VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01538
Package ID: USCOURTS-cofc-1_18-vv-01538
Petitioner: K.S.J., Jr.
Filed: 2018-10-04
Decided: 2024-03-25
Vaccine: MMR
Vaccination date: 2017-01-17
Condition: biotin-thiamine-responsive basal ganglia disease (BTRBGD) triggered by SLC19A3 gene variant activation
Outcome: compensated
Award amount USD: 1616572

AI-assisted case summary:
On October 4, 2018, Durenda Whitehead and Keynard Shawtell Johnson, Sr., filed a petition on behalf of their minor son, K.S.J., Jr. (K.J.), seeking compensation under the National Vaccine Injury Compensation Program. They alleged that the MMR vaccine K.J. received on January 17, 2017, caused him to suffer from encephalitis and encephalopathy. In the alternative, they alleged that K.J.'s receipt of multiple vaccines on January 17, 2017, including the MMR, influenza, hepatitis A, DTaP, hepatitis B, IPV, PCV13, and varicella vaccines, caused the activation of his SLC19A3 gene variant, leading to SLC19A3-related encephalopathy. 

K.J. was born on November 30, 2015. Prior to the vaccinations at issue, he had been hospitalized three times for respiratory-related conditions, including bronchiolitis and laryngomalacia. On January 17, 2017, K.J. received several routine childhood vaccinations. Five days later, on January 23, 2017, he began exhibiting generalized weakness, fussiness, and difficulty with movement. Initial evaluations included a brain CT scan showing abnormalities in the basal ganglia and cerebral white matter. K.J. was transferred to Scottish Rite Hospital, where further evaluations, including an MRI, revealed symmetric areas of abnormal signal in the basal ganglia, thalami, and cerebral cortex, concerning for metabolic or postvaccine encephalitis or ADEM. 

During his hospitalization, K.J. underwent EEG testing, which was normal. An infectious disease consult deemed viral or bacterial encephalitis unlikely. A neurology consult considered ADEM but discounted its likelihood due to the MRI findings. Laboratory testing revealed elevated serum lactate and pyruvate levels. K.J. was placed on thiamine and levocarnitine for a possible mitochondrial disorder. He participated in inpatient rehabilitation and was discharged on February 21, 2017, with a predominant differential diagnosis of mitochondrial disease triggered by vaccination. 

In April 2017, K.J. was admitted for worsening ataxia and irritability, with a neurological exam showing reduced tone and head lag. A repeat MRI showed results similar to the earlier one, and a neurologist suggested a possible metabolic/mitochondrial process, recommending genetic testing. K.J. was discharged with a diagnosis of possible metabolic/mitochondrial disease. 

In January 2018, a brain MRI showed resolution of previously seen areas of acute injury. A neurological examination noted a mutation in the PHKA2 gene and impressions of spastic quadriplegic cerebral palsy and developmental regression after vaccinations and illness. In October 2019, whole exome sequencing identified variants in the SLC19A3 gene. A genetic consultation in March 2020 assessed K.J. as most likely having biotin-thiamine-responsive basal ganglia disease (BTRBGD), consistent with his clinical picture and test findings. 

At a hearing, K.J.'s mother testified about his normal development prior to the January 2017 vaccinations and his subsequent deterioration. K.J.'s father corroborated this account. Petitioners' expert, Dr. Juanita Neira Fresneda, testified that K.J.'s SLC19A3 gene variants code for thiamine transporters crucial for mitochondrial energy production, and that a deficiency leads to BTRBGD. She opined that BTRBGD can be triggered by stress, such as that caused by multiple vaccines, and that K.J.'s presentation was consistent with this. She noted that K.J. had experienced prior illnesses without similar neurological decline, suggesting the vaccines were the trigger. 

Respondent's expert, Dr. Gerald Vincent Raymond, testified that K.J.'s condition was a progressive genetic neurodegenerative disorder (BTRBGD) that was not caused or exacerbated by the vaccinations, but rather was a condition he was born with. He acknowledged that literature suggested environmental stressors could trigger acute episodes in BTRBGD patients but maintained that not enough was known to conclude vaccination could act as such an impetus. He also noted that K.J.'s condition appeared progressive, which he argued was inconsistent with an acute vaccine-induced injury. 

Chief Special Master Brian H. Corcoran issued a ruling on entitlement on September 29, 2021. He found that Petitioners had not established a Table encephalopathy claim, as K.J.'s symptoms manifested outside the required timeframe and lacked sufficient treating physician support for an acute encephalopathy diagnosis. However, he found that Petitioners had established causation in fact for a non-Table injury. He determined that while the evidence was thin, it preponderantly established that the vaccines K.J. received likely triggered his preexisting SLC19A3 genetic mutation, manifesting as BTRBGD. He found that the medical literature and expert testimony supported a causal connection, a logical sequence of cause and effect, and a proximate temporal relationship between the vaccination and the injury. 

On January 5, 2024, Respondent filed a proffer proposing an award of compensation. On March 25, 2024, Chief Special Master Corcoran issued a decision awarding damages based on this proffer. The award included a lump sum payment of $1,616,572.94, comprising $250,000.00 for pain and suffering, $251,934.06 for first-year life care expenses, and $1,114,638.88 for future lost earnings. Additionally, an amount was awarded to purchase an annuity for ongoing life care expenses, with payments contingent on K.J. being alive. The award was subject to Petitioners providing documentation of guardianship/conservatorship for K.J.'s estate. Petitioner counsel was Julius Vincent Cook, and Respondent counsel was Zoe Wade. Special Master Brian H. Corcoran presided over the case.

Theory of causation field:
Petitioners K.S.J., Jr. (K.J.), a minor, received multiple vaccines, including MMR, on January 17, 2017. Five days later, K.J. presented with weakness and difficulty with movement. Medical evaluations revealed abnormalities in the basal ganglia and cerebral white matter. K.J. was diagnosed with biotin-thiamine-responsive basal ganglia disease (BTRBGD) due to an SLC19A3 gene variant, which Petitioners alleged was triggered by the stress of the vaccinations. Petitioners' expert, Dr. Juanita Neira Fresneda, opined that the vaccines acted as a stressor, unmasking K.J.'s underlying genetic predisposition to BTRBGD. Respondent's expert, Dr. Gerald Vincent Raymond, contended that K.J.'s condition was a genetic disorder that manifested independently of vaccination. Chief Special Master Brian H. Corcoran found that Petitioners failed to establish a Table encephalopathy claim but succeeded in proving causation in fact for a non-Table injury. He determined that the evidence preponderantly showed the vaccines triggered K.J.'s SLC19A3 gene variant, leading to BTRBGD. The Special Master found that the medical literature and expert testimony supported a causal connection, a logical sequence of cause and effect, and a proximate temporal relationship between the vaccination and the injury. The case resulted in a compensated outcome. On March 25, 2024, an award of $1,616,572.94 was granted, consisting of $250,000.00 for pain and suffering, $251,934.06 for first-year life care expenses, and $1,114,638.88 for future lost earnings, plus an annuity for ongoing life care expenses. Attorneys for Petitioners were R. Christopher Irwin, III, and Julius Vincent Cook. Attorney for Respondent was Dhairya Divyakant Jani and Zoe Wade. Chief Special Master Brian H. Corcoran issued the entitlement ruling and the final decision awarding damages.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01538-0
Date issued/filed: 2021-10-25
Pages: 28
Docket text: PUBLIC DECISION (Originally filed: 09/29/2021) regarding 42 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
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Case 1:18-vv-01538-UNJ Document 44 Filed 10/25/21 Page 1 of 28
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1538V
(to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
DURENDA WHITEHEAD *
and *
KEYNARD SHAWTELL JOHNSON, SR., * Filed: September 29, 2021
on behalf of KSJ, JR., *
*
Petitioners, * Chief Special Master Corcoran
*
v. *
*
SECRETARY OF HEALTH AND *
HUM. SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
R. Christopher Irwin, III, Cook & Tolley LLP, Athens, GA, for Petitioners.
Dhairya Divyakant Jani, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ENTITLEMENT RULING1
On October 4, 2018, Durenda Whitehead and Keynard Shawtell Johnson, Sr., filed a
petition seeking compensation under the National Vaccine Injury Compensation Program
(“Vaccine Program”) on behalf of their minor son, K.S.J., Jr. (hereinafter referred to as “K.J.”).2
Petitioners alleged that the MMR (measles, mumps, rubella) vaccine K.J. received on January 17,
2017, caused him to suffer from encephalitis and encephalopathy under the Vaccine Table. Petition
at 1 (ECF No. 1). In the alternative, Petitioners alleged that K.J.’s receipt of several vaccines on
1 This Decision will 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 that 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
whole Decision will be available to the public in its current form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:18-vv-01538-UNJ Document 44 Filed 10/25/21 Page 2 of 28
January 17, 2017 (including the MMR, influenza (“flu”), hepatitis A, diphtheria, tetanus, acellular
pertussis (“DTaP”), hepatitis B, inactivated polio vaccine (“IPV”), haemophilus influenza type B
(“HiB”), pneumococcal conjugate vaccine (“PCV12”), and varicella vaccines), caused him to
suffer “the activation of his SLC19A3 gene variant,” leading him to experience an “SLC19A3-
related encephalopathy.” Petitioners’ Prehearing Brief, filed Nov. 19, 2020 (ECF No. 32)
(“Prehearing Brief”).
An entitlement hearing was held in this matter on March 4, 2021. Having reviewed the
materials filed in this case and considered the parties’ arguments, I hereby find that Petitioners
have met their burden of proof, and are therefore entitled to damages. Although Petitioners have
not met the evidentiary requirements for a Table encephalopathy injury, they have established
preponderantly that the multiple vaccines K.J. received in January 2017 likely triggered his
preexisting genetic mutation, manifesting as a specific disorder: biotin-thiamine-responsive basal
ganglia disease (“BTRBGD”).
I. Medical History
Pre-Vaccination History
K.J. was born on November 30, 2015. Ex. 3 at 13. At his birth, K.J. weighed 6 pounds, 1.3
ounces, and his Apgar score was 9 at one minute and 9 at five minutes, although he failed his
newborn hearing screening. Id. at 12; Ex. 5 at 33. During his first two months of life, K.J. had
regular well-child checks with his pediatrician at four days, two weeks, one month, and two months
of age, respectively. See Ex. 2 at 15–22. During that time, he was found to be healthy, and noted
to be growing and developing normally. Id. On February 5, 2016, at his two-month-old well-child
check, K.J. was administered certain routine childhood vaccines without incident. Id. at 16.
Prior to the receipt of the vaccinations at issue in this case, K.J. was hospitalized three
times for respiratory-related conditions. See Ex. 7 at 167; Ex. 5 at 83–87; Ex. 6 at 10–13. On April
19, 2016, K.J. was hospitalized overnight for bronchiolitis, but discharged the next day. Ex. 7 at
167. A few months later, on June 9, 2016, K.J. presented to the Coliseum Medical Center
Emergency Department in Macon, Georgia with another case of bronchiolitis. See Ex. 5 at 83–87.
He was treated with bronchodilators and transferred to Scottish Rite Hospital in Atlanta, Georgia,
where he remained until June 14, 2016. Id. at 87–88; Ex. 7 at 93. As part of his evaluation during
this hospitalization, K.J. had an abnormal swallow study. Ex. 7 at 467. His diagnoses were
bronchiolitis, respiratory failure, and laryngomalacia. Id. at 93. Finally, on November 18, 2016,
K.J. was again hospitalized overnight for respiratory distress and a history of laryngomalacia. Ex.
6 at 10–13. He responded well to steroids and bronchodilators, and was discharged the following
day. Id.
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Vaccinations and Onset of Alleged Injury
On January 17, 2017, K.J. saw his pediatrician for a one-year-old well-child check. Ex. 2
at 12. No abnormal findings were noted on physical examination, and he was administered several
routine childhood vaccinations, including the MMR, flu, Hepatitis A, DTaP/HepB/IPV, Hib,
PCV13, and varicella vaccines. Id. at 13.
Five days later, on January 23, 2017, K.J. was taken to the Athens Regional Medical Center
Emergency Department for concerns of generalized weakness, fussiness, poor oral intake, and wet
diapers. Ex. 8 at 13. At that time, Ms. Whitehead provided the following history:
[He] was behind on his vaccine/immunizations and one week ago [he] had multiple
vaccines to help catch him up on his immunization. Mom reports the child did well
throughout the week but over the weekend mom noted that the child has had difficulty with
crawling and ambulating. He just started cruising/walking over the last few months and he
has been meeting his milestones. Mom reports he appears uncomfortable and seems to have
pain with attempting to crawl and ambulate.
Mom has also noted that he seems to be weak in the arms. She reports that when he reaches
out for things he will drop his arm. [S]he states she [ha]s also noted that [at] times he has
a fine tremor in his arms when he is trying to reach out for objects. No fever. No seizure
activity. No nausea or vomiting.
Id. Despite such concerns, K.J. was awake and alert with good eye contact, and had no fever, rash,
or respiratory symptoms. Id. at 13–14. In addition, his vitals were stable, and he did not appear to
have any acute infectious process. Id. at 14.
As part of his initial evaluation, K.J. underwent a brain computed tomography (“CT”) scan,
which demonstrated “[m]oderate low-attenuation in the basal ganglia bilaterally, having a
symmetrical appearance, plus areas of low-attenuation in the cerebral white matter, having a
parasagittal distribution on the right.” Ex. 8 at 15. The scan also revealed several lesions. Id. at 14
It was noted that if these findings were “of acute onset,” the differential diagnosis would properly
include “hypoxia, encephalitis, and carbon dioxide exposure,” whereas if the findings were “more
chronic,” the differential diagnosis should include “demyelinating disease and a number of
congenital disease processes.” Id. at 15–16.
K.J. was subsequently transferred to the Scottish Rite Hospital that same day in January
2017 for a higher level of care and further work-up and treatment. Ex. 8 at 14. There, Ms.
Whitehead again provided a medical history overview. In it, she recounted that K.J. had “woke up
and seemed normal” two days before (which would have been January 21, 2017), but then would
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not rise when called upon, and had trouble reaching toys placed in front of him. Ex. 7 at 3107. He
also proved unable to hold his bottle and seemed weak and lethargic. Id. By the next day (January
22, 2017), he seemed especially “spaced out” and sleepy, and so Ms. Whitehead allowed him to
sleep through the night before taking K.J. to the Emergency Department the next day. She added
that K.J. had not experienced any recent fever or upper respiratory infections. Id.
Upon examination, K.J. was active and alert, and displayed normal reflexes or cranial nerve
deficits, although he was unable to sit or stand without assistance and was mostly limp. Ex. 7 at
3107. The examining physician commented that there were no obvious differences between his
right and left side, and it was unclear whether K.J.’s condition represented ataxia or weakness. Id.
On January 24, 2017, K.J. underwent brain and spine magnetic resonance imaging (“MRI”), and
the brain MRI revealed “symmetric areas of abnormal signal, diffusion restriction, and abnormal
enhancement” that involved “the basal ganglia, thalami, and cerebral cortex.” Id. K.J.’s treating
physicians noted that these findings were “concerning for metabolic vs. postvaccine encephalitis
vs. ADEM [acute disseminated encephalomyelitis].” Id. Based on this initial exam and testing,
treating physicians recommended that K.J. be transferred to the pediatric intensive care unit
(“PICU”), which Petitioners initially refused but later accepted, and K.J. remained in the PICU
until February 6, 2017, when he was transferred to inpatient rehabilitation. Id. at 3108, 3110.
Specialist Evaluations in 2017
During his PICU admission, K.J. underwent several tests and medical evaluations.
Electroencephalogram (“EEG”) testing reflected normal results in the awake, drowsy, and sleep
stages, with no epileptiform abnormalities or electrographic seizures. Ex. 7 at 3932. On January
25, 2017, K.J. underwent an infectious disease consult with Lisa Cranmer, M.D., who noted that
it was unlikely that K.J. suffered from viral or bacterial encephalitis given the absence of fever,
pleocytosis (increased white blood cell count), and other viral symptoms. Id. at 3197. Dr. Cranmer
also listed possible non-infectious differential diagnoses, to include metabolic complications. Id.
That same day K.J. had a neurology consult with Rebecca Luke, M.D., who discussed the
possibility that K.J. was suffering from ADEM, but discounted its likelihood, since his brain MRI
did not reveal the presence of white matter involvement typical of ADEM. Ex. 7 at 3276.
Laboratory testing performed at that time revealed an elevated serum lactate and pyruvate levels,
with normal ammonia levels. Id. at 24. K.J. had a follow-up visit with Dr. Luke on January 29,
2017, and she now observed that K.J. was tracking people in the room and seemed less irritable.
Ex. 7 at 3446. K.J. was placed on a regimen of thiamine and levocarnitine for treatment of a
possible mitochondrial disorder. Id.
By the morning of February 6, 2017, K.J. “was showing some mild improvement—he was
reaching for toys, and seemed more alert although he remained intermittently irritable.” Ex. 7 at
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3446. He participated in inpatient rehabilitation, including physical therapy, occupational therapy,
and speech language pathology until his discharge on February 21, 2017. Id. at 3116–17. At
discharge, the “predominant differential [diagnosis] was mitochondrial disease triggered by
administration of vaccines.” Ex. 11 at 34. Laboratory specimens were sent to Baylor for
mitochondrial genome sequencing. Id.
The following month, K.J. was seen by a speech language pathologist, Jennifer Ponder, on
March 6, 2017. Ex. 7 at 56. Ms. Ponder recorded that the family had no concerns about K.J.’s
eating at that time, although they were still taking some precautions in feeding. Id. Ms. Ponder did
not observe any overt signs or symptoms of laryngeal penetration or aspiration. Id. By March 17,
2017, K.J. had started walking with the assistance of a walker. Id. It is not evident from the records
at this time whether K.J. was still continuing to receive thiamine.
On April 18, 2017, K.J. was admitted to Navicent Health Medical Center for evaluation of
worsening ataxia and irritability. Ex. 11 at 33. In particular, the Petitioners had observed that a
week before, K.J. had “started becoming more clumsy (again…) and [was] falling a lot more. He
also started becoming remarkably hypotonic with interval inability to sit on his own or by himself.
He also started becoming more irritable” and “having low grade fevers.” Id. In addition, on the
previous night (April 17, 2017) K.J. had “an episode of disorganized perioral twitching that was
not associated with impairment of level of consciousness.” Id. An EEG revealed “diffuse delta
activity without subclinical seizures.” Ex. 11 at 33.
A neurological exam by Joseph Trasmonte, M.D., showed that K.J. was “[v]ery irritable.
Noninteractive. [Exhibiting a] [h]ead lag. Unable to sit on his own…Tone is reduced diffusely.”
Ex. 11 at 35. Dr. Trasmonte expressed concern with “interval worsening of prior abnormalities
intracranially,” adding that “[b]ecause of the exquisite symmetry of the lesions a mitochondrial
process is first in the DDX [differential diagnosis] but I am keeping [the] possibility of ADEM in
the list just because of the interval worsening of symptoms.” Id. A repeat MRI produced results
Dr. Trasmonte deemed “strikingly similar” to the first one performed earlier that year, and the
“pattern of abnormalities” suggested to him that “an underlying metabolic/mitochondrial process”
might explain K.J.’s condition, although a specific etiology remained elusive. Id. at 37–38. Dr.
Trasmonte proposed conducting whole exome genetic testing in the search for a cause. Id. He also
took note of concerns expressed by Ms. Whitehead that vaccination might be the reason for K.J.’s
illness, although he observed that “the classic manifestation of vaccine related brain injury is
ADEM,” but the MRI findings were not consistent with it. Id. At most, K.J. had “an underlying
subclinical metab[olic]/mit[oc]hondrial process and vaccination was a factor in its becoming
symptomatic.” Id.
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K.J. was discharged on April 22, 2017, with a diagnosis of possible
metabolic/mitochondrial disease. Ex. 11 at 38. No other records relevant to his injury reflecting
treatment in 2017 have been filed in this matter.
2018 and Identification of Genetic Mutation
On January 31, 2018, K.J. underwent another brain MRI, the results of which showed
“resolution of previously seen areas of acute injury to the brain,” and no findings suggestive of
progressive demyelination. Ex. 13 at 49. That same month, he underwent a neurological
examination that was performed by Stephanie Keller, M.D. Ex. 13 at 63. Dr. Keller’s exam records
memorialized K.J.’s history over the prior year, and in particular his motor and feeding issues. Id.
In reviewing K.J.’s laboratory and radiologic studies, Dr. Keller noted a “[m]utation in PHKA2
gene which is x-linked,” leading her to recommend that Ms. Whitehead also be tested. Id. at 66.
Dr. Keller’s impressions following exam were (1) “spastic quadriplegic cerebral palsy” and (2)
“developmental regression after [] vaccinations and illness.” Id. at 67. K.J. was referred for a
genetics consultation. Id.
A year later, on October 31, 2019 (and thus while this case was pending), K.J. underwent
whole exome sequencing with mitochondrial DNA analysis. See generally Ex. 22. K.J. was
identified as harboring two variants of unknown significance on the SLC19A3 gene—one
inherited from each parent, and a de novo variant in the TRRAP gene. Id. K.J. thereafter had a
genetic consultation with Dr. Juanita Neira Fresneda (“Dr. Neira”), Petitioners’ testifying expert,
on March 20, 2020, to review his recent genetic testing. Ex. 25-B at 1–4. Among other things, Dr.
Neira assessed K.J. with most likely having “BTRBGD,” which she characterized as being “a
variable phenotype but consistent with developmental regression following vaccines or illness,
encephalopathy, spasticity and abnormal brain MRI with hyperintensities in the caudate, putamen,
thalamus and diffuse corticosubcortical areas.” Id. at 3. Dr. Neira considered a possible BTRBGD
diagnosis as being consistent with K.J.’s complete clinical picture, plus his relevant MRI and
laboratory study findings. Id.
II. Testimony at Hearing and Expert Opinions
A. Ms. Durenda Whitehead
Ms. Whitehead, K.J.’s mother, was the first witness to testify at the hearing. See generally
Tr. 7–21. She began by giving a general overview of the first thirteen months of K.J.’s life. Id. at
7. As she recalled, K.J. was doing very well during this time period, and that he was consistently
meeting age-appropriate developmental milestones. Id. K.J. even began “cruising” and pulling
himself up onto his feet, sometimes taking up to five steps on his own. Id. at 8. K.J. was also
beginning to become verbal, saying a handful of words. Id. at 8–9. However, and while generally
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a healthy baby, K.J. did have some breathing issues, such as asthma, and got sick periodically. Id.
at 10.
Ms. Whitehead next described a well child check she had taken K.J. to on January 17, 2017
at Primary Pediatrics. Tr. at 10. At this visit, K.J. received his one-year immunizations, as well as
some other immunizations he had not received earlier. Id. A few days later, Ms. Whitehead noticed
K.J. was less active and appeared weaker. Id. at 11. She also noticed that he was whinier than usual
and had not moved much at all that day. Id. at 11–12.
By Monday, January 23, 2017, K.J. would not come to Ms. Whitehead when she called out
for him, and she noticed his legs trembling as he tried to stand up. Tr. at 12. After this trembling
incident, Ms. Whitehead decided to take K.J. to the hospital. Id. K.J. was later transferred to Athens
Regional hospital, where he was admitted. Id. He demonstrated difficulty in speaking, crawling,
and eventually in the ability to hold his own head up. Id. at 13. At one point, K.J. was even unable
to suck on anything and would gag when attempting to drink. Id.
Ms. Whitehead also recalled the few weeks before hospitalization, testifying that K.J. had
not been sick or taken any hard falls that she felt could explain his sudden deterioration. Tr. at 14.
The only thing that had been out of the ordinary had been the vaccinations he had received at his
well child check on January 17, 2017. Id.
Ms. Whitehead also testified about K.J.’s progress over the past four years of his life. Tr.
at 15. At five years old, K.J.’s function is significantly lower than his peers. Id. For example, K.J.
is required to use a wheelchair for transportation, he has no speech abilities, and although he has
redeveloped the ability to swallow on his own, he communicates using an eye gaze device because
he is unable to grasp anything with his hands. Id. at 15–17. Ms. Whitehead expressed hope that
K.J. will continue to progress, and that he eventually will be able to gain more independence. Id.
at 17.
B. Mr. Keynard Johnson, Sr.
Mr. Johnson, K.J.’s father, was the second witness to testify at the hearing, and his
testimony largely echoed Ms. Whitehead’s testimony. See generally Tr. at 21–27. He recalled that
K.J.’s first year of life was characterized by “walking, talking, eating, holding his own cup.” Id. at
22. K.J. was also beginning to say words such as “mama” and “dada.” Id.
But Mr. Johnson observed significant changes after K.J.’s vaccinations in January 2017.
Tr. at 23. K.J. went from a cheerful, happy baby to slowed-down and sad looking. Id. At the
hospital in particular, K.J. went from “a normal one-year-old to a new-born baby, really less than
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a new-born baby.” Id. at 24. K.J. was now not able to do anything, and Mr. Johnson described him
as lying there “like he was almost dead.” Id.
Over the next four years, K.J. has made progress with the help of therapy. Tr. at 24. While
he still is unable to hold anything in his hands, he can now open and close them. Id. K.J. can also
bear a little bit of his weight with the use of a walker, although he cannot stand on his own. Id. Mr.
Johnson also testified that other than the vaccines K.J. received when he was thirteen months old,
there was nothing unusual that had happened to him that might explain his sudden decline. Id.
C. Petitioners’ Expert—Juanita Neira Fresneda, M.D.
Besides having treated K.J. and prepared a clinical note which was filed in this case, Dr.
Neira prepared one expert report and testified at the hearing. Report, dated July 30, 2020, filed as
Ex. 25 (ECF No. 28) (“Neira Rep.”); Tr. 27–66; Clinical Note, filed July 30, 2020 as Ex. B (ECF
No. 28).
Dr. Neira obtained a Doctor of Medicine with honors in 2008 from Fundación Universitaria
de Ciencias de la Salud, Bogotá, Colombia (University of Health Sciences) Hospital San José.
Curriculum Vitae, filed as Ex. A (ECF No. 28) (“Neira CV”) at 1. She then completed a pediatrics
residency at Woodhull Medical and Mental Health Center, Brooklyn, New York as well as a
residency in Medical Genetics at Baylor College of Medicine in Houston, Texas. Neira CV at 1.
Dr. Neira also completed a Medical Biochemical Genetics fellowship at Baylor College. Tr. at 28.
She is licensed to practice medicine in the state of Georgia. Neira CV at 1. Currently, she is an
Assistant Professor at the Department of Human Genetics at Emory University. Dr. Neira regularly
sees patients in the general genetics’ clinic at Emory Healthcare, focusing on treatment of pediatric
patients with genetic and metabolic disorders, and also manages in-patients with genetic and
inborn errors of metabolism at Children’s Healthcare of Atlanta (Egleston and Scottish Rite
campuses). Tr. at 28. Her publications in recent years have focused on some specific genetic
syndromes impacting child development. Neira Rep. at 2.
Dr. Neira’s first encounter with K.J. was as a patient in 2019, before she possessed any
knowledge of this vaccine injury claim, but well after the claim had been initiated. Tr. at 29, 35.
Because he was a new patient, Dr. Neira looked over K.J.’s entire medical history in order gain a
better understanding of the big picture and to focus her genetic inquiries. Id. at 29–31. She
identified no neurodevelopmental red flags or warnings within that pre-vaccination record. Id. at
34. Before this time, K.J. had already had extensive genetic work-ups, including a normal
chromosome microarray and mitochondrial genome sequencing which only revealed a variant of
uncertain significance deemed inconsistent with the patient’s presentation. Id. at 36.
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At her first visit with K.J., it was evident to Dr. Neira that he was still severely delayed for
his age and exhibiting an abnormal neurologic exam. Tr. at 35. In January 2020, she ran additional
genetic studies on K.J. (including whole genome sequencing and a search for metabolic
derangements), which would cover every known genetic disorder in the human body. Id. at 36.
The results showed that he possessed two variants in a gene called SLC19A3—one coming from
Ms. Whitehead and one from Mr. Johnson. Id. at 37.
The SLC19A3 gene, she explained, codes the proteins that constitute a thiamine
transporter, which is important for the mitochondria in cells responsible for energy production. Id.
at 45. If an individual is deficient in thiamine, mitochondrial enzymes are affected because
thiamine acts as a precursor for a substance called Acetyl-CoA which will start process of cellular
energy production. Id. If this cycle is not working, the body is going to be energy depleted, causing
patients to present with basal ganglia injury along with symptoms like weakness, ataxia, dysarthria,
etc. Id. Misfunction of this thiamine transporter is thus associated with BTRBGD, or thiamine-
responsive encephalopathy type-2. Neira Rep. at 2.
Dr. Neira provided some details about the nature of BTRBGD—and why it logically could
be vaccine-triggered. Because BTRBGD is reasonably understood to be comparable to be an
energy metabolism disorder, its phenotype or clinical presentation can be triggered by a stress or
catabolic conditions in a patient, resulting in acute clinical symptoms. Tr. at 38, 43; see M.
Alfadhel & B. Tabarki, SLC19A3 Gene Defects Sorting the Phenotype and Acronyms: Review, 49
Neuropediatrics 83–92 (2018), filed as Ex. D, Tab 6 on Mar. 30, 2021 (ECF No. 39) (“Alfadhel &
Tabarki”). She further opined that it is well known that vaccines are stressors on the body and
provoke just that kind of response. Tr. at 40; Neira Rep. at 5; Alfadhel & Tabarki at 91. She stated
that since K.J. received so many vaccines at one time, and that some of the vaccines contained a
live virus, it could place severe stress in his body.3 Tr. at 40–41; Neira Rep. at 5.
K.J.’s clinical presentation and MRIs, Dr. Neira maintained, were consistent with
BTRBGD. Neira Rep. at 2. His MRI findings echoed what other patients with an “SLC19A3-
driven encephalopathy” have experienced (in particular the symmetric areas of abnormal signal
and evidence of abnormal enhancement of the basal ganglia). Id. at 6. He also displayed
unexplained elevated blood lactate levels at the time of his January 2017 hospitalization. Id.
The medical history in this case, taking into account pre- and post-vaccination events, was
in Dr. Neira’s view supportive of the conclusion that the vaccines K.J. received in January 2017
were responsible for the sudden manifestation of his BTRBGD. K.J. remained neurologically
intact all the way until the vaccinations in January of 2017 despite several significant illnesses—
plus the fact that he already possessed the genetic mutations required for BTRBGD. Tr. at 63–64.
3 At least one of K.J.’s vaccines distributed on January 17, 2017—the MMR—is known to contain a live attenuated
virus. See MMR Package Insert, available at https://www.fda.gov/media/75191/download.
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By contrast, he had previously experienced other environmental triggers that could have provoked
manifestation of his underlying genetic problem—and the fact that they did not bring on the disease
in the same way that vaccination did was telling.
For example, nine months before January 2017, K.J. was seen at Children’s Hospital of
Atlanta in April 2016, where his presentation included a 105-degree temperature. Tr. at 63; Ex. 7
at 167–68. A few months after that, on June 9, 2016, K.J. similarly presented for treatment
primarily for a breathing issue but with a report of a 101-degree fever. Id. at 64. Neither of these
stressful events triggered sudden neurologic decline, however. Id. In fact, K.J. appeared to develop
normally all the way until the vaccinations in January of 2017. Id. And immediately prior to receipt
of the vaccines, he had experienced no fever or symptoms of any upper respiratory infection. Id.
at 63–64.
Then, the week prior to presentation in the hospital, K.J. received his four-month and six-
month catch-up immunizations—meaning he received seven vaccinations at one time. Tr. at 43;
Neira Rep. at 3, 6. The fact that K.J. received so many at once likely caused energy depletion,
which could result in the brain injuries and insults seen in K.J.’s initial MRI. Tr. at 41. Dr. Neira
could not identify one particular vaccine as causal—admitting that it was out of her immediate
area of expertise— but reiterated her view that the receipt of so many vaccinations in one day
inevitably caused much more stress on the body than the receipt of only one. Id. at 39, 44; Neira
Rep. at 7.
K.J.’s subsequent history showed obvious clinical deterioration. Tr. at 34; 57. In this period
of time, he had an extensive workup at the hospital, with several medical teams involved, finding
no additional explanation for his symptoms. Tr. at 40. Dr. Neira highlighted the fact that K.J.’s
clinical symptoms came on in an acute rather than progressive manner. Id. at 51. Thus, he suddenly
developed ataxia, and then his neurologic exam changed from baseline to having decreased muscle
tone and different reflexes. Id. The unexpected and severe way K.J.’s symptoms presentation
manifested were consistent with an immediately-prior environmental trigger—here, the vaccines.
Dr. Neira admitted that K.J.’s course was consistent with his genetic disease, regardless of
the alleged vaccine trigger. Tr. at 56. Indeed, K.J.’s underlying genetic mutation was what
ultimately created his symptoms – but, Dr. Neira stressed, the vaccines were responsible for setting
their deleterious effects into motion. Id. at 57. She also explained that the “relapse” K.J. seemed
to have experienced in April 2017 was not unusual, given that patients can have additional
encephalopathic episodes every time there is an additional stressor. Id. at 59. And, in fact, K.J.’s
MRI had already shown signs of necrosis, which means dead tissue of his brain. Id. Therefore, a
subsequent more severe or more acute presentation was unsurprising, even if it was not itself also
triggered by vaccination in the same way as K.J.’s initial presentation. Id. But once the vaccines
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had first “unmasked” K.J.’s underlying BTRBGD, further deterioration was to be reasonably
expected. Id.
D. Petitioners’ Expert—James E. Carroll, M.D.
Dr. Carroll provided two expert reports in this matter but did not testify. See Report, filed
Sept. 25, 2019 as Ex. 20 (ECF No. 20-3) (“First Carroll Rep.”); Report, filed April 3, 2020 as Ex.
21 (ECF No. 22) (“Second Carroll Rep.”).
Dr. Carroll obtained his bachelor’s degree and his medical degree from the University of
Louisville. First Carroll Rep. at 1. He completed a pediatrics internship and residency at Louisville
Children’s Hospital. Id. Dr. Carroll served as a Lt. Commander in the U.S. Navy at Bethesda Naval
Hospital after which he completed a pediatric neurology fellowship at the University of Colorado
Medical Center. Id. He also completed a neuromuscular diseases fellowship at Washington
University, St. Louis, Missouri. Id. Dr. Carroll is board certified in neurology with special
competence in child neurology and was an associate professor of Pediatrics and Neurology at
Washington University and at the Medical College of Georgia. Id. at 2. Since 1999, Dr. Carroll
has been a research biologist at the Veterans Administration Hospital in Augusta, Georgia. Id. He
has authored and co-authored approximately one hundred peer-reviewed medical journal articles
and several book chapters and monographs. Id. He has maintained an active pediatric neurology
clinic, seeing patients both in office and inpatient. Id.
Dr. Carroll’s first report was prepared and filed before the discovery of K.J.’s genetic
mutation. Based on a review of the relevant medical records, Dr. Carroll opined that the MMR
vaccine caused KJ to experience an encephalitis, manifesting in the neurologic symptoms
documented in the record. First Carroll Rep. at 10–12. He expressly disclaimed that any genetic
defect could explain this proposed encephalitis. Id. at 12. Although Petitioners have not formally
abandoned the opinion expressed therein, I find that the discovery of the mutation, coupled with
both testifying expert’s embrace of the BTRBGD diagnosis, greatly reduces the evidentiary value
of this report, and thus do not give it further discussion or attention.
In his second, shorter report, Dr. Carroll opined that it was unlikely that K.J. suffered from
a progressive genetic syndrome, such as Leigh syndrome,4 but that whatever he had experienced
was likely triggered by the January 2017 vaccines. Second Carroll Rep. at 1. He also took aim at
4 Leigh syndrome is a subacute necrotizing encephalomyelopathy. Dorland's Illustrated Medical Dictionary (33d ed.
2020) at 531 [hereinafter Dorland's]. Respondent’s Expert, Dr. Raymond, explained Leigh syndrome’s clinical
features, which include “ataxia, hypotonia, spasticity, optic atrophy, nystagmus, ophthalmoplegia (eye movement
abnormalities), abnormal respiration patterns, and the loss of previously-acquired skills. There is often lactic acidosis
of the blood, cerebrospinal fluid, and urine, although this is not always present. The classic form of Leigh has onset
in infancy and is rapidly progressive to death in 5 years after onset.” See Report, filed Jan. 1, 2020 as Ex. A (ECF No.
21-1) (“First Raymond Rep.”) at 8–9.
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contentions in the reports of Respondent’s expert about K.J.’s course. Id. at 2. And he briefly
referenced the genetic testing results, accepting that they corroborated the conclusion that K.J.’s
symptoms were attributable to a “thiamine deficiency” associated with the SLC19A3 genetic
variant, but maintained nevertheless that vaccination could trigger it, referencing treater evidence
in support. Id. at 4–5.
E. Respondent’s Expert—Gerald Vincent Raymond, M.D.
Dr. Raymond provided two expert reports in this matter and testified at the hearing. See
Report, filed Jan. 1, 2020 as Ex. A (ECF No. 21-1) (“First Raymond Rep.”); Report, filed Sept.
14, 2020 as Ex. C (ECF No. 30-1) (“Second Raymond Rep.”); Tr. 66–167. Dr. Raymond opined
that K.J.’s progressive genetic neuro-degenerative disorder (reasonably diagnosed as BTRBGD)
was not caused or exacerbated by his January 17, 2017 vaccinations, but rather constituted a
condition he was born with. Tr. at 126.
Dr. Raymond obtained his medical degree from the University of Connecticut. Curriculum
Vitae, filed as Ex. B (ECF No.21-6) (“Raymond CV”); Tr. at 66. He then did a residency in
pediatrics at Johns Hopkins followed by a three-year residency in neurology with special
qualifications in child neurology at Massachusetts General Hospital. Id. at 66–67. Dr. Raymond
also completed a fellowship at the Université Catholique do Louvain in Brussels specializing in
developmental neuropathology. Id. at 67. Following his fellowship, he returned to Massachusetts
General and Harvard where he completed a three-year fellowship in genetics and teratology. Id.
Dr. Raymond is board certified in neurology with special qualifications in child neurology as well
as clinical genetics. Raymond CV at 1. Currently, Dr. Raymond is employed at Johns Hopkins
University Hospital where he is a professor of genetic medicine and neurology. Tr. at 67.
Approximately 75 to 80 percent of his work is clinical, attending to inpatient service and working
in the Kennedy Krieger neurogenetics clinic. Id. at 67–68. Dr. Raymond has also published
numerous peer-reviewed articles in pediatric neurology and clinical genetics. Id. at 68.
Dr. Raymond began his testimony by giving some basic background on the relationship
between the SLC19A3 gene and thiamine uptake in the body (and the brain in particular). Tr. at
66. As a general matter, a gene is an inherited unit composed of DNA, with a sequence of
nucleotides that encodes a protein or, in some cases, nonprotein RNA. Id. Thiamine, a cofactor
sometimes referred to as a vitamin, is needed for the enzymatic action of a variety of biochemical
occurrences in the body (and thus its absence in the body has biochemical significance). Id. at 73.
Thiamine is particularly important in glucose metabolism, mitochondrial energy production (via
the Krebs cycle), and several other key energy-releasing processes. Id. Thus, without thiamine the
body will have a defect in the alpha-oxidation of certain forms of lipids interfering with the body’s
ability to utilize energy from lipid stores. Id.
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The SLC19A3 gene, Dr. Raymond explained, is essential for assisting the transport of
thiamine across cell membranes and into the brain. Tr at 72–73. As a result, a defect or mutation
in that gene impairs thiamine transport, and in so doing results in harm. Such a thiamine-related
genetic disorder can have a variety of presentations. Id. at 77. It can, for example, have an infantile
presentation, which will appear like Leigh syndrome, or it can have an adult form which can look
a little bit like Wernicke’s encephalopathy.5 Id. The classic presentation, however, is referred to
as BTRBGD, and is generally deemed a progressive neurological disease responsive to biotin
(vitamin B ) and thiamine. Id. at 78.6 Its presumed pathogenesis is attributable to a defective
7
thiamine transporter, likely the result of a genetic mutation. Tr. at 86. Since such transporters have
particular significance to ensuring energy production in the brain, BTRBGD will typically
manifest with symmetric basal ganglia disease, while also involving other areas of the brain. Id. at
86–87; Second Raymond Rep. at 7.
Dr. Raymond offered and discussed two items of literature that shed light on BTRBGD’s
presentation or possible causes. See, e.g., P. Ozand et al., Biotin-Responsive Basal Ganglia
Disease: A Novel Entity, 121 Brain 1267–79 (1998), filed as Ex. C, Tab 6 on Sept. 14, 2020 (ECF
No. 30-7) (“Ozand”). Ozand considered ten individuals, ranging from ages two through seven
years old, and their disease course, and concluded that BTRBGD commonly appears as a subacute
encephalopathy but progresses into dystonia and quadriparesis.7 Ozand at 1267. These symptoms
were found to disappear within a few days, however, if biotin was administered, with neurological
sequelae reappearing within one month if biotin was discontinued. Id. Ozand’s authors could not
identify the disease’s etiology but stressed the importance of biotin therapy in reversing and
preventing symptom progression. Id. Dr. Raymond made a point of highlighting one asymptomatic
patient in the study who was identified because of a symptomatic sibling. Tr. at 78. An MRI for
this patient revealed evidence of basal ganglia disease despite the lack of symptoms – and Dr.
Raymond deemed this significant because it suggested to him that BTRBGD would likely progress
subacutely, and prior to a presumed trigger. Id.
5 Wernicke encephalopathy may often intertwine with Wernicke-Korsakoff syndrome, a “behavioral disorder caused
by thiamine deficiency, most commonly due to chronic alcohol abuse and associated with other nutritional
polyneuropathies. Wernicke encephalopathy (confusion, ataxia of gait, nystagmus, and ophthalmoplegia) occurs as an
acute attack and is reversible, except for some residual ataxia or nystagmus, by administration of thiamine; Korsakoff’s
syndrome (severe anterograde and retrograde amnesia) may occur in conjunction with Wernicke encephalopathy or
may become apparent later; only about 20 per cent of patients recover completely from the amnesia.” Dorland's at
1824.
6 Dr. Raymond also discussed how treatment of the disorder has evolved over time. Tr. at 81. While initially
researchers believed that biotin was the only, or at least preferred, treatment, more recent research had established that
thiamin alone is sufficient. Id. at 81–82.
7 Dystonia is “dyskinetic movements due to disordered tonicity of muscle.” Dorland's at 576. Quadriparesis, also
called tetraparesis, is “muscular weakness affecting all four limbs” Id. at 1877.
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By contrast, another study cited by Dr. Raymond observed a preceding, potentially-
triggering event, including viral infection or vaccination, in six patients shortly before onset of
early-infantile encephalopathies due to SLC19A3 gene mutation. Tr. at 78; S. Kevelam et al.,
Exome Sequencing Reveals Mutated SLC19A3 in Patients with an Early Infantile, Lethal
Encephalopathy, 136 Brain 1534–1543 (2013), filed as Ex. C, Tab 3 on Sept. 14, 2020 (ECF No.
30-4) (“Kevelam”). But despite the suggestion in Kevelam that many of these encephalopathies
were triggered by vaccinations, Dr. Raymond proposed that its authors may more likely have relied
on a temporal association rather than proof of a causal relationship. Tr. at 91;8 Kevelam at 1542.
To support his contention that triggers were not critical in the development of SLC19A3-
related disorders like BTRBGD, Dr. Raymond referenced some animal studies. Tr. at 87–89; K.
Suzuki et al., High-Dose Thiamine Prevents Brain Lesions and Prolongs Survival of SLc19a3-
Deficient Mice, PLoS ONE 12 (6): e0180279, http://doi.org/10.1371/journal.pone.0180279 1-17
(June 30, 2017), filed as Ex. C, Tab 19 on Sept. 14, 2020 (ECF No. 31-9) (“Suzuki”); K. Vernau,
et al., Genome-Wide Association Analysis Identifies a Mutation in the Thiamine Transporter 2
(SLC19A3) Gene Associated with Alaskan Husky Encephalopathy, PLOS ONE 8(3): e57195.
Doic.10.1371/journal.pone.0057195 (March 4, 2013), filed as Ex. C, Tab 18 on Sept. 14, 2020
(ECF No. 31-8) (“Vernau”). Vernau demonstrated that a certain form of encephalopathy was
common to Alaskan huskies, who experienced deficiencies in energy production due to thiamine
transporter genetic deficiencies comparable to what humans also experienced. Second Raymond
Rep. at 7; Vernau at 5. Dr. Raymond opined, however, that Vernau and Suzuki established not
only that thiamine was effective in treating the condition, but also that the BTRBGD-like
conditions came about regardless of trigger (including vaccination). Tr. at 88, 89.
Overall, Dr. Raymond did not deny that literature referenced by Petitioners suggested that
a variety of environmental stressors—including vaccines—could trigger “acute episodes” for
children with BTRBGD. Second Raymond Rep. at 7–8; Kevelam at 1538; J.D. Ortigoza-Escobar
et al., Thiamine Deficiency in Childhood with Attention to Genetic Causes: Survival and Outcome
Predictors, 82 Annals Neurology317, 320 (Sept. 10, 2017), filed as Ex. 25, Tab E on July 30, 2020
(ECF No. 28) (“Ortigoza-Escobar”). Indeed, he acknowledged that his own literature emphasized
that “under physiologic stresses” thiamine transport deficiencies attributable to underlying
SLC19A3 genetic mutations could manifest. Second Raymond Rep. at 7 (“decline and clinical
manifestations may occur when the energy required exceeds the background levels and there is an
inability of the altered forms of the transporter to undergo the normal stress-induced expression
and functional compensation”); A. Schanzer et al., Stress-Induced Upregulation of SLC19A3 is
Impaired in Biotin-Thiamine-Responsive Basal Ganglia Disease, 24 Brain Pathol. 270–79 (2014),
filed as Ex. C, Tab 20 (ECF No. 31-10) (“Schanzer”). Schanzer does not discuss vaccination in
8 Dr. Raymond also discounted the apparent conclusions of Kevelam’s authors because of the retrospective aspect of
the study, plus the fact that no data was provided that would shed light on either (a) the specific vaccines at issue, or
(b) the timeframe from vaccination to onset. Tr. at 91.
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particular, but does opine that a febrile illness or infection could constitute sufficient stress to lead
to acute manifestations. Schanzer at 270. Dr. Raymond nevertheless maintained that not enough
was known to conclude that vaccination could in fact act as such an environmental impetus. Second
Raymond Rep. at 8, 10.
Dr. Raymond went on to consider K.J.’s medical history and the diagnoses contained
therein. In the course of the litigation, his opinion changed a bit as to the proper diagnosis, after
the results of K.J.’s genetic testing were obtained in the fall of 2019. His first report was prepared
in response only to Dr. Carroll’s initial report, and it largely proposed that K.J. suffered from an
unidentified “progressive genetic neurodegenerative disorder” that Dr. Raymond felt was
comparable to Leigh syndrome. First Raymond Rep. at 13. By the time of his second report,
however, Dr. Raymond had the benefit of Dr. Neira’s report plus the genetic testing results. Now,
he deemed K.J.’s course and presentation “consistent with” the disorder associated with the
SLC19A3 variant (in effect, BTRBGD). Second Raymond Rep. at 6, 8.
Dr. Raymond next considered the pre-vaccine evidence of K.J.’s neurologic dysfunction.
For example, K.J. failed his newborn hearing screening. Tr. at 142–43; Ex. 5 at 33. Additionally,
K.J. had been hospitalized in June 2016 for treatment of acute bronchiolitis and laryngomalacia.
Tr. at 96. K.J. also had an abnormal swallow study at the time, and Dr. Raymond deemed it
significant because it could indicate preexisting neurologic dysfunction—possibly associated with
low muscle tone and hypotonia. Id. at 96–97. He admitted on cross-examination, however, that
there was no pre-vaccination evidence of clear BTRBGD onset, despite the demonstration of
potential environmental triggers, like fever or other illnesses, having occurred. Id. at 159–61.
Dr. Raymond disagreed with certain post-vaccination evidence that seemed to suggest
treater support for Petitioners’ claim. He specifically took issue with a radiologist’s impression of
a brain and complete spine MRI performed on January 24, 2017. Tr. at 103. While he agreed with
the description of what the imaging literally depicted, he disputed the technician’s impression that
K.J. possibly suffered from “postvaccination autoimmune encephalitis[.]” Id. at 104; Ex. 7 at
3139–3140. Dr. Raymond ultimately proposed that the progressive nature of K.J.’s condition
precluded the conclusion that it could be brought on acutely. Second Raymond Rep. at 8–9.
In addition, although Dr. Raymond accepted the existence of case reports identifying
instances of post-vaccination ADEM as a comparable injury, he denied that “postvaccination
autoimmune encephalitis” was a legitimate pathologic entity. Tr. at 105. Dr. Raymond also
stressed that there was no evidence in the medical records that showed K.J. was at this time
suffering any signs of encephalopathy—either acute or subacute. Id. at 105–107; 116. And while
there are various notes by K.J.’s treaters from early in his treatment including in their differentials
a possible link to vaccination (i.e. “metabolic process like a mitochondrial disease possibly
activated by vaccines” (Ex. 7 at 3276; Tr. at 111), treaters were generally moving away from the
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consideration—which is evidenced by the pursuit of a variety of other possible etiologies. Tr. at
112.
Finally, Dr. Raymond highlighted K.J.’s period of improvement once he was discharged
from the hospital in February 2017 (after responding well to thiamine treatment), contrasting it to
his subsequent April 2017 regression, featuring significant loss of abilities plus significantly
worsened presentation on MRI. Tr. at 122. Dr. Raymond specifically proposed that this occurrence
was the product of a cessation of the thiamine treatments that had initially been so beneficial for
K.J. Second Raymond Rep. at 8–9. This assertion was not, however, supported by any record cite
establishing thiamine cessation to have in fact occurred, and it appears rather than Dr. Raymond
assumed this to be the case based on statements made by Petitioners to a speech language
pathologist in March 2017 about their feeding practices for K.J. at that time.
By this point, Dr. Raymond opined, K.J. was “manifesting some degree of
encephalopathy,” since he was less responsive, and his decline was confirmed by an abnormal
EEG result. Id. at 122. K.J. had now experienced sever developmental loss and was described on
exam as having spastic quadriplegia. Id. at 124. This relapse was significant to Dr. Raymond,
because he felt it demonstrated that K.J.’s decline was overall progressive rather than acute (as
might be expected if the vaccines has truly triggered the BTRBGD). Id. at 125; First Raymond
Rep. at 8.
III. Procedural History
After the case’s initiation in October 2018, Petitioners filed medical records supporting the
claim along with the Statement of Completion. ECF No. 8. Respondent’s Rule 4(c) Report was
filed in April 2019, and then shortly thereafter the case was reassigned to me. ECF No. 12. In
January 2020, Respondent filed Dr. Raymond’s expert report. ECF No. 21. Later that year, in
April, Petitioners filed Dr. Carroll’s expert report. ECF No. 22. I set the matter for a hearing, to be
held March 4–5, 2021. ECF No. 26. Prior to the hearing, Petitioners filed Dr. Neira’s expert report
in July 2020, and Respondent filed Dr. Raymond supplemental expert report in September 2020.
ECF Nos. 28, 30. The trial occurred as scheduled, and both parties filed post hearing briefs in July
2021. ECF Nos. 40–41. The matter is now ripe for resolution.
IV. Applicable Law
A. Standards for Vaccine Claims
To receive compensation in the Vaccine Program, a petitioner must prove that: (1) they
suffered an injury falling within the Vaccine Injury Table (i.e., a “Table Injury”); or (2) they
suffered an injury actually caused by a vaccine (i.e., a “Non-Table Injury). See Sections
13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; § 11(c)(1)(C)(ii)(I); see also
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Moberly v. Sec'y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano, 440
F.3d at 1320. To bring a successful Table claim, the petitioner must make a precise factual showing
sufficient to meet the Table's relevant definitions, as set forth in the Table's “Qualifications and
aids to interpretation” (“QAIs”). Section 14(b). If successful, the petitioner need not establish
vaccine causation, as it is presumed if the Table requirements for a particular claim are met. Section
14(a). In this case, the Petitioners assert both a Table and non-Table claim.
For both Table and Non–Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact's
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (explaining that mere conjecture or speculation is insufficient under a
preponderance standard). On one hand, proof of medical certainty is not required. Bunting v. Sec'y
of Health & Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). But on the other hand, a petitioner
must demonstrate that the vaccine was “not only [the] but-for cause of the injury but also a
substantial factor in bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface v.
Sec'y of Health & Hum. Servs., 165 F.3d 1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec'y of
Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). A petitioner may not receive a
Vaccine Program award based solely on his assertions; rather, the petition must be supported by
either medical records or by the opinion of a competent physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non–Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Sec’y of Health and Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): “(1) a
medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause
and effect showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.” Each Althen prong requires a
different showing and is discussed in turn along with the parties’ arguments and my findings.
Under Althen prong one, petitioners must provide a “reputable medical theory,”
demonstrating that the vaccine received can cause the type of injury alleged. Pafford, 451 F.3d at
1355–56 (citations omitted). To satisfy this prong, a petitioner's theory must be based on a “sound
and reliable medical or scientific explanation.” Knudsen v. Sec'y of Health & Hum. Servs., 35 F.3d
543, 548 (Fed. Cir. 1994). Such a theory must only be “legally probable, not medically or
scientifically certain.” Id. at 549.
However, the Federal Circuit has repeatedly stated that the first prong requires a
preponderant evidentiary showing. See Boatmon v. Sec'y of Health & Hum. Servs., 941 F.3d 1351,
1360 (Fed. Cir. 2019) (“[w]e have consistently rejected theories that the vaccine only “likely
caused” the injury and reiterated that a “plausible” or “possible” causal theory does not satisfy the
standard”); see also Moberly v. Sec'y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed. Cir.
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2010); Broekelschen v. Sec'y of Health & Hum. Servs., 618 F.3d 1339, 1350 (Fed. Cir. 2010). This
is consistent with the petitioner’s ultimate burden to establish his overall entitlement to damages
by preponderant evidence. W.C. v. Sec'y of Health & Hum. Servs., 704 F.3d 1352, 1356 (Fed. Cir.
2013) (citations omitted). If a claimant must overall meet the preponderance standard, it is logical
that they be required also to meet each individual prong with the same degree of evidentiary
showing (even if the type of evidence offered for each is different).
Petitioners may offer a variety of individual items of evidence in support of the first Althen
prong, and are not obligated to resort to medical literature, epidemiological studies, demonstration
of a specific mechanism, or a generally accepted medical theory. Andreu v. Sec'y of Health & Hum.
Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing Capizzano, 440 F.3d at 1325–26). No one
“type” of evidence is required. Special masters, despite their expertise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
thus scientific evidence offered to establish Althen prong one is viewed “not through the lens of
the laboratorian, but instead from the vantage point of the Vaccine Act's preponderant evidence
standard.” Andreu, 569 F.3d at 1380. But even though “scientific certainty” is not required to
prevail, the individual items of proof offered for the “can cause” prong must each reflect or arise
from “reputable” or “sound and reliable” medical science. Boatmon, 941 F.3d at 1359–60.
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec'y of Health & Hum. Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party's treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec'y of Health & 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”); Snyder v. Sec'y of Health & Hum. Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is
nothing . . . that mandates that the testimony of a treating physician is sacrosanct—that it must be
accepted in its entirety and cannot be rebutted”). As with expert testimony offered to establish a
theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the
reasonableness of their suppositions or bases. The views of treating physicians should also be
weighed against other, contrary evidence also present in the record—including conflicting
opinions among such individuals. Hibbard v. Sec'y of Health & Hum. Servs., 100 Fed. Cl. 742,
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749 (2011) (not arbitrary or capricious for special master to weigh competing treating physicians'
conclusions against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec'y of 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, 356–57 (2011), aff'd without opinion, 475 F. 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., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Hum. Servs., No. 11–
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).
B. Law Governing Analysis of Fact Evidence
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [ ] relevant medical and scientific evidence contained in the record,” including
“any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained
in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability,
injury, condition, or death,” as well as the “results of any diagnostic or evaluative test which are
contained in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous medical
records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (determining that 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).
As noted by the Federal Circuit, “[m]edical records, in general, warrant consideration as
trustworthy evidence.” Cucuras, 993 F.2d at 1528; Doe/70 v. Sec'y of Health & Hum. Servs., 95
Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner's testimony and his
contemporaneous medical records, the special master's decision to rely on petitioner's medical
records was rational and consistent with applicable law”), aff'd, Rickett v. Sec'y of Health & Hum.
Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). A series of linked
propositions explains why such records deserve some weight: (i) sick people visit medical
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professionals; (ii) sick people attempt to 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); Cucuras v. Sec'y of Health & Hum.
Servs., 26 Cl. Ct. 537, 543 (1992), aff'd, 993 F.2d at 1525 (Fed. Cir. 1993) (“[i]t strains reason to
conclude that petitioners would fail to accurately report the onset of their daughter's symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie 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 often found to be deserving of greater evidentiary weight than oral testimony—especially
where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also
Murphy 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. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.”)).
However, the Federal Circuit has also noted that there is no formal “presumption” that
records are accurate or superior on their face to other forms of evidence. Kirby v. Sec’y of Health
& Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). There are certainly 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. La Londe v. Sec'y of Health
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& 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 often requires a petitioner to present
expert testimony in support of his 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).
Under Daubert, the 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).
In the Vaccine Program the Daubert factors play a slightly different role than they do when
applied in other federal judicial settings, like the district courts. Typically, Daubert factors are
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable or could confuse a jury. By contrast, in Vaccine Program cases these factors are
used in the weighing of the reliability of scientific evidence proffered. 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”). The flexible use of the Daubert factors to evaluate the
persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88
Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases), Daubert has not
been employed at the threshold, to determine what evidence should be admitted, but instead to
determine whether expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts in order to rebut a petitioner’s case.
Where both sides offer expert testimony, a special master's decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen 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
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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. 146 (1997)); see also Isaac v. Sec'y of Health & Hum.
Servs., No. 08–601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30, 2012), mot. for
review den'd, 108 Fed. Cl. 743 (2013), aff'd, 540 F. App’x. 999 (Fed. Cir. 2013) (citing Cedillo,
617 F.3d at 1339). Weighing the relative persuasiveness of competing expert testimony, based on
a particular expert's credibility, is part of the overall reliability analysis to which special masters
must subject expert testimony in Vaccine Program cases. Moberly, 592 F.3d at 1325–26
(“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”);
see also Porter v. Sec'y of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this court
has unambiguously explained that special masters are expected to consider the credibility of expert
witnesses in evaluating petitions for compensation under the Vaccine Act”).
D. Consideration of Medical Literature
Both parties filed medical and scientific literature in this case, but not all such items factor
into the outcome of this decision. While I have reviewed all the medical literature submitted in this
case, I discuss only those articles that are most relevant to my determination and/or are central to
petitioner’s case—just as I have not exhaustively discussed every individual medical record filed.
Moriarty v. Sec'y of Health & Hum. Servs., No. 2015–5072, 2016 WL 1358616, at *5 (Fed. Cir.
Apr. 6, 2016) (“[w]e generally presume that a special master considered the relevant record
evidence even though he does not explicitly reference such evidence in his decision”) (citation
omitted); see also Paterek v. Sec'y of Health & Hum. Servs., 527 F. App’x 875, 884 (Fed. Cir.
2013) (“[f]inding certain information not relevant does not lead to—and likely undermines—the
conclusion that it was not considered”).
ANALYSIS
Both testifying experts agreed that K.J. possesses a genetic variant that has played a role in
causing him to experience BTRBGD—a thiamine-transporting deficiency resulting in clear
neurologic deficits and other negative symptoms. They disagreed, however, whether vaccines can
cause BTRBGD to manifest, and also whether the facts of this case are sufficient to meet the
evidentiary requirements relevant to both Table and non-Table Program claims. Below, I address
the disputed issues of fact and law.
I. Petitioners Have Not Established a Table Encephalopathy
Previously in the course of litigation I informed Petitioners that I did not deem their Table
MMR vaccine-encephalopathy claim to be particularly strong. Petitioners, however, opted to
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persist in asserting it as a basis for liability. Now, having heard the evidence at trial, I find that my
preliminary views were correct, and the Table claim warrants dismissal.
According to the QAI applied to vaccine Table claims, a vaccinee is considered to have
suffered a Table encephalopathy if he or she manifests an injury encompassed in the definition of
an “acute” encephalopathy within the appropriate time period, and then a “chronic”
encephalopathy is present for more than six months after the immunization. 42 C.F.R. §
100.3(b)(2) (emphasis added). In accordance with the QAI, an acute encephalopathy without
seizure for infants under 18 months old (which would here include K.J.) must be sufficiently severe
to require hospitalization (regardless of whether the vaccinee is actually hospitalized), and it must
manifest within 5 to 15 days of vaccination. 42 C.F.R. §§ 100.3(a) and (b)(2)(i)(1). A chronic
encephalopathy exists if the change in mental state that began with the acute encephalopathy
persists for at least six months. 42 C.F.R. § 100.3(d)(1)(i). However, there is the express caveat
that
Individuals who return to their baseline neurologic state, as confirmed by clinical
findings, within less than 6 months from the first symptom or manifestation of onset or of
significant aggravation of an acute encephalopathy or encephalitis shall not be presumed
to have suffered residual neurologic damage from that event; any subsequent chronic
encephalopathy shall not be presumed to be a sequela of the acute encephalopathy or
encephalitis.
42 C.F.R. § 100.3(d)(1)(ii).
Petitioners cannot meet these strict requirements for their Table claim. First, and most
importantly, the record clearly establishes that K.J.’s post-vaccination symptoms manifested
outside the 5-15 day timeframe. The record establishes onset of K.J.’s weakness, lethargy, and
difficulty moving on January 21, 2017 – four days post-vaccination. Ex. 7 at 3107. This is too soon
to meet the Table requirement, even if by a single day. See generally Greene v. Sec'y of Health &
Hum. Servs., No. 11-631V, 2019 WL 4072110, at *18 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (noting
that a risk interval concept to expand the window of a Table Claim for a brachial neuritis injury
after receipt of a tetanus vaccine beyond the six-week timeframe by one day did not support a
medically acceptable onset timeframe), mot. for review den’d, 146 Fed. Cl. 655 (2020), aff'd, 841
F. App'x 195 (Fed. Cir. 2020).
Second, there is an absence of treater support for the conclusion that K.J.’s presentation in
January 2017 reflected the existence of an acute encephalopathy or encephalitis (either of which
are subject to the same Table requirements. 42 C.F.R. § 100.3(a)(II)(B)). While the possibility of
encephalitis was included in his initial differentials, treaters ultimately opined he more likely
suffered from some form of mitochondrial/energy production disorder – and in fact his BTRBGD
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is far more consistent with such a preliminary diagnosis than an acute encephalopathy. Ex. 7 at
3197. Finally, even if K.J.’s initial symptoms were found to be the product of an acute
encephalopathy, the record does not allow me to conclude his subsequent state resulted from an
ongoing chronic encephalopathy. Indeed, he came back to baseline in terms of symptoms not long
after his first manifestations of symptoms. Ex. 7 at 56. Rather, he had a neurologic disorder
attributable to an underlying genetic variant that caused concerning and damaging symptoms –
and that harm is not “encephalopathic,” as far as the Table goes, simply because it involves the
brain.
Accordingly, Petitioners’ Table claim is dismissed.
II. Petitioners Have Established Causation in Fact
Petitioners’ inability to meet the requirements of their Table claim leaves only a causation-
in-fact claim that the multiple vaccines K.J. received in January 2017 somehow precipitated the
manifestation of a neurologic disorder otherwise attributable to the SLC19A3 genetic variant.
Although Petitioners’ showing was far from robust, the evidence was sufficiently close for me to
find that the preponderant test for establishing entitlement was met overall.
A. Althen Prong One
The evidence offered for the contention that vaccines could trigger a child’s preexisting
SLC19A3 mutation by causing stress was quite thin – but just preponderant enough to meet
Petitioners’ burden.9 Dr. Neira, a qualified geneticist as well as one of K.J.’s treaters, opined about
the causal role of the vaccines – and her opinion was backed up by several items of literature, as
well. Alfadhel & Tabarki at 83; Kevelam at 1542; Ortigoza-Escobar at 321; Schanzer at 270. In
effect, Petitioners seem to allege that the vaccines K.J. received would (likely via some innate
response, rather than a longer-term adaptive response, in which a vaccine’s specific antigens would
immunologically cause a cross-reaction) set the thiamine transport deficiency into motion.
Admittedly, this is not a case where the evidentiary support for the claimant’s causation
theory easily crosses the preponderance “line.” The statements from articles like Ortigoza-Escobar
or Kevelam associating vaccination to BTRBGD are facially conclusory, with little background
information provided to evaluate their basis or ascertain if the risk is higher or lower for different
vaccines. But at the same time, this is also not a case where Respondent can do more than declaim
9 In so concluding, I do not adopt Petitioners’ erroneous contention that mere plausibility is the standard to be applied
when evaluating success as to the first Althen prong. The Federal Circuit has consistently reiterated that the first prong
must meet the preponderant standard. Boatmon, 941 F.3d at 1360; McCollum v. Sec'y of Health & Hum. Servs., 760
F. App'x 1003, 1007 (Fed. Cir. 2019).
.
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that Petitioners have not themselves proven their case – and while such a defense can have
substance when the claimant over-relies on generalities, it does not invariably succeed.
More significantly, the limited scientific knowledge base pertaining to BTRBGD generally
is also harmful to Respondent’s defense. The experts herein agreed that BTRBGD has its origins
as a genetic mutation causing thiamine transport malfunction, and resulting in turn in energy
production deficits. But can it be concluded that when the relevant mutation exists, the result is
preordained – or can manifestation of the error caused by mutation be hastened, worsened, or
simply “unmasked” after an environmental stimulation, like a vaccine? In somewhat comparable
Program cases (such as seizure disorders, like Dravet syndrome, attributable to the SCN1A genetic
mutation), there exists direct, on-point literature suggesting that the anticipated disease course
otherwise attributable to the mutation/variant is not impacted by vaccination—even if vaccination
can temporarily produce a symptoms “flare.” See, e.g., Oliver v. Sec'y of Health & Hum. Servs.,
No. 10-394V, 2017 WL 747846 (Fed. Cl. Spec. Mstr. Feb. 1, 2017), mot. for review den’d, 133
Fed. Cl. 341 (2017), aff'd, 900 F.3d 1357 (Fed. Cir. 2018). Indeed, the special master in Oliver
found that the causal link between the relevant genetic mutation and the seizure disorder was
directly supported by literature that discounted the importance of an intervening environmental
factor like vaccination. Oliver, 2017 WL 747846, at *15. Such rebutting evidence was thus strong
enough to overcome the claimant’s position that a vaccine played some role in sparking symptoms
unquestionably linked to the mutation. See Deribeaux ex rel. Deribeaux v. Sec'y of Health & Hum.
Servs., No. 05-306V, 2011 WL 6935504, at *32 (Fed. Cl. Spec. Mstr. Dec. 9, 2011), review denied,
decision aff'd, 105 Fed. Cl. 583 (2012), aff'd, 717 F.3d 1363 (Fed. Cir. 2013).
Here, no such rebuttal evidence has been offered (and may well not even yet exist for the
SLC19A3 mutation) other than Dr. Raymond’s testimony. And his opinion seemed to over-rely
on his determination that there was an absence of scientific certainty favoring vaccine causation –
an evidentiary standard inapplicable to Program claims, even if a medical professional or scientist
would remain personally unconvinced (and reasonably so) by a special master’s entitlement
decision favoring a particular theory. Indeed, Dr. Raymond freely acknowledged that a variety of
environmental stressors were understood by medical science to be capable of taxing an affected
individual’s thiamine transport system sufficiently to cause manifestation of BTRBGD, and cited
reliable literature for this point. See Schanzer at 278–79. And he noted in his second report that
vaccination had been implicated in triggering clinical manifestations of BTRBGD. Second
Raymond Rep. at 7. He thus could not credibly deny that the causation theory offered in this case
exceeded mere plausibility.
Time and again, special masters are reminded that close calls are to be decided in a
petitioner’s favor. Roberts. v. Sec'y of Health & Hum. Servs., No. 09-427V, 2013 WL 5314698, at
*10 (Fed. Cl. Spec. Mstr. Aug. 29, 2013). That is the case not only when both sides offer numerous
items of persuasive and compelling evidence, but also where the evidence is quite limited (often
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because the disease process at issue is novel and/or under-studied). Andreu, 569 F.3d at 1378–79.
Although future cases may present updated evidence on the topic that weighs in favor of a different
outcome, the evidence presented in this case is sufficient to find that the “can cause” prong has
been met.
B. Althen Prong Two
I also find just enough support to establish a logical sequence of cause and effect from
vaccine to injury. Both the record itself and Dr. Neira’s testimony bulwark this conclusion. The
Program recognizes that treating physicians are in a good position to opine that a vaccination was
the reason for the injury. Capizzano, 440 F.3d at 1326. Dr. Neira provided treatment to K.J.,
demonstrated awareness of his clinical progression in her report, and engaged in an inquiring effort
to identify the cause and nature of K.J.’s symptoms by running whole genome sequencing tests to
cover every known genetic disorder in the human body. Thus, Dr. Neira’s view that the stress
induced by the vaccines caused a manifestation of BTRBGD is entitled to additional weight in
favor of Petitioners’ claim. Moreover, Dr. Trasmonte also allowed for this possibility as well (so
Dr. Neira was not the sole treater to propose an association between vaccine and injury). Ex. 11 at
37–38.
Respondent did attempt to bulwark his position that the genetic mutation best explained
K.J.’s BTRBGD by highlighting the fact that he experienced a relapse of sorts in April 2017. Ex.
11 at 33. Dr. Raymond speculates that this occurred because K.J. was no longer receiving thiamine,
as he did earlier that year, and this shows the kind of actual environmental impacts that would
trigger clinical manifestations. But this argument has two deficiencies.
First, the experts agreed that a thiamine transport deficiency (attributable to the genetic
mutation directly) precipitates symptoms. But this does not mean that other environmental factors
could not first stress the system sufficiently to cause the condition’s general unmasking (by
instigating the transport issue), and thus initiating the overall problem.10 Indeed, as Petitioners
noted, K.J. experienced other potential stressors prior to vaccination, but those environmental
impacts did not similarly cause the same clinical symptoms. Ex. 7 at 167; Neira Rep. at 6; Second
Raymond Rep. at 10. And as noted above, Dr. Raymond himself offered literature that suggested
(albeit in a somewhat conclusory fashion) vaccines could have this impact on someone with
BTRBGD.
Second, Dr. Raymond’s contention regarding the cause of the relapse is not fully
corroborated by the record. Although there is evidence that certain feeding-related matters, like a
10 However, to the extent incomplete or inadequate treatment might best explain some of K.J.’s post-vaccination
symptoms flares or relapses, such matters do bear on recoverable damages, and I will take such issues into account in
the damages phase of the case.
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feeding tube, had been suspended by Petitioners prior to this relapse, the record does not allow me
to conclude that thiamine-specific treatments had been suspended – or if so when. His speculation
on this point was certainly reasonable (as was his suspicion that K.J.’s pre-vaccination health
issues could be harbingers of his later BTRBGD) – but it was not substantiated by record evidence,
and thus is not enough to go on for purposes of deciding this case.
C. Althen Prong Three
Neither side has presented a particularly powerful case regarding the “medical
acceptability” of the timeframe between K.J.’s vaccinations and onset of his BTRBGD initial
symptoms. Petitioners’ experts seemed to emphasize the close temporal relationship between
K.J.’s vaccines and the onset of his symptoms (First Carroll Rep. at 11; Neira Rep. at 2–3)—
something understood in the Program to be an insufficient basis for finding the third Althen prong
satisfied. de Bazan, 539 F.3d at 1352. But in attacking this aspect of Petitioners’ showing, Dr.
Raymond predominantly relied on record evidence of K.J.’s intervening improvements that
occurred during March and April of 2017. First Raymond Rep. at 12–13. This contention largely
ignores the primary question posed by this part of the entitlement test: whether the relationship
between initial symptoms and vaccination was acceptable in light of the alleged causation theory.
de Bazan, 539 F.3d at 1352.
A careful evaluation of Petitioners’ expert opinions, however, allows me to conclude that
this prong (like the two before it) was met, if barely. Dr. Neira was both a qualified geneticist and
treater, and I give weight to her opinion (based on both the genetic testing and K.J.’s overall
medical history) that K.J.’s BTRBGD was likely sparked in the four days after vaccination. Neira
Rep, at 6; see also Prehearing Brief at 8–9. Her opinion gained additional heft from the medical
literature offered in this case. Alfadhel & Tabarki at 91; Kevelam at 1539; Ortigoza-Escobar at
320. Although such literature does not contain a specific temporal prediction of expected onset of
BTRBGD after an environmental stressor, it is consistent with the conclusion that onset could
reasonably occur within days. Kevelam at 1541–42 (indicating that when there is a cerebral MRI
abnormality, such as in BTRBGD cases, it indicates rapid onset) (emphasis added). And the theory
offered in this case is consistent with other vaccine cases in which the stress impact of a large
number of vaccines administered at once, or a particularly potent vaccine, might (via the body’s
innate immune reaction) cause a reaction within days. See, e.g., Halverson v. Sec'y of Health &
Hum. Servs., No. 15-227V, 2020 WL 992588, at *27 (Fed. Cl. Spec. Mstr. Feb. 4, 2020) (finding
that there was a temporal relationship between receipt of the fluzone vaccine and the developing
injury that caused petitioner’s death four days after vaccination); see also Gerhardt v. Sec'y of
Health & Hum. Servs., No. 9-180V, 2014 WL 4712690, at *12 (Fed. Cl. Spec. Mstr. Aug. 29,
2014) (petitioner established a proximate temporal relationship between receiving five vaccines
and the onset of his neurologic symptoms three days later).
27

Case 1:18-vv-01538-UNJ Document 44 Filed 10/25/21 Page 28 of 28
Respondent in reaction did not rebut this conclusion. Thus, I find the third Althen prong
was met.
CONCLUSION
As I have noted in other cases, Vaccine Program claimants can prevail despite the fact that
considerable uncertainty remains that they are in fact correct. “More likely than not” is an inexact
measurement of causation, to say the least.
Because of the rarity of the underlying genetic condition and lack of substantial research
into its pathophysiology, there remains much to learn about BTRBGD. It is conceivable that a
stronger showing by Respondent, relying on more up-to-date research into how this disease
progresses and what causes it to manifest in the first place, could cast doubt on my conclusion
herein – and result in an entirely different outcome in future cases. However, I find sufficient
preponderant evidence was offered in this case to support Petitioners’ contention that the receipt
of several vaccines at one time could trigger SLC19A3 variants, and did so here. Thus, I must
conclude on the basis of Petitioners’ showing that they have met their evidentiary burden, even if
that showing was not overwhelming.
In order to guide the parties through the damages phase of the action, a separate damages
order will issue.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
28

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-01538-1
Date issued/filed: 2024-03-25
Pages: 24
Docket text: PUBLIC DECISION (Originally filed: 2/27/2024) regarding 69 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (ag) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 1 of 24
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1538V
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
*
DURENDA WHITEHEAD and *
KEYNARD SHAWTELL JOHNSON, SR., *
on behalf of KSJ, JR, * Chief Special Master Corcoran
*
Petitioners, * Filed: February 27, 2024
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Julius Vincent Cook, Cook & Tolley, LLP, Athens, GA, for Petitioner.
Zoe Wade, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 4, 2018, Durenda Whitehead and Keynard Shawtell Johnson filed a petition
on behalf of their minor son, K.S.J., Jr. (“K.J.”) seeking compensation under the National Vaccine
Injury Compensation Program.2 (ECF No. 1). Petitioners alleged that K.J. suffered vaccine-
induced seizures and encephalopathy as a result of receiving the measles, mumps, rubella, and
varicella vaccine on January 17, 2017. Petition at 1. Alternatively, they alleged that receipt of
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). 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 whole decision will
be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 2 of 24
several vaccines ((including the influenza, hepatitis A, diphtheria, tetanus, acellular pertussis,
hepatitis B, inactivated polio vaccine, haemophilus influenza type B, and pneumococcal conjugate
(“PCV12”) vaccines) on January 17, 2017 caused K.J. to suffer the “activation of his SLC19A3
gene variant” leading him to experience an “SLC19A3-related encephalopathy.” Petitioner’s
Prehearing Brief, filed Nov. 19, 2020 (ECF No. 32).
I held an entitlement hearing in the matter, and found in favor of Petitioners. Ruling on
Entitlement. (ECF No. 42). On January 5, 2024, Respondent filed a proffer proposing an award of
compensation. (ECF No. 59). I have reviewed the file, and based upon that review I conclude that
the Respondent’s proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in
awarding damages on the terms set forth therein.
The proffer awards:
• A lump sum payment of $1,616,572.94 representing compensation for pain and
suffering ($250,000.00), life care expenses for the first year after judgment
($251,934.06) and future lost earnings ($1,114,638.88), in the form of a check payable
to Petitioners as guardians/conservators of K.J.’s estate (see terms in the attached
Proffer); and
• An amount sufficient to purchase an annuity contract to provide payments for the items
in the life care plan, as described in the attached proffer.
Proffer at II. These amounts represent compensation for all elements of compensation under 42
U.S.C. § 300aa-15(a) to which Petitioners are entitled.
The Proffer also specifies that:
“No payments shall be made until petitioners provide respondent with
documentation establishing that they have been appointed as the
guardian(s)/conservator(s) of K.J.’s estate. If petitioners are not authorized by a
court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate
of K.J., 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 K.J.
upon submission of written documentation of such appointment to the Secretary.”
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioners, in accordance with the forementioned terms (including the guardianship
2

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 3 of 24
requirements). 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.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 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.
3

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 4 of 24
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
DURENDA WHITEHEAD and )
KEYNARD SHAWTELL JOHNSON, SR., )
on behalf of KSJ, JR. )
)
Petitioners, )
)
v. ) No. 18-1537V
) Chief Special Master Corcoran
SECRETARY OF THE DEPARTMENT OF ) ECF
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 4, 2018, Durenda Whitehead and Keynard Shawtell Johnson, Sr.,
(“petitioners”), on behalf of her minor son, K.S.J., Jr. (hereinafter referred to as “K.J.”), filed a
petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.
§§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that as a result of receiving the measles,
mumps, rubella and varicella (“MMRV”) vaccine on January 17, 2017, K.J. suffered vaccine-
induced seizures and encephalopathy. Petition at 1 (ECF No. 1). In the alternative, Petitioners
alleged that K.J.’s receipt of several vaccines on January 17, 2017 (including the MMRV,
influenza, hepatitis A, diphtheria, tetanus, acellular pertussis, hepatitis B, inactivated polio
vaccine, haemophilus influenza type B, and pneumococcal conjugate (“PCV12”) vaccines,
caused him to suffer “the activation of his SLC19A3 gene variant,” leading him to experience an
“SLC19A3-related encephalopathy.” Petitioners’ Prehearing Brief, filed Nov. 19, 2020 (ECF
No. 32). On September 29, 2021, Chief Special Master Corcoran issued a Ruling on Entitlement in

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 5 of 24
favor of petitioners. ECF No. 42. Respondent now proffers the following regarding the amount of
compensation to be awarded.1
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner M. Virginia Walton, M.S.N., RN, FNP, CLCP, and
petitioners engaged Audrey Cowart, M.Ed., CRC, LPC, CLCP, to provide an estimation of K.J.’s
future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related”
is as described in the Special Master’s September 29, 2021, Ruling on 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 K.J., attached hereto as Tab A.2
Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, K.J. will not be gainfully
employed in the future. Therefore, respondent proffers that K.J. should be awarded lost future
earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent
proffers that the appropriate award for K.J.’s lost future earnings is $1,114,638.88. Petitioners
agree.
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 Chief
Special Master’s September 29, 2021 Ruling on Entitlement, finding petitioners entitled to an
award under the Vaccine Act. This right accrues following the issuance of the damages decision.
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 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 6 of 24
C. Pain and Suffering
Respondent proffers that K.J. should be awarded $250,000.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to K.J. 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 $1,616,572.94, representing compensation for life care
expenses in the first year after judgment ($251,934.06), lost future earnings ($1,114,638.88), and
pain and suffering ($250,000.00), in the form of a check payable to petitioners as guardian(s)/
conservator(s) of the estate of K.J., for the benefit of K.J. No payments shall be made until
petitioners provide respondent with documentation establishing that they have been appointed as
the guardian(s)/conservator(s) of K.J.’s estate. If petitioners are not authorized by a court of
competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of K.J., 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 K.J. upon submission of written
documentation of such appointment to the Secretary.
B. 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,
3 Should K.J. 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.
4 In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
3

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 7 of 24
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
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioners
only so long as K.J. 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
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.
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
Compensation Program System of Records, No. 09-15-0056.
4

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 8 of 24
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 K.J. 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 K.J.’s death.
3. Guardianship
No payments shall be made until petitioners provide respondent with documentation
establishing that they have been appointed as the guardian(s)/conservator(s) of K.J.’s estate. If
petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/
conservator(s) of the estate of K.J., 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 K.J. upon submission of written documentation of such appointment 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 K.J. for the benefit of K.J.: $ 1,616,572.94
B. An amount sufficient to purchase the annuity contract described
above in section II. B.
5

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 9 of 24
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C.SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
LARA A. ENGLUND
Assistant Director
Torts Branch, Civil Division
/s/Zoë R. Wade
ZOE R. WADE
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) 616-4118
Email: zoe.wade@usdoj.gov
Dated: January 5, 2024
6

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 10 of 24
Appendix A: Items of Compensation for K.J. Page 1 of 15
Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 1 Years 2-4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
2024 2025-2027 2028 2029 2030 2031 2032 2033
Insurance Premiums 5% M 3 ,838.32 3,838.32 3,838.32 3,838.32 4,179.48 4,309.92 4,440.36 4,580.88
Insurance Maximum out of
Pocket 5% 5 ,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00
Medicare Part B Premium 5% M
Medicare Part B Deductible 5%
Medigap 5% M
Physiatrist 5% *
Neurologist 5% *
Mileage: Physiatrist/
Neurologist 4% 2 5.44 25.44 25.44 25.44 25.44 25.44 25.44 25.44
Orthopedist 5% *
Mileage: Orthopedist 4% 1 2.72 6.36 6.36 6.36 6.36 6.36 6.36 6.36
Internist 5% *
Dentist - Sealants 5% 4 20.00 420.00
Dentist 5% *
Neuropsychologist 5% 2 ,383.86 2,383.86
Mileage: Neuropsychologist 4% 1 2.72 12.72
Physical Therapy Evaluation 4% *
Occupational Therapy
Evaluation 4% *
WC Seating Eval 4% 1 98.00 198.00 198.00 198.00 198.00 198.00 198.00 198.00
SLP Evaluation 4% *
SLP Feeding Evaluation 4% *
Physical Therapy 4% M 7 00.00 700.00 700.00 700.00 700.00 700.00 700.00 700.00
Occupational Therapy 4% M 7 00.00 700.00 700.00 700.00 700.00 700.00 700.00 700.00
Speech Therapy 4%
Nutritional Assessment 4% *
SLP Feeding Therapy 4% *
Aquatic Therapy 4% M 1 ,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00
Hippo Therapy 4% 7 20.00 720.00 720.00 720.00 720.00 720.00 720.00 720.00
Assistive Tech Training 4%
Case Management 4% M 4 ,560.00 4,560.00 4,560.00 4,560.00 4,560.00 4,560.00 4,560.00 4,560.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 11 of 24
Appendix A: Items of Compensation for K.J. Page 2 of 15
Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 1 Years 2-4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
2024 2025-2027 2028 2029 2030 2031 2032 2033
X-rays 5% *
Barium Swallow 5% *
Baclofen 5% *
Vitamin B1 4% 8 7.60 87.60 87.60 87.60 87.60 87.60 87.60 87.60
Biotin 4% 7 22.70 722.70 722.70 722.70 722.70 722.70 722.70 722.70
Albuterol 5% *
Pediasure 4% M 1 ,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50
Liquid Thickener Box -
School 4% M 2 07.00 207.00 207.00 207.00 207.00 207.00 207.00 207.00
Liquid Thickener Canister -
Home 4% M 1 56.00 156.00 156.00 156.00 156.00 156.00 156.00 156.00
Undergarments 4% M 5 25.60 525.60 740.95 740.95 740.95 740.95 740.95 740.95
Wipes 4% M 1 24.10 124.10 131.40 131.40 131.40 131.40 131.40 131.40
Adaptive Aids 4% 7 50.00 150.00 150.00 150.00 150.00 150.00 150.00 150.00
Toilet Chair 4% 2 08.00 41.60 41.60 41.60 41.60 41.60 41.60 41.60
Standing Frame 4% *
Heel Protector Pads 4% 2 5.00 25.00 25.00 25.00 25.00 25.00 25.00 25.00
Gait Trainer 4% 1 ,865.00 466.25 466.25 466.25 466.25 466.25 466.25 466.25
Manual Wheelchair 4% *
Cushion w/Cover 4% 5 06.00 126.50 126.50 126.50 126.50 126.50 126.50 126.50
Manual Transport Wheelchair 4% 4 87.00 69.57 69.57 69.57 69.57 69.57 69.57 69.57
Wheelchair Maintenance 4% *
Shower Wheelchair 4% 1 ,976.00 395.20 395.20 395.20 395.20 395.20 395.20 395.20
Portable Patient Lift 4% *
Slings for Lift 4% 127.00 127.00 127.00 127.00 127.00 127.00 127.00
Hospital Bed 4% *
Bilateral Wrist/ Hand
Orthoses 4% *
KAFOs 4% *
Alternative Aug Comm
Device 4% *
Aug Comm Device
Accessories 4% 1 ,965.00 393.00 393.00 393.00 393.00 393.00 393.00 393.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 12 of 24
Appendix A: Items of Compensation for K.J. Page 3 of 15
Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 1 Years 2-4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
2024 2025-2027 2028 2029 2030 2031 2032 2033
Aug Comm Device
Maintenance & Repair 4%
Accessories for Mobility
Equip 4% 4 88.00 97.60 97.60 97.60 97.60 97.60 97.60 97.60
AAC Battery Charger 4% 9 9.00 19.80 19.80 19.80 19.80 19.80 19.80 19.80
Therapeutic Summer Camp 4% 5 67.00 567.00 567.00 567.00 567.00 567.00 567.00 567.00
Adaptice Tricylce 4% 2 ,070.00
Accessible Van 4% 4 9,535.00 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50
Portable Ramps 4% 4 43.00 44.30 44.30 44.30 44.30 44.30 44.30 44.30
Personal Care Attendant 4% M 5 0,172.50 50,172.50 50,172.50 50,172.50 50,172.50 50,172.50 50,172.50 50,172.50
Home Modification 4% 1 17,014.00
Housekeeping Services 4% M
Personal Care Aide/Driver
Services 4% M
Personal Care Aide in Facility 4% M
Facility 4% M
Lost Future Earnings 1,114,638.88
Pain and Suffering 250,000.00
Annual Totals 1 ,616,572.94 78,589.44 78,812.09 78,812.09 79,153.25 79,283.69 79,414.13 82,371.23
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 K.J. for the benefit of K.J., for lost future earnings ($1,114,638.88),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($251,934.06): $1,616,572.94.
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 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 13 of 24
Appendix A: Items of Compensation for K.J. Page 4 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 11 Year 12 Year 13 Year 14 Years 15-16 Year 17 Year 18 Year 19
2034 2035 2036 2037 2038-2039 2040 2041 2042
Insurance Premiums 5% M 4,721.28 4,866.84 5,017.44 5,017.44 5,017.44 5,037.36 5,137.80 5,258.16
Insurance Maximum out of
Pocket 5% 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00
Medicare Part B Premium 5% M
Medicare Part B Deductible 5%
Medigap 5% M
Physiatrist 5% *
Neurologist 5% *
Mileage: Physiatrist/
Neurologist 4% 25.44 25.44 25.44 12.72 12.72 12.72 12.72 12.72
Orthopedist 5% *
Mileage: Orthopedist 4% 6.36 6.36 6.36 0.91 0.91 0.91 0.91 0.91
Internist 5% *
Dentist - Sealants 5%
Dentist 5% *
Neuropsychologist 5%
Mileage: Neuropsychologist 4%
Physical Therapy Evaluation 4% *
Occupational Therapy
Evaluation 4% *
WC Seating Eval 4% 198.00 198.00 198.00 195.00 48.75 48.75 48.75 48.75
SLP Evaluation 4% *
SLP Feeding Evaluation 4% *
Physical Therapy 4% M 700.00 700.00 700.00
Occupational Therapy 4% M 700.00 700.00 700.00
Speech Therapy 4%
Nutritional Assessment 4% *
SLP Feeding Therapy 4% *
Aquatic Therapy 4% M 1,000.00 1,000.00 1,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00
Hippo Therapy 4% 720.00 720.00 720.00
Assistive Tech Training 4% 3,190.00 638.00 638.00 638.00 638.00
Case Management 4% M 4,560.00 4,560.00 4,560.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 14 of 24
Appendix A: Items of Compensation for K.J. Page 5 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 11 Year 12 Year 13 Year 14 Years 15-16 Year 17 Year 18 Year 19
2034 2035 2036 2037 2038-2039 2040 2041 2042
X-rays 5% *
Barium Swallow 5% *
Baclofen 5% *
Vitamin B1 4% 87.60 87.60 87.60 87.60 87.60 87.60 87.60 87.60
Biotin 4% 722.70 722.70 722.70 722.70 722.70 722.70 722.70 722.70
Albuterol 5% *
Pediasure 4% M 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50
Liquid Thickener Box -
School 4% M 207.00 207.00 207.00 207.00 207.00 207.00 207.00 207.00
Liquid Thickener Canister -
Home 4% M 156.00 156.00 156.00 156.00 156.00 156.00 156.00 156.00
Undergarments 4% M 740.95 740.95 740.95 740.95 740.95 740.95 740.95 740.95
Wipes 4% M 131.40 131.40 131.40 131.40 131.40 131.40 131.40 131.40
Adaptive Aids 4% 150.00 150.00 150.00 150.00 150.00 150.00 150.00 150.00
Toilet Chair 4% 41.60 41.60 41.60 41.60 41.60 41.60 41.60 41.60
Standing Frame 4% *
Heel Protector Pads 4% 25.00 25.00 25.00 25.00 25.00 25.00 25.00 25.00
Gait Trainer 4% 466.25 466.25 466.25 1,568.00
Manual Wheelchair 4% *
Cushion w/Cover 4% 126.50 126.50 126.50 566.00
Manual Transport Wheelchair 4% 69.57 69.57 69.57 69.57 69.57 69.57 69.57 69.57
Wheelchair Maintenance 4% *
Shower Wheelchair 4% 395.20 395.20 395.20 395.20 395.20 395.20 395.20 395.20
Portable Patient Lift 4% *
Slings for Lift 4% 127.00 127.00 127.00 127.00 127.00 127.00 127.00 127.00
Hospital Bed 4% *
Bilateral Wrist/ Hand
Orthoses 4% *
KAFOs 4% *
Alternative Aug Comm
Device 4% *
Aug Comm Device
Accessories 4% 393.00 393.00 393.00 393.00 393.00 393.00 393.00 393.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 15 of 24
Appendix A: Items of Compensation for K.J. Page 6 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 11 Year 12 Year 13 Year 14 Years 15-16 Year 17 Year 18 Year 19
2034 2035 2036 2037 2038-2039 2040 2041 2042
Aug Comm Device
Maintenance & Repair 4% 1,448.00 289.60 289.60 289.60 289.60
Accessories for Mobility
Equip 4% 97.60 97.60 97.60 97.60 97.60 97.60 97.60 97.60
AAC Battery Charger 4% 19.80 19.80 19.80 19.80 19.80 19.80 19.80 19.80
Therapeutic Summer Camp 4% 567.00 567.00 567.00
Adaptice Tricylce 4%
Accessible Van 4% 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50
Portable Ramps 4% 44.30 44.30 44.30 44.30 44.30 44.30 44.30 44.30
Personal Care Attendant 4% M 50,172.50 50,172.50 50,172.50
Home Modification 4%
Housekeeping Services 4% M 4,644.00 4,644.00 4,644.00 4,644.00 4,644.00
Personal Care Aide/Driver
Services 4% M 267,180.00 267,180.00 267,180.00 267,180.00 267,180.00
Personal Care Aide in Facility 4% M
Facility 4% M
Lost Future Earnings
Pain and Suffering
Annual Totals 79,695.05 79,840.61 79,991.21 301,129.79 297,273.14 297,293.06 297,393.50 299,647.86
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 K.J. for the benefit of K.J., for lost future earnings ($1,114,638.88),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($251,934.06): $1,616,572.94.
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 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 16 of 24
Appendix A: Items of Compensation for K.J. Page 7 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 20 Year 21 Year 22 Year 23 Year 24 Year 25 Year 26 Year 27
2043 2044 2045 2046 2047 2048 2049 2050
Insurance Premiums 5% M 5,453.88 5,614.44 5,694.72 5,815.08 5,935.56 6,010.80 6,091.08 6,131.16
Insurance Maximum out of
Pocket 5% 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00
Medicare Part B Premium 5% M
Medicare Part B Deductible 5%
Medigap 5% M
Physiatrist 5% *
Neurologist 5% *
Mileage: Physiatrist/
Neurologist 4% 12.72 12.72 12.72 12.72 12.72 12.72 12.72 12.72
Orthopedist 5% *
Mileage: Orthopedist 4% 0.91 0.91 0.91 0.91 0.91 0.91 0.91 0.91
Internist 5% *
Dentist - Sealants 5%
Dentist 5% *
Neuropsychologist 5%
Mileage: Neuropsychologist 4%
Physical Therapy Evaluation 4% *
Occupational Therapy
Evaluation 4% *
WC Seating Eval 4% 48.75 48.75 48.75 48.75 48.75 48.75 48.75 48.75
SLP Evaluation 4% *
SLP Feeding Evaluation 4% *
Physical Therapy 4% M
Occupational Therapy 4% M
Speech Therapy 4%
Nutritional Assessment 4% *
SLP Feeding Therapy 4% *
Aquatic Therapy 4% M 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00
Hippo Therapy 4%
Assistive Tech Training 4% 638.00 638.00 638.00 638.00 638.00 638.00 638.00 638.00
Case Management 4% M 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 17 of 24
Appendix A: Items of Compensation for K.J. Page 8 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 20 Year 21 Year 22 Year 23 Year 24 Year 25 Year 26 Year 27
2043 2044 2045 2046 2047 2048 2049 2050
X-rays 5% *
Barium Swallow 5% *
Baclofen 5% *
Vitamin B1 4% 87.60 87.60 87.60 87.60 87.60 87.60 87.60 87.60
Biotin 4% 722.70 722.70 722.70 722.70 722.70 722.70 722.70 722.70
Albuterol 5% *
Pediasure 4% M 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50
Liquid Thickener Box -
School 4% M 207.00 207.00 207.00 207.00 207.00 207.00 207.00 207.00
Liquid Thickener Canister -
Home 4% M 156.00 156.00 156.00 156.00 156.00 156.00 156.00 156.00
Undergarments 4% M 740.95 740.95 740.95 740.95 740.95 740.95 740.95 740.95
Wipes 4% M 131.40 131.40 131.40 131.40 131.40 131.40 131.40 131.40
Adaptive Aids 4% 150.00 150.00 150.00 150.00 150.00 150.00 150.00 150.00
Toilet Chair 4% 41.60 41.60 41.60 41.60 41.60 41.60 41.60 41.60
Standing Frame 4% *
Heel Protector Pads 4% 25.00 25.00 25.00 25.00 25.00 25.00 25.00 25.00
Gait Trainer 4% 261.33 261.33 261.33 261.33 261.33 261.33 261.33 261.33
Manual Wheelchair 4% *
Cushion w/Cover 4% 94.33 94.33 94.33 94.33 94.33 94.33 94.33 94.33
Manual Transport Wheelchair 4% 69.57 69.57 69.57 69.57 69.57 69.57 69.57 69.57
Wheelchair Maintenance 4% *
Shower Wheelchair 4% 395.20 395.20 395.20 395.20 395.20 395.20 395.20 395.20
Portable Patient Lift 4% *
Slings for Lift 4% 127.00 127.00 127.00
Hospital Bed 4% *
Bilateral Wrist/ Hand
Orthoses 4% *
KAFOs 4% *
Alternative Aug Comm
Device 4% *
Aug Comm Device
Accessories 4% 393.00 393.00 393.00 393.00 393.00 393.00 393.00 393.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 18 of 24
Appendix A: Items of Compensation for K.J. Page 9 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 20 Year 21 Year 22 Year 23 Year 24 Year 25 Year 26 Year 27
2043 2044 2045 2046 2047 2048 2049 2050
Aug Comm Device
Maintenance & Repair 4% 289.60 289.60 289.60 289.60 289.60 289.60 289.60 289.60
Accessories for Mobility
Equip 4% 97.60 97.60 97.60 97.60 97.60 97.60 97.60 97.60
AAC Battery Charger 4% 19.80 19.80 19.80 19.80 19.80 19.80 19.80 19.80
Therapeutic Summer Camp 4%
Adaptice Tricylce 4%
Accessible Van 4% 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50
Portable Ramps 4% 44.30 44.30 44.30 44.30 44.30 44.30 44.30 44.30
Personal Care Attendant 4% M
Home Modification 4%
Housekeeping Services 4% M 4,644.00 4,644.00 4,644.00
Personal Care Aide/Driver
Services 4% M 267,180.00 267,180.00 267,180.00
Personal Care Aide in Facility 4% M 111,325.00 111,325.00 111,325.00 111,325.00 111,325.00
Facility 4% M 52,196.00 52,196.00 52,196.00 52,196.00 52,196.00
Lost Future Earnings
Pain and Suffering
Annual Totals 298,065.24 298,225.80 298,306.08 189,996.44 190,116.92 190,192.16 190,272.44 190,312.52
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 K.J. for the benefit of K.J., for lost future earnings ($1,114,638.88),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($251,934.06): $1,616,572.94.
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 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 19 of 24
Appendix A: Items of Compensation for K.J. Page 10 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 28 Year 29 Year 30 Year 31 Year 32 Year 33 Year 34 Years 35-56
2051 2052 2053 2054 2055 2056 2057 2058-2079
Insurance Premiums 5% M 6,171.36 6,211.44 6,251.64 6,331.92 6,412.20 6,532.56 6,648.00
Insurance Maximum out of
Pocket 5% 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00 5,800.00
Medicare Part B Premium 5% M 2,096.40
Medicare Part B Deductible 5% 240.00
Medigap 5% M 2,512.68
Physiatrist 5% *
Neurologist 5% *
Mileage: Physiatrist/
Neurologist 4% 12.72 12.72 12.72 12.72 12.72 12.72 12.72 12.72
Orthopedist 5% *
Mileage: Orthopedist 4% 0.91 0.91 0.91 0.91 0.91 0.91 0.91 0.91
Internist 5% *
Dentist - Sealants 5%
Dentist 5% *
Neuropsychologist 5%
Mileage: Neuropsychologist 4%
Physical Therapy Evaluation 4% *
Occupational Therapy
Evaluation 4% *
WC Seating Eval 4% 48.75 48.75 48.75 48.75 48.75 48.75 48.75 48.75
SLP Evaluation 4% *
SLP Feeding Evaluation 4% *
Physical Therapy 4% M
Occupational Therapy 4% M
Speech Therapy 4%
Nutritional Assessment 4% *
SLP Feeding Therapy 4% *
Aquatic Therapy 4% M 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00
Hippo Therapy 4%
Assistive Tech Training 4% 638.00 638.00 638.00 638.00 638.00 638.00 638.00 638.00
Case Management 4% M 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00 1,710.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 20 of 24
Appendix A: Items of Compensation for K.J. Page 11 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 28 Year 29 Year 30 Year 31 Year 32 Year 33 Year 34 Years 35-56
2051 2052 2053 2054 2055 2056 2057 2058-2079
X-rays 5% *
Barium Swallow 5% *
Baclofen 5% * 1,204.50
Vitamin B1 4% 87.60 87.60 87.60 87.60 87.60 87.60 87.60 87.60
Biotin 4% 722.70 722.70 722.70 722.70 722.70 722.70 722.70 722.70
Albuterol 5% * 284.10
Pediasure 4% M 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50 1,569.50
Liquid Thickener Box -
School 4% M 207.00 207.00 207.00 207.00 207.00 207.00 207.00 207.00
Liquid Thickener Canister -
Home 4% M 156.00 156.00 156.00 156.00 156.00 156.00 156.00 156.00
Undergarments 4% M 740.95 740.95 740.95 740.95 740.95 740.95 740.95 740.95
Wipes 4% M 131.40 131.40 131.40 131.40 131.40 131.40 131.40 131.40
Adaptive Aids 4% 150.00 150.00 150.00 150.00 150.00 150.00 150.00 150.00
Toilet Chair 4% 41.60 41.60 41.60 41.60 41.60 41.60 41.60 41.60
Standing Frame 4% *
Heel Protector Pads 4% 25.00 25.00 25.00 25.00 25.00 25.00 25.00 25.00
Gait Trainer 4% 261.33 261.33 261.33 261.33 261.33 261.33 261.33 261.33
Manual Wheelchair 4% *
Cushion w/Cover 4% 94.33 94.33 94.33 94.33 94.33 94.33 94.33 94.33
Manual Transport Wheelchair 4% 69.57 69.57 69.57 69.57 69.57 69.57 69.57 69.57
Wheelchair Maintenance 4% *
Shower Wheelchair 4% 395.20 395.20 395.20 395.20 395.20 395.20 395.20 395.20
Portable Patient Lift 4% *
Slings for Lift 4%
Hospital Bed 4% *
Bilateral Wrist/ Hand
Orthoses 4% *
KAFOs 4% *
Alternative Aug Comm
Device 4% *
Aug Comm Device
Accessories 4% 393.00 393.00 393.00 393.00 393.00 393.00 393.00 393.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 21 of 24
Appendix A: Items of Compensation for K.J. Page 12 of 15
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R * M Year 28 Year 29 Year 30 Year 31 Year 32 Year 33 Year 34 Years 35-56
2051 2052 2053 2054 2055 2056 2057 2058-2079
Aug Comm Device
Maintenance & Repair 4% 289.60 289.60 289.60 289.60 289.60 289.60 289.60 289.60
Accessories for Mobility
Equip 4% 97.60 97.60 97.60 97.60 97.60 97.60 97.60 97.60
AAC Battery Charger 4% 19.80 19.80 19.80 19.80 19.80 19.80 19.80 19.80
Therapeutic Summer Camp 4%
Adaptice Tricylce 4%
Accessible Van 4% 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50 4,953.50
Portable Ramps 4% 44.30 44.30 44.30 44.30 44.30 44.30 44.30 44.30
Personal Care Attendant 4% M
Home Modification 4%
Housekeeping Services 4% M
Personal Care Aide/Driver
Services 4% M
Personal Care Aide in Facility 4% M 111,325.00 111,325.00 111,325.00 111,325.00 111,325.00 111,325.00 111,325.00 111,325.00
Facility 4% M 52,196.00 52,196.00 52,196.00 52,196.00 52,196.00 52,196.00 52,196.00 52,196.00
Lost Future Earnings
Pain and Suffering
Annual Totals 190,352.72 190,392.80 190,433.00 190,513.28 190,593.56 190,713.92 190,829.36 184,719.04
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 K.J. for the benefit of K.J., for lost future earnings ($1,114,638.88),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($251,934.06): $1,616,572.94.
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 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 22 of 24
Appendix A: Items of Compensation for K.J. Page 13 of 15
ITEMS OF Compensation Compensation
COMPENSATION G.R * M Year 57 Years 58-Life
2080 2081-Life
Insurance Premiums 5% M
Insurance Maximum out of
Pocket 5%
Medicare Part B Premium 5% M 2,096.40 2,096.40
Medicare Part B Deductible 5% 240.00 240.00
Medigap 5% M 2,052.00 2,052.00
Physiatrist 5% *
Neurologist 5% *
Mileage: Physiatrist/
Neurologist 4% 12.72 12.72
Orthopedist 5% *
Mileage: Orthopedist 4% 0.91 0.91
Internist 5% *
Dentist - Sealants 5%
Dentist 5% *
Neuropsychologist 5%
Mileage: Neuropsychologist 4%
Physical Therapy Evaluation 4% *
Occupational Therapy
Evaluation 4% *
WC Seating Eval 4% 48.75 48.75
SLP Evaluation 4% *
SLP Feeding Evaluation 4% *
Physical Therapy 4% M
Occupational Therapy 4% M
Speech Therapy 4%
Nutritional Assessment 4% *
SLP Feeding Therapy 4% *
Aquatic Therapy 4% M 2,000.00
Hippo Therapy 4%
Assistive Tech Training 4% 638.00 638.00
Case Management 4% M 1,710.00 1,710.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 23 of 24
Appendix A: Items of Compensation for K.J. Page 14 of 15
ITEMS OF Compensation Compensation
COMPENSATION G.R * M Year 57 Years 58-Life
2080 2081-Life
X-rays 5% *
Barium Swallow 5% *
Baclofen 5% * 1,204.50 1,204.50
Vitamin B1 4% 87.60 87.60
Biotin 4% 722.70 722.70
Albuterol 5% * 284.10 284.10
Pediasure 4% M 1,569.50 1,569.50
Liquid Thickener Box -
School 4% M 207.00 207.00
Liquid Thickener Canister -
Home 4% M 156.00 156.00
Undergarments 4% M 740.95 740.95
Wipes 4% M 131.40 131.40
Adaptive Aids 4% 150.00 150.00
Toilet Chair 4% 41.60 41.60
Standing Frame 4% *
Heel Protector Pads 4% 25.00 25.00
Gait Trainer 4% 261.33 261.33
Manual Wheelchair 4% *
Cushion w/Cover 4% 94.33 94.33
Manual Transport Wheelchair 4% 69.57 69.57
Wheelchair Maintenance 4% *
Shower Wheelchair 4% 395.20 395.20
Portable Patient Lift 4% *
Slings for Lift 4%
Hospital Bed 4% *
Bilateral Wrist/ Hand
Orthoses 4% *
KAFOs 4% *
Alternative Aug Comm
Device 4% *
Aug Comm Device
Accessories 4% 393.00 393.00

Case 1:18-vv-01538-UNJ Document 73 Filed 03/25/24 Page 24 of 24
Appendix A: Items of Compensation for K.J. Page 15 of 15
ITEMS OF Compensation Compensation
COMPENSATION G.R * M Year 57 Years 58-Life
2080 2081-Life
Aug Comm Device
Maintenance & Repair 4% 289.60 289.60
Accessories for Mobility
Equip 4% 97.60 97.60
AAC Battery Charger 4% 19.80 19.80
Therapeutic Summer Camp 4%
Adaptice Tricylce 4%
Accessible Van 4% 4,953.50 4,953.50
Portable Ramps 4% 44.30 44.30
Personal Care Attendant 4% M
Home Modification 4%
Housekeeping Services 4% M
Personal Care Aide/Driver
Services 4% M
Personal Care Aide in Facility 4% M 111,325.00 111,325.00
Facility 4% M 52,196.00 52,196.00
Lost Future Earnings
Pain and Suffering
Annual Totals 184,258.36 182,258.36
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 K.J. for the benefit of K.J., for lost future earnings ($1,114,638.88),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($251,934.06): $1,616,572.94.
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.