NORA BETH DORSEY, Chief Special Master.
Petitioners, Dwayne Cozart and Michele Hamilton ("petitioners" or the "Cozarts") filed a petition under the National Childhood Vaccine Injury Act ("Vaccine Act" or the "Program"),
On June 30, 2015, following a hearing, the undersigned issued a decision denying compensation to the Cozarts, finding that petitioners had failed to provide preponderant evidence that the vaccinations C.A.C. received on October 19, 1998, caused his death.
On July 21, 2015, petitioners filed a motion for reconsideration ("Motion for Reconsideration") of the Original Decision. This motion was granted to the extent that the motion requested that the Original Decision be vacated. See Order dated July 28, 2015. A decision determining whether petitioners were entitled to any additional relief (a substantive change in outcome) was deferred until respondent responded to the Motion for Reconsideration.
Petitioners seek reconsideration of the undersigned's Original Decision on Althen Prongs One and Two in light of additional evidence, a medical article by Kashiwagi et al.
The Original Decision sets forth detailed facts about C.A.C.'s medical history. A synopsis of these facts is that C.A.C. was born on August 17, 1998. At his two week well-child visit, he was noted to be developing normally. At his two month well-child visit, the pediatrician again noted that C.A.C. was a well-child. He received the Hep B, DTaP, IPV and Hib vaccinations during this visit (at approximately 10:15 a.m.). After this visit, C.A.C. was taken to his babysitter's home. The babysitter put the child down for a nap. At approximately 2:57 p.m., emergency medical services were dispatched to the babysitter's house after receiving a report that C.A.C. was unresponsive. When the Fire Department Emergency Medical Services ("EMS") arrived, C.A.C. was pulseless and apneic. CPR was performed and C.A.C. was intubated and given epinephrine. He was taken to the Charlton Methodist Hospital. Upon arrival, C.A.C. still had no pulse and was asystolic.
The emergency room physician, Dr. Joe Tsou, documented that C.A.C. had a rectal temperature of 94.7 degrees, indicating that "significant time had elapsed since the time of arrest." Pet. Ex. 8 at 7. Dr. Tsou performed a physical exam and noted "coffee ground vomitus around [the] mouth," congested chest, distended abdomen, and paleness.
An autopsy was performed which revealed "posterior lividity [that was] partially fixed" and "lividity of the right side of the face with blanching over the pressure areas." Pet. Ex. 9 at 19. Lividity was also seen on the right ear and neck. Pet. Ex. 12 at 17. The internal examination revealed petechiae in the lungs with moderately congested parenchyma of the lung. Pet. Ex. 9 at 20. A chest x-ray showed a right pneumothorax.
The Cozarts filed their petition on October 2, 2000. They filed an expert report from Dr. Douglas Miller, a neuropathologist, on August 6, 2012, and an expert report from Dr. James Oleske, an immunologist, on December 11, 2013. Respondent filed an expert report from Dr. Hart Lidov, a neuropathologist, on April 20, 2013. On June 21, 2013, respondent filed an expert report from Dr. Christine McCusker, an immunologist. A hearing was held on September 25-26, 2014, during which Drs. Miller and Oleske testified for petitioners, and Drs. McCusker and Lidov testified for respondent.
Following the conclusion of the hearing and submission of briefs, the undersigned found that petitioners were not entitled to compensation, because petitioners failed to provide preponderant evidence that the vaccinations C.A.C. received on October 19, 1998, caused his death. Petitioners filed a Motion for Reconsideration of the Original Decision on July 21, 2015. That motion was granted to the extent that it vacated the Original Decision. Respondent filed a response to the Motion for Reconsideration on August 12, 2015. Petitioners filed a Reply brief on August 26, 2015. The Motion for Reconsideration is now ripe for ruling.
Vaccine Rule 10(e), which governs motions for reconsideration, provides, "[e]ither party may file a motion for reconsideration of the special master's decision within 21 days after the issuance of the decision . . . ." Vaccine Rule 10(e)(1). A party seeking reconsideration "must support the motion by a showing of extraordinary circumstances which justify relief."
"A court may grant such a motion when the movant shows `(1) that an intervening change in the controlling law has occurred; (2) that previously unavailable evidence is now available; or 3) that the motion is necessary to prevent manifest injustice."
Petitioners do not claim that there has been an intervening change in the law, nor do they contend that there is new evidence that was unavailable at the time the undersigned issued the Original Decision. Petitioners also admit that while the additional evidence offered with their motion was available at the time the case was litigated, it "did not seem relevant until the special master filed her decision," and therefore was not previously filed. Motion for Reconsideration at 2. Thus, in order to prevail on their Motion for Reconsideration, petitioners must demonstrate that the denial of their motion would result in manifest injustice.
In requesting reconsideration of the Original Decision, petitioners note that the undersigned found that they had not presented preponderant evidence under
With regard to petitioners' argument that the undersigned did not consider the record as a whole and simply rejected petitioners' arguments and chose to accept the opinions of respondent's experts, the undersigned must address these statements. This case involves a very tragic situation, and the undersigned considered all evidence presented by the parties in reaching her decision. All the evidence and testimony presented in this case was carefully reviewed and analyzed, and the undersigned did not reach her conclusion lightly. After all the evidence was analyzed and weighed in accordance with the applicable legal standards, it became clear to the undersigned that the evidence presented by petitioners could not meet their legal burden, and thus, entitlement was denied.
Because this case involves significant issues that may have broader implications, the undersigned granted petitioners' request to reconsider her decision in light of petitioners' statement that they had additional evidence to present that they believed the undersigned should consider. This motion was not granted to allow petitioners a second chance to reargue their case.
For the reasons set forth below, the undersigned finds that petitioners' arguments in support of their Motion for Reconsideration are not persuasive. The additional evidence that petitioners presented is not new evidence; rather, it is an article that was available to petitioners at the time this case went to hearing. The argument that petitioners did not deem this article relevant until the undersigned issued her decision is not proper grounds for reconsideration of the undersigned's decision. Even if petitioners had presented this article at a time when the undersigned could have taken it into consideration in reaching her decision, it would not have changed the outcome. Thus, petitioners' motion for reconsideration is DENIED.
In the Motion for Reconsideration, petitioners first claim that they have demonstrated a reliable medical theory causally connecting C.A.C.'s vaccinations and his death. Motion for Reconsideration at 5. In doing so, petitioners concede that "vaccines have not been scientifically proven to be an extrinsic risk factor in the Triple Risk Model."
In their Motion for Reconsideration, petitioners state that "the one piece of evidence purportedly lacking (evidence typically not required in Vaccine Program proceedings) is evidence that the cytokines produced by vaccination are the same or similar to the cytokines produced by infections." Motion for Reconsideration at 10. Petitioners' theory of causation is fully detailed in the Original Decision, but a summary is provided here.
Petitioners' theory of causation is based on the Triple Risk Theory developed by Dr. Hannah Kinney and her colleagues. Drs. Miller and Oleske explained that the Triple Risk Theory involves "a vulnerable infant, who during a critical time, encounters external stressor(s), resulting in death."
Pet. Post-Hearing Brief at 13.
In order for petitioners' theory to succeed, petitioners would need to demonstrate that the activation of an immune response to a vaccination is similar to that of an infection. Petitioners argue that the evidence in this case "clearly demonstrates that a mild infection or a mild inflammatory process can be external risk factors in SIDS." Motion for Reconsideration at 7. Petitioners further state that the evidence "shows that vaccinations trigger the immune system and promote the production of pro-inflammatory cytokines. In this regard, then, vaccinations clearly meet the definition of a `mild inflammatory process' as described in the filed evidence."
The evidence does not support this assertion. First, infections have been identified as exogenous stressors for the Triple Risk Model. Vaccinations have not. As Dr. McCusker testified, there are important similarities and differences between an immune response to an infection and an immune response to a vaccination. Tr. 138. One important difference is that an infection is a live organism that has the ability to replicate in the body and cause a severe immune reaction. A live virus will infect a cell directly and the virus within the cell will begin to replicate. What begins as a few infected cells can quickly become thousands of infected cells. The vaccines C.A.C. received, on the other hand, are composed of particulate killed organisms, i.e., pieces of organisms. Administered alone, these particles may not elicit much of an immune response beyond a local reaction. Adjuvants are added to vaccines to elicit a greater immune response from the body to protect an individual who may later be exposed to the live virus. Dr. Oleske, petitioners' immunologist, testified that vaccines try to mimic what infections do in the body "without the profound negative effects of natural infection." Tr. at 12. He explained that vaccinations elicit "an adequate response that allows a protective immune response, without overwhelming complications." Tr. at 15.
Regarding the timing of an immune response from a vaccination, the experts had differing opinions. Dr. Oleske testified that when a vaccination is administered into the body, there is a local inflammatory response at the site of the injection. The local response becomes systemic "in that fairly short period of time ... [a]nd in the case of what we've been talking about, SIDS, that inflammatory response circulates very rapidly through the body to the central nervous system, and in the arcuate nucleus in a vulnerable infant ..." Tr. 74. Dr. McCusker, on the other hand, testified that when studies were conducted to look "at the pattern of the way the immune response occurs, it actually stays quite local for a significant period of time." Tr. 140. For example, if a vaccine is administered in the thigh, the initial activation event would occur in "the thigh, and then it would lead up to the draining lymph node in the groin on that side, and it takes a significant ... in the studies where they have looked at this, it actually takes a significant amount of time ..."
The undersigned also notes that the evidence submitted in this case identifies common infections that have been associated with SIDS death, including upper respiratory tract infections and gastrointestinal infections, two types of infections that can affect the breathing mechanics of an infant from either congestion or reflux. Tr. at 197, 252. While not confined to just these types of infections, Dr. McCusker is the only expert who provided an opinion explaining how these infections might contribute to SIDS deaths. Vaccinations do not act in the same way as these infections because vaccinations do not interfere with the mechanics of breathing. Tr. 170-71.
Assuming that petitioners are able to succeed in providing preponderant evidence that vaccinations act similar to infections, the next step would be to provide preponderant evidence that the cytokines released in response to a vaccination act in the same way as cytokines released in response to an infection or an inflammatory process. In support of this proposition and in support of their Motion for Reconsideration, petitioners introduced exhibit 49, an article by
The undersigned does not take issue with petitioners' argument that vaccinations result in a cytokine release, and that some of these cytokines are the same cytokines that are released in response to infection. It is petitioners' argument about how the cytokines produced in response to a vaccination have a negative effect on the brain and 5-HT system that is not persuasive.
To carry that argument, petitioners needed to show how cytokines produced in response to a vaccination appear in the brain, and lead to the death of an infant. But, petitioners' theory fails because it is based on an outdated theory of the role of cytokines in the brain and on the 5-HT system. The current and persuasive understanding of cytokines, as discussed by respondent's experts, shows that the cytokines in the brain identified by petitioners' experts do not cause a pathologic event. Tr. 183
To explain how the role of cytokine expression and its effect on the brain has evolved, Dr. McCusker testified that in 2003, immunologists were researching SIDS deaths and were beginning to study the role of cytokines in the brain. Those early studies showed that the pro-inflammatory cytokine, IL-1ß, was present in the brains of SIDS infants. The question, at the time, was whether this inflammation was involved in or contributed to sudden infant death. Petitioners' theory is premised on the idea that the cytokine expression in the SIDS brain causes inflammation and SIDS death in a vulnerable infant. Tr. 38, 55, 85. The current research demonstrates that the brain regularly produces pro-inflammatory cytokines as part of a normal, regulatory process. The existence of these cytokines is not an indication that the brain is constantly inflamed. Tr. 159. Dr. McCusker explained that to further investigate this observation, a study was performed where a large amount of the cytokine IL-6 was introduced in the brain of piglets. In these animal models, it was found that the overexpression of IL-6 did not have a significant effect on respiration and the 5-HT system. The study demonstrated that there was some small effect, but it did not appear to be significant and did not negatively affect respiration.
In discussing the articles cited by petitioners' experts regarding the role of cytokines, Dr. McCusker repeatedly demonstrated that the information upon which petitioners' theory is based is outdated. New information and a greater understanding of the role of cytokines is available and respondents' experts provided a detailed discussion on the current understanding. Petitioners' experts did little to dispute this information. Thus, the undersigned found that petitioners had not presented preponderant evidence to both set forth a reliable medical theory and logical sequence of cause and effect, i.e., Althen Prongs One, and Two which is discussed more fully below.
In the Motion for Reconsideration, petitioners stated that they have "provided a wealth of evidence of sudden infant death syndrome occurring shortly after vaccinations, including the same vaccinations received by C.A.C." Motion for Reconsideration at 6. However, temporal association alone is not evidence of causation.
Next, petitioners state that the undersigned held that "petitioners offered no evidence that `peripheral cytokines released in response to the vaccines . . . communicated with the central nervous system[.]" This statement is only partially accurate. Quoting from the Original Decision, the undersigned stated "that petitioners did not offer preponderant evidence demonstrating that the peripheral cytokines released in response to the vaccines administered to C.A.C. communicated with the central nervous system to invoke an abnormal brain response
Next, in response to the undersigned's finding that there is no clinical evidence that cytokines played a role in C.A.C.'s death, petitioners take issue with the fact that the undersigned referenced Dr. Oleske's testimony that C.A.C. experienced a cytokine storm. Petitioners argue that a "cytokine storm was not discussed in either of petitioners' expert reports," and that it was "not a concept embraced as a cause of SIDS in the medical literature." Motion for Reconsideration at 14. Nonetheless, petitioners agree that Dr. Oleske used the terminology "cytokine storm" during his testimony at hearing. Petitioners argue, however, that "Dr. Oleske clearly did not mean cytokine storm in the traditional sense and his use of language should not be used to import a different meaning to his testimony. Rather, he referred to the evidence showing a hypertuned or exaggerated cytokine response in SIDS death." Motion for Reconsideration at 15. Essentially, what petitioners have asked the undersigned to do is to speculate on the meaning of Dr. Oleske's testimony and to assign a meaning to his testimony that he did not provide. The undersigned cannot, and will not, speculate in a manner that is contrary to the direct testimony provided by petitioners' own experts. If petitioners took issue with the testimony of their expert, they had ample opportunity to clarify the record, either during the hearing on direct, or redirect questioning, or even in their post-hearing brief. Petitioners failed to do so, and a motion for reconsideration is an improper method to explain or further clarify an expert's testimony at hearing. Even if the undersigned were to accept petitioners' suggested interpretation of Dr. Oleske's testimony regarding a cytokine storm, it would not change the outcome of this Motion for Reconsideration or the Original Decision. The undersigned would still find that C.A.C. did not exhibit any clinical signs that cytokines played a causal role in his death.
It is also important to note that in the Original Decision, the undersigned found that C.A.C. fit the Triple Risk Model without need to consider a speculative risk factor, such as vaccines. The child was found in the prone or side position, exogenous risk factors that, alone, would satisfy the Triple Risk Model. It was for these additional reasons that the undersigned concluded that petitioners failed to provide preponderant evidence of a logical sequence of cause and effect showing that C.A.C.'s vaccinations caused his death.
Petitioners state that they were unclear whether the undersigned found that they met their burden on
Petitioners' medical theory is reliant on the proposition that the vaccinations are exogenous stressors. Petitioners have failed to demonstrate, by a preponderance of the evidence, that the vaccinations act similarly to the other exogenous stressors that have been identified for the Triple Risk Model. As is set forth in the Original Decision, petitioners and their experts have failed to identify any medical professional who has identified vaccinations as exogenous stressors or to even postulate that vaccinations may act as exogenous stressors in the Triple Risk Model. Even if petitioners were successful in providing evidence that vaccinations produced cytokine effects in the brain similar to that of infections, petitioners' theory still fails because they have not shown that the cytokines have a negative impact on the brain that would lead to SIDS death.
Petitioners' additional evidence, exhibit 49, the Kashiwagi article, has been reviewed and considered. The undersigned finds that it does not change the reasoning or conclusion of the Original Decision. Thus, even considering this additional evidence, the undersigned finds that there is no manifest injustice by denying petitioners' Motion for Reconsideration.
The undersigned must also note that in many similar SIDS cases heard by special masters in the Vaccine Program (and upheld on review), entitlement was denied to petitioners because of the lack of sufficient proof of causation.
For the aforementioned reasons, the undersigned hereby DENIES petitioners' Motion for Reconsideration. The Original Decision will be reinstated and considered filed as of today's date, October 15, 2015.