus, the argument that
a vaccine is equivalent in effect to a milder form of wild viral infection, as Dr. Kinsbourne had
suggested, was conclusory when applied to a LAIV like Flumist.
In addition, Dr. McCusker addressed the broader issue of SUDC—a topic similar to SIDS,
about which she has testified on several prior occasions in Program cases. She differentiated SUDC
from SIDS not only on the basis of the age classifications employed by both child’s but also
“mechanistically,” noting that brain development would not be the same for a very young versus
somewhat older child. Tr. at 271. In addition, ecent literature on SUDC of which Dr. McCusker
was aware seemed to suggest that underlying causes for the death (whether cardiac in nature, or
attributable to seizure) were more easily identified. Id. at 271–72. The “triple-risk” model relevant
to SIDS did not bear on SUDC. Id. at 272.
Based on her review of the literature filed in this action, Dr. McCusker unequivocally stated
that there was no support for Petitioners’ contention that vaccines were a SUDC risk factor, that
SUDC was dependent on an immunological trigger, or that any kind of mild infection comparable
to vaccination would be associated with SUDC for children possessing a hippocampal
abnormality. Tr. at 273, 283. She acknowledged, however, that it did not appear that any
association between cytokine expression and SUDC has been scientifically evaluated. Id. And
while language from Kinney I stated that “trivial infection” might constitute a SUDC risk factor,
Dr. McCusker noted that in the intervening ten years that hypothesis has not been “borne out.” Id.
Rather, the primary identified risk factors for SUDC remained sleep and sleep position, with some
suggestion that febrile seizure might also explain death, based on the proposition that prior
“unwitnessed seizures” that had not been diagnostically evaluated or recognized had occurred. Id.
at 274.
III. Procedural History
As noted above, this case was filed nearly five years ago. After the filing of the statement
of completion, I ordered Petitioners to begin filing expert reports, with Respondent’s Rule 4(c)
Report to come after. Docket Entry Scheduling Order, dated October 27, 2015. Petitioners
complied with the Order, filing Drs. Kinsbourne’s and Levin’s initial reports in December 2015.
Respondent subsequently filed his Rule 4(c) Report in January 2016, maintaining that an
entitlement award was not appropriate.
Once Petitioners located and filed some additional medical records Respondent had
identified as missing, Respondent filed expert reports from Drs. McCusker and Harris in December
2016. In reaction, Petitioners filed supplemental reports from Drs. Levin and Kinsbourne in May
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2017. I subsequently held a status conference with the parties, and at that time informed Petitioners
that I had doubts about the persuasiveness of their theory. Order, dated July 31, 2017 (ECF No.
47). I also noted the parallels between the arguments advanced in this case and those that had been
routinely rejected in SIDS claims before, although I acknowledged that the SIDS classification did
not literally apply to I.R.M. Id. I ordered Petitioners to consider filing a supplemental expert report.
After considerable delay, Petitioners filed Dr. Miller’s expert report in April 2018. A little
before, however, I set this matter down for an entitlement hearing to be held in May 2019.
Prehearing Order, dated February 20, 2018 (ECF No. 59). Before the hearing, the parties submitted
briefs and some additional evidence (including a supplemental report from Dr. Harris responding
to Dr. Miller), and the hearing proceeded as scheduled.
In September 2019, both sides filed post-hearing briefs. Respondent also filed a
supplemental report from Dr. McCusker (see generally ECF No. 79) - despite the fact that my
prehearing order in this case set a deadline of April 11, 2019 to file such materials. Order, dated
February 20, 2018 (ECF No. 59).27 This four-page report sets forth Dr. McCusker’s reaction to
certain articles and arguments pertaining to testimony mostly provided by Dr. Miller about
cytokines and how they might arguably travel into the brain and thereby cause injury. Objecting
to the untimeliness of this filing, Petitioners requested that it be stricken. Motion to Strike, dated
September 30, 2019 (ECF No. 81). Respondent, in turn, argued that the supplemental report was
intended to address six additional items of literature filed post-trial by Petitioners (see ECF No.
76) (articles filed July 9, 2019), and thus fairness dictated that Respondent either be permitted to
react to the items or that they be stricken as well. Opposition, dated October 7, 2019 (ECF No. 83).
(My disposition of the Motion to Strike is set forth below).
The matter is now ripe for resolution.
IV. Applicable Legal Standards
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed.
27 Dr. Harris’s supplemental report, though filed not long before the hearing, was nevertheless in compliance with this
deadline.
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Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).28
In this case, Petitioner does not assert a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “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, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen: “(1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for the injury;
and (3) a showing of proximate temporal relationship between vaccination and injury.” Althen,
418 F.3d at 1278.
Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners
must provide a “reputable medical theory,” demonstrating that the vaccine received can cause the
type of injury alleged. Pafford, 451 F.3d at 1355–56 (citations omitted). To satisfy this prong, a
petitioner’s theory must be based on a “sound and reliable medical or scientific explanation.”
Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory
must only be “legally probable, not medically or scientifically certain.” Id. at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009)
(citing Capizzano, 440 F.3d at 1325–26). Special masters, despite their expertise, are not
28 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed. Cl. 121,
124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs., No. 13-
159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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empowered by statute to conclusively resolve what are essentially thorny scientific and medical
questions, and thus scientific evidence offered to establish Althen prong one is viewed “not through
the lens of the laboratorian, but instead from the vantage point of the Vaccine Act’s preponderant
evidence standard.” Id. at 1380. Accordingly, special masters must take care not to increase the
burden placed on petitioners in offering a scientific theory linking vaccine to injury. Contreras,
121 Fed. Cl. at 245 (“[p]lausibility . . . in many cases may be enough to satisfy Althen prong one”
(emphasis in original)).
In discussing the evidentiary standard applicable to the first Althen prong, the Federal
Circuit has consistently rejected the contention that it can be satisfied merely by establishing a
proposed causal theory’s scientific or medical plausibility. See Boatmon v. Sec’y of Health &
Human Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also LaLonde v. Sec’y of Health &
Human Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014) (“[h]owever, in the past we have made clear
that simply identifying a ‘plausible’ theory of causation is insufficient for a petitioner to meet her
burden of proof.” (citing Moberly, 592 F.3d at 1322)). Thus, the same preponderance standard
used overall in evaluating a claimant’s success in a Vaccine Act claim is also applied specifically
to the first Althen prong. See, e.g., Broekelschen, 618 F.3d at 1350 (affirming special master’s
determination that expert “had not provided a ‘reliable medical or scientific explanation’ sufficient
to prove by a preponderance of the evidence a medical theory linking the [relevant vaccine to
relevant injury].”) (emphasis added). And petitioners always have the ultimate burden of
establishing their Vaccine Act claim overall with preponderant evidence. W.C. v. Sec’y of Health
& Human Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (citations omitted); Tarsell, 133 Fed. Cl.
at 793 (noting that Moberly “addresses the petitioner’s overall burden of proving causation-in-fact
under the Vaccine Act” by a preponderance standard)29.
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Human Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
29 Although decisions like Contreras suggest that the burden of proof required to satisfy the first Althen prong is less
stringent than the other two, there is ample contrary authority for the more straightforward proposition that when
considering the first prong, the same preponderance standard used overall is also applied when evaluating if a reliable
and plausible causal theory has been established. Broekelschen, 618 F.3d at 1350.
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Medical records and statements of a treating physician, however, do not per se bind the
special master to adopt the conclusions of such an individual, even if they must be considered and
carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,
test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y
of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing . . . that mandates
that the testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and
cannot be rebutted”). As with expert testimony offered to establish a theory of causation, the
opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their
suppositions or bases. The views of treating physicians should be weighed against other, contrary
evidence also present in the record—including conflicting opinions among such individuals.
Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or
capricious for special master to weigh competing treating physicians’ conclusions against each
other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec’y of Dept. of Health & Human Servs.,
No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review
denied, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 F. Appx. 765 (Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology, it is medically acceptable to infer causation.” de Bazan
v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for
what is a medically acceptable timeframe must align with the theory of how the relevant vaccine
can cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of Health &
Human Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after remand, 105 Fed. Cl. 353 (2012),
aff’d mem., 503 F. App’x. 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Human Servs., No.
11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for rev. denied (Fed. Cl.
Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Legal Governing Factual Determinations
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [] relevant medical and scientific evidence contained in the record,” including “any
diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the
record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury,
condition, or death,” as well as the “results of any diagnostic or evaluative test which are contained
in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (it is
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within the special master’s discretion to determine whether to afford greater weight to
contemporaneous medical records than to other evidence, such as oral testimony surrounding the
events in question that was given at a later date, provided that such determination is evidenced by
a rational determination).
Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human Servs., 95 Fed.
Cl. 598, 608 (2010) (“[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 F. Appx. 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption
is based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record
what they are told or observe when examining their patients in as accurate a manner as possible,
so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez
v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013), rev’d on other grounds, 2020 WL 1685554, --- F. App’x --- (Fed. Cir. 2020);
Cucuras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d at 1525
(Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners would fail to accurately report the
onset of their daughter’s symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie, 2005 WL 6117475, at *20. Indeed, contemporaneous
medical records are generally found to be deserving of greater evidentiary weight than oral
testimony—especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d
at 1528; see also Murphy, 23 Cl. Ct. at 733 (citing United States v. United States Gypsum Co., 333
U.S. 364, 396 (1947) (“[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.”)).
There are, however, situations in which compelling oral testimony may be more persuasive
than written records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like 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”); Lowrie, 2005 WL 6117475, at *19
(“’[w]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent’”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health & Human
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
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When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec’y of Health & Human
Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In
determining the accuracy and completeness of medical records, the Court of Federal Claims has
listed four possible explanations for inconsistencies between contemporaneously created medical
records and later testimony: (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. Lalonde v. Sec’y
of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014).
In making a determination regarding whether to afford greater weight to contemporaneous medical
records or other evidence, such as testimony at hearing, there must be evidence that this decision
was the result of a rational determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Human Servs., 219 F.3d
1357, 1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to
the factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 594–96 (1993). See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328,
1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316
(Fed. Cir. 1999)). “The Daubert factors for analyzing the reliability of testimony are: (1) whether
a theory or technique can be (and has been) tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether there is a known or potential rate of error
and whether there are standards for controlling the error; and (4) whether the theory or technique
enjoys general acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2
(citing Daubert, 509 U.S. at 592–95).
The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial fora (such as the district courts). Daubert factors are usually
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors
are used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec’y of Health
& Human Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the Daubert factors have
been employed also as an acceptable evidentiary-gauging tool with respect to persuasiveness of
expert testimony already admitted”). The flexible use of the Daubert factors to evaluate the
persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88
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Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases), Daubert has not
been employed at the threshold, to determine what evidence should be admitted, but instead to
determine whether expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts of his own in order to rebut a petitioner’s
case. Where both sides offer expert testimony, a special master’s decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen, 618 F.3d at 1347 (citing Lampe, 219 F.3d at 1362). However, nothing requires the
acceptance of an expert’s conclusion “connected to existing data only by the ipse dixit of the
expert,” especially if “there is simply too great an analytical gap between the data and the opinion
proffered.” Snyder, 88 Fed. Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997));
see also Isaac v. Sec’y of Health & Human Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed.
Cl. Spec. Mstr. July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff’d, 540 F. Appx.
999 (Fed. Cir. 2013) (citing Cedillo, 617 F.3d at 1339). Weighing the relative persuasiveness of
competing expert testimony, based on a particular expert’s credibility, is part of the overall
reliability analysis to which special masters must subject expert testimony in Vaccine Program
cases. Moberly, 592 F.3d at 1325–26 (“[a]ssessments as to the reliability of expert testimony often
turn on credibility determinations”); see also Porter v. Sec’y of Health & Human Servs., 663 F.3d
1242, 1250 (Fed. Cir. 2011) (“this court has unambiguously explained that special masters are
expected to consider the credibility of expert witnesses in evaluating petitions for compensation
under the Vaccine Act”).
Expert opinions based on unsupported facts may be given relatively little weight. See
Dobrydnev v. Sec’y of Health & Human Servs., 556 F. Appx. 976, 992–93 (Fed. Cir. 2014) (“[a]
doctor’s conclusion is only as good as the facts upon which it is based”) (citing Brooke Group Ltd.
v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“[w]hen an expert assumes
facts that are not supported by a preponderance of the evidence, a finder of fact may properly reject
the expert’s opinion”)). Expert opinions that fail to address or are at odds with contemporaneous
medical records may therefore be less persuasive than those which correspond to such records. See
Gerami v. Sec’y of Health & Human Servs., No. 12-442V, 2013 WL 5998109, at *4 (Fed. Cl. Spec.
Mstr. Oct. 11, 2013), mot. for review den’d, 127 Fed. Cl. 299 (2014).
D. Consideration of Medical Literature
Both parties filed medical and scientific literature in this case, but not every filed item
factors into the outcome of this decision. While I have reviewed all the medical literature submitted
in this case, I discuss only those articles that are most relevant to my determination and/or are
central to Petitioner’s case—just as I have not exhaustively discussed every individual medical
record filed. Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016)
(“[w]e generally presume that a special master considered the relevant record evidence even
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though he does not explicitly reference such evidence in his decision”) (citation omitted); see also
Paterek v. Sec’y of Health & Human Servs., 527 F. Appx. 875, 884 (Fed. Cir. 2013) (“[f]inding
certain information not relevant does not lead to—and likely undermines—the conclusion that it
was not considered”).
E. Consideration of Comparable Special Master Decisions
In reaching a decision in this case, I have taken into account other decisions issued by
special masters involving similar injuries, vaccines, or circumstances. I also reference some of
those cases in this Decision, in an effort to establish common themes, as well as demonstrate how
prior determinations impact my thinking on the present case.
There is no error in doing so. It is certainly correct that prior decision in different cases do
not control the outcome herein.30 Boatmon, 941 F.3d at 1358-59; Hanlon v. Sec’y of Health &
Human Servs., 40 Fed. Cl. 625, 630 (1998). Thus, the fact that another special master reasonably
determined elsewhere, on the basis of facts not in evidence in this case, that preponderant evidence
supported the conclusion that vaccine X caused petitioner’s injury Y does not compel me to reach
the same conclusion in this case. Different actions present different background medical histories,
different experts, and different items of medical literature, and therefore can reasonably result in
contrary determinations.
However, it is equally the case that special masters reasonably draw upon their experience
in resolving Vaccine Act claims. Doe v. Sec’y of Health & Human Servs., 76 Fed. Cl. 328, 338–
39 (2007) (“[o]ne reason that proceedings are more expeditious in the hands of special masters is
that the special masters have the expertise and experience to know the type of information that is
most probative of a claim”) (emphasis added). They would be remiss in ignoring prior cases
presenting similar theories or factual circumstances, along with the reasoning employed in
reaching such decisions. This is especially so given that special masters not only routinely hear
from the same experts in comparable cases, but are also repeatedly offered the same items of
medical literature regarding certain common causation theories. It defies reason and logic to
obligate special masters to “reinvent the wheel”, so to speak, in each new case before them, paying
no heed at all to how their colleagues past and present have addressed similar causation theories
or fact patterns.
It is for this reason that prior decisions can have high persuasive value—and why special
30 By contrast, Federal Circuit rulings concerning legal issues are binding on special masters. Guillory v. Sec’y of
Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v.
Sec’y of Health & Human Servs., No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
Special masters are also bound within a specific case by determinations made by judges of the Court of Federal Claims
after a motion for review is resolved.
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masters often explain how a new determination relates to such past decisions.31 Even if the Federal
Circuit does not require special masters to distinguish other relevant cases (Boatmon, 941 F.3d at
1358), it is still wise to do so.
ANALYSIS
I. Petitioners’ Causation Theories are Unreliable and Unpersuasive32
A. Prior Relevant Decisions – SIDS and Vaccine-Induced Seizure
Special masters have had numerous opportunities to evaluate whether vaccines can cause
unexplained death via SIDS in infants younger than I.R.M. They have almost never found so, and
their determinations have been consistently upheld on appeal. See, e.g., Cozart v. Sec'y of Health
& Human Servs., No. 00–590V, 2015 WL 6746616, at *1 (Fed. Cl. Spec. Mstr. Oct. 15, 2015),
mot. for review den'd, 126 Fed. Cl. 488 (2016); Nunez v. Sec’y of Health & Human Servs., No. 14-
863V, 2019 WL 2462667, at *1 (Fed. Cl. Spec. Mstr. Mar. 29, 2019), mot. for rev. den’d, 144 Fed.
Cl. 540 (Fed. Cl. 2019), appeal docketed, No. 20-1021 (Fed. Cir. Oct. 8, 2019). Those prior cases
also uniformly featured Drs. Miller and McCusker—underscoring the parallel nature of the present
claim. See, e.g., Cozart, 2015 WL 6746616, at *9–11. Their views have been evaluated and
demeanors considered time and time again—but Respondent has always prevailed.
In only one instance has a special master found for a petitioner in a SIDS case—but that
determination was reversed by the Court of Federal Claims, with the Federal Circuit affirming the
reversal. Boatmon, 941 F.3d at 1353. In so ruling, the Federal Circuit found that Dr. Miller’s
theories about the purported role cytokines could play in causing or contributing to a SIDS death
(theories paralleling the arguments offered in this case) were not supported with sufficient reliable
science, relying less on establishing how cytokines would function as opposed to the fact that
cytokines were present in association with certain brain injuries, or could cross the blood-brain
31 Consideration of prior determinations is a two-way street that does not only inure to the benefit of one party. Thus,
I would likely take into account the numerous decisions finding no association between vaccination and autism when
confronted with a new claim asserting autism as an injury, and have informed such claimants early in the life of their
case that the claim was not viable for just that reason. But I would also deem a non-Table claim asserting GBS after
the flu vaccine as not requiring extensive proof on Althen prong one “can cause” matters, for the simple reason that
the Program has repeatedly litigated the issue in favor of petitioners.
32 My opinion almost wholly turns on the first two Althen prongs, so I do not also include an extended discussion of
Petitioners’ success at demonstrating that the timeframe for alleged onset in this case was medically acceptable. K.L.
v. Sec’y of Health & Human Servs., No. 12-312V, 2017 WL 1713110, at *16 (Fed. Cl. Spec. Mstr. Mar. 17, 2017),
mot. for rev. denied, 134 Fed. Cl. 579 (Fed. Cl. 2018). I do note, however, that although the timeframe from vaccination
to I.R.M.’s tragic death was consistent with Petitioners’ theory (and particularly was within the two-to-three day time
period in which some proinflammatory cytokines produced in response to Flumist might upregulate via an innate
immune response), Petitioners did not preponderantly demonstrate (a) that this actually occurred in I.R.M.’s case after
the administration of Flumist, or (b) that the one cytokine most referenced by Petitioners’ experts, IL-1β, is upregulated
after Flumist administration at all, let alone in sufficient quantities to be pathologic.
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barrier under specific circumstances. Id. at 1360–62. The Boatmon claimants also could not
substantiate the more fundamental contention—that vaccines could play any role in the SIDS
“triple risk” model. Id. at 1360.
I acknowledge the distinctions between the causation theories offered herein, which relate
to an instance of SUDC, from those mounted in SIDS cases. All of the experts testifying in this
case agreed that SIDS and SUDC are not congruent, and that the “triple risk” model employed in
SIDS circumstances has no direct application here, since it is believed by medical science that the
incomplete development of the brains of very young infants plays a role in their susceptibility to
the SIDS risk factors. Moreover, one specific element of the SIDS theory that has been repeatedly
rejected—that immune system interaction with an infant’s brain stem causes respiratory failure
associated with SIDS, thereby rendering vaccination a risk factor itself—is not at issue in this case
at all. Compare Boatmon, 138 Fed. Cl. at 569.
I thus do not conclude that the many SIDS cases going against petitioners in the
Vaccine Program compelled the same result herein. The fact that I held a hearing in this case,
despite my concerns about the similarity of this case to the prior SIDS determinations, and have
written a lengthy decision evaluating the arguments asserted, should underscore the degree to
which I have tried to give Petitioners’ claim a fair shot at success.
Nevertheless - this claim, like the prior SIDS cases, relies on the theory that vaccine-
induced cytokine interference with the brain in some way has pathologic, and ultimately fatal,
outcomes under circumstances involving very young children that otherwise remain mysterious to
medical science. And in such comparable cases, special masters have repeatedly noted that existing
medical and scientific evidence does not reliably support the contention that cytokines cause such
processes - as opposed to appear in response to an ongoing pathogenic process caused by
something else. It was for such reasons that the Federal Circuit in Boatmon termed the causation
theory therein offered as merely “plausible”—and therefore insufficient to meet the preponderant
test. Boatmon, 941 F.3d at 1360.33 My decision below reasonably takes such parallel analyses into
account.
There are also several decisions in which special masters have found that a vaccine could
induce an initial seizure in an infant or very young child. Most commonly, they have reached such
conclusions after the child experienced a fever in response to the vaccine. See, e.g., Graves v. Sec’y
of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013) (summarizing that petitioners were
entitled to compensation when a Prevnar vaccine caused their daughter to suffer from seizures
after experiencing a fever). In effect, these findings stand for the proposition that the innate
immune response to vaccination, and not a specific adaptive-autoimmune process (in which
33 I note that Respondent filed the Federal Circuit’s Boatmon decision as an exhibit in this case after its release, perhaps
in the hope that I would treat it as dispositive herein. Notice of Additional Authority, filed on November 8, 2019 (ECF
No. 84). The preceding discussion, however, should make clear that this is not so—this is not literally a “SIDS case.”
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specific components of the vaccine interact with self structures, or otherwise induce seizure)34, can
produce a fever which triggers an initial seizure, thereby propelling the child into a chain of ever-
more-damaging seizures thereafter. Fuller v. Sec’y of Health & Human Servs., No. 15-1470V,
2019 WL 7576382, at *18 (Fed. Cl. Spec. Mstr. Dec. 17, 2019). Decisions going the other way
have also been issued, but typically where there is some persuasive alternative explanation for the
seizure, such as a preexisting genetic disorder. Oliver v. Sec’y of Health & Human Servs., No. 10-
394V, 2017 WL 747846, at *2 (Fed. Cl. Spec. Mstr. Feb. 1, 2017) (determining that SCN1A gene
mutation, and not vaccination, explained child’s Dravet syndrome), mot. for review den’d, 133
Fed. Cl. 341, 344 (Fed. Cl. 2017), aff’d, 900 F.3d 1357, 1359 (Fed. Cir. 2018).
B. Petitioners Have Not Preponderantly Established that the Flumist Vaccine Can
Trigger Non-Febrile Seizures in a Susceptible Child Through an Innate Systemic
Inflammatory Process
Petitioners’ experts shifted their causation theory somewhat over the course of the
proceedings.35 Although Drs. Kinsbourne and Levin initially pointed to brain edema triggered by
vaccination as causal, at hearing they maintained that (1) a child with a hippocampal abnormality
like I.R.M. was susceptible to seizure, (2) the conditions of sleep made seizure more likely under
such circumstances, (3) a seizure experienced while sleeping could result in unexplained death,
and (4) the Flumist vaccine was in particular likely to further increase the seizure risk due to its
stimulation of the innate immune system. While items (1) to (3) were persuasively established with
reliable science (and largely not contested by Respondent’s experts), the fourth element of the
theory, and the component most critical to Petitioners’ success, was not.
Both sides’ primary pathologists (Drs. Miller and Harris) were credentialed and credible,
and they agreed that a hippocampal malformation was likely associated with childhood seizures—
especially during sleep. They also concurred that literature on SUDC ties these factors together
(although, as Dr. Harris noted, in many SUDC cases a seizure-induced fatality was, or appeared to
have been, preceded by seizures that went unrecognized—and therefore such cases would closely
align with SUDEP, but for the absence of a prior epilepsy diagnosis). Tr. at 17–18, 186. But there
34 Some decisions have suggested that the components of a particular vaccine could cause a seizure independently of
fever. See Graves v. Sec’y of Health & Human Servs., 101 Fed. Cl. 310, 339 (Fed. Cl. 2011) (Prevnar vaccine).
However, other decisions have noted that changes in vaccine formulation have greatly reduced the likelihood of such
a reaction—and in turn called into question the reasoning of such other cases. See Sharpe v. Sec’y of Health & Human
Servs., No. 14-65V, 2018 WL 7625360, at *32 (Fed. Cl. Spec. Mstr. Nov. 5, 2018) (“Subsequent decisions have
underscored that the DTaP vaccine's injury-causing potential cannot be conflated with findings pertinent only to the
DPT whole-cell version.”).
35 Before the filing of Dr. Miller’s report, Drs. Levin and Kinsbourne largely opined that the Flumist vaccine caused
I.R.M.’s brain edema, and that this was the likely cause of his death. Levin Rep. at 7–8; Kinsbourne Rep. at 3. After
Dr. Miller weighed in, however, Dr. Kinsbourne revised his opinion to be consistent. Kinsbourne Supp. Rep. at 6; Tr.
at 73, 99. At hearing, Dr. Levin seemed to accept this altered theory, although he continued to embrace the contention
in his reports that the vaccine could also cause brain edema. Tr. at 153, 155. As discussed below, this expert contention
was especially unpersuasive—although my rejection of it did not eliminate all causal theories offered in this case.
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is little to no direct evidence that any vaccine, let alone the Flumist vaccine, could cause or
contribute to36 this process, nor could any of Petitioners’ experts speak from their own experience,
whether from patient treatment or research, to bulwark this point.
Petitioners instead attempted to support this aspect of their theory by connecting several
indirect items of proof (of course a valid means of establishing entitlement in the Program). But
important sections of this chain of opinion were medically/scientifically unreliable. The most
significant insufficient element was the lack of evidence pertaining to the direct or initial
pathologic capacity of cytokines. As noted above, the inability to preponderantly establish this
particular causal element has resulted in the dismissal of all prior SIDS claims. In addition, I have
on many occasions considered whether the transient upregulation of cytokines37 attributable to the
innate immune system’s initial response to a vaccine can be pathologic, but have consistently
found this contention could not be substantiated with reliable scientific or medical evidence.
For example, Kashiwagi—an article mentioned by both sides at hearing – is an item of
literature I have discussed at length in other decisions. See, e.g., Dean v. Sec'y of Health & Human
Servs., No. 13-808V, 2017 WL 2926605, at *17 (Fed. Cl. Spec. Mstr. June 9, 2017) (DTaP and
Hib vaccines did not cause child’s neurologic deficits).38 Kashiwagi only observes the transient
36 Petitioners did not articulate a significant aggravation claim, nor did they describe I.R.M.’s brain malformation
(which the facts do suggest predated vaccination) as a preexisting problem worsened by vaccination, so I do not
include herein a significant aggravation analysis.
37 Circumstances might be different if the record supported the conclusion that a “cytokine storm” had occurred, but
Petitioners’ experts plainly stated they did not believe this to have occurred herein. Tr. at 157 (Dr. Levin, Petitioners’
sole testifying immunologist, admitting I.R.M. did not experience a cytokine storm). But even that kind of
circumstance will typically occur in response to an ongoing and uncontrolled infectious process. See Geoff Brumfiel
Why Some COVID-19 Patients Crash, NPR (April 7, 2020) https://wwwnpr.org/sections/health-
shots/2020/04/07/828091467/why-some-covid-19-patients-crash-the-bodys-immune-system-might-be-to-blame
(explaining that a cytokine storm is the immune system’s persistent overreaction to a disease). No persuasive evidence
or testimony offered in this case established that the Flumist vaccine could set into motion a cytokine storm process.
38 In Dean, I specifically commented on Kashigawi as follows:
Not only was Kashiwagi's study not designed to examine the effects of cytokines in the brain
following vaccination, but its central purpose (comparing the levels of inflammatory cytokines in
the sera of vaccine recipients with febrile and non-febrile illnesses within 24 hours of vaccination)
does not shed light on whether the particular kinds of cytokines produced in the study could cause
the injury proposed herein (a CNS–oriented injury, as opposed to peripheral cytokine changes
occurring at the locus of vaccination).
Beyond the above, neither Kashiwagi nor any other literature that Petitioners cite establishes that
cytokine upregulation could be maintained biologically for long enough, and in sufficient quantities
as well, to act as [petitioner’s] theory proposes. In fact, Kashiwagi's study shows that cytokine
production increased only for approximately 24 hours following stimulation. . . . Further, the only
increased cytokine identified in the serum of the test subjects was an elevated G–CSF level in
individuals with a febrile illness, and the authors were unable to determine the significance of this
result. Id. The decisions of other special masters (albeit not in precisely the same circumstances)
have noted that Kashiwagi does not support the idea that cytokines produced in response to
vaccination could negatively impact the brain. See, e.g., Copenhaver v. Sec'y of Health & Human
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upregulation of some proinflammatory cytokines (not including IL-1β)—not that they are also
pathogenic. It also did not test any version of the flu vaccine, LAIV or otherwise. Kashiwagi thus
does not stand for the conclusion that the expected and intended effect of immune stimulation
caused by vaccination can turn pathologic. Togashi is similarly unpersuasive as proof for
Petitioners’ causation theory. Not only did it involve an injury not alleged herein (acute
encephalopathy), but it did not firmly conclude whether cytokines were initially causal, or merely
contributed to an ongoing pathologic process attributable to a direct wild flu virus infection (and
the article ultimately concluded that vaccination was the best means of preventing the infection—
directly contrary to the proposition that vaccination herein instigated a pathologic process).
Togashi at 78.
In addition, some elements of Petitioners’ cytokine-related arguments confuse association
for causal effect, even though evidence cited for those arguments has scientific reliability. Fischer,
for example, makes scientifically-reliable points about how LAIVs function. And articles like
Vezzani do credibly suggest that certain proinflammatory cytokines, including IL-1β, are
associated with seizure, and their findings are consistent with the arguments of Petitioners’ experts
about neuron excitability and seizure threshold generally. But such literature also says little to
nothing about peripheral stimulation of cytokines or their inevitable passage into the CNS—as
opposed to cytokine generation within the brain or in response to existing seizure. These articles
also do not establish that Flumist specifically would be expected to generate the particular
proinflammatory cytokines identified by Petitioners’ experts—while other literature persuasively
demonstrates it would not. Compare Fischer at 7 with Barria at 118, 120.39
Beyond the above, there are numerous other insufficiencies in the scientific reliability of
the portion of Petitioners’ causation theory relating to cytokines. Petitioners’ experts did not
persuasively establish that cytokines generated in response to Flumist would (a) likely travel into
the CNS,40 or (b) from outside the blood-brain barrier stimulate a response within, or (c) upregulate
in sufficient amounts (and type) to impact a child with a hippocampal abnormality and thereby
further lower his seizure threshold. At best, some of the literature filed post-hearing by Petitioners
Servs., No. 13–1002V, 2016 WL 3456436, at *9–14 (Fed. Cl. Spec. Mstr. May 31, 2016) (infant's
death not caused by cytokine upregulation due to vaccination), mot. for review den'd, 129 Fed. Cl.
176 (2016); Cozart v. Sec'y of Health & Human Servs., No. 00–590V, 2015 WL 6746499, at *6–7
(Fed. Cl. Spec. Mstr. Oct. 15, 2015), mot. for review den'd, 126 Fed. Cl. 488 (2016).”
39 Admittedly, Barria (the only literature filed in this case directly considering the immunologic performance of
Flumist specifically) involved samples taken from adults, arguably thereby reducing the weight it should be given
since this case involves a three-year-old. Yet Fischer (relied upon by Petitioners) also only tested samples taken from
adults. Fischer at 3. If one has no applicability to this case, then the same is true of the other (along with any other
literature testing cytokines that did not involve pediatric subjects). Here, I find that the absence of studies directly
involving the effects of vaccine-induced cytokines in the brains of pediatric subjects renders articles like Barria and
Fischer the next best available proof, and thus worthy of some weight.
40 Dr. Levin’s assertion that the mere fact that Flumist is administered literally “close” to the brain allows for the
conclusion that it would somehow be “easier” for cytokines to travel into the brain was especially specious. Were he
correct, than virtually any upper respiratory infection would similarly pose the threat of a drastic CNS-oriented injury.
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establishes the different ways cytokines can travel into the brain. This does not establish that the
receipt of a LAIV means it is more likely that this will occur, or that it will inherently occur in the
absence of some coterminous infectious or disease process that encourages blood-brain barrier
breach.
Petitioners’ contention that cytokine activity in the brain would likely impact seizure
threshold by heightening neuro-excitability, by contrast, was better supported by certain medical
literature such as Vezzani. But this does not also mean that cytokines likely instigate that process—
something even Vezzani seemed to recognize has not been causally demonstrated. Vezzani at
1287–88. And although Dr. Miller credibly established that the hippocampal abnormality that
I.R.M. was discovered to possess has been associated with seizure, and also implicated in SUDC
cases, Petitioners did not also establish with sufficient reliable evidence that seizures were more
likely merely because a child received a vaccine that had the capacity to upregulate cytokines.
Rather, they simply assumed this to be the case from the temporal relationship between vaccination
and seizure, without any scientific or medical evidence that might demonstrate it.
Petitioners also could identify little literature specifically relevant to Flumist that connected
its immune system-stimulating processes to seizure or SUDC. Thus, Fischer discusses LAIVs
generally, and although it does support the conclusion that some cytokines are upregulated after
receipt of a LAIV, it did not associate the vaccine with the specific cytokine (IL-1β) most discussed
by Petitioners’ experts—and even seems to suggest (again, contrary to Petitioners’ contentions
that vaccination is only differentiable in degree from a wild infection) that the immune impact of
the vaccine is wholly distinguishable from what a wild flu virus would accomplish. Meanwhile,
other articles directly addressing Flumist, like Barria, did not support their claim.
In response, Petitioners have asserted in their post-trial brief that “the Vaccine Program has
accepted that FluMist can cause systemic immune reactions,” citing to an older case purportedly
standing for that proposition. Brief at 7–8, citing L.A. v. Secretary of Health and Human Services,
No. 12-629V, 2016 WL 7664473, at *13 (Fed. Cl. Spec. Mstr. Dec. 15, 2016).41 But this is the
sole such prior case involving seizure (there are no other similar cases involving SUDC after
Flumist), so it is stretching things considerably to claim that L.A. reflects broad Program
acceptance of Petitioners’ contentions.42 Moreover, L.A. is distinguishable in many regards. There,
41 Petitioners also reference the fact that cases involving Flumist have settled. Brief at 7–8. This of course is
particularly non-probative support for their claim, since (a) cases settle for many reasons having nothing to do with
the underlying claim’s merits, and (b) settled cases do not result in reasoned decisions that provide any guidance in
future circumstances. Dillenbeck v. Sec’y of Health & Human Servs., No. 17-428V, 2019 WL 4072069, at *13 (Fed.
Cl. Spec. Mstr. July 29, 2019), rev’d in part on other grounds 147 Fed. Cl. 131 (Fed. Cl. 2020). While the fact a
comparable case has settled before may give a petitioner “ammunition” in attempting to negotiate resolution of his
own case, and may also offer hope that the claim has some meritorious elements, it does not guide a subsequent
decision in any other meaningful respect.
42 L.A. itself only references two other decisions regarding Flumist, neither of which involved a comparable injury.
L.A., 2016 WL 7664473, at *13 (citations omitted). One involved Flumist working in concert with the human
papillomavirus vaccine causing neuromyelitis optica, while the other caused acute hepatitis. Id.
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a five-year-old who received Flumist after being taken to an acute care center to treat what
appeared to be an existing viral infection subsequently suffered a fever followed by a seizure two
days post-vaccination. L.A., 2016 WL 7664473, at *8. The special master in L.A. determined that
the pre-existing infection likely interacted synergistically with the vaccine—a finding not possible
herein, since there is no evidence I.R.M. had a fever or infection as of the date of his death. Id. at
*9, 16. And to the extent L.A. did determine that Flumist could cause a systemic immune response,
that conclusion was not based upon the kind of evidentiary showing involving cytokine transport
to the brain that Petitioners’ experts herein unsuccessfully endeavored to establish.43
Coloring the scientific and medical unreliability of theories offered in this case are
deficiencies in the qualifications and testimony of two of the three experts who testified for
Petitioners. Drs. Kinsbourne and Levin lacked testimonial credibility in important regards. Dr.
Kinsbourne, for example, has no demonstrated research or treatment expertise in the matters in
dispute, and he relies on neurology expertise that has not been honed or refined, whether by clinical
practice or research, for nearly 30 years. This is a criticism that has been lodged— reasonably—
against him repeatedly in the Vaccine Program. See, e.g., Pope v. Sec'y of Health & Human Servs.,
No. 14-078V, 2017 WL 2640503, at *21 n.29 (Fed. Cl. Spec. Mstr. May 1, 2017). Although Dr.
Kinsbourne may have a facility (drawn from his many prior turns as a Vaccine Program expert) in
speaking to neurology topics with clarity and confidence, he is not compelling or persuasive in so
doing—especially to the degree his statements are either not grounded in reliable science or do not
arise from his own direct medical expertise or recent work.44 The mere fact he has experience as a
pediatric neurologist does not render him a helpful expert in all cases involving a pediatric
neurologic injury.
43 I also note that L.A. does not clearly set forth the basis for its findings about the propensity of Flumist to produce
systemic inflammatory responses that can promote a pathologic result, and thus may well have solely been the result
of the special master’s acceptance of the expert opinions therein provided. This case, by contrast, involves a different
set of experts and a very specific theory that overlaps somewhat with those rejected in prior SIDS cases. In addition,
I find that Respondent’s experts made a persuasive showing that Flumist would not likely cause a pathologic
upregulation of cytokines, or that those cytokines would necessarily cross the blood-brain barrier, and thereby interact
with a brain malformation sufficient to lower seizure thresholds.
44 Petitioners’ post-hearing brief notes (perhaps in the hope of vouching for his expertise) that Dr. Kinsbourne was the
“only” neurologist who testified in this case—a true fact as far as it goes. Brief at 11. But this case turned mostly on
questions of pathology and immunology—and on the latter topic, Dr. McCusker was a far more qualified immunologist
than Dr. Levin, and provided testimony I found significantly more persuasive. See also Copenhaver v. Sec’y of Health
& Human Servs., No. 13-1002V, 2016 WL 3456436, at *1 (Fed. Cl. Spec. Mstr. May, 31, 2016) (finding that Dr.
McCusker was more credible than Dr. Miller), mot. for review denied, 129 Fed. Cl. 176 (Fed. Cl. 2016). In addition,
the neurologic issues posed in this case related to the hippocampal abnormality, an issue that both sides largely agreed
upon, disputing only the immunologic impact of the vaccine at issue, and Dr. Kinsbourne has no specific demonstrated
expertise on that topic that would suggest his statements are deserving of extra weight. In any event, special masters
are never bound to accept any expert’s statements as gospel—especially an expert who sees no patients, conducts no
research bearing on the subject of his testimony, and cannot demonstrate otherwise any particular specialization in the
relevant topic, as here.
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Dr. Levin provides an even more glaring case of an expert out of his depth. Even if I ignore
the fact that his daily life today revolves less around immunologic research than attorney work, it
remains the case that his qualifications have been observed to be wanting in numerous Vaccine
Program cases. See, e.g., Bigbee v. Sec’y of Health & Human Servs., No. 06-663V, 2012 WL
1237759, at *30 (Fed. Cl. Spec. Mstr. (Mar. 22, 2012) (stating that “Dr. Levin’s testimony in
particular was extremely unhelpful—as would be expected from someone who practices law 99%
of the time and thus medicine 1% and has not seen a patient since 1993”). And his testimony herein
was conclusory and utterly unpersuasive. His credentials as an immunologist were far outweighed
by Dr. McCusker’s, his pathology expertise overshadowed by Dr. Miller’s, and the assertions he
made about the purported seizure-stimulating properties of innate immune system-produced
cytokines were scientifically unreliable.
It is of course well-understood that in Vaccine Program cases, virtually any relevant
evidence warrants some weighing and consideration, given that the Federal Rules of Evidence do
not govern our proceedings. Section 12(d)(2)(B), (E); Vaccine Rule 8. And both of these experts
had sufficient medical training to comment on the issues in dispute (although the same would be
true for virtually any trained neurologist or immunologist). I therefore not only allowed into
evidence Drs. Kinsbourne and Levin’s reports, despite my awareness of their experiential
deficiencies, but read their reports and their supporting literature, and also listened carefully to
their testimony at hearing. But none of the above means that these experts were automatically
credible or persuasive. They were not, and their statements did not merit significant weight.
Dr. Miller, by contrast, was a more demonstrably-credentialed expert, whose base
experience made him a good fit to comment on the issues in this case, and he provided cogent
testimony setting forth Petitioner’s theories. However, although his expertise as a pathologist
established a sound basis for opining on I.R.M.’s autopsy and brain tissue samples, his opinion
about the theoretical impact of Flumist on a child with a possible susceptibility to seizure was
unreliable (especially to the extent it arose from immunologic topics outside his admitted primary
area of expertise). Moreover, and as Dr. Miller admitted, the opinion he provided overlapped
somewhat with previously-rejected theories offered in SIDS cases, further reducing its
persuasiveness in this case (even taking into account the differences between SIDS and SUDC).
Tr. at 50–52. He ultimately could not ground his opinion in sufficient reliable scientific or medical
evidence establishing the pathologic role of innate immune system-upregulated cytokines in the
context of SUDC.
In short, the evidence offered in this case does not preponderantly support the conclusion
that sufficient amounts of cytokines produced in immediate response to the Flumist vaccine could
lower a seizure threshold in a child with the specified hippocampal abnormality sufficient to
produce a death-inducing seizure, especially in the absence of a prior infection, fever, or known
epilepsy. While it may be facially plausible that a vaccine administered close in time to an
unexplained toddler death could have had some role in the outcome, the assertion is not
scientifically reliable (given the evidence offered in this case).
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II. The Record Does not Support the Conclusion that I.R.M.’s Death was Vaccine-
Caused
I.R.M. received the Flumist vaccine, and then showed no reaction beyond some lethargy
the morning of September 26th. There is no evidence in the record that he ever had a post-
vaccination fever. He was found unresponsive and in a prone position after his nap. His autopsy
then revealed a hippocampal abnormality that both sides’ pathologist experts deemed relevant to
his death, and both proposed that a seizure was the likely immediate reason for that death. In
addition, Drs. Miller and Harris agreed I.R.M. was probably dead for some time prior to his being
found, although the precise time he died could not have been before the start of his nap.
Petitioners point to I.R.M.’s apparent pre-nap malaise as evidence of their theory at work.
This is the sole evidence they can muster on this point, but it does not strongly support their theory.
It is certainly a fair point to observe that vaccines can present transient symptoms reflecting an
immune response is occurring (although Dr. McCusker’s points about the kinds of cytokines that
a LAIV would produce, along with the low likelihood that Flumist would generate certain
proinflammatory cytokines stressed as causal herein, such as IL-1β, were not rebutted). And the
statements of Mrs. Martin and her babysitter do suggest I.R.M. was not feeling well right before
he napped. It is a reasonable inference to associate I.R.M.’s pre-nap condition with what thereafter
transpired.
However, malaise is a somewhat nonspecific condition, especially for a young child, and
it is equally likely based upon this record that I.R.M. merely felt tired.45 More significantly, it is
undisputed that I.R.M. was not running a fever prior to his nap on September 26th, thus greatly
undermining the contention that IL-1β, which is associated with fever, was upregulated by
Flumist—even assuming it could be, a conclusion that Dr. McCusker effectively rebutted. And
I.R.M. displayed no other post-vaccination symptoms even within 24 hours of receiving Flumist
(the period of time in which arguably cytokine production would at least have begun to peak, if
Fischer or Kashiwagi are relied upon). So why was there not an earlier reaction? For Petitioners’
experts, the malaise “proves” cytokines were interfering with I.R.M.’s brain, despite the absence
of corroborative evidence that Flumist in this case caused sufficient upregulation of cytokines to
produce outward clinical symptoms.
The record evidence about I.R.M.’s sleep in the days immediately after vaccination also
undermines Petitioners’ case. Certain experts like Dr. Kinsbourne placed great weight on the fact
that I.R.M. had been placed down for a nap in the hours before he was found, suggesting that this
45 While I credit the joint statements of Mrs. Martin and the babysitter on this point, I also note that the babysitter
contemporaneously informed first responders both that I.R.M. had seemed ok before his nap, and also that she checked
him multiple times during the nap and found nothing wrong.
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was somehow a unique factor that surely interacted negatively with his receipt of Flumist about
two days before. But to make this argument is to disregard the fact that (as the record establishes)
I.R.M. slept for two nights, without incident, before the nap at issue on September 26th. If sleep
were so central to the circumstances of his death, then why did something not occur on either of
the two prior nights? Petitioners’ experts cannot answer this question simply by taking refuge in
the rarity of vaccine injury generally.
At the same time, the record evidence does support an alternative explanation for the
immediate trigger of I.R.M.’s death that Petitioners did not rebut. The police records establish that
I.R.M. was found lying face down (and thus in a prone position) in vomit. Ex. 28 at 15; Ex. 55 at
15; Ex. 73 at 3. Dr. Harris credibly pointed out that I.R.M.’s sleep position, coupled with evidence
of regurgitation, suggested that he had experienced respiratory failure, something that would be
sufficient to trigger seizure in a child with the hippocampal abnormality I.R.M. possessed. Tr. at
193-95, 206. Sleep position is a known identified risk factor for SIDS. Boatmon, 941 F.3d at 1356;
Cozart, 2015 WL 6746616, at *8. It also has been correlated with SUDC cases. See, e.g., Kinney
II at 213. Although SIDS and SUDC are not congruent concepts, they unquestionably overlap
somewhat, and so sleep position is not irrelevant to the cause of death in this case. Petitioners’ did
not adequately address such other possible explanatory factors.46
The above paucity of evidence connecting Flumist to I.R.M.’s death underscores the
overbreadth and circularity of Petitioners’ causation theory. Petitioners have proposed a theory
that, if accepted, would explain any post-Flumist death in a child with the same hippocampal
deformity. Assuming the timing was medically acceptable, all that would be needed to provide the
“did cause” evidence would be the fact of death itself, proving the purported cytokine invasion of
the brain, and regardless of whether there is preponderant corroborative proof. But if so, then
Petitioners have offered a self-realizing theory that relies on the “fact” of the alleged injury as
proof of its cause. Such reasoning is not sufficient to meet the preponderant standard—and to
require that Petitioners meet that standard is not “elevating” their burden, it is holding them to the
burden set by the Federal Circuit. Moberly, 592 F.3d at 1322.
All in all, there is weak evidence here that I.R.M. was experiencing a proinflammatory
reaction to Flumist due to cytokine upregulation as of the morning of his death. And although the
pathologist experts on both sides in this case agreed that I.R.M. possessed an unknown
hippocampal abnormality that likely played a role in these tragic circumstances, the record does
46 This is not a case in which the burden to prove alternative cause ever shifted to Respondent—and if it had done so,
I would not on this record be able to conclude that the evidence for such an explanation preponderates for Respondent,
since the record ultimately does not permit me to identify a likely cause of I.R.M.’s death. But I can and did consider
this contrary confounding evidence when evaluating Petitioners’ success in carrying their overall Althen burden. Stone
v. Sec'y of Health & Human Servs., 676 F.3d 1373, 1379 (Fed.Cir.2012) (“[o]ur decisions support the commonsense
proposition that evidence of other possible sources of injury can be relevant not only to the “factors unrelated” defense,
but also to whether a prima facie showing has been made that the vaccine was a substantial factor in causing the injury
in question”).
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not preponderate in favor of the conclusion that the Flumist vaccine had anything to do with that
seizure, by interacting with the abnormality or otherwise.
I also do not find that the record supports the conclusion that I.R.M.’s brain edema was
vaccine-caused and/or the cause of his death. Although the record does establish that I.R.M.’s
brain weight was large for a child of his age, it also supports the conclusion that the edema was
attributable to his seizure and death rather than causal of it. Moreover, two of Petitioners’ three
experts seemed to abandon or ignore this theory at hearing (although it was included in counsel’s
post-hearing brief). The two most credible pathologists who testified, Drs. Harris and Miller, did
not characterize edema as the cause of death, and it also finds no support in the autopsy or other
medical records.
A case like the present illuminates what “logical sequence of cause and effect” really
means, for purposes of preponderantly establishing the second Althen prong. There is no doubt
that the theory offered by Petitioners’ experts—that Flumist caused a proinflammatory cytokine
environment sufficient to interact with I.R.M.’s previously-unknown brain abnormality and cause
his death approximately two days later—can be stated so as to be temporally consistent with the
basic facts herein, and thus literally provides the “logical sequence” required by Althen (418 F.3d
at 1278). Based on similar reasoning, Program petitioners frequently maintain they have met their
burden simply because their causation theory can be “fit” into the factual sequence pertaining to
the claim.
But if all a petitioner need do is nestle his theory within the relevant fact pattern, what kind
of preponderant showing has been made? What evidence from an injured party’s actual
circumstances suggest the vaccine likely “did cause” injury? Although the preponderant standard
is not particularly onerous for non-Table claims, it still requires some “heavy lifting” by petitioners
(Hodges v. Secretary of Health & Human Servs., 9 F.3d 958, 961 (Fed.Cir.1993)) - not only to
offer a reliable scientific theory, but also to show that the record evidence is consistent with that
theory, and not just in a temporal sense. That kind of showing was not made in this case.47
47 In some cases, petitioners might support a successful Althen prong two showing with the statements or testimony
of a treating physician having direct familiarity with an injured party’s history. See, e.g., Andreu, 569 F.3d at 1375–
77. Although it is often the case that such treater statements amount to little more than a narrative themselves, and do
not always reference corroborative evidence substantiating the causal theory, they are still deemed worthy of weight
because a treater who actually, contemporaneously dealt with the injured party at the time of injury is reasonably
deemed to have insights into the facts of a case that an after-the-fact testifying expert can never possess. In this case,
by contrast, there is no comparable proof. And in any event, no treater opinion is sacrosanct. Section 13(b)(1)
(providing that “[a]ny such diagnosis, conclusion, judgment, test result, report, or summary shall not be binding on
the special master or court”); Snyder, 88 Fed. Cl. at 745 n.67 (“there is nothing . . . that mandates that the testimony
of a treating physician is sacrosanct—that it must be accepted in its entirety and cannot be rebutted”).
44

Case 1:15-vv-00789-MBH Document 86 Filed 06/08/20 Page 45 of 46
III. Petitioners’ Motion to Strike is Granted
As noted above, Respondent chose to file a supplemental expert report from Dr. McCusker
approximately four months after the hearing. He did so based on the assertion that Petitioners had
themselves filed several “new” items of literature—although in fact, of the six articles filed after
the hearing, three had been previously filed (and none were literally “new” otherwise, since all
had been published long before the hearing—raising the question why the newly-filed articles were
not offered in a timely manner). Indeed, Vezzani was not only previously filed but extensively
discussed at hearing, and Kashiwagi was filed by Respondent. Petitioner moved to strike Dr.
McCusker’s supplemental report.
Petitioner’s motion is granted. Not only had the formal deadline passed for the filing of
expert reports in this case, but Respondent filed the supplemental report without leave—and
without my requesting it either, as I did not indicate at hearing that I required any additional
testimony from Dr. McCusker, who had ample opportunity to discuss cytokines and the degree to
which they might cross into the brain as part of a pathologic process. While it is true, as Respondent
argues, that Program claimants often file additional exhibits and evidence post-hearing, and while
leniency in allowing such items into the record is generally appropriate, this does not mean that
every filing out of turn must be accepted in all cases. If so, then the deadlines set by the special
masters for acting in a matter amount to the mildest of suggestions that litigants are free to ignore.48
In any event, this determination does not prejudice Respondent, since my Decision herein does not
at all turn on the contents of Dr. McCusker’s supplemental report (and I have not considered it in
deciding entitlement). I did not require additional comment from Dr. McCusker to comprehend
the late-filed articles, or Petitioners’ ultimately-unpersuasive arguments about post-vaccination
cytokine transport into the brain.
CONCLUSION
The circumstances of this case are truly tragic. The Martins’s desire to identify the medical
reason for the loss of their son is wholly understandable—as is their good faith basis for contending
that the flu vaccine might have been involved, given the temporal proximity of its administration.
48 I give some credence to Respondent’s objections to Petitioners’ dilatory filing of three articles that were not
inadvertent duplicates of previously-filed literature—although I have not stricken them, since they involve topics that
both sides had full opportunities to address at hearing, and are otherwise relevant to the claim at issue. However, these
three articles are not particularly helpful to Petitioners’ claim. They merely provide some ballast for Dr. Miller’s
assertions about ways in which cytokines may cross into the brain – a contention largely not disputed by Respondent’s
experts, although they may have quibbled about the precise application of different transport mechanisms to this case.
They do not help Petitioners establish that the Flumist vaccine would stimulate cytokines with a pathologic potentiality
relevant to seizures – or that the cytokines would likely have traveled into the brain in the absence of evidence of some
other ongoing pathologic process, like an active infection or presence of some other toxic agent likely to allow easier
permeation of the blood-brain barrier.
45

Case 1:15-vv-00789-MBH Document 86 Filed 06/08/20 Page 46 of 46
But the evidence offered in this case does not preponderate in favor of Petitioners’ causation
theory, and I cannot otherwise grant an award of damages simply because an injury occurred close-
in-time to a vaccination. Thus, for the reasons stated above, I must deny entitlement in this case.
In addition, Respondent’s Supplemental Expert Report (ECF No. 79) is hereby STRICKEN.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accord with this decision.49
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
49 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
46

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_15-vv-00789-1
Date issued/filed: 2020-09-26
Pages: 35
Docket text: *RE-DOCKETED FOR PUBLICATION.* JUDGE VACCINE REPORTED OPINION re: 99 Judge Vaccine Reported Opinion. Signed by Senior Judge Marian Blank Horn. (rp) Service on parties made.
--------------------------------------------------------------------------------
Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 1 of 35
In the United States Court of Federal Claims
No. 15-789V
Filed: August 20, 2020
Reissued for Publication: September 26, 20201
* * * * * * * * * * * * * * * * * * *
*
LINDSEY MARTIN and RAYNARD
*
MARTIN, parents of I.R.M., a minor,
*
Petitioners, *
* Vaccine; Motion for Review; Expert
v.
* Opinions; Althen v. Secretary of
SECRETARY OF HEALTH AND HUMAN * Health & Human Services.
SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Cage, PC, Cheyenne, WY, for petitioners.
Mark K. Hellie, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for respondent. With him were Gabrielle M.
Fielding, Assistant Director, Torts Branch, Civil Division, Catharine E. Reeves, Deputy
Director, Torts Branch, Civil Division, C. Salvatore D’Alessio, Acting Director, Torts
Branch, Civil Division, and Ethan P. Davis, Acting Assistant Attorney General, Civil
Division.
O P I N I O N
HORN, J.
On July 27, 2015, petitioners Lindsay and Raynard Martin, on behalf of their
deceased son, I.R.M, filed a petition for compensation with the National Vaccine Injury
Compensation Program (Vaccine Program), under the National Childhood Vaccine Injury
Act of 1986, 42 U.S.C. §§ 300aa-1–300aa-34 (2018) (Vaccine Act). Petitioners allege that
I.R.M.’s flu vaccination, administered on September 24, 2014, was the cause of his death
two days later on September 26, 2014. On May 8, 2020, Chief Special Master Brian
Corcoran of the United States Court of Federal Claims determined petitioners were not
entitled to compensation. See generally Martin v. Sec’y of Health & Human Servs., No.
15-789V, 2020 WL 4197748 (Spec. Mstr. Fed. Cl. May 8, 2020). On June 6, 2020,
1 This Opinion was issued under seal on August 20, 2020. The parties did not propose
any redactions to the August 20, 2020 Opinion, and the court, therefore, issues the
Opinion without redactions for public distribution.

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 2 of 35
petitioners filed a motion for review pursuant to Rule 23 of the Vaccine Rules of the United
States Court of Federal Claims (Vaccine Rules) (2019) in this court to review the Chief
Special Master’s decision denying entitlement. The parties briefed the motion after which
oral argument was held.
FINDINGS OF FACT
Petitioners’ son, I.R.M., was born on September 1, 2011. On September 24, 2014,
at approximately 4:00 p.m., I.R.M. received an intranasal dose of Flumist, a flu
vaccination, during a well-child visit with his pediatrician. As indicated in the Chief Special
Master’s decision, “[t]he records reveal no evidence of any immediate or transient
reaction of the kind often associated with vaccination, such as fever or lethargy.” Martin
v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *1. On September 25, 2014,
the first day following his vaccination, I.R.M. was noted to be active and playing and
provided no indication of a concerning reaction. On the morning of September 26, 2014,
approximately 40 hours post-vaccination, I.R.M. was observed to be feeling tired and had
unusual difficulty in waking that morning. Later that morning I.R.M. was taken to his
babysitter, who put him down for a nap at approximately 1:30 p.m., and subsequently
checked on I.R.M. during his nap and did not notice anything amiss. Around 4:00 p.m.,
however, I.R.M.’s mother found I.R.M. unresponsive, face down in vomit, with
discoloration in his nose and ears. I.R.M.’s jaw was stiff, which made cardiopulmonary
resuscitation or CPR difficult. Paramedics transported I.R.M. to the Riverside Hospital
emergency room in Columbus, Ohio. Following unsuccessful resuscitation attempts in the
emergency room, I.R.M. was pronounced dead at 5:05 p.m. on September 26, 2014. At
the time of his death, I.R.M. had no discernable health concerns of note apart from an ear
deformity that was identified before I.R.M. turned two, which caused ear infections and
resulted in tubes being placed in his ears. I.R.M. received his usual vaccines on schedule
without notable complications.
I.R.M.’s babysitter presented differing statements concerning the circumstances
on the day of I.R.M.’s death. She noted in a contemporaneous statement to the police on
September 26, 2014 that the morning passed “unremarkably.” Subsequently, however,
I.R.M.’s babysitter stated that I.R.M. seemed tired and was reluctant to eat and that I.R.M.
told her that he did not feel well. This prompted I.R.M.’s babysitter to put him down for a
nap on the day that he died under the assumption that he was tired.
On September 28, 2014, an autopsy was performed and the autopsy report
officially stated that the cause of death was undetermined and noted no congenital
abnormalities or signs of trauma. The pathological findings of the autopsy included mild
to moderate pulmonary edema and congestion, mild to moderate cerebral edema and
congestion, equivocal focal acute hypoxia-ischemia changes in the hippocampus, and
hippocampal malformation. Genetic testing could not rule out a cardiac channelopathy.
Efforts to determine I.R.M.’s cause of death were complicated by the fact that key organs,
including the heart, had been harvested for donation, which inhibited direct dissection or
visualization of the heart grossly or microscopically, and as such the autopsy report could
not rule out cardiac infections or cardiomyopathies.
2

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 3 of 35
On July 27, 2015, petitioners filed a petition under the National Vaccine Injury
Compensation Program, which was assigned to Chief Special Master Corcoran, who
subsequently ordered petitioners to file expert reports and respondent to file a Rule 4(c)
Report. In December 2015, petitioners filed initial reports by expert witnesses Dr. Marcel
Kinsbourne and Dr. Alan Levin. In January 2016, Respondent filed its Vaccine Rule 4(c)
Report and argued that an entitlement award was not appropriate. In December 2016,
respondent filed expert reports by Dr. Christine McCusker and Dr. Brent Harris, after
which petitioners filed supplemental reports by Dr. Alan Levin and Dr. Marcel Kinsbourne
in May 2017. The Chief Special Master then ordered petitioners to consider filing a
supplemental expert report, which prompted petitioners to file an expert report by Dr.
Douglas Miller in April 2018. Thereafter, respondent filed a supplemental report by Dr.
Harris in response to Dr. Miller’s report. In September 2019, both sides filed post-hearing
briefs.2 Ultimately, the Chief Special Master received reports and heard testimony from
five experts: Dr. Levin, Dr. Kinsbourne, and Dr. Miller for the petitioners, and Dr.
McCusker and Dr. Harris for the respondent. Petitioners’ expert Dr. Miller, a
neuropathologist, filed a single expert report on April 4, 2018. In his decision, Chief
Special Master Corcoran summed up petitioners’ Dr. Miller’s credentials, stating:
Dr. Miller studied biology in college and graduated from Williams College in
1974 with highest honors. He then earned his M.D. at the University of
Miami School of Medicine in 1978. Two years later he obtained his Ph.D. in
physiology and biophysics from the University of Miami. After his formal
education he began his residency training at the Massachusetts General
Hospital, where he was a anatomic pathology resident from 1980 to 1982.
Then he served as a neuropathology resident from 1982 to 1984. Dr. Miller
also serves on the editorial boards of three neurology or neuropathology
journals. Dr. Miller is not an immunologist.
Dr. Miller is currently a clinical professor at the University of Missouri School
of Medicine, and (since the fall of 2018) has been interim chair for the
Department of Pathology and Anatomical Sciences, where he performs
different teaching duties. He identified himself as the sole neuropathologist
in Central Missouri, resulting in him being called on to assist medical
examiners in autopsies (sometimes in criminal contexts) where
neuropathologic issues are raised. In such circumstances, he will commonly
examine brain or other central nervous system tissues to evaluate
“unexpected findings.”
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *2 (internal citations
omitted).
2 After the filing deadline of April 11, 2019, respondent filed a four page supplemental
report from Dr. McCusker. Petitioners objected to the untimeliness of respondent’s filing
and asked that it be stricken. Alternatively, respondent argued that the supplemental
report was intended to address six additional items of petitioners’ post-trial filings, which
would require that respondent be permitted to respond or that the items be stricken. Chief
Special Master Corcoran granted petitioners’ motion to strike in his May 8, 2020 decision.
See Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *34-35.
3

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 4 of 35
In his testimony, on behalf of petitioners, Dr. Miller found it significant that I.R.M.’s
autopsy report did not specify an anatomic cause of death and that I.R.M.’s death fell
under the category of sudden unexpected death of child (SUDC). Dr. Miller did not contest
the coroner’s autopsy report and concurred with the observations of Dr. Harris,
respondent’s pathologist expert. Dr. Miller’s opinion was that I.R.M. had a brain
abnormality which was “[p]resent from the moment he was born” and which predated any
vaccines, and that this abnormality sometimes seen in autopsies of people who have
epilepsy. In stating his opinion Dr. Miller cited similarities between I.R.M.’s death due to
SUDC and sudden infant death syndrome (SIDS) and referenced a study by Dr. Hannah
Kinney, which suggests that various factors like brain abnormalities and sleep position
are associated with SUDC and SIDS. See H. Kinney et al., Sudden Death, Febrile
Seizures, and Hippocampal and Temporal Lobe Maldevelopment in Toddlers: A New
Entity, 12 Pediatr. Dev. Pathol., 6:455–63 (2009) (Kinney I). The Chief Special Master
summarized Dr. Miller’s theory, stating:
Such a sleep seizure might result in a “fatal event” characterized by a
cessation of breathing and brain edema. Dr. Miller deemed it “well settled”
that children with this particular brain abnormality possess a risk factor for
unexplained death, noting that they are overrepresented amongst those
with diagnosed epilepsy who die (an occurrence termed sudden
unexplained death in epilepsy, or “SUDEP”), as well as in SIDS [Sudden
Infant Death Syndrome] or SUDC [Sudden Unexpected Death of Child].[3]
He later admitted, however, that Kinney I expressly did not state that this
hippocampal anomaly was also associated with SIDS—and although he
claimed familiarity with “subsequent studies” since Kinney I’s publication in
2009 making this link, he did not file any in this matter. Kinney I at 8
(“[a]lthough prone sleep position is associated with SIDS, febrile seizures
3 Dr. Miller evaluated slides of I.R.M.’s brain tissue and noted that one slide showed
evidence of an abnormality with I.R.M.’s dentate gyrus, a section of the hippocampus. In
his decision, Chief Special Master Corcoran noted:
Medical studies, however, have associated abnormal development of the
dentate gyrus with not only seizure propensity (since it was often seen in
patients diagnosed with epilepsy), but also have proposed that this kind of
abnormality might explain sudden infant death syndrome (“SIDS”) as the
product of single nocturnal seizure, although SIDS has been more closely
associated with other risk factors (in particular sleeping in a prone position).
Id. at 17–18, 41, 43; H. Kinney et al., Sudden Death, Febrile Seizures, and
Hippocampal and Temporal Lobe Maldevelopment in Toddlers: A New
Entity, 12 Pediatr. Dev. Pathol., 6:455–63 (2009), filed as Ex. 64 (ECF No.
46-1) (“Kinney I”).
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *3 (emphasis in original;
internal citations omitted).
4

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 5 of 35
and hippocampal abnormalities are not”). He [Dr. Miller] also noted that
because the presence of the abnormality could only be detected on
autopsy, its exact causal role in seizure or sudden unexplained death was
ultimately unknown. (“[y]ou can’t say that the seizure was generated by the
abnormality”).
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *3 (capitalization in
original; internal citations omitted) (brackets added; footnotes omitted). Dr. Miller also
presented a “seizure threshold” as part of his causation opinion, which the Chief Special
Master summarized as follows:
The neurons making up the dentate gyrus are pyramidal, or triangular, in
structure, and evidence of their cell death (whether due to hypoxic or
ischemic insult) can easily be discerned under magnification given the
idiosyncratic form of these neurons. A child possessing the abnormality
alleged herein could be characterized as having a lower threshold to
seizure, and might even have had subclinical seizures in the past. Thus,
evidence of some prior subclinical seizures would support the contention
that a later seizure explained sudden death. He saw some such evidence
from I.R.M.’s brain tissue slides (although he admitted the evidence was at
best “suggestive” of prior seizures).
Id. at *4 (internal citations omitted). Dr. Miller found evidence of both prior and existing
seizures in slides containing I.R.M.’s brain tissue, in which Dr. Miller identified an
abnormality in the hippocampus and the abnormal presence of astrocytes, which are
referred to as “Chaslin gliosis.”4 Dr. Miller also considered the circumstances surrounding
I.R.M.’s death to be illustrative of a seizure in association with an abnormality. Dr. Miller
considered I.R.M’s death as the result of receiving administration of the Flumist vaccine
to be “the kind of event that Dr. Kinney and her colleagues have been describing in
association with his hippocampal abnormality, that in sleep, he had a seizure event which
caused him to stop breathing, and that led to the brain starting to swell, and he died.” Dr.
Miller’s opinion was that vaccination would cause production of “a variety of inflammatory
cytokines” that could cross the blood-brain barrier, enter the brain and “lower seizure
thresholds.” On cross-examination Dr. Miller stated that he was “not naming specific
cytokines” and that:
There are many, many kinds of cytokines. And some of them are
proinflammatory and some of them are anti-inflammatory and there are all
sorts of regulatory functions. It is largely a subset of proinflammatory
4 In defining “Chaslin gliosis” Chief Special Master Corcoran stated, “Chaslin gliosis is ‘[a]
condensation of usually delicate horizontal glial fibers that are normally found in the
cortex, immediately beneath the pial surface, thought to be a consequence of
convulsions.’ William Pryse-Phillips, Companion to Clinical Neurology 180 (2003).” Martin
v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *4 n.7.
5

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 6 of 35
cytokines that are documented to reduce neuronal excitability. So therefore
lower seizure threshold.
And IL-1 beta [a type of cytokine] is certainly one of those. There has been
some literature on IL-6 as well, and abnormalities of IL-6 signaling. And a
lot of that is in the SIDS literature and probably not directly relevant here,
but could be brought in as an analogy if somebody wanted to.
(capitalization in original) (brackets added). Moreover, Dr. Miller could not “say this as
certainty” that I.R.M. suffered from a seizure and that there was no evidence to show that
I.R.M. was affected by one prior to I.R.M.’s nap. Dr. Miller stated that the timeframe from
vaccination to death was medically acceptable and that in his opinion the risk would be
increased for two to three days after receiving a vaccination. Dr. Miller noted similarities
between his previous opinions provided in SIDS cases and I.R.M.’s SUDC, but did not
directly relate to the situation in this case, because of factors present in infants (under the
age of one) that are not present with three-year olds. Dr. Miller also stated that he was
not an immunologist, did not include any opinions about cytokine reaction to vaccination
in his pre-hearing report and that he had not filed any literature in support of his theory
concerning cytokine reaction to vaccination.
Petitioners also relied on testimony provided by Dr. Marcel Kinsbourne, who
prepared two reports and testified at the hearing. Dr. Kinsbourne is board certified in
pediatrics and his credentials were summarized by the Chief Special Master, who stated:
Dr. Kinsbourne is board certified in pediatrics. He received his medical
degree in England, and he has been licensed to practice medicine in North
Carolina since 1967. From 1967 to 1974, Dr. Kinsbourne served as an
associate professor in pediatrics and neurology and a senior research
associate at Duke University Medical Center before holding a series of
academic positions, including professorships in pediatrics, neurology, and
psychology. His clinical experience includes serving as a senior staff
physician in Ontario from 1974 to 1980, and a clinical associate in neurology
at Massachusetts General Hospital from 1981 to 1991, although (as noted
in other cases) many years have passed since he regularly saw patients.
He is on the editorial board of several journals that deal with the brain, such
as Brain and Cognition and Brain Research.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *7 (emphasis in original;
internal citations omitted). Chief Special Master Corcoran questioned Dr. Kinsbourne’s
experience and expert report and testimony, writing:
Cross-examination of Dr. Kinsbourne established a number of reasons to
question the degree to which his professional qualifications and experience
(especially at present) made him a good “fit” to opine on the issues in
contention. Specifically, he admitted (a) having no hospital-based clinical
practice for approximately 25 years, (b) that he only occasionally sees
patients on referral, (c) that he had not treated a seizure or evaluated its
cause in that entire period, and (d) that his focus since ceasing to regularly
see patients had been on teaching (mainly as a professor of psychology
6

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 7 of 35
teaching neuroscience to graduate psychology students), although he
argued that he nevertheless frequently considered issues pertaining to
neurology and the brain. He similarly acknowledged that he lacked training
and expertise in immunologic matters generally, and the study of cytokines
specifically, deferring on such issues to Petitioner’s [sic] third expert, Dr.
Levin.
Id. (internal citations omitted).
Dr. Kinsbourne pointed out that I.R.M. had been feeling fine before he received the
vaccine but that he felt sluggish afterwards. Dr. Kinsbourne ultimately provided
contradictory opinions, in which Dr. Kinsbourne changed his opinion from aligning with
Dr. Levin’s opinion that brain swelling caused I.R.M.’s death to more closely align with Dr.
Miller’s opinion concerning a brain abnormality. The Chief Special Master also noted that
on cross-examination Dr. Kinsbourne could not explain why previous vaccinations had
not triggered a seizure. According to the Chief Special Master’s decision, Dr.
Kinsbourne’s testimony largely rests on the theory that the flu vaccine is generally capable
of causing injury, a theory which Dr. Kinsbourne tried to support with reference to T.
Togashi et al., Influenza-Associated Acute Encephalopathy in Japanese Children in 1994-
2002, 103 Virus Res. 75–78 (2004) (Togashi). The Chief Special Master, however, stated:
But Dr. Kinsbourne admitted that he did not contend that I.R.M. had suffered
an encephalopathy, and Togashi’s authors say nothing about vaccines
being potentially causal of any injury process associated with
encephalopathy—in fact, they reached the opposite conclusion. [citing the
Togashi article] (“[t]he best way to avoid this severe complication is no doubt
prevention by influenza vaccination”). Dr. Kinsbourne also claimed that Cox
[R. Cox et al., Influenza Virus: Immunity and Vaccination Strategies.
Comparison of the Immune Response to Inactivated and Live, Attenuated
Influenza Vaccines, 59 Scand. J. Imm. 1-15 (2004) (Cox)] observed
increased levels of similar cytokines after vaccination, although that article
does not squarely address post-vaccination cytokine levels, focusing
instead on antibody levels. Cox at 5–7.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *9 (emphasis in original;
internal citations omitted) (brackets added). The Chief Special Master also found other
“deficiencies” with Dr. Kinsbourne’s opinion, because Dr. Kinsbourne stated that he did
not know “whether it’s well known or not” that Flumist causes seizures regardless of
mechanisms, that he could not identify literature addressing the possibility and that the
Togashi study involved wild flu virus-induced fever and not vaccines.
Petitioners’ third and final expert was Dr. Alan Levin. The Chief Special Master
summarized Dr. Levin’s credentials as:
Dr. Levin has a master’s degree in biochemistry and received his medical
degree from the University of Illinois in 1964. Dr. Levin also received a juris
doctor from Golden Gate University in San Francisco in August 1995 and
currently practices law. He is board certified in allergy, immunology, and
clinical pathology. His CV lists numerous publications and states these
7

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 8 of 35
publications are primarily in the subjects of immunology, immunopathology,
cancer biology and treatments.
Dr. Levin claimed as well to have done research on immunologic issues,
but “mostly for the Vaccine Court”—suggesting he deems work on petitions
as an expert to be akin to research into the background medical or scientific
question. He is not board certified in neuropathology, however (unlike Drs.
Miller and Harris), and deferred to Dr. Miller on issues in this case relevant
to pathology (while maintaining he did have some up-to-date expertise with
pathologic issues).
As with Dr. Kinsbourne, Respondent devoted some cross-examination time
to highlighting issues with Dr. Levin’s expert qualifications. In particular, Dr.
Levin graduated from law school 25 years ago, and appears largely since
that time to have been a practicing attorney rather than immunologist or
pathologist (although the clients he had represented often have brought
claims that impinge on the kinds of medical and scientific issues litigated in
the Vaccine Program). He is not the primary physician for any patients
today, even though he does see a few patients every month, and (as noted
above) has kept up to date his medical licenses. He also has not published
any medical academic articles for over 20 years.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *10 (capitalization in
original) (internal citations omitted).
Dr. Levin posited that the Flumist vaccine had strong immune system-stimulating
properties, but unlike Dr. Kinsbourne’s initial report, Dr. Levin did not refer to it as a
cytokine storm. The Chief Special Master noted that Dr. Levin’s reports filed prior to Dr.
Miller’s report did not state that seizure would have caused I.R.M.’s death, but rather that,
“[t]he most probable diagnosis is respiratory arrest secondary to cerebral edema.” Dr.
Levin stated in his testimony, however, that I.R.M.’s hippocampal abnormality did not
make him susceptible to cerebral edema, but rather that it made I.R.M. “susceptible to
seizure,” and that cerebral edema “probably” postdated any seizure. Dr. Levin also
testified that the Flumist vaccine’s administration through I.R.M.’s nose rather than his
arm distinguished Flumist from other vaccinations, because of “[t]he proximity to the
brain.” Dr. Levin referenced the Fischer article as support for the contention that “the
response is much more vigorous when you put it in the nose.” Chief Special Master
Corcoran also noted that Dr. Levin could not identify which cytokines were necessary to
spark a cerebral edema. In support of his opinion, Dr. Levin cited an article by A. Vezzani
et al., Il-1 Receptor/Toll-like Receptor Signaling in Infection, Inflammation, Stress and
Neurodegeneration Couples Hyperexcitability and Seizures, 25 Brain, Behavior and Imm.
1281–89 (2011) (Vezzani). The Chief Special Master noted that the Vezzani article says
nothing about the ability of vaccines to cause seizures and focuses on cytokines already
present in the central nervous system rather than cytokines entering the central nervous
system.
Respondent’s experts were Dr. Brent Harris and Dr. Christine McCusker. Dr.
Harris, a pediatric neuropathologist, prepared an expert report and testified at the hearing
for respondent. Dr. Harris concurred with some of the approach offered by Dr. Miller,
8

Case 1:15-vv-00789-MBH Document 107 Filed 09/26/20 Page 9 of 35
agreeing with Dr. Miller’s conclusions that I.R.M. had a brain abnormality and that I.R.M.
had suffered from previously un-diagnosed seizures, but noting that it was not possible
to tell when these previous seizures had occurred, because the slide of I.R.M.’s gliosis
was “not an entirely specific finding.” Dr. Harris stated that “having the hippocampal
malformation was sufficient to cause seizures in and of itself.” Dr. Harris also stated that
sleep position was often an initiating factor in children’s seizures, because sleep position
affects breathing and compromises airways. Dr. Harris found it likely that I.R.M. died
earlier in the nap, which would explain the evidence of subsequent edema.
Respondent’s second expert was Dr. Christine McCusker, a pediatric
immunologist who prepared an expert report and testified at the hearing. Dr. McCusker
stated that Flumist could not have started a seizure in I.R.M. based on proinflammatory
cytonkines. Dr. McCusker’s credentials were summarized by the Chief Special Master,
as follows:
Dr. Christine McCusker earned a master’s degree in Molecular Virology in
1988, followed by an M.D. in 1993, at McMaster University, in Hamilton,
Ontario. She served as a pediatric resident at Montreal Children’s Hospital,
McGill University, from 1993 to 1996. Then, she was then a clinical fellow
in allergy and immunology at McGill University from 1996 to 1999. Dr.
McCusker is board certified in pediatrics. She is currently the division
director of pediatric allergy, immunology, and dermatology at the Montreal
Children’s Hospital at McGill University Health Center and is the director of
the Clinical Immunology Lab. She also conducts research on
developmental immunology, vaccines and immunology, and serves on the
boards of several journals.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *15 (internal citations
omitted).
The Chief Special Master found Dr. McCusker to be particularly persuasive,
writing, “[b]ut this case turned mostly on questions of pathology and immunology—and
on the latter topic, Dr. McCusker was a far more qualified immunologist than Dr. Levin,
and provided testimony I found significantly more persuasive.” Martin v. Sec’y of Health
& Human Servs., 2020 WL 4197748, at *31 n.44 (emphasis in original). In summarizing
her opinion, the Chief Special Master wrote:
Dr. McCusker’s opinion in this case was rooted in some core contentions
about cytokines and the roles they play in the human immune response. Dr.
McCusker stressed that cytokines—proteins released by immune system
cells to perform communications tasks—were not “one thing.” Rather, they
have many different functions, and more than 80 have been identified.
Cytokines are often lumped together with chemokines, but Dr. McCusker
maintained that the latter perform a distinguishable function (by acting as
“addressants” that instruct other cells where to go, as opposed to travelling
to such other cells themselves to deliver information, as cytokines do).
Because of the functional importance and power of cytokines, the immune
system tightly regulates their release. IL-1β, for example (which Dr.
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McCusker deemed a common cytokine), is as quickly released as it is
controlled, with excess amounts inactivated after being picked up by a
“decoy receptor.” As a result, Dr. McCusker maintained, cytokines act
rapidly and over short distances in the body, with their dissemination and
circulation ultimately limited. She specifically disputed the concept that
cytokines themselves regularly “travel” from a peripheral site of vaccination
to places like the brain, or that they could cause edema there. Rather (and
using the example of cytokines implicated in “sickness behavior” after
vaccination), cytokines responsible for fever accomplish this most often by
causing peripheral nerves at the site of vaccination to communicate signals
to the brain (specifically the hypothalamus), “instructing” such CNS [Central
Nervous System] locations to initiate a fever in response to an infection.
Even in the circumstances of a true “cytokine storm” (which even Dr. Levin
discounted as having occurred in this case) featuring uncontrolled cytokine
circulation, few cytokines would still travel into the brain.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *16 (emphasis and
capitalization in original) (brackets added; internal citations omitted). Dr. McCusker also
rejected petitioners contention that proinflammatory cytokines regularly permeate the
blood-brain barrier following vaccinations, and also disagreed with the petitioners’
experts’ assignment of certain conditions to the vaccine, noting that several of the
symptoms could be explained by the method of administrating the vaccine.5 Dr. McCusker
also acknowledged that cytokines could be upregulated for a one or two day period
following vaccination, but disputed the amount of elevation. Moreover, Dr. McCusker
acknowledged that fever or malaise could be induced by vaccines, but she disputed Dr.
Levin’s argument that Flumist would generally induce fever, particularly in a short time
frame, and noted that that to her knowledge the incidence of fever would be no higher
than a placebo version of a vaccine. Dr. McCusker disputed the impact of cytokines on a
brain malformation and denied that a brain edema would be induced by cytokines, noting
that the type of cytokines do not cause inflammation. If such were true, then Dr. McCusker
noted that I.R.M. would have suffered reactions or seizures earlier in his life, stating:
And in this case, this child had several vaccines. This child had several
infections. And at each one of those infections, these same series of events
would have occurred. And you would have anticipated that if he was
sensitive to the point that it would induce a seizure, [sic] that his seizures
would have become much more apparent much sooner, just based on the
odds.
5 As indicated in the Chief Special Master’s decision, “[s]ome such symptoms might be
specific to the vaccine’s method of administration; thus, in Dr. McCusker’s understanding,
people receiving Flumist vaccine often reported a runny nose, consistent with the
vaccine’s intranasal administration (and this is the response she would usually expect to
see if excess cytokine upregulation were at issue).” Martin v. Sec’y of Health & Human
Servs., 2020 WL 4197748, at *17.
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Dr. McCusker also addressed Flumist specifically, noting that its application
method through the nose rather than the arm provokes a “not as virulent” response in the
immune system. To this she cited a direct study on Flumist’s immunogenicity by M. Barria
et al., Localized Muscosal Response to Intranasal Live Attenuated Influenza Vaccine in
Adults, J. Infectious Diseases 207:115–24 (2013) (Barria). The Chief Special Master
wrote concerning the Barria study and Dr. McCusker’s opinion that:
More relevant to this case, Barria observed no change in serum cytokine
profiles (in comparison to the impact of a wild viral infection) or
concentrations between the date of the vaccine’s administration and three
days later. IL-1β, the cytokine most identified herein by Petitioners’ experts
as causal, barely varied in amounts from before to after vaccination—and
was in fact the least prevalent of the eleven specifically-measured
cytokines. Thus, Barria’s authors concluded—contrary to a central
contention of Petitioners’ experts—that the Flumist LAIV [live, attenuated,
influenza vaccine] did not produce a notable systemic immune response
(evidenced by increased cytokines or antibodies). This kind of finding was,
Dr. McCusker suggested, a basis for questioning the overall efficacy of
Flumist (when coupled with other evidence establishing that the localized
immune response that a LAIV like Flumist did provide was itself not all that
effective).
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *18 (emphasis in original;
capitalization in original) (brackets added; internal citations omitted). Dr. McCusker also
provided an opinion on SUDC, and stated that the primary risk factors were sleep and
sleep position, with the potential for some suggestion of febrile seizures based on prior
“unwitnessed” seizures.
On May 8, 2020, the Chief Special Master ruled in favor of respondents, finding
that the petitioners had not presented a plausible theory of causation, that petitioners had
not “persuasively established with reliable science” that the Flumist vaccine “was in
particular likely to further increase the seizure risk due to its stimulation of the innate
immune system” and that the record before the Chief Special Master did not support the
conclusion that I.R.M.’s death was caused by a vaccine. The Chief Special Master found
I.R.M.’s case of SUDC analogous to a SIDS case, although he noted that the two are
different and that the SIDS “triple risk” analysis had no direct application to the case under
review. The Chief Special Master held that:
I thus do not conclude that the many SIDS cases going against
petitioners in the Vaccine Program compelled the same result herein.
The fact that I held a hearing in this case, despite my concerns about the
similarity of this case to the prior SIDS determinations, and have written a
lengthy decision evaluating the arguments asserted, should underscore the
degree to which I have tried to give Petitioners’ claim a fair shot at success.
Nevertheless - this claim, like the prior SIDS cases, relies on the theory that
vaccine-induced cytokine interference with the brain in some way has
pathologic, and ultimately fatal, outcomes under circumstances involving
very young children that otherwise remain mysterious to medical science.
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And in such comparable cases, special masters have repeatedly noted that
existing medical and scientific evidence does not reliably support the
contention that cytokines cause such processes - as opposed to appear in
response to an ongoing pathogenic process caused by something else. It
was for such reasons that the Federal Circuit in Boatmon termed the
causation theory therein offered as merely “plausible”—and therefore
insufficient to meet the preponderant test. Boatmon[v. Sec’y of Health &
Human Servs.], 941 F.3d [1351,] 1360 [(Fed. Cir. 2019)]. My decision below
reasonably takes such parallel analyses into account.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *27 (emphasis in
original) (brackets added; footnote omitted). The Chief Special Master also addressed
prior SIDS related vaccine cases as it related to the experts in this case. He stated:
Special masters have had numerous opportunities to evaluate whether
vaccines can cause unexplained death via SIDS in infants younger than
I.R.M. They have almost never found so, and their determinations have
been consistently upheld on appeal. See, e.g., Cozart v. Sec’y of Health &
Human Servs., No. 00–590V, 2015 WL 6746616, at *1 (Fed. Cl. Spec. Mstr.
Oct. 15, 2015), mot. for review den’d, 126 Fed. Cl. 488 (2016); Nunez v.
Sec’y of Health & Human Servs., No. 14-863V, 2019 WL 2462667, at *1
(Fed. Cl. Spec. Mstr. Mar. 29, 2019), mot. for rev. den’d, 144 Fed. Cl. 540
(Fed. Cl. 2019), appeal docketed, No. 20-1021 (Fed. Cir. Oct. 8, 2019).
Those prior cases also uniformly featured Drs. Miller and McCusker—
underscoring the parallel nature of the present claim. See, e.g., Cozart,
2015 WL 6746616, at *9–11. Their views have been evaluated and
demeanors considered time and time again—but Respondent has always
prevailed.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *26 (emphasis in
original).
The Chief Special Master was unconvinced by petitioners’ experts Dr. Levin and
Dr. Kinsbourne and found the causation theory provided by Dr. Miller, to be unsupported.
The Chief Special Master stated:
Petitioners’ experts shifted their causation theory somewhat over the course
of the proceedings. Although Drs. Kinsbourne and Levin initially pointed to
brain edema triggered by vaccination as causal, at hearing they maintained
that (1) a child with a hippocampal abnormality like I.R.M. was susceptible
to seizure, (2) the conditions of sleep made seizure more likely under such
circumstances, (3) a seizure experienced while sleeping could result in
unexplained death, and (4) the Flumist vaccine was in particular likely to
further increase the seizure risk due to its stimulation of the innate immune
system. While items (1) to (3) were persuasively established with reliable
science (and largely not contested by Respondent’s experts), the fourth
element of the theory, and the component most critical to Petitioners’
success, was not.
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Both sides’ primary pathologists (Drs. Miller and Harris) were credentialed
and credible, and they agreed that a hippocampal malformation was likely
associated with childhood seizures—especially during sleep. They also
concurred that literature on SUDC ties these factors together (although, as
Dr. Harris noted, in many SUDC cases a seizure-induced fatality was, or
appeared to have been, preceded by seizures that went unrecognized—
and therefore such cases would closely align with SUDEP, but for the
absence of a prior epilepsy diagnosis). But there is little to no direct
evidence that any vaccine, let alone the Flumist vaccine, could cause or
contribute to this process, nor could any of Petitioners’ experts speak from
their own experience, whether from patient treatment or research, to
bulwark this point.
Id. *28 (capitalization in original) (internal citations omitted; footnotes omitted). Further,
Chief Special Master Corcoran wrote:
Coloring the scientific and medical unreliability of theories offered in this
case are deficiencies in the qualifications and testimony of two of the three
experts who testified for Petitioners. Drs. Kinsbourne and Levin lacked
testimonial credibility in important regards. Dr. Kinsbourne, for example, has
no demonstrated research or treatment expertise in the matters in dispute,
and he relies on neurology expertise that has not been honed or refined,
whether by clinical practice or research, for nearly 30 years. This is a
criticism that has been lodged— reasonably—against him repeatedly in the
Vaccine Program. See, e.g., Pope v. Sec'y of Health & Human Servs., No.
14-078V, 2017 WL 2640503, at *21 n.29 (Fed. Cl. Spec. Mstr. May 1, 2017).
Although Dr. Kinsbourne may have a facility (drawn from his many prior
turns as a Vaccine Program expert) in speaking to neurology topics with
clarity and confidence, he is not compelling or persuasive in so doing—
especially to the degree his statements are either not grounded in reliable
science or do not arise from his own direct medical expertise or recent work.
The mere fact he has experience as a pediatric neurologist does not render
him a helpful expert in all cases involving a pediatric neurologic injury.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *31 (emphasis in
original). Moreover, the Chief Special Master acknowledged in his decision that he found
respondent’s experts to be more credible and persuasive, as follows:
Petitioners’ post-hearing brief notes (perhaps in the hope of vouching for
his expertise) that Dr. Kinsbourne was the “only” neurologist who testified
in this case—a true fact as far as it goes. But this case turned mostly on
questions of pathology and immunology—and on the latter topic, Dr.
McCusker was a far more qualified immunologist than Dr. Levin, and
provided testimony I found significantly more persuasive. See also
Copenhaver v. Sec’y of Health & Human Servs., No. 13-1002V, 2016 WL
3456436, at *1 (Fed. Cl. Spec. Mstr. May, 31, 2016) (finding that Dr.
McCusker was more credible than Dr. Miller), mot. for review denied, 129
Fed. Cl. 176 (Fed. Cl. 2016). In addition, the neurologic issues posed in this
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case related to the hippocampal abnormality, an issue that both sides
largely agreed upon, disputing only the immunologic impact of the vaccine
at issue, and Dr. Kinsbourne has no specific demonstrated expertise on that
topic that would suggest his statements are deserving of extra weight. In
any event, special masters are never bound to accept any expert’s
statements as gospel—especially an expert who sees no patients, conducts
no research bearing on the subject of his testimony, and cannot
demonstrate otherwise any particular specialization in the relevant topic, as
here.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *31 n.44 (emphasis in
original) (internal citations omitted). In his conclusion, the Chief Special Master wrote:
The circumstances of this case are truly tragic. The Martins’s desire to
identify the medical reason for the loss of their son is wholly
understandable—as is their good faith basis for contending that the flu
vaccine might have been involved, given the temporal proximity of its
administration theory, and I cannot otherwise grant an award of damages
simply because an injury occurred close-in-time to a vaccination. Thus, for
the reasons stated above, I must deny entitlement in this case.
Id. at *35.
On June 8, 2020, petitioners timely filed a Motion for Review of the Chief Special
Master’s Decision in the United States Court of Federal Claims. Petitioners argue that the
Chief Special Master erred by increasing the burden of proof in requiring petitioners to
“supply direct evidence of a biological mechanism of causation.” Petitioners argue that:
The special master made it very clear that he does not accept an
association between a vaccine and an injury established by reliable medical
opinion. He will only accept direct proof of causality. His analysis searches
for direct proof. The question he finds important is not can Flumist
upregulate cytokines, but rather which cytokines, when and how many? The
question he finds important is not can cytokines cross the blood-brain
barrier but again, which cytokines, when and how many? The question he
finds important is not can cytokines either reduce the seizure threshold or
directly trigger a seizure, but rather which cytokines would, how many would
be needed, how would they cross the blood-brain barrier, what would they
do once they got in, and how long would the brain need to be exposed to
them for a seizure to occur? Even if there is some indication on one
question, unless all questions are answered, Petitioners lose.
The Special master is asking the wrong questions. He is asking the
equivalent of the who, what, when, where and how of a criminal
investigation. But special masters are not to scour the evidence with the aim
of meeting the standard of a laboratorian. To demand causation proven with
scientific certainty, as this special master has done, goes against the very
basic tenets of Vaccine Program law.
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Petitioners argue that support by medical opinion is enough, rather than causation in fact.
In addition, petitioners argue that the Chief Special Master erred in finding that the vaccine
was not a substantial factor in bringing about I.R.M.’s death. Moreover, petitioners argue
that the Chief Special Master’s decision not to find that I.R.M. had suffered from “malaise”
as a result of the vaccine was in error, because the Chief Special Master ruled that “it is
equally likely based on this record that I.R.M. merely felt tired.” Petitioners argue:
“Given the importance of this fact [referring to I.R.M.’s feeling of tiredness
on the day of his death] to Petitioners’ theory of causation, the special
master, under Althen [Althen v. Sec’y of Health & Human Servs., 418 F.3d
1274, 1277 (Fed. Cir. 2005)] and Walther [Walther v. Sec'y of Health &
Human Servs., 485 F.3d 1146, 1150 (Fed. Cir. 2007)], should have decided
the issue in favor of Petitioners. Given that there is no direct scientific
evidence regarding Flumist and seizures, Petitioners must rely on
circumstantial evidence. The fact that I.R.M. was suffering from malaise
within the hours before he had a seizure and died, is very relevant to the
causation theory.”
(capitalization and emphasis in original) (brackets added).
In response, respondent asserts that the Chief Special Master’s finding that
petitioners failed to establish that Flumist caused I.R.M.’s death was not arbitrary and
capricious, because the Chief Special Master’s decision was “strongly supported by the
evidence in the record.” Respondent further argues:
First, it was undisputed that I.R.M. did not have a fever. The Chief Special
Master found Dr. McCusker’s testimony about cytokines and fever credible.
The Chief Special Master also found that Dr. Kinsbourne’s and Dr. Levin’s
testimony “did not merit significant weight.” He further found that Dr. Miller’s
opinions regarding the “theoretical impact of Flumist on a child with a
possible susceptibility to seizure” was unreliable and outside the scope of
Dr. Miller’s area of expertise. In short, the only credible testimony about
immunologic pathways came from Dr. McCusker.
(capitalization in original) (internal references omitted). Respondent argues that credibility
determinations regarding expert testimony are appropriate. Respondent also argues that
petitioners misconstrues the Chief Special Master’s decision in suggesting that “the fact
issue relating to causation is in equipoise” and that, therefore, the Chief Special Master
must rule in favor of the petitioners. Respondent states:
While the Chief Special Master stated it was a “reasonable inference to
associate I.R.M.’s pre-nap condition with what thereafter transpired,” that is,
I.R.M.’s death, he did not find that the pre-nap condition, or malaise,
resulted from the vaccine or an inflammatory response to the vaccine.
Moreover, he also found it “equally likely based on this record” that the
malaise was because I.R.M. “merely felt tired.” Ultimately, the Chief Special
Master found “there is weak evidence here that I.R.M. was experiencing a
proinflammatory reaction to Flumist due to cytokine upregulation as of the
morning of his death.” Based on the Chief Special Master’s findings and
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discussion of this particular fact, the evidence of any connection between
the vaccine and I.R.M.’s malaise most certainly was not in “equipoise.”
(internal citations omitted). Respondent also argues that the issue is moot even if
evidence were in equipoise, because petitioners bear the burden of proof and equipoise
is not preponderance of evidence. Respondent also states:
Specifically, as noted, I.R.M. did not exhibit a fever, which “greatly
undermin[ed] the contention that IL-1β, which is associated with fever, was
upregulated by Flumist – even assuming it could be, a conclusion that Dr.
McCusker effectively rebutted.” (emphasis in original). I.R.M. displayed “no
other post-vaccination symptoms even within 24 hours” of vaccination.
Moreover, I.R.M. slept for two nights, without incident, before his nap on
September 26, undermining petitioners’ theory that sleeping “interacted
negatively with his receipt of Flumist.” Additionally, the Chief Special Master
found that the record supported an “alternative explanation for the
immediate trigger of I.R.M.’s death that petitioners did not rebut,” namely,
I.R.M.’s sleep position and evidence of regurgitation (vomit). This evidence
suggested that I.R.M. experienced respiratory failure, which “would be
sufficient to trigger seizure in a child with the hippocampal abnormality
I.R.M. possessed.”
(brackets in original) (internal citations omitted). Respondent concluded its reply by
rejecting petitioners’ assertion that Chief Special Master Corcoran had elevated
petitioners’ burden of proof. Respondent argues that the Chief Special Master simply
found instead that, “for reasons he soundly discussed at length, ‘important sections of
[petitioners’ causation] chain of opinion were medically/scientifically unreliable.’”
(brackets in original).
D I S C U S S I O N
When reviewing a Special Master’s decision, the assigned Judge of the United
States Court of Federal Claims shall:
(A) uphold the findings of fact and conclusions of law of the special master
and sustain the special master’s decision,
(B) set aside any findings of fact or conclusions of law of the special master
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of
law, or
(C) remand the petition to the special master for further action in accordance
with the court’s direction.
42 U.S.C. § 300aa-12(e)(2) (2018). The legislative history of the Vaccine Act states: “The
conferees have provided for a limited standard for appeal from the [special] master’s
decision and do not intend that this procedure be used frequently, but rather in those
cases in which a truly arbitrary decision has been made.” H.R. Rep. No. 101-386, at 517
(1989) (Conf. Rep.), reprinted in 1989 U.S.C.C.A.N. 3018, 3120.
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In Markovich v. Secretary of Health & Human Services, the United States Court of
Appeals for the Federal Circuit wrote, “[u]nder the Vaccine Act, the Court of Federal
Claims reviews the Chief Special Master’s decision to determine if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 42 U.S.C.
§ 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,
1355-56 (Fed. Cir.), cert. denied, 552 U.S. 816 (2007); see also K.G. v. Sec’y of Health
& Human Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020); Oliver v. Sec’y of Health & Human
Servs., 900 F.3d 1357, 1360 (Fed. Cir. 2018) (citing Milik v. Sec’y of Health & Human
Servs., 822 F.3d 1367, 1375-76 (Fed. Cir. 2016)); Deribeaux ex rel. Deribeaux v. Sec’y
of Health & Human Servs., 717 F.3d 1363, 1366 (Fed. Cir.), reh’g and reh’g en banc
denied (Fed. Cir. 2013) (The United States Court of Appeals for the Federal Circuit stated
that “we ‘perform[ ] the same task as the Court of Federal Claims and determine[ ] anew
whether the special master’s findings were arbitrary or capricious.’” (brackets in original)
(quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
2000))); W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1355 (Fed. Cir. 2013);
Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012);
de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed. Cir. 2008);
Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir.) (“Under the
Vaccine Act, we review a decision of the special master under the same standard as the
Court of Federal Claims and determine if it is ‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.’” (quoting 42 U.S.C. § 300aa-12(e)(2)(B))), reh’g
and reh’g en banc denied (Fed. Cir. 2008); Althen v. Sec’y of Health & Human Servs.,
418 F.3d at 1277; Faup v. Sec’y of Health & Human Servs., 147 Fed. Cl. 445, 458 (2019);
Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. 43, 47 (2013); Taylor v. Sec’y of
Health & Human Servs., 108 Fed. Cl. 807, 817 (2013). The arbitrary and capricious
standard is “well understood to be the most deferential possible.” Munn v. Sec’y of Health
& Human Servs., 970 F.2d 863, 870 (Fed. Cir. 1992). The United States Court of Appeals
for the Federal Circuit has indicated that:
These standards vary in application as well as degree of deference. Each
standard applies to a different aspect of the judgment. Fact findings are
reviewed by us, as by the Claims Court judge, under the arbitrary and
capricious standard; legal questions under the “not in accordance with law”
standard . . . ; and discretionary rulings under the abuse of discretion
standard. The latter will rarely come into play except where the special
master excludes evidence.
Munn v. Sec’y of Health & Human Servs., 970 F.2d at 871 n.10; see also Carson ex rel.
Carson v. Sec’y of Health & Human Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013);
Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366; W.C.
v. Sec’y of Health & Human Servs., 704 F.3d at 1355; Griglock v. Sec’y of Health &
Human Servs., 687 F.3d 1371, 1374 (Fed. Cir. 2012); Porter v. Sec’y of Health & Human
Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (citing Broekelschen v. Sec’y of Health &
Human Servs., 618 F.3d at 1345) (explaining that the reviewing court “do[es] not reweigh
the factual evidence, assess whether the special master correctly evaluated the evidence,
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or examine the probative value of the evidence or the credibility of the witnesses—these
are all matters within the purview of the fact finder”) reh’g and reh’g en banc denied (Fed.
Cir. 2012); Morgan v. Sec’y of Health & Human Servs., 148 Fed. Cl. 454, 470-71 (2020).
“[T]he special masters have broad discretion to weigh evidence and make factual
determinations.” Dougherty v. Sec’y of Health & Human Servs., 141 Fed. Cl. 223, 229
(2018).
With regard to both fact-findings and fact-based conclusions, the key
decision maker in the first instance is the special master. The Claims Court
owes these findings and conclusions by the special master great
deference – no change may be made absent first a determination that the
special master was “arbitrary and capricious.”
Munn v. Sec’y of Health & Human Servs., 970 F.2d at 870; see also 42 U.S.C. § 300aa-
12(e)(2)(B).
Generally, “if the special master ‘has considered the relevant evidence of record,
drawn plausible inferences and articulated a rational basis for the decision, reversible
error will be extremely difficult to demonstrate.’” Hibbard v. Sec’y of Health & Human
Servs., 698 F.3d at 1363 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d
1518, 1528 (Fed. Cir. 1991)); see also Porter v. Sec’y of Health & Human Servs., 663
F.3d at 1253-54; Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1360; Avila ex
rel. Avila v. Sec’y of Health & Human Servs., 90 Fed. Cl. 590, 594 (2009); Dixon v. Sec’y
of Health & Human Servs., 61 Fed. Cl. 1, 8 (2004) (“The court’s inquiry in this regard must
therefore focus on whether the Special Master examined the ‘relevant data’ and
articulated a ‘satisfactory explanation for its action including a rational connection
between the facts found and the choice made.’” (quoting Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)))).
As noted by the United States Court of Appeals for the Federal Circuit:
Congress assigned to a group of specialists, the Special Masters within the
Court of Federal Claims, the unenviable job of sorting through these painful
cases and, based upon their accumulated expertise in the field, judging the
merits of the individual claims. The statute makes clear that, on review, the
Court of Federal Claims is not to second guess the Special Masters [sic]
fact-intensive conclusions; the standard of review is uniquely deferential for
what is essentially a judicial process. Our cases make clear that, on our
review . . . we remain equally deferential. That level of deference is
especially apt in a case in which the medical evidence of causation is in
dispute.
Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366-67
(modification in original) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958,
961 (Fed. Cir. 1993)); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1363;
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Locane v. Sec’y of Health & Human Servs., 685 F.3d 1375, 1380 (Fed. Cir. 2012). The
United States Court of Appeals for the Federal Circuit has explained that the reviewing
courts “‘do not sit to reweigh the evidence. [If] the special master's conclusion [is] based
on evidence in the record that [is] not wholly implausible, we are compelled to uphold that
finding as not being arbitrary and capricious.’” Deribeaux ex rel. Deribeaux v. Sec’y of
Health & Human Servs., 717 F.3d at 1367 (modification in original) (quoting Lampe v.
Sec’y of Health & Human Servs., 219 F.3d at 1363); see also K.G. v. Sec’y of Health &
Human Servs., 951 F.3d at 1379 (“With respect to factual findings, however, we will
uphold the special master’s findings of fact unless they are clearly erroneous.” (citing
Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278)); Hibbard v. Sec’y of Health
& Human Servs., 698 F.3d at 1363 (citing Cedillo v. Sec’y of Health & Human Servs., 617
F.3d at 1338).
The United States Court of Appeals for the Federal Circuit has explained that:
A petitioner can establish causation in one of two ways. Id. [Broekelschen
v. Sec’y of Health & Human Servs., 618 F.3d at 1341] If the petitioner shows
that he or she received a vaccination listed on the Vaccine Injury Table, 42
U.S.C. § 300aa–14, and suffered an injury listed on that table within a
statutorily prescribed time period, then the Act presumes the vaccination
caused the injury. Andreu[ ex rel. Andreu] v. Sec’y of Health & Human
Servs., 569 F.3d 1367, 1374 (Fed. Cir. 2009). Where, as here, the injury is
not on the Vaccine Injury Table, the petitioner may seek compensation by
proving causation-in-fact.
Milik v. Sec’y of Health & Human Servs., 822 F.3d at 1379 (citing Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d at 1374); see also W.C. v. Sec’y of Health
& Human Servs., 704 F.3d at 1356; Broekelschen v. Sec’y of Health & Human Servs.,
618 F.3d at 1346; Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1356 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2006), cert. denied, 551 U.S. 1102 (2007);
Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1147-48 (Fed. Cir. 1992); Faup
v. Sec’y of Health & Human Servs., 147 Fed. Cl. at 458; Dodd v. Sec’y of Health & Human
Servs., 114 Fed. Cl. at 50; Paluck v. Sec’y of Health & Human Servs., 104 Fed. Cl. 457,
467-68 (2012); Fesanco v. Sec’y of Health & Human Servs., 99 Fed. Cl. 28, 31 (2011).
For petitioners to establish a prima facie case in a vaccine case, decisions of the
Federal Circuit permit the use of circumstantial evidence, which the court described as
“envisioned by the preponderance standard” and by the vaccine system created by
Congress, in which “close calls regarding causation are resolved in favor of injured
claimants” without the need for medical certainty. See Althen v. Sec’y of Health & Human
Servs., 418 F.3d at 1280; see also Cloer v. Sec’y of Health & Human Servs., 654 F.3d
1322, 1332 n.4 (Fed. Cir. 2011), cert. denied, 566 U.S. 956 (2012); Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009) (“In Althen,
however, we expressly rejected the Stevens test, concluding that requiring ‘objective
confirmation’ in the medical literature prevents ‘the use of circumstantial evidence . . . and
negates the system created by Congress’ through the Vaccine Act.” (modification in
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original)); La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 198 (2013)
(“Causation-in-fact can be established with circumstantial evidence, i.e., medical records
or medical opinion.”), aff’d, 746 F.3d 1344 (Fed. Cir. 2014). The Althen court further noted
that “the purpose of the Vaccine Act’s preponderance standard is to allow the finding of
causation in a field bereft of complete and direct proof of how vaccines affect the human
body.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1280 (citing Knudsen ex
rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)); see
also W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1356.
When proving eligibility for compensation under the Vaccine Act in a off-Table
case,, such as the one filed petitioners, petitioners may not rely on their testimony alone.
According to the Vaccine Act, “[t]he special master or court may not make such a finding
based on the claims of a petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). A petitioner who meets his or her burden
is entitled to recovery under the Vaccine Act, unless the respondent proves by
preponderant evidence that the injury was caused by factors unrelated to the vaccine.
See Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379-80 (Fed. Cir. 2012);
Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007); see
also Rus v. Sec’y of Health & Human Servs., 129 Fed. Cl. 672, 680 (2016) (citing 42
U.S.C. § 300aa-13(a)(1)(B); Shalala v. Whitecotton, 514 U.S. 268, 270-71 (1995)). “But,
regardless of whether the burden of proof ever shifts to the respondent, the special master
may consider the evidence presented by the respondent in determining whether the
petitioner has established a prima facie case.” Rus v. Sec’y of Health & Human Servs.,
129 Fed. Cl. at 680 (citing Stone v. Sec’y of Health & Human Servs., 676 F.3d at 1379;
de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1353).
Petitioner also must prove causation-in-fact in a off-Table injury. See Grant v. Sec'y
of Health & Human Servs., 956 F.2d at 1147-48. The United States Court of Appeals for
the Federal Circuit has held that causation-in-fact in the Vaccine Act context is the same
as the “legal cause” in the general torts context. See Shyface v. Sec’y of Health & Human
Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). Therefore, drawing from the Restatement
(Second) of Torts, the vaccine is a cause-in-fact when it is “‘a substantial factor in bringing
about the harm.’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1351 (quoting
the Restatement (Second) of Torts § 431(a) (1965)); see also Oliver v. Sec’y of Health &
Human Servs., 900 F.3d at 1361 (citing Moberly ex rel. Moberly v. Sec’y of Health &
Human Servs., 592 F.3d at 1321); Deribeaux ex rel. Deribeaux v. Sec’y of Health &
Human Servs., 717 F.3d at 1367 (“To prove causation, a petitioner must show that the
vaccine was ‘not only a but-for cause of the injury but also a substantial factor in bringing
about the injury.’” (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d at 1352–
53)). A “‘substantial factor’ standard requires a greater showing than ‘but for’ causation.”
de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1351 (citing Shyface v. Sec’y
of Health & Human Servs., 165 F.3d at 1352). “However, the petitioner need not show
that the vaccine was the sole or predominant cause of her injury, just that it was a
substantial factor.” Id. (citing Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146,
1150 (Fed. Cir. 2007)). A Judge of the United States Court of Federal Claims has
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explained the relationship between “but-for” causation and “substantial factor” in
Deribeaux ex rel. Deribeaux v. Secretary of Health & Human Services:
The de Bazan [v. Sec’y of Health & Human Servs., 539 F.3d at 1351] court
defined but-for causation as requiring that “the harm be attributable to the
vaccine to some nonnegligible degree,” and noted that, although substantial
is somewhere beyond the low threshold of but-for causation, it does not
mean that a certain factor must be found to have definitively caused the
injury. Id. [de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1351]
Accordingly, a factor deemed to be substantial is one that falls somewhere
between causing the injury to a non-negligible degree and being the “sole
or predominant cause.” Id.
This definition of substantial—somewhere between non-negligible and
predominant—is applicable to respondent’s burden to prove a sole
substantial factor unrelated to the vaccine. Accordingly, a respondent’s
burden is to prove that a certain factor is the only substantial factor—one
somewhere between non-negligible and predominant—that caused the
injury.
Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 105 Fed. Cl. 583, 595
(2012), aff’d, 717 F.3d 1363 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2013)
(emphasis in original).
In order to recover under the Vaccine Act, a petitioner “must show, by a
preponderance of the evidence, ‘that the injury or death at issue was caused by a
vaccine.’” Milik v. Sec’y of Health & Human Servs., 822 F.3d at 1379; (quoting
Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1341 (citing 42 U.S.C.
§§ 300aa–11(c)(1), –13(a)(1))); see also Oliver v. Sec’y of Health & Human Servs., 900
F.3d at 1361; W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1355-56 (“The Vaccine
Act created the National Vaccine Injury Compensation Program, which allows certain
petitioners to be compensated upon showing, among other things, that a person
‘sustained, or had significantly aggravated’ a vaccine-related ‘illness, disability, injury, or
condition.’” (quoting 42 U.S.C. § 300aa–11(c)(1)(C))); see also Boatmon v. Sec’y of
Health & Human Servs., 941 F.3d 1351, 1355, 1359 (Fed. Cir. 2019); Oliver v. Sec’y of
Health & Human Servs., 900 F.3d at 1360; La Londe v. Sec’y of Health & Human Servs.,
746 F.3d 1334, 1339 (Fed. Cir. 2014); Lombardi v. Sec’y of Health & Human Servs., 656
F.3d 1343, 1350 (Fed. Cir. 2011) (“A petitioner seeking compensation under the Vaccine
Act must prove by a preponderance of the evidence that the injury or death at issue was
caused by a vaccine.”); Faup v. Sec’y of Health & Human Servs., 147 Fed. Cl. at 458;
see also Shapiro v. Sec’y of Health & Human Servs., 105 Fed. Cl. 353, 358 (2012), aff’d,
503 F. App’x 952 (Fed. Cir. 2013); Jarvis v. Sec’y of Health & Human Servs., 99 Fed. Cl.
47, 54 (2011). “Nonetheless, the petitioner must do more than demonstrate a ‘plausible’
or ‘possible’ causal link between the vaccination and the injury; he must prove his case
by a preponderance of the evidence.” W.C. v. Sec’y of Health & Human Servs., 704 F.3d
at 1356 (quoting Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d at
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1322); Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; Hines v. Sec’y of
Health & Human Servs., 940 F.2d at 1525.
While scientific certainty is not required, the Special Master “is entitled to require
some indicia of reliability to support the assertion of the expert witness.” Moberly ex rel.
Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1324; see also Hazlehurst v.
Sec’y of Health & Human Servs., 88 Fed. Cl. 473, 439 (2009), aff’d, 604 F.3d 1343 (Fed.
Cir. 2010) (quoting Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d
at 1379). The United States Supreme Court has explained that:
Claimants who show that a listed injury first manifested itself at the
appropriate time are prima facie entitled to compensation. No showing of
causation is necessary; the Secretary bears the burden of disproving
causation. A claimant may also recover for unlisted side effects, and for
listed side effects that occur at times other than those specified in the Table,
but for those the claimant must prove causation.
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 228-29 (2011) (footnotes omitted); see also
Kennedy v. Sec’y of Health & Human Servs., 99 Fed. Cl. 535, 539 (2011), aff’d, 485 F.
App’x 435 (Fed. Cir. 2012).
The Federal Circuit in Althen v. Secretary of Health & Human Services defined a
three-prong test by which a petitioner can meet his or her burden to establish causation
in a off-Table injury case:
To meet the preponderance standard, [petitioner] must “show a medical
theory causally connecting the vaccination and the injury.” Grant v. Sec’y of
Health & Humans Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992) (citations
omitted). A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause and effect showing that the vaccination was the reason
for the injury[,]” the logical sequence being supported by “reputable medical
or scientific explanation[,]” i.e., “evidence in the form of scientific studies or
expert medical testimony[.]” Grant [v. Sec’y of Health & Human Servs.], 956
F.2d at 1148. [Petitioner] may recover if she shows “that the vaccine was
not only a but-for cause of the injury but also a substantial factor in bringing
about the injury.” Shyface[ v. Sec’y of Health & Human Servs.], 165 F.3d at
1352-53. Although probative, neither a mere showing of a proximate
temporal relationship between vaccination and injury, nor a simplistic
elimination of other potential causes of the injury suffices, without more, to
meet the burden of showing actual causation. See Grant[ v. Sec’y of Health
& Human Servs.], 956 F.2d at 1149. Concisely stated, [petitioner’s] burden
is to show by preponderant evidence that the vaccination brought about
[the] injury by providing: (1) a medical theory causally connecting the
vaccination and the injury; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the injury; and (3) a
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showing of a proximate temporal relationship between vaccination and
injury.
Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278 (first three sets of brackets
in original); see also Boatmon v. Sec’y of Health & Human Servs., 941 F.3d at 1354-55;
Oliver v. Sec’y of Health & Human Servs., 900 F.3d at 1361; Deribeaux ex rel. Deribeaux
v. Sec’y of Health & Human Servs., 717 F.3d at 1367; Porter v. Sec’y of Health & Human
Servs., 663 F.3d at 1249; Moberly ex rel. Moberly v. Sec’y of Health & Human Servs.,
592 F.3d at 1322; Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1355;
Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1324 (Fed. Cir. 2006);
Faup v. Sec’y of Health & Human Servs., 147 Fed. Cl. at 458; C.K. v. Sec’y of Health &
Human Servs., 113 Fed. Cl. 757, 766 (2013).
With regard to the first Althen prong, “a medical theory causally connecting the
vaccination and the injury,” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278,
the Federal Circuit in Althen analyzed the preponderance of evidence requirement as
allowing medical opinion as proof, even without scientific studies in medical literature that
provide “objective confirmation” of medical plausibility. See id. at 1278, 1279-80; see also
Shapiro v. Sec’y of Health & Human Servs., 105 Fed. Cl. at 358. In rejecting a requirement
that a claimant under the Vaccine Act prove confirmation of medical plausibility from the
medical community and medical literature, the Althen court turned to the analysis
undertaken in Knudsen ex rel. Knudsen v. Secretary of Health & Human Services, 35
F.3d at 549. See Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1279-80. In
Knudsen ex rel. Knudsen v. Secretary of Health & Human Services, the United States
Court of Appeals for the Federal Circuit wrote, “to require identification and proof of
specific biological mechanisms would be inconsistent with the purpose and nature of the
vaccine compensation program. The Vaccine Act does not contemplate full blown tort
litigation in the Court of Federal Claims.” Knudsen ex rel. Knudsen v. Sec’y of Health &
Human Servs., 35 F.3d at 549. The Federal Circuit in Knudsen stated further:
The Court of Federal Claims is therefore not to be seen as a vehicle for
ascertaining precisely how and why DTP [diphtheria-tetanus-pertussis
vaccine] and other vaccines sometimes destroy the health and lives of
certain children while safely immunizing most others. This research is for
scientists, engineers, and doctors working in hospitals, laboratories,
medical institutes, pharmaceutical companies, and government agencies.
The special masters are not “diagnosing” vaccine-related injuries. The sole
issues for the special master are, based on the record evidence as a whole
and the totality of the case, whether it has been shown by a preponderance
of the evidence that a vaccine caused the [petitioner’s] injury or that the
[petitioner’s] injury is a table injury, and whether it has not been shown by a
preponderance of the evidence that a factor unrelated to the vaccine caused
the child's injury. See 42 U.S.C. § 300aa-13(a)(1), (b)(1).
Knudsen ex rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at 549 (brackets
added).
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The Federal Circuit also has indicated that:
Although a finding of causation “must be supported by a sound and reliable
medical or scientific explanation,” causation “can be found in vaccine
cases . . . without detailed medical and scientific exposition on the biological
mechanisms.” Knudsen v. Sec’y of the Dep’t of Health & Human Servs., 35
F.3d 543, 548-49 (Fed. Cir. 1994). It is not necessary for a petitioner to point
to conclusive evidence in the medical literature linking a vaccine to the
petitioner’s injury, as long as the petitioner can show by a preponderance
of the evidence that there is a causal relationship between the vaccine and
the injury, whatever the details of the mechanism may be.
Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368, 1384 (Fed. Cir. 2012)
(omission in original).
Regarding the use of epidemiological evidence in a case in which causation is at
issue, the United States Court of Appeals for the Federal Circuit has found that a Special
Master may consider epidemiological evidence in determining causation. See Andreu ex
rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1379 (“Although Althen[ v.
Secretary of Health & Human Services,] and Capizzano[ v. Secretary of Health & Human
Services] make clear that a claimant need not produce medical literature or
epidemiological evidence to establish causation under the Vaccine Act, where such
evidence is submitted, the special master can consider it in reaching an informed
judgment as to whether a particular vaccination likely caused a particular injury.” (brackets
added)); see also Grant v. Sec’y of Health & Human Servs., 956 F.2d at 1149 (“These
epidemiological studies are probative medical evidence relevant to causation.”); Althen v.
Sec’y of Health & Human Servs., 418 F.3d at 1280.
The second prong of the Althen test requires the petitioner to demonstrate “a
logical sequence of cause and effect, showing that the vaccination was the reason for the
injury” by a preponderance of the evidence. See Althen v. Sec’y of Health & Human
Servs., 418 F.3d at 1278; see also Pafford v. Sec’y of Health & Human Servs., 451 F.3d
at 1355. In order to prevail, the petitioner must show “that the vaccine was not only a but-
for cause of the injury but also a substantial factor in bringing about the injury.” Althen v.
Sec’y of Health & Human Servs., 418 F.3d at 1278 (quoting Shyface v. Sec’y of Health &
Human Servs., 165 F.3d at 1352). In Capizzano v. Secretary of Health & Human Services,
the Federal Circuit stated, “‘[a] logical sequence of cause and effect’ means what it
sounds like – the claimant’s theory of cause and effect must be logical. Congress required
that, to recover under the Vaccine Act, a claimant must prove by a preponderance of the
evidence that the vaccine caused his or her injury.” Capizzano v. Sec’y of Health & Human
Servs., 440 F.3d at 1326 (quoting 42 U.S.C. §§ 300aa-11(c)(1)-13(a)(1) (2006)); see also
Cozart v. Sec’y of Health & Human Servs., 126 Fed. Cl. 488, 498 (2016). The Federal
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Circuit has found that treating physicians’ opinions can help satisfy the second prong of
the Althen test:
Such testimony is “quite probative” since “treating physicians are likely to
be in the best position to determine whether a logical sequence of cause
and effect show[s] that the vaccination was the reason for the injury.” Id.
[Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326] (citations
and internal quotation marks omitted); see also Althen[ v. Sec’y of Health &
Human Servs.], 418 F.3d at 1279–80 (noting that the Vaccine Act provides
for the use of “medical opinion as proof” of causation); Zatuchni v. Sec’y of
Health & Human Servs., 69 Fed. Cl. 612, 623 (Fed. Cl. 2006) (relying
heavily on the testimony of treating physicians in concluding that Vaccine
Act causation had been established).
Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1375 (first set of
brackets in original); see also Paluck v. Sec’y of Health & Human Servs., 786 F.3d at
1385 (quoting Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1375
(finding “the special master erred in disregarding contemporaneous statements from
K.P.’s [petitioners’ minor child] treating physicians regarding the cause of his
neurodegeneration” and “[a]s we explained in Andreu, ‘treating physicians are likely to be
in the best position to determine whether a logical sequence of cause and effect show[s]
that the vaccination was the reason for the injury.’” (brackets added)).
The third prong of the Althen test requires the petitioner to demonstrate, by a
preponderance of evidence, “a proximate temporal relationship between vaccination and
injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278. The United States
Court of Appeals for the Federal Circuit emphasized the importance of a temporal
relationship in Pafford v. Secretary of Health & Human Services, when the court noted
that “without some evidence of temporal linkage, the vaccination might receive blame for
events that occur weeks, months, or years outside of the time in which scientific or
epidemiological evidence would expect an onset of harm.” Pafford v. Sec’y of Health &
Human Servs., 451 F.3d at 1358. Requiring evidence of strong temporal linkage is
consistent with the third requirement articulated in Althen because “[e]vidence
demonstrating petitioner’s injury occurred within a medically acceptable time frame
bolsters a link between the injury alleged and the vaccination at issue under the ‘but-for’
prong of the causation analysis.” Pafford v. Sec’y of Health & Human Servs., 451 F.3d at
1358 (citing Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326). The Pafford
court further explained,
[i]f, for example, symptoms normally first occur ten days after inoculation
but petitioner’s symptoms first occur several weeks after inoculation, then it
is doubtful the vaccination is to blame. In contrast, if symptoms normally
first occur ten days after inoculation and petitioner’s symptoms do, in fact,
occur within this period, then the likelihood increases that the vaccination is
at least a factor. Strong temporal evidence is even more important in cases
involving contemporaneous events other than the vaccination, because the
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presence of multiple potential causative agents makes it difficult to attribute
"but-for" causation to the vaccination. After all, credible medical expertise
may postulate that any of the other contemporaneous events may have
been the sole cause of the injury.
Id. A petitioner must offer “preponderant proof that the onset of symptoms occurred within
a timeframe which, given the medical understanding of the disorder’s etiology, it is
medically acceptable to infer causation.” de Bazan v. Sec’y of Health & Human Servs.,
539 F.3d at 1352. Determining what constitutes a medically appropriate timeframe, thus,
is linked to the petitioner’s theory of how the vaccine can cause petitioner’s injury. See
id.; see also K.T. v. Sec’y of Health & Human Servs., 132 Fed. Cl. 175, 186 (2017);
Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 542 (2011).6
According to the court in Capizzano v. Secretary of Health & Human Services,
evidence used to satisfy one of the Althen prongs may overlap with and be used to satisfy
another prong. See Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326 (“We
see no reason why evidence used to satisfy one of the Althen [v. Secretary of Health &
Human Services, 418 F.3d at 1278] prongs cannot overlap to satisfy another prong.”
(brackets added)). If a petitioner satisfies the Althen test, the petitioner prevails, “unless
the [government] shows, also by a preponderance of the evidence, that the injury was in
fact caused by factors unrelated to the vaccine.” Knudsen ex rel. Knudsen v. Sec’y of
Health & Human Servs., 35 F.3d at 547 (brackets in original; quotation omitted).
The Special Master has discretion to determine the relative weight of evidence
presented, including contemporaneous medical records and oral testimony. See Burns v.
Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (finding that the Special
Master had thoroughly considered evidence in record, had discretion not to hold an
additional evidentiary hearing); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at
1368 (finding it was not arbitrary or capricious for the Special Master to weigh diagnoses
of different treating physicians against one another, including when their opinions
conflict).
“Clearly it is not then the role of this court to reweigh the factual evidence,
or to assess whether the special master correctly evaluated the evidence.
And of course we do not examine the probative value of the evidence or the
credibility of the witnesses. These are all matters within the purview of the
fact finder.”
Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. at 56 (quoting Munn v. Sec’y of
Health & Human Servs., 970 F.2d at 870 n.10); see also Rich v. Sec’y of Health & Human
6 As noted above, n a footnote, Chief Special Master Corcoran indicated, “[m]y opinion
almost wholly turns on the first two Althen prongs, so I do not also include an extended
discussion of Petitioners’ success at demonstrating that the timeframe for alleged onset
in this case was medically acceptable. ” Martin v. Sec’y of Health & Human Servs., 2020
WL 4197748, at *26 n.32.
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Servs., 129 Fed. Cl. 642, 655 (2016); Paluck v. Sec’y of Health & Human Servs., 104
Fed. Cl. at 467 (“So long as those findings are ‘based on evidence in the record that [is]
not wholly implausible,’ they will be accepted by the court.” (quoting Lampe v. Sec’y of
Health & Human Servs., 219 F.3d at 1363 (alteration in original))).
Additionally, a Special Master is “not required to discuss every piece of evidence
or testimony in [his or] her decision.” Snyder ex rel. Snyder v. Sec’y of Health & Human
Servs., 88 Fed. Cl. 706, 728 (2009) (brackets added); see also Paluck v. Sec’y of Health
& Human Servs., 104 Fed. Cl. at 467 (“[W]hile the special master need not address every
snippet of evidence adduced in the case, see id. [Doe v. Sec’y of Health & Human Servs.,
601 F.3d 1349, 1355 (Fed. Cir. 2010)], he [or she] cannot dismiss so much contrary
evidence that it appears that he ‘simply failed to consider genuinely the evidentiary record
before him.’” (brackets added) (quoting Campbell v. Sec’y of Health & Human Servs., 97
Fed. Cl. 650, 668 (2011))).
With regard to the Special Master’s weighing of evidence when testimony conflicts
with contemporaneous medical records, a Special Master generally should afford
contemporaneous medical records greater weight than conflicting testimony offered after
the fact. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (citing
United States v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“It has generally
been held that oral testimony which is in conflict with contemporaneous documents is
entitled to little evidentiary weight.”)), aff’d, 968 F.2d 1226 (Fed. Cir.) reh’g denied, (Fed.
Cir. 1992). This is because medical records, created contemporaneously with the events
they describe are presumed to be accurate and complete. See Cucuras v. Sec’y of Health
& Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
In the case currently under review, petitioners claim they are entitled to
compensation for an alleged a off-Table injury claim, which means petitioners “may seek
compensation by proving causation-in-fact.” Milik v. Sec’y of Health & Human Servs., 822
F.3d at 1379 (citing Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d
at 1374). Petitioners must meet the three Althen prongs to prove causation-in-fact. See
Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; see also Boatmon v. Sec’y
of Health & Human Servs., 941 F.3d at 1354-55; Oliver v. Sec’y of Health & Human
Servs., 900 F.3d at 1361. The Chief Special Master denied petitioners’ claim on the basis
that petitioners had failed the Althen test. As the Chief Special Master stated in footnote
32 of his decision:
My opinion almost wholly turns on the first two Althen prongs, so I do not
also include an extended discussion of Petitioners’ success at
demonstrating that the timeframe for alleged onset in this case was
medically acceptable. K.L. v. Sec’y of Health & Human Servs., No. 12-312V,
2017 WL 1713110, at *16 (Fed. Cl. Spec. Mstr. Mar. 17, 2017), mot. for rev.
denied, 134 Fed. Cl. 579 (Fed. Cl. 2018). I do note, however, that although
the timeframe from vaccination to I.R.M.’s tragic death was consistent with
Petitioners’ theory (and particularly was within the two-to-three day time
period in which some proinflammatory cytokines produced in response to
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Flumist might upregulate via an innate immune response), Petitioners did
not preponderantly demonstrate (a) that this actually occurred in I.R.M.’s
case after the administration of Flumist, or (b) that the one cytokine most
referenced by Petitioners’ experts, IL-1β, is upregulated after Flumist
administration at all, let alone in sufficient quantities to be pathologic.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *26 n.32 (emphasis in
original).
Before this court, petitioners argue that the Chief Special Master improperly raised
the burden of proof from requiring petitioners to provide a medically reliable theory to
requiring “direct evidence of a biological mechanism of causation.” Under the test
articulated in Althen v. Secretary of Health & Human Services: “Concisely stated,
[petitioners’] burden is to show by preponderant evidence that the vaccination brought
about [the] injury by providing: (1) a medical theory causally connecting the vaccination
and the injury; (2) a logical sequence of cause and effect showing that the vaccination
was the reason for the injury; and (3) a showing of a proximate temporal relationship
between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at
1278; see also Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1355; Boatmon v.
Sec’y of Health & Human Servs., 941 F.3d at 1354-55. The Chief Special Master’s
analysis considered the persuasiveness and reliability of petitioners’ experts’ causation
theory. The Chief Special Master also noted that the weight of the expert testimony in the
record did not establish that the petitioners’ causation theories were plausible or reliable.
The Chief Special Master’s decision also noted that petitioners’ theories were similar to
other theories found unsupported in similar cases. See Nunez v. Sec’y of Health & Human
Servs., No. 14-863V, 2019 WL 2462667, at *1 (Fed. Cl. Spec. Mstr. Mar. 29, 2019), mot.
for rev. den’d, 144 Fed. Cl. 540 (2019), appeal docketed, No. 20-1021 (Fed. Cir. Oct. 8,
2019); Cozart v. Sec’y of Health & Human Servs., No. 00–590V, 2015 WL 6746616, at *1
(Fed. Cl. Spec. Mstr. Oct. 15, 2015), mot. for review den’d, 126 Fed. Cl. 488 (2016). In
both Nunez and Cozart, two different Special Masters heard testimony from two of the
same experts as in the above captioned case, Dr. Miller and Dr. McCusker. In both Nunez
and Cozart, as in this case, Dr. Miller, presented his theory proposing that vaccines
increased cytokines which then crossed the blood-brain barrier into the central nervous
system, and in both cases Dr. McCusker rebutted Dr. Miller’s theory. See Nunez v. Sec’y
of Health & Human Servs., 2019 WL 2462667, at *1; Cozart v. Sec’y of Health & Human
Servs., 2015 WL 6746616, at *1; In both cases the Special Masters found Dr. McCusker
persuasive and rejected Dr. Miller’s theory on the grounds that it was not medically
reliable, thus reaching the same conclusion as reached by Chief Special Master Corcoran
in the case currently before this court. See Nunez v. Sec’y of Health & Human Servs.,
2019 WL 2462667, at *1; Cozart v. Sec’y of Health & Human Servs., 2015 WL 6746616,
at *1. In sum, in the case brought by the Martin petitioners on behalf of their son, Chief
Special Master Corcoran considered respondent’s experts to be more credible than
petitioners’ experts in the area of immunology. While the Chief Special Master found that
Dr. Miller’s theory of a brain abnormality was plausible, he did not find Dr. Miller’s theory
of increased cytokines serving as a trigger to induce a seizure to be reliable as opposed
to Dr. McCusker’s testimony and the above referenced rulings in similar cases.
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Special Masters are and entitled to and expected to weigh conflicting opinions
provided by experts and the decisions issued by the Special Masters are owed a
significant amount of deference. See Hibbard v. Sec’y of Health & Human Servs., 698
F.3d at 1368 (finding it was not arbitrary or capricious for the Special Master to weigh
diagnoses of different treating physicians against one another, including when their
opinions conflict); Waterman v. Sec’y of Health & Human Servs., 123 Fed. Cl. 564, 571
(2015) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d at 961) (“As the
Federal Circuit has stated, ‘Congress assigned to a group of specialists, the Special
Masters within the Court of Federal Claims, the unenviable job of sorting through these
painful cases and, based upon their accumulated expertise in the field, judging the merits
of the individual claims. The statute makes clear that, on review, the Court of Federal
Claims is not to second guess the Special Masters fact-intensive conclusions; the
standard of review is uniquely deferential for what is essentially a judicial process.’”).
Regarding petitioners’ experts Dr. Levin’s and Dr. Kinsbourne’s testimony and expert
opinions, the Chief Special Master noted that, in addition to both doctors’ lack of recent
experience, after reading Dr. Miller’s report, both doctors modified their expert opinions
to coincide with Dr. Miller’s causation theory, which contributed to Chief Special Master
Corcoran’s finding that Dr. Levin and Dr. Kinsbourne were unpersuasive.7 Moreover, the
Chief Special Master concluded that he found respondent’s experts to be more credible
and persuasive in refuting the theories of petitioners’ experts. The Chief Special Master
stated:
But this case turned mostly on questions of pathology and immunology—
and on the latter topic, Dr. McCusker was a far more qualified immunologist
than Dr. Levin, and provided testimony I found significantly more
persuasive. See also Copenhaver v. Sec’y of Health & Human Servs., No.
13-1002V, 2016 WL 3456436, at *1 (Fed. Cl. Spec. Mstr. May, 31, 2016)
(finding that Dr. McCusker was more credible than Dr. Miller), mot. for
review denied, 129 Fed. Cl. 176 (Fed. Cl. 2016). In addition, the neurologic
issues posed in this case related to the hippocampal abnormality, an issue
that both sides largely agreed upon, disputing only the immunologic impact
of the vaccine at issue, and Dr. Kinsbourne has no specific demonstrated
expertise on that topic that would suggest his statements are deserving of
extra weight.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *31 n.44 (emphasis in
original).
7 The Chief Special Master stated in his decision, “the causation theory offered herein is
scientifically unreliable, especially in light of the unpersuasive testimony offered by two of
Petitioners’ three experts.” Special Master Corcoran also indicated, “[c]oloring the
scientific and medical unreliability of theories offered in this case are deficiencies in the
qualifications and testimony of two of the three experts who testified for Petitioners. Drs.
Kinsbourne and Levin lacked testimonial credibility in important regards.” Martin v. Sec’y
of Health & Human Servs., 2020 WL 4197748, at *1, *31.
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The Chief Special Master found that the opinions presented by respondent’s
experts directly refuted the petitioners’ experts’ theory linking the vaccine to the seizure,
to which petitioners’ experts provided inadequate responses, and there was a noticeable
and convincing difference in the specificity of the arguments raised by Dr. McCusker when
compared to the generality of the causation theory offered by Dr. Miller as part of his
report and testimony. This difference in specificity between respondent and petitioners’
experts also is reflected in the respective experts’ use of medical literature as support.
Dr. Miller did not cite any literature in support of his contentions. Dr. Levin and Dr.
Kinsbourne relied on literature which largely focused on vaccines in general and not on
Flumist in particular. Petitioners’ experts could not point to any literature suggesting that
peripheral cytokines could stimulate a seizure. In contrast, respondent’s expert Dr.
McCusker cited the Barria article, which directly addressed the Flumist vaccine and found
that Flumist did not increase the one cytokine named by petitioners’ experts. The Chief
Special Master summarized the inability of petitioners’ experts and the petitioners’
experts’ medical literature to account for whether “the Flumist vaccine was in particular
likely to further increase the seizure risk due to its stimulation of the innate immune
system.” The Chief Special Master stated:
But there is little to no direct evidence that any vaccine, let alone the Flumist
vaccine, could cause or contribute to this process, nor could any of
Petitioners’ experts speak from their own experience, whether from patient
treatment or research, to bulwark this point.
Petitioners instead attempted to support this aspect of their theory by
connecting several indirect items of proof (of course a valid means of
establishing entitlement in the Program). But important sections of this chain
of opinion were medically/scientifically unreliable. The most significant
insufficient element was the lack of evidence pertaining to the direct or initial
pathologic capacity of cytokines. As noted above, the inability to
preponderantly establish this particular causal element has resulted in the
dismissal of all prior SIDS claims. In addition, I [Chief Special Master
Corcoran] have on many occasions considered whether the transient
upregulation of cytokines attributable to the innate immune system’s initial
response to a vaccine can be pathologic, but have consistently found this
contention could not be substantiated with reliable scientific or medical
evidence.
For example, Kashiwagi[8]—an article mentioned by both sides at hearing
– is an item of literature I have discussed at length in other decisions. See,
e.g., Dean v. Sec'y of Health & Human Servs., No. 13-808V, 2017 WL
2926605, at *17 (Fed. Cl. Spec. Mstr. June 9, 2017) (DTaP and Hib
vaccines did not cause child’s neurologic deficits). Kashiwagi only observes
the transient upregulation of some proinflammatory cytokines (not including
8 Referring to Y. Kashiwagi et al., Production of Inflammatory Cytokines in Response to
Diphtheria-Pertussis-Tetanus (DPT), Haemophilus Influenzae Type B (Hib), and 7-valent
Pneumococcal (PCV7) Vaccines, 10 Human Vacc. & Immunotherapeutics, 3:677-85
(2014).
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IL-1β)—not that they are also pathogenic. It also did not test any version of
the flu vaccine, LAIV [Live Attenuated Influenza Vaccine] or otherwise.
Kashiwagi thus does not stand for the conclusion that the expected and
intended effect of immune stimulation caused by vaccination can turn
pathologic. Togashi is similarly unpersuasive as proof for Petitioners’
causation theory. Not only did it involve an injury not alleged herein (acute
encephalopathy), but it did not firmly conclude whether cytokines were
initially causal, or merely contributed to an ongoing pathologic process
attributable to a direct wild flu virus infection (and the article ultimately
concluded that vaccination was the best means of preventing the infection—
directly contrary to the proposition that vaccination herein instigated a
pathologic process).
In addition, some elements of Petitioners’ cytokine-related arguments
confuse association for causal effect, even though evidence cited for those
arguments has scientific reliability. Fischer [W. Fischer et al., Live
Attenuated Influenza Vaccine Strains Elicits a Greater Innate Immune
Response Than Antigenically-Matched Seasonal Influenza Viruses During
Infection of Human Nasal Epithelial Cell Cultures, 32 Vaccine 15:1761–67
(2014)], for example, makes scientifically-reliable points about how LAIVs
function. And articles like Vezzani do credibly suggest that certain
proinflammatory cytokines, including IL-1β, are associated with seizure, and
their findings are consistent with the arguments of Petitioners’ experts about
neuron excitability and seizure threshold generally. But such literature also
says little to nothing about peripheral stimulation of cytokines or their
inevitable passage into the CNS—as opposed to cytokine generation within
the brain or in response to existing seizure. These articles also do not
establish that Flumist specifically would be expected to generate the
particular proinflammatory cytokines identified by Petitioners’ experts—
while other literature persuasively demonstrates it would not. Compare
Fischer at 7 with Barria at 118, 120.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *28-29 (emphasis in
original) (brackets added; footnotes omitted). The Chief Special Master noted, regarding
the reference to SIDS and Dr. Miller’s testimony:
One issue coloring the entirety of Dr. Miller’s testimony was the question of
whether opinions he has offered in prior Vaccine Program cases (along with
existing scientific and medical literature relevant therein) involving SIDS had
any bearing herein. On the one hand, Dr. Miller was careful to state that the
present claim is (from a literal standpoint) “not a SIDS case,” given that
I.R.M. was three when he received Flumist, whereas the SIDS classification
applies only to infants who die before the age of one. The theory that a
vaccine could cause SIDS also is based on the notion that “medullary
abnormalities” present in infant brains, when combined with other factors,
could precipitate unexplained death, factors not bearing on the death of a
three-year-old (whose brain development is more advanced). It was for this
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reason, Dr. Miller explained, that he mostly did not file literature relevant to
SIDS that would have supported certain aspects of his opinion herein.
At the same time, however, Dr. Miller admitted there were “similarities”
between the kind of causation theory he has offered numerous times in
SIDS cases and the present matter. In particular, he acknowledged that he
had previously opined about the role of cytokines in causing SIDS by
impacting brain structures, but that such contentions had been generally
rejected (with the exception of one case that, at least as of the time of his
testimony, was on appeal).
Id. at *6 (capitalization in original). Given the petitioners’ expert discussion of SIDS and
SIDS cases, it was reasonable for Chief Special Master Corcoran to refer to, and consider
any similarities, to SIDS cases. Notably, the Chief Special Master also discussed in depth
the one decision in which a Special Master found for petitioner in SIDS case and relied
on Dr. Miller’s testimony. See Boatmon v. Sec’y of Health & Human Servs., 941 F.3d
1351. In citing to the United States Court of Appeals for the Federal Circuit’s 2020
decision in Boatmon v. Secretary of Health & Human Services, 941 F.3d 1351, the Chief
Special Master noted:
In only one instance has a special master found for a petitioner in a SIDS
case—but that determination was reversed by the Court of Federal Claims,
with the Federal Circuit affirming the reversal. Boatmon, 941 F.3d at 1353.
In so ruling, the Federal Circuit found that Dr. Miller’s theories about the
purported role cytokines could play in causing or contributing to a SIDS
death (theories paralleling the arguments offered in this case) were not
supported with sufficient reliable science, relying less on establishing how
cytokines would function as opposed to the fact that cytokines were present
in association with certain brain injuries, or could cross the blood-brain
barrier under specific circumstances. The Boatmon claimants also could not
substantiate the more fundamental contention—that vaccines could play
any role in the SIDS “triple risk” model.
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *26 (emphasis in
original) (internal citations omitted). The Chief Special Master also referred to “several
decisions in which special masters have found that a vaccine could induce an initial
seizure in an infant or very young child.” Id. at *27. The Chief Special Master stated:
Most commonly, they have reached such conclusions after the child
experienced a fever in response to the vaccine. See, e.g., Graves v. Sec’y
of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013) (summarizing
that petitioners were entitled to compensation when a Prevnar vaccine
caused their daughter to suffer from seizures after experiencing a fever). In
effect, these findings stand for the proposition that the innate immune
response to vaccination, and not a specific adaptive-autoimmune process
(in which specific components of the vaccine interact with self structures
[sic], or otherwise induce seizure) can produce a fever which triggers an
initial seizure, thereby propelling the child into a chain of ever-more-
damaging seizures thereafter. Fuller v. Sec’y of Health & Human Servs.,
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No. 15-1470V, 2019 WL 7576382, at *18 (Fed. Cl. Spec. Mstr. Dec. 17,
2019).
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *27 (emphasis in
original) (footnote omitted).
In his decision the Chief Special Master also discussed additional reasons for
finding petitioners’ theory to be implausible, and wrote:
Beyond the above, there are numerous other insufficiencies in the scientific
reliability of the portion of Petitioners’ causation theory relating to cytokines.
Petitioners’ experts did not persuasively establish that cytokines generated
in response to Flumist would (a) likely travel into the CNS, or (b) from
outside the blood-brain barrier stimulate a response within, or (c) upregulate
in sufficient amounts (and type) to impact a child with a hippocampal
abnormality and thereby further lower his seizure threshold. At best, some
of the literature filed post-hearing by Petitioners establishes the different
ways cytokines can travel into the brain. This does not establish that the
receipt of a LAIV means it is more likely that this will occur, or that it will
inherently occur in the absence of some coterminous infectious or disease
process that encourages blood-brain barrier breach.
Id. at *30 (emphasis in original) (footnote omitted).
As explained by the Federal Circuit in Knudsen, a finding of causation “must be
supported by a sound and reliable medical or scientific explanation.” Knudsen v. Sec'y of
the Dep't of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994); see also
Simanski v. Sec’y of Health & Human Servs., 671 F.3d at 1384. Chief Special Master
Corcoran concluded petitioners’ theory of causation was unreliable and unsupported, and
determined that petitioners did not meet the criteria under the Althen first prong. “While
scientific certainty is not required, the Special Master “is entitled to require some indicia
of reliability to support the assertion of the expert witness.” Moberly ex rel. Moberly ex rel.
v. Sec’y of Health & Human Servs., 592 F.3d at 1324. This court finds that the Chief
Special Master’s decision to deny entitlement to petitioners was rational and not
capricious when he determined that the theory presented by petitioners’ experts was not
supported by scientific theory and evidence. See Knudsen v. Sec'y of the Dep't of Health
& Human Servs., 35 F.3d at 548-49.
Petitioners also argue that the Chief Special Master erred in not finding that
I.R.M.’s malaise was a result of the vaccine. The Chief Special Master noted that
“Petitioners point to I.R.M.’s apparent pre-nap malaise as evidence of their theory at work.
This is the sole evidence they can muster on this point, but it does not strongly support
their theory.” Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *32. Chief
Special Master Corcoran continued:
It is certainly a fair point to observe that vaccines can present transient
symptoms reflecting an immune response is occurring (although Dr.
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McCusker’s points about the kinds of cytokines that a LAIV would produce,
along with the low likelihood that Flumist would generate certain
proinflammatory cytokines stressed as causal herein, such as IL-1β, were
not rebutted). And the statements of Mrs. Martin and her babysitter do
suggest I.R.M. was not feeling well right before he napped. It is a
reasonable inference to associate I.R.M.’s pre-nap condition with what
thereafter transpired.
Id. (emphasis in original). The Chief Special Master, however, noted,
malaise is .a somewhat nonspecific condition, especially for a young child,
and it is equally likely based upon this record that I.R.M. merely felt tired.
More significantly, it is undisputed that I.R.M. was not running a fever prior
to his nap on September 26th, thus greatly undermining the contention that
IL-1β [a pro-inflammatory cytokine], which is associated with fever, was
upregulated by Flumist—even assuming it could be, a conclusion that Dr.
McCusker effectively rebutted. And I.R.M. displayed no other post-
vaccination symptoms even within 24 hours of receiving Flumist (the period
of time in which arguably cytokine production would at least have begun to
peak, if Fischer or Kashiwagi are relied upon).
Id. (emphasis in original) (footnote omitted). The record before the Chief Special Master
regarding I.R.M.’s activities and heath in the days following the administration of I.R.M.’s
Flumist vaccine do not show evidence of symptoms apart from his apparent feeling tired
on the morning of his death on September 26, 2014. Otherwise, he was observed as
being active and playful following his vaccination on September 24, 2014, and the day
after. He had no signs of fever. There is nothing linking the Flumist vaccine to I.R.M.’s
“malaise” on the morning of his death other than the fact that it occurred two days after
I.R.M.’s receipt of the vaccine. In sum, the preponderance of the evidence in the record
of the lack of physical evidence, the inadequacy of the expert testimony presented by
petitioners and the more persuasive testimony of respondent’s experts does not support
petitioners’ allegation that the Flumist vaccine triggered I.R.M.’s seizure and caused his
death. The Althen test requires the petitioner to demonstrate “a logical sequence of cause
and effect, showing that the vaccination was the reason for the injury” by a preponderance
of the evidence. See Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; see
also Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1355. Petitioners failed to
meet this requirement because they did not provide a logical sequence linking the vaccine
as the cause of I.R.M.’s death by a preponderance of the evidence. See Althen v. Sec’y
of Health & Human Servs., 418 F.3d at 1278. The Chief Special Master’s conclusion that
petitioners had failed to meet the criteria to establish entitlement to compensation under
the Vaccine Program was reasonable, not arbitrary, and not capricious.
Moreover, although the Chief Special Master noted that the burden of proof never
shifted to respondent, his decision also notes the existence of an alternative cause of
I.R.M.’s death, as follow:
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This is not a case in which the burden to prove alternative cause ever shifted
to Respondent—and if it had done so, I would not on this record be able to
conclude that the evidence for such an explanation preponderates for
Respondent, since the record ultimately does not permit me to identify a
likely cause of I.R.M.’s death. But I can and did consider this contrary
confounding evidence when evaluating Petitioners’ success in carrying their
overall Althen burden. Stone v. Sec'y of Health & Human Servs., 676 F.3d
1373, 1379 (Fed. Cir. 2012) (“[o]ur decisions support the commonsense
proposition that evidence of other possible sources of injury can be relevant
not only to the “factors unrelated” defense, but also to whether a prima facie
showing has been made that the vaccine was a substantial factor in causing
the injury in question”).
Martin v. Sec’y of Health & Human Servs., 2020 WL 4197748, at *33 n.46 (brackets in
original).
Regarding the issues identified in the motion for review to this court and described
in the Chief Special Master’s decision, the Chief Special Master gave cogent reasons for
rejecting petitioners’ theory and claim. Petitioners “must do more than demonstrate a
‘plausible’ or ‘possible’ causal link between the vaccination and the injury; he must prove
his case by a preponderance of the evidence.” Moberly ex rel. Moberly v. Sec’y of Health
& Human Servs., 592 F.3d at 1322)); see also Althen v. Sec’y of Health & Human Servs.,
418 F.3d at 1278; Hines on Behalf of Sevier v. Sec’y of Health & Human Servs., 940 F.2d
at 1525. While scientific certainty is not required, a Special Master “is entitled to require
some indicia of reliability to support the assertion of the expert witness[es].” Moberly ex
rel. Moberly ex rel. v. Sec’y of Health & Human Servs., 592 F.3d at 1324. Petitioners’
experts did not present a reliable medical theory linking the vaccine to the death of I.R.M.
and the preponderance of evidence did not demonstrate that the vaccine caused I.R.M.’s
death. As such, petitioners have failed to meet all of the prongs under the Althen test,
because petitioners did not present “a medical theory causally connecting the vaccination
and injury” and did not “show a logical sequence of cause and effect.” Althen v. Sec'y of
Health & Human Servs., 418 F.3d at 1278.
C O N C L U S I O N
Petitioners have not demonstrated that Chief Special Master Corcoran acted
arbitrarily and capriciously when he found that petitioners’ claim did not entitle them to
compensation under the Vaccine Compensation program. Therefore, the petitioners’
Motion for Review is DENIED. The Clerk of the Court shall enter JUDGMENT consistent
with this Opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
35