VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00792
Package ID: USCOURTS-cofc-1_15-vv-00792
Petitioner: H.H.
Filed: 2015-07-27
Decided: 2025-10-02
Vaccine: influenza; Prevnar; Pentacel (DTaP/IPV/Hib)
Vaccination date: 2013-10-17; 2013-10-23
Condition: Aicardi-Goutieres syndrome (AGS) or AGS-like type I interferonopathy with neurologic regression
Outcome: compensated
Award amount USD: 2925472

AI-assisted case summary:
Petitioners Heathe and Jenna Heller, on behalf of their minor son H.H., filed a petition for compensation under the National Vaccine Injury Compensation Program. They alleged that H.H.'s vaccinations, including Pentacel, administered in October 2013, caused or significantly aggravated his degenerative neurological disorder, identified as Aicardi-Goutières Syndrome (AGS) or an AGS-like type I interferonopathy. The Special Master initially denied the petition, finding that H.H. had a genetically caused condition and that the vaccines did not cause or significantly aggravate it. Petitioners moved for review, arguing the Special Master erred by diagnosing H.H. with a purely genetic disorder before fully analyzing the potential for vaccine aggravation and by improperly applying the causation standards. The Court of Federal Claims reviewed the decision. The court found that the Special Master erred in her analysis of the medical theory (Loving prong four), the logical sequence of cause and effect (Loving prong five), and the proximate temporal relationship (Loving prong six). Specifically, the court determined the Special Master's diagnosis of AGS or an AGS-like disorder was arbitrary and capricious because it did not adequately consider the possibility of vaccine aggravation of a pre-existing condition, effectively assuming the injury was purely genetic. The court also found the Special Master's analysis of the causation prongs was flawed by this assumption and by disregarding the potential for vaccine aggravation. Consequently, the court vacated the Special Master's decision regarding the Pentacel vaccine and remanded the case for further proceedings to determine if the Pentacel vaccine significantly aggravated H.H.'s condition. The court upheld the denial for the influenza and pneumonia vaccines, as petitioners did not present sufficient evidence or a medical theory of causation for these vaccines, and their expert focused solely on Pentacel. The court did not make a determination on entitlement, leaving it to the Special Master on remand.

After the Court of Federal Claims vacated the initial denial in part and remanded the significant-aggravation analysis, the case later resolved through a damages proffer. On October 2, 2025, Special Master Jennifer A. Shah awarded compensation for H.H.: a $2,623,447.30 lump sum for first-year life-care expenses, lost future earnings, and pain and suffering; $302,024.70 for past unreimbursable expenses; and an annuity for remaining life-care items.

Theory of causation field:
Influenza and Prevnar vaccines on October 17, 2013, and Pentacel (DTaP/IPV/Hib) on October 23, 2013, at about 15 months old, alleged to cause or significantly aggravate Aicardi-Goutieres syndrome / AGS-like type I interferonopathy with rapid neurologic regression. COMPENSATED after denial, review, vacatur, remand, and later damages proffer. Petitioners Heathe and Jenna Heller relied principally on Dr. Lawrence Steinman's immune-activation/significant-aggravation theory involving interferon and inflammasome pathways, plus treating physicians' views that the post-vaccination regression was unusually rapid. The Secretary disputed causation and emphasized genetic disease. Judge Holte vacated the initial denial in part on October 13/31, 2022, requiring renewed Loving/Althen analysis; the later proffer resolved damages. Award filed October 2, 2025: $2,623,447.30 lump sum for first-year life-care, lost future earnings, and pain and suffering; $302,024.70 past unreimbursable expenses; plus an annuity for remaining life-care items. Attorney: Margaret Guerra.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-00792-0
Date issued/filed: 2022-10-31
Pages: 39
Docket text: JUDGE VACCINE REPORTED OPINION: Public version of 134 Order on Motion for Review. Signed by Judge Ryan T. Holte. (eir) Service on parties made.
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Case 1:15-vv-00792-RTH Document 136 Filed 10/31/22 Page 1 of 39
In the United States Court of Federal Claims
No. 15-792
(Filed: 31 October 2022*)
***************************************
HEATHE HELLER and JENNA HELLER, *
as parents of H.H., a Minor, *
*
Petitioners, * Vaccine Act; Off-Table; Aicardi-Goutières
* Syndrome; AGS; Type I Interferonopathy;
v. * Significant Aggravation; Genetic Mutation;
* Loving; Pentacel.
SECRETARY OF HEALTH AND HUMAN *
SERVICES, *
*
Respondent. *
*
***************************************
Margaret M. Guerra, Attorney at Law, Fort Worth, TX, for petitioners.
Tyler King, Vaccine/Torts Branch, Civil Division, U.S. Department of Justice,
Washington, DC, for respondent.
OPINION AND ORDER
HOLTE, Judge.
This case involves the injury of a child with a suspected pre-existing genetic mutation.
Congress designed the Vaccine Act as part of “the Nation’s efforts to protect its children by
preventing disease.” Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1325 (Fed. Cir.
2011) (quoting H.R. Rep. No. 99-908, at 4 (1986)). “[W]hile most of the Nation’s children enjoy
a greater benefit from immunization programs, a small but significant number have been gravely
injured.” Id. Congress created the Vaccine Program to “compensate injured persons quickly and
fairly” for injuries “either presumed or proven to be causally connected to vaccines.” Id.
Petitioners Heathe Heller and Jenna Heller (“petitioners”), on behalf of their son, H.H.,
filed a petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10, et seq. See Pet., ECF No. 1. Petitioners allege H.H.’s 15-month vaccinations
caused or significantly aggravated H.H.’s degenerative neurological disorder. Id. The Special
Master, in her Decision for Entitlement, denied petitioners’ request because petitioners were
* This opinion was initially filed under seal on 13 October 2022 pursuant to Vaccine Rule 18(b) of the Rules of the
Court of Federal Claims. The Court provided the parties 14 days to submit proposed redactions, if any, before the
opinion was released for publication. Neither party proposed redactions. This opinion is now reissued for
publication in its original form.
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Case 1:15-vv-00792-RTH Document 136 Filed 10/31/22 Page 2 of 39
unable to preponderantly establish the vaccinations caused or significantly aggravated H.H.’s
injury. SM Dec. 74, ECF No. 121. Petitioners filed a motion for review with an accompanying
memorandum asking the Court for review of the Special Master’s decision denying the petition.
See Mot. for Review, ECF No. 122; Mot. for Review Mem., ECF No. 123. According to
petitioners, the Special Master erroneously diagnosed H.H. with a genetically caused
Aicardi–Goutières Syndrome (“AGS”) or AGS-like type I interferonopathy, altering the
Loving/Althen causation in fact analyses against the significant evidence proffered by petitioners.
Mot. for Review Mem. at 1. For the following reasons, the Court GRANTS petitioners’ motion
in part, VACATES the Special Master’s decision in part, and REMANDS this case to the
Special Master for further proceedings consistent with this opinion.
I. Petitioners’ Medical History and the Vaccination
As the basic facts have not changed significantly from petitioners’ original claim to their
appeal, the Court’s recitation of the background facts draws from the Special Master’s Decision
of Entitlement (“SM Dec.”).1 H.H. was born on 14 July 2012. Pet’rs’ Ex. 48.1, ECF No. 40-1
(Birth Certificate). Except for an abnormal newborn screen indicating a very long-chain
acyl-CoA dehydrogenase (“VLCAD”) deficiency, a condition in which the body is unable to
properly break down certain fats into energy, H.H.’s well-child visits were normal, and H.H. was
meeting developmental milestones. Pet’rs’ Ex. 49.2 at 7–34, ECF No. 40-2 (Dr. Hollis Notes,
pages 1–42). On 29 July 2013, when H.H. was a year old, Dr. Hollis, a pediatrician, saw H.H.
for a sick-child visit due to a fever and nasal congestion. Id. at 36. On 13 September 2013, Ms.
Heller called H.H.’s pediatrician’s office because H.H. was not walking, and his right foot turned
inward. Id. at 37. The office suggested the problem be discussed further at H.H.’s upcoming
15-month appointment. Id.
At his 15-month well visit, Dr. Hollis noted H.H. was meeting all development
milestones, and there were no physical abnormalities. Id. at 1–2. H.H. also received the
influenza and pneumonia vaccines at the 15-month appointment. Id. He was supposed to
receive the DTaP-IVH-Hib (Pentacel) vaccine as well, but the office was out of Pentacel, so
H.H. returned on 23 October 2013 to receive the vaccine. Id. at 3. On 11 November 2013, H.H.
was fussy, running a fever, and had decreased energy levels. Pet’rs’ Ex. 49.2 at 41. Dr. Hollis
noted H.H. had regressed in the last month, explaining he stopped crawling, lost interest in
playing with toys, and threw food. Id. At the conclusion of the appointment, H.H. was
diagnosed with developmental delay and acute pharyngitis and was referred to neurology for
evaluation. Id. The next day, H.H. visited Dr. Crawford, a geneticist, who noted elevated
transaminase levels and developmental delays. Pet’rs’ Ex. 50.4 at 1–2, ECF No. 40-4 (Dr.
Crawford Notes, pages 1–27). Dr. Crawford ordered genetic and metabolic workups as well as a
magnetic resonance imaging (“MRI”) and recommended physical and speech therapy. Id. at 2.
On 14 November 2013, H.H. was admitted to the hospital where physicians found “significant
dystonic posturing of the lower extremities.” Pet’rs’ Ex. 51.6 at 5, ECF No. 40-6 (Cook’s
Radiology Records). H.H. was treated and discharged on 16 November 2013. Id.
1 In describing the background of petitioners’ claim, the Court refers primarily to the special master’s factual
background as recited in the decision for entitlement. See SM Dec. at 5–27. Petitioners do not assert error in the
facts as stated by the Special Master, but rather challenge the legal conclusions drawn from those facts. See
generally Mot. for Review.
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On 22 November 2013, Dr. Aalbers, a neurologist, saw H.H. and noted H.H. had lost
meaningful use of his right hand since his discharge on 16 November 2013. Pet’rs’ Ex. 52.7 at 9,
ECF No. 40-7 (Dr. Aalbers Notes, pages 1–34). Dr. Aalbers believed H.H. had “rapidly
progressive ascending dystonia with encephalopathy” and was concerned with mitochondrial
disease. Id. at 11. On 23 November 2013, H.H. underwent genetic testing, and the results did
not show any “deletions or duplications of known or potential clinical significance.” Pet’rs’ Ex.
50.5 at 61, ECF No. 40-5 (Dr. Crawford Notes, pages 26–66). On a 3 December 2013 visit, Dr.
Aalbers definitively diagnosed H.H. with “rapidly progressive dystonia and encephalopathy”
with “concern for possible Aicardi-Goutières [syndrome (‘AGS’).]” Pet’rs’ Ex. 52.7 at 28. To
confirm a diagnosis, Dr. Aalbers arranged for human immunodeficiency virus (“HIV”) testing,
ordered a second round of neurotransmitter studies, and referred H.H. to Dr. Crawford for
additional genetic testing. Id. On 3 December 2013, Dr. Crawford noted H.H.’s neopterin and
tetrahydrobiopterin were significantly elevated, and the lab stated, “only Aicardi-Goutieres
syndrome and HIV infection would cause such high values.” Dr. Crawford Notes, pages 1–27 at
12. Dr. Crawford noted H.H. “does not have [a] typical presentation of AGS[;] . . . however,
there are milder presentation[s] of this syndrome . . . . Therefore, this disorder remains on our
differential.” Id. She received permission from H.H.’s family to contact an AGS expert in
England, Dr. Yanick Crow, and recommended intensive therapies. Id.
On 18 December 2013, H.H. visited Dr. Richard Roberts, a neurosurgeon, for a
consultation regarding H.H.’s tethered spinal cord, revealed after an MRI showed “a thickened
and fat infiltrated filum terminale.” Pet’rs’ Ex. 53.9 at 7, ECF No. 40-9 (Dr. Roberts Notes,
pages 1–10). H.H. underwent surgery to release his tethered spinal cord the next day, and the
cerebrospinal fluid taken during surgery showed “remarkably high elevations of biopterin and
neopterin”—the highest levels Dr. Aalbers had ever seen. Id. at 7–8; Pet’rs’ Ex. 55.2 at 1, ECF
No. 41-2 (Drs. Aalbers and Cantu Notes, pages 1–20). Dr. Aalbers noted the differential
diagnosis in a patient with high levels of neopterin, elevated liver enzymes, and dystonia was
likely “Aicardi-Goutières syndrome,” even though the genetic disorder was incredibly rare. Id.
at 1, 4. Dr. Aalbers ordered additional testing in the hospital which showed an abnormal
electroencephalogram “consistent with Aicardi-Goutieres syndrome.” Id. at 3–4. While still in
the hospital, Lori Thompson, a Certified Pediatric Nurse Practitioner (“CPNP”), saw H.H.
regarding his elevated transaminases. Pet’rs’ Ex. 54.1 at 1, ECF No. 41-1 (Dr. Thompson Notes,
pages 1–6). Nurse Thompson noted AGS was a concern and H.H. would undergo neurological
and gastroenterological testing to reevaluate his liver transaminases. Id. On 17 January 2014,
Dr. Samson Cantu, a gastroenterologist, saw H.H. for abnormal liver enzymes, and the testing
ordered revealed low globulin, a high albumin/globulin ratio, low bilirubin, high aspartate
transaminase (“AST”), and high alanine transaminase (“ALT”) levels. Pet’rs’ Ex. 55.2 at 9;
Pet’rs’ Ex. 80.8 at 8, ECF No. 45-8 (Dr. Cantu Notes, pages 1–68).
On 4 February 2014, Dr. Marks, a pediatric neurologist, reviewed the results of the
neurological and genetic testing and indicated AGS was the likely diagnosis but was awaiting
genetic confirmation. Pet’rs’ Ex. 56.3 at 4, ECF No. 41-3 (Dr. Marks Notes, pages 1–45). Dr.
Crawford, the geneticist, saw H.H. the same day and noted H.H. “appears to have a later-onset
presentation for AGS,” but genetic testing was ongoing in England. Pet’rs’ Ex. 50.4 at 23–24.
On 6 March 2014, H.H. received the results of his genetic testing, which indicated one
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significant mutation, a VLCAD deficiency in the gene acyl-CoA dehydrogenase very long chain
(“ACADVL”). Pet’rs’ Ex. 50.5 at 40. Dr. Marks noted H.H. could have “possible AGS” but
with an unidentified genetic marker. Pet’rs’ Ex. 56.3 at 18.
On 25 March 2014, after repeat testing, H.H.’s neopterin was extremely elevated, and Dr.
Hyland, Director of Labcorp’s Department of Neurochemistry Medical Neurogenetics
Laboratories, interpreted the testing and noted the findings were consistent with a diagnosis of
AGS. Pet’rs’ Ex. 56.11 at 360–61, ECF No. 41-11 (Dr. Marks Notes, pages 342–387). On 23
April 2014, Dr. Cantu, the gastroenterologist, noted H.H. had an “extensive work-up by
neurology with unclear diagnosis, although it has been suggested he may have a variant of
Aicardi.” Pet’rs’ Ex. 61.8 at 13, ECF No. 42-8 (Dr. Marks Notes, pages 1–26). On 24 April
2014, Dr. Marks, the pediatric neurologist, diagnosed H.H. with “[p]rogressive encephalopathy
and dystonia with loss of milestones and worsening dystonia[,] [and] [i]nterferonopathy with
elevated neopterin clinically suggestive of Aicardi-Goutière[s] [s]yndrome but with negative
genetic testing.” Pet’rs’ Ex. 56.10 at 328, ECF No. 41-10 (Dr. Marks Notes, pages 297–341).
Dr. Marks recommended intravenous immune globulin (“IVIG”) treatment, which H.H. began in
June. Id. at 329. On 3 November 2014, H.H.’s testing showed elevated Immunoglobulin G
(“IgG”) serum, elevated indocyanine green (“ICG”)/albumin ratio, high neopterin, and high
tetrahydrobiopterin. Id. at 323–24. The nurse who completed the pre-procedure nursing record
on behalf of Dr. Marks noted H.H. suffered from “autoimmune response to vaccines.” Pet’rs’
Ex. 56.6 at 106, ECF No. 41-6 (Dr. Marks Notes, pages 96–145).
On 20 March 2015, H.H. visited the Myelin Disorders Clinic at Children’s National
Hospital in Washington, DC and saw Dr. Adeline Vanderver, the director of the clinic, who
planned to follow up with Dr. Crow, the clinical scientist in England specializing in AGS
research, to discuss H.H.’s suspected heritable interferonopathy. Pet’rs’ Ex. 81.9 at 6, ECF No.
45-9 (Dr. Vanderver Notes, pages 1–10). On 4 March 2016, H.H. saw Dr. Marc Mazade, an
infectious disease specialist, who noted H.H. was “diagnosed with encephalitis of an
autoimmune nature presumably due to vaccinations two weeks previously.” Pet’rs’ Ex. 95 at 54,
56–57, ECF No. 61 (Medical Records). On 15 November 2016, H.H. saw Dr. Abigail Collins, a
pediatric neurologist, for treatment with medical marijuana. Pet’rs’ Ex. 98, ECF No. 93-2
(Medical Records). On 8 December 2016, H.H. underwent hip surgery to alleviate hip tightness
associated with his neuromuscular hip dysplasia. Pet’rs’ Ex. 95 at 199.
On 26 June 2017, Dr. Marks found H.H. had elevated glucose levels, but his neopterin
and tetrahydrobiopterin levels were normal. Pet’rs’ Ex. 95 at 77. An MRI showed H.H. had lost
white matter over the past three years. Id. at 147. On 9 July 2017, H.H. visited the emergency
room with complaints of seizures. Id. at 105. Doctors were unable to determine the origin of the
seizure. Id. at 135. H.H. was discharged on 11 July 2017, and the discharge summary noted Dr.
Marks would seek approval for an experimental use drug for AGS. Id. at 130–31. On 23 August
2017, H.H. underwent stem cell treatment in Panama. Id. at 18. Upon return to the United
States, during a 29 November 2017 visit, Dr. Marks noted H.H.’s hypertonia had improved and
characterized H.H.’s disorder as “interferonopathy with elevated neopterin clinically consistent
[with] Aicardi-Goutière[s] Syndrome or other autoimmune mediated event.” Pet’rs’ Ex. 96 at 6,
ECF No. 77-1 (Cook Children’s Medical Records, pages 1–115). During a 1 October 2018 visit,
Dr. Marks described H.H.’s condition as “presumed Aicardi-Goutière[s] syndrome.” Id. at 2.
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On 10 December 2018, Dr. Marks noted H.H.’s dystonia worsened, and on 23 January
2019, H.H.’s condition remained unchanged from his 10 December 2018 appointment. Id. at 6,
11–12. H.H.’s MRI on 23 January 2019 showed “no significant change of already existing
abnormalities” and “for Aicardi-Goutières syndrome, the severity of findings was quite mild.”
Id. at 16. Additionally, H.H.’s neopterin and tetrahydrobiopterin levels were elevated. Id. at 14.
On 22 July 2019, H.H. was admitted to the hospital for seizure-like activity. Id. at 17. On 4
September 2019, Dr. Marks saw H.H. whose condition was largely unchanged from his 23
January 2019 appointment. Id. at 58–60.
II. The Petition and Procedural History Before the Special Master
Heathe and Jenna Heller, on behalf on their minor son, H.H. filed a petition on 27 July
2015 alleging H.H.’s influenza, pneumonia, and DTaP-IVH-Hib (Pentacel) vaccinations caused
or significantly aggravated H.H.’s neurological disorder. See Pet. Petitioners filed all relevant
medical records, affidavits, and expert reports from treating physicians Dr. Leslie Hollis and
Dr. Warren Marks, see ECF Nos. 19, 14, and 16, and the record was complete on 9 November
2015. See Statement of Completion, ECF No. 17. The government filed its Rule 4(c) Report
alleging the case was not appropriate for compensation and should be dismissed on 1 February
2016. See Resp’t’s Rule 4(c) Rep., ECF No. 21. Petitioners filed additional affidavits and a
supplemental expert report from Dr. Hollis on 21 March 2016. Notice of Filing, ECF No. 28
(Updated Table of Contents and Exhibit List). After a status conference with Special Master
Hasting, petitioners renumbered and refiled all previously submitted medical records, affidavits,
and expert reports. Notice of Filing, ECF No. 40 (Exhibits 48–53); Notice of Filing, ECF No.
41 (Exhibits 54–56); Notice of Filing, ECF No. 42 (Exhibits 57–63); Notice of Filing, ECF No.
43 (Exhibits 64–69); Notice of Filing, ECF No. 44 (Exhibits 70–73); Notice of Filing, ECF No.
45 (Exhibits 74–83); Notice of Filing, ECF No. 46 (Exhibits 84–93). The government filed an
expert report from Dr. Kristin Barañano with supporting medical literature on 14 December
2016. Barañano Expert Rep., ECF No. 52. Petitioners filed a supplemental expert report from
Dr. Warren Marks on 25 August 2017. Marks Expert Rep., ECF No. 54.
On 5 December 2017, the case was reassigned to Special Master Oler. Notice of
Reassignment, ECF No. 59. Petitioners filed additional medical records on 6 March 2018.
Medical Records. The government filed a supplement expert report from Dr. Barañano and an
expert report from Dr. Stephen McGeady with supporting medical literature. Supplemental
Barañano Expert Rep., ECF No. 67; First McGeady Rep. ECF No. 70; Medical Literature, ECF
No. 71. The parties filed their pre-hearing submissions on 31 December 2019 and pre-hearing
briefs along with additional medical literature on 8 January 2020. Resp’t’s Prehr’g
Submissions, ECF No. 75; Pet’rs’ Prehr’g Submissions, ECF No. 76; Pet’rs’ Prehr’g
Submissions, ECF No. 78; Pet’rs’ Prehr’g Submissions, ECF No. 79; Resp’t’s Prehr’g
Submissions, ECF No. 80; Medical Literature, ECF No. 81.
Special Master Oler held an entitlement hearing on 22 January 2020. See Entitlement
Hr’g Tr., ECF No. 88. At the conclusion of the hearing, Special Master Oler requested the
parties file several documents. See Scheduling Order of 29 January 2020, ECF No. 86. The
Special Master also “informed . . . petitioners’ counsel, that the record, as it currently stood, did
not enable [p]etitioners to meet their burden” and “suggested . . . [p]etitioners retain[] an
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additional expert neurologist.” SM Dec. at 4 n.7. Petitioners retained Dr. Lawrence Steinman
and filed the report from Dr. Steinman on 24 July 2020. See Pet’rs’ Status Rep. of 14 April
2020 at 1, ECF No. 92; Steinman Rep., ECF No. 101. The government filed another expert
report by Dr. McGeady on 1 December 2020. Second McGeady Rep., ECF No. 104. Dr.
Steinman’s reply was filed on 12 February 2021. Steinman Reply, ECF No. 108.
Petitioners filed a post-hearing brief on 15 May 2021. Pet’rs’ Posthr’g Br., ECF No.
113. The government responded on 8 July 2021, and petitioners replied on 15 July 2021.
Resp’t Posthr’g Br., ECF No. 116; Pet’rs’ Resp. to Posthr’g Br., ECF No. 118. The parties
indicated the record was complete on 9 August 2021. See JSR at 1, ECF No. 119. The Special
Master dismissed the petition on 14 April 2022. SM Dec. at 74.
In her decision on entitlement, the Special Master summarized the procedural history of
the case, the medical records of H.H., the affidavits and testimony of the fact witnesses, and the
qualifications, reports, and testimony of the parties’ experts. Id. at 1–45. The Special Master
then explained the applicable law for an off-table injury (one not included in the Vaccine Injury
Table under the Vaccine Act § 11(c)(1)(C)(ii)), including each prong of the three-part Althen
analysis used for direct causation, and each prong of the six-part Loving analysis, used for
significant aggravation claims, and the relevant standards for assessing evidence. Id. at 45–50.
The Special Master began the analysis section of her decision by making the preliminary
determination “H.H. has Aicardi-Goutières syndrome or a [s]imilar [t]ype I [i]nterferonopathy
due to a [c]ongenital [a]bnormality in an [u]nidentified [g]ene.” Id. at 50. In determining this
diagnosis, the Special Master reviewed several factors: (1) clinical presentation; (2) elevated
liver enzymes; (3) elevated interferon alpha/neopterin levels; (4) genetic mutation; (5)
calcifications; (6) basal ganglia damage; (7) normalization of neopterin levels; (8) onset of AGS
after 12 months; and (9) neurological stabilization and improvement. See id. at 50–60.
The Special Master credited the many treating physicians who found “H.H[.]’s clinical
presentation was suggestive of or consistent with AGS.” Id. at 52–53 (“Dr.
Aalbers . . . noted . . . H.H[.]’s [symptoms] . . . were all consistent with AGS.”) (“Dr. Heather
Crawford . . . . noted . . . H.H. presented with developmental regression and developed
progressive dystonia that is characteristic of [AGS].”) (“Dr. Vanderver indicated an intent to
collaborate with Dr. Crow to facilitate genetic resolution of suspected heritable
interferonopathy.”). The Special Master also relied on the opinion of Dr. McGeady, the
government’s expert, who opined H.H. had “evidence of leukodystrophy and thinning of the
corpus callosum, which are described in AGS.” SM Dec. at 52 (citing First McGeady Rep. at
4).
The Special Master highlighted the Rice paper, a 2007 study of 123 patients with a
confirmed AGS gene mutation, as supporting Dr. McGeady’s opinion of liver enzymes favoring
a diagnosis of AGS, and accordingly found H.H.’s elevated liver enzymes supported a
diagnosis of AGS. See id. at 53. Additionally, the Special Master found H.H.’s elevated levels
of neopterin and interferon alpha were diagnostic for AGS. Id. at 55 (“There was no
explanation for H.H.’s elevated neopterin and interferon alpha levels other than AGS.”). The
Special Master relied on treating physicians, medical literature, and expert testimony to make
the finding. Id. at 52–55.
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The Special Master stated “[t]he fact . . . H.H. does not have a gene currently identified
with AGS is [p]etitioners’ strongest argument that he does not have the disease.” Id. at 55. The
Special Master also acknowledged “five percent of AGS cases are associated with an
unidentified genetic mutation.” Id. (citing Barañano Rep. at 1). The Special Master did not
believe the lack of a genetic mutation or “‘major characteristics’ that have been observed in
other patients with AGS” excluded an AGS diagnosis. SM Dec. at 55. Relying on the 2015
Crow & Manel study, which discusses the molecular and cellular basis of interferonopathies,
their categorization, future treatment strategies, and the insights they provide into normal
physiology, the Special Master reasoned “‘the range of phenotypes associated with mutations’
or AGS genes ‘is much broader than previously realized’ [and] patients ‘frequently lack one or
more, sometimes even all, of the original diagnostic criteria.’” Id. (citing Crow & Manel,
Aicardi-Goutières syndrome and the type I interferonopathies, 15 NATURE REVIEWS
IMMUNOLOGY 429, 429 (2015), ECF No. 70-1 [hereinafter Crow & Manel].
Petitioners argued “H.H. does not exhibit four other ‘major characteristics’ so the
Special Master addresses those characteristics in turn. Id. H.H. did not have calcifications, but
the Special Master, replying on Dr. Barañano and Dr. McGeady’s testimonies, determined
calcifications were not required for a AGS diagnosis. Id. at 56. Considering damage to the
basal ganglia, a group of subcortical nuclei responsible primarily for motor control, the Special
Master determined “basal ganglia damage [was not] a major characteristic of AGS.” Id. at 57.
The Special Master reasoned Crow & Manel did not list basal ganglia damage as a major
characteristic. Id. at 56. The government’s expert, Dr. Barañano, testified basal ganglia
damage may be seen in AGS cases with an adenosine deaminase acting on ribonucleic acid
(“ADAR”) mutation, but it is not universally seen in all AGS cases. SM Dec. at 57.
Accordingly, the Special Master found basal ganglia damage to not be a major characteristic of
AGS and the lack of basal ganglia damage did not eliminate an AGS diagnosis. Id.
Petitioners asserted the normalization of neopterin levels is characteristic of AGS; the
Special Master disagreed. Id. at 58. The Special Master found the “medical literature . . . does
not provide compelling support for the point that it is characteristic for AGS patients to
experience normalization in neopterin level.” Id. at 57. The Special Master points out
petitioners’ expert, Dr. Marks, initially favored vaccine causation over AGS because of the
normalization in neopterin levels but reversed his position when the levels elevated again.2 Id.
The Special Master determined the fact “H.H. developed symptoms consistent with
AGS at 15 months . . . does not provide persuasive evidence that H.H. does not have AGS, as
cases of later onset are reported in the medical literature.” Id. at 58. Various medical studies
support the notion “there is variability in AGS presentation which includes onset after the first
year of life.” SM Dec. at 58. Further, Drs. McGeady and Barañano also testified of the
variability of onset. See id.
In their post-hearing brief, H.H.’s treating physician, Dr. Marks, asserted neurological
improvement and stabilization supported a non-AGS diagnosis. Id. at 59. The Special Master
disagreed and found the medical literature supported the opinions of the government’s experts,
Drs. McGeady and Barañano, who opined “AGS is not necessarily a ‘relentlessly progressive
2 At oral argument, petitioners asserted Dr. Marks still believes H.H.’s injury is vaccine-caused. Tr. at 24:2–3.
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neurogenerative disorder’” and can have a “‘period of stabilization.’” Id. (quoting Entitlement
Hr’g Tr. at 270:8, 10–11). The Special Master found the stabilization of H.H.’s condition
supported a diagnosis of AGS. Id. at 71.
Following the diagnosis of an AGS or AGS-like disorder, the Special Master
determined the injury manifested around the time of the 17 October 2013 vaccination and
before the 23 October 2013 vaccination. Id. at 60. The Special Master found there was not
preponderant evidence to support an onset in September of 2013 because there was not
sufficient evidence to draw a conclusion, and “none of the experts explained why or how H.H.
would begin to demonstrate signs of his genetic disorder and then improve.” SM Dec. at 60.
While the Special Master did not find evidence to support onset in September of 2013, the
Special Master did find evidence for onset of symptoms after the administration of the influenza
and pneumonia vaccines but before the Pentacel vaccination. Id. at 62. The Special Master
relied on contemporaneous medical records from 11 November 2013, which indicated H.H.’s
“development ha[d] regressed in the last month,” placing the start of regression prior to the
vaccinations. Id. at 61. The Special Master considered the testimony of several fact witnesses
who also testified on H.H.’s right cord tightness, foot dragging, and falling prior to the 23
October 2013 Pentacel vaccination. Id. at 61–63.
After determining a diagnosis and narrowing the issue to whether the Pentacel vaccine
significantly aggravated H.H.’s condition, the Special Master began the six-part Loving
analysis, used to determine if a vaccine significantly aggravated H.H.’s injury. Id. at 63. For
Loving prongs one and two, which look at the condition prior to and following the
administration of a vaccination, the Special Master concisely described H.H.’s condition before
and after the 23 October 2013 vaccination. Id. In prong three of Loving, which compares the
conditions before and after the administration of a vaccination, the Special Master found the
deterioration in H.H. was “consistent with the Vaccine Act’s definition of significant
aggravation resulting in markedly greater disability, pain, or illness accompanied by substantial
deterioration of health.” Id. The Special Master then turned to the question of whether the
significant aggravation of H.H.’s condition was vaccine-related. SM Dec. at 63.
For Loving prong four, which requires a reputable medical explanation demonstrating
the vaccine received can cause the type of injury alleged, the Special Master concluded
petitioners did not establish a reliable and reputable theory. Id. at 67–68. The Special Master
analyzed petitioners’ expert Dr. Steinman’s proposed medical theory who opined the “Pentacel
vaccine activated H.H.’s immune system resulting in the production of type I and II interferons,
which led to the worsening of his neuroinflammation.” Id. at 65. The Special Master then
reviewed the medical literature used to support Dr. Steinman’s theory. Id. The literature
supported the notion “vaccines may activate the inflammasome,” but the Special Master found
“Dr. Steinman ha[d] not presented a link between such activation and the development of AGS
or a similar type I interferonopathy.” Id. at 66. Further, the Special Master credited the
government’s expert, Dr. McGeady, and reasoned petitioners’ theory did not explain how the
vaccinations caused the “massively exaggerated” levels of interferon alpha or explain how the
levels remained elevated for years after vaccination. Id. (internal quotations omitted).
Regarding Loving prong five, which requires a logical sequence of cause and effect
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between the administration of a vaccination and the significant aggravation of a condition, the
Special Master found petitioners neither provided evidence demonstrating H.H. experienced a
vaccine-associated significant aggravation of his interferonopathy nor furnished support for the
theory vaccines H.H. received affected his condition. SM Dec. at 68. First, the Special Master
determined petitioners did not present evidence of direct causation because physical signs
appeared prior to or at the same time as the 17 October vaccinations. Id. Next, the Special
Master considered the medical records and determined the medical records supported finding
the vaccine did not cause or significantly aggravate H.H.’s condition. Id. Specifically, the
Special Master points to the lack of a local reaction at the time of vaccination and the presence
of elevated transaminase levels. Id. at 68–69. The Special Master then evaluated whether the
opinions of the treating physicians, Drs. Hollis and Marks, supported a logical sequence. Id. at
69. While the treating physicians opined H.H.’s injury was vaccine caused or aggravated, the
Special Master discredited the opinions because neither expert was able to “articulate a
causation theory.” Id. at 69–72.
Finally, the Special Master considered Loving prong six, which requires the
establishment of a proximate temporal relationship between the significant aggravation of a
condition and the received vaccinations, and found petitioners did not offer “‘preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology . . . is medically acceptable to infer causation.’” SM
Dec. at 72 (quoting de Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir.
2008)). The Special Master disvalued Dr. Steinman’s report finding H.H.’s disease course
began three weeks after his receipt of the Pentacel vaccine because Dr. Steinman did not think
there were real signs of H.H.’s interferonopathy prior to the vaccinations. Id. at 72. Further,
the Special Master analyzed each piece of medical literature Dr. Steinman used to establish an
onset time and discredited them. Id. at 73. Regarding the Schonberger, Bennetto, and Scolding
articles, research studies used to support an injury onset of three weeks, the Special Master
found the evidence unpersuasive because the articles dealt with different conditions with
different underlying mechanisms than those presented by petitioners. Id. at 73–74.
Accordingly, the Special Master found petitioners did not preponderantly establish a three-week
onset as a medically acceptable onset interval. Id. at 74.
In conclusion, the Special Master found petitioners could not establish causation under
any avenue. As such, the Special Master dismissed the petition. Id. On 16 May 2022,
petitioners moved for review of the Special Master’s decision dismissing the petition. Mot. for
Review. The government filed its brief on 15 June 2022. Resp’t’s Resp., ECF No. 127. The
Court now reviews the Special Master’s decision.
III. Petitioners’ Motion for Review and the Government’s Arguments
On 16 May 2022, petitioners filed a motion for review of the Special Master’s decision
denying entitlement with an accompanying memorandum of law. See Mot. for Review; Mot. for
Review Mem. Petitioners allege the Special Master erred in three ways: the Special Master (1)
“improperly diagnos[ed p]etitioner with AGS or another genetically caused [t]ype [sic] I
interferonopathy”; (2) “fail[ed] to recognize [p]etitioners’ expert medically sound theory of
causation of injury”; and (3) “improperly increased the burden of proof . . . for establishing the
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logical sequence . . . and establishment of a temporal relationship . . . and devalued the expert
opinion of [p]etitioners’ [sic] expert.” Id. at 1, 17–18. The Court will divide petitioners’ third
objection into Loving prongs five and six, as the government did in its response. See Resp’t’s
Resp. at 10–12.
A. The Special Master’s Diagnosis of AGS
Petitioners argue “the [d]ecision denying entitlement . . . rests largely with the [S]pecial
[M]aster diagnosing . . . H.H. with AGS or some other unknown genetic Type I
interferonopathy.” Mot. for Review Mem. at 13. While petitioners do not “contest that H.H.’s
injury is ‘AGS-like,’” petitioners assert the Special Master erred by “improperly characteriz[ing]
the meaning of ‘AGS-like’ to suggest that [p]etitioners’ expert, Dr. Steinman was agreeing that
‘AGS-like’ meant that H.H. had a genetic interferonopathy” rather than a type I interferonopathy
caused by the October 2013 vaccinations. Id. at 14.
Petitioners assert their “almost impossib[le] H.H. has AGS based off of the known
medical statistics of the major characteristics of AGS.” Id. Petitioners argue Dr. Steinman
testified “there is no evidence or the probability is extremely low that H.H. has AGS or some
unk[n]own gen[e]tic AGS[-]like disease based off the medical records and based off the leading
experts in the world regarding AGS not having been able to diagnose him with the disease.” Id.
Petitioners argue the Special Master even recognized the low probability of H.H. having AGS or
some unknown genetic AGS-like disorder. See id. at 14–15 (“[I]n 5% of AGS cases, there are no
recognized genetic mutation, which would include H.H. Additionally, in 18% of AGS cases,
there’s normal development until symptom onset, which would include [p]etitioner. Also, in
8.6% of the AGS cases, development happens after 12 months, again, which includes
[p]etitioner, and then in 25% of cases ‘there is normalization of neopterin levels, and then in
some other percent of cases, there are no calcifications.”). Petitioners indicate the Special
Master acknowledged “‘a fair number of absences’ that are not consistent with an AGS
diagnosis” stating, “when you take all of those numbers and look at them together—and I’m not
saying I’m making a decision based on the numbers[, b]ut when you take all those numbers and
look at them together, this really seems like well beyond one in a million . . . . it seems like an
exceedingly rare instance.” Id. at 15 (citing Entitlement Hr’g Tr. 290:9–291:15). Petitioners
assert “despite the absolutely near impossibility” the Special Master “went against the great
weight of evidence presented . . . and diagnosed [p]etitioner with ‘more likely than not’ AGS or a
similar generic disorder, with a complete unknown etiology.” Id. Petitioners further assert the
government did not provide any medical evidence alleging the vaccinations “could not have
caused his injury and only provided evidence that they are not aware of any [medical evidence]
at this time, and therefore default to a differential diagnosis.” Id.
The government disagrees, stating the Special Master “thoroughly reviewed the
evidence” when the Special Master “considered [H.H.’s] clinical presentation, elevated liver
enzymes, elevated interferon alpha/neopterin levels, and more, found persuasive the opinions of
Drs. Barañano and McGeady, considered the notations in the medical records, and weighed the
medical literature” to determine that “H.H[.]’s condition was consistent with a diagnosis of AGS
or an AGS-like genetic condition.” Resp’t’s Resp. at 13 (cleaned up). The government argues
the “Special Master’s conclusion . . . is well-supported by both expert opinion and the medical
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records[.]” Id. (“In sum, she thoroughly reviewed the evidence and explained her reasoning, and
her findings should not be disturbed.”). The government indicates the “Special Master discussed
at length the qualification of each expert witness, the testimony of each, and the field of medical
literature submitted by both parties,” and, therefore, the Special Master’s “factual findings
should be given the discretion they are entitled to.” Id. at 13–14. The government further argues
the diagnosis, even if erroneous, would not be fatal to the decision because petitioners “failed to
meet their burden under any of the three Althen prongs [or Loving prongs 5 and 6],” which
establishes causation in fact when the petitioner proves all three Althen prongs, and “failure to
meet their burden under even one is dispositive and fatal to their case.” Id. at 14.
B. Loving Prong Four/Althen Prong One: A Medical Theory Causally
Connecting the Vaccination and the Injury
Petitioners argue in their second objection the Special Master “fail[ed] to recognize
[p]etitioners’ expert medically sound theory of causation of injury.” Mot. for Review Mem. at 1.
Citing Althen, petitioners argue circumstantial evidence can be used to meet the preponderance
standard in a “field bereft of complete and direct proof of how vaccines affect the human body.”
Id. at 16 (quoting Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1280 (Fed. Cir.
2005)). Petitioners assert they “provided a medical theory, albeit in an area bereft of medical
literature and knowledge of the mechanism of injury that [p]etitioner[s’] interferonopathy was
caused or substantially aggravated by the vaccines H.H. received, and that H.H. does not have
AGS or a similar unknown genetic injury.” Id. Petitioners argue “Dr. Steinman, produced
med[ical] literature that supports his theory that [v]accinations can cause the production of
interferon,” and, in turn, “experts agree that overproduction or an excessive amount of
interferons can cause the type of injury seen in [H.H.].” Id. Petitioners continue, Dr. Steinman
“offered testimony that interferon response was absent or deficient in H.H. and as a result his
immune system continuously produced type I interfe[ron], which resulted in the disease.” Id. at
17.
Petitioners argue the Special Master’s decision improperly required petitioners to
“produce either testimony or medical literature to state that in this particular case, the vaccines
did not cause [H.H.] to overproduce interferons.” Id. Additionally, petitioners argue they had to
“prove that the vaccinations of October 2013 could cause [interferon] production and that the
[interferons] produced to a level that caused grave injury[—]the injury being one that resembles
a genetic disease . . . but only a scintilla of evidence suggests that H.H.’s injury is caused by
genetic mutation.” Mot. for Review Mem. at 17. Petitioners assert the government’s expert did
not “provide any evidence that the vaccinations could not have caused his injury” but has “only
provided testimony from non-treating physicians that opine[d] they are not aware of any medical
literature or cases where a vaccination caused an “AGS-[l]ike” interferonopathy.” Id. at 15–16.
Under Althen, petitioners argue, the issue of “whether H.H. has AGS and if a vaccine could
cause it” is a “close call” and should be resolved in favor of petitioners. Id. at 1, 16 (citing
Althen, 418 F.3d at 1280).
The government argues petitioners “failed to establish a reliable and reputable theory” or
“reliable evidence in support of the[] theor[y].” Resp’t’s Resp. at 6, 8. The government asserts
Althen prong one requires “a medical theory be ‘persuasive’—that is, a specific to petitioners’
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case and supported by a ‘reputable’ (i.e., reliable) scientific or medical explanation.” Id. at 5
(citing Moberly v. Health & Hum. Servs., 592 F.3d 1315, 1322 (Fed. Cir. 2010)). See Boatmon
v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1360 (Fed. Cir. 2019) (rejecting “likely
caused,” “plausible,” or “possible” causal theories). The government asserts it is in the Special
Master’s purview to reject—as the Special Master did— “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.’” Id. at 8 (quoting Snyder v. Sec’y of
Health & Hum. Servs., 88 Fed. Cl. 706, 743 (2009)). Additionally, the government contends the
Special Master “carefully considered the qualifications, written reports, and testimony of all the
experts, as well as the literature, and appropriately determined petitioners’ theory was not
supported by a reputable scientific explanation.” Id. Specifically, the government agrees with
the Special Master’s conclusion regarding “one of the articles upon which Dr. Steinman heavily
relied” to show vaccinations may trigger a interferonopathy “does not provide persuasive
evidence in support of [p]etitioners’ theory in this case.” Id. at 8. The government further
asserts petitioners “provided a wholly speculative theory that was not supported by the scientific
research,” and even if petitioners “had provided sufficient evidence to establish that Dr.
Steinman’s theory was possible, that would not have been sufficient to meet their burden.” Id. at
10. Additionally, the government argues petitioners’ characterization of causation as a “close
call” indicates the legal insufficiency and lack of reliable and reputable evidence to support the
causation. Id. at 9–10.
C. Loving Prong Five/Althen Prong Two: A Logical Sequence of Cause and
Effect Showing the Vaccination was the Reason for the Injury
Petitioners’ third objection, in part, relates to the Special Master’s analysis of the logical
sequence of cause and effect between the administration of the vaccination and the manifestation
of the injury. Mot. for Review Mem. at 17 (“The [d]ecision improperly increased the burden of
proof past the preponderance of the evidence standard for establishing a logical sequence of
cause and effect.”). Petitioners allege the Special Master “devalued . . . [the p]etitioners’ expert”
who “provided evidence sufficient to satisfy [p]rongs 5 and 6 of Loving when discussing whether
the Pentacel vaccination significantly aggravated H.H.’s injury, which would also satisfy
Althen.” Id. at 19. Citing the Federal Circuit, petitioners further assert “the question of whether
an expert’s theory has been subjected to peer review and publication is not determinative of an
expert’s reliability” nor should an expert’s opinions on causation be “held to the standard of
scientific certainty” or “viewed through the lens of the laboratorian.” Id. at 18 (first quoting
Boatmon, 941 F.3d at 1359; then quoting Andreu ex rel. Andreu v. Sec’y of Health & Hum.
Servs., 569 F.3d 1367, 1380 (Fed. Cir. 2009)). By devaluing expert opinion, petitioners argue
the Special Master increased the burden of proof for petitioners. Id. at 18.
The government maintains, as the Special Master concluded, “H.H[.]’s deterioration
. . . close-in-time to his vaccination” and the mere fact “no other explanation exists” is
insufficient to show the vaccines caused a significant aggravation of H.H.’s condition. Resp’t’s
Resp. at 11. The government, citing Moberly, argues petitioners did not meet the burden of
showing actual causation because a proximate temporal relationship between vaccine and injury
is insufficient. Id. at 11 (citing Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 592
F.3d 1315, 1323 (Fed. Cir. 2010) (holding “mere showing of a proximate temporal relationship
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between vaccine and injury, nor a simplistic elimination of other potential causes of injury
suffices”)).
D. Loving Prong Six/Althen Prong Three: A Showing of a Proximate Temporal
Relationship Between Vaccination and the Injury
Petitioners assert in the second half of their third objection the Special Master “increased
the burden of proof . . . to prove the theory that H.H. was a healthy child prior to his October
2013 vaccinations, and with three weeks of those vaccinations, he was a severely and
permanently injured child.” Mot. to Review Mem. at 18. Petitioners argue they met their burden
of proof because “‘the proximate temporal relationship prong requires preponderant proof that
the onset of symptoms occurred with a timeframe for which, given the medical understanding of
the disorder’s etiology, it is medically acceptable to infer causation-in-fact.’” Id. (quoting de
Bazan v. Sec’y of Health & Hum. Servs., 529 F.3d 1347, 1352 (Fed. Cir. 2008)). Petitioners
argue Dr. Steinman, petitioners’ expert, “concisely and with supporting medical literature
provided evidence sufficient to satisfy prong[s] 5 and 6 of Loving . . . which would also satisfy
Althen.” Id. Petitioners argue the Special Master erroneously dismissed its expert’s testimony
showing temporal causation. Id.
The government asserts the Special Master was correct in finding petitioners unable to
establish a proximate temporal relationship regarding the significant aggravation claim. Resp’t’s
Resp. at 12, 12 n.4. The government argues—and the Special Master found—petitioner did not
establish a medically acceptable timeline from which to infer causation. Id. The temporal
relationship analysis “necessarily intersects with the prong one analysis (providing a reliable
medical theory causally connecting the resulting condition to the received vaccinations),” and
therefore, the government argues, petitioners could not have met their burden because they did
not present a reliable medical theory related to the “onset or worsening of the disease.” Id. at 11.
The government further argues the Special Master’s decision was “well-support[ed] by
evidence” and well-reasoned as the Special Master “carefully considered the qualifications,
written reports, and testimony of all the experts, as well as the literature.” Id. at 12, 8.
Specifically, the government agrees with the Special Master’s finding an article related to the
onset of GBS after swine flu vaccination was used in support of petitioners’ timing argument,
unpersuasive because the vaccination, injury, and theory of causation were not analogous. Id. at
12, 12 n.5.
IV. Legal Standards
A. The Court’s Standard of Review of a Special Master’s Decision
The Vaccine Act provides this Court jurisdiction to review a special master’s decision
upon timely motion of either party. See 42 U.S.C. § 300aa-12I(1)–(2) (2018). In reviewing the
record of the proceedings before the special master, the Court may: (1) “uphold the findings of
fact and conclusions of law of the special master and sustain the special master’s decision”; (2)
“set aside any findings of fact or conclusion 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 (3) “remand the petition to the special master for
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further action in accordance with the court’s direction.” Id. at § 300aa-12(e)(2). “Fact findings
are reviewed . . . 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.”
Saunders v. Sec’y of Health & Hum. Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994) (quoting Munn
v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992)).
It is not the Court’s role “to reweigh the factual evidence, or to assess whether the special
master correctly evaluated the evidence.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d
1357, 1360 (Fed. Cir. 2000) (quoting Munn, 970 F.2d at 871). The Court also does “not examine
the probative value of the evidence or the credibility of the witnesses.” Id. These are all matters
within the purview of the fact finder.” Id. (quoting Munn, 970 F.2d at 871). “Reversal is
appropriate only when the special master’s decision is arbitrary, capricious, an abuse of
discretion, or not in accordance with the law.” Snyder v. Sec’y of Health & Hum. Servs., 88 Fed.
Cl. 706, 718 (2009). The arbitrary and capricious standard “is a highly deferential standard of
review[:] [i]f 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.” Hines ex rel. Sevier v. Sec’y of Health & Hum. Servs., 940 F.2d 1518,
1528 (Fed. Cir. 1991).
B. The Standard of Causation in Vaccine Cases
“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.”
Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1341 (Fed. Cir. 2010) (citing 42
U.S.C. §§ 300aa-11(c)(1), 300aa-13(a)(1)). “A petitioner can show causation under the Vaccine
Act in one of two ways”: (1) “by showing that she sustained an injury in association with a
vaccine listed in the Vaccine Injury Table[,] . . . [i]n such a case, causation is presumed”; or (2)
“if the complained-of injury is not listed in the Vaccine Injury Table . . . the petitioner may seek
compensation by proving causation in fact.” Id. at 1341–42 (internal citations omitted). Vaccine
cases employ a burden shifting standard: “[o]nce the petitioner has demonstrated causation, she
is entitled to compensation unless the government can show by a preponderance of the evidence
that the injury is due to factors unrelated to the vaccine.” Id. at 1342 (citing Doe v. Sec’y of
Health & Hum. Servs., 601 F.3d 1349, 1351 (Fed. Cir. 2010)).
“For off-table claims (one not included in the Vaccine Injury Table under the Vaccine Act
§ 11(c)(1)(C)(ii)) that an injury was either ‘sustained, or [] significantly aggravated,’ a petitioner
must show the vaccine ‘caused’ the injury or aggravation.” W.C. v. Sec’y of Health & Hum. Servs.,
704 F.3d 1352, 1357 (Fed. Cir. 2013) (citing 42 U.S.C. § 300aa-11(c)(1)(C)(ii)). “When a
petitioner has suffered an off-[t]able injury . . . [the Federal Circuit] has established the following
test for showing causation in fact under the Vaccine Act:”
[The petitioner’s] burden is to show by preponderant evidence that the vaccination
brought about her 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.
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Broekelschen, 618 F.3d at 1345 (quoting Althen, 418 F.3d at 1278). “A petitioner must prove by
preponderant evidence that the vaccination caused significant aggravation by showing:”
(1) the person’s condition prior to administration of the vaccine, (2) the person’s
current condition (or the condition following the vaccination if that is also
pertinent), (3) whether the person’s current condition constitutes a “significant
aggravation” of the person’s condition prior to vaccination, (4) a medical theory
causally connecting such a significantly worsened condition to the vaccination, (5)
a logical sequence of cause and effect showing that the vaccination was the reason
for the significant aggravation, and (6) . . . a proximate temporal relationship
between the vaccination and the significant aggravation.
W.C., 704 F.3d at 1357 (Fed. Cir. 2013) (citing Loving ex rel. Loving v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 135, 144 (2005)). The Federal Circuit in W.C. espoused “[t]he Loving test
combines the first three Whitecotton factors, which establish significant aggravation, with the
Althen factors, which establish causation.” Id. Accordingly, the standards for assessing Althen
prongs 1–3 also apply to Loving prongs 4–6. Id.
Under the first prong of Althen, “[a] petitioner must provide a ‘reputable medical or
scientific explanation’ for its theory.” Boatmon, 941 F.3d at 1359 (quoting Moberly, 592 F.3d at
1322). “While it does not require medical or scientific certainty, [the explanation] must still be
‘sound and reliable.’” Id. (quoting Knudsen ex rel. Knudsen v. Sec’y of Health & Hum. Servs.,
35 F.3d 543, 548–49 (Fed. Cir. 1994)). Petitioners “need not produce medical literature or
epidemiological evidence to establish causation under the Vaccine Act.” Andreu ex rel. Andreu
v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009). Where such evidence is
introduced, it must not be viewed “through the lens of the laboratorian, but instead from the
vantage point of the Vaccine Act’s preponderant evidence standard” Id. at 1380. For satisfying
the second Althen prong, “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.’”
Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006) (quoting
Althen, 418 F.3d at 1280). Lastly, “the proximate temporal relationship prong requires
preponderant proof that the onset of symptoms occurred within a timeframe for which, given the
medical understanding of the disorder’s etiology, it is medically acceptable to infer causation-in-
fact.” de Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008).
V. Review of the Special Master’s Decision on Entitlement
Petitioners alleged H.H.’s injuries were caused or significantly aggravated by the
influenza, pneumonia, and Pentacel vaccines, administered on 17 October 2013 and 23 October
2013, respectively. See Pet. at 1. The Special Master reviewed the record for each of the three
vaccines as the cause or significant aggravation of H.H.’s injury. SM Dec. at 63 (“I am unable to
make a specific finding as to whether H.H. began to develop signs of his type I interferonopathy
before or after the flu and pneumonia vaccines, I have not analyzed whether these vaccines either
caused or significantly aggravated H.H.’s condition.”). In their memorandum regarding their
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motion for review, petitioners alleged the Special Master erred in determining whether any of the
three vaccines caused or significantly aggravated H.H.’s injury. Mot. for Review Mem. at 11, 18
(“[T]ype I interferonopathy [was] caused by the vaccination[-]triggering event in October
2013.” (emphasis added)) (asserting the Special Master erred in applying Loving prongs 4, 5 & 6
for the significant aggravation analysis). Accordingly, the Court reviews the Special Master’s
decision to determine whether the Special Master erred in finding the influenza, pneumonia, and
Pentacel vaccines did not cause or significantly aggravate H.H.’s type I interferonopathy.
A. The Special Master’s Consideration of the Influenza and Pneumonia
Vaccinations
As part of the Special Master’s decision, the Special Master considered whether the
influenza and pneumonia vaccines caused or significantly aggravated H.H.’s injury. SM Dec. at
63. The Special Master stated, “I have not analyzed whether [the influenza and pneumonia]
vaccines either caused or significantly aggravated H.H.’s condition because Dr. Steinman only
offered an opinion with respect to the Pentacel vaccine.” Id. The Special Master did not analyze
causation–in–fact for the influenza and pneumonia vaccinations because petitioners did not
present evidence showing causation in fact for influenza and pneumonia. Id. Petitioners did not
expressly object to this finding in their motion for review. See Mot. for Review Mem. at 1.
At oral argument, the parties disputed the scope of Dr. Steinman’s report. See Tr., ECF
No. 131. Under the Vaccine Act, petitioners seeking compensation “must prove by a
preponderance of the evidence that the injury or death was caused by a vaccine.” Broekelschen
v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1341 (Fed. Cir. 2010) (citing 42 U.S.C. §§
300aa-11(c)(1), 300aa-13(a)(1)). At oral argument, the government posited “Dr. Steinman only
addresses the Pentacel vaccine” and argued the discussion of the Special Master’s decision
should be limited to the findings related to Pentacel. Tr. at 13:12–15. Petitioners stated Dr.
Steinman “did reference both sets of vaccinations having been causes of the injury” in generic
terms, but Dr. Steinman “focus[ed] on Pentacel” when opining on the medical theory and
causation in fact of H.H.’s injury. Id. at 37:18–21. After further questioning, petitioners
conceded their “theory is that the Pentacel significantly aggravated his interferonopathy and
caused it.” Id. at 91:12–15. Specifically, petitioners did not provide a medical theory showing
the influenza and/or pneumonia vaccines can cause interferonopathies. SM Dec. at 63 (“Dr.
Steinman only offered an opinion with respect to the Pentacel vaccine.”); Tr. at 37:18–21 (“THE
COURT: [D]oes Dr. Steinman address all three vaccines? [PETITIONERS]: He addresses
them . . . in a more general term, as the October 2013 vaccinations, including the flu vaccination
and then Pentacel . . . so he did reference both sets of vaccinations and having been causes of the
injury, but did then focus on Pentacel . . . .”), 38:1–3 (“THE COURT: [I]t’s fair to say, that Dr.
Steinman’s report focuses on Pentacel? [PETITIONERS]: It does focus on Pentacel.”). The
parties both agree petitioners’ expert, Dr. Steinman, focused on the medical theory related to the
components contained in the Pentacel vaccine. Id. at 13:12–15, 37:18–21.
Petitioners seeking compensation “must prove by a preponderance of the evidence that
the injury or death was caused by a vaccine.” Broekelschen, 618 F.3d at 1341 (citing 42 U.S.C.
§§ 300aa-11(c)(1), 300aa-13(a)(1)). The parties agree—and the Special Master found—Dr.
Steinman did not opine on the influenza and pneumonia vaccines, and therefore did not put forth
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evidence to show causation. Id. Accordingly, the Court finds the Special Master did not err in
finding the influenza and pneumonia vaccines did not cause H.H.’s injury. Id.
B. The Special Master’s Consideration of Direct Causation v. Significant
Aggravation
There are two separate avenues to recovery under the Vaccine Act: a petitioner can
allege a vaccine (1) caused a new injury; or (2) significantly aggravated an existing injury.
Loving, 86 Fed. Cl. at 143. The Federal Circuit explained “vaccine-related injury or death”
means “illness, injury, condition, [that] has to be more than just a symptom or manifestation of
an unknown injury.”3 Lombardi v. Sec’y of Health & Hum. Servs., 656 F.3d 1343, 1352 (citing
Broekelschen, 618 F.3d at 1349). Two injuries—like a genetic injury and a vaccine-aggravated
injury—can have overlapping symptoms. See Broekelschen, 618 F.3d at 1346 (observing the
two disputed injuries, transverse myelitis and anterior spinal artery syndrome, had overlapping
symptoms).
In this case, petitioners alleged entitlement under both avenues, so the Special Master
considered whether the Pentacel vaccine caused or significantly aggravated H.H.’s injury. SM
Dec. at 63. The Special Master found “the Pentacel vaccine did not [directly] cause H.H.’s
condition” because “H.H. began to show signs of his type I interferonopathy before he received
the Pentacel vaccine,” and eliminated a direct causation analysis. Id. (citing Locane v. Sec’y of
Health & Hum. Servs., 685 F.3d 1375, 1381 (Fed. Cir. 2012)). The Special Master found “H.H.
began to develop heel cord tightness around the time he received his October 17, 2013
vaccinations, and before the received the Pentacel vaccine, and further that this heel cord
tightness constituted a physical sign of his type I interferonopathy.” Id. at 72. Accordingly, the
Special Master focused on the significant aggravation of H.H.’s injury. Id. at 63 (“My finding
. . . makes the analysis more pointed. It . . . raises the question as to whether the Pentacel
vaccine caused the significant aggravation of H.H.’s genetic condition that had already begun to
manifest.”).
The parties dispute whether petitioners allege a direct causation theory or a significant
aggravation theory on review. In their memorandum regarding their motion for review,
petitioners stated H.H.’s “interferonopathy was caused or substantially aggravated” by the
vaccinations received. Mot. for Review Mem. at 16. The government argued petitioners only
focus on a significant aggravation theory because “[p]etitioners did not raise any legal
challenges” to the Special Master’s factual finding physical signs of interferonopathy—heel cord
tightening—around October 17, 2013. Resp’t’s Resp. at 12 n.4; Tr. at 91:5–15
([PETITIONERS]: [W]e did not specifically address her fact finding in [] our motion for
review.”). By not challenging the factual finding, the government suggests petitioners’ motion
for review and memorandum regarding their motion to review “assumes that the case involves
the significant aggravation of their son’s pre-existing condition.” See Resp’t’s Resp. at 12, 12
n.4.
3 The Special Master in her decision uses “diagnosis,” “disorder,” and “condition” terminology interchangeably with
injury.
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During oral argument, both parties agreed with the Special Master in finding the onset of
symptoms were sometime between 17 October 2013 and 23 October 2013. Tr. at 90:1–19. At
the beginning of oral argument, petitioners generally maintained “the injury was caused by the
vaccination, causing a type I interferonopathy.” Id. at 8:10–22. If the injury was not caused by
vaccine, petitioners alternatively asserted, “a genetic type I interferonopathy, an unknown
genetic type I interferonopathy . . . was significantly aggravated by the vaccinations.” Id.
Regarding timing, petitioners recognized at the 13 October 2013 flu vaccinations appointment,
“there were signs that he . . . began to have overactive interferons.” Id. at 90:11-16. Petitioners
conceded the manifestation of physical signs around the 13 October 2013 vaccinations
appointment points to significant aggravation as the primary theory. Id. at 90:20–22
(“[PETITIONERS]: It is petitioners’ belief . . . [at] the October 13th flu vaccination . . . there
were signs . . . that he began to have overactive interferons . . . that puts us into the significantly
aggravated case or area of law.”). While petitioners did not “want to take the complete causation
theory off the table,” they acknowledged “Dr. Steinman just opined in his expert report, focusing
on a significant aggravation theory.” Id. at 91:2–9 (“THE COURT: [A]re petitioners still
making a complete causation theory? [PETITIONERS]: I don’t want to take the complete
causation theory off the table, but our expert witnesses relied and testified—well Dr. Steinman
just opined in his expert report, focusing on a significant aggravation theory. [E]specially with
the Special Master’s fact-finding, we did not specifically address her fact-finding in . . . our
motion for review.”). Consequently, as petitioners stated, “evidence of a slight heel cord
tightening” favors “Pentacel significantly aggravating [H.H.’s] interferonopathy” as petitioners’
primary theory. Tr. at 90:20–22, 91:10–15 (“[PETITIONERS]: There was evidence of a slight
heel cord tightening, so petitioners’ theory is that the Pentacel significantly aggravated his
interferonopathy and caused it.”).
In this case, the Special Master found “preponderant evidence that the onset of H.H.’s
condition began close-in-time to his October 17, 2013 vaccinations and before he received the
Pentacel vaccine.” SM Dec. at 63. The Special Master relied on contemporaneous medical
records from 11 November 2013, which indicated H.H.’s “development ha[d] regressed in the
last month,” placing the start of regression prior to the vaccinations. Id. at 61. The Special
Master considered the testimony of several fact witnesses who also testified about H.H.’s right
cord tightness, foot dragging, and falling prior to the 23 October 2013 Pentacel vaccine. Id. at
61–63. Given all the evidence, the Special Master found “H.H. began to show signs of his type I
interferonopathy before he received the Pentacel vaccine.” Id. at 63 (emphasis added). As
petitioners raised no allegation of error in the Special Master’s factual finding, the Court does not
review the finding for error.
Evidence of physical symptoms prior to vaccination eliminates a direct causation claim.
Locane, 685 F.3d at 1381 (“[I]f the illness was present before the vaccine was administered,
logically, the vaccine could not have caused the illness.”). The Special Master found “H.H.
began to develop heel cord tightness around the time he received his 17 October 2013
vaccinations[] and before he received the Pentacel vaccine, and . . . this heel cord tightness
constituted a physical sign of his type I interferonopathy,” which eliminates the possibility of the
vaccine directly causing H.H.’s injury. SM Dec. at 63 (citing Locane, 685 F.3d at 1381).
Petitioners’ expert Dr. Steinman could not account for the early symptoms stemming from
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H.H.’s genetic injury in his direct causation theory.4 Tr. at 91:2–9 ([PETITONERS]: “Dr.
Steinman . . . focus[ed] on a significant aggravation theory.”). The parties do not dispute the
Special Master’s factual finding of physical symptoms manifesting prior to administration of the
Pentacel vaccine and therefore agree the finding eliminates a direct causation theory. Tr. at
90:20–22. Accordingly, the Court finds the Special Master did not err in only analyzing a
significant aggravation theory for Pentacel because the physical symptoms of H.H.’s genetic
injury appeared before his Pentacel vaccination. See Locane, 685 F.3d at 1381(stating if “the
illness was present before the vaccine was administered, logically, the vaccine could not have
caused the illness”).
VI. The Special Master’s Determination of Genetically Caused AGS or AGS-like Type I
Interferonopathy
Before Special Master Oler analyzed whether the Pentacel vaccine could have
significantly aggravated H.H.’s injury, the Special Master determined the record best supported
an AGS or AGS-like type I interferonopathy injury. SM Dec. at 50–63. Petitioners first object
to the Special Master “improperly diagnosing [H.H.] with AGS or another genetically caused
[type] [sic] I interferonopathy[.]” Mot. for Review Mem. at 1. The Court will review the
Special Master’s decision as it relates to petitioners’ theory of significant aggravation of H.H.’s
injury by the Pentacel vaccine by first determining whether the Special Master erred in her
diagnosis of AGS or AGS-like type I interferonopathy.
A. Whether the Special Master was Required to Diagnose
The Special Master’s diagnosis is central to the parties’ dispute in this case. The Special
Master “found the evidence preponderantly supports the fact that H.H. has a genetic type I
interferonopathy that is either AGS or is AGS-like.” SM Dec. at 63. Petitioners object to the
finding because it “improperly mischaracterized the meaning of ‘AGS-like’ to suggest . . . H.H.
had a genetic [t]ype I [i]nterferonopathy as opposed to the October 2013 vaccinations causing the
[t]ype I [i]nterferonopathy.” Mot. for Review Mem. at 14. The government disagrees the
Special Master erred in the diagnosis and further asserts, even if the “diagnosis was erroneous,
such error would be harmless” because petitioners “failed to meet their burden under any of the
three Althen prongs,” which is “dispositive and fatal to their case.” Resp’t’s Resp. at 14.
Before the Court can assess whether the Special Master mischaracterized the diagnosis, it
must determine whether a diagnosis was allowed. Causation frameworks are determined
4 Dr. Steinman opined on both an onset theory and a significant aggravation theory. See Steinman Rep. at 15–16.
The Special Master found Dr. Steinman’s opinion supporting an onset claim contrary to her findings of physical
signs prior to the Pentacel vaccine. SM Dec. at 72 (“[M]y determination in this case is contrary to Dr.
Steinman’s.”). Dr. Steinman did not believe “H.H. had pre-existing evidence of a neurological problem, unless the
turning of the right foot inward was the earliest manifestation of dystonia.” Steinman Rep. at 5. Dr. Steinman’s
report, however, acknowledges early physical signs but does not believe those were neurological signs. Id.
Accordingly, he does not address how an onset theory accounts for them directly. Steinman Rep. at 8 (“Based on
the records, I conclude that this is an interferonopathy with precious little evidence of any neurologic findings prior
to the immunizations in October 2013.”). In his reply, Dr. Steinman asserts “even if there was an underlying AGS
condition in play in H.H., my logic is that the immunization would have worsened neuroinflammation in H.H.”
Steinman Reply at 3.
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“relative to the injury.” Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1346
(Fed. Cir. 2010). Accordingly, a special master may “first determine which injury was best
supported by the evidence presented in the record before applying the Althen test[.]” Id.
(emphasis added). In this case, the Special Master relied on Broekelschen to justify diagnosing
H.H. prior to any causation analysis and found “in considering the evidence . . . . H.H., more
likely than not, has AGS or a similar genetic interferonopathy.” SM Dec. at 50, 60. In
Broekelschen, the petitioner presented symptoms characteristics of two distinct diagnoses.
Broekelschen, 618 F.3d at 1343. Each diagnosis had a predetermined cause. Id. at 1346
(“Transverse myelitis is an inflammatory event caused by an immune response, whereas anterior
spinal artery syndrome is a vascular event caused by a blockage.”). The Federal Circuit
explained “nearly all of the evidence on causation was dependent on the diagnosis” and “because
the injury itself [was] in dispute, the proposed injuries differ[ed] significantly in their pathology,
and the question of causation turn[ed] on which injury [petitioner] suffered.” Id. The Federal
Circuit held “it was appropriate . . . for the special master to first determine which injury was
best supported by the evidence presented in the record before applying the Althen test so that the
special master could subsequently determine causation relative to the injury.” Id. In
Broekelschen, a causation analysis could not proceed without defining an injury, so the special
master had to define the injury. See id.
In contrast, the parties in Andreu agreed the petitioner suffered from a seizure disorder
but disputed whether an initial seizure was febrile or afebrile. Andreu ex rel. Andreu v. Sec’y of
Health & Hum. Servs., 569 F.3d 1367, 1378 (Fed. Cir. 2009). The Federal Circuit suggested the
exact diagnosis or injury was not required to determine whether the vaccine caused the
petitioner’s injury because both parties agreed “whatever caused [petitioner’s] first seizure also
led to his subsequent seizure disorder.” Id. at 1381. The question of whether the seizure was
febrile or afebrile did “not change [the dispute] that the catalyst . . . was the . . . vaccine . . . [,]”
and, similarly, the dispute in this case was not whether H.H. had an interferonopathy but whether
“the October 2013 vaccinations caus[ed] the [t]ype I [i]nterferonopathy.” Id. at 1378; Mot. for
Review Mem. at 14. If the special master in Andreu had provided a diagnosis, narrowing the
petitioner’s injury to afebrile or febrile, the causation analysis would remain unchanged because
the question was still if the vaccine caused the injury. In other words, an exact diagnosis was not
needed to move forward with a causation analysis like it was in Broekelschen. See Andreu, 569
F.3d at 1378.
The preliminary question before the Court can address the diagnosis itself is whether the
Special Master’s diagnosis was permitted under Andreu. In this case, the parties do not dispute
the injury—type I interferonopathy—is an inherited genetic disorder.5 Tr. 28:15–17 (“[THE
GOVERNMENT]: [M]y understanding is it’s an interferonopathy[.]”), 29:25
(“[PETITIONERS]: The injury is an interferonopathy.”). Instead, the parties dispute the
underlying cause of the interferonopathy and whether the vaccine aggravated the injury. Id. at
10:14–19 (“THE COURT: [I]s it fair to say that the primary dispute here is the underlying cause
of the injury, whether it was genetic or vaccine? [PETITIONERS]: The underlying
5 Type I interferonopathies are a group of “monogenic diseases in which a constitutive upregulation of type I
[interferon] production is considered directly relevant to pathogenesis.” SM Dec. at 56 (quoting Crow & Manel at
430); see also SM Dec. at 64 (“Rodero & Crow[] describe[es] ‘the grouping of Mendelian disorders associated with
an up-regulation of type I interferon signaling as a novel set of human inborn errors of immunity.’”).
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cause . . . .”). The Special Master did not need to diagnose—and the parties agree—because the
injury itself was not disputed but rather “whether the . . . vaccine [caused the injury].” See
Andreu, 569 F.3d at 1378; Tr. at 25:8–16 (“THE COURT: Did the Special Master have to
determine a diagnosis? [THE GOVERNMENT]: No. . . . [PETITIONERS]: [W]e would agree
that . . . petitioner[s] can establish the burden . . . and causation without a diagnosis.”). The
issue of whether the H.H. suffered a vaccine-aggravated injury is properly addressed by Loving
prongs four, five, and six. See W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1357
(Fed. Cir. 2013) (holding Loving to be the “correct framework for evaluating off-table significant
aggravation claims”) (citing Loving ex rel. Loving v. Sec’y of Health & Hum. Servs., 86 Fed. Cl.
135, 144 (2005)). Here, the Special Master did diagnosis, which is permitted under Andreu if the
diagnosis would not arbitrarily change the causation analysis under Loving. Andreu, 569 F.3d at
1381 (“[W]hatever caused [the injury] also led to [petitioner’s] . . . disorder. The pivotal issue,
therefore, is whether the . . . vaccine triggered [the injury].” (internal citation omitted)).
Accordingly, the Court will review to determine if the Special Master’s diagnosis altered
causation prior to a proper causation analysis under Loving. See id.
B. Whether H.H.’s Diagnosis Subsumes Causation
An interferonopathy is a genetic autoinflammatory disease.6 Debora d’Angelo, et al.,
Type I Interferonopathies in Children: An Overview, 9 FRONTIERS IN PEDIATRICS 1, 1 (March 31,
2021). Type I interferonopathy is a subset of interferonopathy diseases.7 Id. at 2. As of 2017, 13
different type I interferonopathies have been identified. Id. at 6. AGS, one of the first type I
interferonopathies identified, is linked with several genetic mutations and presents in a spectrum
of phenotypes and severity. Id. A person can have a type I interferonopathy that is not AGS or
AGS-like or have a type I interferonopathy with AGS-like symptoms varying in severity. Id.;
see also SM Dec. at 56 (“[A]lthough the AGS diagnostic label still has a useful clinical purpose,
there are many patients who do not fit this paradigm as initially delineated. Hence, we are now
tending towards the use of the generic term ‘type I interferonopathy’” (quoting Crow & Manel at
429)).
Petitioners argue describing the injury as AGS or AGS-like is erroneous because it goes
“against the great weight of evidence presented[.]” Mot. for Review Mem. at 15. While the
Special Master explored nine factors to diagnosis H.H. with AGS or AGS-like interferonopathy,
petitioners maintain there “were more signs or significant characteristics that were not seen in
H.H.” that contradict a finding of AGS. See SM Dec. at 50–60 (discussing nine factors: (1)
clinical presentation; (2) elevated liver enzymes; (3) elevated interferon alpha/neopterin levels;
(4) genetic mutation; (5) calcifications; (6) basal ganglia damage; (7) normalization of neopterin
levels; (8) onset of AGS after 12 months of age; and (9) neurological stabilization and
improvement); Tr. at 20:22–21:1. Specifically, petitioners indicate the lack of a mutation in
H.H., the lack of genes in H.H.’s parents, two healthy siblings, no skin lesions, no calcifications,
no basal ganglia damage, no swallowing issues, no microcephaly, healthy organs, no pleocytosis,
no further regression, perfect skin, and a normal life expectancy all rebut an AGS or AGS-like
6 Interferonopathies are a “group of inherited [(genetic)] autoinflammatory diseases[.]” Debora d’Angelo, et al.,
Type I Interferonopathies in Children: An Overview, 9 FRONTIERS IN PEDIATRICS 1, 1 (March 31, 2021).
7 Type I interferonopathies relate to an overproduction or underproduction of type I interferons who “primarily
participate[] in the innate immune system response to viral antigens[.]” d’Angelo, et al., supra note 10, at 2.
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diagnosis. Tr. at 20:16–22:1. Petitioners assert the Special Master diagnosed H.H. with AGS
when an AGS diagnosis “really seems like well beyond one in a million” and “despite no
medical providers who treated H.H. diagnosing him with AGS.” Mot. for Review Mem. at 15
(citing Entitlement Hr’g Tr. at 290:9–291:15) (emphasis removed); Tr. at 30:1–6
(“[PETITIONERS]: AGS is a diagnosis, is a rare genetic disorder, and that is what the Special
Master . . . diagnosed him with . . . despite no medical providers who . . . treated H.H.
diagnosing him with AGS.”).
In this case, the Special Master determined after assessing nine factors H.H. had a
“genetic type I interferonopathy that is either AGS or is AGS-like.” SM Dec. at 51–60, 63. The
Special Master noted “[m]utations in . . . [seven] genes account for around 95% of patients with
classical AGS . . . mean[ing] . . . five percent of AGS cases are associated with an unidentified
genetic mutation.” Id. at 55 (internal citations omitted). Despite H.H. not having “a gene
currently identified with AGS,” the Special Master still determined H.H. has “AGS or a similar
genetic disorder.” Id. at 55, 51. As the Special Master noted, “[s]everal of H.H.’s treating
physicians . . . agreed that H.H.’s clinical presentation was suggestive of or consistent with
AGS[,]” but no treating physician or AGS expert has been able to definitively diagnosis H.H.
with AGS. Id. at 52. The Special Master, however, did diagnose H.H. with an AGS disorder
despite no treating physician, AGS expert, or medical expert being able to. Id. at 52, 60 (“Dr.
[V]anderver, one of the nations’ leading authorities on AGS, . . . noted that H.H. had a
‘suspected heritable interferonopathy.’”); see also Entitlement Hr’g Tr. at 296:1–4 (“[DR.
BARAÑANO]: I’m not here to say . . . he definitely has AGS. He has something like AGS that
in my experience we will eventually find the genetic underpinnings of his disorder.”).
Whether the diagnosis is correct or not does not change the preliminary issue—whether
the vaccine significantly aggravated H.H.’s injury. As established in Andreu, a determination of
a diagnosis is not required when it does not change the underlying causation dispute; because a
diagnosis may not change the outcome, however, it could be harmless. See supra Section VI.A;
Andreu, 569 F.3d 1367. Therefore, the focus of the Court’s inquiry is if the Special Master
foreclosed a finding of significant aggravation by diagnosing H.H. Andreu, 569 F.3d 1367.
Petitioner argued the diagnosis excludes a fair significant aggravation analysis because
the mischaracterized diagnosis permeates throughout all prongs of the Loving analysis. Mot. for
Review Mem. at 14 (“The [d]ecision denying entitlement in this case rests largely with the
Special Master diagnosing . . . H.H. with AGS or some other unknown genetic [t]ype I
[i]nterferonopathy.”). Petitioners object to the Special Master diagnosing H.H. with an AGS or
AGS-like disorder because it “improperly mischaracterized the meaning of ‘AGS-like’ to
suggest . . . H.H. had a genetic [t]ype I [i]nterferonopathy as opposed to the October 2013
vaccinations causing the [t]ype I [i]nterferonopathy.” Id. The mischaracterization assumed the
genetic mutation solely caused the injury when petitioners argued the injury could be genetic
with a vaccine-aggravated injury in addition to the genetic injury. Id. “[T]he Special Master’s
methodology when analyzing Loving Prongs 4–6” was erroneous because of that assumption. Id.
at 1. In oral argument, petitioners explained “‘AGS-like’ is describing the injury” with
symptoms, but “not all interferonopathies have [AGS symptoms] or have a diagnosis of AGS.”
Tr. at 11:21–25. Petitioners’ theory is H.H. has “an unknown genetic type I interferonopathy.”
Tr. at 8:19–20, 10:17–19, 12:10–14 (“THE COURT: [I]f there was a genetic component,
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petitioners’ argument is it was not AGS? [PETITIONERS]: Correct.”). The Special Master,
according to petitioners, regarded the injury as a normal course of AGS merely because the
symptoms were AGS-like. Mot. for Review Mem. at 14. Petitioners assert this characterization
disregards the possibility of a vaccine-aggravated injury compounding a pre-existing type I
interferonopathy. Tr. at 31:1–5 (“THE COURT: [I]s it that the error was associated with
conflating [injury and diagnosis]? That here . . . the injury as a diagnosis got merged together,
and then the cause became purely genetic? [PETITIONERS]: Yes, Your Honor.”).
The government argues the diagnosis from the Special Master was not incorrect, and
H.H.’s injury is 100 percent caused by H.H.’s unidentified genetic mutation. Tr. at 17:1–20
(“[THE GOVERNMENT]: Special Master Oler went through, very detailed, replying on the
expert reports, relying on the medical record, and the nine factors she provided was how she was
able to come to this conclusion of AGS or AGS-like disease.”), 11:8-11 (“THE COURT: [T]he
government’s position is 100 percent genetic-caused injury? [THE GOVERNMENT]: That is
correct, Your Honor.”). The government asserts H.H.’s injury is consistent with the “normal
course of AGS” and “all because of the genetics.” Tr. at 15:10–21.
The Vaccine Act focuses on tracing causation to the vaccine. The Federal Circuit has
instructed “special masters are not ‘diagnosing’ vaccine-related injuries[,]” but rather “[t]he 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
child’s injury[.]” Knudsen ex rel. Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 549
(Fed. Cir. 1994) (citing 42 U.S.C. § 300aa-13(a)(1), (b)(1)). A petitioner can allege the vaccine
caused a new injury or the vaccine significantly aggravated an existing injury. Sharpe v. Sec’y of
Health & Hum. Servs., 964 F.3d 1072, 1078 (Fed. Cir. 2020). “[U]ntil science provides us with
better answers, it is not the place of a court to assume that a child with a genetic mutation is
destined to have a severe outcome.” Id. at 1084 n.4. Additionally, the Federal Circuit has
warned against attributing all symptoms or injuries to a single cause. Knudsen, 35 F.3d at 550.
In Knudsen, the Federal Circuit stated,
[p]etitioners need not explain all other symptoms or injuries by reference to
the . . . vaccination, and the issue in vaccine cases is not to diagnose all the injuries
and symptoms of the child in order to ascertain whether the diagnosis is . . . vaccine
or something else. It is entirely plausible, and contemplated by the statute, that [the
vaccine] may cause an [injury] at the same time that . . . something else causes
[other] symptoms or injuries.
Id. In other words, case law allows for recovery of vaccine-caused injuries, whether new or the
result of exacerbating a pre-existing condition. Id.
By mischaracterizing H.H.’s injury as a rare AGS or AGS-like interferonopathy, the
Special Master attributed all of H.H.’s injury symptoms to a genetic disease when H.H.’s
existing genetic injury could have been aggravated by the vaccine. The Special Master noted
“additional research has led those who study [AGS] to recognize that ‘the range of phenotypes
associated with mutations’ of AGS genes ‘is much broader than previously realized[,]’ . . . [and
i]t is important to consider this expanded understanding of the AGS phenotype in analyzing
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H.H.’s presentation.” SM Dec. at 55–56. In other words, the Special Master recognized a
scientific understanding of AGS and AGS-like mutations was ongoing, and the presentation of
AGS was broadening to include a spectrum of symptoms (or lack of symptoms) and severities.
Id. Consequently, an AGS or AGS-like diagnosis “assume[s] that a child with a genetic
mutation is destined to have a severe outcome” even if a portion of the severity or symptoms
could be attributed to vaccine aggravation. See Sharpe, 964 F.3d at 1084 n.4. The broad
characterization of symptoms as an AGS or AGS-like diagnosis effectively eliminated the
possibility of “the October 2013 vaccinations [significantly aggravating] the [t]ype I
[i]nterferonopathy” even though Pentacel may have caused H.H.’s injury at the same time H.H.’s
genetic mutation caused similar symptoms or injuries because the decision does not account for
H.H.’s baseline if he only had an AGS or AGS-like disorder. Mot. for Review Mem. at 14; see
Knudsen, 35 F.3d at 550 (“[T]he issue in vaccine cases is not to diagnose all the injuries and
symptoms of the child in order to ascertain whether that diagnosis is . . . vaccine or something
else.”); see also Sharpe, 964 F.3d at 1087 (“Congress envisioned that children with pre-existing
conditions, such as gene mutations, could potentially recover.”). Accordingly, the Court will
assess Loving prongs four, five, and six to determine if the diagnosis led to an arbitrary and
capricious finding on vaccine aggravation. See Knudsen, 35 F.3d at 550.
VII. The Special Master’s Analysis for Significant Aggravation under Loving
To establish causation, a petitioner can “allege that the vaccine caused the onset of [the]
injuries (an onset claim) or that the vaccine significantly aggravated [a] pre-existing condition (a
significant aggravation claim).” Sharpe v. Sec’y of Health & Hum. Servs., 964 F.3d 1072, 1078
(Fed. Cir. 2020). For an onset claim, a petitioner must satisfy by preponderant evidence the
three-prong Althen analysis. Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed.
Cir. 2005). For a significant aggravation claim, a petitioner must satisfy by preponderant
evidence the Loving six-part test. Loving ex rel. Loving v. Sec’y of Health & Hum. Servs., 86
Fed. Cl. 135, 144 (2009). The last three prongs of Loving are derived from Althen and make up
the “causation in fact” analysis. W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1357
(Fed. Cir. 2013) (“The Loving test combines the first three Whitecotton factors, which establish
significant aggravation, with the Althen factors, which establish causation.”). The Althen/Loving
frameworks are the established vehicles in which to analyze causation in fact. See id. (holding
Loving provides the correct framework for analyzing off-table significant aggravation claims);
see also Althen, 418 F.3d at 1278. In this case, the Special Master found a “physical sign
of . . . type I interferonopathy” prior to H.H.’s Pentacel vaccination. SM Dec. at 72; see supra
Section V.B. Under Locane, the Special Master’s finding eliminated an onset claim and left only
a significant aggravation claim. Locane v. Sec’y of Health & Hum. Servs., 685 F.3d 1375, 1381
(Fed. Cir. 2012) (If “the illness was present before the vaccine was administered, logically, the
vaccine could not have caused the illness.”); see supra Section V.B.
The Special Master analyzed the first three prongs of Loving and found “H.H.’s
deterioration is consistent with the Vaccine Act’s definition of significant aggravation[.]” SM
Dec. at 63. Petitioners objected only to the last three prongs of the Special Master’s Loving
analysis—the three prongs of Althen. Mot. for Review Mem. at 11 (“The [d]ecision . . .
improperly concluded the [p]etitioners did not meet the burden of proof to establish Loving
[p]rongs 4, 5, & 6 . . . .”).
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When the Special Master’s diagnosis inadvertently foreclosed a significant aggravation
claim, the causation analysis may have become arbitrary. See supra Section VI.B. The
government asserts if the diagnosis was incorrect, it was harmless error because “the [S]pecial
[M]aster found that petitioners failed to meet their burden under any of the three Althen prongs,
and a failure to meet their burden under even one is dispositive and fatal to their case.” Resp’t’s
Resp. at 14. If the diagnosis subsumes causation, the Special Master may not have performed a
proper causation analysis under Loving. See Knudsen ex rel. Knudsen v. Sec’y of Health & Hum.
Servs., 35 F.3d 543, 550 (Fed. Cir. 1994) (“[T]he issue in vaccine cases is not to diagnose all the
injuries and symptoms of the child in order to ascertain whether that diagnosis is . . . vaccine or
something else.”); see also supra Section VI.B. Accordingly, the Court must determine whether
the diagnosis caused the Special Master’s analysis of Loving prongs four, five, and six to be
arbitrary and capricious.
A. Petitioners’ Medical Theory Under Loving Prong Four
“Under Loving prong [four], a petitioner need only provide ‘a medical theory causally
connecting [petitioner’s] significantly worsened condition to the vaccination.’” Sharpe, 964 F.3d
at 1083 (quoting Loving, 86 Fed. Cl. at 144). “While it does not require medical or scientific
certainty, [the explanation] must still be ‘sound and reliable.’” Boatmon v. Sec’y of Health &
Hum. Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019) (quoting Knudsen, 35 F.3d at 548–49).
Where medical literature or epidemiological evidence is introduced, it must not be viewed
“through the lens of the laboratorian, but instead from the vantage point of the Vaccine Act’s
preponderant evidence standard[.]” Andreu ex rel. Andreu v. Sec’y of Health & Hum. Servs., 569
F.3d 1367, 1380 (Fed. Cir. 2009).
The Special Master found “[p]etitioners have not presented . . . a reputable explanation in
this case; as such, they have failed to present preponderant evidence in support of Loving prong
four . . . ” SM Dec. at 68. Petitioners’ second objection alleges the Special Master “fail[ed] to
recognize [p]etitioners’ experts’ medically sound theory of causation of injury[.]” Mot. for
Review Mem. at 1. Petitioners assert Dr. Steinman “produced med[ical] literature that supports
his theory that [vaccinations] can cause the production of interferon,” and “experts agree that
overproduction or an excessive amount of interferons can cause the type of injury seen in
[H.H.].” Id. at 16. The government asserts petitioners “provided a wholly speculative theory
that was not supported by the scientific literature[,]” and even if petitioners “had provided
sufficient evidence to establish that Dr. Steinman’s theory was possible, that would not have
been sufficient to meet their burden.” Resp’t’s Resp. at 10.
A special master’s decision is often “based on the credibility of the experts and the
relative persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health & Hum.
Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010). “[I]t is not . . . the role of this court to reweigh the
factual evidence, or to assess whether the special master correctly evaluated the evidence.”
Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 871 (Fed. Cir. 1992). “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.”
Hines ex rel. Sevier v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). A
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special master, however, cannot “cloak the application of an erroneous legal standard in the guise
of a credibility determination, and thereby shield it from appellate review.” Andreu, 569 F.3d at
1379.
Petitioners here had two occasions to provide a reputable medical theory. See SM Dec. at
71 n.28. First, petitioners postulated a now abandoned molecular mimicry theory.8 Id. After the
hearing, and at the suggestion of the Special Master, petitioners retained Dr. Lawrence Steinman,
an expert neurologist. Pet’rs’ Status Rep. of 14 April 2020 at 1. Dr. Steinman submitted an 18-
page report and 4-page reply report “focuse[d] on ‘how the components of the [Pentacel] vaccine
can drive an interferon response.’” SM Dec. at 39 (quoting Steinman Rep. at 9). Dr. Steinman
posited the pertussis toxin and alum found within Pentacel can cause an increase of interferons
directly or through the activation of inflammasomes. Steinman Rep. at 12–13. Where a patient
has a resistance to type I interferons, the activation of inflammasomes causes overproduction of
type I interferons and worsens neuroinflammation. Id. at 14. Additionally, any imbalance of
type I and type II interferons can exacerbate a type I interferonopathy. Id. Dr. McGeady, the
government’s expert who previously submitted a report and testified at the entitlement hearing,
submitted a 3-page rebuttal report. Second McGeady Rep.
The first study petitioners’ expert Dr. Steinman referenced is a 2014 paper about immune
responses to pertussis antigens in infants and toddlers after DTaP vaccination, first authored by
lead researcher Fadugba. Steinman Rep. at 12 (citing Olajumoke Fadugba et al., Immune
Responses to Pertussis Antigens in Infants and Toddlers after Immunization with
Multicomponent Acellular Pertussis Vaccine, 21 CLINICAL AND VACCINE IMMUNOLOGY 12, 1613
(2014), ECF No. 101-12 [hereinafter Fadugba]). Fadugba is not a study of AGS or a study
where the subjects have a pre-existing interferonopathy. Fadugba at 1613–16. Dr. Steinman
reviewed this research to conclude “[p]ertussis toxin induces immune responses to both
gamma-interferon and to type I interferon.” Steinman Rep. at 12. The government’s expert, Dr.
McGeady, did not address the Fabugba research directly in his rebuttal report, and the
government agreed at oral argument Dr. McGeady did not reference it at all. Second McGeady
Rep.; Tr. at 40:3–8. Dr. McGeady, however, “do[es] not question the assertion that component
of Pentacel (and of all vaccines) activate the innate immune system . . . [and the] sequence would
be expected to generate a physiologic amount of type I interferon[s.]” Second McGeady Rep. at
2–3. The Special Master’s decision did not dispute the Fadugba conclusions, agreed with the
study generally, and noted it “stand[s] for the proposition that DTaP vaccination results in an
increase in gamma interferon[.]” SM Dec. at 65. As the study’s results relate to H.H., the
Special Master attempted to distinguish the Fadugba study based on the timing of study
measurements and noted “these [study] levels were not measured until one month after the
booster vaccination.” Id. The Special Master did not explain how the timing of the study was
consequential, and exactitude in study-to-petitioner injury timing is not part of the medical
theory requirement under Loving prong four. See Sharpe, 964 F.3d at 1083 (“Under Loving
prong [four], a petitioner need only provide a medical theory causally connecting [petitioner’s]
significantly worsened condition to the vaccination.” (internal quotations omitted)); SM Dec. at
65. At oral argument, when pressed on the importance of the Fadugba research as it relates to
8 At the conclusion of the entitlement hearing, the Special Master “informed [p]etitioners’ counsel that the record, as
it currently stood, did not enable [p]etitioners to meet their burden” and “suggested . . . retaining an additional expert
neurologist[.]” SM Dec. at 4 n.7.
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Loving prong four, the government also agreed Fadugba “show[s] there is an increase” as Dr.
Steinman concludes. Tr. at 39:10–23 (“THE COURT: Does the government agree with the
Special Master’s finding that Fadugba supports Dr. Steinman’s theory? [THE
GOVERNMENT]: . . . [Y]es, it does show that there is an increase[.]”). Petitioners must prove
their medical theory “by a preponderance of the evidence[,]” and petitioners offered Fadugba to
support their medical theory. Loving, 86 Fed. Cl. at 143–44. While not conclusive by itself, the
Special Master’s—and the government’s—agreement Fadugba supports the “proposition that
DTaP vaccination results in an increase of gamma interferon” carries significant weight in favor
of petitioners satisfying their burden to prove “a medical theory causally connecting the
vaccination and the [significant aggravation]” is “more probable than not.” SM Dec. at 65;
Loving, 86 Fed. Cl. at 144 (quoting Althen, 418 F.3d at 1278).
The second study referenced by Dr. Steinman in support of his medical theory is a 2018
study summarizing research about the modulating effect of vaccine antigens on the body’s innate
immune response conducted by lead researcher and author Kooijman. Steinman Rep. at 12
(citing Sietske Koojiman et al., Vaccine antigens modulate the innate response of monocytes to
Al(OH)
3
, PLOS ONE 13:e0197885 (2018), ECF No. 101-13 [hereinafter Kooijman]). The
research was performed with human blood samples whose donors did not have AGS or an
interferonopathy. Kooijman at 2–3. Dr. Steinman utilizes Kooijman to show “DTaP induces
type I interferons” and stimulates an “increased gene expression of [a] type I interferon[.]”
Steinman Rep. at 12 (internal quotations omitted). Dr. McGeady did not directly address
Kooijman or its proposition but indicated he agreed Pentacel “activate[s] the innate immune
system” which in turn “generate[s] a physiologic amount of type I interferon[.]” Second
McGeady Rep. at 2–3; Tr. at 43:2–5 (“THE COURT: You agree Dr. McGeady does not put
forth any rebuttal evidence? [THE GOVERNMENT]: Specifically towards [Kooijman], not in
his supplemental expert report.”). The government agreed at oral argument the article supports
an increase of interferons caused by vaccinations, but the government argued the article has not
“shown that it is a plausible theory” because “it’s incomplete.” Tr. at 43:10–15. Under Loving
prong four, not only is medical literature not required to prove a medical theory, but also a single
piece of medical literature, like Koojiman, is not required to “identif[y] and [prove] specific
biological mechanisms[.]” Knudsen, 35 F.3d at 549 (“[C]ausation can be found in vaccine cases
. . . without detailed medical and scientific exposition on the biological mechanisms. . . . [T]o
require identification and proof of specific biological mechanisms would be inconsistent with the
purpose and nature of the vaccine compensation program.”). The Special Master did not dispute
the findings in Kooijman but quoted Kooijman, stating, “[a]fter 24 hours of stimulation, both
Al(OH)3 and DTaP-stimulated monocytes showed a trend towards increased gene expression of
[a] type I interferon[.]” SM Dec. at 65. Under Loving, petitioner must show a “medical theory
causally connecting the vaccination and the [significant aggravation]” is “more probable than
not.” Loving, 86 Fed. Cl. at 144 (quoting Althen, 418 F.3d at 1278). The Special Master’s
agreement with Kooijman’s proposition DTaP induces type I interferons adds further support,
along with Fadugba, in favor of petitioners satisfying their burden to prove a “medical theory
causally connecting the vaccination and the [significant aggravation]” is “more probable than
not.” See SM Dec. at 65 (citing Kooijman); Loving, 86 Fed. Cl. at 144 (quoting Althen, 418 F.3d
at 1278).
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A 2008 study summarizing the research regarding inflammasome activation by alum
conducted by lead researcher and author Li is the third piece of medical literature explained and
applied by Dr. Steinman. Steinman Rep. at 12 (citing Hanfen Li et al., Cutting Edge:
Inflammasome Activation by Alum and Alum’s Adjuvant Effect Are Mediated by NLRP3, 181 J.
IMMUNOLOGY 17, 18 (2008), ECF No. 101-14 [hereinafter Li]). Li discusses a study done with
mice and human macrophage cell lines without AGS or an interferonopathy given a tetanus
toxoid and diphtheria toxoid vaccine comprising alum. Li at 18. Dr. Steinman discussed Li to
conclude “alum in Pentacel . . . activat[es] the[] NALRP3 inflammasome, which plays a key role
in inducing interferonopathies[.]” Steinman Rep. at 12. Specifically, Dr. Steinman used Li to
show “[i]nflammation induced by innate immunity influences the development of T
cell-mediated autoimmunity” which in turn creates an increase of interferons. Id. (internal
quotations omitted). Dr. McGeady did not directly address whether the “alum in Pentacel . . .
plays a key role in inducing interferonopathies,” and at oral argument, the government was
unable to answer whether Dr. McGeady specifically rebutted the Li study. See Steinman Rep. at
12; Tr. at 45:1–6. The government at oral argument agreed Li supports the notion “vaccines may
activate . . . the inflammasome[.]” Tr. at 45:1–6. The Special Master quoted Li for the
proposition “inflammasome activation by alum and alum’s adjuvanticity are mediated by NLRP3
and ASC.” SM Dec. at 65 (citing Li). The Special Master continued, “[i]n conclu[sion], [Li]
noted that . . . NLRP3 [is] an important player in alum’s adjuvant effect and [Li’s results]
indicate an important role for the inflammasome in the development of adaptive immunity.” Id.
at 65–66 (internal quotations omitted). The Special Master’s decision did not dispute Li’s
conclusions. Id. at 65. A petitioner must prove a “medical theory causally connecting the
vaccination and the [significant aggravation]” by preponderant evidence. Loving, 86 Fed. Cl. at
144 (quoting Althen, 418 F.3d at 1278). Li and the Special Master’s adoption of Li’s conclusion
identifying “NLRP3 as an important player in alum’s adjuvant effect . . . and [the] role for the
inflammasome in the development of adaptive immunity [(the body’s immune response)]” weigh
in favor of petitioners satisfying their requirement to prove by preponderant evidence “a medical
theory causally connecting the vaccination and the [significant aggravation.]” SM Dec. at 65
(citing Li); Loving, 86 Fed. Cl. at 144 (quoting Althen, 418 F.3d at 1278).
The fourth and fifth papers, both co-authored and referenced by Dr. Steinman, are the
2016 Inoue paper, summarizing studies researching the molecular and cellular mechanisms of
the NLRP3 inflammasome pathway performed by lead researcher and primary author Inoue, and
the 2013 Axtell paper, a review article summarizing various research studies regarding type I
interferons in autoimmune diseases with primary author Axtell. Steinman Rep. at 12 (citing
Makato Inoue et al., Mechanisms to develop inflammasome-independent and
interferon-β-resistant EAE with neuronal damages, 19 NAT. NEUROSCI. 12, 1599–1609 (2016),
ECF No. 101-15 [hereinafter Inoue]; Robert Axtell et al., Type I Interferons: Beneficial in Th1
and Detrimental in Th17 Autoimmunity, 44 CLINICAL REV. ALLERGY IMMUNOLOGY 2, 114–20
(2013), ECF No. 101-16 [hereinafter Axtell]). The Inoue research was done is in the context of
experimental autoimmune encephalitis (“EAE”) in mice and multiple sclerosis (“MS”) in human
blood cells. Inoue at 2, 7. Axtell reviewed interferon type I activity in a variety of autoimmune
diseases including MS. Axtell at 1. Dr. Steinman reviewed Inoue to show “there are interferon
responsive neuroinflammatory conditions[.]” Steinman Rep. at 12. Dr. Steinman discussed
Axtell to demonstrate “there [is a] resistance to the therapeutic effect of type I interferon in
neuroinflammation, [and] in some conditions interferon can worsen the neuroinflammation[.]”
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Id. In the case of H.H., whom the Special Master diagnosed with an AGS or AGS-like
neuroinflammatory disorder, the immunization would have “worsened neuroinflammation in
H[.]H.” Steinman Reply at 3. The government was unable to “point the Court to . . . specific
references” to either article in Dr. McGeady’s rebuttal or evidence that Dr. McGeady addressed
the studies directly at all. Tr. at 54:19–55:21 (“THE COURT: [I]s that even possible to
distinguish, him addressing [Inoue or Axtell]? [THE GOVERNMENT]: I could not point the
Court to . . . specific references. I would say he just addresses their overall point.”). The Special
Master recognized Dr. Steinman used Inoue and Axtell for the “proposition that inflammasome
activation can worsen neuroinflammation” but attempted to distinguish Inoue and Axtell
because they “discuss[] [EAE] and [MS.]” SM Dec. at 66. Dr. McGeady, however, does not
discount the study based on the EAE or MS distinction. Tr. 49:8–16 (the government stating Dr.
McGeady had “no specific mention” of Inoue). Petitioners are merely required to “provide a
medical theory causally connecting [petitioner’s] significantly worsened condition to the
vaccination.” Sharpe, 964 F.3d at 1083 (internal quotations omitted). Petitioners provided Inoue
and Axell in support of their medical theory, and the Special Master agreed Inoue and Axtell
show “inflammasome activation can worsen neuroinflammation[,]” albeit in EAE and MS,
which adds additional support to petitioners’ requirement to show “a medical theory causally
connecting [H.H.’s] significantly worsened condition to the vaccination” through preponderant
evidence. See id.; SM Dec. at 66.
The sixth piece of medical literature co-authored and utilized by Dr. Steinman was the
2013 Naves study summarizing research on the roles of type I and type II interferons in
modulating autoimmune neuroinflammation. Steinman Rep. at 14 (citing Rodrigo Naves et al.,
The Interdependent, Overlapping, and Differential Roles of Type I and II IFNs in the
Pathogenesis of Experimental Autoimmune Encephalomyelitis, 191 J IMMUNOL., 2967–77
(2013), ECF No. 101-17 [hereinafter Naves]). Dr. Steinman reviewed Naves to “emphasize[] the
intricate interplay of type [I] and type [II] interferons on neuroinflammation[.]” Id. In H.H.’s
case, he “has a continued propensity to overproduce type [I] interferon[s],” so additional
imbalance of interferons can exacerbate or lead to enhanced severity. Id. Dr. McGeady does not
address Naves directly. See Second McGeady Rep. The Special Master stated Naves
“support[s] the principle that imbalance in interferon signaling aggravates disease in EAE” but
found because EAE is the animal model for MS and not interferonopathy, “[i]t is difficult to see
how this point is persuasive[.]” SM Dec. at 67. Under Loving, petitioners were required to
present evidence of a “medical theory causally connecting the vaccination and the [significant
aggravation.]” Loving, 86 Fed. Cl. at 144 (quoting Althen, 418 F.3d at 1278). Petitioners
provided Naves to support a “medical theory causally connecting the vaccination and the
[significant aggravation]” and the Special Master agreed Naves “support[s] the principle that
imbalance in interferon signaling aggravates disease in EAE[,]” another type of
neuroinflammatory disease like H.H.’s neuroinflammatory interferonopathy. See Loving, 86
Fed. Cl. at 144 (quoting Althen, 418 F.3d at 1278); SM Dec. at 67. While the Special Master
found the study did not apply, petitioners’ use of Naves in combination with other medical
literature further supports a reliable medical theory and petitioners satisfying their “more
probable than not” burden. See Loving, 86 Fed. Cl. at 144.
The seventh piece of medical literature referenced by Dr. Steinman was the 2016 Rodero
& Crow review article surveying previously published research on type I interferonopathies.
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Steinman Rep. at 14 (citing Mathieu Rodero & Yanick Crow, Type I interferon-mediated
monogenic autoinflammation: The type I interferonopathies, a conceptual overview, 213 J.
EXPERIMENTAL MED. 12, 2527–38 (2016), ECF No. 101-18 [hereinafter Rodero & Crow]). Dr.
Steinman reviewed Rodero & Crow for the “general principle that an antecedent infection or
even a vaccination could be the ‘stressor’ that triggered the interferonopathy[.]” Id. In his expert
reply, Dr. Steinman acknowledged “H.H. does not have an ADAR-1 mutation, but the general
principle [of the study] . . . provides a foundation for impugning the immunizations in October
2013.” Steinman Reply at 2. At oral argument, the government asserted Rodero & Crow was
not persuasive because it related to the ADAR subset of AGS. Tr. at 64:11–22 (the government
stating Rodero & Crow was not persuasive “[b]ecause H.H. doesn’t have . . . ADAR, so it
wouldn’t be applicable.”). Dr. McGeady, however, does not make this point in his rebuttal. See
Second McGeady Rep. In fact, Dr. McGeady does not reference the Rodero & Crow article at
all.9 Id. The Special Master concluded Rodero & Crow “suggests that vaccination as a potential
trigger for a type I interferonopathy involving an ADAR-1 mutation could be an area of study at
some point in the future” but “does not provide persuasive evidence . . . in this case.” SM Dec.
at 67.
The Special Master discredited Naves, Inoue, Axtell, and Rodero & Crow because the
research did not directly study interferonopathies or AGS. Id. at 67–68 (finding Naves, Inoue,
Axtell, and Rodero & Crow unpersuasive because the studies were not directly analogous). The
Federal Circuit has held “‘[i]n a field bereft of complete and direct proof of how vaccine affect
the human body,’ a paucity of medical literature supporting a particular theory of causation
cannot serve as a bar to recovery.” Andreu, 569 F.3d at 1379 (citing Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 593 (1993) (“[I]n some instances well-grounded but innovative
theories will not have been published . . . . Some propositions, moreover, are too particular, too
new, or of too limited interest to be published.”)). Medical literature is not required to prove a
“medical theory causally connecting the vaccination and the [significant aggravation,]” so “to
require identification and [to prove a] specific biological mechanism[] would be inconsistent
with the purpose and nature of the vaccine compensation program.” Loving, 86 Fed. Cl. at 144
(quoting Althen, 418 F.3d at 1278); Knudsen, 35 F.3d at 549. The Special Master acknowledged
“there appears to be no published medical literature (to include case reports) indicating the flu,
pneumonia, or Pentacel vaccines can cause or exacerbate a type I interferonopathy.” SM Dec. at
67. “Dr. McGeady testified that there is also no literature suggesting the live viruses associated
with these vaccines could cause one of these conditions.” Id. (internal citation omitted).
Additionally, during oral argument, the parties were not aware of any other vaccine cases with a
Pentacel or pertussis injury with similar symptoms. Tr. at 62:20–25 (“THE COURT: Are you
aware of any other vaccine cases with a Pentacel or pertussis injury with similar symptoms?
[PETITIONERS]: No, Your Honor. . . . [THE GOVERNMENT]: I am not.”). The Court
makes no finding on the assessment of the medical studies, and given the rare nature of AGS and
H.H.’s condition, the Court notes research on the effect of vaccines on interferonopathies or
AGS may be non-existent, and therefore analogous research may be properly persuasive in this
9 At oral argument, the government asserted Dr. McGeady referenced the Rodero & Crow article on page two of his
expert report. Tr. at 69:8–9. The “Crow” references, however, refer to two other articles authored by Crow
published in 2015 and 2018. See Crow & Manel at 429; Yanick Crow et al., A Brief Historical Perspective on the
Pathological Consequences of Excessive Type 1 Interferon Exposure In vivo, 38 J. CLIN. IMMUNOL. 694 (2018),
ECF No. 71-8.
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case. See Andreu, 569 F.3d at 1379 (“[I]n a field bereft of complete and direct proof of how
vaccine affect the human body, a paucity of medical literature supporting a particular theory of
causation cannot serve as a bar to recovery.” (quoting Althen, 418 F.3d at 1280) (internal
quotations omitted)). The Court leaves the question to the Special Master on remand. See id.;
Knudsen, 35 F.3d at 551 (remanding for the Special Master to reassess evidence).
After reviewing Dr. Steinman’s theory, the Special Master credited Dr. McGeady and
found petitioners did not meet their burden of proof. SM Dec. at 66–68. Dr. McGeady in his
rebuttal report, however, did not directly address any of the medical literature put forth by Dr.
Steinman. See Second McGeady Rep. Dr. McGeady—and the Special Master relying on Dr.
McGeady—found Dr. Steinman’s theory unpersuasive for two reasons: (1) “[p]etitioners’ theory
does not explain how vaccination caused H.H.’s innate immune response to be so ‘massively
exaggerated as demonstrated by the elevated levels of interferon alpha in the blood and
cerebrospinal fluid”; and (2) “Dr. Steinman did not explain how H.H.’s interferon alpha levels
remained elevated for years after vaccination.” SM Dec. at 66. The Special Master stated the
literature cited by Dr. Steinman “does not suggest that [the increased interferon levels] are
excessive. . . . Neither [Fadugba nor Kooijman] suggests that interferon production post-DTaP
vaccination is anything resembling H.H.’s interferon alpha levels[.]” Id. Further, the Special
Master found the theory does not explain H.H.’s persistently elevated levels. Id. at 67
(“Petitioners’ theory is equally unpersuasive in preponderantly establishing that vaccination can
cause persistently elevated levels of interferon alpha.”).
The Federal Circuit summarized in Sharpe, a case alleging significant aggravation of
petitioner’s pre-existing encephalopathy, “[p]etitioner [is] required to present a medically
plausible theory demonstrating that a vaccine ‘can’ cause a significant worsening of [the
disorder].” Sharpe, 964 F.3d at 1083. In other words, a petitioner at Loving prong four is not
required to show injury did happen—“did cause” is the subject of prong five—but petitioners
must explain how Pentacel could exacerbate H.H.’s pre-existing AGS or AGS-like disorder,
resulting in greater injury than what H.H.’s baseline was with only AGS. See id.; Loving, 86
Fed. Cl. at 144. The Special Master found “[w]hile vaccines may activate the inflammasome,
Dr. Steinman has not presented a link between such activation and the development of AGS or a
similar type I interferonopathy.” SM Dec. at 66. Petitioners disagreed and pointed specifically
to the Inoue and Axtell studies as support for the link between activation and the development of
AGS. Tr. at 45:23–46:14 (“[PETITIONERS]: The link is that Pentacel can trigger type I and
type II interferon response by triggering the NLRP3 inflammasomes . . . [which] causes an
overproduction of interferon, and that can be explained. . . . [by] a resistance in some forms of
neuroinflammation to the normal beneficial response of interferons. . . . [U]nchecked interferon
production drives neuroinflammation, which then can cause severe central nervous system
damage.”), 46:19–24 (petitioners agreeing Dr. Steinman showed a link between inflammasome
activation and a development of AGS or similar type I interferonopathy). The question here is
not whether there was “activation and . . . development of AGS or a similar type I
interferonopathy” as the Special Master suggested but rather if the Pentacel vaccine could have
caused additional injury on top of H.H.’s pre-existing type I interferonopathy. See Sharpe, 964
F.3d at 1083; SM Dec. at 66. The Special Master also rejects Dr. Steinman’s medical theory
because of what actually happened—persistent, elevated levels—in H.H.’s case; this reasoning
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confuses the prong-four requirement with the prong-five requirement. See Sharpe, 964 F.3d at
1083.
Petitioners’ expert, Dr. Steinman, did provide a theory supported by medical research
explaining the Pentacel vaccine can cause an increase in interferons as a normal innate immune
response and through activation of inflammasomes, which “would be additive to what is
already . . . ongoing in [H.H.].” Steinman Reply at 2. For H.H., “an underlying AGS
condition”—a neuroinflammation disease which by its nature already increases interferon
production—would have worsened with the administration of the vaccination. Id. at 3. Dr.
Steinman utilized Fadugba and Kooijman as support in explaining the pertussis toxin in the
Pentacel vaccine could cause an increase in interferons. Steinman Rep. at 12. The Special
Master attempted to distinguish Fadugba due to the timing of measurements but did not explain
how timing was consequential or why an exactitude in study-to-petitioner injury timing is
required under Loving. See Sharpe, 964 F.3d at 1083 (“Under Loving prong [four], petitioners
need only provide a medical theory causally connecting petitioner’s significantly worsened
condition to the vaccination.” (internal quotations omitted)); SM Dec. at 65. Accordingly, the
Special Master’s finding on timing was arbitrary and capricious and therefore error. Dr.
Steinman reviewed Li to show alum, a component of Pentacel, can trigger a type I or type II
interferon response or increase by triggering the NLRP3 inflammasomes and the activation of
inflammasomes. Steinman Rep. at 12. Dr. Steinman reviewed Inoue and Axtell to show
resistance to type I interferons and inflammasome activation can worsen neuroinflammation, like
an AGS or AGS-like disorder. Id. Dr. Steinman utilized Naves to support the notion any
imbalance of type I and type II interferons can exacerbate a type I interferonopathy, a
pre-existing condition H.H. was purported to have. Id. at 14. Lastly, Dr. Steinman reviewed
Rodero & Crow to support the proposition of a vaccination triggering an interferonopathy. Id.
While one piece of medical literature by itself does not necessarily establish a reliable medical
theory, the principles supported by the research studies discussed by Dr. Steinman—and the
Special Master’s general agreement with the research studies’ propositions—cumulatively carry
significant weight in favor of petitioners satisfying their burden to prove “a medical theory
causally connecting the vaccination and the [significant aggravation]” that is “more probable
than not.” See Sharpe, 964 F.3d at 1083 (“Under Loving prong [four], a petitioner need only
provide a “medical theory causally connecting [petitioner’s] significantly worsened condition to
the vaccination.’” (emphasis added)).
The arbitrary and capricious standard “is a highly deferential standard of review[:] [i]f
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.” Hines, 940 F.2d at 1528. Here, the Special Master agreed “the literature cited by
Dr. Steinman does demonstrate that vaccination causes the production of some amount of
interferon” yet did not find petitioners met their burden to prove their “medical theory causally
connecting the vaccination and the [significant aggravation]” is “more probable than not.” SM
Dec. at 66, 68; see Sharpe, 964 F.3d at 1083. Dr. Steinman opined “if there was an underlying
AGS condition in play in H[.]H[.], . . . the immunization would have worsened
neuroinflammation in H[.]H.” Steinman Reply at 3. As discussed supra, Dr. Steinman’s
medical theory cited seven related research studies supporting his expert conclusions. Steinman
Rep. at 12–14. While the Special Master concluded petitioners did not prove a medical theory
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for significant aggravation, the analysis did not address H.H.’s pre-existing condition or what
H.H.’s normal AGS baseline would be when the Special Master generally discredited Dr.
Steinman’s theory as not suggesting “anything resembling H.H.’s interferon alpha levels” or the
“persistently elevated levels of interferon alpha”—when some degree of persistent elevated
interferon level is a characteristic of a baseline AGS or AGS-like disorder. SM Dec. at 66–67.
Disregarding H.H.’s pre-existing condition when analyzing whether Pentacel could worsen
H.H.’s condition and discarding Dr. Steinman’s theory positing Pentacel “would have worsened
neuroinflammation” is error. 10 Sharpe, 964 F.3d at 1086 (“A significant aggravation claim, by
definition, requires a petitioner to have a pre-existing injury.” (quoting Loving, 86 Fed. Cl. at
144)), 1080 (“[A] petitioner must establish . . . ‘a medical theory causally connecting such a
significantly worsened condition to the vaccination[.]’”) (quoting Loving, 86 Fed. Cl. at 144));
Steinman Reply at 3 (“[T]he immunization would have worsened neuroinflammation in
H[.]H.”); SM Dec. at 53–55, 57–58, 66–67 (concluding petitioners “failed to present
preponderant evidence in support of Loving prong four” because petitioners could not explain
persistent elevated levels—a symptom present in AGS). This consideration is especially
pronounced because the government agreed their expert Dr. McGeady did not address any of the
research Dr. Steinman’s opinion extensively reviewed supporting his medical theory. Tr. at
40:3–8 (“THE COURT: Did your expert, Dr. McGeady, cite to any medical studies that rebut
Fadugba? [THE GOVERNMENT]: Not for the proposition that there is an increase[.]”), 43:2–5
(“THE COURT: You agree Dr. McGeady does not put forth any rebuttal evidence [to
Kooijman]? [THE GOVERNMENT]: Specifically towards [Kooijman], not in his supplemental
expert report.”), 54:19–55:21 (“THE COURT: [I]s that even possible to distinguish, him
addressing [Inoue or Axtell]? [THE GOVERNMENT]: I could not point the Court to . . .
specific references. I would say he just addresses their overall point.”), 55:18–21 (“[THE
COURT]: Do you agree that Dr. McGeady does not address [Axtell] directly? [THE
GOVERNMENT]: I agree he does not address Axtell directly.”); see Tr. at 45:1–6 (the
government unable to answer where Li is rebutted). The Court finds the Special Master’s
conclusion regarding Loving prong four is accordingly unsupported in discussion with the
medical literature, was not evaluated in light of a significant aggravation claim, and is therefore
arbitrary and capricious. See Saunders v. Sec’y of Health & Hum. Servs., 25 F.3d 1031, 1033
(Fed. Cir. 1994) (“Fact findings are reviewed . . . 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.”); see also Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d
1373, 1380 (Fed. Cir. 2015) (“Where, as here, a special master . . . makes factual inferences
wholly unsupported by the record, the Court of Federal Claims is not only authorized, but
10 The Special Master’s decision either does not contemplate H.H.’s pre-existing condition and already elevated
interferons or attributes the full severity of his injury to an unidentified genetic mutation, foreclosing a significant
aggravation claim. SM Dec. at 55 (“[T]here was no explanation for H.H.’s elevated neopterin and interferon alpha
levels other than AGS.”), 56 (adopting an “expanded understanding of the AGS phenotype” to include all of H.H.’s
current symptoms as part of his AGS or AGS-like disorder), 58 (crediting the opinions of Drs. McGeady and
Barañano stating there is “variability in AGS presentation” and “normal development before the onset of symptoms
in AGS . . . should not be considered as a finding implicating the vaccines”), 60 (attributing “H.H.’s rapid and
relentless decline” to the start of the disease process rather than a potential vaccine aggravation), 66 (discrediting Dr.
Steinman’s theory because it did explain excessive interferon levels, a symptom characteristic of AGS, when H.H.’s
interferon alpha levels were “the highest neopterin levels [one provider had] ever seen”), 67 (discrediting Dr.
Steinman’s theory because it did not address “persistently elevated levels[,]” a symptom characteristic of AGS and a
component of H.H.’s condition).
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obliged, to set aside the [S]pecial [M]aster’s findings of fact and conclusions of law.”). The
Court leaves the ultimate conclusion to the Special Master on remand regarding whether H.H.’s
pre-existing condition can be aggravated as explained by Dr. Steinman’s medical theory on “how
the components of the [Pentacel] vaccine can drive an interferon response” leading to
“worsening neuroinflammation in H[.]H.” and whether this theory satisfies the Loving standard.
Steinman Rep. at 9; Steinman Reply at 3; see Sharpe, 964 F.3d at 1083.
B. Logical Sequence of Cause and Effect under Loving Prong Five
Under Loving prong five, a petitioner must show by preponderant evidence “a logical
sequence of cause and effect showing that the vaccination was the reason for the significant
aggravation.” Loving, 86 Fed. Cl. at 144. For satisfying the fifth Loving prong, “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.’” Capizzano v. Sec’y of Health & Hum. Servs., 440
F.3d 1317, 1326 (Fed. Cir. 2006) (quoting Althen, 418 F.3d at 1280).
The Special Master found “[p]etitioners have not presented evidence demonstrating that
H.H. experienced a vaccine-associated significant aggravation of his interferonopathy, signs of
which had already begun to manifest by the time he received his Pentacel vaccine. They do not
point to any testing or clinical signs that suggest vaccine causation.” SM Dec. at 68. The
Special Master continued, “[petitioners] do not point to any testing or clinical signs that suggest
vaccine causation. Instead, they assert that because H.H.’s deterioration occurred close-in-time
to his vaccinations, and because no alternate explanation exists, then the vaccines ‘did cause’ a
significant aggravation of H.H.’s condition.” Id. The Special Master also found the elevated
transaminase levels and lack of a severe local reaction are not supported by petitioners’ causation
theory. Id. (“[T]he records contain evidence supporting the opposite position—that the vaccines
did not affect his condition.”).
The Special Master further discredited “several of H.H.’s treating doctors [who] opined
that the vaccines he received caused his condition.” Id. at 69. For instance, the Special Master
discredited Dr. Hollis, H.H.’s treating physician, who concluded H.H.’s “rapid decline can be
attributed to receiving the vaccinations on October 17, 2013 and October 23, 2013,” because
“[s]he did not articulate a theory of causation.” Id. Additionally, the Special Master discredited
Dr. Marks, H.H.’s treating neurologist, who opined the vaccines H.H. received caused his
condition, because his theory of causation—a theory of molecular mimicry which was
abandoned and replaced by Dr. Steinman’s theory—was unpersuasive. Id. 69–71 (“Dr. Marks’
inability to persuasively articulate a theory of causation caused me to afford his opinion less
weight.”).
Petitioners allege in their third objection the Special Master “devalued the expert opinion
of petitioners’ [sic] expert” who “provided evidence sufficient to satisfy [p]rongs 5 and 6 of
Loving when discussing whether the Pentacel vaccination significantly aggravated H.H.’s injury,
which would also satisfy Althen.” Mot. for Review Mem. at 18. Petitioners argue the Special
Master’s suggestion all symptoms in H.H.’s medical record should be explained by the causation
theory is incorrect. Tr. 80:2–21. Petitioners explained they are “not seeking to prove what
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raised his transaminases . . . . [They] have put forth a . . . medical theory that the vaccination
caused an AGS-like interferonopathy and damage.” Id. at 80:13–21. The government argues the
mere showing of a proximate temporal relationship between the vaccine and injury is insufficient
to satisfy Loving prong five. Resp’t’s Resp. at 11 (citing Moberly, 592 F.3d at 1323). The
government further argues there are symptoms Dr. Steinman’s theory does not explain. Tr. at
81:7–12 (“[THE GOVERNMENT]: [T]hey haven’t shown that there was a vaccine reaction
after the Pentacel to fit in Dr. Steinman’s theory. [T]he liver enzymes . . . there’s nothing about
petitioners’ theory that would explain that.”).
The Special Master’s underlying assumption—“H.H.’s presentation” can be attributed to
an “expanded understanding of the AGS phenotype”—devalued evidence supporting significant
aggravation. SM Dec. at 56; see supra Section VI.B. The Special Master found “petitioners
have not presented evidence demonstrating that H.H. experienced a vaccine-associated
significant aggravation of his interferonopathy, signs of which had already begun to manifest by
the time he received his Pentacel vaccine.” SM Dec. at 68. In Sharpe, a case with a pre-existing
condition caused by a genetic mutation, there was a similar assumption, and the special master
found petitioner failed to meet Loving prong five “because, in part, ‘it is quite likely that [the
injury] in fact began prior to vaccination.’” Sharpe, 964 F.3d at 1086. The Federal Circuit
rejected this reasoning stating, “[a] significant aggravation claim, by definition, requires a
petitioner to have a pre-existing injury. . . . Thus, that [petitioner] experienced some [injury]
before receiving her vaccination should have no negative effect on [p]etitioner’s case.” Id. The
government’s experts, Drs. McGeady and Barañano, whom the Special Master credits, both
opined “there is variability in AGS presentation” including variety of symptoms (or lack thereof)
and severity, but the Special Master’s decision does not contemplate a mild case of AGS with the
vaccine worsening the disorder because the Special Master attributes all injury to the underlying
genetic mutation. SM Dec. 58 (“Both Dr. McGeady and Dr. Barañano opined that there is
variability in AGS presentation . . . .”), 68 (finding no signs of significant aggravation because
signs “had already begun to manifest by the time [H.H.] received his Pentacel vaccine”).
Characterizing H.H.’s injury as AGS or AGS-like and attributing all symptoms of an “expanded
understanding of the AGS phenotype” to a “severe outcome” because of his genetic mutation
caused the Special Master’s finding on Loving prong five to be arbitrary and capricious because
it ignored vaccine aggravation. SM Dec. at 58; see Knudsen, 35 F.3d at 550; Sharpe, 964 F.3d at
1086.
In the prong-four analysis, the Special Master rejected Dr. Steinman’s theory because it
does not explain “massively exaggerated” response or how levels “remained elevated for years
after vaccination.” SM Dec. at 66. While a pre-existing condition “should have no negative
effect on the petitioners’ case,” the pre-existing condition cannot be completely ignored as the
severity and symptoms of a purely genetic disorder is instructive in determining if a vaccine
aggravated the pre-existing condition. See Knudsen, 35 F.3d at 550; Sharpe, 964 F.3d at 1086.
Here, “a significant aggravation claim, by definition, requires a pre-existing condition,” and the
Special Master ignored the fact “persistent elevation of H.H.’s neopterin levels” and “elevated
levels of [interferon]-alpha” is diagnostic for AGS, the disorder the Special Master found H.H. to
have. SM Dec. at 53–55, 57, 68–69; see Sharpe, 964 F.3d at 1086; supra Section VI.B. The
Court finds this to be erroneous because the Special Master ignored the possibility of vaccine
aggravation. See Knudsen, 35 F.3d at 550; Sharpe, 964 F.3d at 1086.
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When the Special Master found the medical records failed to support a
vaccine-aggravated injury, the Special Master pointed to the lack of a local reaction and elevated
transaminases as evidence against a vaccine aggravated injury. SM Dec. at 69 (“Petitioners have
not explained how this finding fits into their causation theory. Dr. McGeady opined that there
was no medical literature supporting such a connection.”). A petitioner “need not explain other
symptoms” associated with the pre-existing condition but rather a petitioner must prove “the
vaccination caused his significant aggravation.” Id.; Knudsen, 35 F.3d at 550; Loving, 86 Fed.
Cl. at 144. In Knudsen, a case reviewing whether a vaccine or a viral infection caused the
petitioner’s injury, the Federal Circuit held “petitioners need not explain all other symptoms or
injuries by reference to the . . . vaccination, and the issue in vaccine cases is not to diagnose all
the injuries and symptoms of the child in order to ascertain whether the diagnosis is [vaccine] or
something else.” Knudsen, 35 F.3d at 550. By requiring petitioners to explain all symptoms (or
lack thereof), the Special Master ignored the crux of a significant aggravation claim—“a
significant aggravation claim, by definition, requires a petitioner to have a pre-existing injury,”
and other symptoms could be attributed to the pre-existing condition, not the vaccine-aggravated
injury. See Sharpe, 964 F.3d at 1086. While the Special Master required petitioners’ medical
theory to account for all symptoms, the Vaccine Act does not impose such a burden but only
requires showing the vaccination “caused significant aggravation,” and accordingly the Court
finds this to be error. SM Dec. at 68–69; see Knudsen, 35 F.3d at 550 (“[P]etitioners need not
explain all other symptoms or injuries by reference to the . . . vaccination, and the issue in
vaccine cases is not to diagnose all the injuries and symptoms of the child in order to ascertain
whether the diagnosis is [vaccine] or something else.”); Loving, 86 Fed. Cl. at 144 (holding a
petitioner must show “a logical sequence of cause and effect showing that the vaccination was
the reason for the significant aggravation”).
Evidence for Loving prongs four and five often overlap. Knudsen, 35 F.3d at 548 (“This
logical sequence of cause and effect must be supported by a sound and reliable medical or
scientific theory.” (internal quotations omitted)); Moriarty v. Sec’y of Health & Hum. Servs., 844
F.3d 1322 (Fed. Cir. 2016) (“There is ‘no reason why evidence used to satisfy one of the [Althen]
prongs cannot overlap to satisfy another prong.’” (quoting Capizzano, 440 F.3d at 1326)). The
Federal Circuit has suggested “in certain cases, a petitioner can prove a logical sequence of cause
and effect between a vaccination and the injury . . . with a physician’s opinion to that effect
where the petitioner has proved that the vaccination can cause the injury . . . and that the
vaccination and injury have a close temporal proximity[.]” Sharpe, 964 F.3d at 1086 n.5 (citing
Moriarty, 844 F.3d at 1333 (emphasis added)). The Special Master dismissed the physicians’
opinions concerning whether the vaccine caused H.H.’s injury because they “could not articulate
a medical theory.” SM Dec. at 69 (“[Dr. Hollis] did not articulate a theory of causation”), 71
(“Dr. Marks’ inability to persuasively articulate a theory of causation caused me to afford his
opinion less weight.”). The replacement of the theory after the entitlement hearing, however,
should not devalue the treating physicians’ opinion of H.H.’s injury being aggravated by the
vaccine because prong five does not require a treating physician to opine on a medical theory to
find their testimony persuasive—only prong four requires opinion on a medical theory. See
Andreu, 569 F.3d at 1375 (“[T]reating 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.”); Loving, 86 Fed. Cl. at 144 (holding a petitioner must show “a logical
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sequence of cause and effect showing that the vaccination was the reason for the significant
aggravation”); Pet’rs’ Ex. 66 at 3, ECF No. 43–3 (Dr. Hollis Affidavit) (“It is my opinion that
H.H.’s severe and rapid developmental regression is unusual for a previously healthy child.
Many diagnoses have been evaluated and ruled out . . . . It seems to me that his rapid decline can
be attributed to receiving the vaccinations on October 17, 2013 and October 23, 2013.”); Pet’rs’
Ex. 67 at 3–4, ECF No. 43–4 (Dr. Marks Affidavit) (“It is my opinion that it was quite unusual
for a previously asymptomatic patient to develop such severe and rapidly progressing dystonia
with encephalopathy at this age. . . . I have concluded that H.H.’s exposure to the fifteen (15)
month vaccines was within a reasonable medical probability, the most likely trigger for him to
develop rapidly progressing dystonia with encephalopathy to this degree.”). Loving prong five is
“supported” by Loving prong four, and the Court finds the Special Master’s analysis of Loving
prong four to be arbitrary and capricious. See Knudsen, 35 F.3d at 548 (“This logical sequence
of cause and effect must be supported by a sound and reliable medical or scientific theory.”);
supra Section VII.A. As the record contains evidence of the treating physicians opining H.H.’s
injuries were aggravated by the vaccinations, the Special Master’s Loving prong five is not
supported by the record, and the Court must remand the case. Dr. Hollis Affidavit at 3; Dr.
Marks Affidavit at 3–4; see Paluck, 786 F.3d at 1380 (“Where, as here, a special master . . .
makes factual inferences wholly unsupported by the record, the Court of Federal Claims is not
only authorized, but obliged, to set aside the [S]pecial [M]aster’s findings of fact and conclusions
of law.”). The Court makes no finding on whether logical sequence is proven and leaves open
the question of whether Loving prong five is met in light of Dr. Steinman’s report on significant
aggravation to the Special Master on remand. See Sharpe, 964 F.3d at 1383; Knudsen, 35 F.3d at
548.
C. Proximate-Temporal Relationship under Loving Prong Six
Prong six of the Loving test requires “a showing of a proximate temporal relationship
between the vaccination and the significant aggravation.” Loving, 86 Fed. Cl. at 144. “[T]he
proximate temporal relationship prong requires preponderant proof that the onset of symptoms
occurred within a timeframe for which, given the medical understanding of the disorder’s
etiology, it is medically acceptable to infer causation-in-fact.” de Bazan v. Sec’y of Health &
Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008).
Petitioners’ third objection argues Dr. Steinman’s medical theory provides a three-week
interval in which symptoms worsened. Mot. for Review Mem. at 18; Tr. at 88:8–17
(“[PETITIONERS]: [I]t’s petitioners’ contention that Dr. Steinman’s report and the literature he
provided sufficiently demonstrates that H.H.’s onset was within a medically reasonable time
frame, and we contend that there were early signs immediately after the Pentacel vaccine . . . and
that the completion of his damage was done in approximately three weeks.”). The government
argues Dr. Steinman’s theory is not sufficiently supported. Tr. at 87:8–10 (“[THE
GOVERNMENT]: Dr. Steinman [is] just saying that three weeks, without the proper support,
doesn’t meet petitioners’ burden.”).
In her two-page analysis regarding proximate-temporal relationship, the Special Master
found petitioners failed to prove either “H.H.’s type I interferonopathy either began or was
significantly aggravated three weeks after the Pentacel vaccin, or . . . [p]etitoners have
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preponderantly established that the three weeks post vaccination is a medically acceptable onset
interval.” SM Dec. at 74. The Special Master noted Dr. Steinman’s three-week interval is based
on a direct causation claim theory because there was not “any symptomatology related to an
interferonopathy” until “three weeks after the Pentacel immunization on October 23, 2013.” Id.
at 72. The Special Master concluded Dr. Steinman’s “opinion regarding the appropriateness of
the onset interval” was based on an onset theory, not a significant aggravation theory. Id. Dr.
Steinman explains in his reply, however, “I have covered the two alternatives in describing either
a theory based on direct causation or on significant aggravation. The onset of
neuroinflammation within [three] weeks of the October 23, 2013 immunizations with Pentacel is
consistent with [Schonberger] and [Bennetto & Scolding], which cover related
neuroinflammatory conditions of the peripheral . . . and central nervous systems[.]” Steinman
Reply at 3. Petitioners asserted Dr. Steinman’s medical theory provides a three-week onset for
both direct causation and significant aggravation. Tr. at 88:8–11 (“[PETITIONERS]: [I]t’s
petitioners’ contention that Dr. Steinman’s report and the literature he provided sufficiently
demonstrated that H.H.’s onset was within a medically reasonable time frame, and we contend
that there were very early signs immediately after the Pentacel vaccine, within days, and that the
completion of his damage was done in approximately three weeks.”). The Special Master does
not consider Dr. Steinman’s theory relating to significant aggravation because the Special Master
found her “determination in this case is contrary to Dr. Steinman’s” opinion regarding the onset
of symptoms. SM Dec. at 72. The Special Master’s characterization of Dr. Steinman’s theory to
only include direct causation when he opined “on significant aggravation” is arbitrary and
capricious because the Special Master did not consider Dr. Steinman’s theory on significant
aggravation in the record. See Steinman Reply at 3; Hines, 940 F.2d at 1528 (“If the [S]pecial
[M]aster 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.”).
The Court finds, as discussed supra Section VII.A, the Special Master’s Loving
prong-four analysis was arbitrary and capricious and because “a temporal relationship is closely
related to the underlying medical theory” required by prong four, the Court also reviews for error
the causation analysis under Loving prong six. See Capizzano, 440 F.3d at 1326.11 Despite the
Special Master stating Dr. Steinman did not opine on significant aggravation, the Special Master
did continue to analyze Loving prong six in light of significant aggravation. SM Dec. at 73
(“Naves . . . does not support the position that an interferonopathy would begin or become
significantly aggravated either on the same day or within one or two days after a trigger.”). The
Special Master concluded, “I do not find H.H.’s type I interferonopathy either began or was
significantly aggravated three weeks after the Pentacel vaccine[,]” but did not provide an
analysis to discuss the timeline of H.H.’s injuries or whether H.H.’s injuries were significantly
aggravated. Id. at 74. The Special Master did not “articulate a rational basis for her decision”
nor is her decision supported by the record because the Court finds her analysis under Loving
11 In Pafford, a case involving the development of Still’s disease following vaccination, the Federal Circuit
emphasized “evidence 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 causation analysis.”
Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1358 (Fed. Cir. 2006). Finding a temporal relationship is
also closely related to the underlying medical theory of the injury. Capizzano, 440 F.3d at 1326 (“We see no reason
why evidence used to satisfy one of the [Loving] prongs cannot overlap to satisfy another prong.”).
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prong four to be arbitrary and capricious. See Hines, 940 F.2d at 1528; see also Paluck, 786
F.3d at 1380 (“Where, as here, a special master misapprehends a petitioner’s theory of causation,
misconstrues his medical records, and makes factual inferences wholly unsupported by the
record, the Court of Federal Claims is not only authorized, but obliged, to set aside the [S]pecial
[M]aster’s findings of fact and conclusions of law.”); Andreu, 569 F.3d at 1375 (concluding that
a special master erred in disregarding probative testimony from a petitioner’s treating
physicians). The Court remands and leaves the ultimate conclusion to the Special Master
regarding whether there was a proximate-temporal relationship in light of Dr. Steinman’s
opinion stating aggravation would occur within three weeks and whether this theory satisfies
Loving prong six. See Steinman Reply at 3 (“I have covered the two alternatives in describing
either a theory based on direct causation or on significant aggravation”); see also Capizzano, 440
F.3d at 1326 (“We see no reason why evidence used to satisfy one of the [Loving] prongs cannot
overlap to satisfy another prong.”).
VIII. Conclusion
For the foregoing reasons, the Court SUSTAINS the Special Master’s decision relating to
the influenza and pneumonia vaccinations as petitioners did not meet their burden of proof under
the Loving/Althen frameworks. The Court VACATES the Special Master’s decision finding
Pentacel did not significantly aggravate H.H.’s type I interferonopathy because the Special
Master erred by assuming H.H.’s injury and diagnosis was purely genetically caused before
starting the Loving analysis. The Court therefore GRANTS IN PART petitioners’ motion for
review and REMANDS to the Special Master to determine whether petitioners can satisfy
Loving prongs four, five, and six for significant aggravation by Pentacel.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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DOCUMENT 2: USCOURTS-cofc-1_15-vv-00792-1
Date issued/filed: 2022-11-01
Pages: 74
Docket text: PUBLIC DECISION (Originally filed: 4/15/2022) regarding 121 DECISION DISMISSING PETITION. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
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Case 1:15-vv-00792-RTH Document 137 Filed 11/01/22 Page 1 of 74
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-792V
Filed: April 15, 2022
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
HEATHE HELLER and JENNA HELLER,
*
parents of H.H., a minor, * TO BE PUBLISHED
*
Petitioners, * Aicardi–Goutières syndrome (AGS);
*
* Type I Interferonopathy; Pentacel
v. * vaccine; influenza vaccine; Prevnar
* vaccine; insufficient proof of causation
SECRETARY OF HEALTH AND *
*
HUMAN SERVICES,
*
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
*
Margaret Guerra, Margaret M. Guerra, Attorney at Law, Fort Worth, TX, for Petitioners
Adriana Teitel, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON ENTITLEMENT1
Oler, Special Master:
On July 27, 2015, Heathe Heller (“Mr. Heller”) and Jenna Heller (“Mrs. Heller”)
(collectively “Petitioners”) filed a petition for compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act” or “Program”) alleging,
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 in 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties
may object to the Decision’s inclusion of certain kinds of confidential information. To do so, each party
may, within 14 days, 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, this Decision will be available to the public in its present form. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
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Case 1:15-vv-00792-RTH Document 137 Filed 11/01/22 Page 2 of 74
in part, that as a result of his October 17, 2013 vaccinations with influenza and Prevnar3 and his
October 23, 2013 vaccination with Pentacel,4 H.H. experienced either the onset or the significant
aggravation of his degenerative neurologic disorder.
For the reasons discussed in this decision, I find that H.H.’s vaccinations did not cause or
significantly aggravate his condition.
I. Procedural History
On July 27, 2015, Heathe and Jenna Heller, on behalf of their minor son, H.H. filed a
petition5 seeking compensation under the Vaccine Act, alleging that H.H. suffered from dystonia
and encephalopathy as a result of the influenza (“flu”) and Prevnar vaccines he received on
October 17, 2013, and/or the DTaP-IPV-Hib (Pentacel) vaccination he received on October 23,
2013. Pet. at 1.
Petitioners filed medical records on August 3, 2015. ECF No. 10. Petitioners filed
additional medical records, affidavits, and expert reports from Dr. Leslie Hollis and Dr. Warren
Marks on October 9, 2015. ECF No. 14. Petitioner filed additional medical records on November
9, 2015 (ECF No. 16) as well as a statement of completion on November 9, 2015 (ECF No. 17).
On February 1, 2016, Respondent filed his Rule 4(c) Report, asserting that the case was
not appropriate for compensation and should be dismissed. Resp’t’s Rep. ECF No. 21.
Petitioners filed additional affidavits and exhibits on March 21, 2016. ECF No. 28.
Petitioner also submitted a supplemental expert report from Dr. Hollis on the same date. Id.
On July 8, 2016, Special Master Hastings held a status conference. ECF No. 35. Special
Master Hastings stated to Petitioners’ counsel that “as this case proceeds, it is imperative that all
the evidence is identified in a manner that does not cause confusion.” See Scheduling Order of
July 8, 2016, ECF No. 35 at 1. Accordingly, Special Master Hastings ordered Petitioners to re-
number and re-file all of Petitioner’s exhibits that had been filed previously. Id. Special Master
Hastings noted that “the numbering of these re-filed exhibits shall commence with exhibit number
48, followed by consecutive exhibits numbers thereafter.” Id.
Accordingly, Petitioners refiled all previously submitted medical records, affidavits, and
expert reports on August 26, 2016. Exs. 48-93, ECF Nos. 40-46.
3 Prevnar is a “trademark for a preparation of pneumococcal 7-valent conjugate vaccine.” Prevnar,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=40909&
searchterm=Prevnar (last accessed April 13, 2022).
4 Pentacel is a “trademark for a combination preparation of diphtheria and tetanus toxoids and acellular
pertussis vaccine adsorbed, poliovirus vaccine inactivated, and Haemophilus b conjugate (tetanus toxoid
conjugate) vaccine.” Dorland’s Med. Dictionary Online, Pentacel, https://www.dorlandsonline.com/
dorland/definition?id=37544&searchterm=Pentacel (last accessed April 13, 2022).
5 Petitioners filed an amended Petition on November 9, 2015. ECF No. 15.
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On December 14, 2016, Respondent filed an expert report from Dr. Kristin Barañano. Ex.
A, ECF No. 52. Respondent filed Dr. Barañano’s CV at Exhibit B. On the same date, Respondent
filed the medical literature associated with Dr. Barañano’s report. Exs. A-1 – A-5, ECF No. 52.
On August 25, 2017, Petitioners filed a supplemental expert report from Dr. Warren Marks.
Ex. 94, ECF No. 54.
This case was reassigned to my docket on December 5, 2017. ECF No. 59. Petitioners filed
additional medical records on March 6, 2018. Ex. 95, ECF No. 61.
On August 17, 2018, Respondent filed a supplemental expert report from Dr. Barañano.
Ex. C, ECF No. 67. Respondent filed the medical literature associated with Dr. Barañano’s report
as Exhibit C-1 on the same date.
On April 29, 2019, Respondent filed an expert report from Dr. Stephen McGeady. Ex. D,
ECF No. 70. Respondent filed Dr. McGeady’s CV at Exhibit E.6 Respondent filed the medical
literature associated with Dr. McGeady’s report on the same day. Exs. D-1 – D-12, ECF No. 71.
On December 31, 2019, the parties filed their pre-hearing submissions. ECF Nos. 75-76.
Pre-hearing briefs were filed on January 8, 2020. ECF Nos. 78-79.
On January 8, 2020, Respondent filed two additional pieces of medical literature. Exs. F,
G, ECF No. 81.
I held an entitlement hearing on January 22, 2020. ECF No. 88. At the conclusion of the
hearing, I held a status conference with the parties during which several items were discussed. See
Scheduling Order of January 29, 2020, ECF No. 86. I directed Petitioners’ counsel to file several
documents, including:
1. Any emails and/or records from Dr. Yanick Crow, including the results of the genetic
testing done by Dr. Crow.
2. Any medical records from the Panama clinic where H.H. underwent multiple stem cell
treatments as referenced in Ex. 96, pg. 36.
3. Medical records from H.H’s Boston Children’s Hospital visit.
4. Medical records and/or genetic testing results from Atlanta.
5. Any additional photos or videos of H.H. from Halloween 2013.
6. A status report identifying the specific dates of the video clips in Ex. 47.
7. Additional medical records from H.H.’s most recent visits with Dr. Warren Marks.
8. A status report informing the Court as to whether Petitioners wished to file additional
expert reports.7
6 Respondent re-filed Dr. McGeady’s CV on April 14, 2020. Ex. I, ECF No. 90.
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Id. at 1-2. In addition, Respondent was ordered to file an updated CV for Dr. Barañano and Dr.
McGeady, and the parties were ordered to file medical literature summaries by March 31, 2020.8
Id. at 2.
Petitioners filed a status report on April 14, 2020, stating that they had employed Dr.
Lawrence Steinman to provide an additional expert report. Petitioners’ Status Report of April 14,
2020, ECF No. 92. Petitioners stated that they had only been able to retrieve some of the medical
records that were requested in my January 29, 2020 order, and filed these on the same day. Exs.
97-100, ECF No. 93.
On July 24, 2020, Petitioners filed an expert report from Dr. Steinman. Ex. 101, ECF No.
95. Petitioners filed the medical literature associated with Dr. Steinman’s report on the same date.
Exs. 101-1 – 101-20, ECF No. 101.
On December 1, 2020, Respondent filed a rebuttal expert report from Dr. McGeady. Ex. J,
ECF No. 104.
On February 12, 2021, Petitioners filed a supplemental expert report from Dr. Steinman.
Ex. 99,9 ECF No. 108 (hereinafter “Second Steinman Rep.”).
On May 15, 2021, Petitioners filed their post-hearing brief. ECF No. 113. Respondent filed
a response on July 8, 2021. ECF No. 116. Petitioners filed a reply on July 15, 2021. ECF No. 118.
On August 9, 2021, the parties filed a joint status report indicating that the record was
complete. ECF No. 119.
On March 15, 2022, my law clerk emailed the parties in order to inform Petitioners’ counsel
that one exhibit referenced during the hearing (a letter from Sheri Huling to Petitioners’ counsel
which served as the basis for Ms. Huling’s affidavit) had not been filed into the record. That same
day, I entered an order directing Petitioners to file the letter as soon as practicable See Non-PDF
Informational Communication of March 15, 2022. Petitioners filed on the letter on March 23,
2022. Ex. 102; ECF No. 120.
This matter is now ripe for adjudication.
7 At the conclusion of the entitlement hearing after we went off the record, I informed Petitioners’ counsel
that the record, as it currently stood, did not enable Petitioners to meet their burden. I suggested that
Petitioners’ counsel consider retaining an additional expert neurologist so that Petitioners may be afforded
a full and fair opportunity to prosecute their case.
8 This additional documentation filed on April 14, 2020. ECF No. 90.
9 Petitioners inadvertently labeled this report as Exhibit 99. Exhibit 99 is already a medical record. To avoid
confusion, I have referred to this report as “Second Steinman Rep.” in this decision.
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II. Medical Records
A. Relevant Pre-Vaccination History
H.H. was born on July 14, 2012. Ex. 48 at 1. H.H. was delivered vaginally with no
complications. Ex. 49 at 5.
On July 18, 2012, H.H. was seen by Dr. Leslie Hollis at Wise Pediatrics for a newborn
visit. Ex. 49 at 5. H.H. was noted as meeting all his newborn milestones: raising his head when
prone, making eye contact/regarding faces, startling to noise, following to midline and equal
movements. Id. H.H. was sleeping three to four hours at a time, and his parents indicated no
concerns at this visit. Id. Dr. Hollis noted no abnormalities. Id. at 5-6. H.H. was scheduled to return
in one week for a weight check. Id. at 6.
On July 23, 2012, H.H. visited Dr. Hollis at Wise Pediatrics to follow up on an abnormal
newborn screen “possibly indicating a VLCAD deficiency.”10 Ex. 49 at 7. Dr. Hollis noted that
H.H. “has been doing very well. Weight gain and breastfeeding going well.” Id. H.H. was observed
as “playful, alert and aware” and Dr. Hollis found no abnormalities upon examination. Id. Dr.
Hollis ordered a Texas newborn screen, a plasma acylcarnitine profile, and a urine organic acids
test. Id.
On July 27, 2012, H.H. visited Dr. Hollis at Wise Pediatrics for a two-week well child visit.
Ex. 49 at 9. His parents had no concerns at this visit. Id. Dr. Hollis observed no abnormalities upon
examination. Id. H.H.’s Texas Newborn Screen was canceled at this visit. Id. at 10. H.H. was next
scheduled to return for his two-month wellness check.
On August 1, 2012, RN Michelle Johns from Wise Pediatrics left a voicemail for Mrs.
Heller, indicating that H.H.’s second PKU (Phenylketonuria) screening was normal. Ex. 49 at 11.
On August 8, 2012, LVN Cozby called Mrs. Heller to inform her that the rest of H.H.’s
labs returned normal results. Ex. 49 at 14.
On August 16, 2012, RN Johns called Mrs. Heller and left her a voicemail informing her
that “State is requiring a referral to Dr. Basinger[, a] metabolic geneticist since [H.H.’s] first [PKU
screening] was abnormal.” Ex. 49 at 15. Petitioner called back the same day to confirm an
appointment with Dr. Basinger. Id. at 16.
On August 23, 2012, Dr. Heather Crawford sent a letter to Dr. Hollis noting that H.H was
under evaluation for a VLCAD deficiency, which could cause hypoglycemia, cardiomyopathy,
elevated ammonia levels, abnormal liver function tests, and death should H.H. have prolonged
10 A VLCAD deficiency “is a condition in which the body is unable to properly breakdown certain fats
(called very long-chain fatty acids) into energy, particularly during periods without food (fasting).” National
Institutes of Health, National Center for Advancing Translational Sciences, VLCAD Deficiency, https://
rarediseases.info.nih.gov/diseases/5508/vlcad-deficiency#:~:text=VLCAD%20deficiency%20is%20a%20
condition,periods%20without%20food%20(fasting) (last accessed April 8, 2022).
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fasting or poor dietary intake due to illness. Ex. 89 at 14. She noted that H.H.’s blood glucose
needed to be maintained at about 70 mg/dL. Id.
On September 18, 2012, H.H. visited Dr. Hollis at Wise Pediatrics for his two-month well-
child visit. Ex. 49 at 18. H.H.’s parents had no concerns at this visit. Id. H.H. was recorded as
meeting all his developmental milestones: grasping a rattle, presenting a social smile, cooing,
responding to a bell, following past midline, and parent/child interaction. Id. H.H. weight 11.7
pounds. Id. Dr. Hollis noted no abnormalities upon examination. Id. at 18-19. H.H. received his
Prevnar-13, Hepatitis B, Pentacel, and Rotarix vaccines at this visit. Id. at 19. H.H. was next
scheduled to be seen for his four-month well child appointment. Id.
On November 14, 2012, H.H. was seen by Dr. Hollis at Wise Pediatrics for his four-month
well child visit. Ex. 49 at 21. H.H. was noted to be sleeping “more than 10 hours per night”. Id.
His parents voiced no concerns at this visit. Id. H.H. was noted to be meeting all his developmental
milestones: raising his body on his hands, steady head control when held upright, no head lag when
pulling to sit, rolling “prone to supine”, grasping his rattle, playing with his hands/bringing his
hands together, turning to sound, following objects 180 degrees, and laughing/squealing. Id. H.H.
weighed 14.06 pounds. Id. Dr. Hollis observed no abnormalities upon examination. Id. at 22. H.H.
received his Prevnar-13, Pentacel, and Rotateq vaccinations at this visit. Id. H.H. was next
scheduled to return for his six-month well child visit. Id.
On January 23, 2013, H.H. was seen by Dr. Hollis at Wise Pediatrics for his six-month
well visit. Ex. 49 at 26. H.H. was noted to be meeting all his developmental milestones: rolling
over both ways, sitting with minimal support, no head lag when pulling to sit, bearing weight,
transferring objects from hand to hand, laughing/babbling and imitating sounds, turning towards
voices, “raking raisin”, looking “for yarn” and reaching for objects/working for toys. Id. at 27.
H.H. weight 16.87 pounds at this visit. Id. Dr. Hollis noted no abnormalities upon examination.
Id. at 27-28. H.H. received his Prevnar-13, HiB, Pediarix, Rotateq, and flu vaccinations at this
appointment. Id. at 28. Dr. Hollis noted that H.H. had “no problems with previous immunizations.”
Id. H.H. was next scheduled to be seen for his nine-month well child visit. Id.
On April 16, 2013, H.H. visited Dr. Hollis at Wise Pediatrics for his nine-month well visit.
Ex. 49 at 28. By this point, H.H. had begun eating solid foods, including fruits, Cheerios, and
yogurt. Id. He was sleeping more than ten hours per night and his parents had no concerns. Id.
H.H. was noted to be meeting all his developmental milestones: Sitting well, crawling, pulling to
stand and cruising, using a pincer grasp, banging two toys together, finger feeding, babbling
mama/dada, playing peek-a-boo, indicating his wants, and waving bye-bye. Id. Dr. Hollis noted
no abnormalities upon examination. Id. at 28-29. H.H. weighed 18.77 pounds at this visit. Id. at
29. H.H. was next scheduled to be seen for his 12-month well child visit. Id.
On July 18, 2013, H.H. was seen by Dr. Hollis at Wise Pediatrics for his 12-month well
child visit. Ex. 49 at 33. By this time, H.H. had switched to whole milk from formula, was eating
solids to include meats and Gerber Graduates, and was sleeping more than ten hours per night. Id.
His parents had no concerns at this visit. Id. H.H. was noted to be meeting all his developmental
milestones: pulling to stand/standing alone for 2-3 seconds, walking with support and taking a few
steps, precise pincer grasp, had a 1–3-word vocabulary, using Mama/Dada specifically, drinking
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from a cup, understanding “no” and imitating actions. Id. H.H. weighed 21.34 pounds at this visit.
Dr. Hollis noted no abnormalities upon examination. Id. at 33-34. H.H. received his MMRV and
Hepatitis A vaccinations at this visit. Id. at 34. H.H. was next scheduled to be seen for his 15-
month well child visit. Id.
On July 29, 2013, H.H. was seen by Dr. Hollis at Wise Pediatrics for a sick child visit. Ex.
49 at 36. Under HPI, Dr. Hollis stated that “Pt has been running fever to 102 for the [past] 3 days.
Mom is also sick. He has had nasal congestion for 2 weeks.” Id. H.H. was diagnosed with purulent
rhinitis and prescribed Augmentin. Id.
On September 13, 2013, Petitioner called Wise Pediatrics and stated that she was concerned
with H.H. “not walking and right foot turned inward.” Ex. 49 at 37. LVN Cozby noted that H.H.
was scheduled for an appointment in one month and advised Petitioner, per Dr. Hollis, to wait until
that appointment to be seen. Id.
B. Post-Vaccination History
On October 17, 2013, H.H. visited Dr. Hollis at Wise Pediatrics for his 15-month well visit.
Ex. 49 at 1. At this visit, H.H. was noted as meeting all of his developmental milestones: Walking
alone, crawling up stairs, self-feeding with fingers, using a fork and spoon, talking with a three to
six word vocabulary, understanding simple commands, rolling/tossing a ball, stooping to recover
a toy, and indicating his wants without crying. Id. Upon physical exam, Dr. Hollis noted no
abnormalities. Id. H.H. received his influenza and Prevnar-13 vaccines at this appointment,
although he did not receive Pentacel.11 Id. Dr. Hollis discussed H.H.’s development, growth and
nutrition with Petitioner. Id. at 2. H.H. was next scheduled to return for his 18-month well child
visit. Id. at 2.
On October 23, 2013, H.H. was seen by Nurse practitioner Ariane Segura. Ex. 49 at 3. H.H.
received his Pentacel vaccination at this visit. Id.
On November 11, 2013, H.H. visited Dr. Hollis at Wise Pediatrics for a sick child visit.
Ex. 49 at 41. In the HPI, Dr. Hollis stated “Pt has been fussy for the last week. He has run fever to
101.5. His energy level is decreased. Pts development has regressed in the last month. He has
stopped crawl[]ing. He is not wanting to play with toys. He will throw toys and food.” Id. H.H.
was noted to be “playful, alert and aware” and in no respiratory distress. Id. Dr. Hollis observed
no abnormalities until she conducted a neurologic examination. She noted that H.H.’s reflexes
were “Brisk, 3+” and his tone was “hypotonic”. Id. A rapid strep throat test was negative and a
CBC returned normal results. Id. at 41-42. H.H. was diagnosed with a developmental delay and
acute pharyngitis. Id. at 42. He was referred to neurology “ASAP” for evaluation. Id. Petitioner
was instructed to try throat lozenges, fluids, and rest to treat the pharyngitis. Id.
On November 12, 2013, H.H. visited Dr. Heather Crawford at Cook Children’s Hospital,
Department of Clinical and Metabolic Genetics, for “new problem of loss of milestones, elevated
11 Mrs. Heller testified at the entitlement hearing that Wise Pediatrics was out of the Pentacel vaccine, and
she was told to return to get that vaccine at a later date. Tr. at 17.
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liver enzymes.” Ex. 50 at 1. H.H. was observed to be “healthy-appearing, well-nourished, and
well-developed” and in no distress. Id. He was “active and alert and [with a] normal mood.” Id.
Upon examination, no abnormalities were found in an examination of his head, eyes, ears, nose,
throat, neck, chest, heart, abdomen, back, skin, hair and genitals. Id. at 1-2. Upon an examination
of H.H.’s musculoskeletal systems, Dr. Crawford noted that H.H. had “normal strength and
hypertonicity (noted in lower extremities especially at the ankles). Id. at 2. She stated that “his heel
cords appear somewhat tight and he may require AFOs at some point in the future.” Id. A
neurologic exam revealed that H.H. was “not walking yet” and was “not speaking yet.” Id. Dr.
Crawford also noted that H.H. had “elevated transaminases” but she “would like to repeat those
[tests] once his minor illness has passed.” H.H. was diagnosed as “a 16 month old who now
presents with a new history of developmental delay with loss of some developmental milestones.”
Id. Dr. Crawford ordered a “baseline genetic and metabolic workup to include looking for
chromosomal abnormalities and disorders of fat and protein metabolism.” Id. Additionally, she
ordered an “MRI of the brain to make sure that the gross anatomy of the brain is normal.” Id. She
recommended that Petitioners start H.H. in physical and speech therapy while the cause of his
developmental delay was diagnosed. Id. Concerning his “elevated transaminases”, Dr. Crawford
stated that if they were still elevated in a month, she would “expand our evaluation to include an
abdominal ultrasound to evaluate the liver and possible evaluate for lysosomal disorders if his
regression persists.” Id.
On November 14, 2013, Dr. Crawford sent a note to Dr. Hollis, providing the details of
H.H.’s visit on November 12, 2013. Ex. 50 at 4. Dr. Crawford stated that:
H.H. is a 16 month old male who is being referred again for an evaluation for
developmental delay and possible regression of milestones. He was initially seen
in the metabolic genetics clinic after an abnormal newborn screen for possible
VLCAD deficiency. However, follow up testing including a skin biopsy to look at
fat metabolism proved to be negative. He was then cleared for that screening test
with no follow up recommended at that time. However, I was contacted by his PCP,
Dr. Hollis, who was concerned about his development. She stated that he was sitting
at 6 months, crawling at 7 months and took a few steps at 10 months. He apparently
had 3 words at 12 months. Parents now state that he does not take any steps [] nor
does he pull to stand anymore. He now has no words. They also feel that his affect
is not normal in that he does not laugh spontaneously or much at all. He has been
sick with a virus this last couple weeks. He has not had any major illnesses or
hospitalizations since birth.
Id. Dr. Crawford’s notes indicate that H.H. was diagnosed with a developmental delay, specifically
a slight delay in gross motor function and fine motor function/ADLs, and a significant delay in
language functioning. Id.
On the same date, H.H. was admitted to the hospital with worsening symptoms. Ex. 51 at
5. Dr. Michael Aalbers, a neurologist, admitted H.H. to the hospital with “progressive dysarthria,12
12 Dysarthria is “a speech disorder consisting of imperfect articulation due to loss of muscular control after
damage to the central or peripheral nervous system.” Dysarthria, Dorland’s Med. Dictionary Online, https://
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trouble swallowing, and a fairly dramatic spastic diplegia in the lower extremities.” Id. at 8. A CT
scan demonstrated “mild volume loss with no evidence of upper motor neuron injury.” Id. Dr.
Aalbers also noted that there was “no evidence of bony malformation, [or] concerns for acute
transverse myelitis.” Id. It was noted that H.H. was constipated but had “appropriate bowel and
bladder symptoms.” Id.
After being admitted, H.H. underwent a lumbar puncture to “rule out demyelinating disease
versus metabolic etiologies versus dopa-responsive dystonia.” Ex. 52 at 5. The lumbar puncture
revealed no significant results.
On November 15, 2013, H.H. underwent a brain MRI. Ex. 51 at 1. The clinical indication
was “acute onset spastic diplegia.” Id. Dr. Hayden Head interpreted the MRI. His impression was
“Mild enlargement of subarachnoid spaces. If the head circumference is enlarged and/or has been
rapidly increasing, the findings would be in keeping with benign enlargement of subarachnoid
spaces of infancy, in the appropriate clinical setting. If not, mild diffuse parenchymal volume loss
should be considered.” Id. Dr. Head noted that H.H.’s MRI was “otherwise unremarkable.”
On November 16, 2013, H.H. was discharged from the hospital. His discharge summary
stated:
[H.H.] presented to the emergency department and upon evaluation by Dr. Aalbers
of neurology was found to have significant dystonic posturing of the lower
extremities, prompting his admission. He was admitted to the floor in stable status.
The workup included an MRI of the brain, which was within normal limits. An
MRI of the complete spine was significant only for a fatty film, suggesting a
possible tethered cord.
Ex. 51 at 5. Dr. Michael Perry, H.H.’s discharging physician, stated that “during admission,
[H.H.’s] irritability decreased significantly, and he was able to feed fairly well.” Id. H.H. was
treated with Sinemet for “presumptive dopa-responsive dystonia” and seemed to respond to the
treatment. Id. Dr. Perry noted that confirmation of diagnoses would depend on CSF results. Id.
H.H.’s family was instructed to call the hospital if H.H. had increased irritability, increased tone,
intolerance to medication, or any other concerns. Id. at 6.
On November 21, 2013, Dr. Elisabeth Brockie, DO, of Quest Diagnostics – Dallas
provided lab results for H.H.’s lactate and plasma acylcarnitine. Ex. 50 at 54. She noted that
“several very-long-chain and long-chain-hydroxy acylcarnitine species were minimally to mildly
elevated” in the sample she tested. Id. She noted that the results were “not sufficient” to rule out a
mitochondrial fatty acid disorder. Id. She noted that these results have been seen in “liver disease,
some mitochondrial disorders, metabolic stress, certain glycogen storage disorders, and
generalized sickness of not metabolic origin.” Id. An amino acids lab result reported on the same
day showed “elevated” amino acids but did “not suggest a specific inherited metabolic disorder.”
Id. at 56.
www.dorlandsonline.com/dorland/definition?id=15144&searchterm=dysarthria (last accessed April 8,
2022).
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On November 22, 2013, H.H. was seen by Dr. Aalbers at Cook Children’s Hospital. Ex.
52 at 8. Problems reviewed included “cough, spinal cord disease, dystonia, screening finding,
speech delay and delayed milestone.” Id. In the patient history, Dr. Aalbers noted that H.H. was at
the clinic “emergently secondary to concerns of rapidly advancing metabolic neurodegenerative
disease” and that since his discharge from the hospital on November 16, 2013, H.H. had
progressively lost meaningful use of his right hand. Id. at 9. Upon examination, Dr. Aalbers found
no abnormalities in H.H.’s eyes, ears, nose, mouth, throat, heart, respiratory systems,
gastrointestinal symptoms, musculoskeletal systems, or skin. Upon conducting a neurologic
examination, Dr. Aalbers noted that H.H. had “weakness, trouble walking, and poor attention.” Id.
at 10. H.H.’s mental status was described as “somnolent.” Id. His grasp of language was considered
“dysfluent and dysarthric” and his “fund of knowledge” was “delayed for age. Id. During a motor
exam, Dr. Aalbers observed the following:
Motor spastic, rigidity, hypotonic axial, hypertonia appendicular, and dystonia
diffuse and normal bulk and no focal weakness; Patient has internal rotation and
supination with dystonic posturing of the thumb in the right hand that was not
present 4 days ago with intermittent scissoring of the lower extremities dystonic
spastic posturing of the feet with plantarflexion striatal toes bilaterally patient has
appropriate head[] control with increased tone and cogwheeling on the right but
good range of motion of his fingers.
Id. at 10. Finally, in examining H.H.’s spine, Dr. Aalbers observed “no tenderness and decreased
ROM” in H.H.’s cervical spine. Id. Dr. Aalbers’ initial impression was “rapidly progressive
ascending dystonia with encephalopathy – Concern for mitochondrial disease versus lysosomal
storage disease/inborn error of metabolism.” Id. at 11. Dr. Aalbers also provided his impression of
H.H.’s testing from his hospital stay (November 14, 2013 – November 16, 2013):
In the interim the patient was admitted to the hospital with subsequent concerns for
rapidly progressive dysarthria choking with exacerbation dystonic posturing in the
lower extremities. Patient matter and lumbar puncture which demonstrated no
evidence of pleocytosis with normal lactate pyruvate urine organic acids and repeat
[] acylcarnitine profile.
Subsequent neuroimaging demonstrates numerous white matter hyperintensities
particularly along the insula bilaterally however this is still within the normal range
of normal myelination for [a] 16- month-old, there is perhaps mild volume loss in
the midline particularly midline stratum without signal change.
MRI of his lower spine demonstrates a mildly tethered cord that would not explain
the dystonia or striatal toe [but] may explain the constipation rapid exag[g]eration
of symptoms.
Id. at 11. Dr. Aalbers noted that “within a week [of his discharge, H.H. developed] increased
encephalopathy and now has los[t] meaningful[] use of his right hand with cogwheeling of his left
despite being on 25 100 mg of Sinemet secondary to a working diagnosis of rapidly progressive
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to responsive dystonia.” Id. A metabolic geneticist did not suspect that H.H. had a “fatty acids
oxidation disorder based on the fibroblast and repeated carnitine profiles” and an EEG
demonstrated “no evidence of epilep[t]iform [discharges].” Id. Dr. Aalbers’ differential diagnosis
was “rapidly progressive primary mitochondrial disease.” Id. Dr. Aalbers stated that he would
order testing for lysosomal storage diseases, and “full scale mitochondrial studies.” Id. H.H.’s
parents were instructed to continue Sinemet 25 100 and observe H.H. for worsening
encephalopathy or new symptoms. Id.
That same date, H.H. underwent an EEG. Ex. 52 at 47. Dr. Howard Kelfer, interpreting the
EEG, stated that “this tracing, recorded while awake and during sleep, is mildly abnormal. The
background activity is somewhat slow for age. The findings are indicative of a mild to moderate
diffuse disturbance of brain function. There is no definite epileptiform activity.” Id.
On November 23, 2013, Dr. Thomas Lohmann provided the results of H.H.’s genetic
testing conducted using a microarray analysis, stating that “no deletions or duplications of known
or potential clinical significance were detected by microarray analysis.” Ex. 50 at 61.
On November 27, 2013, Medical Neurogenetics Laboratories (“MNG Labs”) provided the
results of the testing ordered by Dr. Aalbers. Ex. 52 at 19. Under “neurotransmitter metabolics”,
H.H.’s 5-Hydroxindoleacetic acid was slightly elevated, with a value of 215 mnol/L (reference
range 67-189 nmol/L). Id. Dr. Keith Hyland, Ph.D, interpreting the results stated that “this is
unlikely to be of any clinical significance.” Id. at 20. Under “tetrahydrobiopterin and neopterin
profile”, H.H.’s neopterin was extremely elevated, with a value greater than 300 nmol/L (reference
range 8-33 nmol/L). Id. H.H.’s tetrahydrobiopterin was also extremely elevated at 118 nmol/L
(reference range 9-33 nmol/L). Dr. Hyland noted that “elevations of neopterin and
tetrahydrobiopterin have been described in the Aicardi-Goutieres syndrome” and “we have also
noted a similar abnormal pterin pattern in HIV infection.” Id. All other testing was normal. Id. at
19-20, 23.
On December 3, 2013, H.H. was seen by Dr. Aalbers for “neurological regression.” Ex. 52
at 25. Dr. Aalbers noted generally the same problems he had observed during H.H.’s November
22, 2013 visit. Id. at 25-26. Under “Impression”, Dr. Aalbers stated that H.H.’s diagnosis was
“rapidly progressive dystonia and encephalopathy” with “concern for possible Accardi-Gutierres
[sic]”. Id. at 28. Dr. Aalbers stated that H.H had:
Rapidly progressive dystonia, now with lo[ss of] meaningful [use] of his left hand
and spastic dystonic scissoring of the lower extremities. In the interim [h]is
neurotransmitter results surprisingly showed marked elevation to biopterin in the
option which is commonly seen in patients with inflammatory encephalitis such as
[] AGS. Of concern the patient had previously unexplained transient elevations of
liver enzymes which is consistent with AGS as is progressive encephalopathy and
dystonia spasticity.
Id. at 28. Dr. Aalbers also noted that H.H.’s MRI was “confusing”, noting that “there are patchy
white matter hyperintensities throughout however given his chronological age patchy
hypomyelination can be normal.” Id.
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To confirm the diagnosis, Dr. Aalbers arranged for HIV testing, repeat of H.H.’s
neurotransmitters studies, and planned to contact experts in AGS. Id. H.H. was referred to Dr.
Heather Crawford for additional genetic testing in connection with AGS. Id.
On December 3, 2013, H.H. was seen by Dr. Crawford at Cook Children’s Hospital,
Department of Clinical and Metabolic Genetics for a follow up evaluation for “developmental
regression with dystonia.” Ex. 50 at 11. No abnormalities were found upon an evaluation of H.H.’s
head, eyes, ears, nose, mouth throat, neck, genitals, back, skin, or hair. Id. at 11-12. A
musculoskeletal exam revealed that H.H. had “normal strength and hypertonicity (noted in lower
extremities especially at the ankles, feet held inward position); Pt now holds hand in a fist when
trying to reach for objects and when crawling, then afterward hand relaxes when trying to hold a
bottle.” Id. at 11. A neurologic exam revealed that H.H. was “not walking yet” and “not speaking
yet.” Id. H.H. was assessed as “a 16 month old who now presents with a new history of
developmental regression and onset of progressive dystonia in the last 2-3 months.” Id. at 12. He
was diagnosed with delayed milestones, unspecified encephalopathy, speech delay (“expressive
language disorder”), and dystonia (“unspecified extrapyramidal disease and abnormal movement
disorder”). Id.
In the discussion notes, Dr. Crawford stated:
[H.H.] continues to have dystonia in the lower extremities, however his hands are
now becoming involved. He is still unable to crawl or pull [to] stand. He is now
having difficulties sitting alone. His clinical picture is very concerning for either a
metabolic or neurogenetic disorder. He had CSF studies done that included
neurotransmitters which showed an extremely elevated neopterin and
tetrahydrobiopterin. The lab's interpretation stated that only Aicardi-Goutières
syndrome and HIV infection would cause such high values. Dr. Aalbers and myself
have discussed this case at length. He does not have the typical presentation of AGS
as he does not have any calcifications in the brain and did not present with
thrombocytopenia, hepatosplenomegaly with elevated liver enzymes after birth.
However, there are milder presentation[s] of this syndrome where the calcification
can develop after 1-2 year of age. Therefore, this disorder remains on our
differential. I got permission from the family to contact a Dr. Yanick Crow in
England who is a world expert on AGS to get his opinion.
Id. Dr. Crawford recommended that the lumbar puncture be repeated, as well as a test for IFN-
alpha in the CSF. Id. She stated that, aside from AGS, “mitochondrial disorders are still in the
differential as he has had an elevated lactate in the past, however repeat was normal.” Id. Dr.
Crawford ordered sequencing of H.H.’s mitochondrial genome and stated that “ [S]ince his
differential is still so wide at this point, we will proceed with whole exome sequencing which will
include the mitochondrial genome. This will also look at the 5 genes known to be associated with
Aicardi-Goutieres syndrome.” Id. Dr. Crawford encouraged “intensive therapies to help condition
his muscles and help with regaining milestones.” Finally, Dr. Crawford ordered additional
biochemical labs for diagnostic purposes. Id.
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On December 4, 2013, Dr. Crawford sent a note to Dr. Hollis, providing the details of
H.H.’s visit on December 3, 2013. Ex. 50 at 14. Dr. Crawford stated that:
[H.H.] was last seen in the metabolic genetics clinic on 11/12/2013. At that time,
some metabolic labs were ordered as well as PT and ST. However, 2 days after our
clinic visit, parents felt that he was worsening. They felt he had difficulty
swallowing, increase[d] tone in his legs and increased irritability.
Id. Dr. Crawford noted that H.H. was admitted to the hospital on November 14, 2013 by Dr.
Aalbers in the neurology department. She stated that:
[Dr. Aalbers] felt that he had significant dystonic posturing of his lower extremities.
This led to an emergent MRI of the brain and a lumbar puncture for CSF studies.
He also had some other metabolic labs drawn during that admission. His irritability
improved and he was feeding well by time of discharge on Saturday 11/16/13. He
was started on sinemet during this admission due to the suspicion of dopa-
responsive dystonia. There was a slight improvement in his tone by discharge from
the hospital.
Id. Dr. Crawford further noted that:
Since discharge from the hospital, he continues to get physical therapy. Parents felt
that he was [sleepier] and the increased tone has returned to his legs. His hands
appear to be affected as the parents state that he does not use them as much as before
and he seems frustrated when trying to use his hands, but he is not able to open
them up to use them. Id.
Dr. Crawford noted that “[H.H.] was seen back in clinic by Dr. Aalbers on 11/22/13 and he felt
that his right hand was more dystonic.” Id. A swallow study conducted in the hospital returned
normal results, and an EEG did not demonstrate any seizure activity although “there was mildly
slow background activity.” Id. Dr. Crawford noted that “CSF neurotransmitter studies done on
11/14/13 returned and were abnormal. The neopterin and tetrahydrobiopterin were significantly
elevated.” Id. Lab testing revealed “several long chain acylcarnitine elevated right at the cutoff
ranges” and a “pattern of mildly elevated acids not in a pattern for specific disorder.” Id. at 15. A
brain MRI revealed “mild cerebral volume loss, myelination normal for his age.” Id. Dr.
Crawford’s notes again indicated that H.H. was diagnosed with a developmental delay, specifically
a slight delay in gross motor function and fine motor function/ADLs, and a significant delay in
language functioning. Id.
On December 9, 2013, H.H. underwent an EEG which returned normal findings. Ex. 52 at
45.
On December 18, 2013, H.H. was seen by Dr. Richard Roberts at Cook Children’s Hospital
Neuroscience Center for a consultation regarding his tethered spinal cord. Ex. 53 at 1. In the HPI,
Dr. Roberts noted that H.H. was a
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16-month-old patient who was referred to neurosurgery for findings of a tethered
spinal cord on MRI. The patient was initially worked up for rapid onset of
developmental delay and hypertonia and a possible loss of motor skills. In the
course of workup the patient had [an] MRI which showed a thickened and fat
infiltrated filum terminale. The patient also suffers from constipation. Prior to the
rapid neurologic changes the patient also dragged his right foot.
Id. Dr. Roberts explained the benefits and risks of surgical release of tethered spinal cord to H.H.’s
parents, who indicated they wished to proceed with surgery. Id.
On December 19, 2013, H.H. underwent surgery to release his tethered spinal cord. Ex. 53
at 7. During surgery Dr. Roberts collected cerebrospinal fluid to be tested by neurology. Id. at 8.
Dr. Roberts noted that the procedure was successful and H.H. tolerated the procedure well. Id. He
was taken to recovery in stable condition. Id.
Following surgery, H.H. was seen by Dr. Aalbers. Ex. 55 at 1. Dr. Aalbers noted that the
lumbar puncture showed “remarkably high elevations of biopterin and neopterin; the highest
neopterin levels we have ever seen.” Id. Dr. Aalbers noted that the differential diagnosis in a patient
with new-onset dystonia and significantly elevated neopterin levels was likely “Aicardi-
[Goutières] syndrome.” Id. H.H.’s brain MRI was “completely normal”, but in the interim, he
continued to regress developmentally and was no longer using his arms. Id. Dr. Aalbers also wrote
that H.H.’s elevations of his liver enzymes (325 for the AST and 472 for the ALT) were also
indicative of possible AGS. Id. He noted that H.H. had been “intermittently lethargic, tired more
so than usual over the last 3 or 4 months without significant weight gain.” Id. at 2.
Dr. Aalbers laid out next steps for H.H.’s treatment. Ex. 55 at 3. He ordered an ultrasound
of H.H.’s liver and spleen, noting that “fluctuating liver inflammation and spleen inflammation
can be consistent with Aicardi-Goutieres syndrome with subsequent resolution of the syndrome.”
Id. at 3-4. Dr. Aalbers also ordered a repeat EEG, noting that “patients can have stages of
encephalopathy that come and go, which may explain why his abnormal EEG subsequently
improved, and now that he is having progressive upper extremity symptoms, the EEG would again
be abnormal.” Id. at 4.
Dr. Aalbers noted that AGS was incredibly rare. Ex. 55 at 4. He discussed that H.H.’s
thallium levels were elevated and this could “inhibit glutathione levels and cause similar symptoms
of encephalopathy” to AGS. Id. Dr. Aalbers recommended that H.H.’s parents discontinue all
homeopathic medications until thallium levels could be resolved. Id. In the context of AGS, Dr.
Aalbers noted that H.H. was likely in the early onset of the disease and repeat imaging could now
show evidence of early-onset leukodystrophy. Id. He also ordered testing for H.H.’s CSF interferon
alpha. Id.
Accordingly, H.H. underwent an EEG on the same date. Ex. 53 at 12. Dr. Fernando Acosta,
interpreting the results, stated that “this is an abnormal EEG due to mild generalized background
slowing. This may be consistent with an encephalopathic state. No electrographic nor
electroclinical seizures were recorded.” Id.
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On December 20, 2013, while still in the hospital, H.H. was seen by Lori Thompson, CPNP
for a consultation regarding his elevated transaminases. Ex. 54 at 1. In the history of present illness
section, Ms. Thompson noted that H.H. had a “complex past medical history,” including
“abnormal newborn screening, concern[s] for a possible VLCAD”, and “metabolic genetics.” Id.
Ms. Thompson noted that the workup thus far had been “within normal limits.” Id. She noted an
unremarkable family history. Id. Upon a musculoskeletal examination, she noted “diminished deep
tendon reflexes over lower extremities, spastic tone. His tone is spastic, dynamic, dystonic, and
posture has hypotonia.” Id.
In the medical history, Ms. Thompson noted that H.H. “was a normally developing male
until approximately 15 months of age and he began losing milestones. He cannot walk, sit up, roll
over. He lost his verbal skills, but he is able to babble and is being followed by neurology for
progressive dystonia.” Ex. 54 at 1. She noted that AGS was a concern and that H.H. was being
“worked up by neurology” and by gastroenterology to follow his liver transaminases and evaluate
for the source of the elevation. Id.
On January 2, 2014, NMG labs reported the results of the repeat neurotransmitter studies
ordered by Dr. Aalbers on December 3, 2013. Ex. 52 at 71. H.H.’s neopterin was elevated, with a
value of 270 nmol/L (reference range 7-65 nmol/L), while his tetrahydrobiopterin was also
elevated, with a value of 69 nmol/L (reference range 18-58 nmol/L). Id. Dr. Hyland, interpreting
the results stated that “the concentrations of tetrahydrobiopterin and neopterin were above our
reference ranges. Elevations of neopterin and tetrahydrobiopterin have been described in []
Aicardi-Goutières syndrome.” Id. at 72.
On January 6, 2014, MNG labs reported no abnormalities in H.H.’s sialic acid metabolism.
Ex. 52 at 69.
On January 14, 2014, H.H.’s HIV testing was returned as “non-reactive.” Ex. 52 at 39. His
urine sample contained elevated 3-hydroxybutyrate, elevated 3-hydroxyisobutyric, elevated 2-et-
30hpropionic, elevated methylsuccinic, and low 3-OH-3-methylgutaric. Id. at 40-41.
On January 16, 2014, H.H. visited Dr. Samson Cantu at Cook’s Children’s Hospital for his
abnormal liver enzymes. Ex. 55 at 9. Dr. Cantu noted that H.H. had a history of tethered cord
repair, hypertonia, elevated liver enzymes all of unclear etiology. “Pt has had an extensive work-
up thus far with inconclusive findings. Since release from hospital he has had no jaundice, and
increased bruisability …. He has intermittent constipation responsive to miralax.” Id. Dr. Cantu
also noted that H.H.’s liver ultrasound was normal. Id. Upon examination, Dr. Cantu observed
H.H. as developmentally delayed. Id. at 11. All other systems were normal, including H.H.’s back
following surgery. Id. Dr. Cantu planned to repeat the liver panel, check H.H.’s CK level and
potentially perform a liver biopsy, depending on the results of the liver panel. Id.
On January 17, 2014, Quest Diagnostics returned the labs ordered by Dr. Cantu. Ex. 80 at
8. Under “hepatic function panel”, H.H.’s globulin was measured low at 1.7 g/dL (reference range
2.1-3.5 g/dL), leading to a high albumin/globulin ratio of 2.8 g/dL (reference range 1.0-2.5 g/dL).
Id. His indirect bilirubin was low at 0.1 mg/dL (reference range 0.2-0.8 mg/dL). Id. His AST was
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high at 117 u/L (reference range 3-56 u/L), and his ALT was high at 129 u/L (reference range 5-
30 u/L). Id.
On February 4, 2014, H.H. was seen by Dr. Warren Marks to review the results of his
testing with genetics and neurology. Ex. 56 at 1. Dr. Marks indicated to H.H.’s father that H.H.’s
likely diagnosis was AGS and they were awaiting genetic confirmation. Id.
On the same day, H.H. visited Dr. Crawford at Cook Children’s Hospital, Department of
Clinical and Metabolic Genetics to discuss his disease and diagnosis. Ex. 50 at 23. Dr. Crawford
stated that “[H.H.] has had 2 lumbar punctures that showed an elevated neopterin. This is seen
only in Aicardi-Goutieres syndrome (AGS) and HIV infection. We ruled out HIV infection and
pursued testing for AGS…” Id. at 24. Dr. Crawford noted that blood testing and CSF both “showed
elevated levels of IFN-alpha which is diagnostic for AGS.” Id. In discussing H.H.’s possible
diagnosis with his family, Dr. Crawford stated that
[H.H.] appears to be hav[ing] a later-onset presentation for AGS as he presents after
a long period of normal development. He then presented with developmental
regression and developed progressive dystonia that is characteristic of the disease.
This disease can lead to a severe encephalopathy that can result in severe
intellect[u]al disability and physical disabilities. There is a spectrum for this
disease, so ther[e] are milder cases that have been reported in the literature
depending on which gene is involved. Typica[l]ly, these children have a regression
phase, followed by irritability, then a slow progressive encephalopathy phase.
These children[] typically develop peripheral spasticity, truncal hypotonia, dystonic
posturing upper limbs and poor head control, all of which [H.H.] is currently
displaying.
Id. Dr. Crawford noted that Dr. Crow’s lab in England was working on DNA testing to determine
which of H.H.’s genes were involved in his disease. Id. She noted that AGS is “now known to be
associated with mutation in 6 different genes.” Id. Dr. Crawford stated that “there are currently no
treatments known to affect or slow disease progression” and the H.H. would need “to continue
aggressive therapies due to his hypotonia and dystonia.” Id.
Regarding AGS in particular, Dr. Crawford noted that it is an “autosomal recessive
disorder, therefore recurrence risks for future pregnancies is 25%.... Therefore, if DNA testing
confirms [H.H.] is affected, parents are obligate carriers.” Id.
On March 6, 2014, Petitioner received the results of H.H.’s genetic testing. Ex. 50 at 40.
Only one significant mutation was found, a VLCAD deficiency in the gene ACADVL. Id. at 42.
On the same date, H.H. was seen by Dr. Marks for evaluation. Ex. 56 at 18. Dr. Marks
noted that H.H.’s eyes were “clear and anicteric and non cooperative with fundoscopic testing.”
Id. He observed H.H. to be “awake (but not very interactive)” and that he was nonverbal. Id. Upon
conducting a motor examination, Dr. Marks noted “motor spastic, rigidity, hypotonic axial,
hypertonia appendicular, and dystonia diffuse (and severe generalized dystonic posturing - trunk
and extremities with rigidity).” Id. He was non-ambulatory, and had decreased range of motion in
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his spine. Id. Dr. Marks noted that the diagnosis for H.H. was still “possible AGS” but “with
negative genetic markers thus far.” Id. at 19. Dr. Marks also considered a retroviral infection as a
possible cause. Id. He noted that H.H. suffered from extreme irritability and ordered further testing.
Id.
On March 13, 2014, H.H. was seen by Dr. Kenneth Collins for an infectious diseases
consultation. Ex. 57 at 1. Dr. Collins noted that he was “consulted because [H.H.] is being referred
to the infectious diseases clinic over the next couple of weeks for possible retroviral infection
causing developmental delay.” Id. Under medical history, Dr. Collins noted that H.H.’s “mother
reports that she breastfed consistently until 10/09[/2013]. Within a day or 2 of stopping
breastfeeding he seemed to trip and fall when he was crawling.” Id. Dr. Collins noted that HH.’s
mother reported that H.H. was “completely normal” at his 15-month checkup. Id. Following the
checkup, she “stopped breastfeeding, and within a week he was falling. About 8 days later, after
stopping breastfeeding, he got his 15-month shots. After that time he developed increased inability
to crawl and this progressed over the next couple of months.” Id. Under a review of systems, Dr.
Collins noted that after H.H. “started falling in mid-October his parents noticed that he had a fever
for about a week, with a red throat that resolved.” Id.
Upon examination, Dr. Collins noted that H.H. was irritable, made good eye contact, and
appeared hypertonic. Ex. 57 at 2. His impression was “progressive dystonia with regression of
developmental milestones from 10/2013 through the end of 12/2013, with no improvement in
milestones since then. He is now not eating very well and requires a G button” Id. at 3. He also
had “continuous elevation in liver enzymes with negative hepatitis, cytomegalovirus, and Epstein-
Barr virus serologies.” Id. Dr. Collins wanted to recheck H.H. for HIV, but he thought it was
unlikely that this was the explanation for H.H.’s condition.
On the same date, H.H. was evaluated for placement of a G button. Ex. 58 at 1. It was noted
that “over the last 2 weeks, he is refusing to eat or drink very much. He maybe drinks 6-10 ounces
of PediaSure per day and not really eating unless mom forces him to.” Id. H.H. was also
dehydrated, urinating 2 times per day “in the last 5 days.” Id. He had also lost three pounds since
his 15-month checkup. Id.
On March 15, 2014, H.H. underwent surgery for insertion of a gastrostomy tube. Ex. 59 at
1. H.H. was noted as tolerating the procedure well and the operation was successful. Id. at 2.
On March 25, 2014, H.H. was seen for a lumbar puncture for diagnostic studies. Ex. 56 at
38. Dr. Marks noted that H.H.’s working diagnosis “has been Aicardi-Goutieres syndrome versus
retroviral infection based on his markedly elevated CSF neopterin levels.” Id. Various samples
were taken for neurotransmitter and other testing. Id.
On March 27, 2014, Dr. Marks received the results of H.H.’s updated neurotransmitter
testing. Ex. 56 at 358. H.H.’s neopterin was extremely elevated at 239 nmol/L (reference range 7-
65 nmol/L) and his tetrahydrobiopterin was also elevated at 75 nmol/L (reference range 18-58
nmol/L). Id. Dr. Hyland, the Ph.D. who interpreted the testing, noted that these findings were
consistent with a diagnosis of AGS. Id. at 363.
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On March 31, 2014, H.H. was seen by Dr. Jason Kennedy at Cook Children’s Hospital,
Department of Orthopedics Services for neuromuscular decline. Ex. 60 at 1. Dr. Kennedy noted
that H.H. suffered from a “yet undiagnosed neuromuscular decline.” Id. Interpreting an AP pelvis
radiograph, Dr. Kennedy noted that H.H. had “encased tone throughout his upper and lower
extremities” and could “achieve a plantigrade position of the feet.” Id. He noted that H.H. had
“increased tone at his hip abductors and [had] increased neck-shaft angles on the x-ray” and his
“Shenton’s lines appear[ed] intact.” Id. Dr. Kennedy ordered a repeat AP pelvis radiograph in six
months. Id.
On April 17, 2014, H.H. visited Dr. Cantu. Ex. 61 at 12. Dr. Cantu noted that H.H. had a
“history of hypotonia of unclear etiology” and that he had an “extensive work-up by neurology
with unclear diagnosis, although it has been suggested he may have a variant of Aicardi.” Id. at
13. H.H.’s parents reported that “over the past few weeks, he has begun to [spit]-up/reflux much
more often” and that they were concerned with his level of reflux. Id.
On April 22, 2014, H.H. visited Dr. Marks for follow up regarding neurological regression.
Ex. 56 at 329. Dr. Marks noted that H.H. did “not have words at 19 months” and his “affect has
become more flat.” Id. at 330. He was diagnosed with “progressive encephalopathy and dystonia
with loss of milestones and worsening dystonia. Interferonopathy with elevated [sic] neopterin
clinically suggestive of Aicardi-Goutiere[s] Syndrome.” Id. at 333.
On May 21, 2014, H.H. was seen by Dr. Kyriacos Panayides because the neurology
department wanted a port added to his G button for IVIG treatments. Ex. 59 at 4. The medical
records note that H.H. was throwing up about thirty minutes after feeding. Id. He had pain during
feedings and was irritable at night. Id. A pH probe study was scheduled to attempt to locate the
source of the issue; H.H. had no fever or associated symptoms. Id. Dr. Panayides diagnosed H.H.
with “gastroesophageal reflux that is not responding to medical treatment.” Id. He ordered a UGI
study, noting that “if there is horrid reflux, a fundoplication will be performed at the same time as
the port. If the UGI is equivocal then a formal pH probe study will be done when the port is placed.”
Id.
On May 23, 2014, H.H. was seen by Dr. Jane Keng for consultation regarding feeding
intolerance, vomiting and pain behaviors. Ex. 62 at 1. Nurse notes from that date indicate that the
reflux was not acidic in nature. Ex. 63 at 1. Dr. Keng noted that H.H.’s CBC was normal, sodium
was 147, and his bicarbonate was 21. Id. at 2. She noted that his AST was elevated at 119 and his
ALT was elevated at 125. Id. Dr. Keng’s impression was that the intolerance, pain, and vomiting
may be due to gastroesophageal reflux disease and she suggested that H.H. be placed on external
pain medication rather than IV morphine. Id.
On June 23, 2014, H.H. was admitted to the hospital for a follow up with Dr. Marks after
placement of his gastronomy feeding tube. Ex. 56 at 325. A review of his mental status noted that
he was “awake (but not very interactive).” Id. at 328. He was nonverbal. Id. A motor system exam
revealed “motor spastic, rigidity, hypotonic axial, hypertonia appendicular (and severe generalized
dystonic posturing – trunk and extremities with rigidity).” Id. His reflexes were “1+ equal
throughout and brisk throughout.” His plantar reflex was “upgoing bilaterally (spontaneous
extensor responses).” Id. H.H. was “unable to perform heel-to-shin bilaterally.” Id. He was noted
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to have “prominent scissoring.” Id. He was non-ambulatory and had decreased range of motion in
his spine. Id. His abdominal surgical wound was partially healed. Id. He was assessed with
“progressive encephalopathy and dystonia with loss of milestones and worsening dystonia.
Interferonopathy with elevated neopterin clinically suggestive of Aicardi-Goutiere[s] Syndrome
but with negative genetic testing by two different labs.” Id. Dr. Marks stated that because of the
negative genetic testing, he was “inclined to try several months of IVIG treatment.” Id. He noted
however, that after a literature review, it did “not appear that IVIG, steroids, [or] azathioprine
[would be] particularly effective” if H.H. did in fact have AGS. Id. at 329. Nevertheless, H.H.
began IVIG treatments in June 2014 which lasted for six months. Id.
On October 6, 2014, H.H visited Dr. Kennedy for a follow up. Ex. 60 at 25. Dr. Kennedy
discussed with H.H.’s parents that H.H. had “neuromuscular hip dysplasia and increasing
migration.” Id. Dr. Kennedy suggested Botox in the gastrocsoleus complex as treatment. Id.
On November 3, 2014, H.H. was seen for a lumbar puncture and Botox injections. Ex. 56
at 84. In a patient history obtained from H.H.’s mother, it was noted that H.H. developed “sudden
regression after vaccines at 15 mo[nths] old.” Id. at 104. Nurse notes from that date also indicate
that H.H. suffered from an “autoimmune response to vaccines.” Id. at 106. The notes from the
procedure indicate that H.H. “has laboratory findings consistent with Aicardi-Goutières
syndrome.” Id. Dr. Marks noted that H.H. had “been on 6 months of IVIG therapy and is here for
follow [] up studies.” Id. Labs conducted that same day revealed that H.H.’s IGG serum was
elevated at 2280 mg/dL (reference range 407-1009 mg/dL) and his CSF IGG/albumin ratio was
elevated at 0.26 (reference range 0.09-0.25). Id. at 92. His neopterin was extremely elevated at 300
nmol/L (reference range 7-65 nmol/L) and his tetrahydrobiopterin was elevated at 87 nmol/L
(reference range 18-50 nmol/L). Id. at 93.
On February 4, 2015, H.H. was seen by Dr. Michel Fayad at Boston Children’s Hospital.
Ex. 97 at 3. It was noted that H.H. had a history of regression at the age of 15 months and “the
regression happened around the time of his immunizations.” Id. at 2. Dr. Fayad noted that neither
metabolic work-ups or genetic work-ups showed any results and the possibility of an autoimmune
process was still something to look into. Id. at 3. Upon examination, he noted that H.H. was unable
to sit, crawl, or roll over, but socially he was “very interactive.” Id. at 2.
On March 6, 2015, Dr. Marks provided a letter stating that he was the “pediatric neurologist
caring for [H.H.].” Ex. 56 at 294. He stated that H.H. had been seen in the neurology clinic for
“autoimmune encephalitis” and that “he has received IVIG infusions.” Id. Dr. Marks also noted
that H.H. “has a gastrostomy tube for feeding.” Id. at 33.
On March 20, 2015, H.H. was seen by Dr. Lesley Hall, Dr. Miriam Bloom, Dr. Sally Evans,
Dr. Adeline Vanderver, and Amy Fizzino, MGC at the Myelin Disorders Clinic. Ex. 81 at 1. In
summarizing the visit, Dr. Vanderver noted that H.H. was seen “in the context of developmental
delay, dystonia, abnormal MRI and elevated CSF interferon/neopterin/tetrahydrobiopterin with a
clinical diagnosis of Aicardi Goutieres Syndrome, but negative genetic testing and no visible
intracranial calcifications on an early CT scan.” Id. In summarizing H.H.’s clinical picture, Dr.
Vanderver noted that:
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[H.H.] [h]ad been fine until about 15 months of life, hitting all milestones on time.
In late October he had his 15-month vaccination (dTaP, flu, pneumonia).
Approximately a week later his crawling was deteriorating. He also had a fever of
about 102. Two weeks later he had rapid decline of motor function over 4 days,
with loss of ability to crawl, sit, talk, or use his arms purposefully. He was
extremely irritable. Per parents recollection he was not encephalopathic.
Id. Dr. Vanderver further noted that IVIG treatments beginning in June 2014 and lasting six months
“did not seem to improve things significantly.” Id. Dr. Vanderver noted that since that time, H.H.
had been “fairly stable” and possibly even showed improvement in August 2014, “where he started
to try to support himself in sitting and reaching for objects” as well as trying to use language. Id.
at 2. Dr. Vanderver noted that H.H. does, however, continue to have significant crying and
apparent discomfort. Id. Family history, birth history, and social history were reviewed and found
to be unremarkable in relation to H.H.’s symptoms. Id. at 3-4.
Upon examination, Dr. Vanderver noted that H.H.’s sleep was “poor” with multiple
awakenings during the night with crying. Ex. 80 at 2. H.H. also presented with sweating and a
faster respiratory rate while crying. Id. His parents estimated that he cried about thirty percent of
the day. Id. H.H. had dystonic posturing and crying, occasionally with…myoclonic jerks. Id. His
neurologic examination showed that H.H. was able to “briefly regard” the examiner, but he had
“no vocalizations with communicative intent and did not demonstrate receptive skills” during the
examination. Id. at 4. Dr. Vanderver’s impression was “developmental delay, dystonia, and
encephalopathy.” Id. at 6. Dr. Vanderver planned to follow up with Dr. Crow (AGS expert) to
facilitate genetic resolution of H.H.’s suspected heritable interferonopathy. Id.
On April 1, 2015, H.H. was seen by Dr. Eric Hubli for an enlarged soft palate. Ex. 76 at
23. Dr. Hubli did not see signs of an enlarge palate, but saw signs of a possible upper airway issues
for which he recommended a pulmonary evaluation. Id. at 26.
On April 2, 2015, H.H. visited Dr. Michelle Marcincuk for a sleep consultation due to his
persistent snoring. Ex. 72 at 13-14. In the HPI, Dr. Marcincuk noted the following was “reported
by parent”: “Pt got vaccines about 1.5 years ago. Within 3 [] months had dev regression.” Id. at
14. She noted that per H.H.’s mother, genetic testing was negative. She noted that Dr. Hubli (seen
on April 1, 2015) believed he had low muscle tone and currently suffered from dysphagia due to
low muscle tone. Id. Upon examination, she noted that his affect was “consistent with
encephalopathy” and that he suffered from hypotonia and spasticity. Id. Dr. Marcincuk diagnosed
H.H. with obstructive sleep apnea and hypertrophy of his tonsils and adenoids. Id. Dr. Marcincuk
explained to H.H.’s parents that corrective surgery would likely be required. Id.
On April 14, 2015, H.H. was seen by Dr. Sami Hadeed for complaints of stridor. Ex. 69 at
21. In the patient history, Dr. Hadeed completed notes, which summarized a history provided by
Mrs. Heller. These notes indicate that H.H. was “reportedly in perfect health until 15 months of
age when he developed neurological problems that his parents attributed to immunization. [H]e
was subsequently diagnosed with autoimmune encephalitis.” Id. at 22. H.H.’s parents stated that
H.H. had “noisy breathing” since birth, but this had gotten “markedly worse since he developed
neurological problems specially since December.” Id. H.H. had been seen by Dr. Marcincuk, who
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diagnosed him with tonsillar and adenoidal hypertrophy, and recommended a tonsillectomy and
adenoidectomy, along with a flexible fiberoptic bronchoscopy. Id. Upon examination of H.H.’s
lungs, Dr. Hadeed noted “retractions, intercostal retractions, subcostal retractions, and strider
inspiratory and clear to auscultation and no distress.” Id. at 24. A review of H.H.’s musculoskeletal
systems indicated “contractures”, and an examination of his reflexes showed abnormalities of his
deep tendon reflexes. Id. Dr. Hadeed assessed H.H.’s stridor as secondary to pharyngomalacia and
his snoring as suggestive of a severe obstructive sleep apnea. Id. at 25.
On April 23, 2015, H.H. was seen by Dr. Cantu for a follow up of his feeding problem and
gastroesophageal reflux disease. Ex. 80 at 23. In the history of present illness, Dr. Cantu noted that
H.H. had a history of developmental delay, static encephalopathy, swallow dysfunction, and
gastrostomy-tube dependence. Id. Per H.H.’s mother, he was gaining weight well. Id. at 24. H.H.
was in a wheelchair. Id. at 25.
On April 27, 2015, H.H. was seen for a follow up with Dr. Kennedy. Ex. 60 at 14. In
interpreting an AP pelvis radiograph, Dr. Kennedy noted that H.H. “appeared to have more well-
seated hips today” and his tone was “much improved.” Id.
On April 28, 2015, H.H. was admitted to the hospital for several procedures. Ex. 72 at 1.
H.H. first underwent a bronchoscopy. Ex. 69 at 19. The procedure went well, and H.H. was
diagnosed with moderate to severe pharyngomalacia and moderate laryngomalacia. Id.
On the same date, H.H. underwent a successful tonsillectomy and adenoidectomy. Ex. 69
at 41, Ex. 72 at 4. He was admitted to the PICU following the procedure. Id. A physical exam the
next day revealed hypotonia and abnormal deep tendon reflexes. Id. It was also noted that he had
a swallow dysfunction. Id. at 45. An examination by Dr. Hadeed revealed that H.H. was in severe
pain but calmed down following administration of morphine. Ex. 70 at 13. In the HPI, Dr. Hadeed
noted that H.H. had suffered from autoimmune encephalitis since 15 months of age. Id.
On April 29, 2015, labs were taken, measuring H.H.’s hemoglobin to be high, with a value
of 13.2 g/dL (reference range 11.5-13.0 g/dL). Ex. 72 at 9. His sodium bicarbonate was also high,
measuring at 7220 mm3 (reference range 1500-5000 mm3). His Eosinophils and Eosinophil Count
Test (EOC) was low, measuring at 10 mm3 (reference range 30-800 mm3). Id. In the interpretation
section of the results, it was noted that these findings were consistent with methicillin resistant
staphylococcus aureus. Id. at 10.
On the same date, H.H. underwent an allergy panel. Ex. 77 at 1-2. H.H was noted to be
allergic to cow’s milk. Id. at 2.
On April 30, 2015, H.H. was discharged from the hospital. Ex. 72 at 1. He was scheduled
for a sleep study a month later to observe if further surgery was needed. Id. at 2.
On May 3, 2015, H.H. was admitted to the hospital emergency room with fever, lethargy,
poor perfusion, mild hypoxemia and concern for sepsis. Ex. 69 at 1. Under pertinent medical
history during triage, nurse notes indicated that H.H. suffered from dystonia and encephalopathy,
along with “auto immune response to vaccines”, among other conditions. Ex. 71 at 14. H.H. was
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given IV broad-spectrum antibiotics and admitted to the intensive care unit for further evaluation
and treatment. Id. While in the hospital, H.H. was treated for parainfluenza bronchitis, sepsis
syndrome, hypoxemia secondary to bronchitis, acute respiratory distress secondary to bronchitis,
acute respiratory failure, fever secondary to bronchitis, and severe pharyngomalcia. Id. His
hospital discharge records indicate that he suffered from autoimmune encephalitis and
encephalopathy and developmental delay secondary to autoimmune encephalitis. Id.
On June 24, 2015, H.H. was seen by Dr. Marks for a follow up appointment. Ex. 56 at 389.
His condition was largely unchanged. Id. at 389-391. At this point he was standing, albeit with
“max support.” Id. at 389.
On November 2, 2015, H.H. was seen by Dr. Kennedy for follow up of his hip dysplasia.
Ex. 95 at 67-68. His parents reported that they were able to get him on a horse for therapy and that
he was scissoring less. Id. at 68. Dr. Kennedy noted that his tone was increased throughout and he
had had good response to Botox, which may be useful to try again. Id. at 71.
On February 29, 2016, H.H. was seen by Dr. Kennedy for hip tightness. Ex. 95 at 59-60.
H.H. was non ambulatory and was extremely inflexible. Id. at 61-62. Dr. Kennedy recommended
Botox injections. Id. at 62.
On March 4, 2016, H.H. was seen by Dr. Marc Mazade at the infectious diseases clinic as
a new patient. Ex. 95 at 54, 57. It was noted that H.H. “stopped vaccines after 15 months due to
neurologic condition that developed after vaccine administration.” Id. at 56. The following patient
history was obtained from Mrs. Heller and entered into the notes section of the record by Dr.
Mazade:
[H.H.] is a now 3-year-old boy who was seen by Dr. Whitworth in pediatric
infectious diseases consultation as an inpatient on March 14, 2014 in regard to
dystonia and progressive developmental delay. He has subsequently been
diagnosed with encephalitis of an autoimmune nature presumably due to
vaccinations two weeks previously. He is referred back to Infectious diseases now
for possible recurrent C difficile infection. … His immunizations are on hold due
to the concern for immunologically mediated neurologic injury.
Id. at 57.
On May 18, 2016, H.H. was seen by Dr. Marks at the spasticity clinic Ex. 95 at 49. H.H.
was noted to be wheelchair bound, keeping his hands loosely fisted throughout the exam. Id. at 53.
His mother reported that normally he was able to open them easily. Id. Dr. Marks noted “dystonic-
type UE movements present. LEs scissor when he is lifted. Id.
On July 7, 2016, H.H. received Botox injections in his hips. Ex. 95 at 223. The procedure
was uneventful and H.H. was discharged home. Id.
On August 29, 2016, H.H. was seen by Dr. Kennedy for a follow up exam following a
Botox injection. Ex. 95 at 41-42. Dr. Kennedy noted that H.H. had “further migration of
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progression of his neuromuscular hip dysplasia” and corrective surgery would soon likely be
required. Id. at 45.
On November 1, 2016, H.H. was seen by Dr. Abigail Collins at the Neurology Clinic at
Children’s Hospital Colorado for treatment with medical marijuana. Ex. 98 at 1. H.H. was still
wheelchair-bound at this time. Id. at 3. It was noted that H.H. had not been treated with
immunomodulatory therapies to address his ongoing inflammation. Id. at 5. A physical exam was
largely unchanged from previous exams, although it was noted that H.H. was having difficulty
with lateral tongue movements. Id. Dr. Collins suggested continuing a trial of medical marijuana
for tone. Id. at 6. She also strongly recommended that H.H, undergo immune-mediated treatments
(such as steroids or Rituximab) after her review of the medical records. Id.
On December 5, 2016, H.H. was seen by Dr. Kennedy following treatment in “Colorado
for treatment with distilled cannabinoids for his overall spasticity and neurologic function.” Id. at
38. Dr. Kennedy noted that he continued to have decreased range of motion to his hips, most
notably to his right hip. Id. at 39. H.H. had no issues with his spine. Id. Dr. Kennedy discussed
surgery for bilateral adductor releases and bilateral proximal femoral varus derotational
osteotomies with H.H.’s parents. Id. at 40. H.H. was scheduled for surgery on December 8, 2016.
Id.
On December 8, 2016, H.H. underwent surgery for bilateral adductor releases and bilateral
varus derotational osteotomies of the femora. Ex. 95 at 199. The procedure was uneventful and
H.H. was discharged home on December 12, 2016.
On December 21, 2016, H.H. visited Dr. Kennedy for a follow up after his hip surgery. Ex.
95 at 31. This was his first visit post-surgery. Id. at 34. Dr. Kennedy observed no complications
from his surgery and explained that H.H. could begin gentle therapy. Id. at 34-35.
On January 16 , 2017, H.H. again visited Dr. Kennedy for a follow up after his hip surgery.
Ex. 95 at 27. At this point, he had no weight bearing restrictions, but was still reluctant to fully
extend his hips. Id. at 30-31. H.H. was noted to be healing well and improving gradually with his
flexibility. Id.
On February 27, 2017, H.H. had another follow-up with Dr. Kennedy after his hip surgery.
Ex. 95 at 22. H.H.’s examination was fairly unremarkable and his mother reported continued
improvement in stretching of his lower extremities. Id. Dr. Kennedy noted that H.H. had tightness
in his “gastrocs”, but as he continued to improve, this should resolve. Id. at 26.
On May 1, 2017, H.H. visited Dr. Marks. Ex. 95 at 17. The medical record noted that he
stopped receiving vaccines “after 15 months due to [a] neurologic condition that developed after
vaccine administration.” Id. at 18. H.H.’s mother clarified that he was up to date on all vaccines
except those normally received at four years old. Id.
On May 22, 2017, H.H. visited Dr. Marks for a follow-up 5.5 months post hip surgery. Ex.
95 at 15. He was noted to be “doing better” and making progress on his hip flexion contractures.
Id. at 16. Dr. Marks scheduled a follow up appointment for four months later. Id.
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On June 26, 2017, labs ordered by Dr. Marks found H.H.’s glucose elevated at 121 mg/dL
(reference range 60-115 mg/dL). Ex. 95 at 77. A neurotransmitter study ordered the same date (but
reported on August 7, 2017) found H.H.’s neopterin levels to be normal, at 47 nmol/L (reference
range 7-65 nmol/L) and his tetrahydrobiopterin to be normal as well at 26 nmol/L (reference range
18-50 nmol/L). Id. at 78. All other results were also within normal ranges. Id. at 77-92.
That same day, H.H. underwent an MRI of his brain. Ex. 95 at 147. The MRI indicated that
H.H. had lost white matter volume over the past three years. Id. The corpus callosum was complete
but “quite thin”. Id. There was also “increased abnormal T2/FLAIR hyperintensity in the
periventricular white matter, extending into the centrum semiovale in the frontal regions and in the
periventricular white matter.” Id. Dr. Hayden Head, interpreting these results, noted that these
findings were concerning for a cerebral neurodegenerative process. Id. at 148. Finally, it was noted
that H.H.’s “maxillary sinuses are nearly completely opacified. There is also opacification of most
of the bilateral mastoid air cells.” Id. Dr. Head requested clinical correlation for sinusitis and ear
infection. Id. at 148.
On July 9, 2017, H.H. was seen by Dr. Jian Tong at Cook Children’s Emergency
Department with complaints of seizure. Ex. 95 at 105. The seizure started with “eyes twitching
then full body twitching upon ambulance arrival.” Id. Upon arrival of EMS, H.H. had “lip
smacking and eye rolling…and he also began to develop [] right upper extremity and then left
upper extremity tonic-clonic twitching.” Id. at 114. He had no history of seizures. Id. at 105. Under
medical history, it was noted that H.H suffered from “vaccine dystonia.” Id. The seizure lasted
approximately one hour and H.H. was reportedly playful and active prior to symptoms. Id. He had
no fever prior to the seizure. Id. Upon arrival at the emergency department, H.H. had a fever of
103o F, a white blood cell count of 21, and hypoxia, with O2 saturation 86% on room air. H.H. was
intubated. Id. Upon admission, H.H. was chemically sedated and paralyzed. Id. at 110. His O2
saturation was 97% on mechanical ventilation. Id. He had “coarse breathing sounds bilaterally.”
Id. He was also tachycardic. Id.
While still in the hospital, H.H. was seen by Dr. Ryan Meyer, who noted that H.H. had a
past medical history “significant for autoimmune encephalopathy thought to be vaccination related
with severe dystonia” at normal baseline prior to the onset of seizure. Ex. 95 at 114. Dr. Meyer
noted that a blood gas was obtained which revealed a pH of 6.97 and a CO of 111. Id. H.H. was
2
transferred to the PICU and continued to receive ventilation. Id.
Later that day, an electroencephalogram was conducted by Dr. Adrian Lacy. Ex. 95 at 126-
27. Dr. Lacy noted that H.H. was “a 4-year-old patient with a prior history of developmental delay
and dystonia, who is admitted with febrile seizure, manifesting with right face and arm clonus and
right eye deviation, as well as impaired mental status.” Id. at 126. Upon examination, Dr. Lacy
observed that “The hypersomnolence and generalized slowing seen in states of maximal
stimulation during the recording are reflective of diffuse nonspecific neuronal dysfunction as may
be seen in multiple encephalopathic or sedated states.” Id. at 127.
On July 10, 2017, Dr. Meyer observed significant improvement in H.H.’s condition. Ex.
95 at 133. An EEG taken overnight showed no seizure activity and no epileptiform activity. Id.
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Dr. Lacy, also examining H.H. that day, stated that H.H. appeared to return to his prior baseline.
Id. at 134. Under impression, Dr. Lacy wrote:
This is a very interesting almost 5-year-old patient with a prior history of acute
encephalopathy with dystonia occurring at approximately 16 months of age, which
has been previously associated with vaccinations by parents, although the
significance of this is unclear, who has had extensive testing and have some
chemical parameters consistent with Aicardi Goutieres syndrome, for which the
range of onset and symptomatology may be relatively wide. However, the patient
does not have any gene mutations associated with this syndrome, and variants of
uncertain significance in his whole exome sequencing have not been shown to be
associated. He is being treated symptomatically for his dystonia, and recent
neuroimaging shows progressive white matter volume loss consistent with an
ongoing neurodegenerative process of uncertain origin…. The origin of the seizure
at this time is of uncertain cause, but the patient was not known to have fever prior
to the onset of seizure, and has not had fever since, has no evidence for encephalitis
currently by examination or by spinal fluid study. EEG is strongly suggestive of
postictal slowing in the left posterior temporal region, which is strongly concordant
with the patient's seizure semiology.
Id. at 135.
On July 11, 2017, H.H. was discharged from the hospital. Ex. 95 at 130. In the discharge
summary, it was noted that:
[H.H.’s] condition and new changes were discussed extensively with his attending
neurologist, Dr. Warren Marks. The management of Aicardi-Goutieres syndrome
is unclear, but it is felt by world-wide authorities that rituximab and other B-cell
immunotherapy is not effective. The management of seizures is not different with
Aicardi-Goutieres syndrome than with epilepsy syndromes. The plan arrived at in
discussion with Dr. Marks and family was for the patient to be discharged home
with Diastat to be used as rescue if needed, continue seizure precautions and first
aid and ER warnings, repeat EEG following discharge at baseline to evaluate for
need for initiation of antiepileptic therapy, and Dr. Marks will seek authorization
for a new medication, which is designed to inhibit the JAK-1 pathway, and
experimental use for AGS.
Id. at 131.
On August 23, 2017, H.H. was seen by Dr. Kennedy for a follow up appointment. Ex. 95
at 6. Dr. Kennedy noted H.H. liked to attempt standing. Id. at 10. He had had stem cell treatment
done in Panama, though H.H.’s mother reported no effect as of yet. Id. At the time, Petitioner was
still awaiting news from Dr. Vanderver or Dr. Crow regarding H.H.’s molecular diagnosis. Id.
On October 2, 2017, H.H. was seen by Dr. Kennedy for a follow up after his hip surgery.
Ex. 95 at 1. He was noted to be comfortable and his hip flexion contractures were improving. Id.
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at 5. Dr. Kennedy noted that H.H. was not progressing towards ambulation at this point, although
he had “wide, symmetric abduction of the hips and [was] continuing to improve.” Id.
On November 29, 2017, H.H. visited Dr. Marks. Ex. 96 at 98. H.H.’s mother stated that at
the time, the only medication he was on was Botox. Id. at 101. She denied any new concerns
regarding H.H.’s condition. Id. at 102. Upon examination, Dr. Marks noted that H.H.’s hypertonia
seemed improved since his last visit. Id. He had bilateral Achilles contractures and his hips were
“very tight.” Id. He was “attentive and cooperative” and engaged well with others. Id. Dr. Marks’
assessment was “progressive encephalopathy and primary dystonia with loss of milestones and
worsening dystonia” and “interferonopathy with elevated neopterin clinically consistent [with]
Aicardi-Goutiere[s] Syndrome or other autoimmune mediated event.” Id.
On October 1, 2018, H.H. was seen by Dr. Marks for planned Botox injections in his lower
extremities. Ex. 96 at 1-2. Dr. Marks described H.H.’s condition as “autoimmune [encephalitis] –
presumed Aicardi Goutiere[s] syndrome.” Id. at 2.
On December 10, 2018, H.H. was seen by Dr. Marks for a neurologic exam. Ex. 96 at 5.
Dr. Marks noted that per his parents, H.H. had been less active since he received Botox injections,
with intermittent dilated pupils and coolness of his extremities. Id. H.H. was observed to be
somnolent and nonverbal. Id. His pupils were pharmacologically dilated and he had generalized
truncal hypotonia. Id. He had increased reflexes and bilateral striatal toes. Id. at 6. Dr. Marks noted
that H.H.’s dystonia was worsening. Id. Regarding AGS, Dr. Marks noted that H.H. had “negative
genetic testing by two different labs for all seven known AGS genes – however that only covers
95% of AGS cases.” Id.
On January 10, 2018, H.H. was seen by Dr. Kennedy for a pre-op discussion regarding his
G button and removal of hardware. Ex. 96 at 69. H.H.’s mother reported that he was “tight” in his
adductors. Id. Upon examination, his neurological condition was largely unchanged. Id. Upon a
musculoskeletal examination, Dr. Kennedy noted that H.H.’s hip flexion contractures were
improving, and that his ankles could be “fatigued to a neutral positioning.” Id. at 73. H.H.’s
radiographs showed that he had “well-seated” hips. Id.
On January 23, 2019, H.H. was seen by Dr. Marks. Ex. 96 at 10. Dr. Marks noted that H.H.
was deteriorating with motor regression – “severe quadriparesis dystonia/spasticity with bulbar
involvement.” Id. Dr. Marks noted that H.H. was “more alert” and his extremities seemed cool
rather than warm. Id. His examination was largely unchanged from December 10, 2018. Id. at 11-
12. Dr. Marks noted that H.H. did not have independent sitting and no standing, and that he
appeared lethargic. Id. at 11-12.
Dr. Marks noted that H.H.’s dystonia was currently being treated symptomatically. Ex. 96
at 13. He stated that the “best plan would be a JAK 1/2 inhibitor”, noting that he had discussed the
idea with Dr. Janik Crow and Dr. Vanderver (CHOP). Id. He also stated that “JAK 1/2 inhibition
would appear [to be] the best treatment even if [H.H.’s injury was] triggered by [an] immune
response to external stimulus such as immunization.” Id.
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On the same date, H.H. was seen for an MRI of the brain. Ex. 96 at 15. Dr. Hayden Head,
interpreting, found “cerebral white matter volume diffusely moderately diminished, with
associated continued thinning of the corpus callosum.” Id. at 16. He also noted a “persistent thin
band of abnormal T2/FLAIR hyperintensity in the periventricular white matter” and “abnormal
T2/FLAIR hyperintensity with suspected volume loss of bilateral insula.” Id. Further, “the third
ventricle [was] substantially larger, while still maintaining a non-obstructed appearance.” Id. “The
lateral ventricles and fourth ventricle [were] mildly larger. The subarachnoid spaces and cerebella
fissures [were] newly prominent.” Id. Trace fluid was noted in the mastoid air cells, “markedly
decreased” from H.H.’s previous MRI. Id. Dr. Head’s impression was “enlargement of ventricles
and subarachnoid spaces” and he was concerned for progressive neurodegeneration. Id. He also
noted that there was “no significant change of already existing abnormalities” and that “for
Aicardi-Goutieres syndrome, the severity of findings is quite mild.” Id.
H.H.’s neurotransmitters were also measured at this visit. Ex. 96 at 14. His neopterin was
elevated at 176 nmol/L and his tetrahydrobiopterin was also elevated at 42 nmol/L.
On July 22, 2019, H.H. visited Dr. Shirley Tetteh at Cook Children’s Hospital Emergency
Department. Ex. 96 at 17. H.H. presented with “seizure-like activity” at home, for which his home
health nurse administered two doses of Diastat. Id. at 18. His mother stated that his seizure lasted
for about four hours and H.H. was febrile approximately two hours into the seizure. Id. Per the ED
nurse’s note, H.H. was actively seizing upon arrival. Id. Dr. Tetteh also noted that three weeks
prior, H.H. had received his third regimen of stem cell treatment in Panama. Id. H.H. was admitted
to the hospital. Id. Upon examination, it was noted that H.H. “appeared thin” and had increased
tone in both his upper body and lower body. Id. at 39-40. He also had abnormal muscle tone. Id.
at 40. H.H. was admitted to the hospital on the same date. Id. at 17.
On September 4, 2019, H.H. was seen by Dr. Marks and his MA, Ms. Kim Sunday. Ex. 96
at 56. His examination was largely unchanged from his neurological baseline. Id. at 58-60.
No additional medical records pertinent to this decision have been filed.
III. Petitioners’ Affidavits and Testimony
A. Affidavits
1. Heathe Heller
Mr. Heller is H.H.’s father. He testified that H.H. was born with no complications and was
otherwise healthy prior to his October 17 and 23, 2013 vaccinations. Ex. 64 at 1-2. H.H. was
developmentally on track for a 15-month old child. Id. at 2. H.H was “able to walk with one hand
assistance, crawl on his own, and climb.” Id. H.H. was also able to say some words like “Mama”
and “Dada”, and interact with family members by waving, kissing, and playing with the family
dog. Id.
The first time Mr. Heller noticed a change in H.H.’s health and behavior was one week
after his 15-month checkup where he had received his vaccinations and flu shot. Ex. 64 at 2. H.H.
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lost the ability to do many of the things he had been able to do prior, including crawling, feeding
himself, talking, waving, and standing. Id. H.H. also seemed to be more irritable, and in a lot of
pain. Id. In early November of 2013, Mr. Heller remembered that H.H. ran a fever of 102º F for
two days and was recommended by Dr. Hollis to see a neurologist. Id. In December 2013, H.H.
was referred to many specialists and had many tests and procedures performed. Id. H.H. still does
not have a diagnosis but has general diagnoses of dystonia and encephalopathy. Id. at 2-3.
2. Jenna Heller
Mrs. Heller gave birth to H.H. with no complications and he was a healthy child who
experienced normal minor illnesses. Ex. 65 at 1-2. H.H. was a happy, outgoing, and energetic
child; he liked to play with golf clubs, hit golf balls, and play with the family dog. Id. at 2. Mrs.
Heller took H.H. to his 15-month vaccinations in October 2013, where he received his influenza
and DTaP vaccinations. Id. About a week after his vaccinations, H.H. ran a fever and his overall
health declined. Mrs. Heller took H.H. to Dr. Leslie Hollis, who referred him to specialists at Cook
Children’s Hospital. Id. Doctors and specialists have not been able to determine H.H.’s diagnosis
but he is being treated for dystonia and encephalopathy. Id. Mrs. Heller stated that “The only
possible cause for H.H.’s drastic and significant decline in health is a complication resulting from
the vaccinations he received at fifteen months, based on the timing and the severity of his
problems.” Id. at 3. It is devastating to see H.H. unable to do the things he used to love so much.
Id. H.H. is now in a wheelchair and requires a feeding tube to eat. Id.
3. Angela Kleinhans
Ms. Kleinhans is H.H.’s aunt. Ex. 92 at 1. Ms. Kleinhans stated that her daughter, H.H.’s
cousin, suffered from a vaccine reaction at her four month vaccinations so she has been aware of
potential side effects ever since. Id. at 2. Ms. Kleinhans stated that H.H. regressed so severely she
immediately thought it was related to his vaccinations. Id. Ms. Kleinhans also recalled that H.H.
was a very normal baby and met his milestones on time. Id. Ms. Kleinhans noted that “The
weekend after H.H. received his 15 months vaccinations he came down with a really high fever….
A few days [after October 23, 2013] he got sick and he was never the same again.” Id. Ms.
Kleinhans remembered receiving a call from Mrs. Heller to come to her house the weekend of
November 1st because she was worried about H.H. and he was now “doing this limp thing with his
leg.” Id. Ms. Kleinhans stated she saw H.H. two times each week after this date and saw H.H.
rapidly declining, from walking to limping, to crawling, and then crawling with his right leg
dragging behind him. Id. at 3. Ms. Kleinhans recalled that the family believed he had simply
injured his leg, but around November 8, 2013, Ms. Kleinhans saw that H.H. could no longer crawl
or sit up. Id. Ms. Kleinhans next recalled that H.H.’s hands “started turning in” and he could no
longer hold his head up on his own. Id. Ms. Kleinhans stated the Hellers took H.H. to the doctor
around November 13, 2013 and in the ensuing weeks, H.H. lost all speech, he would gag on all
food he ate, and he lost all motor skills. Id.
4. Sheri Huling
Ms. Huling signed her affidavit on March 21, 2016. Ex. 91. Ms. Huling is H.H.’s great aunt
and had worked as a pediatric physical therapist for 35 years as the time she signed her affidavit.
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Id. at 2. Ms. Huling noted that H.H. was crawling, standing, and was able to take steps between
furniture before his vaccine on October 23, 2013. Id. Ms. Huling stated that a few weeks prior to
his October 23, 2013 vaccination, she noticed some tightness in his right heel cord that she directed
Mrs. Heller to bring up at H.H.’s next appointment. Id. Ms. Huling recommended some stretches
for Mrs. Heller to do with H.H. Id. Because H.H. was bearing weight on both legs, Ms. Huling
was not concerned. Id.
Ms. Huling next saw H.H. on October 31, 2013 for Halloween and noticed him fall over
when in a sitting position, and fall on a separate occasion when he was standing. Id. Ms. Huling
described a distinct memory where H.H. was standing in the family driveway as other children
were boarding a hayride and noticed H.H. “just falling down while standing.” Id. at 2-3. Ms. Huling
described receiving a call from Mrs. Heller on November 14, 2013. Id. at 3. Mrs. Heller was very
concerned because H.H. was unable to sit up or crawl and wanted Ms. Huling to see him so she
knew what to do. Id. Within two minutes of seeing H.H., Ms. Huling averred that she knew there
was a “serious neurological insult.” Id. Ms. Huling noted that H.H.’s trunk “was so hypotonic he
would just bend over forward while sitting on the floor and then could not right himself with his
arms.” Id. H.H.’s arms also could not support his body to crawl. Id. Everyone left for Cook
Children’s Hospital immediately. Id. H.H. continued to deteriorate over the next few months and
is now wheelchair dependent. Id.
Ms. Huling testified at the January 22, 2020 entitlement hearing noting discrepancies
between this affidavit and a letter she wrote to Ms. Guerra which served as the basis for her
affidavit. See Tr. at 205-07. Ms. Huling’s letter to Ms. Guerra was filed as Exhibit 102. In this
letter, Ms. Huling stated that H.H. was crawling, standing, and taking steps between furniture prior
to his vaccine on October 17, 2013. Ex. 102 at 1. After his pneumonia and flu vaccine on October
17, 2013, H.H. and Mrs. Heller visited Ms. Huling. Ms. Huling noticed that “over the last few days
[H.H.] was having some trouble cruising around furniture and taking steps and [Mrs. Heller] asked
me to take a look at him from a therapist perspective.” Id. at 1 (emphasis added). Ms. Huling
noticed that H.H. had right heel cord tightness that was alarming and told Mrs. Heller to bring this
matter up at H.H.’s next visit on October 23, 2013. Id. Ms. Huling next saw H.H. on Halloween
and noted worsening tightness in his right heel cord and described two instances where he fell
while sitting and standing. Id. The other details provided are similar to what was stated in her
affidavit. See generally id.; see generally Ex. 91.
B. Testimony
1. Heathe Heller
Mr. Heller testified at the January 22, 2020 entitlement hearing. Mr. Heller is a gas and oil
consultant in Midland, Texas. Tr. at 95-96. Mr. Heller described H.H.’s first year of life as fun
because he was such a playful child. Id. at 96. Mr. Heller did not accompany Mrs. Heller to the
vaccination appointments but his first recollection of something being wrong was when H.H.
began dragging his leg. Id. at 98. Mr. Heller also testified that he noticed something “was different”
on Halloween but couldn’t pinpoint a specific date regarding when H.H.’s leg dragging began. Id.
at 99. After Halloween, Mr. Heller remembered that H.H. would be playing, get tired, and lay
down; at some point the other leg started to give out as well. Id. at 100. Mr. Heller was not present
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when Mrs. Heller drove to “Aunt Sher[i]’s” but remembered being at Cook’s Hospital emergency
room and talking to Dr. Aalbers. Id.
Mr. Heller testified that none of the doctors H.H. has seen have been able to give him a
diagnosis. Tr. at 103. H.H. is currently dependent on someone at all times. Id. at 104. H.H. now
has a full-time nurse and is able to go to school. Id. After the Hellers had another child, Mrs. Heller
spent more time with their new baby to breast feed him, so Mr. Heller slept with H.H. from 2013-
2017, until they moved to Midland and got his own room. Id. at 105-06.
2. Jenna Heller
Mrs. Heller testified at the January 22, 2020 entitlement hearing. Mrs. Heller is a licensed
professional counselor (LPC), working in the court system as a parenting coordinator and
performing custody evaluations for custody cases. Tr. at 7. Petitioners and their family moved to
Midland, Texas in 2017 for Mr. Heller’s work. Id. at 8. Petitioners have three sons, including H.H.
Id. H.H. was born with no complications but had an abnormal newborn screening with elevated
liver enzymes, which was resolved. Id. at 9. H.H. had some testing performed for his elevated liver
enzymes but the results ended up being negative. Id. at 10-11.
Regarding H.H.’s first year of life, Mrs. Heller testified she was a paranoid mom but had
no issues with H.H. Tr. at 11. Mrs. Heller took H.H. to Dr. Leslie Hollis for his 15-month checkup
and had concerns about whether his language skills were on track and also with him being “pigeon-
toed.” Id. at 13. Mrs. Heller stated she could not remember if it was his right leg or both legs that
turned inward. Id.
I asked Mrs. Heller about a phone call she made before H.H.’s 15-month appointment about
her concern about his ability to walk. Tr. at 15. Mrs. Heller stated she thought H.H. should be able
to walk more independently by 15 months but he would take a few steps and resume crawling. Id.
at 15. Mrs. Heller confirmed that she was concerned about his right foot turning inward on this
phone call as well. Id. at 15-16. Dr. Hollis assured Mrs. Heller that H.H. was developmentally in
range during the 15-month checkup and was meeting the appropriate milestones. Id. at 16.
Mrs. Heller testified that H.H. received two vaccinations on October 17, 2013, the flu and
pneumonia shots, and that the office had run out of Tdap vaccines so they scheduled for Mrs.
Heller and H.H. to return the following week to get the Pentacel vaccination. Tr. at 17. Mrs. Heller
said she noticed that H.H. had a fever the weekend after the vaccinations and slept the whole time.
Id. at 18. The following week was the week of Halloween which is when Mrs. Heller noticed he
was dragging his right foot and leg. Id. at 18-19. Mrs. Heller also remember arguing with Mr.
Heller because he noticed it first and thought H.H. had fallen and injured himself. Id. On
Halloween, other people noticed something off with H.H. because he typically stood with his
friends who are around the same age as he is, but he would just fall over and sit. Id. at 19-20. Over
the weekend, Mrs. Heller testified that his other leg started to drag as well, prompting Mrs. Heller
to call and schedule an appointment with Dr. Hollis. Id. at 20. Dr. Hollis “had no clue… what was
going on” but said H.H. needed to see a geneticist right away and got an appointment with Dr.
Heather Crawford. Id. at 21.
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H.H.’s first appointment with Dr. Crawford was on November 5, 2013.13 Tr. at 21. Dr.
Crawford knew something was wrong but did not feel like H.H. needed to be admitted; she
instructed Mrs. Heller to see Dr. Hollis if he worsened. Id. at 22. During this appointment, Mrs.
Heller stated that H.H. could no longer crawl. Id. He could crawl during the weekend but one leg
dragged behind, which is why Mrs. Heller thought it could have been an injury. Id. at 23.
Between the two appointments with Dr. Crawford, H.H. went from being unable to crawl,
to being unable to sit up. Tr. at 24. Mrs. Heller immediately contacted her aunt, Sheri Huling, and
drove H.H. out to Decatur, Texas, where Ms. Huling lived. Id. at 24-25. Mrs. Huling did “some of
her PT things to try to figure out” what was wrong, and told them to go to Cook’s ER. Id. at 25.
Ms. Huling and Mrs. Heller’s mother drove them to Cook’s [Hospital] emergency department. Id.
Ms. Huling said something about H.H. not bending his legs, they were straight and scissoring, and
had a tight right (or left) heel cord, like a ballerina. Id. Dr. Aalbers was the neurologist on call at
the hospital so he is the one who observed H.H. upon arrival. Id. Dr. Aalbers believed H.H. was
experiencing dopamine responsive dystonia (DRD), and prescribed H.H. dopamine. Id. at 26, 27.
Mrs. Heller stated that the dopamine made H.H. very sick and did not help him at all. Mrs. Heller
remembered reporting back to Dr. Aalbers that the dopamine was not working around two weeks
after their visit. Id. at 28. Mrs. Heller testified that at some point, Dr. Aalbers called to inform her
that H.H.’s “brain cells are dying at a really rapid rate, and we don’t know why.” Id. at 28. The
next steps for H.H. was to have his whole genetic exome sequenced, which Dr. Crawford said
would take two to four months. Id. at 28-29. H.H. continued to get worse; he could pick up food
at one point but would bite his fingers when they were in his mouth. Id. at 29. At some point, H.H.
couldn’t bring the food to his mouth anymore and it would fall out of his hands prior to it reaching
his mouth. Id. H.H. was also not sleeping much at the time and was crying all the time; only over
time did the Hellers discover it was because he was in pain. Id. at 30.
Around three years, ago, in 2017, there was a huge turn around and it was “kind of like he
came out of this fog.” Tr. at 30. Dr. Hollis informed them that H.H. probably had a massive
migraine all the time and was cramping. Id. at 30-31. Somewhere around December 2013 or
January 2014, doctors were able to tell the Hellers that H.H.’s neopterin and tetrahydrobiopterin
levels were too high, and medical research could only find levels that high in HIV or AGS patients.
Id. at 31. Drs. Aalbers and Crawford explained that AGS was a very rare genetic disorder, more
common in Amish communities. Id. at 32. Mrs. Heller testified that she emailed Dr. Crow to get
H.H. tested for AGS around Christmas; Dr. Marks had told the Hellers about Dr. Crow and he was
the most specialized researcher of AGS. Id. H.H.’s first round of testing was negative and there
were six or seven known mutations of AGS at the time. Id. at 33. Another gene was discovered
after the petition was filed but H.H. was still negative for the new gene. Id. at 33-34.
H.H. continued to worsen and was given a G tube for his dehydration and eating issues. Tr.
at 34. H.H. had a consultation with Dr. Suzanne Whitworth, who asked whether H.H. had any
changes in his diet, to which Mrs. Heller informed her that she had weaned H.H. completely off
breastfeeding on October 9, 2013. Id. at 34, 37. Mrs. Heller clarified that H.H. did not deteriorate
after being weaned off of breastmilk but after his vaccinations. Id. at 37. Mrs. Heller also disputed
13 Later in her testimony, Mrs. Heller recognized that she had shifted these events one week forward. Tr. at
86.
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Dr. Whitworth’s notation that H.H. started falling in mid-October and a “red throat and fever” that
lasted about a week. Id. at 40-41; see also Ex. 57 at 1. Mrs. Heller clarified she does not recall a
red or sore throat. Id. at 41-42.
Under Dr. Marks’ care, H.H. was immediately tested for AGS genes and he was started on
Baclofen. Tr. at 43. H.H. also had Botox injections and prescribed Thianicol and Clonidine. Id. at
43-44. Mrs. Heller testified that all these various treatments did not help or alleviate H.H.’s
symptoms. Id. at 45.
Mrs. Heller said she found out about vaccine injuries from her sister-in-law, whose
daughter had a vaccine reaction. Tr. at 46. Mrs. Heller said it was always in the back of their minds
because there were so many different avenues for them to pursue. Id. She kept suggesting things
to Dr. Marks so she must have mentioned the vaccinations as some point but Mrs. Heller doesn’t
know specifically when. Id. at 46. Dr. Marks would always call H.H.’s condition AGS-like and be
very vague. Id. at 47-48. Mrs. Heller recalled travelling to Boston and seeing a neurologist there
who told her he had never seen a patient like H.H. before. Id. at 49. Mrs. Heller then recalled going
to DC to do additional genetic testing, but the testing was also negative. Id. at 50.
Mrs. Heller testified that before the petition was filed, Drs. Marks and Crow were still
doing some testing but Dr. Marks told the Hellers that he believed that the vaccines triggered and
induced H.H.’s condition. Tr. at 51-52. H.H. had been repeatedly tested for the genes associated
with AGS which came back negative. Id. at 53. In 2015 (she later stated that it was during 2016-
2017), Mrs. Heller recalled H.H. coming out of a fog; within six months, his eyes were brighter
and seemed happier and would snuggle with his family members and move his arms to reach for
people. Id. at 53-54. The Hellers returned to Dr. Marks during this time, who was surprised at
H.H.’s improvement. Id. at 54-55.
Mrs. Heller testified that the first two years of H.H.’s condition were horrible but the last
two years (2017-2019) have been amazing. Id. at 55. The Hellers slept with H.H. until they had a
second child and they slept in entirely separate rooms. Id. at 56. The Hellers’ second child grew
up travelling with H.H. and going to all of this medical appointments. Id. Their second child had
to grow up quickly as a result. Id.
Regarding the November 11, 2013 visit with Dr. Hollis, the medical record notes that H.H.
had been fussy for the past week and had been experiencing developmental regression over the
last month. Tr. at 60-61. Mrs. Heller denied this record indicated H.H.’s developmental regression
began around October 11, 2013. Id. at 61.
Because there was some confusion with the timeline, Mrs. Heller then recounted what
occurred from her September 13, 2013 phone call to the November 11, 2013 appointment with Dr.
Hollis. Tr. at 63-66. Of note, Mrs. Heller stated that at some point after his vaccinations, H.H. ran
a fever and on a Monday morning, they went to see Dr. Hollis; on a Tuesday, they had an
appointment with Dr. Crawford; on Thursday, they went to Ms. Huling’s house and went to the
hospital. Id. at 65-66. Mrs. Heller also recalled having an argument with Mr. Heller the week of
Halloween because other people had noticed H.H. having issues. Id. at 66. Mrs. Heller testified
that all she could remember was H.H. slept throughout the weekend and “[b]y Halloween, he was
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not running a fever anymore, because I wouldn’t have let him around his little buddies, his friends.”
Id.at 68. Between Halloween and when he was seen by Dr. Hollis, H.H. must have only
experienced leg dragging, otherwise she would have sought medical attention sooner. Id. at 68-69.
Mrs. Heller’s concern grew only when he was unable to sit up “that Monday morning.” Id. at 69.
There was a dramatic change between Monday and Thursday; H.H.’s legs were stiff, and his torso
was hypotonic. Id. Mrs. Heller was unsure if his fever occurred the weekend after his October 17,
2013 vaccinations or after the October 23,2013 vaccination. Id. at 70-71. Mrs. Heller testified that
around Halloween, H.H. could stand and he tried to play with his friends but he would fall over
and it “presented more like maybe at that time a virus kind of thing.” Id. at 72. The leg symptoms
occurred in his right leg and transferred to his left, then torso, arms, grasping, and the mouth was
last. Id. at 72-73. This progression lasted until the end of 2013, leaving H.H. nonverbal and unable
to chew. Id. at 73.
Mrs. Heller testified that H.H. now sees seven therapists, once or twice per week, and
regularly sees Drs. Marks and Hollis. Tr. at 87. H.H. has also had the same teacher for the past 2.5
years. Id. H.H. is able to communicate through his eyes, he can watch television, and he is happy
most of time. Id. at 87-88. H.H. still cannot move independently but he can move his arms to grab
people’s faces. Id. at 89.
3. Sue Sewell
Ms. Sewell is Mrs. Heller’s mother, grandmother to H.H. Tr. at 108-09. Ms. Sewell is now
retired but was a registered nurse, and worked as the chief nursing officer at a hospital in Decatur.
Id. at 109. Decatur is not far, so Ms. Sewell made almost weekly visits to the Hellers. Id. at 109-
10. Ms. Sewell accompanied Mrs. Heller to the October 17, 2013 appointment with Dr. Hollis
where H.H. received two vaccinations. Id. at 111. Ms. Sewell stated she remembered H.H. could
walk about two to three steps unassisted. Id. at 112. She also stated she did not remember any
conversation at the appointment regarding the turning inwards of H.H.’s right leg. Id.
Ms. Sewell testified that the weekend before Halloween, around October 26th, H.H. was
sleeping for many hours and she thought it was strange. Tr. at 113. She brought it up to Mrs. Heller
but they weren’t sure if it was an issue they should be concerned about. Id. Ms. Sewell also noticed
that H.H.’s legs did not really support him, and he kept falling over. Id. Ms. Sewell stated her
daughter, Mrs. Heller, would call nearly every day expressing concern that H.H. was not standing
anymore. Id. at 115. H.H. would try to feed himself but would end up biting his finger,
demonstrating he couldn’t coordinate his movements. Id.
On November 7, 2013,14 Ms. Sewell recommended Mrs. Heller take H.H. to her sister,
Sheri Huling, or Aunt Sheri, because she had been a pediatric physical therapist for 30 years. Tr.
at 115-16. Aunt Sheri did some tests with H.H., including putting him on all fours and having him
crawl to Mrs. Heller, but he couldn’t do these things. H.H.’s arms would collapse and he couldn’t
move towards Mrs. Heller. Id. at 116. Aunt Sheri told them they needed to go Cook’s (Hospital)
immediately and Aunt Sheri drove them because they were in shock. Id. at 117. Ms. Sewell
14 Again, this testimony shifted the visit to Cook’s Hospital forward. It is documented in the medical
records that H.H. did not visit the hospital on November 7, 2013.
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accompanied Mrs. Heller to H.H.’s medical appointments when Mr. Heller could not. Id. The
Hellers’ lives have changed dramatically because of all the doctors they tried to take H.H. to,
around the country. Id. at 118-19. H.H. has never been able to get a diagnosis from any doctor. Id.
at 119.
4. Sheri Huling
Ms. Huling is H.H.’s great aunt, Mrs. Heller’s aunt, and Ms. Sewell’s sister. Tr. at 124.
Ms. Huling was a physical therapist for 38 years. Id. at 125. She received her degree from the
University of Texas Health Science Center. Id. Ms. Huling saw H.H. approximately every month
during his first year of life. Id. at 126. Ms. Huling had no concerns with H.H.’s early development.
Id. at 126-27.
Ms. Huling remembered Halloween very distinctly. Tr. at 128. The family was preparing
to go on a hay ride, and H.H. was standing in the driveway and just fell over. Id. Ms. Huling
examined him after he fell over and noticed his right ankle was tight. Id. Ms. Huling told Mrs.
Heller to inform his pediatrician. Id.
Ms. Huling received a phone call from Mrs. Heller on November 7, 2013,15 asking if she
could bring H.H. over. Tr. at 129. Mrs. Heller stated on the phone that H.H. kept falling over and
could not sit upright. Id. H.H. could not crawl and Ms. Huling told them to immediately go to
Cook’s hospital. Id. at 129. Ms. Huling’s first impression was that H.H. was experiencing some
type of encephalopathy because his problems appeared to be neurological. Id. at 130.
Ms. Huling testified about her affidavit (Ex. 91). Tr. at 130-34. Ms. Huling’s affidavit
stated she saw H.H. on November 14, 2021, but Ms. Huling stated she saw H.H. the same day he
went to Cook’s Hospital, and that her affidavit had an error. Id. at 134.
From a therapist’s perspective, Ms. Huling stated H.H. would need constant care the rest
of his life. Id. at 135. H.H. has made some improvements, as he has been able to feed without a
tube and can play some games. Id. at 136. Ms. Huling testified that she did not remember if Mrs.
Heller called her in September 2013 regarding the turning in of H.H.’s right leg.
Ms. Huling clarified that she saw H.H. after his October 17, 2013 vaccinations and noticed
the right heel tightness then. Id. at 139. Ms. Huling stated it was specifically “the week before the
23rd… I think it was the week before the 23rd.” Id. Ms. Huling was brought back to the stand to
confirm that she observed H.H. have right heel cord tightness before the October 23, 2013
vaccination. Id. at 205. Ms. Huling wrote a letter to Petitioner’s counsel to prepare her affidavit.
Id. Ms. Huling noted that H.H. exhibited normal crawling, pulling and standing, cruising, and
performed other physical acts prior to his October 17, 2013 vaccination and she had video footage
of it. Id. at 206. After the pneumonia and flu vaccines, Mrs. Heller and Ms. Huling noticed some
changes, and Ms. Huling instructed Mrs. Heller to bring up the right heel cord tightness when she
15 Ms. Huling also shifted the date of this visit forward approximately one week from its occurrence.
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returned on October 23, 2013. Id. at 207. Ms. Huling’s letter to Petitioner’s counsel was admitted
into the record as Exhibit 97.16
IV. Expert Opinions and Qualifications
A. Petitioners’ Expert: Dr. Leslie Hollis
1. Qualifications
Dr. Hollis submitted a printout of her website’s “about me” page as her CV, in conjunction
with her affidavit. Ex. 66 at 4. Dr. Hollis received her medical degree from the University of
Oklahoma and performed her pediatric residency at [Baylor] Scott & White [Medical Center]. Id.
2. Affidavits
Dr. Hollis, H.H.’s treating pediatrician, filed two affidavits in this case. Exs. 66 (hereinafter
“First Hollis Affidavit”) and 90 (hereinafter “Second Hollis Affidavit”). In her first affidavit, Dr.
Hollis stated she has been H.H.’s treating pediatrician since his birth on July 14, 2012. First Hollis
Affidavit at 2. Dr. Hollis noted that H.H. was a healthy patient with no major issues; he had an
abnormal newborn screen which was retested and came back normal. Id. Dr. Hollis examined H.H.
on November 11, 2013, after he had been experiencing a fever of 101.5º. Id. She noted that at this
appointment, H.H. had noticeably less energy and his development “had been regressing over the
last month.” Id. at 2. Dr. Hollis referred H.H. to Dr. Heather Crawford, a metabolic genetics
specialist, and to an appointment with Dr. Brian Aalbers, a pediatric neurologist, for his
developmental issues. Id. Dr. Hollis continued to treat H.H. along with his other doctors. Id. It is
Dr. Hollis’ opinion that H.H.’s “rapid decline can be attributed to receiving the vaccinations on
October 17, 2013 and October 23, 2013.” Id. at 3.
Dr. Hollis’ second affidavit added a few more details regarding her history of treating H.H.
See generally Second Hollis Affidavit. Dr. Hollis stated that “H.H. has dystonia and neurological
impairment that manifested itself at 16 months of age.” Id. at 2. Dr. Hollis noted that H.H. was
assessed at 12 months of age and was within the normal developmental range for his age group.
Id. At his 15-month wellness check, Dr. Hollis noted that
he was taking a few steps independently between objects. His mom had noted his
foot possibly turning in 1 week prior to his appointment. The child was observed to
bear weight on both feet, and no significant intoeing was noted when he was trying
to walk. In my medical opinion, H.H. was still well within the developmentally
acceptable range for his age.
Id. Dr. Hollis next saw H.H. on November 11, 2013, where H.H.’s mother reported that his
development had been regressing over the last month; he stopped crawling, playing with toys and
eating table food. Id. Dr. Hollis immediately referred H.H. to neurology for evaluation of his
16 Because Petitioners did not file this letter, I prompted them to do so after the hearing. See informal
communication remark dated 3/15/2022; ECF No. 120. The letter was received as Ex. 102.
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developmental regression. Id. Dr. Hollis further added that H.H.’s decline was severe and rapid
after his 15 month vaccinations and it was her opinion that H.H. will have “neurological and
physical suffering for the rest of his life.” Id. at 3.
B. Petitioners’ Expert: Dr. Warren Marks
1. Qualifications
Dr. Marks submitted a printout of his Cook Children’s Hospital physician page as his CV.
Ex. 67 at 6-7. Dr. Marks received his medical degree from Texas Tech University School of
Medicine and completed his residency and fellowship at the University of Oklahoma College of
Medicine. Id. at 6. Dr. Marks is board certified in neurology with a special qualification in child
neurology. Id. Dr. Marks has published two papers and 10 abstracts. Id. at 6-7. I recognized Dr.
Marks as an expert in pediatric neurology. Tr. at 146.
2. Affidavit and Expert Report
Dr. Marks filed one affidavit and one expert report in this case. Exs. 67 (hereinafter “Marks
Affidavit”) and 94 (hereinafter “Marks Expert Report”). In his affidavit, Dr. Marks noted that his
care of H.H. began on February 4, 2014, and that he had been treating H.H. for rapidly progressing
dystonia with encephalopathy. Marks Affidavit at 2. H.H.’s other symptoms included: acute
constipation, abnormal liver enzymes, encephalopathy, cough, dystonia, speech delay, and delayed
milestones. Id. Dr. Marks has performed many work-ups over the years and has ruled out over 20
different possible causes of H.H.’s condition, to include AGS, GBS, lysosomal storage disease,
Creutzfeldt-Jakob disease, heavy metal poisonings, Epstein-Barr virus, enteroviruses, and
cytomegaloviruses. Id. Testing done on H.H. includes extensive lab work, exome sequencing and
lumbar punctures. Id. Most testing was performed at Cook Children’s Medical Center though
testing for AGS was performed in England and France. Id. Dr. Marks opined that the start of H.H.’s
symptoms began after the receipt of his fifteen month vaccinations.17 Id. Dr. Marks further opined
that there is no other explanation for why H.H. developed severe and rapidly progressing dystonia
with encephalopathy at 15 months, other than his exposure to his 15 month vaccinations. Id. at 3-
4. Dr. Marks provided a theory as to how H.H.’s exposure to his vaccines caused his condition:
Essentially, H.H. was exposed to an antigen in the influenza or DTaP vaccines that
triggered a neurological deterioration and an abnormal movement disorder,
specifically dystonic posturing in his lower extremities which has rapidly
progressed throughout his body. Unfortunately, this Influenza or DTaP antigen
must have been similar to a “self” antigen in H.H.’s neurological structure, so that
a neurological deterioration also occurred. H.H.’s lab results showed elevated
levels of neopterin a marker of immune system activation, and tetrahydrobiopterin,
an enzyme used to produce serotonin, dopamine and other neurotransmitters.
Elevated levels of these enzymes have caused the interferonopathy, an up-
17 It should be noted that Dr. Marks did not observe or treat H.H. until he was more than 18 months old.
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regulation of type-1 interferons, consequently resulting in his current symptomatic
state. The increase in interferons creates a sense that the body is under attack from
an outside source, but in H.H.’s case, there is no such source so the cause is only
neurological in nature H.H.’s neurological status has since stabilized, but still has
persistent increases in his interferon levels. This stabilization of his neurological
status, which was hyperactive post-immunization is indicative of the cause being
derived from the vaccinations…. Based on the timing of his vaccine inoculation
and the development of his symptoms thereafter, this theory makes complete sense
as a probable cause for his symptoms since there is no other explanation for the
sudden development or rapidly progressive dystonia with encephalopathy due to
the increased interferon levels in an otherwise previously healthy individual with
no other environmental exposures.
Id. at 4-5. Dr. Marks also opined that H.H. will suffer from dystonia and encephalopathy for the
remainder of his life and will require extensive continued medical treatment. Id. at 5.
Dr. Marks’ expert report was filed in response to Dr. Barañano’s first expert report. Ex. 94
at 1. Dr. Marks clarified that H.H. had been tested for the IFIH1 gene and was negative. Id. He
also confirmed that H.H. was negative for all known AGS genes and other non-genetic
inflammatory disorders like Lyme disease. Id. Dr. Marks’ report indicated that H.H.’s CSF
neopterin levels were normal, indicating the immune activation process may be normalizing but
extensive CNS damage has been done. Id. H.H.’s MRI in July 2017 also revealed no intracranial
calcifications or injury to the basal ganglia consistent with AGS. Id. Dr. Marks’ concluded that
there are two realistic options for H.H. at this point: he is one of the very rare cases of AGS without
a known genetic marker or he has an AGS-like interferonopathy triggered by “external immune
stimulating condition such as immunization.” Id. Given his normalizing neopterin levels, “I would
favor the latter.” Id.
2. Testimony
Dr. Marks testified at the January 22, 2020 entitlement hearing. Dr. Marks has practiced in
the field of pediatric neurology for 40 years and specializes in movement disorders, rehabilitation,
and neuromuscular disorders. Tr. at 140. Dr. Marks is H.H.’s treating pediatric neurologist. Id. at
141-42. Dr. Marks’ first visit with H.H. was in February 2014. Id. at 142. When Dr. Marks saw
H.H. on February 4, 2014, there was a presumptive diagnosis of Aicardi-Goutières syndrome based
on elevated neopterin levels in his spinal fluid. Id. at 146.
Dr. Marks testified that AGS is “a disorder of interferon activity… it’s an immune mediated
disorder that typically result[s] in neurologic regression with dystonia, intracranial
calcifications,… seizures… almost always have a skin rash of some kind.” Tr. at 147-48. H.H. did
not have a skin rash or calcifications on his neuroimaging. Id. at 148-49. AGS patients are also
more likely to have seizures. Id.at 149. With a working diagnosis of AGS, Dr. Marks sent H.H.’s
testing to be done by Medical Neurogenetics in Atlanta, which has a neurotransmitter gene panel
test for AGS. Id. at 149-50. H.H. was tested against then six known genes for AGS. Id. at 150. A
seventh gene was identified but H.H. tested negative for all seven genes. Id.
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Dr. Marks had discussions with Dr. Yanick Crow, the world’s expert in AGS. Tr. at 150.
Samples were sent to France, where Dr. Crow’s research lab was located. Id. Dr. Crow confirmed
H.H.’s interferon levels were elevated. Id. H.H.’s entire genome was sequenced to find genes that
would explain his dystonia, AGS, and other symptoms, but this testing did not provide an
explanation for H.H.’s condition. Id. at 151. Dr. Marks gave H.H. a diagnosis of an “AGS-like”
disease because H.H. has many of the clinical manifestations of AGS but no genetic markers. Id.
Dr. Marks testified that he cannot prove H.H. does not have AGS, but noted that there is clinical
evidence to suggest it is not AGS as well. Id. The most recent terminology he has used to describe
H.H.’s condition is dystonia with interferonopathy. Id. at 153. An interferonopathy means H.H.
has an elevated level of interferon. Id.
Dr. Marks stated vaccinations are meant to cause an immune response and H.H.’s
symptoms began shortly after immunization. Tr. at 153-54. Dr. Marks additionally testified that
“it’s not unique for vaccine to cause immune responses that produce neurologic injury. Guillain-
Barre has been well known to be associated with vaccines off and on.” Id. at 154. Dr. Marks stated
that H.H. has had elevated interferon levels for six years, with some fluctuation, but it otherwise
indicates that there is a persistent immunologic response or a genetic defect. Id. at 155.
Dr. Marks also discussed H.H.’s case with Dr. Vanderver, the American expert on AGS,
and had the Hellers see her while she was working at Children’s National Hospital in Washington,
DC. Tr. at 156-57. Dr. Marks testified that Dr. Vanderver was not convinced H.H. had AGS and
H.H. could not participate in any trials because he did not have any genetic markers for the disease.
Id. Regarding H.H.’s current condition, Dr. Marks opined that H.H. has stopped regressing and
has been clinically stable for the last year because he has not lost any skills. Id. at 157.
Dr. Marks opined in favor of vaccine causation for several reasons. First, H.H. was a
normally developing child prior to his 15-month vaccinations. Tr. at 158. Second, there is a
temporal correlation between vaccination and H.H.’s deterioration. Id. at 159. Finally, H.H. has
no known no genetic marker that would explain his condition. Id.
For the 5% subset of AGS patients who do not a known genetic marker for AGS, they are
given the AGS diagnosis because they have other signs, like calcifications in the brain or skin rash.
Tr. at 160-61. H.H.’s onset at 15-months of age is significant in that later onset cases of AGS tend
to be milder. Id. at 161. Another difference in H.H.’s presentation is that he seems to have
stabilized; if this were a “triggered reaction,” it makes sense that it should wane over time. Id. Dr.
Marks opined that he did not expect an AGS patient to make improvements; it is a “relentlessly
progressive disorder.” Id. at 164.
Dr. Marks examined H.H. one day prior to the entitlement hearing and observed that he
was stable. Tr. at 166-67. Dr. Marks noted his condition had not changed; H.H. still has very severe
dystonia but he has a communication device that helps him interact and he is much less irritable.
Id. at 167. Dr. Marks confirmed his belief that either H.H. has a rare case of AGS without a known
genetic marker or he has an AGS-like interferonopathy “triggered by external immune stimulating
conditions such as immunization.” Id. at 170. Dr. Marks also testified that he does not know why
the vaccines were able to trigger such a sustained reaction, as he is not an immunologist. Id. at
170-71. Even in viral mediated diseases like Guillain Barré syndrome, the response is not sustained
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over time. Id. Dr. Marks did not identify a specific vaccine he believed was more likely to be
causal. Id. at 173. Dr. Marks used Guillain Barré syndrome as a model when discussing the medical
appropriate time frame for when an immune mediate disease should develop, usually one to two
weeks after immune stimulus. Id. at 175-76.
Dr. Marks communicated with Drs. Crow and Vanderver mostly at conference meetings or
phone calls. Tr. at 177-78. Dr. Marks confirmed that Dr. Vanderver was unsure what condition
H.H. had but she noted that she believed H.H. likely has an inherited interferonopathy. Id. at 179.
Dr. Marks also confirmed that there was no literature submitted to support his proposed theory of
molecular mimicry in this type of case. Id. at 187. But Dr. Marks stated his theory was not specific
to molecular mimicry, just that an immune response was triggered as a result of the vaccinations
H.H. received. Id. at 188. We know that vaccines trigger an immune response, and on occasion,
“the immune system just goes wild.” Id. at 193. Dr. Marks testified that in his conversations with
Dr. Crow, Dr. Crow believed that AGS was the most logical diagnosis even though they could not
identify which gene caused H.H.’s condition. Id. at 203-04.
Dr. Marks testified that H.H.’s condition started when H.H. had a fever and was irritable.
Tr. at 195. I also asked Dr. Marks if I find onset of H.H.’s condition was prior to his 15-month
vaccinations, would his theory change. Id. Dr. Marks opined that the vaccinations could cause a
fever to develop which could be “enough to trigger an irreversible neurologic decline.” Id. at 196-
97.
C. Petitioners’ Expert: Dr. Lawrence Steinman
1. Qualifications
Petitioner filed Dr. Steinman’s CV on July 24, 2020. Ex. 101, Tab 1. Dr. Steinman received
his medical degree from Harvard University and was a NIH Fellow in Chemical Neurobiology at
Harvard Medical School. Id. at 1. Dr. Steinman completed his residency in pediatrics and pediatric
and adult neurology at Stanford University Hospital. Id. Dr. Steinman is the GA Zimmermann
Chair as Professor of Neurological Sciences, Neurology, and Pediatrics. Id. Dr. Steinman is board
certified in neurology and is involved in the American Academy of Neurology as a fellow, the
American Neurological Association, the American Association of Immunologists, and the Clinical
Immunology Society. Id. at 2. Dr. Steinman has over 40 patents (not limited to U.S. patents). Id.
at 2-3. Dr. Steinman has published nearly 600 articles. Id. at 5-48.
1. Post-Hearing Expert Reports
Petitioners filed two reports from Dr. Lawrence Steinman. Exs. 101 (hereinafter “First
Steinman Rep.”) and 99 (hereinafter “Second Steinman Rep.”). In his first report, Dr. Steinman
stated that his theory focuses on “how the components of the [Pentacel] vaccine can drive an
interferon response. It is not a theory based on molecular mimicry.” First Steinman Rep. at 9. There
are two types of interferons have different receptors but share common signaling pathways
including JAK and STAT molecules. Id. Type 1 interferons break down into other subtypes,
whereas Type 2 interferons are only broken down to gamma interferon. Id. The Pentacel vaccine
consists of many different components, including DTaP-IPV, ActHIB, and H. influenzae type b
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bound to tetanus toxoid. Id. at 11. The pertussis toxin “induces immune responses to both gamma-
interferon and to type 1 interferon.” Id. at 12.
The Pentacel vaccine also contains alum, which activates the NALRP3 inflammasome,
“which plays a role in inducing interferonopathies.” First Steinman Rep. at 12. There are a number
of interferon responsive neuroinflammatory conditions such as multiple sclerosis (MS) and its
animal model, experimental autoimmune encephalomyelitis (EAE), and these conditions are tied
to strong activation of innate immunity induced by the NLRP3 inflammasome. Id. Dr. Steinman
also coauthored a paper about how Type 1 IFNs and type II IFN mediate both regulation and
inflammation in MS, neuromyelitis optica, and EAE; however “the underlying mechanism for
these Janus-like activities of type I and II IFNs in neuroinflammation remain unclear.” Id. at 14.
Dr. Steinman noted that “[a]lthough endogenous type I IFN signaling provides a protective
response to neuroinflammation, we find that when IFFN-g signaling is ablated, type I IFNs drive
inflammation, resulting in exacerbated EAE. Id.
Dr. Steinman stated that although H.H. does not have an ADAR-1 mutation, a vaccine
could still trigger his interferonopathy. First Steinman Rep. at 14. Dr. Steinman cited to Dr. Crow’s
paper (Ref. 18) which states that:
Indeed, considering a putative role of physical stressors, note should be made of
the cold dependency of the skin lesions seen in the type I interferonopathies and of
a striking temporal relationship between the onset of ADAR1-related bilateral
striatal necrosis and preceding infection. Whether vaccination represents a disease
trigger is an important, and currently unanswered, question. Meanwhile, the
possibility of a “cumulative” genetic burden contributing to cellular pathology is
notable in light of recently published data on the group of type I interferonopathies
caused by loss-of-function mutations in proteasome subunits.
Id.; see also Rodero & Crow, Type I interferon–mediated monogenic autoinflammation: The type
I interferonopathies, a conceptual overview, 213 J. EXP. MED. 12, 2527-38, 2351-52 (2016) (filed
as Ex. 101, Tab 18) (hereinafter “Rodero & Crow”). Dr. Steinman opined that the onset of H.H.’s
neuroinflammation within three weeks of the Pentacel vaccination is consistent with references 18
and 19. Id. at 15. Dr. Steinman further opined that the Pentacel vaccine significantly aggravated
H.H.’s prior condition which included the mild intorsion of his foot prior to the vaccination. Id. at
16.
Dr. Steinman filed a second expert report in response to Dr. McGeady’s report. Ex. 99. Dr.
Steinman stated that both experts agree that the genetic basis for H.H.’s interferonopathy remains
elusive, however the diagnosis of an interferonopathy is akin to AGS. Id. at 2. Where Drs.
McGeady and Steinman disagree is whether the Pentacel vaccine can trigger a “physiologic
amount of type I interferon.” Id. Dr. Steinman clarified that he believes that the vaccine is merely
a trigger for an interferon response. Id. The overproduction of interferon type 1 “can be explained
by the references which show that there is a resistance in some forms of neuroinflammation to the
normal beneficial response of interferon. So unchecked interferon production can drive
neuroinflammation.” Id.
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Dr. Steinman added that if H.H. did have an underlying AGS condition, the Pentacel
vaccine would have worsened his neuroinflammation. Second Steinman Rep. at 3. Dr. Steinman
reiterated that it does not matter if H.H. had neurological symptoms prior to his 15-month
vaccinations, just that the Pentacel vaccine on October 23, 2013 caused neuroinflammation, which
could have significantly aggravated his condition, or caused his condition. Id. at 4.
D. Respondent’s Expert, Dr. Stephen McGeady:
1. Qualifications
Respondent filed an updated curriculum vitae for Dr. McGeady on April 4, 2020. Ex. I. Dr.
McGeady received his medical degree from Creighton University and completed his residency in
pediatrics at St. Christopher’s Hospital in Philadelphia, and his fellowship at Duke University in
psychiatry and allergy. Id. Dr. McGeady is currently a professor of pediatrics at Jefferson Medical
College and is the Emeritus Chief of the Allergy, Asthma & Immunology Division at duPont
Hospital for Children. Id. Dr. McGeady is board certified in pediatrics and allergy/immunology.
Id. Dr. McGeady has published at least 66 peer reviewed papers and 93 abstracts. Id. at 2-7, 7-13.
I recognized Dr. McGeady as an expert in pediatric immunology and pediatrics. Tr. at 213.
2. Expert Reports
Dr. McGeady filed two expert reports in this case. Exs. D (hereinafter “First McGeady
Rep.”) and J (hereinafter “Second McGeady Rep.”). In Dr. McGeady’s first report, he noted that
H.H. lacked some clinical features of AGS, such as calcification in the basal ganglia, chilblain-
like skin lesions, and pleocytosis in the CSF. First McGeady Rep. at 4. However, AGS literature
stated intracranial calcification should not be considered a prerequisite for an AGS diagnosis. Id.
Dr. McGeady also disagreed with Drs. Hollis and Marks’ assessment that H.H.’s normal
development until 15-16 months is incongruous with AGS. Id. at 4-5. H.H.’s fever is also
consistent with 405 of subjects in the Rice paper. Id. at 5. Markedly high neopterin and biopterin
levels are typically only seen in two disorders, AGS and congenital HIV. Id. Dr. McGeady also
noted that Dr. Vanderver believed H.H. has a “suspected heritable interferonopathy”, which is
consistent with AGS and inconsistent with an adverse vaccine reaction. Id. at 6; see also Ex. 81 at
10.
Dr. McGeady also opined regarding Dr. Marks’ proposed causal theory. First McGeady
Rep. at 7-10. Dr. McGeady stated that there are six possible metabolic lesions that have been
proposed to account for the excess production and/or accumulation of interferon alpha and none
of these mechanisms is “dependent upon immune activation alone.” Id. at 8. Dr. McGeady also
noted that H.H.’s medical history does not include any localized reaction to any of the vaccines he
received, which indicates no excessive reaction was produced. Id. at 9. Additionally, H.H. had
elevated transaminase levels, which are associated with AGS but have not been associated in cases
of patients who developed encephalopathies after vaccination. Id.
Dr. McGeady also pointed out Mrs. Heller’s 9/13/2013 phone call regarding H.H.’s
inturning of his right foot and inability to walk; he opined this may have been the first mention of
H.H. losing skills. Id. at 10. Dr. McGeady also addressed Dr. Hollis’ affidavit which broadly stated
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she had never seen a similar loss of skills in a previously normal child, and based on the timing,
believed that H.H.’s condition was caused by his immunizations. Id. at 11. Dr. McGeady reiterated
that H.H.’s lack of genetic markers does not rule out AGS, considering his clinical and laboratory
findings. Id.
3. Testimony
Dr. McGeady provided testimony on molecular mimicry and testified that it is “intuitively
appealing” but in reality, almost never happens. Tr. at 214-15. There are many mimics widespread
in nature but there are not many autoimmune diseases linked to molecular mimicry in a frequency
one expects if molecular mimicry were real. Id. at 215-16. There are two accepted examples of
molecular mimicry, which include GBS and campylobacteria and more recently, narcolepsy with
the 2010 H1N1 flu. Id. at 216. There is no literature or case reports linking the flu and/or DTaP
vaccine to a Type 1 interferonopathy. Id. at 217. Nor are the viruses of these vaccines known to
cause a Type 1 interferonopathy. Id. at 218. Dr. McGeady testified that the only know causes of a
Type 1 interferonopathy are a genetic predisposition or intrauterine viral infections. Id. at 218-19.
In the case of an intrauterine viral infection, a Type 1 interferonopathy is caused when a
viral infection is “particularly persistent” like the HIV virus in a pregnant woman. Tr. at 220. The
fetus become infected as well and starts to produce large quantities of Type 1 interferon; the fetus
is extremely susceptible to the adverse effects of Type 1 interferonopathy and becomes badly
damaged as a result. Id. Both viral causation and genetically predisposed babies look similar even
when different etiologies exist. Id. Dr. McGeady testified that even if molecular mimicry were a
viable theory, he does not believe vaccinations could have triggered this kind of response. Id. at
223. Any triggered reaction could have an intense activation however “it gets damped down
quickly.” Id. Only in hereditary interferonopathies are there no breaks. Id. H.H.’s neopterin levels
have fluctuated over the years but there are no active organisms in the vaccines he’s received that
could cause this kind of neopterin production. Id. at 223-224. Molecular mimicry cannot explain
“something that perpetuates over six years.” Id. at 224. Molecular mimicry also pertains to the
adaptive immune system and there was no evidence of H.H. having an adaptive immune response,
or localized reaction, to the vaccinations. Id. at 224-25.
Dr. McGeady testified that he believed that H.H.’s lack of genetic markers does not mean
he does not have AGS; he noted that new genes and sub mutations are still being identified. Tr. at
228-29. Dr. McGeady opined that AGS is the condition most consistent with H.H.’s presentation.
Id. at 233. Dr. McGeady also testified that H.H.’s improvement is not inconsistent with AGS; some
patients have normal intellectual capacity and have courses that stabilize. Id. at 234.
4. Post-Hearing Report
Dr. McGeady’s second report was filed in response to Dr. Steinman’s first expert report
(Ex. 101). Dr. McGeady opined that Dr. Steinman’s proposed mechanism regarding how the
Pentacel vaccine caused H.H.’s condition is not consistent with what is known regarding type I
interferonopathies. Second McGeady Rep. at 1.
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Dr. Steinman proposed that the Pentacel vaccine activated H.H.’s innate immune system
and the subsequent production of type I interferon and other inflammatory cytokines caused
damage to H.H.’s central nervous system. Second McGeady Rep. at 1. Dr. McGeady argued that
Dr. Steinman’s theory does not explain how this reaction caused elevation in interferon levels for
the past six years. Id. Vaccines are meant to trigger an immune reaction however, to trigger a
cytokine storm that is perpetuated over a number of years is unpersuasive. Id. at 2. Only in an
inherited interferonopathy are interferon levels elevated for the length of time seen in H.H. Id.
Dr. McGeady addressed Dr. Steinman’s second theory, that the Pentacel vaccine
significantly aggravated a pre-existing condition. Second McGeady Rep. at 1. Type I interferons
are produced by the innate immune system and are present in measurable quantities within 12
hours following a viral exposure. Id. Interferon production promptly decreases following a non-
progressive provocation, thus “it would be expected that an acute injury to the CNS due to
excessive type I interferon would appear sooner than several weeks following the immunization if
vaccines are to be suspected as the initiating event.” Id. H.H. suffered from many febrile illnesses
(on 12/10/2012, 5/20/2013, 7/29/2013, and 11/11/2013); these would have been suspected
initiating events as well. Id.
Dr. McGeady opined that the persistent elevations of interferon alpha and other markers of
type I interferonopathy cannot be the result of H.H.’s October 17 and 23, 2013 vaccinations.
Second McGeady Rep. at 3. Dr. McGeady reiterated that Dr. Steinman’s theory does not account
for the chronic overproduction of type I interferon. Id. Congenital type I interferonopathies do
produce enduring excess amounts of cytokines, as seen in H.H. Id.
E. Respondent’s Expert, Dr. Kristin Barañano
1. Qualifications
Respondent filed an updated curriculum vitae for Dr. Barañano on April 14, 2020. Ex. H.
Dr. Barañano received her medical degree and a Ph.D. in neuroscience from Johns Hopkins
University School of Medicine. Id. at 1. Dr. Barañano completed residencies in pediatrics and
pediatric neurology at Johns Hopkins University School of Medicine and was a research and
clinical fellow in neurogenetics at the Kennedy Krieger Institute. Id. Dr. Barañano is currently an
Assistant Professor of Neurology at Johns Hopkins School of Medicine and is Medical Staff at the
Kennedy Krieger Institute. Id. Dr. Barañano has published papers, case reports, book chapters and
editorials. Id. at 2-3. Dr. Barañano is board certified in neurology, with special qualification in
child neurology. Id. at 4. I recognized Dr. Barañano as an expert in pediatric neurology and
neurogenetics. Tr. at 252.
2. Expert Reports
Dr. Barañano filed two reports in this case. Exs. A (hereinafter “First Barañano Rep.”) and
C (hereinafter “Second Barañano Rep.”). In Dr. Barañano’s first report, she provided a typical
presentation of AGS but cited to AGS case studies that demonstrated a wide spectrum on onset
and presentations. First Barañano Rep. at 3. In Dr. Crow’s 2015 paper, 8.6% of patients presented
after one year of age, and this occurrence was more common with certain AGS-associated genes.
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Id. at 3-4. Dr. Barañano also identified Mrs. Heller’s 9/13/2013 phone call as onset of neurological
symptoms with the in-turning of H.H.’s right foot and right heel cord tightness. Id. at 5. Dr.
Barañano testified that H.H. had a fever in between his vaccinations; onset of AGS symptoms is
often described in association with a febrile illness. Id. According to Dr. Barañano, H.H.’s clinical
presentation is entirely consistent with AGS and it is more likely that a genetic disorder like AGS
explains H.H.’s neurologic condition, rather than a molecular mimicry-like process triggered by
the vaccination. Id. It is Dr. Barañano’s opinion that H.H.’s clinical picture is consistent with AGS,
with his elevated liver enzymes, high CSF neopterin and biopterin levels, elevated interferon-alpha
levels in blood and CSF. Id. at 5-6.
In Dr. Barañano’s second report, she opined that normalized neopterin levels are reported
in 25% of AGS cases. Second Barañano Rep. at 1. The normalization of H.H.’s neopterin levels
does not provide support that this was a vaccine-mediated process. Id. It remains Dr. Barañano’s
opinion that H.H. falls into the 5% of AGS cases where a genetic marker has not been identified.
Id.
3. Testimony
Dr. Barañano provided a summary of AGS. Tr. at 253-54. When cells break down in our
body and release DNA products, such as nucleotides, the immune system is activated to clean up
the nucleotides. Id. at 253. In AGS, patients with the known AGS genes sense aberrant nucleotides
and attack its own body and nucleotides. Id. at 254. There are classical traits in AGS patients,
namely calcifications in the brain, white matter abnormalities, and skin lesions, however over time,
a greater spectrum of AGS phenotypes have been discovered, including children with later onset
and even some adult patients. Id. at 254-55. Dr. Barañano treats a number of AGS patients,
including one with a later onset. Id. at 255. AGS is generally an autosomal recessive gene; if H.H.’s
parents were carriers, there would be a 25% chance with each pregnancy of having an affected
child. Id. at 256.
Interferon alpha is not tested in the United States, so other doctors, like Dr. Crow, will run
the tests. Tr. at 261-62. Dr. Barañano’s understanding is that interferon alpha is “essentially
thought to be pathognomonic for AGS” meaning it goes hand in hand with the diagnosis of AGS.
Id. at 262. With more patients who are confirmed with the genetic markers for AGS, we have seen
more and more AGS phenotypes, thus calcifications are not considered mandatory for an AGS
diagnosis. Id. at 262-63.
Dr. Barañano discussed exhibit 83, a case study of children who have the confirmed gene
for AGS but do not have calcifications. Id. at 263. Dr. Barañano stated that a definite genetic
diagnosis only happens in 25-40% of cases. Id. at 264. Whole genome sequencing is a
breakthrough but “not the end all, be all.” Id. at 264. Dr. Barañano opined that she has not yet seen
a report regarding testing for the seventh AGS gene, and would have also recommended a
chromosomal microarray. Id. at 264-65. Dr. Barañano also stated that Dr. Vanderver’s research
program offers whole genome sequencing so her diagnostic rate is around 85%. Id. at 266. There
are improvements in genetic testing but there are still limitations. Id. Of 20,000 genes, only 5,000
are in the online Mendelian Inheritance in Man database. Id. at 267.
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Dr. Barañano reiterated that H.H.’s onset at 15-16 months of age did not affect her opinion
that AGS is still the best clinical diagnosis at this time. Tr. at 268. H.H.’s irritability is consistent
with the onset of neurological symptoms. Id. The clinical course for AGS involves acute
neurologic symptoms followed by a period of stabilization. Dr. Barañano disagreed with Dr.
Marks’ assessment that AGS is a relentlessly progressive neurodegenerative disorder. Id. at 270.
Dr. Barañano added that the nervous system’s normal programming is to make developmental
progress, so if you superimpose a neurodegenerative process on that, a child plateaus and starts
losing skills, but if the disease has stabilized, a child’s underlying developmental process can
continue forward even though he remains severely impaired; thus improvement is not inconsistent
with AGS. Id. at 271.
Dr. Barañano confirmed that to the best of her knowledge there is no literature that
discusses the flu or Pentacel vaccines causing a Type 1 interferonopathy. Id. at 271-72. Dr.
Barañano also testified that other interferonopathies exist but AGS presents in the central nervous
system, affecting the brain, whereas other interferonopathies are more systemic. Id. at 273-74. Dr.
Barañano also stated that skin rashes were seen in 40% of AGS cases so it is not a universal finding.
Id. at 277. In short, there is nothing in H.H.’s presentation that is inconsistent with AGS. Id. at
293. However, without a genetic confirmation, Dr. Barañano cannot say definitively that H.H. has
AGS, just that it is the most likely diagnosis. Id. at 296.
V. Applicable Law
A. Petitioner’s Burden in Vaccine Program Cases
Under the Vaccine Act, when a petitioner suffers an alleged injury that is not listed in the
Vaccine Injury Table, a petitioner may demonstrate that he suffered an “off-Table” injury.
§ 11(c)(1)(C)(ii).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
off-Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit
in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). Althen requires that
petitioner establish by preponderant evidence that the vaccination he received caused his 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.” Id. at 1278.
Under the first prong of Althen, 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 & Hum. Servs., 35 F.3d
543, 548 (Fed. Cir. 1994). Proof that the proffered medical theory is reasonable, plausible, or
possible does not satisfy a petitioner’s burden. Boatmon v. Sec’y of Health & Hum. Servs., 941
F.3d 1351, 1359-60 (Fed. Cir. Nov. 7, 2019).
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
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theory. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1378-79 (Fed. Cir. 2009) (citing
Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1325-26 (Fed. Cir. 2006). However,
special masters are “entitled to require some indicia of reliability to support the assertion of the
expert witness.” Boatmon, 941 F.3d at 1360, quoting Moberly v. Sec’y of Health & Hum. Servs.,
592 F.3d 1315, 1324 (Fed. Cir. 2010). Special Masters, despite their expertise, are not empowered
by statute to conclusively resolve what are complex 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 v. Sec’y of
Health & Hum. Servs., 121 Fed. Cl. 230, 245 (2015), vacated on other grounds, 844 F.3d 1363
(Fed. Cir. 2017); see also Hock v. Sec’y of Health & Hum. Servs., No. 17-168V, 2020 U.S. Claims
LEXIS 2202 at *52 (Fed. Cl. Spec. Mstr. Sept. 30, 2020).
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 (“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 & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
However, medical records and/or statements of a treating physician’s views 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”). 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 also be weighed against other, contrary evidence
also present in the record. Hibbard v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 742, 749 (2011),
aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y of Health & Hum. Servs., No. 06-522V, 2011
WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review den’d, 100 Fed. Cl. 344,
356 (2011), aff’d without opinion, 475 Fed. App’x 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 & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what
is a medically acceptable timeframe must also coincide 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 &
Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl. 353 (2012),
aff’d mem., 503 F. App’x 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Hum. Servs., No. 11-
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355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for review den’d (Fed. Cl.
Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
The Vaccine Act defines significant aggravation as “any change for the worse in a
preexisting condition which results in markedly greater disability, pain, or illness accompanied by
substantial deterioration of health.” § 300aa-33(4). In Loving, the United States Court of Federal
Claims established the governing six-part test for off-Table significant aggravations. Petitioner
must prove by a preponderance of the evidence:
(1) The person’s condition prior to administration of the vaccine, (2) the person’s
current condition (or the condition following the vaccination if that is also
pertinent), (3) whether the person’s current condition constitutes a ‘significant
aggravation’ of the person’s condition prior to vaccination, (4) a medical theory
causally connecting such a significant worsened condition to the vaccination, (5) a
logical sequence of cause and effect showing that the vaccination was the reason
for the significant aggravation, and (6) a showing of a proximate temporal
relationship between the vaccination and the significant aggravation.
Loving v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 135, 144 (2009); see also W.C. v. Sec’y of
Health & Human Servs., 704 F.3d 1352, 1357 (Fed. Cir. 2013) (adopting this as the proper legal
standard for significant aggravation claims brought under the Vaccine Act). Loving prongs four,
five, and six are derived from the Federal Circuit’s test for off-Table actual causation cases. Althen
v. Sec’y of Health & Hum. Servs., 17 F.3d 374 (Fed. Cir. 1994).
In Sharpe, the Federal Circuit clarified the Loving prongs and what is required by
petitioners to successfully demonstrate a causation-in-fact significant aggravation claim. Sharpe
v. Sec’y of Health & Hum. Servs., 964 F.3d 1072 (Fed. Cir. 2020). Loving prong three only requires
a comparison of a petitioner’s current, post-vaccination condition with his pre-existing pre-
vaccination condition. Sharpe at 1082; Whitecotton v. Sec’y of Health & Hum. Servs., 81 F.3d
1099 (Fed. Cir. 1996). A petitioner is not required to demonstrate an expected outcome or that his
post-vaccination condition was worse than such an expected outcome. Sharpe at 1081. Further, a
petitioner is not required “to disprove that a pre-existing genetic mutation caused [his] significant
aggravation.” Sharpe at 1087.
Under Loving prong four, a petitioner need only provide a “medical theory causally
connecting [petitioner’s] significantly worsened condition to the vaccination.” Sharpe at 1083; see
also Loving, 86 Fed. Cl. at 144. In other words, petitioner is required to present a medically reliable
theory demonstrating that a vaccine “can cause a significant worsening” of the condition. Sharpe
at 1083 (citing to Pafford ex. rel. Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1356-
57 (Fed. Cir. 2006). A petitioner may be able to establish a prima facie case under Loving prong
four without eliminating a pre-existing condition as the cause of her significantly aggravated
injury. Id.; citing Walther v. Sec’y of Health & Hum. Servs., 485 F. 3d 1146, 1151 (Fed. Cir. 2007)
(noting that “the government bears the burden of establishing alterative causation. . . . once
petitioner has established a prima facie case”).
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Loving prong five requires a petitioner to show “a logical sequence of cause and effect
showing that the vaccination was the reason for the significant aggravation.” Loving, 86 Fed. Cl.
at 144. In other words, petitioner must show that the vaccinations “did” cause a worsening of
[petitioner’s underlying disorder]. Id.
In determining whether a petitioner is entitled to compensation, a special master must
consider the entire record and is not bound by any particular piece of evidence. § 13(b)(1) (stating
that a special master is not bound by any “diagnosis, conclusion, judgment, test result, report, or
summary” contained in the record). Furthermore, a petitioner is not required to present medical
literature or epidemiological evidence to establish any Althen prong. The special master essentially
must weigh and evaluate opposing evidence in deciding whether a petitioner has met their burden
of proof. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1380 (Fed. Cir. 2009); see also
Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1149 (Fed. Cir. 1992).
B. Law Governing Analysis of Fact Evidence
The process for making factual determinations in Vaccine Program cases begins with
analyzing the medical records, which are required to be filed with the petition. 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 & Hum. Servs., 3
F.3d 413, 417 (Fed. Cir. 1993) (it is 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 created contemporaneously with the events they describe are generally
trustworthy because they “contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions,” where “accuracy has an extra premium.” Kirby v.
Sec’y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021) citing Cucuras, 993 F.2d at 1528.
This presumption is based on the linked proposition 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 & Hum. Servs., No. 11-685V, 2013 WL 1880825 at *2 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) mot. for rev. denied, 142 Fed. Cl. 247, 251-52 (2019), vacated on
other grounds and remanded, 809 Fed. Appx. 843 (Fed. Cir. Apr. 7, 2020).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-1585V, 2005 WL
6117475 at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are generally found to be deserving of greater evidentiary weight than oral testimony -- especially
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where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also
Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff’d per curiam, 968 F.2d
1226 (Fed. Cir. 1992), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States
v. U.S. 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.”)).
However, there are 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 & Hum. 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 & Hum. Servs., 991 F.2d 1570,
1575 (Fed. Cir. 1993).
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 & Hum. 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
& Hum. 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 connecting the vaccine to the injury often
requires petitioners to present expert testimony in support of their claim. Lampe v. Sec’y of Health
& Hum. 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 Pharm., Inc., 509 U.S. 579, 594-96 (1993). See Cedillo v. Sec’y of Health & Hum. Servs.,
617 F.3d 1328, 1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Hum. 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).
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The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial fora. Daubert factors are employed by judges to exclude
evidence that is unreliable and potentially confusing to a jury. In Vaccine Program cases, these
factors are used in the weighing of the reliability of scientific evidence. Davis v. Sec’y of Health
& Hum. 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”).
Respondent frequently offers one or more experts of his own in order to rebut petitioners’
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 v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (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)). A “special master is entitled to
require some indicia of reliability to support the assertion of the expert witness.” Moberly, 592
F.3d at 1324. 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. Id. at 1325-26 (“[a]ssessments as to the
reliability of expert testimony often turn on credibility determinations”).
D. Consideration of Medical Literature
Although this decision discusses some but not all of the medical literature in detail, I
reviewed and considered all of the medical records and literature submitted in this matter. See
Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally
presume that a special master considered the relevant record evidence even though [s]he does not
explicitly reference such evidence in h[er] decision.”); Simanski v. Sec’y of Health & Hum. Servs.,
115 Fed. Cl. 407, 436 (2014) (“[A] Special Master is ‘not required to discuss every piece of
evidence or testimony in her decision.’” (citation omitted)), aff’d, 601 F. App’x 982 (Fed. Cir.
2015).
VI. Analysis
A. Diagnosis
In Broekelschen v. Sec’y of Health and Human Servs., 618 F.3d 1339, 1346 (Fed. Cir.
2010), the Federal Circuit recognized that in some circumstances, the special master may “first
determine which injury was best supported by the evidence presented in the record before applying
the Althen test.”
1. There is Preponderant Evidence that H.H. has Aicardi Goutières syndrome or a
Similar Type I Interferonopathy due to a Congenital Abnormality in an
Unidentified Gene
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Aicardi-Goutières syndrome is a “rare genetic disorder most consistently affecting the
brain and the skin.” Crow et al., Characterization of Human Disease Phenotypes Associated with
Mutations in TREX1, RNASEH2A, RNASEH2B, RNASEH2C, SAMHD1, ADAR, and IFIH1, AM J
MED GENET Part A 167A:296–312 (2014) (filed as Ex. A4) (hereinafter “Crow 2014”). Dr. Marks
described AGS as “a disorder of interferon activity, so … it’s an immune mediated disorder that
typically result[s] in neurologic regression with dystonia, intracranial calcifications.” Tr. at 147.
There are currently seven gene mutations known to cause AGS. La Piana et al., Neuroradiologic
patterns and novel imagining findings in Aicardi-Goutières syndrome, 86 NEUROLOGY 28-35
(2015) (filed as Ex. D, Tab 3) (hereinafter “La Piana”). Rice noted that “Some individuals with
AGS do not harbor mutations in any of these … genes.” Rice et al., Gain-of-function mutations in
IFIH1 cause a spectrum of human disease phenotypes associated with upregulated type I
interferon signaling, 46 NATURE GENETICS 5, 503-10 (2014) (filed as Ex. A, Tab 5) (hereinafter
“Rice 2014”). La Piana noted that “[b]rain calcification, leukoencephalopathy,18 and cerebral
atrophy are the classic hallmarks of the disease and have suggested the diagnosis of AGS in the
majority of cases.” La Piana at 28.
The condition was first recognized in 1984 by French pediatric neurologists, Jean Aicardi
and Françoise Goutières. Rice et al., Clinical and Molecular Phenotype of Aicardi-Goutières
Syndrome, 81 AMERICAN JOURNAL OF HUMAN GENETICS 713-25 (2007) (filed as Ex. C, Tab 1)
(hereinafter “Rice 2007”). However, since 1984, “the spectrum of disease resulting from mutations
in the AGS-related genes has broadened, in part due to the advent of the new sequencing
technologies.” Crow 2014 at 300. Dr. Crow noted that AGS patients consistently demonstrated
“increased levels of interferon activity in the cerebrospinal fluid and serum and an increased
expression of interferon-stimulated genes (ISGs) in peripheral blood.” Id. at 301. Dr. Crow goes
on to note that “[t]hese observations are important in identifying AGS as an inflammatory disorder
associated with the induction of a type I interferon mediated innate immune response, likely driven
by endogenously-derived nucleic acids.” Id.
Several factors suggest that H.H. more likely than not, has AGS or a similar genetic
disorder.
a. H.H.’s Clinical Presentation
H.H. presented with the rapid onset of encephalopathy with the development of spasticity19
18 Leukoencephalopathy is “any of a group of diseases affecting the white matter of the brain, especially of
the cerebral hemispheres, and occurring as a rule in infants and children.” Leukoencephalopathy, Dorland’s
Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=28070&searchterm=
leukoencephalopathy (last accessed March 12, 2022).
19 Spasticity is “the state of being spastic.” Spastic is defined as “hypertonic, so that the muscles are stiff
and the movements awkward.” Spastic, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.
com/dorland/definition?id=46356&searchterm=spasticity (last accessed March 14, 2022).
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and dystonia,20 which Dr. Barañano described as “entirely consistent with a clinical diagnosis of
AGS.” First Barañano Rep. at 5. Dr. Barañano further opined that “clinically, [H.H.] has behaved
like an AGS patient with stabilization of [his] irritability.” Tr. at 292.
Dr. McGeady opined that H.H. had “evidence of leukodystrophy21 and thinning of the
corpus callosum, which are described in AGS.” First McGeady Rep. at 4. See Ex. 95 at 135, 147.
In support of this point, Rice et al. noted that “[c]ortical atrophy was a common feature in later
scans, and a number of children demonstrated significant brain-stem and cerebellar atrophy.
Thinning and, in one subject, complete absence of the corpus callosum were also observed.” Rice
2007 at 719.
Several of H.H.’s treating physicians also agreed that H.H.’s clinical presentation was
suggestive of or consistent with AGS. Dr. Aalbers, one of H.H.’s treating neurologists, noted that
H.H.’s progressive encephalopathy, dystonia, and spasticity were all consistent with AGS. Ex. 52
at 28.
Dr. Heather Crawford, a metabolic geneticist, saw H.H. on February 4, 2014. She noted in
the medical records that H.H. presented “with developmental regression and developed
progressive dystonia that is characteristic of [AGS].” Ex. 50 at 24. Dr. Crawford further stated that
H.H. “appears to … have a later-onset presentation for AGS as he presented after a long period of
normal development.” Id. In discussing the natural history of AGS with Petitioners, Dr. Crawford
told them that:
Typically, these children have a regression phase, followed by irritability, then a
slow progressive encephalopathy phase. These children typically develop
peripheral spasticity, truncal hypotonia, dystonic posturing [of the] upper limbs and
poor head control, all of which [H.H.] is currently displaying. … Seizures are also
observed in up to 50% of affected [children].
Id. The progression of H.H.’s disease was consistent with Dr. Crawford’s description. Although
H.H. had not developed seizures at the time of this conversation, he had his first seizure on July 9,
2017. See Ex. 95 at 130.
Dr. Vanderver assessed H.H. in March of 2015 upon referral from Dr. Marks. See Ex. 81
at 1-10. Dr Marks described Dr. Vanderver stating, “she's probably the United States' expert on …
AGS.” Tr. at 156.
Dr. Vanderver noted in her final report:
20 Dystonia is “[a] syndrome of abnormal muscle contraction that produces repetitive involuntary twisting
movements and abnormal posturing of the neck, trunk, face, and extremities.” Stedman’s Medical
Dictionary, 28th ed. 2006 (p. 602).
21 Leukodystrophy is “any of various types of neurodegeneration involving disturbance of the white matter
of the brain. See also adrenoleukodystrophy and leukoencephalopathy.” Leukodystrophy, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=28066&searchterm=
leukodystrophy (last accessed March 14, 2022).
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[H.H.] is seen in the context of developmental delay, dystonia, abnormal MRI and
elevated CSF interferon/neopterin/tetrahydrobiopterin with clinical diagnosis of
Aicardi Goutieres Syndrome but negative genetic testing and no evidence of visible
intracranial calcifications on an early CT scan.
Ex. 81 at 1. In the “diagnostic and treatment plan” section, Dr. Vanderver indicated an intent to
collaborate with Dr. Crow “to facilitate genetic resolution of [H.H.]’s suspected heritable
interferonopathy.” Id. at 6.
b. Elevated Liver Enzymes
Several of H.H.’s treating physicians noted that H.H. had elevated liver enzymes, which is
also consistent with a diagnosis of AGS.
H.H. visited Dr. Crawford on November 12, 2013. During this visit, Dr. Crawford noted
that some of H.H.’s lab values were high. Specifically, his AST (aspartate transaminase) was 353,
his ALT (alanine transaminase) was 400, and his AP (alkaline phosphatase) was 232. Ex. 50 at 4.
Dr. Crawford noted that H.H.’s transaminases (liver enzymes) were elevated. Id. at 6.
On December 17, 2013, Dr. Aalbers stated in the medical record that “[o]f concern the
patient had previously unexplained transient elevations of liver enzymes which is consistent with
AGS…” Ex. 52 at 28.
During H.H.’s hospital admission to address his tethered cord on December 18, 2013, Dr.
Richard Roberts remarked that his liver enzymes were as follows: AST, 325; ALT, 472, “raising
the concern for possible Aicardi-Goutieres syndrome, a very rare and progressive encephalitic
disease of childhood.” Ex. 55 at 1.
On May 23, 2014, H.H. visited Dr. Jane Keng, who noted that his AST was elevated at 119
and his ALT was elevated at 125. Ex. 63 at 2.
The concerns regarding H.H.’s elevated transaminases noted by several of his treating
physicians are also supported by the medical literature. Rice et al. collected clinical data from 123
patients with a confirmed AGS gene mutation. The authors noted that 15 of the 123 AGS patients
“demonstrated liver involvement, with hepatosplenomegaly and/or raised transaminase levels.”
Rice 2007 at 718. Livingston & Crow similarly noted liver dysfunction in a subset of AGS
children. Livingston & Crow at 3.
The fact that H.H. had intermittently elevated liver enzyme levels is certainly not diagnostic
of AGS, but these levels do provide support for his diagnosis with that condition.
c. Elevated Interferon Alpha/Neopterin Levels
In examining H.H.’s presentation and evolving clinical picture, one of the most striking
aspects of it is his high neopterin and interferon alpha levels. As early as 2003, Dr. Crow stated
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that “an increase of CSF IFN-[alpha] in the absence of infection is currently considered a marker
for the condition.” Crow et al., Cree encephalitis is allelic with Aicardi-Goutières syndrome:
implications for the pathogenesis of disorders of interferon alpha metabolism, 40 JOURNAL OF
MEDICAL GENETICS 3, 183-87, 184 (2003) (filed as Ex. D, Tab 5) (hereinafter “Crow 2003”). In
2014, Crow et al. noted that “[p]atients with AGS consistently demonstrate increased levels of
interferon activity in the cerebrospinal fluid and serum … and an increased expression of
interferon-stimulated genes (ISGs) in peripheral blood … a so-called interferon signature.” Crow
2014 at 301.
Livingston & Crow additionally support the importance of this “interferon signature”; they
describe that
[t]he detection of elevated levels of interferon α in the CSF and blood of patients
with AGS was recognized soon after the disorder was described. More recently,
evidence for abnormal interferon activity in AGS has been demonstrated by
identifying an “interferon signature” in peripheral blood. The interferon signature
measures the expression of interferon stimulated genes and has been identified in
almost 100% of patients with mutations in TREX1, RNASEH2A, RNASEH2C,
SAMHD1, ADAR1, and IFIH1.
Livingston & Crow at 5.
H.H.’s neopterin levels were high on 11/14/2013, (Ex. 96 at 7), 12/19/2013 (Ex. 96 at 7),
11/14/2014 (Ex. 56 at 94), 4/17/2014 (Ex. 56 at 323). In fact, Dr. Richard Roberts assessed H.H.
in December of 2013. He noted that H.H.’s lumbar puncture “showed remarkably high elevations
of biopterin and neopterin: the highest neopterin levels we have ever seen.” Ex. 55 at 1 (emphasis
added). H.H.’s levels remained elevated through 2017 when they returned to the normal range only
to become elevated again when they were tested in 2019.
On February 4, 2014, Dr. Heather Crawford noted that H.H.’s elevated neopterin levels are
“only seen in Aicardi-Goutieres syndrome (AGS) and HIV infection.” Ex. 50 at 24 (emphasis
added). H.H. tested negative for HIV. Ex. 52 at 75. H.H.’s blood was sent to England and his CSF
was sent to France for interferon alpha testing. Dr. Crawford noted that “[b]oth CSF and blood
showed elevated levels of INF-alpha which is diagnostic for AGS.” Ex. 50 at 24 (emphasis
added).
During the entitlement hearing, I asked whether you could see elevated neopterin levels in
a viral infection other than HIV. Dr. Barañano testified as follows:
You could. So … for example, they looked at patients who had encephalitis and,
meningoencephalitis, and with herpes virus infections, they would see elevated
neopterin. There's a very terrible brain stem encephalitis that can be caused by an
enterovirus, and so it's been reported in that situation. But these are clinical settings
where patients would have fever. They would have lot of white cells in their spinal
fluid. They would … have very different imaging abnormalities on their MRI that
would point to some kind of infectious picture going on.
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Tr. at 293-94.
H.H. also had his interferon alpha levels in both the blood and CSF tested in England and
France. The French results revealed elevated levels of interferon alpha in the serum on two
different dates: January 15, 2014 and March 25, 2014; the levels were 18 and 9, respectively, with
˂ 2 being normal. Ex. 56 at 357.
After the extensive testing performed in this case, there was no explanation for H.H.’s
elevated neopterin and interferon alpha levels other than AGS. Ultimately, Dr. Barañano opined
that “based on his clinical course and his biochemical abnormalities, the most leading, the most
likely diagnosis right now is suspected AGS.” Tr. at 279.
Petitioners argue that H.H. does not have AGS because his clinical presentation is lacking
“five major characteristics” that should be present in order to render an AGS diagnosis. See Pet’rs’
Post-Hearing Brief at 13. Petitioners note that H.H. does not have one of the seven genetic
mutations known to cause AGS; he did not have calcifications on MRI; he had no known damage
to his basal ganglia; his neopterin levels did not normalize; and his rapid decline occurred after 12
months of age. Id. I will discuss each of these points, in turn.
d. Genetic Mutation
Because H.H. does not have one of the seven identified genes known to cause AGS,
diagnosis in this case has been challenging. Livingston and Crow have noted that “[m]utations in
these [seven] genes account for around 95% of patients with classical AGS.” Livingston & Crow
at 2. This means that five percent of AGS cases are associated with an unidentified genetic
mutation. Second Barañano Rep. at 1. Dr. McGeady agreed, noting that the “identification of
genetic mutations causing AGS is a work in progress.” First McGeady Rep. at 6.
The fact that H.H. does not have a gene currently identified with AGS is Petitioners’
strongest argument that he does not have the disease.
Petitioners also argue that H.H. did not exhibit four other “major characteristics” that have
been observed in other patients with AGS. At the outset, I note that our understanding of AGS has
evolved as physician-scientists have conducted additional research. This additional research has
led those who study the disease to recognize that “the range of phenotypes associated with
mutations” of AGS genes “is much broader than previously realized.” Crow & Manel, Aicardi-
Goutières syndrome and the type I interferonopathies, 15 NATURE REVIEWS IMMUNOLOGY 429-
40, 429 (2015) (filed as Ex. D1) (hereinafter “Crow & Manel”). Crow & Manel recognized that
“patients with mutations in the AGS-associated genes frequently lack one or more, sometimes
even all, of the original diagnostic criteria outlined by Aicardi and Goutières in their 1984 paper.”
Id. at 430 (emphasis added). Similarly, Livingston & Crow noted that “[a]s more patients harboring
mutations in these genes have been described, in particular facilitated by the advent of whole
exome sequencing, a remarkably broad spectrum of associated neurologic phenotypes has been
revealed.” Livingston & Crow, Neurologic Phenotypes Associated with Mutations in TREX1,
RNASEH2A, RNASEH2B, RNASEH2C, SAMHD1, ADAR1, and IFIH1: Aicardi–Goutières
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Syndrome and Beyond, NEUROPEDIATRICS, DOI http://dx.doi.org/10.1055/s-0036-1592307 ISSN
0174-304X, 1-6 (2016) (filed as Ex. A, Tab 1) (hereinafter “Livingston & Crow”). Finally, Crow
and Manel noted that
although the AGS diagnostic label still has a useful clinical purpose, there are many
patients who do not fit this paradigm as initially delineated. Hence, we are now
tending towards the use of the generic term ‘type I interferonopathy’ to refer to this
group of monogenic diseases in which a constitutive upregulation of type I IFN
production is considered directly relevant to pathogenesis.
Crow & Manel at 430. It is important to consider this expanded understanding of the AGS
phenotype in analyzing H.H.’s presentation.
e. Calcifications
Brain calcifications are consistently recognized as a feature usually present in children with
AGS. The fact that H.H. did not have brain calcifications supports Petitioners’ position that AGS
is not his proper diagnosis. As Dr. Barañano noted in her testimony, “if he had calcifications, we
would not be having this hearing.” Tr. at 280.
Although brain calcifications are typical of most AGS patients, some do not have them.
Dr. McGeady opined that “[w]hile calcification of the CNS are not described in HH’s MRI studies,
the authors of the 2007 report of Rice et al. state "this feature (i.e. intracranial calcification) should
not be considered prerequisite for the diagnosis of AGS” since it is variably present. Id.; See Rice
at 721.
Similarly, Dr. Barañano noted that “it’s become well established that calcifications are not
required for … a definitive genetic diagnosis of AGS.” Tr. at 279.
f. Basal Ganglia Damage
In his letter submitted on August 25, 2017, Dr. Marks stated that “On his most recent July
2017 MRI scan, there is diffuse atrophy but there are no intracranial calcifications or physical
injury to the basal ganglia damage, two of the common findings in AGS.” Second Marks Rep. at
1.
It is not clear that damage to the basal ganglia is a “major characteristic” of an AGS
diagnosis. Petitioners did not cite to any authority for this proposition except for the opinion of Dr.
Marks. In examining the medical literature, Crow & Manel provide a chart that summarizes the
“major clinical features associated with genetically distinct type I interferonopathies”. Crow &
Manel at 434. Under “neurological phenotypes”, Crow & Manel list, “developmental delay”,
“intracranial calcification”, “white matter disease”, “cerebral atrophy”, and “spastic paraparesis”.
Id.
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La Piana et al. note that “[b]asal ganglia atrophy was documented in cases with bilateral
striatal necrosis.” La Piana at 30. It is unclear if this is the damage to which Dr. Marks referred. If
so, it does not appear to be a common feature of the disease.
Additionally, Dr. Barañano briefly discussed this issue at the entitlement hearing; she
testified that “the basal ganglia damage is seen in a subset of patients especially those with a
particular mutation in something called ADAR.” Tr. at 280. She noted that it is not universally
seen in all cases of AGS. Id. Of note, mutations on the ADAR gene account for approximately 7%
of AGS cases, according to Dr. Crow’s data. See Crow 2014 at 301. Based on the above, I do not
find that basal ganglia damage is a major characteristic of AGS, as argued by Petitioners in their
post hearing brief.
g. Normalization of Neopterin Levels
In his letter filed into the record on August 25, 2017, Dr. Marks stated that “HH has had
persistently biomarkers for intrathecal interferon production until his most recent testing
performed in July 2017 which revealed normal levels of CSF neopterin, a marker for interferon
production.” Marks Expert Report at 1. Dr. Marks cited this normalization of neopterin as a basis
to opine that he favored vaccine causation over AGS because of H.H.’s “waning immune
response.” Id.
However, H.H.’s neopterin levels changed by the time of the entitlement hearing. While it
is true that his levels were in the normal range on August 7, 2017 (Ex. 95 at 78), they were again
elevated on January 23, 2019. Ex. 96 at 14; Ex. 96 at 115.
In their post-hearing brief, Petitioners argue that “H.H.’s presentation showed … 3) no
normalization of neopterin levels”. Pet’rs’ Post-Hearing Brief at 13. Petitioners further argued that
a normalization of neopterin constitutes one of the five major characteristics of an AGS diagnosis.
Id. It is unclear whether Petitioners misstated their position, as they later argue in their brief that
H.H.’s neopterin levels normalized in July 2017. They stated that “H.H. has persistently shown
biomarkers for intrthecal [sic] interferon production until his most recent testing performed in July
2017, which revealed normal levels of CFS neopterin, a marker for interferon production.” Pet’rs’
Post-Hearing Brief at 16.
Dr. Marks testified at hearing with respect to H.H.’s neopterin levels. He stated, “So in
2017, the levels had dropped down some, and then … with the last one, they actually went back
up again. Now … admittedly, that's known to happen in AGS. The … interferon levels can
fluctuate some over time.” Tr. at 176. Dr. Marks’ testimony does not ascribe great significance to
H.H.’s drop in neopterin levels in 2017 and subsequent re-elevation in 2019. Although he did not
mention it at hearing, apparently he no longer believes that H.H.’s neopterin normalization
suggests vaccine causation, as that level is again elevated.
Further, the medical literature filed in this case does not provide compelling support for
the point that it is characteristic for AGS patients to experience normalization in neopterin levels.
In fact, Crow et al. note that their data “clearly demonstrate that an interferon signature persists
long term in most patients, indicative of an ongoing inflammatory process.” Crow 2014 at 309.
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Accordingly, I do not credit Petitioners’ position that normalization of neopterin is characteristic
of AGS. In fact, the persistent elevation of H.H.’s neopterin levels lends support for an AGS
diagnosis.
h. Onset of AGS after 12 Months of Age
Petitioners correctly note that most children who develop AGS do so within the first year
of life. They go on to argue that because H.H. developed normally until he was approximately 15
months-old, this suggests that AGS is not his correct diagnosis.
Both Dr. McGeady and Dr. Barañano opined that there is variability in AGS presentation
which includes onset after the first year of life. Dr. McGeady specifically opined that “a period of
normal development before the onset of symptoms in AGS is described in some cases and should
not be considered as a finding implicating the vaccines.” First McGeady Rep. at 4-5.
The medical literature supports the fact that while onset of “typical” cases of AGS occurs
in the first year of life, it is well recognized that children can develop onset after this time. See e.g.,
Orcesi et al., Aicardi–Goutières syndrome presenting atypically as a sub-acute
leukoencephalopathy, 12 EUROPEAN JOURNAL OF PAEDIATRIC NEUROLOGY, 408-11 (2008) (filed
as Ex. A2) (describing a case of Aicardi–Goutières syndrome in a 16-month-old child with
previously normal development); see also D’Arrigo (same). Livingston & Crow also described a
case of later onset AGS. They discussed a child
who showed completely normal development until the age of 15 months, at which
time he could walk and had 6 to 10 words. After this point, he developed
intermittent posturing and rigidity of his legs, and then of the upper extremities. He
also developed exaggerated startle. He subsequently experienced a relentless loss
of motor and intellectual skills, and by the age of 24 months, he was unable to sit
unsupported and had lost the ability to swallow. Between 15 months and 4 years of
age, he demonstrated a fluctuating pattern of poor sleep, with persistent whining
and crying.
Livingston & Crow at 3.
Finally, Crow et al. studied 325 children with AGS and observed that “[t]wenty-eight
patients (8.6%) presented after the age of 1 year, with 35% and 30% of patients with mutations in
ADAR and IFIH1, respectively, demonstrating the onset of disease after this age.” Crow 2014 at
303. Crow’s data suggest that later onset is associated primarily with mutations in two specific
AGS genes.
Ultimately, the fact that H.H. developed symptoms consistent with AGS at 15 months does
show his clinical course is not a typical presentation of the disease. At the same time, this point
does not provide persuasive evidence that H.H. does not have AGS, as cases of later onset are
reported in the medical literature.
i. Neurologic Stabilization/Improvement
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Although not specifically alleged by Petitioners in their post hearing brief, Dr. Marks
discussed H.H.’s neurologic stabilization and improvement as support for the fact that he does not
have AGS.
In his affidavit, Dr. Marks opined as follows: “H.H.’s neurological status has since
stabilized, but [he] still has persistent increases in his interferon levels. This stabilization of his
neurological status, which was hyperactive post-immunization is indicative of the cause being
derived from the vaccinations.” Marks Affidavit at 4-5. At hearing, Dr. Marks described AGS as
a “relentlessly progressive disorder.” Tr. at 164. He opined that H.H.’s improvement in function
is not expected in an AGS patient. Id.
Dr. Barañano disagreed with Dr. Marks on this point. She testified that “based on [her]
clinical experience and understanding of the literature, what is the most common clinical course is
to have the acute neurologic symptoms followed by a period of stabilization.” Tr. at 270. “it's well
established that AGS is not necessarily a relentlessly progressive neurodegenerative disorder. So
I would respectfully disagree with Dr. Marks in his assessment … of that.” Id.
Dr. McGeady disagreed with Dr. Marks as well. He opined that “stabilization of the
neurologic status of AGS patients is a characteristic of the disease, and should not be considered
evidence against that diagnosis.” First McGeady Rep. at 7.
The medical literature supports the opinions of Drs. Barañano and McGeady. For example,
Crow et al. noted that “[b]eyond an initial encephalopathic phase, generally lasting several months,
continued neurological deterioration was not obvious in most patients; indeed, some parents
reported a slow but steady acquisition of new skills over time.” Crow 2014 at 309. Rice et al.
similarly observed that the majority of children presented with “subacute onset of a severe
encephalopathy, characterized by irritability, inconsolable crying, intermittent sterile pryexias …
and a loss of skills. These episodes usually lasted several months, beyond which time the condition
stabilized. Thereafter no further disease progression was generally observed.” Rice 2007 at 718.
Finally, Livingston & Crow noted that
Although initially considered a neurodegenerative, progressive disease, as more
patients have been studied longitudinally, this point has come into question. In our
opinion, the most classical clinical course is of a period of several months of
neurologic regression in infancy associated with progressive radiological changes.
For most patients, the disease then stabilizes, leaving the child with profound
disabilities.
Livingston & Crow at 4-5. The fact that H.H.’s condition stabilized and even showed some
improvement is consistent with a diagnosis of AGS.
Dr. Barañano testified at the entitlement hearing regarding the question of diagnosis. She
opined that “[H.H.] has something like AGS that in my experience we will eventually find the
genetic underpinnings of his disorder.” Tr. at 296. Dr. Steinman agreed. He opined that “the
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diagnosis is an interferonopathy akin to AGS” and noted that “the genetic basis of the disease has
not been shown at the time I wrote Ex 101.” Second Steinman Rep. at 2. Dr. Vanderver, one of the
nations’ leading authorities on AGS, treated H.H. in March of 2015. Dr. Vanderver noted that H.H.
had a “suspected heritable interferonopathy.” Ex. 81 at 6. Ultimately, in considering the evidence
presented on this issue, I find the opinions of Dr. Barañano, Dr. McGeady, Dr. Vanderver, and Dr.
Steinman to be persuasive. H.H., more likely than not, has AGS or a similar genetic
interferonopathy.
2. H.H.’s Aicardi Goutières Syndrome/Genetic Type I Interferonopathy
Manifested around the Time of his October 17, 2013 Vaccinations and before
his October 23, 2013 Vaccination
On September 13, 2013, Mrs. Heller called Wise Pediatrics. The note from this phone call
reads as follows: “mom concerned with pt not walking and rt foot turned inward has appt in one
month, questions if needs to be seen earlier than scheduled appt, discussed development per Dr.
Hollis, will wait till scheduled to be seen.” Ex. 49 at 37. There is no mention of this issue in the
notes from the 15-month well visit on October 17, 2013. Id. at 39. At the entitlement hearing, Mrs.
Heller testified that H.H. had appeared “pigeon-toed” when she called Wise Pediatrics, but that his
feet were not turned in during the 15-month appointment. Tr. at 13-14. Dr. Hollis assessed him as
a well child.22 Id.
The experts did not provide a persuasive opinion regarding this evidence. Dr. Barañano
opined “there is evidence that his onset of symptoms began prior to the vaccine administration.”
Second Barañano Rep. at 1. Dr. McGeady stated that “It is not possible to know with certainty
why the concerns expressed in the phone contact of 9/13/2013 were not addressed in the office
visit of 10/17/2013, if only to dismiss them.” Second McGeady Rep. at 2. Dr. Steinman opined: “I
personally do not think that H.H. had pre-existing evidence of a neurologic problem, unless the
turning of the right foot inward was the earliest manifestation of dystonia. Whether or not there
was a subtle form of an underlying problem prior to October 17, 2013 is a point that cannot easily
be resolved.” First Steinman Rep. at 5.
Although there may be a relation between this documented concern in September involving
H.H.’s right foot, and the onset of his type I interferonopathy (which also first manifested in his
right foot/leg), I do not find there is sufficient evidence to draw this connection. In particular, none
of the experts explained why or how H.H. would begin to demonstrate signs of his genetic disorder
and then improve. This point is especially confounding given H.H.’s rapid and relentless decline
once his disease process started. As such, I find there is not preponderant evidence that the
inturning of H.H.’s right foot in September of 2013 constituted the onset of his condition.
22 Dr. Hollis filed a supplemental affidavit on August 26, 2016. Ex. 90. In it, she stated that she examined
H.H. on October 17, 2013, and noted that he was “taking a few steps independently between objects.” Id.
at 2. Dr. Hollis then wrote that “His mom had noted his foot possibly turning in 1 week prior to his
appointment.” Id. I assume that “one week” is a typo and Dr. Hollis meant to write one month. In making
this assumption, I have credited the contemporaneously created medical records over an affidavit created
years after the fact.
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On November 11, 2013, Mrs. Heller brought H.H. to visit Dr. Hollis. In the history of
present illness section of the record, Dr. Hollis noted that “Pt has been fussy for the last week. He
has run fever to 101.5. His energy level is decreased. Pts development has regressed in the last
month.” Ex. 49 at 41. This record is the medical record most contemporaneous to the onset of
H.H.’s condition; it suggests that H.H. had regressed in the last month, or since mid-October of
2013.
The fact witnesses consistently testified at the entitlement hearing that H.H. was not
himself on Halloween. Mrs. Heller testified that he began dragging his right foot that week. Tr. at
19. Mrs. Heller also testified that he fell on Halloween. Id. at 19-20. Ms. Sewell testified that H.H.
began falling around October 26, 2013. Id. at 113-14. Ms. Huling also saw H.H. fall on Halloween.
Id. at 128.
On March 14, 2014, H.H. was evaluated at an infectious diseases consultation. Dr. Kenneth
Colina noted as follows:
[H.H.] is a 20-month-old … who has developed progressive developmental delay
over the last 5 months, relatively acutely. His mother reports that she breastfed him
constantly until 10/9. Within a day or 2 of stopping breastfeeding he seemed to trip
and fall when he was crawling. She reports that he was completely normal at his
15-month checkup, walking and talking, and very active and playful. She then
stopped breastfeeding, and within a week he was falling. About 8 days later after
stopping breastfeeding, he got his 15-month shots.
Ex. 57 at 1. The “review of systems” section noted that “after he started falling in mid-October his
parents noticed that he had a fever for about a week, with a red throat that resolved.” Id.
This record does contain some inconsistencies. For instance, it is not clear whether H.H.
was falling before his 15 month appointment or not. Mrs. Heller testified that H.H. did not trip and
fall within one or two days of the date she stopped breastfeeding. Tr. at 39. However, several points
in this record are accurate. First, Mrs. Heller did stop breastfeeding on approximately October 9,
2013. She discussed this matter at the entitlement hearing, testifying that, “I wanted my kids two
years apart, so I decided to wean him at the beginning of October so I could start trying again…”
Tr. at 37. Mrs. Heller testified that she wanted H.H. to be completely weaned by 15 months. Id. at
37-38. She additionally stated, “there's probably no question that I quit breast-feeding the week
before vaccines …” Id. at 60. It is also true that eight days after October 9 is October 17, 2013, the
date H.H. received his flu and Prevnar vaccines. Ultimately, this record does support that H.H.
started falling in mid-October, although the term “mid-October” is not precise.
Mrs. Heller took H.H. to see her aunt, Sheri Huling, early in the week of October 20, 2013.
As of the date she drafted her letter, Ms. Huling had been a practicing pediatric physical therapist
for 35 years. Ex. 102 at 1.23 According to Ms. Huling, H.H.
23 Ms. Huling testified at the entitlement hearing that her affidavit (Ex. 91) was not entirely accurate. The
affidavit noted that “[a] few weeks prior to H.H.’s 10-23-13 visit with his pediatrician, I noted some
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had the pneumonia and flu vaccine[s] on 10-17-13, and I saw him the following
week. His mom had noticed that over the last few days he was having some trouble
cruising around furniture and taking steps and she asked me to take a look at him
from a therapist perspective. I noted some tightness in his right heel [] cord that was
alarming. I advised her of some stretches to do and then told her to make sure and
call this to the attention of her physician on his next visit which was to be 10-23-
13.
Ex. 102 at 1. This visit with Ms. Huling took place either Sunday, October 20, 2013, Monday the
21st, or Tuesday the 22nd, as it was the “next week” after the October 17 vaccinations and before
H.H.’s visit on October 23rd. This places onset of H.H.’s difficulty walking to a few days before
this visit, or around the date the first two vaccines were administered. Ms. Huling went on to note
that when she saw H.H. on Halloween, she noted “worsening in his tightness in [the] right heel []
cord.” Id. Ms. Huling stated that she observed H.H. fall once while seated and once while standing
on October 31, 2013. Id.
The right heel cord tightness that Ms. Huling observed is also documented in the medical
records. Dr. Crawford evaluated H.H. on November 12, 2013. During this visit, she noted that
H.H.’s “heel cords appear somewhat tight and he may require AFOs [ankle-foot orthosis]24 at some
point in the future.” Ex. 50 at 2. The physical exam section of this record indicates that H.H. had
“hypertonicity (noted in lower extremities especially at the ankles).” Id. at 5. Dr. Crawford
recommended that H.H. attend physical therapy. Id. at 6.
H.H.’s clinical picture worsened by the time of his next visit with Dr. Crawford on
December 3, 2013. Dr. Crawford noted that H.H. had “hypertonicity (noted in lower extremities
especially at the ankles, feet held inward position). Pt now holds hand in a fist when trying to reach
for objects and when crawling…” Ex. 50 at 11.
During a physical therapy session on June 26, 2014, the physical therapist noted that H.H.
had several abnormal exam findings, to include “bilateral Achilles contractures”. Ex. 95 at 145.
Ultimately, Ms. Huling noted that H.H. had a tight right heel cord – an observation that she
described as “alarming.” She noticed this tightness sometime in the days after H.H. received his
October 17, 2013 vaccinations, and before he received the Pentacel vaccine on October 23, 2013.
The medical records also document this finding, and associate the tightness with his disease
tightness in his right heel [] cord that I suggested should be mentioned to his pediatrician.” Ex. 91 at 2
(emphasis added). Ms. Huling testified that before signing her affidavit, she had prepared a letter (filed as
Ex. 102) outlining her memory of the events surrounding the onset of H.H.’s condition. Tr. at 205-07. Ms.
Huling specifically referenced H.H.’s heel cord tightness and testified that she noticed it a few days before
the October 23, 2013 vaccination. See Tr. at 206-07.
24 An ankle-foot orthosis is “any orthotic device for the lower limb that encloses the ankle and foot and does
not extend above the knee; often there is a cuff or other device in the region of the knee or upper calf to
take weight off the limb.” Ankle-foot orthosis, Dorland’s Med. Dictionary Online, https://
www.dorlandsonline.com/dorland/definition?id=95032 (last accessed March 28, 2022).
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progression. I find Ms. Huling’s description to be compelling evidence that is also supported by
other medical records. See Ex. 49 at 41 (medical record from November 11, 2013, noting that
H.H.’s development had regressed in the last month); Ex. 57 at 1 (stating that H.H. began falling
in mid-October). Accordingly, I find there is preponderant evidence that the onset of H.H.’s
condition began close-in-time to his October 17, 2013 vaccinations and before he received the
Pentacel vaccine.
In sum, I have found the evidence preponderantly supports the fact that H.H. has a genetic
type I interferonopathy that is either AGS or is AGS-like. Although I am unable to make a specific
finding as to whether H.H. began to develop signs of his type I interferonopathy before or after the
flu and pneumonia vaccines, I have not analyzed whether these vaccines either caused or
significantly aggravated H.H.’s condition because Dr. Steinman only offered an opinion with
respect to the Pentacel vaccine. My finding that H.H. began to show signs of his type I
interferonopathy before he received the Pentacel vaccine makes the analysis more pointed. It
means that the Pentacel vaccine did not cause H.H.’s condition, but instead, raises the question as
to whether the Pentacel vaccine caused the significant aggravation of H.H.’s genetic condition that
had already begun to manifest. See Locane v. Sec’y of Health & Hum. Servs., 685 F.3d 1375, 1381
(Fed. Cir. 2012) (stating that if “the illness was present before the vaccine was administered,
logically, the vaccine could not have caused the illness.”).
B. Loving Prong One: H.H.’s Condition prior to the October 23, 2013 Vaccination
with Pentacel
H.H. developed normally up until the time surrounding his October 17, 2013 vaccinations.
Right around this time, he began to have difficulty cruising around furniture and walking. His right
heel cord was tight. Ms. Huling observed this tightness before H.H. received his October 23, 2013
Pentacel vaccine.
C. Loving Prong Two: H.H.’s Condition after the October 23, 2013 Vaccination with
Pentacel
After the October 23, 2013 vaccination, H.H.’s walking/cruising continued to deteriorate.
He began dragging his right foot, and then falling. He lost the ability to bear weight on his legs
and to crawl. H.H. developed rapid and progressively worsening encephalopathy, spasticity, and
dystonia. His neopterin levels were dramatically elevated and have remained elevated through
2019, with a return to normal levels for a period of time in 2017. Although H.H.’s condition
stabilized, he cannot sit unassisted, cannot eat without a G-tube, and requires 24 hour medical care.
D. Loving Prong Three: Did H.H. Experience a Significant Aggravation of his
Condition?
H.H.’s deterioration is consistent with the Vaccine Act’s definition of significant
aggravation resulting in markedly greater disability, pain, or illness accompanied by substantial
deterioration of health. § 33(4). Therefore, this leaves the question of whether the significant
aggravation of H.H.’s condition was vaccine-related.
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E. Loving Prong Four/Althen Prong One: Petitioners have not Established a Reliable
and Reputable Theory Concerning How the Vaccinations H.H. Received Can
Cause a Significant Aggravation of AGS/a type I Interferonopathy
Under Loving prong four/Althen prong one, the causation theory must relate to the injury
alleged. Thus, Petitioners must provide a “reputable” medical or scientific explanation,
demonstrating that the vaccines received can cause the type of injury alleged. Pafford, 451 F.3d at
1355-56. The theory must be based on a “sound and reliable medical or scientific explanation.”
Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). It must only be
“legally probable, not medically or scientifically certain.” Id. at 549.
Dr. Steinman emphasized that the Pentacel vaccine was causative and did not provide a
theory involving either the flu or pneumonia vaccines (See First Steinman Rep. at 8, where Dr.
Steinman noted that “Petitioner herein provides a theory on how the components of the October
2013 vaccine induced activation of both type 1 interferon and type II interferon, known as gamma
interferon. I shall focus on the Pentacel vaccine…”; First Steinman Rep. at 11, Dr. Steinman stated,
“I shall show that Pentacel causes increases in both type 1 interferons and in the type 2 interferon,
known as gamma-interferon.”; First Steinman Rep. at 12, Dr. Steinman discussed the importance
of alum in Pentacel; First Steinman Rep. at 13, Dr. Steinman noted that “Induction of type 1 and
type 2 interferon by Pentacel could worsen neuroinflammation and this more likely than not
occurred in H.H.”; First Steinman Rep. at 14, Dr. Steinman stated that “I have provided a
mechanistic basis for how Pentacel can trigger a type 1 and type 2 interferon response and how
the NALRP3 inflamm[a]some can be triggered by the components of Pentacel.”; See First
Steinman Rep. at 15-16 for more examples). Because I have found that H.H. developed signs of
his interferonopathy before he received the Pentacel vaccine, I will analyze whether the Pentacel
vaccine can cause a significant aggravation of H.H.’s interferonopathy.
Dr. Barañano defined an interferonopathy as a “class of disorders where there is
dysregulation of the control of the levels of interferon alpha in the immune system.” Tr. at 272.
They are thought to occur “as a result of the failure to appropriately regulate the metabolism of
nucleic acids.” Tr. at 221. This gives continued stimulation to type I interferons. Id. Dr. McGeady
testified that “in the hereditary interferonopathies, there [are] no breaks. The … interferon just
keeps getting produced more and more over … an extended period of time.” Id. at 223. He further
opined that, “In the case of HH, the control mechanisms failed, apparently from a genetically
determined dysregulation of nucleic acid metabolism, and exceedingly large amounts of interferon
alpha were produced and allowed to persist for an extended period of time.” Second McGeady
Rep. at 2. This explains both the elevated levels and the persistence of these elevated levels. Id.
Type I interferonopathies are inherited genetic disorders. Tr. at 272, 287. This point is
supported by the medical literature filed in this case. See e.g., Rodero & Crow, describing “the
grouping of Mendelian disorders associated with an up-regulation of type I interferon signaling as
a novel set of human inborn errors of immunity.” Rodero & Crow at 2527.
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Dr. Steinman opined that the Pentacel vaccine activated H.H.’s immune system resulting
in the production of type 1 and type 2 interferons, which led to the worsening of his
neuroinflammation. First Steinman Rep. at 11-13.25
In support of this theory, Dr. Steinman discussed literature describing the production of
type 1 and type 2 interferons in response to components of the Pentacel vaccine.
He cited Fadugba et al., Immune Responses to Pertussis Antigens in Infants and Toddlers
after Immunization with Multicomponent Acellular Pertussis Vaccine, 21 CLINICAL AND VACCINE
IMMUNOLOGY 12 (2014) 1613-19 (filed as Ex. 101, Tab 12) (hereinafter “Fadugba”). Fadugba
studied the antibody, cell-mediated, and cytokine responses to B. pertussis antigens in children
who received a primary DTaP vaccination at two, four, and six months, and a booster vaccination
at 15 to 18 months. The authors noted that: “One month after booster vaccination, … our study
revealed significant increase in gamma interferon (IFN-gamma) production in response to the
[pertussis toxin] and [fimbriae] antigens, a significant increase in IL-2 production with the
[pertussis toxin], [filamentous hemagglutinin], and [pertactin] antigens, and a lack of significant
interleukin-4 (IL-4) secretion with any of the antigen.” Fadugba at 1613. Fadugba does stand for
the proposition that DTaP vaccination results in an increase in gamma interferon, albeit these levels
were not measured until one month after the booster vaccination.
Dr. Steinman also cited to the Kooijman article. See Kooijman et al., Vaccine antigens
modulate the innate response of monocytes to Al(OH)3, PLOS ONE, https://doi.org/10.1371/
journal.pone.0197885, 1-22 (2018) (filed as Ex. 101, Tab 13) (hereinafter “Kooijman”). Kooijman
“compared the innate immune responses induced by Al(OH)3 [aluminum hydroxide] alone versus
that of a licensed combination DTaP vaccine containing Al(OH)3, using cytokine analysis,
transcriptomics and proteomics, to determine unique, shared and potential synergistic or
antagonistic effects of adjuvant and antigen components.” Kooijman at 2. Kooijman noted that
“After 24 hours of stimulation, both Al(OH)3 and DTaP-stimulated monocytes showed a trend
towards increased gene expression of the type I interferon IFNβ.” Id. at 13.
Dr. Steinman also discussed “the importance of alum in Pentacel in activating []the
NALRP3 inflamm[a]some, which plays a key role in inducing interferonopathies.” First Steinman
Rep. at 12. Dr. Steinman cited to the Li article. Li et al., Cutting Edge: Inflammasome Activation
by Alum and Alum's Adjuvant Effect Are Mediated by NLRP3, 181 J IMMUNOL 17-21 (2008) (filed
as Ex. 101, Tab 14) (hereinafter “Li”). In this study, mice were vaccinated with one-tenth of a
human dose of the DT/TT vaccine, and then boosted two weeks later. On days 14, 28, and 56,
blood samples were collected. Li at 18. Li described that “inflammasome activation by alum and
alum’s adjuvanticity are mediated by NLRP3 and ASC.” Li at 18. In concluding, the authors noted
that “[o]ur results identified for the first time NLRP3 as an important player in alum’s adjuvant
25 Although at hearing Dr. Marks opined that H.H.’s vaccines caused him to develop an interferonopathy
via molecular mimicry, Petitioners appear to have abandoned that theory in their post hearing brief. See
Petr’s’ Post-Hearing Brief at 12-13, 15-16. Indeed, as discussed in section VI F, Dr. Marks was unable to
provide a persuasive causation opinion. Although not analyzed in this decision, I do not find that Dr. Marks’
opinion on molecular mimicry constitutes a sound and reliable theory in this case.
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effect and indicate an important role for the inflammasome in the development of adaptive
immunity. The ability to activate the inflammasome must be one of the properties to be considered
during the development of new generation vaccines.” Id. at 20-21.
While vaccines may activate the inflammasome, Dr. Steinman has not presented a link
between such activation and the development of AGS or a similar type I interferonopathy. Indeed,
Crow & Manel noted that “to our knowledge, a possible engagement of the inflammasome in
patients with AGS has not been investigated.” Crow & Manel at 431.
Dr. Steinman also cited to two articles discussing Experimental Autoimmune Encephalitis
(EAE) and Multiple Sclerosis for the proposition that inflammasome activation can worsen
neuroinflammation. Inoue et al., Mechanism to develop inflammasome-independent and
interferon-β-resistant EAE with neuronal damages, 19 NAT NEUROSCI. 12, 1599-1609 (2016)
(filed as Ex. 101, Tab 15); Axtell et al., Type I Interferons: Beneficial in Th1 and Detrimental in
Th17 Autoimmunity, 44 CLIN REV ALLERGY IMMUNOL. 2, 114-20 (2013) (filed as Ex. 101, Tab
16).
Dr. McGeady disagreed with Petitioners’ causation theory, noting that the vaccines “are
not related to the central nervous system (CNS) pathology which occurred in the child.” Second
McGeady Rep. at 1. He cited two main reasons for this opinion. First, Petitioners’ theory does not
explain how vaccination caused H.H.’s innate immune response to be so “massively exaggerated
as demonstrated by the elevated levels of interferon alpha in the blood and cerebrospinal fluid
(CSF) of HH.” Id. Second, Dr. Steinman did not explain how H.H.’s interferon alpha levels
remained elevated for years after vaccination. Id.
Dr. McGeady agreed that vaccination “would be expected to generate a physiologic amount
of type I interferon and other pro-inflammatory cytokines”. Second McGeady Rep. at 2. However,
he noted that interferon production “promptly decreases” after a non-progressive provocation such
as vaccination. Id. In further substantiation of this opinion, Dr. McGeady noted that interferons are
“biologically potent molecules excessive amounts of which can cause the acute illness called
“cytokine storm”, and their production and metabolism are regulated closely in achieving
homeostasis.” Id. Dr. Marks and Dr. Barañano were similarly unable to identify any medical
literature that suggests that vaccination can caused substantially elevated levels of interferon alpha.
Tr. at 193, 289.
Dr. McGeady is persuasive with respect to this point. While the literature cited by Dr.
Steinman does demonstrate that vaccination causes the production of some amount of interferon,
it does not suggest that these levels are excessive. In fact, both Fadugba and Kooijman discuss
normal innate immune responses after vaccination. Neither article suggests that interferon
production post-DTaP vaccination is anything resembling H.H.’s interferon alpha levels, which
one provider described as “the highest neopterin levels we have ever seen.”26 Ex. 55 at 1.
26 As Dr. Marks noted at the entitlement heating: “neopterin is a marker for interferon activity.” Tr. at 194.
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Petitioners’ theory is equally unpersuasive in preponderantly establishing that vaccination
can cause persistently elevated levels of interferon alpha. With respect to this point, Dr. McGeady
testified as follows:
here you have a youngster who in 2013 has high levels of neopterin in his spinal
fluid. In 2017, he’s back to normal again, and in 2019, he’s way up again. So it's
that constant up and down. There’s no living organism in any of the vaccines that
he received. So what could possibly keep that process going on for that long a
period of time?
Tr. at 223-24. Dr. Steinman claimed that the continuous production of type I interferon can be
explained by the medical literature, which shows “that there is a resistance in some forms of
neuroinflammation to the normal beneficial response of interferon.” First Steinman Rep. at 14. Dr.
Steinman’s opinion seems to be that the beneficial type of interferon that would normally modulate
an interferon response was absent or deficient in H.H., and as a result, his immune system
continuously produced type I interferon, which resulted in disease. Id.
Naves et al. discusses the interplay between type I and type II interferons. Naves et al., The
Interdependent, Overlapping, and Differential Roles of Type I and II IFNs in the Pathogenesis of
Experimental Autoimmune Encephalomyelitis, 191 J IMMUNOL, 2967-77 (2013) (filed as Ex. 101,
Tab 17) (hereinafter “Naves”). The authors state, “In summary, our data reveal that cooperative
signaling from type I and II IFNs is necessary to restrain the pathogenesis in EAE. Loss and
perhaps imbalance of either IFN signal aggravates inflammation and results in exacerbated
disease.” Naves at 2975. This article does support the principle that imbalance in interferon
signaling aggravates disease in EAE. EAE is the animal model for MS; it is not an
interferonopathy. It is difficult to see how this point is persuasive in the case at bar when it involves
an entirely different disease. I find that Petitioners have not provided a sound and reliable medical
theory explaining how vaccination causes the chronic overproduction of interferon.
I also note that there appears to be no published medical literature (to include case reports)
indicating that the flu, pneumonia, or Pentacel vaccines can cause or exacerbate a type I
interferonopathy. See Tr. at 217, 272. Dr. McGeady testified that there is also no literature
suggesting the live viruses associated with these vaccines could cause one of these conditions. Id.
at 218.
Dr. Steinman pointed to the Rodero & Crow article as providing support for his theory. In
discussing type I interferonopathies and the ADAR-1 mutation, Rodero & Crow stated that
“[w]hether vaccination represents a disease trigger is an important, and currently unanswered,
question.” Rodero & Crow at 2532. This statement suggests that vaccination as a potential trigger
for a type I interferonopathy involving an ADAR-1 mutation could be an area of study at some
point in the future. This statement does not provide persuasive evidence in support of Petitioners’
theory in this case.
Petitioners are not required to present medical literature or epidemiological evidence to
establish the first Althen prong. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1380
(Fed. Cir. 2009). However, as the Federal Circuit noted in Andreu, “a claimant's theory of
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causation must be supported by a ‘reputable medical or scientific
explanation.’” Andreu, 569 F.3d at 1379 (quoting Althen, 418 F.3d at 1278). Petitioners have not
presented such a reputable explanation in this case; as such, they have failed to present
preponderant evidence in support of Loving prong four/Althen prong one.
F. Loving Prong Five/Althen Prong Two: Petitioners have not Established a Logical
Sequence of Cause and Effect between H.H.’s Vaccinations and the Significant
Aggravation of his Condition
Loving prong five/Althen prong two requires the Petitioners to provide a logical sequence
of cause and effect demonstrating that vaccination did cause a worsening of H.H.’s pre-existing
condition. Althen, 418 F.3d at 1278; Andreu, 569 F.3d at 1375–77; Grant, 956 F.2d at 1148.
Althen’s second prong is not without meaning. Capizzano, 440 F.3d at 1327.
1. Petitioners have not Presented Evidence in Support of Vaccine Causation
Petitioners have not presented evidence demonstrating that H.H. experienced a vaccine-
associated significant aggravation of his interferonopathy, signs of which had already begun to
manifest by the time he received his Pentacel vaccine. They do not point to any testing or clinical
signs that suggest vaccine causation. Instead, they assert that because H.H.’s deterioration occurred
close-in-time to his vaccinations, and because no alternate explanation exists, then the vaccines
“did cause” a significant aggravation of H.H.’s condition. This showing is insufficient. See
Moberly, 592 F.3d at 1323 (citing Althen, 418 F.3d at 1278) (stating that “neither a mere showing
of a proximate temporal relationship between vaccine and injury, nor a simplistic elimination of
other potential causes of the injury suffices, without more, to meet the burden of showing actual
causation.”).
2. The Medical Record Evidence Indicates the Vaccines did not Cause or
Significantly Aggravate H.H.’s Condition
Not only have Petitioners failed to present evidence from H.H.’s medical records which
supports vaccine causation, but the records contain evidence supporting the opposite position –
that the vaccines H.H. received did not affect his condition.
Dr. McGeady noted that H.H.'s clinical history does not indicate that he experienced a
severe local reaction at the vaccine injection sites. Dr. McGeady opined that “[w]hile interferon
alpha is principally produced by the plasmacytoid dendritic cells and monocytes/macrophages that
might migrate to regional lymphoid tissue, the absence of local reaction after several prior
immunizations suggests that no excessive or untoward reaction was produced.” First McGeady
Rep. at 9. He further opined that this exaggerated interferon release could cause a cytokine storm.
There is certainly no evidence in the record that H.H. experienced this type of reaction.27
27 There is medical record evidence indicating that H.H. had a fever at his November 11, 2013 visit with
Dr. Hollis. See Ex. 49 at 41 (noting that “Pt has been fussy for the last week. He has run fever to 101.5.”).
This record places onset of fever one week prior to this appointment, or on approximately November 4,
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Petitioners’ causation theory also does not explain how the vaccines caused an elevation in
H.H.’s transaminases. Several of H.H.’s treating physicians noted that H.H. had elevated liver
enzymes. During his visit with Dr. Crawford on November 12, 2013, H.H.’s AST was 353, and
his ALT was 400. Ex. 50 at 4. On December 18, 2013, H.H.’s liver enzymes were again elevated.
His AST was 325, and his ALT was 472. Ex. 55 at 1. On May 23, 2014, H.H.’s was 119 and his
ALT was 125. Ex. 63 at 2. H.H.’s treating physicians have drawn a connection between the
abnormally elevated levels and the onset of his disease process, indicating these levels were
suggestive of AGS. While elevated liver enzymes are consistent with AGS, there has been no
evidence presented in this case that they are consistent with a vaccine reaction. In short, Petitioners
have not explained how this finding fits into their causation theory. Dr. McGeady opined that there
is no medical literature supporting such a connection. First McGeady Rep. at 9. Dr. Barañano
agreed. Tr. at 294. The fact that a vaccine reaction does not explain H.H.’s elevated liver enzymes
suggests that the vaccines did not cause or significantly aggravate his condition.
3. Treating Physicians
Several of H.H.’s treating doctors opined that the vaccines he received caused his
condition. In weighing evidence, special masters are expected to consider the views of treating
doctors. Capizzano, 440 F.3d at 1326. The views of treating doctors about the appropriate
diagnosis are often persuasive because the doctors have direct experience with the patient whom
they are diagnosing. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL
3640610, at *20 (Fed. Cl. Spec. Mstr. May 22, 2015). However, the opinions of treating physicians
are not sacrosanct. Snyder v. Sec'y of Health & Human Servs., 88 Fed.Cl. 706, 745 n.67 (2009).
These opinions are only as trustworthy as the reasonableness of their suppositions or bases.
Dr. Hollis is H.H.’s pediatrician. She opined as follows: “It seems to me that [H.H.’s] rapid
decline can be attributed to receiving the vaccinations on October 17, 2013 and October 23, 2013.”
Ex. 66 at 3. Dr. Hollis based her opinion on the fact that H.H. was previously healthy, and because
of that, a “severe and rapid developmental regression is unusual” in these circumstances, and that
many diagnoses have been ruled out by his medical team. Id. Dr. Hollis did not provide any
additional information to support her opinion. She did not articulate a theory of causation. Under
these circumstances, although I have considered Dr. Hollis’ opinion, I have not given it great
weight.
Dr. Marks is H.H.’s treating neurologist. Dr. Marks opined that the vaccines H.H. received
caused his condition. He stated that
It is also my opinion that considering the commencement of H.H.’s symptoms
occurred after the receipt of his fifteen (15) month vaccinations, the fact that his
symptoms have persisted, and the lack of any other explanation for why he has
developed severe and rapidly progressing dystonia with encephalopathy at this age,
I have concluded that H.H.’s exposure to the fifteen (15) month vaccines was within
2013. This is 18 days after the flu and pneumonia vaccines and 12 days after Pentacel vaccine, too long for
a fever associated with vaccination.
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a reasonable medical probability, the most likely trigger for him to develop rapidly
progressing dystonia with encephalopathy to this degree.
Ex. 67 at 3-4. Dr. Marks’ theory of causation is that H.H.’s vaccines caused him to develop a type
I interferonopathy via molecular mimicry between a component of one of the vaccines and a self
antigen. Id. at 4-5. Dr. Marks was unable to provide persuasive testimony at the entitlement hearing
in support of this opinion.
Q. And in your first report, which is Exhibit 67, and I will just quote it from Page
4, Paragraph 8 for the paraphrase, you propose an antigen in the influenza or DTaP
vaccine must have been similar to a self-antigen in HH’s neurological structure.
Can you be any more specific what in the vaccine you think was involved?
A. No. I’m – I’m not – I’m not an expert in -- in vaccines. I’m not an expert in
vaccine manufacture. This was -- this was the hypothesis of a clinical neurologist
looking for some way to explain what was going on. Okay.
Tr. at 172. When asked whether he could identify anything beyond his opinion that supports a
vaccine-caused AGS-like disease, he testified:
No. And, again, it doesn’t even -- it doesn’t even really have to be mimicry. It just
has to be something that triggers an immune response, so mimicry was my way of
explaining it as much to me and -- and to the family. But that doesn’t necessarily
have to be the theory. It’s – it’s one idea.
Id. at 187. Dr. Marks testified concerning his causation theory by addressing several of my
questions:
THE COURT: So you just testified that the theory in this case doesn’t have to be
one of molecular mimicry but is something that triggers an immune response. I do
need to hear a theory as to how either the Pentacel or the flu vaccine caused the
issues that HH has experienced. … And so … what is your most succinct way …
of articulating that … theory?
THE WITNESS: So if you think of molecular mimicry as an antigen which is --
which is what’s presented to the body, okay -- being similar to something that the
body doesn't recognize. Then you might -- it might be a little more specific.
And I still think it's – it’s a logical theory that there's something in the vaccine that
-- that clearly the body has recognized as foreign. That's the whole -- to give a
vaccine is -- is to do that.
So you are -- vaccines, in general, basically, work by mimicry or by -- or by
introducing something real to the body that the body should recognize as a[] foreign
substance. And in this case, basically, the immune system has gone wild to -- in
response to the immune presentation. So it’s – it’s -- it is a foreign antigen to the
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body. Okay. Whether -- whether it -- regardless of which vaccine it is, the -- the
goal of the vaccine is -- is to introduce this -- this negative antigen, this foreign
substance to the body, so create an immune response to it.
And on occasion, the immune system just goes wild. That – that’s known to happen.
And in this case, it's the interferon system that seems to have gotten out of control.
THE COURT: But what specifically about Pentacel or flu caused that to happen?
THE WITNESS: Well, again, it -- it -- it is the -- it is whatever -- it -- it could be
antigen. It could be the binding agent. The – I’m -- I – I’m not an expert on vaccines
and -- and how they're made and all the things that go into them.
Tr. at 188-90. Dr Marks’ inability to persuasively articulate a theory of causation caused me to
afford his opinion less weight.28
In support of his causation opinion, Dr. Marks highlighted the fact that H.H.’s neurologic
status stabilized after his rapid decline. He stated that “[t]his stabilization … which was
hyperactive post-immunization is indicative of the cause being derived from the vaccinations.” Ex.
67 at 4-5. After analyzing this issue earlier in the decision, I concluded that H.H.’s stabilization is
consistent with a diagnosis of AGS. Indeed the medical literature makes this point clear. The fact
that Dr. Marks based his opinion, in part, on an incorrect premise, has further reduced the value of
this opinion in supporting Petitioners’ case.
Dr. Marks additionally pointed to H.H.’s normalization of neopterin levels in July of 2017
as a reason to tip the scales in favor of vaccine causation. He stated,
With 95% of patients having a known genetic marker, we are left with two
essentially equal possibilities for H.H.’s condition. Either he is one of the very rare
cases of AGS without a known genetic marker or an AGS-like interferonopathy
triggered by external immune stimulating condition such as immunization. Given
the waning immune response based on his most recent neopterin levels, I would
favor the latter.
Ex. 94 at 1. At the time Dr. Marks drafted this opinion it was true that H.H.’s neopterin levels had
normalized. However, by the time of the entitlement hearing, they were again elevated. Dr. Marks
never reconciled his opinion expressed in exhibit 94, that the waning immune response tipped the
scales in favor of vaccine causation where there were “essentially equal possibilities for H.H.’s
condition”, with this new information available at trial.
I also note that neither Dr. Hollis nor Dr. Marks considered that onset of H.H.’s
interferonopathy took place around the time of the flu and pneumonia vaccines and before H.H.
received the Pentacel vaccine. While I do not fault either doctor on this point as my findings are
28 I additionally note that Petitioners have since abandoned this molecular mimicry theory in place of the
one proposed by Dr. Steinman.
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articulated for the first time in this decision, I do find that it diminishes the persuasive value of
their opinions. See Mosley v. Sec’y of Health & Hum. Servs., No. 08-724V, 2015 WL 2354316, at
*18-19 (Fed. Cl. Spec. Mstr. Apr. 27, 2015) (affording the opinions of treating physicians less
weight because they either did not consider how onset of TM one day after vaccination impacted
their opinion or did not explain the basis for their opinion).
Ultimately, I have considered the opinions of Dr. Marks and Dr. Hollis, two of H.H.’s
treating physicians, in arriving at my determination that there is not preponderant evidence that
H.H.’s vaccinations did cause or significantly aggravate his condition. For the reasons articulated
in this decision, I am not persuaded by these opinions, and instead have credited the opinions of
Dr. Barañano and Dr. McGeady, who have opined that H.H. suffers from a genetic type I
interferonopathy the onset of which was unrelated to and unaffected by vaccination. See Locane,
685 F.3d 1375. Petitioners have failed to meet their burden under Loving prong five/Althen prong
two.
G. Loving Prong Six/Althen Prong Three: Petitioners have not Established an
Appropriate Temporal Relationship between H.H.’s Vaccinations and the
Significant Aggravation of his Condition
The final Loving prong requires Petitioners to establish a “proximate temporal relationship”
between the significant aggravation of A.S.’s condition and the vaccines he received. Loving at
144; see also Althen, 418 F.3d at 1281. Petitioners 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 timing prong contains two parts. First, Petitioners must establish the “timeframe for
which it is medically acceptable to infer causation” and second, they must demonstrate that the
onset of the disease occurred in this period. Shapiro v. Secʼy of Health & Hum. Servs., 101 Fed.
Cl. 532, 542-43 (2011), recons. denied after remand on other grounds, 105 Fed. Cl. 353 (2012),
aff’d without op., 503 F. App’x 952 (Fed. Cir. 2013). I will address the question of onset first.
1. The Onset of H.H.’s Interferonopathy
Dr. Steinman opined that H.H.’s disease course began three weeks after his receipt of the
Pentacel vaccine. He stated that “[n]ot until three weeks after the Pentacel immunization on
October 23, 2013 was there any symptomatology related to an interferonopathy.” First Steinman
Rep. at 16. This forms the premise for his opinion regarding the appropriateness of the onset
interval. However, my determination in this case is contrary to Dr. Steinman’s; I found that H.H.
began to develop heel cord tightness around the time he received his October 17, 2013
vaccinations, and before he received the Pentacel vaccine, and further, that this heel cord tightness
constituted a physical sign of his type I interferonopathy.
2. Medically-Acceptable Timeframe
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With respect to the medically-acceptable onset interval, Dr. Steinman opined that “[t]he
onset of neuroinflammation within 3 weeks of the October 23, 2013 immunizations with Pentacel
is consistent with references 18 and 19, which cover related neuroinflammatory conditions of the
peripheral (19) and central nervous systems (20). H.H. has a condition involving the central
nervous system primarily.” First Steinman Rep. at 15. He then went on to state “A showing of a
proximate temporal relationship between vaccination and injury” is met from similar studies on
other neuroinflammatory conditions linking neuroinflammation and immunization, with onset at
approximately 3 weeks post-Pentacel vaccine. See References 17–18.” Id. at 16. Although it
appears that Dr. Steinman is relying on references 19 and 20 in support of his timing position (and
not 17 and 18), I have examined references 17-20 in an abundance of caution.
Reference 17, Naves et al., discussed earlier in this decision, does not support the position
that an interferonopathy would begin or become significantly aggravated either the same day or
within one or two days after a trigger.
Reference 18 is an article by Rodero & Crow. This article does not discuss the onset
timeframe of a type I interferonopathy.
Reference 19 is a paper by Schonberger that is oft-cited in the Vaccine Program.
Schonberger et al., Guillain Barre Syndrome following vaccination in the National Influenza
Immunization Program, United States, 1976-1977, 110 AMERICAN JOURNAL OF EPIDEMIOLOGY 2,
105-23, (1979) (filed as Ex. 101, Tab 19) (hereinafter “Schonberger”). Schonberger demonstrates
that the swine flu vaccine can cause Guillain Barré syndrome (GBS), a demyelinating disease of
the peripheral nervous system. The increased risk for developing GBS after swine flu vaccination
was concentrated within the five weeks after vaccination. Schonberger at 105.
Through his reference to this article, Dr. Steinman appears to opine that the findings from
Schonberger regarding onset of GBS after swine flu vaccination are analogous to the onset of a
type I interferonopathy after Pentacel vaccine. I do not find this position to be persuasive.
Chief Special Master Corcoran addressed Dr. Steinman’s reliance on Schonberger in a
different case. See Rowan v. Sec’y of Health & Hum. Servs., No. 17-760V, 2020 WL 2954954, at
*16 (Fed. Cl. Spec. Mstr. Apr. 28, 2020). The Chief Special Master noted that Schonberger “loses
persuasive heft when offered in disparate contexts, such as when invoked to prove a CNS injury
(rather than peripheral nerve injury) was vaccine-caused.” See, e.g., L.Z. v. Sec’y of Health &
Hum. Servs., No. 14-920V, 2018 WL 5784525, at *18 n.18 (Fed. Cl. Spec. Mstr. Aug. 24,
2018) (“[p]etitioner’s evidentiary showing regarding the timing prong is similarly deficient based
on the scientific literature submitted” because it relied on the Schonberger study on GBS, which
was “distinguishable from MS”); see also Jones v. Sec’y of Health & Hum. Servs., No. 15-1239V,
2018 WL 7139212, at *16 (Fed. Cl. Spec. Mstr. Dec. 21, 2018) (“Schonberger’s timeframe [ ] is
much less persuasive when used by way of analogy to a different condition that purportedly
resulted from different vaccines”).
Not only is a type I interferonopathy a different condition than GBS, but the underlying
theory of causation in GBS generally implicates molecular mimicry, a causation theory involving
the adaptive immune system that has been eschewed by Dr. Steinman in this case. (“The theory
73

Case 1:15-vv-00792-RTH Document 137 Filed 11/01/22 Page 74 of 74
here focuses on how the components of the vaccine can drive an interferon response. It is not a
theory based on molecular mimicry…”) First Steinman Rep. at 9. Accordingly, the fact that swine
flu vaccine can cause GBS via molecular mimicry in three weeks does not advance Petitioners’
position that the Pentacel vaccine significantly aggravated H.H.’s type I interferonopathy.
Finally, reference 20 is a paper by Bennetto and Scolding. See Bennetto & Scolding,
Inflammatory/Post-Infectious Encephalomyelitis, 75 J NEUROL NEUROSURG PSYCHIATRY, i22-i28,
doi: 10.1136/jnnp.2003.034256 (2004) (filed as Ex. 101, Tab 20) (hereinafter “Bennetto &
Scolding”). In this article, the authors discuss acute disseminated encephalomyelitis (ADEM) and
its link to various infections and immunizations. Bennetto & Scolding state that “[t]he timing of
the first symptoms varies slightly with the precipitant: typically 1–14 days after non-neural
vaccines, … and 1–3 weeks (or more) after rabies inoculation.” Id. at 3. The authors further note
that “[i]n the case of post-infectious ADEM, molecular mimicry between virus and myelin
antigens may be responsible for initiating disease…” Bennetto & Scolding at 6. ADEM is a
demyelinating disease of the central nervous system. It is an entirely different condition than a
type I interferonopathy. Bennetto & Scolding briefly discuss the mechanism of molecular mimicry,
which is not at play in this case. In short, this article does not advance Petitioners’ position in
articulating a timeframe after vaccination for which it is medically acceptable to infer that H.H.’s
vaccines caused the significant aggravation of his inherited type I interferonopathy.
In sum, I do not find that H.H.’s type I interferonopathy either began or was significantly
aggravated three weeks after the Pentacel vaccine, or that Petitioners have preponderantly
established that three weeks post vaccination is a medically acceptable onset interval. For these
reasons, Petitioners have not met their burden to provide preponderant evidence with respect to
Loving prong six/Althen prong three.
VII. CONCLUSION
Petitioners have experienced great suffering as a result of H.H.’s condition. However, in
order to find they are entitled to compensation they must preponderantly demonstrate that the
vaccines caused or significantly aggravated H.H.’s condition. Based on the evidence presented in
this case, I conclude that Petitioners have not made such a showing. Their petition is therefore
DISMISSED. The clerk shall enter judgment accordingly.29
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
29 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.
74

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_15-vv-00792-3
Date issued/filed: 2025-11-03
Pages: 20
Docket text: PUBLIC DECISION (Originally filed: 10/2/2025) regarding 194 DECISION - Proffer. Signed by Special Master Jennifer A. Shah. (am) Service on parties made.
--------------------------------------------------------------------------------
Case 1:15-vv-00792-RTH Document 195 Filed 11/03/25 Page 1 of 20
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-792V
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
HEATHE HELLER and JENNA HELLER,
*
Parents of H.H., a minor, * Special Master Jennifer A. Shah
*
Petitioners, *
*
*
v. * Filed: October 2, 2025
*
SECRETARY OF HEALTH AND *
*
HUMAN SERVICES,
*
*
Respondent. *
*
*
* * * * * * * * * * * * * * * * * * * * * * * *
Margaret M. Guerra, Margaret M. Guerra, Attorney at Law, Fort Worth, TX, for Petitioners;
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 27, 2015, Heathe and Jenna Miller (“Petitioners”) filed a petition on behalf of their
son H.H., seeking compensation under the National Vaccine Injury Compensation Program (“the
Vaccine Program”).2 ECF No. 1 (“Pet.”). Petitioners alleged, in part, that as a result of his October
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the 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 Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
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 Decision in its present form will be available. 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-00792-RTH Document 195 Filed 11/03/25 Page 2 of 20
17, 2013 influenza and Prevnar3 vaccinations and his October 23, 2013 vaccination with Pentacel,4
H.H. experienced either the onset or the significant aggravation of a degenerative neurologic
disorder. Pet. at 1.
On January 4, 2023, former Special Master Katherine E. Oler issued a Ruling on
Entitlement in favor of Petitioners. ECF No. 140. Special Master Oler found that Petitioners
demonstrated by preponderant evidence that the Pentacel vaccine that H.H. received on October
23, 2013, caused a significant aggravation of his Type I interferonopathy. Id.
After the case entered the damages phase on January 4, 2023, Petitioners regularly filed
additional medical records and documentation as the parties worked toward resolving damages.
See ECF Nos. 143-192.
This case was reassigned to me on August 14, 2024. ECF No. 165. On October 1, 2025,
Respondent filed a proffer on award of compensation recommending that Petitioners should be
awarded a lump sum of $2,623,447.30 for the benefit of H.H., consisting of $669,567.30 for life
care plan expenses in the first year after judgment; lost future earnings of $1,703,880.00; and
$250,000.00 for pain and suffering. ECF No. 193 (“Proffer”). Additionally, the proffer
recommended an award of $302,024.70 for Petitioners’ past unreimbursable expenses and an
amount sufficient to purchase an annuity contract for H.H.’s remaining life care plan items. Id.
The parties have no objection to the amount or form of the proffered award of damages. Proffer,
fn. 1.
Based on the record as a whole, I find that Petitioners are entitled to an award as ordered
below:
1. A Lump Sum
A lump sum payment of $2,623,447.30, which includes $669,567.30 for life care expenses
expected to be incurred during the first year after judgment, $1,703,880.00 for lost future earnings,
and $250,000.00 for pain and suffering, to be paid through an ACH deposit to Petitioners’
counsel’s IOLTA account for prompt disbursement to Petitioners, Heathe and Jenna Heller, as
guardian(s)/conservator(s) of the estate of H.H., for the benefit of H.H.
2. A Lump Sum
A lump sum payment of $302,024.70, representing compensation for past unreimbursable
3 Prevnar: trademark for a preparation of pneumococcal 7-valent conjugate vaccine. DORLAND’S MEDICAL
DICTIONARY ONLINE (“DORLAND’S”), https://www.dorlandsonline.com/dorland/definition?id=40909 (last
accessed October 1, 2025).
4 Pentacel: trademark for a combination preparation of diphtheria and tetanus toxoids and acellular pertussis
vaccine adsorbed, poliovirus vaccine inactivated, and Haemophilus b conjugate (tetanus toxoid conjugate)
vaccine. DORLAND’S, https://www.dorlandsonline.com/dorland/definition?id=37544 (last accessed
October 1, 2025).
2

Case 1:15-vv-00792-RTH Document 195 Filed 11/03/25 Page 3 of 20
expenses, to be paid through an ACH deposit to Petitioners’ counsel’s IOLTA account for prompt
disbursement to Petitioners, Heathe and Jenna Heller.
3. An Annuity
The remainder of damages shall be paid in the form of an annuity contract, which shall be
purchased as soon as practicable after entry of judgment. The annuity contract will provide
payments for the life care items contained in the life care plan, which items are described in section
II.C and Appendix A of the October 1, 2025 Proffer, which is incorporated herein as if fully set
forth. ECF No. 193. Accordingly, pursuant to 42 U.S.C. § 300aa-15(f)(4), Respondent shall
purchase, and take ownership of, an annuity contract or contracts5 from one or more life insurance
companies, as described below:
Each life insurance company must meet the following criteria:
1. Have a minimum of $250,000,000 of capital and surplus, exclusive of any mandatory
security valuation reserve; and
2. Have one of the following ratings from two of the following rating organizations:
a) A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b) Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c) Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA,
AA+, or AAA;
d) Fitch Credit Rating Company, Insurance Company Claims-Paying Ability Rating:
AA-, AA, AA+, or AAA.
Respondent shall purchase an annuity contract or contracts from the life insurance company or
companies for the benefit of H.H., pursuant to which the life insurance company or companies will
agree to make payments periodically to Petitioners or guardian(s)/conservator(s) of the estate of
H.H., as described in section II.C and Appendix A of the October 1, 2025 Proffer.
This award represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). In the absence of a motion for review filed pursuant to RCFC Appendix B,
the Clerk of the Court is directed to enter judgment herewith.6
IT IS SO ORDERED.
s/ Jennifer A. Shah
Jennifer A. Shah
Special Master
5 To satisfy the conditions set forth herein, in Respondent’s discretion, Respondent may purchase one or
more annuity contracts from one or more life insurance companies.
6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
3

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 4 of 20
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
HEATHE HELLER and JENNA HELLER, )
parents of H.H., a minor, )
)
Petitioners, ) No. 15-792V
) Special Master Shah
v. ) ECF
)
SECRETARY OF THE DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On July 27, 2015, Heathe Heller and Jenna Heller (“petitioners”) filed a petition on
behalf of their son, H.H., for compensation under the National Childhood Vaccine Injury Act, 42
U.S.C. § 300aa-10 et seq., alleging that H.H. suffered neurological injuries, specifically dystonia
and encephalopathy, as a result of the influenza vaccination he received on October 17, 2013 and
the DTaP-IPV-Hib vaccination he received on October 23, 2013. Petition at 1. On January 4,
2023, Special Master Oler issued a Ruling on Remand Granting Entitlement. ECF No. 140.
Respondent now proffers the following regarding the amount of compensation to be awarded.1
I. Items of Compensation
A. Life Care Items
1 The parties have no objection to the amount of the proffered award of damages. However,
respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(f), to seek review of the Special
Master’s January 4, 2023, Ruling on Remand Granting Entitlement, finding petitioners entitled
to an award under the Vaccine Act. This right accrues following the issuance of the damages
decision.
-1-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 5 of 20
Respondent engaged life care planner M. Virginia NeSmith Walton, M.S.N., RN, FNP,
CNLCP, and petitioners engaged Tresa Johnson, RN, CNLNP, to provide an estimation of
H.H.’s future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine
related” is as described in the Special Master’s January 4, 2023, Ruling on Remand Granting
Entitlement. All items of compensation identified in the life care plan are supported by the
evidence and are illustrated by the chart entitled Appendix A: Items of Compensation for H.H.,
attached hereto as Tab A.2 Petitioners agree.
B. Future Lost Earnings
The parties agree that based upon the evidence of record, H.H. will not be gainfully
employed in the future. Therefore, respondent proffers that H.H. should be awarded future lost
earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent
proffers that the appropriate award for H.H.’s future lost earnings is $1,703,880.00. Petitioners
agree.
C. Pain and Suffering
Respondent proffers that H.H. should be awarded $250,000.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
D. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to H.H.’s vaccine-related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $302,024.70. Petitioners agree.
2 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual
benefit years run from the date of judgment up to the first anniversary of the date of judgment,
and every year thereafter up to the anniversary of the date of judgment.
-2-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 6 of 20
II. Form of the Award
The parties recommend that the compensation provided to H.H. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Special Master’s decision and the Court’s judgment award the following:3
A. A lump sum payment of $2,623,447.30, representing compensation for life care
expenses in the first year after judgment ($669,567.30), future lost earnings ($1,703,880.00), and
pain and suffering ($250,000.00), to be paid through an ACH deposit to petitioner’s counsel’s
IOLTA account for prompt disbursement to petitioners as guardian(s)/ conservator(s) of the
estate of H.H., for the benefit of H.H. No payments shall be made until petitioners provide
respondent with documentation establishing that they have been appointed as the
guardian(s)/conservator(s) of H.H.’s estate. If petitioners are not authorized by a court of
competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of H.H., any such
payment shall be made to the party or parties appointed by a court of competent jurisdiction to
serve as guardian(s)/conservator(s) of the estate of H.H. upon submission of written
documentation of such appointment to the Secretary. Further, if guardianship/conservatorship is
no longer required under the laws of the state of Texas after H.H. has attained the age of
majority, any such payment shall be paid to H.H. upon submission of written documentation of
the termination of guardianship/conservatorship to the Secretary.
3 Should H.H. die prior to entry of judgment, the parties reserve the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical
expenses, lost future earnings, and future pain and suffering.
-3-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 7 of 20
B. A lump sum payment of $302,024.70, representing compensation for past
unreimbursable expenses, to be paid through an ACH deposit to petitioners’ counsel’s IOLTA
account for prompt disbursement to petitioners.
C. An amount sufficient to purchase the annuity contract,4 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
as illustrated by the chart at Tab A attached hereto, paid to the life insurance company5 from
which the annuity will be purchased.6 Compensation for Year Two (beginning on the first
anniversary of the date of judgment) and all subsequent years shall be provided through
4 In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
The parties further agree that the annuity payments cannot be assigned, accelerated, deferred,
increased, or decreased by the parties and that no part of any annuity payments called for herein,
nor any assets of the United States or the annuity company, are subject to execution or any legal
process for any obligation in any manner. Petitioners and petitioners’ heirs, executors,
administrators, successors, and assigns do hereby agree that they have no power or right to sell,
assign, mortgage, encumber, or anticipate said annuity payments, or any part thereof, by
assignment or otherwise, and further agree that they will not sell, assign, mortgage, encumber, or
anticipate said annuity payments, or any part thereof, by assignment or otherwise.
5 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus,
exclusive of any mandatory security valuation reserve. The Life Insurance Company must have
one of the following ratings from two of the following rating organizations:
a. A. M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability
Rating: AA-, AA, AA+, or AAA.
-4-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 8 of 20
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioners
only so long as H.H. is alive at the time a particular payment is due. At the Secretary’s sole
discretion, the periodic payments may be provided to petitioners in monthly, quarterly, annual or
other installments. The “annual amounts” set forth in the chart at Tab A describe only the total
yearly sum to be paid to petitioners and do not require that the payment be made in one annual
installment.
1. Growth Rate
Respondent proffers that a four percent (4%) growth rate should be applied to all non-
medical life care items, and a five percent (5%) growth rate should be applied to all medical life
care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity
payments should grow as follows: four percent (4%) compounded annually from the date of
judgment for non-medical items, and five percent (5%) compounded annually from the date of
judgment for medical items. Petitioners agree.
2. Life-Contingent Annuity
The petitioners will continue to receive the annuity payments from the Life Insurance
Company only so long as H.H. is alive at the time that a particular payment is due. Written
notice shall be provided to the Secretary of Health and Human Services and the Life Insurance
Company within twenty (20) days of H.H.’s death.
3. Guardianship/Conservatorship
No payments shall be made until petitioners provide respondent with documentation
establishing that they have been appointed as the guardian(s)/conservator(s) of H.H.’s estate. If
6 Petitioners authorize the disclosure of certain documents filed by the petitioners in this case
consistent with the Privacy Act and the routine uses described in the National Vaccine Injury
-5-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 9 of 20
petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/
conservator(s) of the estate of H.H., any such payment shall be made to the party or parties
appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate
of H.H. upon submission of written documentation of such appointment to the Secretary.
Further, if guardianship/conservatorship is no longer required under the laws of the state of
Texas after H.H. has attained the age of majority, any such payment shall be paid to H.H. upon
submission of written documentation of the termination of guardianship/conservatorship to the
Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to the court-appointed guardian(s)/
conservator(s) of the estate of H.H. for the benefit of H.H.: $2,623,447.30
B. Past Unreimbursable Expenses: $ 302,024.70
C. An amount sufficient to purchase the annuity contract described
above in section II. C.
Compensation Program System of Records, No. 09-15-0056.
-6-

Case 1:15-vv-00792-RTH D ocument 195 F iled 11/03/25 P age 10 of 20
Respectfully submitted,
BRETT A. SHUMATE
Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
/s/ Tyler King_
TYLER KING
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 305-0730
Email: Tyler.King@usdoj.gov
Dated: October 1, 2025
-7-

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 11 of 20
Appendix A: Items of Compensation for H. H. Page 1 of 10
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-7 Year 8 Year 9 Year 10
2025 2026 2027 2028 2029-2031 2032 2033 2034
BCBS Maximum out of Pocket 5% 4 ,000.00 4,000.00 4,000.00 4,000.00 4,000.00 4,000.00 4,000.00 4,000.00
BCBS Deductible 5% *
BCBS Premium 5% M
Medicare Part A Premium 5% M
Medicare Part A Deductible 5%
Medicare Part B Premium 5% M
Medicare Part B Deductible 5%
Medicare Part D 5% M
Medicare G 5% M
Pediatrician Internist 5% * 9 0.00 90.00 90.00 90.00 90.00 90.00 90.00 90.00
Labs 5% *
Mileage: Pediatrician/Internist 4% 2 6.32 26.32 26.32 26.32 26.32 26.32 26.32 26.32
Neurologist 5% * 2 0.00 20.00 20.00 20.00 20.00 20.00 20.00 20.00
BOTOX 5% *
Electroencephalogram 5% *
Orthopdedist 5% * 2 0.00 20.00 20.00 20.00 20.00 20.00 10.00 10.00
Bilateral Hip X-rays 5% *
Bilateral Knee X-rays 5% *
Bilateral Ankle X-rays 5% *
Scoliosis X-rays 5% *
Scapula X-rays 5% *
Orthopedist for Upper Extremities 5% * 2 0.00 10.00 10.00 10.00 10.00 10.00 10.00 10.00
X-rays: Bilateral Shoulders,
Elbows, Wrists 5% *
Ophthalmologist 5% * 3 0.00 30.00 30.00 30.00 30.00 30.00 30.00 30.00
Gastroenterologist 5% * 2 0.00 10.00 10.00 10.00 10.00 10.00 10.00 10.00
Pulmonologist 5% * 2 0.00 10.00 10.00 10.00 10.00 10.00 10.00 10.00
Mileage: Specialists 4% 1 ,281.00 1,281.00 1,281.00 1,281.00 1,281.00 1,281.00 1,281.00 427.00
Hotel, Parking, Meals etc 4% 6 76.08 676.08 676.08 676.08 676.08 676.08 676.08 225.36
Podiatrist 4% * 8 0.00 80.00 80.00 80.00 80.00 80.00 80.00 80.00
Dental Cleaning w/Anesthesia 4% * 7 81.00 781.00 781.00 781.00 781.00 781.00 781.00 781.00

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 12 of 20
Appendix A: Items of Compensation for H. H. Page 2 of 10
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-7 Year 8 Year 9 Year 10
2025 2026 2027 2028 2029-2031 2032 2033 2034
CareFlite 4% 4 9.00 49.00 49.00 49.00 49.00 49.00 49.00 49.00
Emergency Room 5% * 7 5.00 37.50 37.50 37.50 37.50 37.50 37.50 37.50
Air Lift 5% * 2 4,062.50 24,062.50
Hospital 5% *
Baclofen Pump Trial 5% *
Baclofen Pump 5% *
Baclofen Pump Refill 5% *
Physical Therapy Evalualation 4% * 2 11.20 211.20 211.20 211.20 211.20 211.20 211.20 211.20
Physical Therapy 4% * M 9 ,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00
Occupational Therapy Evaluation 4% * 2 11.20 211.20 211.20 211.20 211.20 211.20 211.20 211.20
Occupational Therapy 4% * M 9 ,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00 9,560.00
Speech Therapy Evalualation 4% * 2 50.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00
Speech Therapy 4% M 4 ,000.00 4,000.00 4,000.00 4,000.00 2,000.00 2,000.00 2,000.00 2,000.00
Hippotherapy 4% 3 85.00 385.00 385.00 385.00 385.00 385.00 385.00 385.00
Equestrian Helmet 4% 7 5.95 25.32 25.32 25.32 25.32 25.32 25.32 25.32
Assistive Tech Evaluation 4% 350.00
Baclofen 5% * 1 44.00 144.00 144.00 144.00 144.00 144.00 144.00 144.00
Oxcarbazepine 5% * 1 44.00 144.00 144.00 144.00 144.00 144.00 144.00 144.00
Tizanidine 5% * 1 44.00 144.00 144.00 144.00 144.00 144.00 144.00 144.00
Albuterol 5% * 1 2.00 12.00 12.00 12.00 12.00 12.00 12.00 12.00
Nayzilam 5% 6 95.00 695.00 695.00 695.00 695.00 695.00 695.00 695.00
Cetirizine 4% 2 6.82 26.82 26.82 26.82 26.82 26.82 26.82 26.82
Children's Tylenol 4% 2 0.97 20.97 20.97 20.97 20.97 20.97 20.97 20.97
Motrin 4% 2 2.47 22.47 22.47 22.47 22.47 22.47 22.47 22.47
Mucinex 4% 5 0.97 50.97 50.97 50.97 50.97 50.97 50.97 50.97
Benadryl 4% 2 3.97 23.97 23.97 23.97 23.97 23.97 23.97 23.97
Melatonin 4% 1 07.88 107.88 107.88 107.88 107.88 107.88 107.88 107.88
Probiotics 4% 2 12.55 212.55 212.55 212.55 212.55 212.55 212.55 212.55
Miralax 4% 5 9.94 59.94 59.94 59.94 59.94 59.94 59.94 59.94
Pedia-Lax 4% 2 6.37 26.37 26.37 26.37 26.37 26.37 26.37 26.37
Special Mattress 4% 3 ,648.00 364.80 364.80 364.80 364.80 364.80 364.80 364.80

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 13 of 20
Appendix A: Items of Compensation for H. H. Page 3 of 10
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-7 Year 8 Year 9 Year 10
2025 2026 2027 2028 2029-2031 2032 2033 2034
Mattress Protector 4% 5 9.26 59.26 59.26 59.26 59.26 59.26 59.26 59.26
Over Bed Table 4% 1 80.30 18.03 18.03 18.03 18.03 18.03 18.03 18.03
Gait Trainer 4% *
Stander 4% *
Therapy Mat Platform 4% 7 65.00 76.50 76.50 76.50 76.50 76.50 76.50 76.50
Positioning Wedge 4% 3 92.95 79.19 79.19 79.19 79.19 79.19 79.19 79.19
Bosu Ball 4% 2 00.00 50.00 50.00 50.00 50.00 50.00 50.00 50.00
Hoyer Lift 4% *
Hoyer Lift Slings 4% 1 24.00 62.00 62.00 62.00 62.00 62.00 62.00 62.00
Shower Chair 4% 3,991.90 665.32 665.32 665.32 665.32
Wheelchair Bicycle 4% 8 ,070.00
iPad 4% 6 49.00 129.80 129.80 129.80 129.80 129.80 129.80 129.80
iPad Data Plan 4% 1 20.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00
Apple Care 4% 6 9.00 34.50 34.50 34.50 34.50 34.50 34.50 34.50
iPad Bumper Case 4% 1 9.99 4.00 4.00 4.00 4.00 4.00 4.00 4.00
iPad Screen Protector 4% 5 9.99 12.00 12.00 12.00 12.00 12.00 12.00 12.00
Physiotherapy Vest 4% *
O2 Tank & Regulator 4% *
Portable Suction Machine 4% *
Suction Canister Kit 4% *
Yankauer Tip 4% *
Sterile Suction Caths 4% *
Nebulizer Machine 4% *
Nebulizer Mask 4% *
Nebulizer Tubing 4% *
Nebulizer Filter 4% *
Portable Nebulizer 4% 1 11.87 27.97 27.97 27.97 27.97 27.97 27.97 27.97
Replacement Nebulizer Filters 4% *
Replacement Nebulizer Tubing 4% *
Video Monitoring 4% 6 4.50 16.13 16.13 16.13 16.13 16.13 16.13 16.13
Organizing Bins 4% 6 9.99 5.83 5.83 5.83 5.83 5.83 5.83 5.83

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 14 of 20
Appendix A: Items of Compensation for H. H. Page 4 of 10
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-7 Year 8 Year 9 Year 10
2025 2026 2027 2028 2029-2031 2032 2033 2034
Electric Toothbrush 4% 4 9.96 8.33 8.33 8.33 8.33 8.33 8.33 8.33
Replacement Toothbrush Heads 4% 4 6.50 46.50 46.50 46.50 46.50 46.50 46.50 46.50
Pill Crusher 4% 1 7.95 2.99 2.99 2.99 2.99 2.99 2.99 2.99
Pill Splitter 4% 1 .79 0.90 0.90 0.90 0.90 0.90 0.90 0.90
Gastro Tube & Supplies 4% *
Liquid Hope 4% M 9 ,077.55 9,077.55 9,077.55 9,077.55 9,077.55 9,077.55 9,077.55 9,077.55
Disposable Large Bib 4% 1 97.03 197.03 197.03 197.03 197.03 197.03 197.03 197.03
Treated Suction Toothbrush 4% 2 02.80 202.80 202.80 202.80 202.80 202.80 202.80 202.80
Briefs 4% M 1 ,538.32 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32
Wipes 4% M 4 77.27 477.27 477.27 477.27 477.27 477.27 477.27 477.27
Gloves 4% M 9 10.16 910.16 910.16 910.16 910.16 910.16 910.16 910.16
Disposable Underpads 4% M 1 74.93 174.93 174.93 174.93 174.93 174.93 174.93 174.93
Reusable Underpads 4% M 2 6.80 26.80 26.80 26.80 26.80 26.80 26.80 26.80
Calmoseptine Ointment 4% M 1 34.28 134.28 134.28 134.28 134.28 134.28 134.28 134.28
Barrier Paste 4% M 2 75.88 275.88 275.88 275.88 275.88 275.88 275.88 275.88
Hand Sanitizer 4% M 7 7.88 77.88 77.88 77.88 77.88 77.88 77.88 77.88
Bilateral AFOs 4% *
Shoe Lift 4% *
Billy Shoes 4% 1 70.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00
Manual Wheelchair 4% *
Manual Wheelchair Maintenance 4% *
WheelChair Pack 4% 4 6.32 15.44 15.44 15.44 15.44 15.44 15.44 15.44
Portable Ramp 4% 5 70.00 57.00 57.00 57.00 57.00 57.00 57.00 57.00
Modified Van 4% 104,916.50
Van Maintenance 4% 4 00.00 400.00 400.00 400.00 400.00 400.00 400.00 400.00
Auto Insurance for Van 4% 1 ,017.84 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84
Care Management 4% M 1 4,400.00 14,400.00 10,800.00 10,800.00 10,800.00 10,800.00 10,800.00 10,800.00
Home Modification 0% 1 76,847.00
Private Duty Nurse 4% M 2 35,440.00 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00
Private Duty Nurse (24 hr/14
days/yr) 4% M 2 0,160.00 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 15 of 20
Appendix A: Items of Compensation for H. H. Page 5 of 10
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-7 Year 8 Year 9 Year 10
2025 2026 2027 2028 2029-2031 2032 2033 2034
Private Duty Nurse (48 hrs/12
weekends/yr) 4% M 3 4,560.00 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00
Home Health Aide 4% * M 1 00,948.00 100,948.00 100,948.00 100,948.00 100,948.00 100,948.00 100,948.00 100,948.00
Future Lost Earnings 1 ,703,880.00
Pain and Suffering 2 50,000.00
Past Unreimbursable Expenses 3 02,024.70
Annual Totals 2 ,925,472.00 454,394.47 450,794.47 454,786.37 449,459.79 473,522.29 449,449.79 553,411.57
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment.
As soon as practicable after entry of judgment, respondent shall make the following payment to the court-appointed guardian(s)/
conservators(s) of the estate of H.H. for the benefit of H.H., for future lost earnings ($1,703,880.00),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($669,567.30): $2,623,447.30.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners, Heathe Heller and
Jenna Heller, for past un-reimbursable expenses: $302,024.70.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated in column "G.R." above, compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in 12 monthly installments at the discretion of respondent.

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 16 of 20
Appendix A: Items of Compensation for H. H. Page 6 of 10
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 11-14 Year 15 Years 16-18 Year 19 Year 20 Years 21-52 Years 53-Life
2035-2038 2039 2040-2042 2043 2044 2045-2076 2077-Life
BCBS Maximum out of Pocket 5% 4,000.00 4,000.00 4,000.00 4,000.00
BCBS Deductible 5% *
BCBS Premium 5% M 6,936.00 6,936.00 6,936.00 6,936.00
Medicare Part A Premium 5% M 7,440.00 7,440.00
Medicare Part A Deductible 5% 1,676.00 838.00 838.00
Medicare Part B Premium 5% M 2,220.00 2,220.00 2,220.00
Medicare Part B Deductible 5% 257.00 257.00 257.00
Medicare Part D 5% M 1,678.38 1,678.38 1,678.38
Medicare G 5% M 1,953.84
Pediatrician Internist 5% * 90.00 90.00 90.00 90.00
Labs 5% *
Mileage: Pediatrician/Internist 4% 26.32 26.32 26.32 26.32 26.32 26.32 26.32
Neurologist 5% * 20.00 20.00 20.00 20.00
BOTOX 5% *
Electroencephalogram 5% *
Orthopdedist 5% * 10.00 10.00 10.00
Bilateral Hip X-rays 5% *
Bilateral Knee X-rays 5% *
Bilateral Ankle X-rays 5% *
Scoliosis X-rays 5% *
Scapula X-rays 5% *
Orthopedist for Upper Extremities 5% * 10.00 10.00 10.00 10.00
X-rays: Bilateral Shoulders,
Elbows, Wrists 5% *
Ophthalmologist 5% * 30.00 30.00 30.00 30.00
Gastroenterologist 5% * 10.00 10.00 10.00 10.00
Pulmonologist 5% * 10.00 10.00 10.00 10.00
Mileage: Specialists 4% 427.00 427.00 427.00 427.00 427.00 427.00 427.00
Hotel, Parking, Meals etc 4% 225.36 225.36 225.36 225.36 225.36 225.36 225.36
Podiatrist 4% * 80.00 80.00 80.00 80.00
Dental Cleaning w/Anesthesia 4% * 781.00 781.00 781.00 781.00 781.00 781.00 781.00

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 17 of 20
Appendix A: Items of Compensation for H. H. Page 7 of 10
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 11-14 Year 15 Years 16-18 Year 19 Year 20 Years 21-52 Years 53-Life
2035-2038 2039 2040-2042 2043 2044 2045-2076 2077-Life
CareFlite 4% 49.00 49.00 49.00 49.00 49.00 49.00 49.00
Emergency Room 5% * 37.50 37.50 37.50 37.50
Air Lift 5% * 24,062.50
Hospital 5% *
Baclofen Pump Trial 5% *
Baclofen Pump 5% *
Baclofen Pump Refill 5% *
Physical Therapy Evalualation 4% * 211.20 211.20 211.20 211.20
Physical Therapy 4% * M 1,534.40 1,534.40 1,534.40 1,534.40
Occupational Therapy Evaluation 4% * 211.20 211.20 211.20 211.20
Occupational Therapy 4% * M 1,534.40 1,534.40 1,534.40 1,534.40
Speech Therapy Evalualation 4% * 250.00 250.00 250.00 250.00
Speech Therapy 4% M 1,000.00 1,000.00 1,000.00 1,000.00
Hippotherapy 4%
Equestrian Helmet 4%
Assistive Tech Evaluation 4% 70.00 70.00 70.00 70.00 70.00 70.00 70.00
Baclofen 5% * 144.00 144.00 144.00 144.00
Oxcarbazepine 5% * 144.00 144.00 144.00 144.00
Tizanidine 5% * 144.00 144.00 144.00 144.00
Albuterol 5% * 12.00 12.00 12.00 12.00
Nayzilam 5% 695.00 695.00 695.00 695.00
Cetirizine 4% 26.82 26.82 26.82 26.82 26.82 26.82 26.82
Children's Tylenol 4% 20.97 20.97 20.97 20.97 20.97 20.97 20.97
Motrin 4% 22.47 22.47 22.47 22.47 22.47 22.47 22.47
Mucinex 4% 50.97 50.97 50.97 50.97 50.97 50.97 50.97
Benadryl 4% 23.97 23.97 23.97 23.97 23.97 23.97 23.97
Melatonin 4% 107.88 107.88 107.88 107.88 107.88 107.88 107.88
Probiotics 4% 212.55 212.55 212.55 212.55 212.55 212.55 212.55
Miralax 4% 59.94 59.94 59.94 59.94 59.94 59.94 59.94
Pedia-Lax 4% 26.37 26.37 26.37 26.37 26.37 26.37 26.37
Special Mattress 4% 364.80 364.80 364.80 364.80 364.80 364.80 364.80

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 18 of 20
Appendix A: Items of Compensation for H. H. Page 8 of 10
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 11-14 Year 15 Years 16-18 Year 19 Year 20 Years 21-52 Years 53-Life
2035-2038 2039 2040-2042 2043 2044 2045-2076 2077-Life
Mattress Protector 4% 59.26 59.26 59.26 59.26 59.26 59.26 59.26
Over Bed Table 4% 18.03 18.03 18.03 18.03 18.03 18.03 18.03
Gait Trainer 4% *
Stander 4% *
Therapy Mat Platform 4% 76.50 76.50 76.50 76.50 76.50 76.50 76.50
Positioning Wedge 4% 79.19 79.19 79.19 79.19 79.19 79.19 79.19
Bosu Ball 4% 50.00 50.00 50.00 50.00 50.00 50.00 50.00
Hoyer Lift 4% *
Hoyer Lift Slings 4% 62.00 62.00 62.00 62.00 62.00 62.00 62.00
Shower Chair 4% 665.32 665.32 665.32 665.32 665.32 665.32 665.32
Wheelchair Bicycle 4%
iPad 4% 129.80 129.80 129.80 129.80 129.80 129.80 129.80
iPad Data Plan 4% 120.00 120.00 120.00 120.00 120.00 120.00 120.00
Apple Care 4% 34.50 34.50 34.50 34.50 34.50 34.50 34.50
iPad Bumper Case 4% 4.00 4.00 4.00 4.00 4.00 4.00 4.00
iPad Screen Protector 4% 12.00 12.00 12.00 12.00 12.00 12.00 12.00
Physiotherapy Vest 4% *
O2 Tank & Regulator 4% *
Portable Suction Machine 4% *
Suction Canister Kit 4% *
Yankauer Tip 4% *
Sterile Suction Caths 4% *
Nebulizer Machine 4% *
Nebulizer Mask 4% *
Nebulizer Tubing 4% *
Nebulizer Filter 4% *
Portable Nebulizer 4% 27.97 27.97 27.97 27.97 27.97 27.97 27.97
Replacement Nebulizer Filters 4% *
Replacement Nebulizer Tubing 4% *
Video Monitoring 4% 16.13 16.13 16.13 16.13 16.13 16.13 16.13
Organizing Bins 4% 5.83 5.83 5.83 5.83 5.83 5.83 5.83

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 19 of 20
Appendix A: Items of Compensation for H. H. Page 9 of 10
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 11-14 Year 15 Years 16-18 Year 19 Year 20 Years 21-52 Years 53-Life
2035-2038 2039 2040-2042 2043 2044 2045-2076 2077-Life
Electric Toothbrush 4% 8.33 8.33 8.33 8.33 8.33 8.33 8.33
Replacement Toothbrush Heads 4% 46.50 46.50 46.50 46.50 46.50 46.50 46.50
Pill Crusher 4% 2.99 2.99 2.99 2.99 2.99 2.99 2.99
Pill Splitter 4% 0.90 0.90 0.90 0.90 0.90 0.90 0.90
Gastro Tube & Supplies 4% *
Liquid Hope 4% M 9,077.55 9,077.55 9,077.55 9,077.55
Disposable Large Bib 4% 197.03 197.03 197.03 197.03 197.03 197.03 197.03
Treated Suction Toothbrush 4% 202.80 202.80 202.80 202.80 202.80 202.80 202.80
Briefs 4% M 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32 1,538.32
Wipes 4% M 477.27 477.27 477.27 477.27 477.27 477.27 477.27
Gloves 4% M 910.16 910.16 910.16 910.16 910.16 910.16 910.16
Disposable Underpads 4% M 174.93 174.93 174.93 174.93 174.93 174.93 174.93
Reusable Underpads 4% M 26.80 26.80 26.80 26.80 26.80 26.80 26.80
Calmoseptine Ointment 4% M 134.28 134.28 134.28 134.28 134.28 134.28 134.28
Barrier Paste 4% M 275.88 275.88 275.88 275.88 275.88 275.88 275.88
Hand Sanitizer 4% M 77.88 77.88 77.88 77.88 77.88 77.88 77.88
Bilateral AFOs 4% *
Shoe Lift 4% *
Billy Shoes 4% 170.00 170.00 170.00 170.00 170.00 170.00 170.00
Manual Wheelchair 4% *
Manual Wheelchair Maintenance 4% *
WheelChair Pack 4% 15.44 15.44 15.44 15.44 15.44 15.44 15.44
Portable Ramp 4% 57.00 57.00 57.00 57.00 57.00 57.00 57.00
Modified Van 4% 104,916.50 10,491.65 10,491.65
Van Maintenance 4% 400.00 400.00 400.00 400.00 400.00 400.00 400.00
Auto Insurance for Van 4% 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84 1,017.84
Care Management 4% M 9,000.00 9,000.00 9,000.00 9,000.00 9,000.00 9,000.00 9,000.00
Home Modification 0%
Private Duty Nurse 4% M 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00 235,440.00
Private Duty Nurse (24 hr/14
days/yr) 4% M 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00 20,160.00

Case 1:15-vv-00792-RTH Document 195 F iled 11/03/25 P age 20 of 20
Appendix A: Items of Compensation for H. H. Page 10 of 10
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 11-14 Year 15 Years 16-18 Year 19 Year 20 Years 21-52 Years 53-Life
2035-2038 2039 2040-2042 2043 2044 2045-2076 2077-Life
Private Duty Nurse (48 hrs/12
weekends/yr) 4% M 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00 34,560.00
Home Health Aide 4% * M 100,948.00 100,948.00 100,948.00 100,948.00 105,948.00 105,948.00 105,948.00
Future Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 435,889.55 459,952.05 435,889.55 435,879.55 532,886.18 437,623.33 432,137.17
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment.
As soon as practicable after entry of judgment, respondent shall make the following payment to the court-appointed guardian(s)/
conservators(s) of the estate of H.H. for the benefit of H.H., for future lost earnings ($1,703,880.00),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($669,567.30): $2,623,447.30.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners, Heathe Heller and
Jenna Heller, for past un-reimbursable expenses: $302,024.70.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated in column "G.R." above, compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in 12 monthly installments at the discretion of respondent.