HERBRINA D. SANDERS, Special Master.
On September 17, 2014, Jordia Nunez and John Diaz ("Petitioners"), as legal representatives of J.J.D. ("J.J."),
After carefully analyzing and weighing all the evidence and testimony presented in this case in accordance with the applicable legal standards, the undersigned finds that Petitioners have not met their legal burden. Petitioners have not provided preponderant evidence that the vaccinations J.J. received on November 14, 2014, can cause SIDS generally, or that one or more of them caused J.J. to succumb to SIDS. Accordingly, Petitioners are not entitled to compensation.
This case was originally assigned to Special Master Hamilton-Fieldman. See ECF No. 4. Petitioners filed eleven exhibits consisting of medical records and affidavits. Pet'rs' Exs. 1-11; ECF No. 6-1-6.11. On February 3, 2015, Respondent filed his Rule 4(c) Report. ECF No. 11. Respondent argued that Petitioners' claim "lack[ed] any medical corroboration" and that Petitioners had "not proffered any mechanism of injury to explain how [J.J.'s] death was vaccine-related." Id. at 5. Respondent also noted that "[n]o treating physician ha[d] ascribed [J.J's] death as being related to any of the vaccinations he received on November 14, 2012." Id.
On June 19, 2015, Petitioners filed an amended petition, substituting initials for J.J.'s name throughout the document and adding language alleging that J.J.'s death was "a result of the adverse effects" of the vaccines he received. Amended Pet. at 1. The same day, Petitioners filed an expert report authored by Dr. Douglas Miller. Pet'rs' Ex. 12, ECF No. 21-2.
On November 19, 2015, Respondent filed two responsive expert reports, authored by Dr. Christine McCusker and Dr. Rebecca Folkerth. Resp't's Exs. A, C, ECF Nos. 37-1, 41-1. Thereafter, Petitioners filed a supplemental expert report authored by Dr. Miller on January 19, 2016. Pet'rs' Ex. 37, ECF No. 44-1. Respondent filed supplemental responsive expert reports authored by Dr. McCusker and Dr. Folkerth on April 11, 2016, and April 14, 2016, respectively. Resp't's Exs. E, F, ECF Nos. 51-1, 56-1.
At a status conference held on May 10, 2016, the parties agreed to proceed to an entitlement hearing. Order, ECF No. 58. Another status conference was held on October 18, 2016, and the parties discussed the case in light of Special Master Hamilton-Fieldman's August 29, 2016 decision denying entitlement in a similar case, Jewell v. Sec'y of Health and Human Servs., No. 11-138V, 2016 WL 5404165 (Fed. Cl. Spec. Mstr. Aug. 29, 2015). Order, ECF No. 59. Ultimately, Petitioners admitted that their case bore many similarities to Jewell, but they requested to proceed to a hearing. See id.; Pet'rs' Stat. Rept., ECF No. 65.
The case was reassigned to the undersigned on January 10, 2017. See ECF Nos. 66-67. At a status conference held on February 16, 2017, the parties discussed the case and the features which Petitioners felt distinguished their case from Jewell. See Order, ECF No. 69. Petitioners again requested that they and their expert be afforded an opportunity to testify at an entitlement hearing. Id. Thereafter, Petitioners filed a second supplemental expert report authored by Dr. Miller and a second affidavit authored by Petitioner Jordia Nunez ("Ms. Nunez"). Pet'rs' Exs. 38-39, ECF No. 71-1, 71-2.
An entitlement hearing was held in Washington, D.C., on February 22 and 23, 2018. The parties timely filed post-hearing briefs. ECF Nos. 103, 106, 110. This matter is now ripe for a decision.
Ms. Nunez was in her early twenties when she became pregnant with twins in 2012. Pet'rs' Ex. 5 at 24 (filed on compact disk; ECF No. 6). Ms. Nunez had previously given birth to a baby girl in 2008 and had experienced preeclampsia and mild hypertension with that pregnancy. Id. The 2012 pregnancy was considered high risk due to Ms. Nunez's history and it being a twin gestation, but an early workup for preeclampsia and hypertension was negative. Id. at 66, 82. Ms. Nunez attended several prenatal appointments between March and July 2012. See id. at 23-99. On July 10, 2012, Ms. Nunez was transported to Bronx Lebanon Hospital in pre-term labor. Pet'rs' Ex. 2 at 5 (filed on compact disk; ECF No. 6). Ms. Nunez naturally delivered twins on July 11, 2012. Pet'rs' Ex. 6 at 6 (filed on compact disk; ECF No. 6). J.J. and his twin sister were born at approximately twenty-nine weeks and two days' gestation. Id. at 8; Pet'rs' Ex. 2 at 58. J.J.'s Apgar scores
J.J. had episodes of respiratory distress upon admission to the NICU, and he received nasal continuous positive airway pressure ("NCPAP") from July 11 through July 15, 2012. Pet'rs' Ex. 6 at 29, 34, 36, 38, 40, 898-99. He remained in the NICU until August 31, 2012, when he was discharged home in stable condition. Id. at 901.
On September 13, 2012, J.J. was seen by Dr. Yves Verna for his two-month well-baby examination. Pet'rs' Ex. 7 at 1-3 (filed on compact disk; ECF No. 6). Dr. Verna noted that J.J. was taking vitamin supplements and that he was being breastfed approximately every twelve hours, supplemented with cow's milk formula as needed. Id. at 1. Dr. Verna wrote that J.J. was "[w]ell-appearing, alert, well hydrated, and active" and that he was "[n]ot acutely ill." Id. She noted the following about J.J.'s growth and development: "Vocalizes, attentive to voices, has a social smile, the gaze follows past the midline, lifts the head and chest off a surface, the head is steady in an upright position, and the hands are open 50% of the time." Id. at 2. J.J. received rotavirus, DTaP, HiB, IPV, and pneumococcal conjugate vaccines during the visit. Id. at 3. J.J.'s parents were instructed to give him Tylenol every four hours for 48 hours after vaccination. Id. at 2.
On November 14, 2012, J.J. was brought to Dr. Verna for his four-month well-baby examination. Pet'rs' Ex. 7 at 3-5. Dr. Verna documented that J.J. had "[n]o fever," "[n]o cough," his "[a]ppetite [was] not decreased[,]" and he had "[n]o difficulty sucking." Id. at 3. She also documented that there were "[n]o parental concerns about hearing[,] vision[, or] behavior." Id. J.J. weighed 11 lbs. and measured 22.75 inches long with a head circumference of 39.5 cm. Id. Those measurements put him at the low end of the normal range for weight and slightly under the normal range for body length and head circumference. Id. Dr. Verna wrote that J.J. was "[w]ell-appearing, alert, well hydrated, and active." Id. She noted the following about J.J.'s growth and development: "Turns toward voices, visual track 180 degrees, laughs, no head lag when pulled to sitting position, brings hands together, and reaches for objects." Id. at 4. The physical examination portion of the note reflects no abnormalities, including "[n]o nasal discharge seen." Id. at 3. J.J. received HBV, rotavirus, DTaP, HiB, IPV, and pneumococcal conjugate vaccines during the visit. Id. at 5. The note reflects that the vaccines were administered between 5:40 p.m. and 6:24 p.m. that evening. Id. at 4-5. J.J.'s parents were instructed to give him Tylenol every four hours for 48 hours after vaccination. Id. at 4.
The next morning, on November 15, 2012, a 911 call was made from Petitioners' residence at around 9:49 a.m. Pet'rs' Ex. 8 at 1 (filed on compact disk; ECF No. 6). The caller described J.J. and stated: "He's not breathing." Id. An ambulance was dispatched and arrived at Petitioners' home at 9:53 a.m. Id. EMS crew members evaluated J.J. and found him to be unresponsive, with non-reactive pupils and absent lung sounds. Id. at 3. The crew members documented that J.J.'s skin color was either cyanotic
The attending physician upon arrival at the hospital was Dr. Ye Aung. He and a resident authored a note which includes a timeline of events provided by Petitioners. Pet'rs' Ex. 9 at 15-19. The note reflects that J.J. had received vaccinations in the previous evening and had been given Tylenol. Id. at 16. Petitioners reported that J.J. "was a bit cranky," that he was fed formula around 9:30 p.m., and that he was put to bed at around 11:00 p.m. Id. Petitioners stated that the next morning, Ms. Nunez awoke at around 8:30 a.m., found J.J. and his twin sister sleeping, and took the older sister to school. Id. Mr. Diaz brought J.J.'s twin sister to the living room at approximately 9:00 a.m. because she had awakened and J.J. remained sleeping. Id. Ms. Nunez returned home at around 9:30 a.m. and checked on J.J. She saw that "his face [was] all blue and unresponsive[.]" Id. Ms. Nunez "carried [J.J.] to the living room, called 911, and started a cardiopulmonary resuscitation on him." Id.
The note also includes a timeline that Petitioners provided to a social worker at the hospital. Pet'rs' Ex. 9 at 15. According to the note, Petitioners relayed that Ms. Nunez last checked on J.J. and his twin sister at 11:00 p.m. the previous evening. Id. J.J. and his twin sister "slept thr[ough] the night as always[.]" Id. The next morning, Ms. Nunez took her oldest daughter to school after checking on the twins. Id. Mr. Diaz relayed that J.J.'s twin "started crying [and] he hurried up to pick her up so she would not wake" J.J., who "appeared to be asleep[.]" Id. When Ms. Nunez returned home, she observed Mr. Diaz and J.J.'s twin sleeping together, and she checked on J.J. Id. At that point, Ms. Nunez "noticed [J.J.] was not breathing and screamed" for Mr. Diaz. Id. Ms. Nunez "tried blowing in [J.J.'s] mouth[,]" and Mr. Diaz "called the police." Id. The note reflects that the social worker contacted the authorities, but that child services "decline[d] to [a]ccept the case[,] [c]iting [the] M.D. rul[ing]" that the cause of death was SIDS. Id.
An autopsy was performed on November 16, 2012, by Dr. James Gill. Pet'rs' Ex. 10 (filed on compact disk; ECF No. 6). Dr. Gill's report reflects that J.J. was "a well-developed, well-nourished, average-framed, 23[-inch-long], 14-pound" boy, with no evidence of recent injury. Id. at 5. The head was "turned to the right on presentation." Id. Dr. Gill noted bandages on the thighs, commenting that there were "recent vaccinations." Id. Dr. Gill indicated that the myocardium, lungs, liver, kidneys, spleen, intestines, stomach, esophagus, laryngeal wall, thyroid gland, and thymus gland were unremarkable, although petechiae
Under a section of the report entitled "Final Diagnoses," Dr. Gill wrote the following:
Id. at 3. Dr. Gill ruled that the "cause of death" was "Sudden Infant Death Syndrome" and the "manner of death" was "natural." Id.
An examination of the brain was performed by Dr. Hernando Mena on November 27, 2012. Pet'rs' Ex. 10 at 10. The brain weighed 618 grams. Id. Dr. Mena wrote that microscopic examination revealed "recative [sic] astrocytes
The accuracy of the medical records is not in dispute in the case. Both parties agree on the date and circumstances surrounding J.J.'s vaccinations as represented in the medical records. Additionally, J.J.'s medical history is not disputed by either party, although different conclusions are drawn from symptoms and test results within the record. Both parties also agree that J.J.'s cause of death was SIDS and that all the information noted in the autopsy report is accurate; however, the significance of any objective finding may be in dispute.
Ms. Nunez filed two affidavits and Mr. Diaz filed one affidavit. Pet'rs' Exs. 3-4, 39 (filed on compact disk; ECF No. 6), ECF No. 71-2. The affidavits were consistent with the medical records detailing Ms. Nunez's pregnancy and the twins' medical histories. Ms. Nunez wrote that J.J. "had respiratory problems due to lung immaturity and was placed on a CPAP machine[, and that h]e was also placed on antibiotics and in photo therapy for jaundice." Pet'rs' Ex. 3 at 2; see also Pet'rs' Ex. 4 at 2. Both parents also wrote that "[a]ll testing that was done on [J.J.] came back normal" and he "was the healthier, stronger of the two" twins. Id. They wrote that J.J. was discharged from the NICU on August 31, 2012, while his twin remained in the NICU until September 7, 2012. Id. Ms. Nunez wrote that the twins "slept together at opposite ends of their crib. When they were put to bed at night, they each had a light blanket that [she] tucked around their waist. There were no pillows in their crib." Pet'rs' Ex. 39 at 1.
Ms. Nunez and Mr. Diaz both wrote that J.J. was examined and found to be "a healthy baby" at his first well-baby visit on September 13, 2012. Pet'rs' Ex. 3 at 2-3; Pet'rs' Ex. 4 at 2. They described a call to the pediatrician in October 2012 because J.J. "had a stuffy nose." Pet'rs' Ex. 3 at 3; Pet'rs' Ex. 4 at 2. They wrote that Ms. Nunez "was told to use saline." Id. After that, Ms. Nunez wrote that J.J. "continued to thrive." Pet'rs' Ex. 3 at 3. Mr. Diaz wrote that J.J. "was growing and getting stronger." Pet'rs' Ex. 4 at 2.
Both parents wrote that J.J. had his four-month visit with Dr. Verna on November 14, 2012, at approximately 7:00 p.m. Pet'rs' Ex. 3 at 3; Pet'rs' Ex. 4 at 2. Both also wrote that J.J. and his twin sister "had runny noses and productive coughs" on that date. Id. Ms. Nunez wrote that Dr. Verna "did not perform a physical examination" on either twin and that "neither their ears [n]or chests were checked." Pet'rs' Ex. 3 at 3. Mr. Diaz wrote that Ms. Nunez "pointed out [the symptoms of runny nose and cough] to the doctor." Pet'rs' Ex. 4 at 2. The parents wrote that Dr. Verna weighed, measured, and administered vaccinations to the twins. Pet'rs' Ex. 3 at 3; Pet'rs' Ex. 4 at 2.
Both parents wrote that they returned home at approximately 8:30 p.m. that evening. Pet'rs' Ex. 3 at 3; Pet'rs' Ex. 4 at 3. J.J. was fed and given Tylenol because he "was fussy and his nose was still running." Id. Ms. Nunez added that J.J. "did not have any fever." Pet'rs' Ex. 3 at 3; see also Pet'rs' Ex. 39 at 1. The parents wrote that J.J. was placed in a vibrating chair and fell asleep at around 10:30 p.m. Pet'rs' Ex. 3 at 3; Pet'rs' Ex. 4 at 3. He was moved to his crib, which he shared with his twin, at approximately 11:30 p.m. Id.
Ms. Nunez wrote that J.J. usually "slept through the night from 11 p.m. until 8 a.m." Pet'rs' Ex. 3 at 3. Ms. Nunez described checking on J.J. and his twin sister the next morning at 8:00 a.m., when she found them both sleeping. Id.; Pet'rs' Ex. 39 at 3. Mr. Diaz wrote that at around 9:15 a.m., he "heard that [J.J.'s twin] was up and immediately went in to get her so she would not wake [J.J.] if he was still asleep." Pet'rs' Ex. 4 at 3. Mr. Diaz wrote that J.J. was still asleep at that time, so he took J.J.'s twin out of the room to change and feed her. Id. Mr. Diaz also wrote that when Ms. Nunez arrived home, she "immediately went in to check on [J.J.] since he never slept that late." Id. Ms. Nunez wrote that when she found J.J., his "eyes were open and his mouth was blue" but he was warm. Pet'rs' Ex. 3 at 4; see also Pet'rs' Ex. 39 at 3. Mr. Diaz described J.J. in the same manner. Pet'rs' Ex. 4 at 3. Ms. Nunez wrote that she began CPR, which caused the "blueness around his mouth [to go] away," but "a lot of mucus [was] coming out of his mouth and nose." Pet'rs' Ex. 3 at 4; see also Pet'rs' Ex. 4 at 3. The parents wrote that an ambulance arrived around 15 minutes later, and J.J. was taken to the hospital where they were told he had died. Id.; Pet'rs' Ex. 39 at 3.
Ms. Nunez did not initially describe J.J.'s health on the day of his four-month well-baby visit during her testimony. On cross-examination and re-direct, both counsel referenced her written statements describing J.J.'s "runny nose" and "productive cough" at the time of that visit. Tr. 20:14-15, 22:5-10. Ms. Nunez affirmed those statements. Tr. 20:16, 22:11. Ms. Nunez then testified that J.J. had a stuffy nose in October of 2012 that was "no longer stuffy on the day of his appointment . . ." Tr. 22:14-22. She testified that his stuffy nose occurred in the beginning of October, and she administered saline drops "for a couple of days" until J.J. "had just a runny nose, [which] was from [her] giving him saline drops." Tr. 23:14-23. She emphasized that the stuffy nose from early October went away and was replaced by the runny nose, which "got better" with time. Tr. 23:24-24:4. Ms. Nunez clarified that "he still had [the runny nose], but just not so often." Tr. at 24:6-7. She testified that on the day of his four-month appointment, his nose was "just runny" with "very light, clear . . . mucus," which she attributed to allergies. Tr. 22:18-21. She stated that "he had a cough as well" during the appointment, but she said it was "less" of a cough than when it started with the congestion in early October. Tr. 22:21-22, 24:10-16. Ms. Nunez denied that she was "concerned about the stuffy nose, the runny nose[,] or the cough" on the day of J.J.'s four-month visit. Tr. 24:19-21.
Ms. Nunez stated that, other than being "a bit cranky" and "[a] bit more fussy," J.J. was behaving normally and "it was just like another day" after his four-month appointment. Tr. at 14:16-22. She stated that J.J. was fed approximately twice before being put to bed. Tr. 14:23-15:2. Ms. Nunez testified that J.J. was both breast- and bottle-fed. Tr. 21:20-23.
Ms. Nunez testified that J.J. and his twin sister slept together in one crib, lying with space between them and their heads on opposite ends of the crib. Tr. 13:4-9. The crib contained a crib sheet and a thin receiving blanket tucked "under [J.J.'s] waist [and] around his thighs and leg area." Tr. 15:3-12. There were no bumpers, blankets, bedding, stuffed animals, or pillows in the crib. Tr. 15:10-11. Ms. Nunez testified that she never placed J.J. on his belly when putting him to sleep, and J.J. was not yet able to roll over on his own. Tr. 15:23-16:8.
Ms. Nunez testified that she woke up at around 6:30 a.m. the next day to get J.J.'s older sister ready for school. Tr. 17:1-3. She saw J.J. "sleeping on his back [in] the same position [she] left him [i]n, [with] the blanket still . . . around his thighs [and] under his waist," at approximately 6:45 a.m. Tr. 17:5-8.
Ms. Nunez's testimony with respect to the chronology immediately following J.J.'s vaccination and leading up to his death was consistent with the information provided in the affidavits filed in this case. Ms. Nunez's responses to questions regarding the severity of J.J.'s symptoms on the date of his vaccination and his mobility were less clear. For example, Ms. Nunez's testimony regarding whether J.J. could successfully roll over or push up when he "would try to roll his neck and just like push his hands . . . ." was inconsistent. Tr. 21:7-12. Also, Ms. Nunez testified that she pointed out J.J.'s symptoms of cough and runny nose to the doctor on the day of J.J.'s vaccinations, but she testified that she was not concerned about either at the time. Tr. 24:19-21.
Petitioners' expert, Dr. Douglas Miller, authored three expert reports and testified at the entitlement hearing. Pet'rs' Exs. 12, 37, 38, ECF Nos. 21-2, 44-1, 71-1; Tr. 26-122, 338-371. Dr. Miller is a neuropathologist with experience in academia and forensic practice. Pet'rs' Ex. 12 at 1. He is board certified in anatomic pathology and neuropathology. Id. He currently serves as a clinical professor in the Department of Pathology and Anatomical Sciences at the University of Missouri School of Medicine, where he has been employed since December 2007. Id.
Dr. Miller has published more than 150 articles and book chapters, co-authored a text-atlas of neurology, and is the sole author of a surgical neuropathy text. Id. at 2. In addition to academia, he has been a consultant neuropathologist for various hospitals and medical examiners. Id. He currently serves as associate medical examiner as part of his duties at the University of Missouri, where his office provides forensic autopsy services throughout the state. Id. His neuropathology experience includes analysis of infant deaths where SIDS is suspected. Id. Dr. Miller testified that in his current position, he completes "the neuropathology parts of autopsies" with residents. Tr. 29:3-4. Dr. Miller has "been an expert witness in many legal cases, both civil and criminal, including many infant deaths in which SIDS has been either suspected prior to autopsy or suggested as an alternative diagnosis to one of traumatic brain injury." Pet'rs' Ex. 12 at 2. Dr. Miller has testified three times in the United States Court of Federal Claims regarding potentially vaccine-related injuries and deaths. Id.
Dr. Miller is not an immunologist. Tr. 87:10-12. Dr. Miller does not have educational or clinical experience in pediatrics. Tr. 87:13-14. At the hearing, Petitioners did not seek to admit Dr. Miller as an expert in any specific area. Respondent, however, did not object to Dr. Miller's testimony, and the undersigned did not limit his testimony. Based off Dr. Miller's filed CV and his testimony describing his research and practice areas, the record provides evidence that his expertise lies in neuropathology. Dr. Miller has also testified previously in the Program as an expert in neuropathology, specifically in cases that alleged vaccine-caused SIDS. Jewell, 2017 WL 7259139; Boatmon v. Sec'y of Health and Human Servs., No. 13-611V, 2017 WL 3432329 (Fed. Cl. Spec. Mstr. Jul. 10, 2017); Copenhaver v. Sec'y of Health & Human Servs., No. 13-1002V, 2016 WL 3456436 (Fed. Cl. Spec. Mstr. May 31, 2016); Lord v. Sec'y of Health & Human Servs., No. 12-255V, 2016 WL 806818 (Fed. Cl. Spec. Mstr. Feb. 9, 2016).
Dr. Rebecca Folkerth issued two reports in this case and testified at the entitlement hearing on behalf of Respondent. Resp't's Exs. C, F, ECF Nos. 41-1, 56-1; Tr. 122-177. Dr. Folkerth received her medical degree from the University of Louisville School of Medicine. Resp't's Ex. C at 2. She completed her residency in anatomic pathology and a fellowship in neuropathology before establishing a practice at Brigham and Women's Hospital Department of Pathology. Id. Dr. Folkerth holds board certifications in anatomic pathology, neuropathology, and cytopathology. Id. Dr. Folkerth is a clinical associate professor at New York University School of Medicine in the Forensic Medicine Department and the neuropathologist for the Office of the Chief Medical Examiner in New York City. Tr. 124:7-10. She has written over 100 peer-reviewed articles covering various issues in pathology. Resp't's Ex. C at 2.
The undersigned finds that Dr. Folkerth's testimony was generally consistent with the filings and essentially limited to a discussion of whether J.J.'s death was properly categorized as SIDS. There was no disagreement between the parties that J.J.'s death was properly categorized as SIDS, and on cross-examination, Dr. Folkerth was asked whether J.J. had a brainstem defect that made him more vulnerable to SIDS. Dr. Folkerth stated that given his brainstem gliosis, "[i]t's probably likely, more likely than not" that J.J had a defective medullary serotonergic system. Tr. 134:3-6. She does not, however, believe that this is "necessarily indicative of a vulnerability to SIDS." Tr. 133:13-14. Instead, Dr. Folkerth opined that the gliosis "is a marker for whatever leads to various apneic periods" and should be seen as "an indicator of some sort of previous mild or chronic hypoxic ischemic changes." Tr. 133:24-25.
Dr. Christine McCusker authored two expert reports and testified during the hearing on behalf of Respondent. Resp't's Exs. A, E, ECF Nos. 37-1, 51-1; Tr. 178-337. She received her Master of Science in Molecular Virology and Immunology and her M.D. from McMaster University in Hamilton, Ontario. Resp't's Ex. B at 1, ECF No. 37-2; Tr. 178:25-179:1. Dr. McCusker then completed a clinical fellowship in allergy and immunology at McGill University in Montreal, Quebec. Id. at 2. She is board certified in pediatrics and currently works as a staff physician in the Emergency Department and an associate professor in the Department of Pediatrics, Division of Allergy and Immunology (Pediatric) of Montreal Children's Hospital and McGill University. Id. at 2-3.
Dr. McCusker has taught several courses at the undergraduate and graduate levels on biochemistry, cytokines, and the development of the immune system in infancy. Tr. 181:20-182:3. She has published peer-reviewed articles on pediatric immunology and specifically cytokine activation. See Resp't's Ex. B. Dr. McCusker has testified previously in the Program, specifically in cases that allege vaccine-caused SIDS. Jewell, 2017 WL 7259139; Boatmon, 2017 WL 3432329.
Dr. Miller opined that "there is no evidence of any acute process in the brain which would have been a cause of death" for J.J., such as meningitis. Pet'rs' Ex. 12 at 4; see Tr. 33:22-24. Dr. Miller stated that J.J.'s death was properly categorized as a SIDS death. Tr. 39:21-22. He emphasized that "SIDS is a syndrome, not a disease[.]" Pet'rs' Ex. 38 at 4. He testified that SIDS "has lots of different potential causes, not all of which are fully understood." Tr. 39:18-20. Dr. Folkerth similarly noted that the medical examiner "designated the cause of death as `Sudden Unexpected Death in Infancy.'" Resp't's Ex. C at 5. Dr. Folkerth further opined "that this case falls into the category of SUDI/SIDS."
Dr. Miller opined that J.J. meets the criteria for the "Triple Risk Model" of SIDS, which was "formulated by Dr. Hannah Kinney quite a few years ago." Pet'rs' Ex. 12 at 4 (citing Pet'rs' Ex. 14, ECF No. 91-2
The Triple Risk Model, as described by Dr. Kinney and Dr. Filiano in a 1994 article, proposes that "sudden death in SIDS results from the intersection of three overlapping factors: (1) a vulnerable infant; (2) a critical developmental period in homeostatic control[;] and (3) an exogenous stressor [or stressors]." Pet'rs' Ex. 14 at 1-2.
Dr. Kinney's model favors "evidence [that] suggests that SIDS involves a convergence of stressors that probably results in the asphyxia of a vulnerable infant who has . . . defective . . . defense systems . . . ." Pet'rs' Ex. 37, Tab C at 8, ECF No. 93-4.
Vulnerability is not clearly defined by any of the experts or the medical literature, but the designation serves to identify the pool of infants that are more likely to suffer from SIDS using their common traits. These traits, or intrinsic risks, are genetic or environmental in nature and affect susceptibility, such as prenatal exposure to cigarettes and maturity at birth. Resp't's Ex. A, Tab 5 at 2, ECF No. 38-5.
Intrinsic risk factors were discussed by each expert in varying contexts. At times, intrinsic factors were discussed in relation to infant vulnerability, and at other times they were considered in combination with certain other "risk factors" that fall into the category of exogenous stressors. See, e.g., Tr. 81; Pet'rs' Ex. 37 at 6; Resp't's Ex. C at 5. Dr. McCusker also discussed intrinsic risk factors as part of her "critical window" analysis. Resp't's Ex. E at 3-4. All the experts agreed that J.J. was born prematurely and was a male, and that both of those facts increased his relative risk of SIDS. Tr. 51: 16-23, 81:4-6, 134:24, 172:10-12, 208:13-14; Resp't's Ex. C at 5; Resp't's Ex. E at 3-4. They do not all agree, however, on whether J.J. qualified as a "vulnerable infant" under the Triple Risk Model. J.J.'s male gender and prematurity certainly did not cause him to die from SIDS, but both are specifically identified by Dr. Kinney as risk factors that would have statistically increased his chances of suffering from SIDS.
Dr. Miller testified that one major potential vulnerability under the Triple Risk Model is a developmentally defective medulla. He explained that medical and scientific literature has shown that "the brain structures responsible for regulation of respiration, including those that sense increased blood carbon dioxide levels during sleep and respond[] to them with arousal and increased (gasping) breathing, reside in the medulla in a network of nuclear structures which use serotonin as their neurotransmitter." Pet'rs' Ex. 12 at 4 (citing Pet'rs' Exs. 15-21, ECF Nos. 91-3-9
Dr. Miller explained that "[i]n an infant with such a defective brainstem, during the period of early post-natal life before full maturation of brain systems that regulate heart rate, respiratory activity, sleep, and related autonomic functions, one or more external `stressors'" can cause a life-threatening situation in one of two ways. Pet'rs' Ex. 38 at 4. External stressors can "suppress the normal homeostatic responses mediated by this medullary serotoninergic network, leading to a failure of homeostasis and death." Id. Alternatively, external stressors "can create a dangerous situation, such as apnea, to which the medullary mechanisms which ought to respond by producing arousal just fail to do so." Id.
Dr. Miller explained that all humans "experience periods of apnea" during sleep, meaning that there are periods where "we stop breathing in sleep." Tr. 45:22-23. Normally, the period is brief and a person wakes up, "or at least arouse[s] enough to breathe again." Tr. 45:23-25. If pillows or other objects are obstructing an infant's face, the infant will re-inhale carbon dioxide-rich air, which will lead to an increase in blood carbon dioxide levels. Tr. 46:9-19. Under normal circumstances, if the body's "level of CO2 rises above a safe level during sleep, the arcuate nuclei should detect that[] and respond by signaling through their neurotransmitter serotonin to other nuclei in the network to stimulate arousal and gasping respirations." Pet'rs' Ex. 38 at 4-5. Dr. Miller wrote that it is "suppression of this network's activity" that is thought to provoke SIDS in a vulnerable infant. Id. at 5. Infants with "various different defects in the medulla," particularly where the "arousal mechanism, which is mediated by serotonin neurons, is defective," will not wake up. Tr. 46:25-47:3. As a result, carbon dioxide levels continue to rise, eventually leading to death. Tr. 47:3-6. Dr. Miller explained that under the Triple Risk Model, "there are various things which can cause stress on the brainstem functions, which then get no response or an inadequate response" from the defective arousal mechanism when there is an apnea event. Tr. 46:1-7.
Dr. McCusker also acknowledged that studies suggest that infants who die of SIDS may have "intrinsic defects in the autonomic nervous system with inadequate compensation[,] which when stressed[,] can lead to death." Resp't's Ex. E at 3 (citing Resp't's Ex. E, Tab 1, ECF No. 52-1;
Dr. Miller criticized the examination of the brain in this case, describing it as "suboptimal." Pet'rs' Ex. 12 at 3. Dr. Miller explained that "[t]here is only one level of medulla available for histological examination[.]" Id. Furthermore, he explained that "[t]he hippocampus section is overly small, and at a rather more anterior level than is ideal for examination."
Dr. Folkerth did not agree with Dr. Miller's assessment that the brain examination was "suboptimal," because she explained that "only one level of the medulla is necessary to confirm an impression of SUDI/SIDS." Resp't's Ex. C at 6. She wrote that studies which have "detected abnormalities in the medulla, principally of the serotonergic system," rely on "
Dr. Miller testified that the autopsy of the brain in this case showed "markers" of defects associated with the medulla. Tr. 48:2-4. Dr. Miller opined that "the [arcuate] nuclei in the single section available" from the examination performed in this case "are at least somewhat hypoplastic,
Dr. Folkerth wrote in her report that "[a] single section of the medulla may or may not show . . . aplasia or hypoplasia of the arcuate nucleus[.]" Resp't's Ex. C at 6. She did not provide an opinion in her reports as to whether J.J. may have had a brain defect that would qualify him as a vulnerable infant. She wrote only that "[t]he arcuate nucleus was present in the medulla." Id. at 5. In her testimony, Dr. Folkerth opined that a single section of medulla is "adequate to exclude a diagnosis of hypoplasia for the most part." Tr. 131:22-25. She testified that she could not remember and did not write anything down about the arcuate nuclei "appearing small or otherwise abnormal" upon her review of the slide. Tr. 131:25-132:2. Therefore, she testified that she did not "feel that there were enough grounds to say anything regarding arcuate hypoplasia," and later opined more definitively that she does not "think the arcuate nucleus is small." Tr. 132:2-4, 137:10-11. Dr. Folkerth wrote in her report that the "[d]eep cerebral white matter had some prominent reactive astrocytes." Resp't's Ex. C at 5. Additionally, Dr. Folkerth noted that "[s]ections of midbrain, pons, and medulla were notable for rare reactive astrocytes in the median raphe[] and in the inferior olivary nucleus." Id. Dr. Folkerth opined that "[g]liosis is a result of any kind of injury," and is therefore "not specific in the least." Tr. 130:24-25. She agreed with Dr. Miller's assessment that "they're sort of the scar cells of the brain," noting that they can be seen "following all sorts of processes," such as "infection[, lack of] oxygen[,] or actual mechanical trauma or seizures." Tr. 131:2-10. Dr. Folkerth opined that gliosis does not "necessarily have a lot of significance when [it is] very limited, as in this case." Tr. 131:15-16. Dr. Folkerth further opined that evidence of gliosis is "not necessarily indicative of a vulnerability to SIDS." Tr. 133:13-14. She testified that gliosis is "a marker for whatever leads to various apneic periods that result in gliosis." Tr. 133:23-24.
Despite her opinions regarding the autopsy findings, Dr. Folkerth conceded that J.J. "could very well have had, [and] probably did have[,] an intrinsic brain stem abnormality." Tr. 159:1-3. Dr. Folkerth testified that J.J.'s "brain stem was not studied to look for specific serotonergic defects, so none of us in this room can say whether he had them or not." Tr. 137:23-138:1. Continuing, she testified that "based on the information we have [and] using the routine diagnostic standards that we use, [she] think[s] [J.J.'s death] completely fits a SIDS picture." Tr. 138:1-3. Thus, she explained that "we're sort of inferring that since J.J. died of SIDS and since most babies who die of SIDS have a brain stem defect, more likely than not he did." Tr. 168:25-169:2.
Dr. Folkerth wrote that a "vulnerable infant" under the model has "features such as premature delivery, exposure to cigarette smoke, [or] male gender[,]" and she noted that both prematurity and male gender are applicable in this case. Resp't's Ex. C at 5-7.
Based on all the evidence, the undersigned finds that it is more likely than not that J.J. had a brain defect which, along with his male gender and prematurity, qualified him as a "vulnerable infant" under the Triple Risk Model of SIDS. Dr. Miller persuasively opined that the arcuate nuclei in the single section of medulla available for examination were "at least somewhat hypoplastic[.]" Pet'rs' Ex. 12 at 4. Dr. Folkerth agreed that, statistically, "[i]t's probably likely, more likely than not," that J.J. had a defective medullary serotonergic system.
The critical development period is defined by Dr. Kinney as the first year of life, with "the peak age being between 2-4 months of age." Resp't's Ex. E at 3. The window of time is significant because it "coincides with progression both in brain and in lung development." Id. at 3-4. All three experts reviewed the medical records and concur that J.J. died from SIDS the day after his receipt of four vaccines that were administered during his four-month well-baby examination. This fits squarely within the critical development period and is not in dispute.
An exogenous stressor, or "extrinsic risk," is "defined as a physical stressor around the time of death that may increase the risk of SIDS for an already vulnerable infant." Resp't's Ex. A, Tab 5 at 2-3. Dr. McCusker cited Dr. Kinney's findings from a 2012 study that found that ninety-nine percent of SIDS infants "had at least 1 [intrinsic or extrinsic] risk factor." Resp't's Ex. A at 3 (citing Resp't's Ex. A, Tab 5 at 3). Dr. Kinney reported in that same study that "75% [of SIDS infants] had at least 1 of each [extrinsic and intrinsic risk factor]" and "[t]he majority (57%) had at least 2 extrinsic risks and 1 intrinsic risk factor." Resp't's Ex. A, Tab 5 at 3. Dr. McCusker testified that "there is a suggestion that there is an increased frequency of sudden infant death if there is more than one risk factor," although the total number of risk factors "doesn't appear to . . . make a difference." Tr. 268:23-269:5. She also noted that "you can have sudden infant death with none" of the identified risk factors present. Tr. 269:9.
Dr. McCusker explained that "extrinsic factors," which have been "identified through the epidemiological studies," are "those elements which may contribute to a change in the mechanics of respiration, as opposed to the neurochemical." Resp't's Ex. A at 3. She also described them as "those factors that are consistent with hypoxia[-]generating conditions[.]" Resp't's Ex. E at 5, (citing Pet'rs' Ex. 37, Tab C
Dr. McCusker wrote that, "[i]n the case of [J.J.], he was
In contrast, Dr. Miller opined that some of the stressors which are generally accepted as having an association with SIDS do not involve obstruction of an infant's airway. For example, he wrote that "[t]here is clear evidence that hyperthermia, whether from an overly warm external environment . . . or fever, is another external stressor[.]" Pet'rs' Ex. 37 at 6. Dr. Miller continued that this condition is distinguished from the stressor of airflow obstruction seen with prone sleeping, co-sleeping, or blanket use, and "it is unlikely to have its effect through any obstruction of airflow." Id. He further opined that "[t]here is equally clear evidence that [URIs] provoke cytokine responses which have central nervous system [("CNS")] actions, not as inflammatory mediators but as modifiers of synaptic activity[.]" Id.
Dr. Miller wrote that the majority of SIDS cases involve the presence of two or more stressors. Pet'rs' Ex. 38 at 5. He explained that the "stressors interact, and their combined effects are likely to be multiplicative or geometric rather than just additive." Id. However, Dr. Miller emphasized that it "is impossible with present knowledge" to apportion the relative contribution that each stressor would have had. Id. at 6. He wrote that "each would represent a substantial contributing factor." Id. Dr. Miller opined that "the most important potential external stressor" for J.J. was the series of vaccinations he received on November 14, 2012. Pet'rs' Ex. 12 at 4. He asserted that J.J.'s only other risk factors were prematurity and male gender, which are both intrinsic. Dr. Miller testified that there was no evidence of a URI or any other infection. Tr. 82:21-23.
Dr. Gill's autopsy report identified J.J.'s final diagnosis as SIDS. He then listed additional information which, if not ultimately deemed relevant, was at least initially considered prior to determining the cause of death. Dr. Gill's list included intrinsic SIDS risk factors, extrinsic risk factors, recent medical history, and test results. Pet'rs' Ex. 10. Several of the items listed were used to rule out other potential causes of death before SIDS could be considered, e.g., URI history, influenza studies, and cerebrospinal fluid ("CSF") cultures. Id. Other items were identified as SIDS risks factors, such as J.J.'s prematurity and history of co-sleeping. Dr. Gill also listed J.J.'s "recent immunizations", but there is no indication of what, if any, significance Dr. Gill gave this part of J.J.'s medical history. It is also unclear whether this line item was an example of something that was ruled out as a cause (see influenza studies: negative) or identified as a possible contributing risk factor (co-sleeping with twin).
Dr. Miller wrote that "the data on the risks of co-sleeping" largely involve an infant sleeping in the same bed or on a couch with an adult. Pet'rs' Ex. 38 at 2. He explained that such co-sleeping creates a "hazardous sleeping condition" because it may cause "accidental asphyxiation of the infant when the adult rolls over in his or her sleep and smothers the child, without awakening." Id.
Dr. Miller explained that co-sleeping as a potential external stressor in this case is "almost certainly a red herring, for two reasons[.]" Pet'rs' Ex. 37 at 6. First, J.J. was sleeping with his approximately equal-sized twin sister in a crib, as opposed to with an adult or older sibling in an adult bed. Id. Dr. Miller noted J.J.'s "twin was not large enough to cause asphyxiation should the two of them end up with one on top of the other[,]" and the crib "was large enough for them to be entirely separate, so there was no chance for such an interaction to occur." Pet'rs' Ex. 38 at 2. Second, the evidence suggests that his twin sister was removed from the crib before he experienced the event which ultimately led to his death.
In her testimony, Dr. Folkerth agreed that co-sleeping is "[p]robably not" a risk factor in this case based on Ms. Nunez's testimony that J.J. and his twin sister slept at opposite ends of the crib. Tr. 177:11-16. Dr. McCusker similarly testified that based on Ms. Nunez's testimony regarding how the infants were sleeping at opposite ends of their crib, she "would say that this [co-sleeping] would not be considered a risk factor." Tr. 284:13-20. Based on the record as a whole, including Ms. Nunez's testimony and Respondent's experts' ultimate concessions based on that testimony, the undersigned finds that co-sleeping was not a relevant risk factor in this case.
Dr. Folkerth provided "soft bedding" and "hyperthermia/overbundling" as examples of exogenous stressors under the Triple Risk Model. Resp't's Ex. C at 6. Dr. McCusker also described two ways in which over-bundling is thought to be a risk factor for SIDS. Tr. 206:6-16. She testified that a high ambient temperature can be a risk factor because it can affect the sleep/wake cycle and respiratory rates. Tr. 206:6-11. Additionally, she explained that over-bundling can create a situation where an infant's startle reflex is compromised, such that if there is a respiratory problem, the infant will not be able to startle himself awake. Tr. 206:14-22. Dr. Miller noted that "[t]here is clear evidence that hyperthermia, whether from an overly warm external environment . . . or fever, is another external stressor[,]" separate from the stressor of airflow obstruction seen with blanket use. Pet'rs' Ex. 37 at 6.
Dr. McCusker testified that the blanket tucked around J.J.'s legs was not "the equivalent of bundling, but it is not recommended, because it's considered an increased risk factor for sudden infant death." Tr. 288:4-6. Dr. McCusker testified that the Pediatric Task Force concluded that "things should not . . . encircle the infant." Tr. 287:13-14 (citing Resp't's Ex. A, Tab 7,
Dr. McCusker's late addition of the loosely tucked sheet as a risk factor in this case is not persuasive. None of the experts testifying in this case suggested that the crib sheet led to hyperthermia or asphyxiation in J.J. Additionally, the undersigned does not find that the Pediatric Task Force considered a sheet loosely tucked underneath an infant's legs to be a risk factor separate from hyperthermia-inducing over bundling or mechanical obstruction. In the section that Dr. McCusker referenced, the authors recommend that infants sleep on "a firm sleep surface," and more specifically, "[a] firm crib mattress, covered by a fitted sheet[.]" Resp't's Ex. A, Tab 7 at 3. The sentence referenced by Dr. McCusker during her testimony appears in a paragraph regarding such mattresses, which states in pertinent part:
Id. By leaving out the context of the sentence that she read, Dr. McCusker did not accurately portray the authors' concerns regarding the use of a sheet. Dr. McCusker conceded that there were no other soft materials in the crib, other than the sheet. Tr. 287:20-24. Therefore, the undersigned finds that the use of a receiving blanket in this case, based on Ms. Nunez's description of how she loosely tucked it around J.J.'s legs, was not a relevant risk factor for SIDS.
Dr. McCusker wrote that breastfeeding and pacifier use are considered "`protective' factors in SIDS[,]" because infants with those factors "rouse more easily and more frequently compared to those bottle fed." Resp't's Ex. E at 5 (citing Tabs 4,
The risk associated with bottle feeding is very different than the exogenous stressors such as prone sleeping or co-sleeping, which are associated with the "mechanics of respiration." Resp't's Ex. A at 3. Although breastfeeding's protective effect was not explained, the literature that Dr. McCusker filed reflects that "[b]reastfeeding is associated with a reduced risk of SIDS[,]" and "[t]he protective effect of breastfeeding increases with exclusivity." Resp't's Ex. A, Tab 7
Dr. Miller testified that "one of the risk factors that [has] been statistically highly important" in SIDS cases is having a mild infection. Tr. 53:7-9. He explained that the infection can be either a mild or trivial URI or a gastrointestinal infection. Tr. 53:9-11. In his reports, Dr. Miller wrote that "[a]mong the described external stressors[,] the presence of a URI is prominent[,]" noting that studies have found URIs or other minor infections may be present in anywhere from 20 percent to over 80 percent of SIDS cases. Pet'rs' Ex. 38 at 4.
Dr. Miller argued that "[t]he mechanism whereby [URIs or other minor] infections increase the risk of a SIDS event . . . is believed to be mediated by cytokines." Id. Dr. Miller explained that the innate immune system produces cytokines, which both "promote the adaptive immune system to react to the pathogens invading the body" and "mobiliz[e] more cells of the intrinsic immune system to attack the pathogens." Id. He opined that "[t]here is . . . clear evidence that [URIs] provoke cytokine responses which have [CNS] actions, not as inflammatory mediators but as modifiers of synaptic activity[.]" Pet'rs' Ex. 37 at 6. He noted that IL-1, IL-6, and tumor necrosis factor ("TNF") are among the cytokines produced in response to infection. Pet'rs' Ex. 38 at 4. Dr. Miller explained that some of these cytokines can cross the blood-brain barrier into CNS tissues. Id. (citing Pet'rs' Ex. 38, Tab D,
Dr. McCusker rejected Dr. Miller's explanation of how a trivial URI increases the risk of SIDS and wrote that "[c]ytokine production with respiratory or gastrointestinal infections have not been defined as factors" in apneic episodes leading to SIDS. Resp't's Ex. E at 6. She further wrote that "[t]here are no studies presented demonstrating that hypercapnia
Instead, Dr. McCusker argued that mild infection as a risk factor for SIDS "has to do with [the] compromising of breathing." Tr. 200:3-4. Specifically, she wrote that URIs "are sufficient to interfere with normal infant respiration and act as a risk factor influencing gas exchange[.]" Resp't's Ex. E at 5. Dr. McCusker explained that URIs "result in intermittent obstruction of the upper airway sufficient to affect the O2/CO2 balance in infants[.]" Resp't's Ex. A at 6 (citing Pet'rs' Ex. 26 at 9,
Dr. McCusker wrote that "[i]nfants are obligate nose breathers and have relatively small nasal passages and airways." Resp't's Ex. E at 5. Therefore, she explained, "[c]ongestion that occurs with seemingly trivial upper respiratory tract infections results in increases in respiratory effort and distress." Id. Dr. McCusker noted that "[i]ncreases in carbon dioxide levels in affected children have been documented in several studies." Id. However, when discussing the articles that she cited for that assertion, Dr. McCusker acknowledged that the studies were not looking at increases in carbon dioxide levels and that "[t]here is no study that measures CO2 levels in SIDS patients." Tr. 275:9-10; see also Tr. 273-283.
Dr. McCusker also wrote that "[e]vidence suggests that the central functions of the cytokines IL[-]103b2, IL[-]6 and TNF[-]03b1 at times of infection are to promote fever and to affect the sleep architecture by increasing [non-rapid eye movement ("NREM")] versus [rapid eye movement ("REM")] sleep resulting in more disturbed sleep with more frequent arousal . . ." Resp't's Ex. A at 5 (citing Resp't's Ex. A, Tabs 19,
On cross-examination, Dr. McCusker was asked about the Rognum et al.
Dr. McCusker wrote that "[n]asal congestion associated with upper respiratory tract infections can compromise infant respiration and increase carbon dioxide[,]" and that "`noisy breathing,' as seen with nasal congestion or obstruction, positively correlates with sleep apnea." Resp't's Ex. E at 6 (citing Resp't's Ex. E, Tab 4
In response to Dr. McCusker's arguments, Dr. Miller argued that "[t]here is no support in the literature" for . . . a mechanical hypothesis[]" of URI as an external stressor, whereby "mechanical obstruction of an infant's nasal passages by mucus causes hypoxia and leads to SIDS." Pet'rs' Ex. 38 at 5. Dr. Miller also disagreed with Dr. McCusker's assertion that increased cytokine activity would lead to increased arousal. Pet'rs' Ex. 37 at 5. Dr. Miller opined that "this mechanism might operate in normal infants[,]" whereas in "infants with defective medullary serotonin networks . . . there cannot be a response to cytokines" as described because of the defect. Id. He also emphasized that the mechanism described by Dr. McCusker in support of her assertion would not be applicable in this case because infants such as J.J. "have not yet developed sleep regulation by circadian rhythms[,]" and the article studied older children. Id. Dr. Miller acknowledged that "over time[,] some cytokines can also stimulate the pituitary-adrenal axis to drive greater production of serotonin in a healthy nervous system[.]" Pet'rs' Ex. 38 at 6. However, he emphasized that in a developmentally defective nervous system, this stimulation "ought not to be regarded as an argument against the hypothesis that infection or vaccine-induced cytokine responses can suppress the medullary serotoninergic network[.]" Id.
The role of cytokines stimulated by mild infection is central to Petitioners' theory in this case, because Dr. Miller compares the cytokine response in mild infection to that of vaccination to explain his theory. The experts drastically diverge in their discussion at this point because Dr. McCusker does not agree with the basis of Dr. Miller's analogy: the mechanism by which a mild infection can increase the risk of SIDS. Dr. Miller points to the Rognum et al.
Dr. Miller wrote that Petitioners' descriptions of J.J. and his twin having "`runny noses and a productive' cough" at the time of their visit to the pediatrician on November 14, 2012, "suggest that J.J. had a URI[.]" Pet'rs' Ex. 38 at 3. However, he noted that references to "runny noses and productive coughs" come from Petitioners' affidavits, which "were put together months after the infant's death[.]" Pet'rs' Ex. 37 at 3.
Dr. Miller highlighted that neither the pediatrician's note from the evening of November 14, 2012, nor the November 15, 2012 EMS and emergency department notes contain any indication that Petitioners described a runny nose or recent URI symptoms at the time of J.J.'s death. Pet'rs' Ex. 37 at 3. Dr. Miller noted in his testimony that the pediatrician's note contains "a lot of specifics . . . in terms of physical examination that are mentioned that are all normal findings, including . . . that there was no nasal discharge." Tr. 32:14-16. He also emphasized that the records from November 15, 2012, reflect only that J.J. was "cranky" after his vaccinations. Pet'rs' Ex. 37 at 4. Dr. Miller testified that he "tend[s] to go with medical records rather than parent recollections" when the two conflict. Tr. 82:15-17. Therefore, Dr. Miller stated that "[f]or the purposes of analyzing potential risk factors" in the Triple Risk Model, he "cannot agree that there is any medical evidence [of] an URI in [J.J.] on the day before his death[.]" Pet'rs' Ex. 37 at 4; see also Tr. 82:21-23.
Dr. Miller conceded that Dr. Gill's autopsy report listed "recent upper respiratory infection" under the "final diagnoses" section but noted that "recent immunizations" is noted on the same list. Pet'rs' Ex. 37 at 3-4. Therefore, Dr. Miller opined that, "[i]f the ME report is to be regarded . . . as reliable as to the history of a recent URI as a contributing factor for SIDS . . ., [then the inclusion of] `[r]ecent immunizations' directly under the diagnosis of the URI [is] presumably equally important as a potential contributor to death in this case." Id. at 4. Dr. Miller opined that if there were medical evidence of a mild infection in this case, "it would be an additional risk factor." Tr. 120:12-15. Dr. Miller opined that if J.J. did have a mild URI at the time of vaccination, it may have "further increase[d] the risk of a SIDS event over the risk of exposure to either stressor[, i.e., mild URI or vaccination,] alone." Pet'rs' Ex. 38 at 6. However, he testified that such a finding would not change his analysis that the vaccines were still a substantial contributing factor for the death. Tr. 120:21-23.
Dr. McCusker discussed URI as a risk factor for SIDS in this case without substantially addressing the contradiction between the medical records and Petitioners' affidavits. In both of her reports, Dr. McCusker wrote that J.J.'s "parents reported nasal congestion, runny nose and cough on the day and evening of November 14, 2012." Resp't's Ex. A at 1; Resp't's Ex. E at 1. In her first report, she opined that J.J. "had symptoms of an upper respiratory tract infection[,]" among his risk factors for SIDS. Resp't's Ex. A at 3. In her second report, Dr. McCusker listed "upper respiratory tract infection (per his parents)[]" as a risk factor in this case. Resp't's Ex. E at 5. In her testimony, Dr. McCusker indicated that she was "[p]erhaps . . . referring to the congestion associated with the upper respiratory tract infection in October" when she included congestion in her summary of symptoms on the evening of November 14, 2012. Tr. 262:15-23. She conceded that there was no parental report nasal congestion on November 14, 2012. Tr. 263:1-4. However, she nonetheless testified that "[t]he presence of the upper respiratory tract infection would be considered a risk factor" in this case. Tr. 208:15-17. With regard to the absence of notation in the medical records regarding URI symptoms on November 14, 2012, Dr. McCusker testified that "on the balance of probabilities, in this situation, when the parents are clearly giving statements related to runny nose and cough at the time of the vaccination, then you have to feel that there was probably some runny nose and cough." Tr. 265:15-19. Dr. Folkerth summarized in her report that the father reported "runny noses and productive coughs," but she acknowledged that "the doctor's note for that visit describes no fever or cough or other abnormality." Resp't's Ex. C at 3. She did not list URI among the risk factors for SIDS in this case. See id. at 7.
Discussing the "final diagnoses" section of the autopsy report, Dr. Folkerth was asked about the significance of the nine listed items underneath "sudden unexpected death in infant." Tr. 169:16-21. Dr. Folkerth agreed that it is "[g]enerally true" that each listed item under the final diagnosis is relevant to the cause of death. Tr. 169:19-22. However, she testified that the office where the autopsy was performed, which is the same office where she now works, receives all the medical records of an infant prior to autopsy. Tr. 172:19-20. Therefore, she opined that the medical examiner, Dr. Gill, "was listing some of the historical [data]—the things that were known about the baby's history as things to be ruled out as possible historical significance to the child," and not necessarily items which he felt were related to the SIDS diagnosis. Tr. 170:4-7.
There is contradicting evidence in the record regarding whether J.J. was exhibiting symptoms consistent with a URI on the day of his death. The medical records do not document any type of infection or note that J.J. suffered any symptoms. However, the affidavits in this case state that J.J. was suffering from runny nose and cough. Additionally, Ms. Nunez testified that on the day of J.J.'s four-month pediatrician appointment, she was not concerned by his symptoms. Tr. 24:19-21. She stated that J.J.'s nose was "no longer stuffy" as it had been in October when he suffered from congestion, and his cough "was getting better."
Dr. Miller wrote that he has seen "well over a dozen" cases of SIDS death within 48 hours of vaccination as part of his regular work as a neuropathologist and as an expert in the Vaccine Program. Pet'rs' Ex. 12 at 5. Dr. Miller explained that "the peak age for SIDS is between 2 and 4 months of post-natal age, corresponding to ages at which infants now receive their first and second rounds of multiple vaccinations." Pet'rs' Ex. 12 at 5; see also Pet'rs' Ex. 15
Dr. Folkerth testified that she has never seen a case where she would attribute a death to vaccination, other than acute immediate reactions. Tr. 173:2-15. Dr. McCusker testified that she does not believe that any vaccine, under any circumstance, could result in SIDS. Tr. 332:16-20.
The 1991 Adverse Effects of Pertussis and Rubella Report concludes that "evidence does not indicate a causal relation[ship] between DPT vaccine and SIDS." Pet'rs' Ex. 34 at 18 (filed on compact disk; ECF No. 22).
In the 2000 article by Jonville-Bera et al.,
The 2007 article by Vennemann et al.
The 2010 paper authored by Traversa et al.
Dr. Miller emphasized that there was "a statistically significant increased risk of sudden death" following the first doses of several vaccinations, although he acknowledged that the authors did not find such a risk after second doses. Tr. 79:12-14. In contrast, Dr. McCusker emphasized the authors' acknowledged limitation of "the confounding effect of age[.]" Resp't's Ex. A at 7. Dr. McCusker also noted that the "association was not seen in older infants with subsequent vaccination." Id. Furthermore, she noted that the authors of that study, "as in others," found a lower immunization rate among sudden unexplained death cases when compared with controls, which she opined "support[s] the concept of the `healthy vaccinee effect' where vaccination appears to reduce the risk of SID[S]." Id.
Dr. McCusker used many of the studies to support her position that "there is no evidence for a role of vaccination in SIDS in the epidemiologic literature." Id. at 9. She wrote that "[w]ell designed publications . . . increase the strength of evidence against a causal association for SIDS and vaccines providing strong epidemiological evidence for temporal association only." Id. at 7 (citing Resp't's Ex. A, Tabs 24,
Dr. McCusker wrote that the findings in the Toro et al.
Dr. Miller testified that there have been "more than several" epidemiological studies which have looked at the potential role of vaccination in sudden infant death and noted that some have found an increased incidence and some have not. Tr. 79:19-22. Dr. Miller also acknowledged that some medical literature reflects no relationship between vaccines and SIDS. Pet'rs' Ex. 12 at 5 (citing Pet'rs' Exs. 34,
The 2012 paper by Kuhnert et al.
Dr. Miller testified that the Kuhnert et al. study has several issues, including use of non-vaccinated individuals as controls. Tr. 35114-352:7. He also opined that "when you start manipulating data over and over again," as he posited was done in that study, "all sorts of biases that just distort [the] study" are introduced. Tr. 353:12-13. He opined that based on that manipulation, he does not view the study as "statistically reliable." Tr. 353:14-15.
Dr. Miller briefly reviewed several articles where there was a temporal correlation found between vaccination and SIDS. Tr. 77:10-79:1 (discussing Pet'rs' Exs. 30,
Dr. McCusker testified that "a case report is the lowest strength of evidence" in epidemiology. Tr. 244:7-9. She explained that a case series then groups together five or six case reports "all with the same or similar story" and suggests that "maybe there's something going on." Tr. 244:11-14. She continued that "in order to really define whether or not there . . . may be an association that's greater than just time, you need to design a better study." Tr. 17-21 Dr. McCusker testified that the "best study" is a "randomized control trial [where] you enroll all children that are born and half get vaccinated and the other half don't[, and then] you follow them forward and you see if there's any difference in sudden infant death between the two groups." Tr. 244:22-245:3. However, such a study cannot be ethically conducted "because there are so many benefits associated with vaccination." Tr. 245:4-5. Dr. McCusker noted that cohort studies or case control studies are the next best options. Tr. 245:8-9.
Dr. McCusker discussed the Moro et al. article that analyzes deaths reported to the VAERS, including "child reports with available death certificates/autopsy reports [that listed] sudden infant death syndrome (n = 544 [44%])." Tr. 251:9-21 (citing Resp't's Ex A, Tab 27
Regarding an article by Zinka et al.,
As was articulated in Boatmon, a previous SIDS claim in the Program, "[t]he question arises as whether the cytokine response stimulated by vaccination can have the same effect as a mild or trivial infection in a baby who presumably has a defect in the medullary 5-HT system." Boatmon, 2017 WL 3432329, at *12.
Dr. Miller began to answer this question by concluding that "the same mechanisms can be presumed to be involved[]" in vaccination-related SIDS as are involved in infection-related SIDS. Pet'rs' Ex. 38 at 4. He explained that vaccinations "provoke a reaction from the innate immune system, just as if they were an actual infection." Id. Dr. Miller emphasized that vaccinations "provoke cytokine production[;] that's what they're designed to do." Tr. 85:6-7. He noted that "it's irrelevant" in terms of the type of vaccine received, but he explained that data suggest that "[i]t may be relevant in terms of how many vaccines" are received, because there may be a "more vigorous . . . cytokine response" when more vaccines are added. Tr. 119:25-120:6. Dr. Miller stressed that a minor viral URI "elicit[s] the same cytokine response as a vaccination." Pet'rs' Ex. 12 at 5 (citing Pet'rs' Ex. 29,
Dr. Miller testified that when the immune system detects "what it perceives as a foreign antigen," multiple cytokines are produced. Tr. 67:23-68:1. Dr. Miller explained that therefore "vaccinations lead, inevitably and as a natural event, to the production of circulating cytokines including IL[-]2, IL-6, and IL[-103b2] (and likely others)[.]" Pet'rs' Ex. 37 at 6. He explained that "these cytokines can cross from the blood into the brain, where they can have synaptic modulatory effects which produce multiple physiological changes, including fever and suppression of medullary 5-HT activity." Id. Dr. Miller emphasized that "in an infant with an already defective 5[-H]T system," the suppression of medullary 5-HT activity caused by those cytokines "may be enough in any given situation of apnea or hypercapnia to produce a failure of arousal and increased respiration, leading then to death." Id. at 6-7.
Dr. Miller wrote that one recent study on the "potential relationships between SIDS, sleep, and infantile febrile seizures has re-emphasized the importance of the defects in the medullary serotoninergic system and network[.]" Pet'rs' Ex. 12 at 5 (citing Pet'rs' Ex. 36,
Dr. Miller acknowledged the role of some cytokines as neuromodulators but argued that cytokines "can get to [parts of the brain] directly by some mechanisms or may act at the interface of the brain with the rest of the world, which is called the blood-brain barrier." Tr. at 56:2-6. Dr. Miller then stated that cytokines IL-103b2 and IL-6 have "been found to be elevated in post-mortem specimens from SIDS patients." Pet'rs' Ex. 12 at 4 (citing Pet'rs' Exs. 25,
Dr. McCusker responded that cytokines "that are found in the CNS are more likely than not intrinsically produced by the CNS, and [are] not coming from the peripheral functioning immune system." Tr. 334:19-22. She explained that "normal brains under normal physiologic conditions produce cytokines," which are referred to as neurokines "because they are operating as signaling molecules from neuron to neuron." Tr. 195:18-23. Dr. McCusker wrote that cytokines are released by microglial cells in the brain, and production can increase when those cells are exposed to psychological or other stressors, such as acute brain injury or neurodegeneration. Resp't's Ex. A at 4 (citing Resp't's Ex. A, Tabs 13,
Dr. Miller described how cytokines in the brain "have depressive effects on the serotonin system in the medulla and can suppress whatever arousal mechanisms might remain in an infant with a maldeveloped or damaged medulla." Pet'rs' Ex. 12 at 4.
Dr. McCusker pointed out that "cytokines have also been shown to be constitutively expressed by cells of the brain and play distinct roles in normal brain homeostasis[.]" Resp't's Ex. A at 4. She opined that those cytokines "are not considered `proinflammatory,'" like those in the peripheral immune system. Id. She continued that "[n]ormal brain function requires [the] release of cytokines[,]" which she explained "play essential roles in neuroprotection and neuromodulation." Id. (citing Resp't's Ex. A, Tab 14,
In her reports, Dr. McCusker also wrote that "there is significant evidence in the medical literature that cytokines play important roles in both maint[aining] homeostasis in the brain and in alerting the system to potential danger." Id. She explained that "in children experiencing a premortal event, cytokines involved in neuroprotection would be released in an attempt to `save' the system." Id. at 5-6. Therefore, she opined that the "differences in IL[-]6 and IL[-]6R levels seen in SIDS children are likely a marker of the acute brain injury prior to death[,] and the presence of cytokines in the brain of SID[S] patients represent[s] normal physiologic responses to the stressors associated with their terminal events." Id. at 6.
Dr. McCusker agreed with Respondent's counsel that the articles filed by Petitioners "look at more the expression of a cytokine as opposed to the effect of the cytokine." Tr. 242:14-18. She reiterated that the function of cytokines in the CNS is different than their function in the peripheral body. Tr. 242:23-25. She testified that IL-103b2 is involved in sleep and arousal cycles and that without IL-6, "you don't lay down long-term memories properly." Tr. 242:19-23.
Dr. McCusker admitted that she could not answer a question regarding how many cytokines would be necessary to affect the brain of an infant with a defect in the medullary serotonergic network, as opposed to a normal brain. Tr. 333:16-21. Dr. McCusker testified that she was assuming that the brain of an infant who dies from SIDS is able to properly regulate cytokines, as a baseline. Tr. 336:18-20. She testified that she has "no evidence that says that [such brains] operate differently, with the exception that the receptor changes that are found in the IL-6 system do[] suggest that they are less sensitive to the presence of the cytokines." Tr. 336:22-337:1. Dr. McCusker testified that this type of intrinsic defect would work against the idea of cytokines overwhelming the brain, because such a brain would be less sensitive to the presence of cytokines. Tr. 337:2-9.
Dr. McCusker testified that a person does not "have massive amounts of circulating cytokines, except in the case of a cytokine storm." Tr. 192:24-193:1. Cytokine storm is "the classic example of cytokines going rogue," where the body experiences "uncontrolled cytokine release." Tr. 189:16-20. Dr. McCusker testified that this results in "multi-system effects," such as "kidney shutdown, . . . liver failure, . . . failure of the bone marrow to produce white blood cells and red blood cells[,] or pulmonary compromise because of pulmonary inflammation." Tr. 190:2-8. However, Dr. McCusker testified that "even in a cytokine storm, the effects of this massive release of cytokines on the CNS is actually much less than in the rest of the body." Tr. 190:9-11. She testified that "most of the effects of this massive release of cytokines are seen in the systemic immune system, systemic body, and not as much in the CNS." Tr. 190:16-18. Dr. McCusker explained that "people can die of cytokine storm," and "over three or four days you see their immune systems just go crazy and they'll die within a week or two if you can't shut down the system." Tr. 109:19-24.
Dr. McCusker contrasted the multisystem failure that occurs during a cytokine storm to a "normal coordinated immune response." Tr. 190:25-191:1. Dr. McCusker wrote that cytokine production in the body is subject to "diurnal variations" but acknowledged that "[v]accination is predicted to activate immune responses in part through cytokine up[-]regulation." Resp't's Ex. A at 4 (citing Resp't's Ex. A, Tab 10,
Dr. Miller testified that "there are at least two ways, and maybe more," that cytokines can enter the brain. Tr. 112:21-24. First, he explained that "[t]here are areas in the brain which lack a blood-brain barrier normally," such that "circulating molecules can cross into the brain just by diffusion." Tr. 112:24-113:8. Alternatively, "there is an active transport system" where cytokines in the blood "come up against brain endothelial cells and can be grabbed and transported into the central nervous system across the blood-brain barrier." Tr. 113:12-16. He testified that "it's an energy-dependent process and it's a saturable process." Tr. 113:16-17. Dr. Miller described a paper by Banks et al.,
Dr. McCusker explained that there is "tight coordination between the peripheral system and the brain system." Tr. 195:4-7 (discussing Resp't's Ex. A, Tab 13
Dr. Miller clarified that he does not believe that the brain "gets flooded with cytokines under most circumstances," including "in the circumstances that lead to SIDS." Tr. 367:23-25. Instead, Dr. Miller explained that, in his opinion, "very small quantities can tip a balance" in the brain of a vulnerable infant. Tr. 368:11-17. He noted that a vulnerable infant's 5-HT system is "already in peril" and therefore, amounts that may not otherwise cause a problem in the brain "can be enough to tip the balance over and lead to catastrophe." Tr. 368:15-17.
Dr. Miller testified that there are "just no data" on how long IL-103b2 can stay active in the brain once transported across the blood-brain barrier. Tr. 370:18-21. He explained that "it's an experiment that would be impossible to do in humans, for ethical reasons," and that "it would be very difficult to do it in most animal models, because we don't have a really good animal model where we can predict there's going to be SIDS." Tr. 371:8-14.
Dr. Miller explained that studies look at the effects of one or two cytokines at a time "because the data will be too confusing" if researchers attempt to "look at a soup of multiple cytokines." Tr. 68:1-4. Dr. Miller testified that the published literature primarily considers IL-1, IL-6, and TNF. Tr. 68:4-6. He described experiments which have shown that certain cytokines, especially IL-103b2 and IL-6, "have depressive effects on the serotonin system in the medulla and can suppress whatever arousal mechanisms might remain in an infant with a maldeveloped or damaged medulla." Pet'rs' Ex. 12 at 4 (citing Pet'rs' Exs. 22,
Dr. Miller noted that there are not very good animal models for SIDS in general. Tr. 103:16-18. He emphasized that the piglets in the Stoltenberg and Frøen studies, discussed below, were "normal," whereas "[a]n animal model of SIDS would hopefully be a spontaneous model in which you have some strain of animals which predictably die at a certain age of what appears to be from a full pathologic examination at death to be SIDS."
Dr. McCusker concluded that the three animal studies and three post mortem studies cited by Petitioners' expert "do not show evidence for the role of cytokines, either those constitutively expressed in the brain or those found in the peripheral immune system, in suppressing the arousal mechanisms of the `maldeveloped or damaged medulla' . . . as claimed by Petitioners' [e]xpert." Resp't's Ex. A at 8. Dr. McCusker repeatedly emphasized that "the dose required to induce [apnea] in the newborn piglets was supra-therapeutic." Resp't's Ex. E at 7. Dr. McCusker noted that the Stoltenberg et al. study and "the follow up work" by Frøen et al. showed "the effect of supratherapeutic doses of IL[-]103b2 was detectable only in the neonatal animals and did not occur in animals older than 10-15 days." Resp't's Ex. A at 7 (citing Pet'rs' Exs. 22,
Dr. McCusker wrote in her report that the "literature demonstrates that cytokines IL[-]103b2, IL[-]6 and TNF[-]03b1 play important roles in the architecture of sleep and arousal and are constitutively expressed in the brain." Id. at 8. She wrote that "[s]ystemic cytokine release can induce fever and changes in sleep patterns." Id. However, Dr. McCusker opined that the changes caused by cytokines "affect the development of REM sleep resulting in greater frequency of arousal found in NREM sleep." Id. Therefore, Dr. McCusker argued that "increases in IL[-]103b2 would affect sleep architecture to decrease deep REM sleep and increase NREM associated with more frequent and easy arousal." Id. In other words, she opined that the "hypothesis that systemic cytokine[] release reduces the capacity for arousal in at risk infants[,] leading to SIDS[,]" is unsupported. Id.
Dr. McCusker argued that if Dr. Miller's theory that "vaccine[s] induced significant increases in the cytokine IL[-1]03b2" in J.J.'s brain were true, "the resulting effect would most likely have been increased arousal." Id. at 5. She wrote that although "low levels [of IL-103b2] may promote NREM sleep, high levels have been shown to promote arousal." Id. (citing Pet'rs' Ex. 24
Dr. Miller testified that in the Stoltenberg et al. study, apnea was induced in the piglets and the study looked at how quickly they recovered. Tr. 64:6-8. Dr. Miller testified that some of the piglets were injected with IL-103b2, either in the blood or into the cerebrospinal fluid, and those piglets' recovery times were compared with piglets which were "not manipulated with any other drugs or any other chemicals" other than those inducing the apnea. Tr. 64:8-15. Dr. Miller testified that the IL-103b2 "produce[d] delayed recovery and impaired recovery from apnea." Tr. 64:13-15.
Dr. McCusker emphasized that when this study was conducted in 1994, the authors "thought that the blood-brain barrier was impermeable and that any presence of cytokines in the brain must mean that there was an infection or an insult to the brain." Tr. 215:10-14. Therefore, she opined that the authors "were looking for why [they were] finding these cytokines in the CNS." Tr. 215:17-18.
Dr. McCusker acknowledged that the piglets' apnea events were prolonged but noted that "they really needed to use high doses" of IL-103b2 to find results, also referring to them as "massive doses." Tr. 215:21-216:16. She testified that "doses are important with cytokines." Tr. 216:6-7. Dr. McCusker testified that even in a cytokine storm, "which is the worst release of cytokines that we can think of," the levels of cytokines are lower than what was administered to the piglets in the study. Tr. 216:8-11. Therefore, she opined, the levels are "way over what you would see in a vaccine response[] and/or any kind of normal routine infection response." Tr. 216:13-15.
Additionally, Dr. McCusker opined that the authors "had to use really young piglets, because they found that if the piglets were older than ten days, they no longer could induce this [apnea] event." Tr. 216:17-20. Dr. McCusker opined that a 10-day-old piglet, depending on which literature one looks at, approximately equates to an infant who is "just under two months" old. Tr. 217:7-11. Therefore, she criticized the study because it was not "even dealing with piglets in the risk time that you would see for sudden infant death." Tr. 217:18-20.
Dr. McCusker opined that "if we did the exact same thing with insulin," or if one injected "1,000 times the dose" of insulin that normally circulates, "you would kill the animal." Tr. 216:23-217:1. Therefore, Dr. McCusker opined that "to say it's physiologically relevant is problematic." Tr. 217:2-3. She testified that the authors "actually say that in their article. It's not like they're hiding anything." Tr. 217:3-4.
Dr. Miller also testified about the Frøen et al. study. Tr. 64:16-65:4. He explained that the purpose of that study was to look at the effects of nicotine and IL-103b2 on the piglets' recovery from apnea episodes. Tr. 64:20-25. Dr. Miller testified that the study's authors found that IL-103b2 "inhibited recovery" and that if nicotine and IL-103b2 were both present, "it was even worse." Tr. 65:1-4.
Dr. McCusker testified that the authors of the Frøen et al. study "managed to dial back the dose [of IL-103b2] a little bit," when compared with the Stoltenberg et al. study. Tr. 218:5-6. She testified that although the dose was "cut . . . in half . . . it's still over 1,000 times more [than] what you see in the blood." Tr. 218:6-7. Therefore, she opined that "they still needed a ton of cytokine in order to see any effect." Tr. 218:15-16. Additionally, Dr. McCusker noted that the authors "tried to do the same thing with IL-6," because "IL-6 is the [cytokine] that [is] really found in the brain of [infants who die from] SIDS," but that the authors could not "find any effect of giving high dose of IL-6 on this model." Tr. 218:14-23.
Dr. Miller explained that the authors of the Brambilla et al. study used "brain slices," or "very thin slices of living tissue," from rat brains to study the effect of IL-103b2 on the serotonin system. Tr. 74:8-15. The tissue was kept in a bath to keep it alive, and the activity of the cells was monitored. Tr. 74:11-14. Dr. Miller testified that the authors "took the relevant areas of serotonergic neurons in the brain stem of these rats" and added IL-103b2 to the bath solution. Tr. 74:16-19. When that happened, Dr. Miller testified, the activity of the serotonin system was suppressed, whereas the activity of gamma-aminobutyric acid ("GABA"),
Dr. McCusker testified that "the relative significance [of the findings in the Brambilla et al. study] is not clear, because of the massive amounts of IL-1[03b2] that was required" to have an effect on the studied brains. Tr. 226:23-227:1. She noted that the article admits that "[t]he precise effects of IL-1[03b2] on vigilant states are complex[] and depend on dose and timing administration." Tr. 227:2-7; see Pet'rs' Ex. 24 at 6. Dr. McCusker testified that IL-103b2, when injected intracerebroventricularly,
Dr. McCusker testified that the Brambilla study used "supratherapeutic doses" and analogized that "[i]nsulin in these level differences would kill you." Tr. 227:14-17. She emphasized that "a constant dose of 25ng/ml of IL[-]103b2 was required to demonstrate any effects on the neurons[]" and argued that "there is no evidence that extremely high levels of IL[-]103b2 needed to suppress the in vitro GABAnergic responses are achieved via peripheral vaccination." Resp't's Ex. A at 8. In contrast, Dr. McCusker wrote that "only picogram amounts of IL[-]6 w[ere] detectable and IL[-]103b2 was undetectable in the peripheral circulation[]" for children after vaccination in the Kashiwagi et al. study. Id.
Although Dr. Miller acknowledged that the Brambilla et al. study used 25,000 picograms of IL-103b2 per millimeter, he noted that the amount was "potentially . . . diluted by a lot" due to the culture system used to bathe the brain slices in that study, "which is a continuously running bath." Tr. 344:1-6. He noted that the amounts measured in the blood of vaccinated subjects studied in the Kashigawa et al. study were "on the same order of magnitude," and "certainly not thousands of times different," despite the lack of IL-103b2 data in those subjects. Tr. 346:19-347:1.
Dr. Miller discussed a 2003 study authored by Kadhim et al., which looked at cytokines in the brain of infants who died from SIDS. Tr. 58:12-15 (discussing Kadhim et al., supra note 79). He testified that IL-103b2 "was found in the arcuate nuclei, [which is] the same nuclei that can sometimes be deficient in SIDS babies, and in the . . . dorsal vagal nuclei." Tr. 58:24-59:1. Dr. Miller testified that this "elevated immune activity" was not found in the brains of infants who died from other causes. Tr. 59:11-14.
Dr. McCusker emphasized that in Table 1 of that study, "cytokine staining was elevated in the . . . brains of children who had SIDS and had evidence of infection, but also . . . in children who had SIDS without evidence of infection." Tr. 213:4-8. Based on that data, Dr. McCusker opined that IL-103b2 "is unregulated in the brains of SIDS [infants], regardless of a history of infection." Tr. 213:9-11. She testified that "if, as Dr. Miller is suggesting . . . with infection and/or vaccination, the increase of cytokines isn't is [sic] coming from . . . the signaling in the peripheral immune system, you would expect to see a difference based on whether or not [the infant] . . . had evidence of infection." Tr. 213:13-18. Dr. McCusker emphasized that there is no difference between the two in the chart. Tr. 213:18-19. Therefore, in her opinion, the data shows that "cytokines [and] neurokines, are constitutively expressed in brains." Tr. 213: 20-22. Furthermore, she opined that the cytokines are "a response marker," increased in response to the stressor which leads to the terminal event, "as opposed to a causative marker." Tr. 213:24-214:3. Therefore, Dr. McCusker opined that the Kadhim et al. study supports the IL-103b2 increase, "but it doesn't support that a peripheral immune response can induce that increase." Tr. 214:13-15. Dr. McCusker testified that IL-103b2 may be up-regulated in the brain of infants who died from SIDS because "there is disordered sleep and respiration, and the body is trying to reorder it." Tr. 230:9-13. She testified that such a hypothesis is "as reasonable . . . as anything, based on this series of articles." Tr. 230:13-14.
Dr. McCusker wrote that the 2010 Kadhim et al. article compared IL-2 levels in the brains of infants who died from SIDS to the brains of infants who died of other causes, and "showed no difference in expression in" IL-2. Resp't's Ex. A at 8 (citing Kadhim et al., supra note 71). She wrote that the authors of that study "hypothesize that IL[-]2, like the cytokines IL[-]103b2, TNF[-]03b1 and IL[-]6, may be expressed in normally functioning brains of infants." Id. Dr. McCusker testified that IL-2 was increased in the brain of infants who died from SIDS but criticized that the Kadhim et al. article does not "talk about what the cytokine is doing there, or whether it's implicated [in SIDS]. . . [or] . . . try and draw . . . a line that says it's doing anything damaging in the CNS following vaccin[ation], is just not there." Tr. 242:5-12. During her testimony, Dr. McCusker also discussed a third article authored by Kadhim. Tr. 236:2-8.
Dr. Miller discussed the Rognum et al. study, entered as Petitioners' Exhibit 26. Tr. 59:15-16. He explained that the authors "were testing the hypothesis that the IL-6 receptors and the gp130 expression would be altered in the medulla in SIDS patients." Tr. 60:4-7. He testified that the authors found increased amounts of IL-6 receptors in the arcuate nucleus in infants who died from SIDS when compared with those infants in the control group. Tr. 60:8-12. The authors concluded that "aberrant interactions in SIDS infants between IL-6 and the arcuate nucleus may contribute to impaired responses to hypercapnia generated by infection combined with rebreathing." Pet'rs' Ex. 26 at 9. Dr. Miller concluded that "it means that in SIDS babies who have defects in those nuclei, there is a change in the expression of the cytokine, or in the binding of this cytokine, and its receptors, compared to . . . normal infants who have died of something else." Tr. 61:22-62:3.
Dr. McCusker also discussed the Rognum et al. study. Dr. McCusker wrote that the authors of that study "postulate from [their] data that the role of infection in SIDS is likely due to mild upper respiratory tract infections influencing respiration resulting in increased CO2 levels in infants rather than the influence of the infection on brain cytokine levels." Resp't's Ex. A at 8 (emphasis in original).
Dr. McCusker testified that the authors "compared children whose final diagnosis was SIDS to a control group, a couple of control groups, and within the SIDS diagnosis, they looked at children who ha[d] evidence of mild infection versus those that did not." Tr. 231:19-23. She testified that the authors found the presence of infection made "no difference in the IL-6 levels" in the brain of infants who died of SIDS, "suggesting that IL-6 in those children's brains was not there specifically because of the infection." Tr. 231:24-232:3. More importantly, Dr. McCusker explained that gp130 is a "key co-factor, a key protein that needs to be there . . . functioning, in order for that signal to go through." Tr. 232:17-19. The authors noted in the study that "[i]t is essential that gp130 be present on the cell membrane for IL-6 to elicit neuronal responses." Pet'rs' Ex. 26 at 8. Dr. McCusker put this relationship in context and explained that "there was a disconnect between the IL-6 receptor expression and the gp130 expression" in the brain of infants who died from SIDS, "such that the signaling was going to be dysregulated, meaning that if the IL-6 bound to the IL-6 receptor, there was no gp130 to transmit the signal on." Tr. 232:20-25. Therefore, if infection and vaccination "can flood the brain with IL-6," then the brain cells would be "unable to respond to it [and] it would be as if it didn't exist there, because it can't signal through IL-6." Tr. 233:1-6. She explained that "the IL-6 might be there because the brain is producing it in response to the stressor that it's feeling as it's dying, and the receptors that are supposed to respond to it can't[,] so it keeps producing more because that's the right response to IL-6, but the receptors can't hear it." Tr. 233:1-617-25.
Although Dr. McCusker acknowledged that the "hypothesis of the paper" was that SIDS may be triggered by mild infections due to cytokine interaction with a compromised medullary serotonergic system, she testified that she disagreed with such a conclusion. Tr. 267:10-18. Dr. McCusker opined that the conclusion of the paper is that IL-6 "may be related to the response to the infection or the stressor that the baby is undergoing, and not be related to actually a mechanistic causality association." Tr. 268:7-10. Dr. McCusker testified that the authors do not "think that their thesis at the beginning of [the paper] is supported by the data that they showed." Tr. 270:21-23.
Dr. Miller testified that cytokines "can start to appear pretty rapidly" after vaccination. Tr. 83:18. More specifically, he testified that they can appear within "just a few hours." Tr. 83:18-19. He noted that the literature has generally considered cytokine levels 24 or more hours after vaccination, but that "certainly 12 hours is enough for them to be detectable." Tr. 83:19-23.
Dr. McCusker wrote that when an immune response is initiated, "cytokines are often released in the local environment and are part of the initial cascade of inflammation at the site of infection or trauma." Resp't's Ex. A at 3-4. She opined that "[m]ost cytokine events occur locally and do not generate significant systemic signaling." Id. at 3. Instead, she opined that they "are usually transient and tightly regulated." Id. at 4 (citing Resp't's Ex. A, Tab 10
Dr. McCusker wrote that "[v]accination results in the production and release of multiple cytokines in a tightly regulated manner." Resp't's Ex. E at 6. Furthermore, "cytokines may have different effects depending upon the location of their release, [and therefore] the concentration and duration of activity . . . are important considerations." Id. at 7.
Dr. McCusker wrote about two studies of post-vaccination cytokine levels. Resp't's Ex. A at 4 (citing Resp't's Ex. A, Tabs 11,
Dr. McCusker acknowledged that one of the studies showed serum IL-6 levels were similar in infants with influenza infection and those evaluated within 48 hours after vaccination. Id. at 6 (citing Resp't's Ex. A, Tab 12). However, she noted that the "serum cytokine levels were independent of signs of CNS activity such as fever." Id. Therefore, Dr. McCusker argued that the study's "findings show that UR[Is] and vaccination do not represent pathophysiologically equivalent events in children with SIDS." Id.
In support of his theory that vaccinations cause an infection-like cytokine response in the body, Dr. Miller also cited the study authored by Kashiwagi et al. Pet'rs' Ex. 37, Tab K,
Dr. Miller emphasized in his testimony that "there were very few if any differences between people who were sick with the flu and people who had been vaccinated," in terms of cytokines present in the blood. Tr. 71:12-16. He noted that the cytokines produced by the in vitro cells were also similar, with the exception that "significant quantities" of IL-103b2 could be detected in the cultures, whereas "only trivial quantities" of that cytokine could be detected in the blood of vaccinated or ill patients. Tr. 71:17-21. However, Dr. Miller testified that the authors "think[] that they just missed the peak of [IL-103b2] production because it's earlier than the time they sampled the blood." Tr. 71:22-25; see also Tr. 66:12-18.
Dr. McCusker explained that the authors of the Kashiwagi et al. study "[o]f course" found that cytokines were up-regulated in response to vaccination and noted that "[t]hat's what's supposed to happen." Tr. 221:8-10. However, she explained that "we expect them to act locally, we do not expect them to go systemic." Tr. 221:15-16. She opined that the cytokine response seen in the in vitro PBMCs "would be the equivalent of what is happening, and even that's not true, but of what is happening in the lymph node next to the site of vaccination, because it's a contained environment, and you're having the cells being stimulated by the presence of the vaccine components." Tr. 219:23-220:2. She testified that "if you think about the lymph node as a pond, you could see those levels" which are reflected in the study. Tr. 220:10-11. However, she explained that "when you talk about those levels in the peripheral circulation, it's like you open the dam, and now those cytokines fall out into the rushing stream of the systemic circulation." Tr. 220:12-14. Therefore, the concentration measured in the lymph is "diluted by the circulating blood volume," and the "levels are going to go way down." Tr. 220:15-18. Additionally, Dr. McCusker criticized the study because cytokines "operate over very short distances[] and they have a very short half[-]life . . . most of the conversation is going to be in the cells next to them[.]" Tr. 220:21-24. Therefore, she opined that "what happens in the dish" is not equivalent to "what's going to get up to the brain." Tr. 221:5-6. Dr. McCusker testified that "you're not going to get this massive amount of cytokine running up to the brain." Tr. 221:17-18.
Based on her analysis of the cytokine response in the PBMCs, Dr. McCusker opined that it was "[n]ot a surprise" that there were "not too much [sic] cytokines in the peripheral circulation." Tr. 221:14-16. She noted that the authors measured serum cytokine levels in picograms, which she testified are "tiny." Tr. 225:16-17. Additionally, Dr. McCusker specifically noted that IL-103b2 was "undetectable" in the patients' serum. Tr. 224:18-20. She agreed with Dr. Miller that "the obvious limitation" in the Kashiwagi et al. study "is the fact that the cytokine levels were measured. . . between 24 and 48 hours after the vaccine," which is beyond the time frame relevant to this case. Tr. 225:20-25. However, she testified that "even if you look at the cytokine levels that [the authors] report . . . in the dish, you're still looking at picogram amounts." Tr. 226:1-3. Therefore, she testified that the amounts are "still well below what was needed in the Stoltenberg and Frøen articles" to prolong apneas. Tr. 226:3-5.
Dr. Miller and Dr. McCusker both testified about the significance of the unit of measurement used to describe the cytokine levels described in these studies.
After providing this context, Dr. Miller countered Dr. McCusker, stating "things that are in picogram quantities are hardly something you can characterize as massive." Tr. 346:18-20. Dr. Miller testified that in the in vitro experiments in the Kashigawa et al. study, the highest number of cytokines the authors found for IL-103b2 was 510 picograms per milliliter. Tr. 342:13-20. Dr. Miller then compared the amount produced in the Kashiwagi et al. study to the amount injected into piglets to study the effect of cytokines on apnea and autoresuscitation. He testified that in the Stoltenberg et al. study,
Dr. McCusker strongly disagreed with Dr. Miller's numbers and Respondent sought to clarify the calculations in post-hearing briefings. Resp't's Post-Hrg Resp. Br., ECF No. 106. Respondent provided worksheets that also used 17.5 kilodaltons as an appropriate multiplier. Id.; Resp't's Post-Hrg Resp. Br., Appx. A, B, ECF Nos. 106-1, 106-2. Respondent then argued that the conversion is 17.5 kilograms/mole or 17.5 nanograms/picomole. Resp't's Post-Hrg Resp. Br., Appx. A at 3. Ultimately, "20pmols = 350ng," Resp't's Post-Hrg Resp. Br., Appx. A, B, i.e., "both Graphpad and manual calculations reflect that 20 picomoles of IL[-]103b2, using a molecular weight of 17,500 daltons as the conversion method, is equivalent to 350
To receive compensation under the Vaccine Act, Petitioners must demonstrate either that: (1) J.J.'s death is a "Table Injury" and therefore resulted from the receipt of a covered vaccine or vaccines within the time frame prescribed by the Vaccine Injury Table set forth at § 14, as amended by 42 C.F.R. § 100.3; or (2) J.J.'s death is an "off-Table Injury," one not listed on the Table, that resulted from his receipt of a covered vaccine. See § 11(c)(1)(C); Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1319-20 (Fed. Cir. 2006). Petitioners' claim that J.J.'s vaccines caused his death does not fall within the Vaccine Table. Thus, it must be proven that his vaccines were the cause-in-fact of his death.
To establish causation-in-fact, Petitioners must demonstrate by a preponderance of the evidence that the vaccines were the cause of J.J.'s injury. § 13(a)(1)(A). Petitioners are required to prove 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 1321-22 (quoting Shyface v. Sec'y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)).
In Althen v. Sec'y of Health & Human Servs., the Federal Circuit set forth a three-pronged test used to determine whether a petitioner has established a causal link between a vaccine and the claimed injury. See 418 F.3d 1274, 1278 (Fed. Cir. 2005). The Althen test requires a petitioner to set forth: "(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury." Id. To establish entitlement to compensation under the Program, a petitioner is required to establish each of the three prongs of Althen by a preponderance of the evidence. See id. (internal citations omitted).
Specifically, under the first prong of Althen, a petitioner must offer a scientific or medical theory that answers in the affirmative the question "can [the] vaccine(s) at issue cause the type of injury alleged?" See Pafford v. Sec'y of Health & Human Servs., No. 01-0165V, 2004 WL 1717359, at *4 (Fed. Cl. Spec. Mstr. July 16, 2004). This may be accomplished in a number of ways. "Reliability and plausibility of . . . pathogenesis can be bolstered by providing evidence that at least a sufficient minority in the medical community has accepted the theory, so as to render it credible." Id. Additionally, "epidemiological studies and an expert's experience, while not dispositive, lend significant credence to the claim of plausibility." Id. Medical literature published in respected medical journals is also persuasive. Id. "However, publication `does not necessarily correlate with reliability,' because `in some instances well-grounded but innovative theories will not have been published.'" Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993) (emphasis in original)).
In addition to showing that the vaccine at issue can cause a particular injury, a petitioner must also, under Althen's second prong, prove that the vaccine actually did cause the alleged injury in a particular case. See Pafford, 2004 WL 1717359, at *4; Althen, 418 F.3d at 1278. A petitioner does not meet this obligation by showing only a temporal association between the vaccination and the injury; the petitioner "must explain how and why the injury occurred." Pafford, 2004 WL 1717359, at *4 (emphasis in original) (internal citations omitted).
Although a temporal association alone is insufficient to establish causation, under the third prong of Althen, a petitioner must show that the timing of the injury fits with the causal theory. See Althen, 418 F.3d at 1278. The special master cannot infer causation from temporal proximity alone. See Thibaudeau v. Sec'y of Health & Human Servs., 24 Cl. Ct. 400, 403-04 (Fed. Cl. Oct. 23, 1991); see also Grant v. Sec'y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992) ("`[T]he inoculation is not the cause of every event that occurs within the ten[-]day period. . . . Without more, this proximate temporal relationship will not support a finding of causation.'" (quoting Hasler v. United States, 718 F.2d 202, 205 (6th Cir. 1983))).
A petitioner who demonstrates by a preponderance of the evidence that he or she suffered an injury caused by vaccination is entitled to compensation, unless Respondent can demonstrate by a preponderance of the evidence that the injury was caused by factors unrelated to the vaccination. See Althen, 418 F.3d at 1278; Paluck v. Sec'y of Health & Human Servs., 786 F.3d 1373, 1386 (Fed. Cir. 2015) (citing de Bazan v. Sec'y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008) (holding that it is not a petitioner's burden "to rule out possible alternative causes" (internal citations omitted))); Knudsen v. Sec'y of Health & Human Servs., 35 F.3d 543, 547 (Fed. Cir. 1994).
Petitioners requested post-hearing briefings to summarize their position and clarify additional evidence that was presented during the hearing for the first time. Petitioners' theory can be summarized as an expansion of Dr. Kinney's Triple Risk Theory. Dr. Miller identifies vaccines as an exogenous stressor analogous to infection and argues that like infection, vaccination causes an increase in the production of certain cytokines which can then travel to the brain. In an infant with a specific brainstem defect and other intrinsic factors commonly associated with SIDS, these vulnerabilities, coupled with the increased levels of cytokines following vaccination, can create a perfect storm that leads to SIDS due to a neurochemical failure to rouse during sleep. In this case, Dr. Miller contends that there is evidence of such a brain defect in J.J. and there is no evidence that he had an infection or any other condition that could more probably than not be the cause of his death. J.J. ultimately succumbed to SIDS because the increased levels of cytokines in his brain disrupted his 5-HT system and his arousal system failed. Dr. Miller further contends that this conclusion is supported by the short period of time that lapsed between J.J.'s vaccinations and death. Petitioners note that a "close examination of Dr. McCusker's testimony demonstrates that is it [sic] marred by mischaracterization, and inconsistent statements that in some instances are contradicted by the articles she submitted . . . ." Pet'rs' Post-Hrg Br. at 18, ECF No. 103. Indeed, there is some valid criticism of Dr. McCusker's testimony, specifically as it relates to her over-reliance on specific literature to make a point.
Respondent argues that "Petitioners have not satisfied prong one of Althen because Dr. Miller's theory that vaccines can cause SIDS is speculative and contradicted by the available medical literature." Resp't's Post-Hrg Br. at 4. He criticizes Dr. Miller's approach of "piecing together and relying on inferences and conclusions from many individual studies[]" to support his proposed theory. Id. at 6. Respondent argues that Petitioners' theory of causation involves "a question of immunology, not neuropathology[]" and notes that Dr. Miller is not an immunologist. Id. at 6. In contrast, Respondent emphasizes that Dr. McCusker is a pediatric immunologist. Id.
Respondent contends that available literature does not provide support for Petitioners' theory. Respondent argues that the extrinsic risk factors identified by Dr. Kinney et al. "are elements that contribute to a change in the mechanical ability of an infant to respire[]" and that Dr. Miller "improperly extends the Triple Risk Model by positing that cytokines provoked by vaccination can be an exogenous stressor that leads to SIDS."
Respondent lastly argues that "there is no evidence that cytokine expression in the brain plays a role in SIDS." Id. at 6. He argues that Petitioners' literature which discusses the presence of cytokines in the brain of infants who have died from SIDS is only relevant to show that the cytokines are expressed in the brain and not that they have any effect on the brain. Id. Respondent states that "cytokine expression is evidence of the attempt to avoid damage, not the cause of damage." Id. at 7. The problem for infants that succumb to SIDS "is not the presence of cytokines, but the inability to respond to them." Id. Relatedly, Respondent argues that "it makes much more sense" that cytokines expressed in the brain are neuro-regulatory, rather than the theory that they were induced by vaccination in the thigh and traveled to the brain. Id.
The question of whether vaccines can cause SIDS has been addressed in the Program previously. These cases contain similar facts and legal issues, and Drs. Miller and McCusker testified and presented similar arguments. Therefore, the undersigned will provide a brief overview of these cases below.
In Lord, petitioners' experts (Drs. Miller and Oleske) both used a version of the Triple Risk Model as a framework for their causation theory, with the vaccines acting as an extrinsic risk factor. Lord v. Sec'y of Health & Human Servs., No. 12-255V, 2016 WL 806818, at *10-11 (Fed. Cl. Spec. Mstr. 2016). According to Dr. Miller, vaccination activates the immune system to produce peripheral cytokines in the same way a mild infection does, and these cytokines have the same effect on the nervous system as those produced by infection. Id. at 10. As the basis for this theory, Dr. Miller cited the article by Kashiwagi et al.
The chief special master agreed with Dr. McCusker and found that petitioners were unable to prove by a preponderance of the evidence that extrinsic risk factors can be neurochemical, nor that URIs are akin to vaccinations. Id. at *15. The facts in Lord presented additional problems for petitioners because the chief special master found that the child had specific external stressors that could have played a role in his death, namely gastroesophageal reflux and prone sleeping, the position in which his grandmother found him. Id. at *20.
Petitioners' arguments in Copenhaver build upon the Triple Risk Model, and the mechanism described by Dr. Miller in that case is also very similar to his theory here. They argued that (1) the vaccinations induced the production of cytokines just as infections induce cytokine production; (2) the cytokines crossed the blood-brain barrier to reach the part of the brain responsible for auto-resuscitation; (3) for some unknown reason, Minor A stopped breathing; and (4) Minor A's brain could not initiate the normal auto-resuscitation response because the cytokines impaired the brain's functioning. Copenhaver, 2016 WL 3456436, at *6. The facts in the Copenhaver case are distinguishable because the child suffered from symptoms indicative of an infection, including a low-grade fever and vomiting several hours after his vaccinations. Id. at *4. Additionally, the child in that case did not succumb to SIDS until two days after vaccination. See id. Finally, and most importantly for the causation theory itself, the child in Copenhaver had a hippocampus malformation, which could be a potential case for seizures, and swelling in the cerebellum. Id. at *5. He did not, however, have an arcuate nuclei defect. Id. In the present case, Dr. Miller relies on evidence that J.J. suffered from this specific type of defect to identify a vulnerability that J.J. had to make him more susceptible to SIDS.
The special master considered Dr. Miller's theory but did not find his theory persuasive. Dr. Miller is a neuropathologist, however, his knowledge of cytokine production and effect on the body is not based on direct research or clinical work. Id. at *10. He is not an immunologist. Id. Comparatively, Dr. McCusker, a pediatric immunologist, has conducted research focused on cytokine production. Id. at *10-11. Her testimony was more persuasive to the special master in this case because of her understanding of cytokines and ability to explain how Dr. Miller's theory is inconsistent with the way cytokines affect the body. Id. at 11.
The facts in the Jewell case are similar to those in the present case, in that the child did not show any signs of infection or illness following vaccination but was described by the mother as fussy prior to bedtime. Jewell, 2016 WL 5404165, at *2. The timeline is also similar in that the children succumbed to SIDS approximately 12 hours after vaccination. See id. at *1-2. Drs. Miller and McCusker were again two of the experts that testified in Jewell. Dr. Miller's argument in that case was similar to the one he made in Copenhaver and Lord; however, in Jewell he believed that the child had a defective arcuate nucleus. Id. at *5. Dr. Miller argued that in children with this defect, which is present in 70 percent of SIDS cases, vaccines and the cytokines that they produce may serve as an exogenous stressor by depressing the activity of 5-HT neurons in an already defective system. Id. at *5-6.
Dr. McCusker responded that cytokines could not suppress the respiratory response in a brain with a defective 5-HT system because, by the nature of the defect, the system is incapable of responding to the cytokines. Id. at *11. She also noted that there was no evidence of any systemic cytokine activity on the day of the child's death. Id. Dr. McCusker testified that the cytokine production after a vaccine is controlled because cytokines do not have very long half-lives and are rapidly degraded by the system. Id. at *11. Furthermore, Dr. McCusker called petitioners' theory "problematic" because the child was afebrile after the vaccination. Id. at *12. She argued that if the cytokine production was such that it could affect the 5-HT system, it would have also produced a fever. Id.
Like the previous cases, the special master did not find that the Triple Risk Theory could reliably be extended to include vaccines or that cytokine activity is capable of impacting the brain's 5-HT system in the ways proposed by petitioners' experts. See id. at *13-15.
Petitioners in Boatmon were initially successful in their claim, but there are many distinguishing factors between this case and the present one. Boatmon, 2017 WL 3432329. In that case, the child had a fever and was lethargic after vaccination. Id. at *5. His parents administered Advil, but the fever returned the next day. Id. The child succumbed to SIDS later that afternoon following vaccination. Id. at *6.
Drs. Miller and McCusker appeared in this case and largely presented the same arguments and medical literature from previous cases. In that case, however, the special master noted the "multi-factorial process" involved in SIDS and held that "petitioners ha[d] presented a reasonable and reliable theory of vaccine causation involving the role of inflammatory cytokines acting as an extrinsic stressor in a baby with a brainstem deficit during the vulnerable time period." Id. at *38. The special master went on to quote Dr. Kinney and describe SIDS as "the biologic version of the perfect storm, in which the simultaneous and chance combination of multiple events is far more powerful than any individual event alone." Id.
Turning next to the applicability of the theory to the case facts, the special master found that despite the child's "entirely good health the day before[, o]vernight, he developed a mild fever, consistent with cytokine signaling from the vaccination site to the brain." Id. at *39. Like most of the SIDS cases discussed, the special master found an appropriate temporal relationship existed between vaccination and SIDS. Id. at *42. The special master ultimately held that petitioners had met their burden by a preponderance of the evidence and ruled in their favor. Id.
This decision was reviewed by the United States Court of Federal Claims and reversed. See Boatmon v. Sec'y of Health and Human Servs., 138 Fed. Cl. 566 (Fed. Cl. 2018). The Court noted that "the Special Master dismissed as unlikely other possible external stressors" and "made no acknowledgment of the other cases reaching opposite conclusions[.]" Id. at 570-71. The Court went on to note that Dr. McCusker was the same expert used in Boatmon as in previous cases, and she was found to be a "`superb witness' and better qualified to discuss cytokines because of her cytokine research [and] her expertise in immunology[.]" Id. at 571. Finally, the Court was troubled by the fact that Dr. Kinney herself has not extended the Triple Risk Theory to vaccines, "nor has it been accepted by any other medical authorities outside those testifying in the Vaccine Program[.]" Id.
A return to the question of "whether a vaccine-induced cytokine response is analogous to cytokine production post-infection" sharpens the application of Althen prong one to Dr. Miller's theory of but-for causation of SIDS. In the Boatmon case where the special master initially found entitlement, this question was not explicitly answered. The special master noted that he "ha[d] not concluded that vaccines present a substantial risk to SIDS." Boatmon, 2017 WL 3432329, at *42. Instead, he focused on a "convergence of these factors [that] appears to be far more powerful than any one taken individually[,]" and found that the "role of inflammatory cytokines as neuro-modulators in the infant medulla . . . is likely the reason for a significant number of SIDS deaths occurring in conjunction with mild infection." Id.
Petitioners' theory previously appeared in Jewell and the expert opinions are similar. Ultimately, the theory that Petitioners present in this case fails for the same reasons articulated in Jewell. Due to the rare occurrence rate of many of the injuries that are examined in the Vaccine Program, it is often difficult, if not impossible, to find relevant studies to prove or disprove vaccine causation. Consequently, this type of evidence is not required to bring a successful claim. However, to the extent that studies do exist, they can be used to support or rebut a theory that a petitioner presents. In this case, Dr. Miller does not deny the existence of studies; rather, he attacks them stating, "none of the epidemiological studies on [the relationship between vaccines and SIDS] have been appropriately done[.]" Pet'rs' Ex. 12 at 5.
Also, in the spirit of the Program, "to require identification and proof of specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine compensation [P]rogram." Knudsen, 35 F.3d at 549. A petitioner is tasked, however, with presenting a "sequence of cause and effect [that] is logical and legally probable[.]" Id. at 548-49 (internal citations omitted). In other words, to the extent that a petitioner does present a specific biological mechanism, it must logical. Here, Dr. Miller's theory was specific in its identification of a necessary brain vulnerability, its identification of stressors that are relevant to an infant's susceptibility to SIDS, including vaccination, its identification of specific types of cytokines that are produced after vaccination, the effect of those cytokines on the body in the periphery, the mechanism for how said cytokines arrive in the brain, and the effect of those cytokines on the part of the brain suffering from the defect. For this sequence to compose a successful theory, all these pieces must work together even if it is not quite understood how. Indeed, the increase in cytokine production levels must directly lead to the failure to rouse and the infant's subsequent death. This is where the theory fails.
Dr. McCusker relied on her in-depth knowledge of cytokines, including their perpetual presence in the brain and effects on all parts of the body, to explain why this sequence of cause and effect is illogical. Dr. McCusker agreed with Dr. Miller's explanation of SIDS and conceded the probability that a brainstem defect is present in most SIDS cases. She also discussed the relevant intrinsic risk factors and several exogenous factors to establish her knowledge of SIDS research. Dr. McCusker's focus, however, was on the nature of cytokine production and expression. Her explanation that infections produce a systemic response in the body whereas vaccines produce a more localized response was logical and uncontested. She then explained that cytokines have an extremely short half-life and would need an active transport system to enter the brain for a very specific purpose. Petitioners presented no evidence of such an active transport system, but Dr. Miller testified generally about the ways that cytokines can get into the brain. Ultimately, he stated that "[w]e don't know a whole lot about that system, but we do know that it's not distributed everywhere, . . . and it probably is somewhat selective so that different places in the brain have receptors and pumps for different cytokines." Tr. at 114:2-7. Dr. Miller did not tie a transportation mechanism to the cytokines produced locally after vaccination, and it remains unclear how or why they would arbitrarily find their way crossing the blood-brain barrier.
More importantly, Dr. McCusker persuasively rebutted Dr. Miller by explaining that cytokines need a normal brainstem to affect the 5-HT system because it is through functioning receptors that their messages are received. Dr. McCusker explained that the up-regulation of a specific cytokine can only affect the brain if the corresponding signal transducer is also up-regulated and neuronal transmission occurs. In the main study cited by Dr. Miller to make his point, the authors note that gp130 is the necessary component for expression of IL-6 and that it was not present in corresponding levels to IL-6 in SIDS patients. That supports Dr. McCusker's contention that IL-6 is not properly expressed in these infants and the brain does not even register the presence of these `extra' cytokines. The logical conclusion would be that when a CO2-inducing event occurs in a vulnerable infant, whether it be increased metabolism from infection or prone sleeping, the presence or lack of cytokines is inconsequential because they cannot express without gp130. The ultimate cause of death is the cause of the increased CO2 that leads to the cessation of breathing and not the cytokines' effect on the arousal system. The cytokines may in fact be a marker of this inability to breathe, or a potential mechanism for arousal. However, the evidence suggests that the cytokines do not express because of the lack of gp130, and there is no evidence that this failure to up-regulate is linked to vaccination. There is also no link between the vaccination and the initial process by which the infant stops breathing. Dr. McCusker walked through Dr. Miller's theory and identified these areas where the logic fails based on what is known about cytokine expression.
It should be recognized, as Petitioners noted, that Dr. McCusker can, at times, overstate her position, particularly as it relates to providing support to some of her conclusions. Dr. McCusker's addition of the loosely tucked sheet as a risk factor based on literature that discourages "soft materials or objects such as pillows, quilts . . . placed under a sleeping infant" is one example of overreach. Dr. McCusker also asserted that several studies have shown "increased CO2 associated with [URI]s in infants[.]" Tr. 274:15-17. However, under cross-examination, she was unable to identify any such study and instead stated that it was "basic pediatrics" that "is generally accepted." Tr. 274:17-21. Ultimately, Dr. McCusker admitted "there is no study that measures CO2 levels in SIDS patients." Tr. 275:9-10. Dr. McCusker undercuts her impressive credentials with unnecessary overreach. Despite these exchanges, Dr. McCusker provided logical explanations for why Dr. Miller's theory cannot work as articulated. Dr. Miller, while certainly knowledgeable in the field of pathology, did not have a response for many of her criticisms regarding his explanation of cytokine expression. Consequently, his theory fails.
Without a logical and legally probable theory that meets the preponderant standard, it is difficult to analyze the facts of this case pursuant to prong two of Althen. Petitioners and Respondent agree that it is more likely than not that J.J. was a vulnerable infant that succumbed to SIDS consistent with the Triple Risk Theory. The disagreement lies in the exogenous stressor that was the biological mechanism for J.J.'s death. Dr. Miller does not point to any evidence that J.J.'s immune system over-produced cytokines in response to vaccination. He does not point to evidence that any such cytokines were produced near the vaccination site but migrated to the CNS and crossed the blood-brain barrier. Finally, he does not point to any evidence in the medical record that J.J. suffered from a systemic immune response to vaccination similar to what one would expect if J.J. had an infection. The record does not contain evidence to show that it is more likely than not that Dr. Miller's theory is illustrated by J.J.'s case.
Although Petitioners were unsuccessful with respect to Althen prongs one and two, the medical record clearly reflects that J.J. succumbed to SIDS less than 24 hours after vaccination. Petitioners' causation theory does not provide an appropriate time frame for vaccine-caused SIDS. However, if Petitioners had been able prove their theory under the preponderant standard, the temporal relationship between vaccination and death would have, more likely than not, been appropriate given the proximity in time discussed with regard to infection-induced SIDS. The temporal relationship can support a theory for causation but is not alone sufficient to establish causation without additional persuasive evidence.
Petitioners' claim fails because they did not establish by a preponderance of the evidence that vaccines can trigger an immune response analogous to infections in vulnerable infants as defined by the Triple Risk Theory, and that J.J.'s vaccinations did so, resulting in his death. This theory has been unsuccessfully litigated in the Program previously, and Dr. Miller did not present any new persuasive evidence.
The death of a child is an unimaginable loss, and the lack of information that medical professionals have to provide answers when such a tragedy occurs can exacerbate said loss. In an effort to understand what happened in this case and why, the medical record, expert reports, medical literature, and hearing testimony were all thoroughly reviewed and considered, even if not explicitly referenced herein. Considering the totality of the record in this case, there is not sufficient evidence of vaccine but-for causation.
