William Taylor, Parent of Joseph Taylor, a Minor v. Secretary of Health & Human Services 0 , 108 Fed. Cl. 807 ( 2013 )

In the United States Court of Federal Claims
No. 05-1133V
(Filed Under Seal: January 30, 2013)
(Reissued for Publication: February 15, 2013)1
******************************************** *
*
WILLIAM TAYLOR, parent of JOSEPH *
TAYLOR, a minor, *
* Vaccine Act; Motion for Review of
* Special Master’s Decision; DTaP
Petitioner, * Vaccination; Infantile Spasms; Lack
* of Evidence of Causation; Althen
v. * Test.
*
SECRETARY OF HEALTH & HUMAN *
SERVICES, *
*
Respondent. *
*
******************************************** *
Ronald Craig Homer, with whom was Sylvia Chin-Caplan, Conway, Homer & Chin-
Caplan, P.C., Boston, Massachusetts, for Petitioner.
Ryan D. Pyles, with whom were Stuart F. Delery, Principal Deputy Assistant Attorney
General, Rupa Bhattacheryya, Director, Vincent J. Matanoski, Deputy Director, and
Catherine E. Reeves, Assistant Director, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
OPINION AND ORDER
WHEELER, Judge.
1
This opinion originally was issued under seal on January 30, 2013. Pursuant to Rule 18(b) of the Vaccine Rules of
the United States Court of Federal Claims (“Vaccine Rules”), the parties had 14 days within which to propose
redactions to the opinion prior to publication, but no such redactions were proposed. Accordingly, the opinion is
herein reissued for publication, unsealed.
This case comes before the Court on review of Special Master Dee Lord’s
September 20, 2012 decision denying compensation to Petitioner, Joseph Taylor, through
his father, William Taylor, under the National Childhood Vaccine Injury Act (“Vaccine
Act”), 42 U.S.C. §§ 300aa-1 et seq. Petitioner alleges that the Diphtheria-Tetanus-
acellular-Pertussis (“DTaP”)2 vaccine Joseph received on December 5, 2003 “caused him
to suffer an off-Table encephalopathy, a seizure disorder, and subsequent developmental
delays.” Pet’r Br. 1. According to Respondent and the Special Master, Petitioner has
failed to establish by a preponderance of the evidence that the DTaP vaccine caused his
injury. The Court expresses its sympathy for the injuries that Joseph has endured, but for
the reasons explained below, the Court affirms the Special Master’s decision.
Factual Background3
Joseph Taylor was born to William and Audrey Taylor on June 10, 2003, and
appeared healthy for the first six months of his life. On December 5, 2003, Joseph
received the DTaP vaccine, the Inactivated Polio vaccine (“IPV”), the Haemophilus
Influenzae type b (“Hib”) vaccine, and the Hepatitus B (“hep B”) vaccine. Later that day,
Mrs. Taylor observed that Joseph seemed to be experiencing seizures, and took him to the
Palomar Medical Center Emergency Room (“ER”) in Escondido, California. The record
from this visit reflects that Joseph had a temperature of 100.1 degrees, and notes that
Joseph received vaccinations earlier in the day. He had no episodes during the ER visit
and had normal chest x-rays, urinalysis, and cultures, and a complete blood count.
Joseph was discharged, and his parents were instructed to follow up with his pediatrician
in 24 hours.
The following day, the Taylors noticed Joseph experiencing similar episodes, and
took him to the Children’s Hospital in San Diego, as advised by the on-call doctor at their
pediatrician’s office. Joseph experienced seizure episodes while at the hospital, and was
admitted for a full evaluation. During the course of his hospital stay, Joseph underwent a
series of tests: he had a normal MRI and echocardiogram, negative urine, blood, and
CSF cultures, but a “markedly abnormal electroencephalogram [“EEG”] due to a pattern
2
As the name indicates, the DTaP vaccine is the acellular version of the pertussis vaccine. It has replaced
the previously used whole cell pertussis vaccine, DTP. Ct. Ex. 2 at 1 n.2.
3
The facts contained in the first three paragraphs of this section are uncontested. See Joint Post-Hr’g
Mem., Jan. 26, 2012.
2
of electrical activity consistent with hypsarrhythmia. [4] Such findings may be associated
with infantile spasms.” Pet’r Ex. 6 at 252. Joseph continued to experience seizures and
was started on adrenocorticotropic hormone (“ACTH”). His seizures decreased, and
Joseph was discharged on December 12, 2003.
Joseph’s treating physicians diagnosed him with infantile spasms, also known as
West Syndrome, a particular type of seizure disorder. Pet’r Ex. 6 at 294. In later years,
Joseph continued to be treated by a child neurologist and receive ACTH therapy. He
underwent physical, speech, and language therapy for developmental and gross motor
delays, expressive language disorder, and hearing loss. Joseph was hospitalized for his
seizures twice in 2006. The most recent medical records indicate that Joseph has been
clinically seizure free since February 2007, though he still has an abnormal EEG and a
diagnosis of pervasive developmental delays.
Infantile spasms are a recognized epileptic condition. Resp’t Ex. C at 1; Tr. II
5
169. The disorder of infantile spasms typically commences in infancy, with an average
age of onset at six months. Resp’t Ex. C at 2. The disorder is characterized by a triad of
a particular type of seizures, developmental retardation, and EEG abnormalities known as
hypsarrhythmia. Pet’r Ex. 21 at 4. Infantile spasms are considered an epileptic
encephalopathy,6 which indicates that over a period of time, the seizing process results in
subsequent mental deficits. Tr. II 46. Infantile spasms are frequently treated with
4
Hypsarrhythmia is “an electro-encephalographic abnormality sometimes observed in infants, with
random, high-voltage slow waves and spikes that arise from multiple foci and spread to all cortical areas.”
Dorland’s Illustrated Medical Dictionary 908 (32d ed. 2012).
5
There were two hearings before Special Masters in this case. “Tr. I” refers to the transcript of the March
16, 2007 hearing, and “Tr. II” refers to the transcript of the October 25, 2011 hearing.
6
Encephalopathy is defined as “any degenerative disease of the brain.” Dorland’s Illustrated Medical
Dictionary 614 (32d ed. 2012). The Vaccine Act gives the following, more detailed description:
The term “encephalopathy” means any significant acquired abnormality
of, or injury to, or impairment of function of the brain. Among the
frequent manifestations of encephalopathy are focal and diffuse
neurologic signs, increased intracranial pressure, or changes lasting at
least 6 hours in level of consciousness, with or without convulsions . . .
Signs and symptoms such as high pitched and unusual screaming,
persistent unconsolable crying, and bulging fontanel are compatible with
an encephalopathy, but in and of themselves are not conclusive evidence
of encephalopathy.
42 U.S.C. § 300aa-14(b)(3)(A).
3
ACTH, and although initial response to ACTH may be positive, relapses can, and often
do, occur. Resp’t Ex. C at 11-13; Pet’r Ex. 22 at 4.
Much of the literature regarding infantile spasms includes classification systems,
and during this case, the parties devoted significant effort to addressing the various
characterizations of infantile spasms. An earlier classification system categorized
infantile spasms as idiopathic, cryptogenic, or symptomatic. Pet’r Ex. 31 at 2. Generally
speaking, idiopathic and cryptogenic spasms are those of unknown origin or cause, and
symptomatic spasms are those with identified causes of an abnormal brain condition. See
id.; Resp’t Ex. I at 3. A more recent classification system categorizes infantile spasms as
genetic, structural/metabolic, or unknown. Pet’r Ex. 31 at 2 n.1. Under this system, all
symptomatic spasms would fall under “structural/metabolic,” and idiopathic and
cryptogenic spasms would fall under either “unknown” or “genetic.” Id.
Both Petitioner’s and Respondent’s experts conceded, however, that at bottom, the
classification systems are of little assistance in determining the cause of infantile spasms.
When asked on cross-examination whether Joseph Taylor’s infantile spasms should be
categorized under the older, or symptomatic/cryptogenic classification system,
Petitioner’s expert, Dr. David Griesemer, responded:
Well, from my perspective that’s an irrelevant question
because these are arbitrary, poorly defined boundaries to
begin with. And when I’m meeting with a family, I don’t say,
this is cryptogenic infantile spasms or this is symptomatic
infantile spasms. I mean, it’s infantile spasms and either we
do or don’t know what the cause of the problem is. This was
a system that was identified a few decades ago in order to
gather research data, I believe.
Tr. II 35. This testimony is consistent with Dr. Griesemer’s statement at an earlier
hearing that “[t]here is no question that Joseph Taylor could be placed in either group,
cryptogenic or symptomatic.” Tr. I 87. Similarly, Respondent’s expert, Dr. Mary Anne
Guggenheim, noted that it is the underlying cause of infantile spasms, and not the
classification of the disorder, that determines a child’s eventual outcome. Resp’t Ex. O at
3.
4
History of Proceedings
Petitioner filed this Vaccine Act petition on October 19, 2005, alleging that the
December 5, 2003 DTaP vaccine caused Joseph Taylor’s seizure disorder. The Office of
Special Masters (“OSM”) assigned the case to Special Master John Edwards, who held an
entitlement hearing on March 16, 2007. Special Master Lord held a second entitlement
hearing on October 25, 2011, and afforded the parties an opportunity to supplement the
record with additional evidence. Petitioner’s and Respondent’s experts each provided
four written expert reports. See Pet’r Exs. 13, 19, 31, 37; Resp’t Exs. A, I, O, U. Doctors
Griesemer and Guggenheim testified at both of the entitlement hearings.
a. Petitioner’s Expert, Dr. Griesemer
Petitioner submitted the expert reports and testimony Dr. David Griesemer. Dr.
Griesemer is the chief of pediatric neurology at The Floating Hospital of Tufts University
and director of the Child Neurology Fellowship Program. Tr. II 7. Dr. Griesemer is
board-certified in neurology with special competence in child neurology and in clinical
neurophysiology. Pet’r Ex. 14 at 1. In his review of Joseph’s medical records, Dr.
Griesemer noted that “[t]he development of infantile spasms in a child at 6 months of age
is not diagnostically specific for a vaccine injury[,]” Pet’r Ex. 13 at 3, but he nonetheless
concluded that Joseph “developed seizures and other neurologic impairment as a
consequence of receiving vaccinations on December 5, 2003 . . . ,” id. at 1. Dr.
Griesemer asserted that there was a direct causal relationship between the immunizations
and Joseph’s seizures, pointing to various factors as the basis for this conclusion:
[C]areful inspection of the records reveals no indication of
gradual or insidious onset of infantile spasms, which is
typically the case. Also, Joseph’s seizures have proven
refractory to control, which is not the case in most children
with infantile spasms. This suggests that Joseph’s seizures
are not the result of an age-specific developmental
abnormality but the result of an insult to the brain. Further,
the presence of mild spasticity or “high tone” offers
additional evidence, in addition to the residual seizure
disorder, of brain dysfunction . . . . Finally, the very clear
temporal correlation of seizure onset – within about 6 hours –
5
of immunization suggests at the least that the seizures were
triggered by his response to vaccination.
Id. at 3.
In a later report, Dr. Griesemer further explained the significance of the recurrent
nature of Joseph’s seizures, arguing that this factor classified Joseph’s disorder as
symptomatic, with the identified cause being vaccination. Dr. Griesemer cited medical
literature indicating that “up to 38% of patients with cryptogenic spasms may display
normal development” as support for his characterization that Joseph’s “poor long-term
outcome more closely resembles that of symptomatic infantile spasms[.]” Pet’r Ex. 19 at
2. Because Joseph did not display normal development, Dr. Griesemer concluded that
Joseph’s “response to vaccination [w]as the only neurologically abnormal event in his
medical history,” id., thereby establishing a causal relationship and rendering the infantile
spasms symptomatic, Pet’r Ex. 31 at 2.
As additional support for the symptomatic classification, Dr. Griesemer pointed to
an article by Sara Kivity, et al. (the “Kivity article”). Pet’r Ex. 28. The study concluded
that “[e]arly treatment of cryptogenic infantile spasms with a high-dose ACTH protocol
is associated with favorable long-term cognitive outcomes.” Id. at 2. Based on this data,
and the fact that Joseph received “immediate” treatment but nonetheless experienced
“persistent seizures, persistent EEG abnormalities, and poor cognitive outcome,” Dr.
Griesemer surmised that the Kivity study “suggests the implausibility of Joseph having
cryptogenic infantile spasms.” Pet’r Ex. 31 at 4-5.
In his final expert report and throughout the 2011 hearing, Dr. Griesemer
promoted a slightly different theory of causation, based on “additional scientific evidence
of the relationship between pertussis toxin and its role in disrupting the balance between
excitatory and inhibitory neurotransmitters in the brain.” Pet’r Ex. 37 at 2; Tr. II 15-19.
Dr. Griesemer explained that gamma-amniobutyric acid (“GABA”) “is the predominant
inhibitory neurotransmitter in the brain. It exerts inhibitory control of neuronal networks
via the activation of GABAA and GABAB receptors.” Pet’r Ex. 37 at 2 (citations
omitted). He noted animal studies showing that the pertussis toxin has the ability to bind
with subunits of GABAB, thereby “disrupt[ing] GABAB receptor function [which]
provides a mechanism for disturbing the balance between the excitatory and inhibitory
neurotransmission in the brain.” Id. at 2-3. Dr. Griesemer explained that this disturbance
6
of the GABAB receptor function causes7 seizures and “may also compromise brain
development.” Id. at 3.
Dr. Griesemer stated that this theory of causation required the pertussis toxin to
enter the brain through a breach of the blood brain barrier. Tr. II 40-42.8 The pertussis
toxin would then cause a direct toxic insult to Joseph’s brain, he postulated, causing the
development of infantile spasms. Pet’r Mot. 28-30. Dr. Griesemer conceded, however,
that there was no clinical evidence of a breach of Joseph’s blood brain barrier, such as
signs of encephalopathy (“somnolence, irritability, inconsolability”). Tr. II 40, 77-78.
Dr. Griesemer was careful to highlight the differences between the whole cell
pertussis vaccine (DTP) and the acellular version (DTaP). Pet’r Ex. 37 at 3. He
explained that the acellular pertussis vaccine Joseph received was designed to “minimize
some of the endotoxin effects and to reduce the amount of pertussis toxin that the brain is
exposed to,” Tr. II 43, and the “adoption of acellular pertussis vaccine (in DTaP) reduces
or mitigates the available pertussis toxin, but the toxin remains central to producing the
immunizing effect,” Pet’r Ex. 37 at 3 (citation omitted). In discussing the toxicity of the
vaccine, Dr. Griesemer admitted that he was not an expert in this area, and that he was
“just saying we don’t know with certainty that there is no endotoxin effect.” Tr. II 43-44.
Despite the lack of evidence regarding a breach of Joseph’s blood brain barrier as
well as the toxicity of the DTaP vaccine, Dr. Griesemer maintained his conclusion that
Joseph’s infantile spasms and developmental delays were caused or substantially
contributed to by the vaccine. In support, Dr. Griesemer referenced the following factors:
(1) pertussis toxin disrupts intracellular function which can lead to increased seizures; (2)
Joseph’s treating physicians looked for alternative causes of infantile spasms and found
none; (3) the “dramatic and acute onset of seizures,” instead of the typically insidious
development of infantile spasms; (4) the temporal proximity of his spasms to the
administration of the vaccine; and (5) Joseph’s slightly increased muscle tone, which is
atypical in cases of infantile spasms. Tr. II 30-31. Petitioner argues that Dr. Griesemer’s
7
Dr. Griesemer’s testimony at the 2011 hearing was slightly inconsistent with his previous statement
regarding the reported causative role of disrupted receptor function: “When we encounter clinical settings
in which the GABAB receptor is compromised or the G proteins are compromised, the effect is increased
seizure activity.” Tr. II 18 (emphasis added).
8
During the 2007 hearing, Dr. Griesemer stated “I don’t know that I have the experience to offer a very
qualified answer about [the toxic effect of the vaccine on a child’s brain].” Tr. I 100. As this theory of a
direct toxic effect is precisely the theory now relied upon by the Petitioner, the Court presumes that Dr.
Griesemer had acquired the requisite knowledge and experience in the intervening years.
7
medical opinion and the relevant medical literature on which it is based are sufficient to
establish causation by a preponderance of the evidence.
b. Respondent’s Expert, Dr. Guggenheim
Respondent offered Dr. Mary Anne Guggenheim as its expert. Resp’t Exs. A-B.
Although currently retired, Dr. Guggenheim is an expert in child neurology and practiced
clinical pediatric neurology for many years. Tr. II 98-100. She is board-certified in
pediatrics as well as psychiatry and neurology, with special competence in child
neurology. Tr. II 98-101. From the outset of these proceedings, Dr. Guggenheim
expressed her opinion that, despite the misfortune of Petitioner’s disorder, there was no
causal relationship between the vaccine and infantile spasms. Resp’t Ex. A at 3. Dr.
Guggenheim unequivocally stated that “there is no data to support Dr. Griesemer’s
allegation that the immunizations caused the [infantile spasms].” Resp’t Ex. O at 5. She
noted that “[b]ecause of concern that childhood immunizations might cause [infantile
spasms], this particular hypothetical etiology has been carefully studied.” Resp’t Ex. I at
3. Thus, in forming her opinion, Dr. Guggenheim was able to draw upon numerous
reports, studies, and texts in medical literature which have concluded that there is “no
causative relationship between childhood immunization and infantile spasms.” Resp’t
Ex. A at 3; accord, e.g., Resp’t Exs. I, K, N, P, Q; Pet’r Ex. 21; Ct. Ex. 1. Through her
reports and testimony, Dr. Guggenheim addressed each of the factors cited by Dr.
Griesemer as bases for his assertion that the DTaP vaccine caused Joseph’s injury,
ultimately concluding that his theory is not biologically plausible and there is no causal
link between the vaccine and Joseph’s injury.
Dr. Guggenheim noted that the recurring nature of Joseph’s seizures offered little
probative value in determining causation. Joseph’s treating physician, Dr. William
Lewis, diagnosed him with cryptogenic infantile spasms, a diagnosis espoused by Dr.
Guggenheim as well. Resp’t Ex. A at 1. Dr. Guggenheim also addressed the Kivity
article that Dr. Griesemer used to support his diagnosis of Joseph’s infantile spasms being
symptomatic:
Dr. Griesemer uses the Kivity article and [another article] to
support his allegation that if a child has cryptogenic (or
unknown) [infantile spasms] they have a uniformly good
outcome, if treated early, and thus Joseph cannot be classified
as such. However, he does not refer to other publications
8
(Glaze 1988, Riikonen, 2001) in which some cases of
“cryptogenic” as well as “early treated” [infantile spasms] did
not respond and had a poor outcome. These authors
emphasize that it is the underlying cause, not just a
classification of cryptogenic or early treatment that appears to
determine outcome.
Resp’t Ex. O at 3 (also explaining the concurrence of Drs. Frost and Hrachovy,
“acknowledged leaders in the medical community regarding infantile spasms.” Taylor v.
Sec’y of Health & Human Servs., No. 05-1133V, 2012 WL 4829293, at *18 n.25 (Fed.
Cl. Spec. Mastr. Sept. 20, 2012) (“Taylor”)).
Addressing Petitioner’s medical theory of causation, Dr. Guggenheim agreed that
pertussis is indeed a neurotoxin which has the potential to interfere with the GABAB
receptor function. Tr. II 138. As Dr. Griesemer indicated, however, the DTaP, or
detoxified pertussis antigen, vaccine that Joseph received was designed “to reduce the
amount of pertussis toxin that the brain is exposed to,” relative to the former whole cell
vaccine. Tr. II 43. Dr. Guggenheim expressed doubt on whether this small amount of
pertussis toxin arguably present in DTaP would in any way cause seizures generally,
much less Joseph’s specific disorder of infantile spasms. Tr. II 109-15. In support of this
position, Dr. Guggenheim pointed to the fact that there was no evidence of an aberration
of Joseph’s blood brain barrier, a necessary condition of Dr. Griesemer’s theory of a
direct toxic insult to Joseph’s brain. Tr. II 121 (explaining that there was no indication of
an edema on MRI scans and no elevation of spinal cord protein, “a general hallmark”).
Additionally, there was no clinical evidence of a direct toxic insult to Joseph’s brain. Dr.
Guggenheim explained that if a child suffered a toxic insult to the brain severe enough to
cause infantile spasms, he would present as acutely encephalopathic. See Tr. I 125-26;
see also Tr. II 170 (explaining that an acute encephalopathy is one that manifests at the
time the injury has occurred). She described a child as encephalopathic as one “who had
obtundation, altered mental status, [and was] excessively irritable in the sense of not
being able to be calmed.”9 Tr. II 120. In contrast, Joseph’s medical records reflected that
“[h]is neurologic examination was normal and he was alert and responsive without any
evidence of acute encephalopathy.” Resp’t Ex. A at 1. Therefore, Dr. Guggenheim
concluded that Joseph did not suffer a direct toxic injury to his brain.
9
This clinical description is consistent with the Vaccine Act’s definition of an encephalopathy. See
supra, note 5.
9
According to Dr. Guggenheim, the mere fact that Joseph’s treating physicians
identified no other cause for his disorder is wholly unremarkable. Etiologically speaking,
there is an excess of 200 putative causes of infantile spasms, but of these, only seventeen
brain conditions are currently established as causing infantile spasms. Resp’t Ex. I at 2.
Joseph does not suffer from one of the seventeen brain conditions, and as such, the
underlying cause for Joseph’s infantile spasms and his associated developmental
abnormalities is “presently unknown.” Resp’t Ex. O at 5.
Regarding Dr. Griesemer’s reference to the “dramatic and acute onset” of Joseph’s
seizures, Dr. Guggenheim noted that such an event is not altogether inconsistent with the
development and eventual diagnosis of infantile spasms. Although she agreed that the
onset on infantile spasms is typically insidious, Dr. Guggenheim also explained that the
early signs of infantile spasms and seizing often go unnoticed:
Q: [Mr. Pyles] Is it a common habit of onset for infantile
spasms to first present when a child is in transition between
being asleep and being awake?
A: [Dr. Guggenheim] Yes. That’s the primary time when
they will occur – either drowsiness or on awakening.
Tr. II 124-25; see also Tr. II 180 (Dr. Guggenheim) (noting that parents often do not
recognize the first seizures because they are very subtle or brief); Resp’t Ex. N at 5 (“The
earliest manifestations of infantile spasms are subtle and may be easily missed, making it
difficult to identify the precise age of onset.”). This explanation was confirmed by Dr.
Griesemer, who stated that “most times infantile spasms develop very insidiously and the
onset is very difficult to recognize.” Tr. II 31.
Dr. Guggenheim also pointed out that the temporal proximity of Joseph’s spasms
to the administration of the vaccine, a factor relied upon by Dr. Griesemer, belies his
theory of causation. As a result of information gathered through her own clinical
experience and a study conducted in collaboration with Drs. James D. Frost, Jr. and
Richard A. Hrachovy, Dr. Guggenheim explained that infantile spasms do not develop
within hours or days following a post-natal injury, but instead, there is a latency period of
some months. See Resp’t Ex. O at 4. In their 2008 study, these doctors observed that
“[t]he interval between brain injury and the onset of infantile spasms ranged from 6
weeks to 11 months (mean = 5.1 months),” findings which “refute claims that a close
10
temporal association between an immunization and the onset of infantile spasms
establishes causation.” Resp’t Ex. Q at 3. Therefore, Dr. Guggenheim concluded, “[t]he
temporal proximity of a few hours between the DTaP vaccination and the onset of Joseph
Taylor’s infantile spasms is contrary to these findings” and cannot be used as a basis for
causation. Resp’t Ex. U at 4.
Regarding Dr. Griesemer’s factor of “hypertonia,” Dr. Guggenheim remarked that
not only was there minimal evidence of increased muscle tone in Joseph’s medical
records, but such a symptom would be insignificant to a determination of causation. Tr. I
121. Dr. Guggenheim pointed out that Joseph’s examining neurologist described him as
having “normal tone,” and stated that even the presence of such increased muscle tone
would be a “red herring,” id. at 121-122, as she “know[s] of no supporting data for the
statement that increased muscle tone is atypical in infantile spasms,” Resp’t Ex. A at 3.
c. The Special Master’s Decision
On September 20, 2012, Special Master Lord issued her decision denying
compensation. The Special Master found that although it is unfortunate that Joseph
suffers from West Syndrome, “Petitioner has not shown by preponderant evidence a
reliable theory of vaccine causation or a logical cause and effect between Joseph’s
vaccination and his epilepsy.” Taylor, at *1. Her conclusion was based, in part, on the
following observations: “Boiled down to the essentials, the only evidence favoring
[Petitioner’s] theory is the ipse dixit of Petitioner’s expert. Against th[is] theory, among
other factors, are the medical literature finding no causal association, the significant gaps
in Petitioner’s expert testimony, and the countervailing testimony of Respondent’s
expert.” Id. at *25.
On October 19, 2012, Petitioner filed a motion for review of the Special Master’s
decision. Respondent filed a response on November 19, 2012, asking this Court to affirm
the decision. The Court heard oral argument on January 4, 2013.
Standard of Review
In Vaccine Act cases, the Court reviews the decision of the special master to
determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1287
(Fed. Cir. 2011) (quoting 42 U.S.C. § 300aa-12(e)(2)(B)). The Court is highly
11
deferential to a special master’s factual findings. Id. Thus, “[i]f the special master has
considered relevant evidence of record, drawn plausible inferences and articulated a
rational basis for the decision, reversible error will be extremely difficult to demonstrate.”
Id. at 1287-88 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528
(Fed. Cir. 1991)). On questions of law, however, the Court “owe[s] no deference to [] the
special master.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.
Cir. 2005). Accordingly, the Court reviews applications of law de novo. Masias, 634
F.3d at 1288.
Causation Standard
Under the Vaccine Act, a petitioner may prove causation in two different ways,
depending on the alleged injury. Pafford v. Sec’y of Health & Human Servs., 451 F.3d
1352, 1355 (Fed. Cir. 2006). The first occurs when a petitioner proves that he received a
vaccine appearing on the Vaccine Injury Table (“Table”) and, within a prescribed time
period, suffered a corresponding injury listed on the Table for that vaccine. See § 300aa-
14. In such instances, causation is presumed, and the respondent bears the burden of
proving that the actual cause of injury was a factor unrelated to the vaccine. Pafford, 451
F.3d at 1355 (citing § 300aa-13(a)(1)).
The second situation occurs when a petitioner proves that he has received a
vaccine appearing on the Table, but sustained an injury not appearing on the Table or not
occurring within the prescribed time period (“off-Table injury”). Id. Here, Petitioner
seeks redress for his illness under the Vaccine Act’s compensatory provision for an off-
Table injury. As such, Petitioner must prove causation by satisfying the Althen test:
[Petitioner’s] burden is to show by preponderant evidence
that the vaccination brought about [his] injury by providing:
(1) a medical theory causally connecting the vaccination and
the injury; (2) a logical sequence of cause and effect showing
that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between
vaccination and injury.
Althen, 418 F.3d at 1278. If a petitioner satisfies all three prongs of the Althen test by a
preponderance of the evidence, a prima facie case is established, which shifts the burden
to the respondent to prove that a factor unrelated to the vaccine was the “sole substantial
12
factor in bringing about the injury.” de Bazan v. Sec’y of Health & Human Servs., 539
F.3d 1347, 1354 (Fed. Cir. 2008) (citing Knudsen v. Sec’y of Health & Human Servs., 35
F.3d 543, 548 (Fed. Cir. 1994)).
Discussion
Petitioner challenges Special Master Lord’s decision to deny compensation on
four grounds: (1) for requiring direct proof of Petitioner’s “mechanism of injury”; (2) for
relying on epidemiological studies as support for finding no association between the
DTaP vaccine and infantile spasms; (3) for failing to consider evidence that the DTaP
vaccine can “trigger” infantile spasms; and (4) for determining that Petitioner had not
met its burden of establishing a logical sequence of cause and effect. The Court
addresses each of these grounds in turn and ultimately concludes that the Special
Master’s rulings were in accordance with the law and her factual findings were not
arbitrary and capricious.
I. The Special Master Applied the Proper Standard in Finding That Petitioner
Failed to Prove a Reliable Theory of Causation.
On review, Petitioner argues that the Special Master imposed a heightened burden
of proof by requiring a showing of causation to the level of “scientific certainty” rather
than by a preponderance of the evidence. Specifically, Petitioner alleges that “the special
master required direct proof of a mechanism of injury, and in doing so, committed clear
legal error.” Pet’r Mot. 24-25.
Under the first prong of the Althen test, a petitioner must demonstrate a
“persuasive medical theory” by “proof of a logical sequence of cause and effect showing
that the vaccination was the reason for the injury.” Althen, 418 F.3d at 1278 (internal
quotations omitted). This “logical sequence” should be supported by “reputable medical
or scientific information,” such as scientific studies or expert medical testimony. Id.When evaluating a proffered theory of causation, a court must view the evidence under
the more lenient preponderant evidence standard, and “not through the lens of the
laboratorian.” Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1380 (Fed.
Cir. 2009). This standard does not require “scientific certainty,” id., but rather a showing
of “more likely than not,” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315,
1322 (Fed. Cir. 2010). Moreover, a petitioner must demonstrate that this “reputable
medical or scientific explanation . . . pertains specifically to the petitioner’s case . . . .”
13
Id. (emphasis added). “Although probative, neither a mere showing of a proximate
temporal relationship between vaccination and injury, nor a simplistic elimination of
other potential causes of the injury suffices, without more, to meet the burden of showing
actual causation.” Althen, 418 F.3d at 1278 (citing Grant v. Sec’y of Health & Human
Servs., 956 F.2d 1144, 1149 (Fed. Cir. 1992)).
Petitioner contends that he satisfied the first prong of the Althen test by offering “a
reasonable, plausible biological mechanism as to how [Joseph’s] DTaP vaccination may
have caused functional damage to his brain,” resulting in his seizure disorder. Pet’r Mot.
25. However, as the Federal Circuit clarified in Moberly, “proof of a ‘plausible’ or
‘possible’ causal link between vaccine and the injury . . . is not the statutory standard.”
592 F.3d at 1322. Although Petitioner is correct in pointing out that a medical theory
may be supported by expert medical testimony, the mere existence of such testimony is
insufficient to satisfy the burden of showing a “persuasive” medical theory – this theory
must also preponderate.
Through the expert reports and testimony of Dr. Griesemer, Petitioner established
the general hypothesis that pertussis toxin can cause seizures through interference with
neuronal signaling. See, e.g., Pet’r Ex. 37 at 3; Tr. II 20. Starting from this broad
premise, Dr. Griesemer then concluded that the reduced amount of pertussis toxin present
in the DTaP vaccine (as opposed to the DTP vaccine) caused Joseph’s infantile spasms
via a “direct toxic insult” to Joseph’s brain. Pet’r Mot. 27-29. It bears repeating that Dr.
Griesemer is unaware of the amount of pertussis toxin in the acellular vaccine, Tr. II 43-
44, but notes that the DTaP “reduces or mitigates the available pertussis toxin,” Pet’r Ex.
37 at 3. See also Tr. II 87 (“[W]e are dealing with a neurotoxin that has in the past
caused enough problems that there have been intense efforts to reformulate it so it’s less
toxic.”).
Although pertussis has been demonstrated to be a neurotoxin in medical literature,
there was no evidence other than Dr. Griesemer’s reports and testimony indicating that
pertussis toxin could cause infantile spasms generally, much less indicating that the small
amount of pertussis in the DTaP vaccine caused Joseph’s infantile spasms specifically.
Taylor, at *26. At the 2007 hearing, Dr. Griesemer cast further doubt on his pertussis
causation theory when he stated “I don’t know what component of the [acellular] vaccine
exists that would trigger this mechanism that I’ve hypothesized.” Tr. I 112. The Special
Master was correct to require additional evidence showing that interference with GABA
receptors at the hands of the DTaP vaccine can cause infantile spasms, as “a petitioner
14
must provide a reputable medical or scientific explanation that pertains specifically to the
petitioner’s case.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339,
1345 (Fed. Cir. 2010). Therefore, Petitioner’s argument that the Special Master
erroneously applied a heightened burden of proof in violation of the law necessarily fails,
as she merely required Petitioner to show precisely what the law requires. See W.C. v.
Sec’y of Health & Human Servs., 2013 WL 151714, *8-9 (Fed. Cir. Jan. 15, 2013)
(finding the special master was correct to require additional evidence showing that
molecular mimicry can cause the influenza vaccine to significantly aggravate multiple
sclerosis).
Moreover, even supposing that Petitioner had been able to establish a causal link
between pertussis toxin and infantile spasms, the record is devoid of any evidence that
this proposed mechanism was at work in Joseph’s case. In his testimony, Dr. Griesemer
explained that a necessary condition of a direct toxic insult is a breach of the blood brain
barrier. Tr. II 40-42.10 Dr. Griesemer conceded, however, that there was no clinical
evidence demonstrating a breach of the blood brain barrier in Joseph’s case, Tr. II 40, 77-
78, an observation confirmed by Dr. Guggenheim, Tr. II 121, 172. This was precisely the
situation in Moberly, where the expert also put forth the blood brain barrier theory as
causative of the petitioner’s seizure disorder following DPT vaccination. 592 F.3d at
1320-21. There, the Federal Circuit held that the special master did not err in rejecting
the expert’s theory of causation when the expert “conceded that there was no evidence in
the record suggesting that the proposed mechanism was at work in [petitioner’s] case.”
Id. at 1324.
Finally, Dr. Griesemer himself conceded that the evidence does not tilt in one
direction or the other on whether Joseph’s injury was “caused solely by an interaction in
the brain with pertussis or pertussis interacting with a preexisting brain abnormality.” Tr.
II 36. Despite his extensive review of the records, Dr. Griesemer admitted that he could
not discern why “in this particular case, the vaccine . . . caused [Joseph’s] infantile
spasms.” Tr. II 77. These statements significantly undermine the reliability of
Petitioner’s causation theory.
10
In the Motion for Review, Petitioner now attempts to argue that certain areas of the brain have no blood
brain barrier, and therefore, no breach of said barrier would be necessary to Dr. Griesemer’s theory of a
direct toxic insult to the brain. Pet’r Mot. 29. As counsel for Respondent correctly pointed out at oral
argument, this approach was not presented at the evidentiary stage and cannot now be countenanced by
the Court. Moreover, even supposing this argument had been properly presented at an earlier stage, the
onset of Joseph’s seizures is inconsistent with a direct toxic insult to the brain, as discussed below.
15
The task of the Special Master is to determine, “based on the record evidence as a
whole and the totality of the case, whether it has been shown by a preponderance of the
evidence that a vaccine caused the [petitioner’s] injury.” Hibbard v. Sec’y of Health &
Human Servs., 698 F.3d 1355, 1366 (Fed. Cir. 2012) (quoting Porter v. Sec’y of Health
& Human Servs., 663 F.3d 1242, 1249-50 (Fed. Cir. 2011)). Upon evaluating the clinical
record, the theories and testimony of both experts, as well as the corresponding medical
literature, the Special Master determined that “the size of the gap between the scientific
evidence presented by Dr. Griesemer and the theory of possible vaccine causation he
expounded in [Joseph’s] case is too large.” Taylor, at *27 (citations omitted). The Court
agrees. Accordingly, the Special Master did not err in concluding that the blood brain
barrier theory did not support Petitioner’s claim of causation, and necessarily, the first
prong of the Althen test was not met.
II. The Special Master Did Not Err in Considering Epidemiological Evidence.
Next, Petitioner contends that the Special Master erred in relying on
epidemiological studies “as support for her finding that there is not an association
between DTaP vaccination and infantile spasms.” Pet’r Mot. 31. “[T]he purpose of the
Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft
of complete and direct proof of how vaccines affect the human body,” Althen, 418 F.3d
at 1280, and therefore, “a paucity of medical literature supporting a particular theory of
causation cannot serve as a bar to recovery,” Andreu, 569 F.3d at 1379. Accordingly, a
claimant may, but need not, produce medical literature or epidemiological evidence to
establish causation. Id. at 1379-80. However, as a claimant’s theory of causation must
be supported by a “reputable medical or scientific explanation,” a Special Master may
assess epidemiological evidence in “reaching an informed judgment as to whether a
particular vaccination likely caused a particular injury.” Id. at 1379 (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 593-97 (1993)).
The essence of Petitioner’s theory is that pertussis toxin caused Joseph’s infantile
spasms. Vaccines containing pertussis toxin have been administered in the United States
for decades. Through its evolution, manufacturers have endeavored to minimize the
amount of toxin in the vaccine, resulting in the low level of toxicity in the modern DTaP
vaccine. The effects of the toxin on persons receiving this vaccine have been intensely
studied over the years. Childhood immunizations are often administered within the
medically established time frame for the onset of infantile spasms, and therefore, the
hypothetical relationship between pertussis and the disease has been carefully examined.
16
Resp’t Exs. I at 3-6; G at 3. The bevy of medical literature and epidemiological evidence
submitted by the parties reinforces this state of affairs11 and demonstrates that “a paucity
of medical literature” is not an issue in this case. Given the wealth of information
regarding a possible relationship between infantile spasms and pertussis vaccination, it
would indeed be, as the Special Master noted, “irresponsible to ignore the result of the[]
investigations.” Taylor, at *28. Therefore, the Special Master did not err in considering
epidemiological evidence, along with the clinical record, expert testimony and other
medical literature, to reach her informed judgment that Petitioner’s theory of causation
was more unlikely than not.
Within the same section of his brief, Petitioner makes the paradoxical argument
that the Special Master “abused her discretion in failing to consider the evidence in the
epidemiologic studies that was supportive of an increased risk of infantile spasms
following a pertussis vaccination.” Pet’r Mot. 35.12 In particular, Petitioner highlights
two studies in the record as supportive of his theory that the DTaP vaccine caused
Joseph’s infantile spasms, Infantile Spasms and Pertussis Immunisation, (“Bellman
article”) and Temporal relationship modeling: DTP or DT immunizations and infantile
spasms (“Goodman article”). Pet’r Mot. 33-34 (citing Resp’t Exs. G, N). Petitioner
seizes on non-statistically significant data mentioned within these articles as “probative,”
arguing that it “indicate[s] an increased risk of infantile spasms following a pertussis
vaccination.” Pet’r Mot. 34. Although the studies do show more reports of infantile
spasms in the seven days following vaccination than in the next three weeks, the authors
quickly disclaimed any hypothetical causal association with the following two
explanations: (1) spasms would have occurred anyway because of the underlying disorder
and were merely accelerated by the vaccine; and (2) heightened vigilance of parents
following immunizations procedures. Taylor, at *28 (citing Resp’t Exs. N at 4-6; K at
132); Resp’t Ex. G at 3. The Special Master considered the so-called “probative” value
of this data along with the other extensive evidence against a causal relationship between
the vaccine and infantile spasms, and concluded that Petitioner’s theory of causation was
extremely unlikely. Id. at *28-29. This Court cannot say that the Special Master’s
weighing of the expert testimony was arbitrary and capricious. See W. C., 2013 WL
11Between the two parties, an excess of twenty different articles and studies were submitted into
evidence, a count which does not include the extensive references to other sources within the expert
reports.
12
Remarkably, in the immediately preceding sentence, Petitioner states: “The special master made an
error by relying on conclusions of the epidemiologic studies as support that a pertussis vaccination cannot
cause infantile spasms.” Pet’r Mot. 35.
17
151714, at *8-9 (finding that special master did not err in giving minimal weight to non-
statistically significant data within studies when the bulk of the evidence weighed against
petitioner’s theory).
Moreover, as the Special Master observed, both the Bellman and Goodman
articles concluded that pertussis, as received through DTP, or the whole cell version of
the vaccine, has no causal relationship to infantile spasms. Resp’t Exs. G at 3; N at 5-6.
Joseph Taylor received the DTaP, or acellular, vaccine, which Dr. Griesemer himself
noted was formulated “to reduce that amount of pertussis toxin that the brain is exposed
to,” in comparison to the DTP vaccine. Tr. II 43.13 Thus, the “probative” value of (1)
non-statistically significant data (2) within a study of a vaccine that Joseph did not
receive, is minimal to non-existent.
III. The Special Master Carefully Considered All Relevant Evidence.
As a third objection to the Special Master’s decision, Petitioner argues that the
Special Master failed to consider “evidence relating to medical literature that supports a
finding that the pertussis toxin is known to trigger infantile spasms.” Pet’r Mot. 35.
Specifically, Petitioner contends that the Special Master failed to consider a 1994
Institute of Medicine (“IOM”) report which was referenced within the Goodman article,
Respondent’s Exhibit N. The IOM report was one of seventeen references within the
Goodman article, all of which were consulted in arriving at the conclusion that there was
“a no-effect relationship” between the DTP vaccine and infantile spasms. Resp’t Ex. N at
4-7.
As Petitioner rightly points out, a Special Master “must consider all relevant and
reliable evidence governed by principles of fundamental fairness to both parties.”
Vaccine Rule 8(b)(1), RCFC App. B. Here, the Special Master did just that, and
thoroughly documented her review of the parties’ positions and submitted evidence,
demonstrated through her thoughtful and comprehensive 41-page opinion. As discussed
in the preceding section, the Special Master carefully weighed the evidence in the record,
including the Goodman article and its conclusion that no causal relationship exists
between the DTP vaccine and infantile spasms. Taylor, at *28 (citing Resp’t Ex. N).
Respondent aptly states in its reply belief that “[t]his argument belies credulity, as the
Decision is replete with citation of, and consideration of, the Goodman article.” Resp’t
13
As the Federal Circuit has noted, “[t]he general consensus is that the older [DPT] vaccine is more
dangerous than the newer [DTaP] version.” Andreu, 569 F.3d at 1375 n.1.
18
Reply 15 (citing Taylor, at *5 n.10, *6 n.11, *22, *28, *29). Accordingly, Petitioner’s
third objection is wholly without merit, and the Court need not address it further.
IV. The Special Master Properly Concluded That Petitioner Failed to Establish a
Logical Sequence of Cause and Effect.
Finally, Petitioner alleges that the Special Master erred in finding no logical
sequence of cause and effect between the DTaP vaccine and Joseph Taylor’s injury.
Although she concluded that Petitioner failed to meet the first prong of the Althen test, in
the interest of judicial efficiency, the Special Master also evaluated whether Petitioner’s
theory met the second prong of the Althen test. Under this prong, a petitioner must
establish, by a preponderance of the evidence, “a logical sequence of cause and effect
showing that the vaccination was the reason for the injury.” Althen, 418 F.3d at 1278;
Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006)
(“‘A logical sequence of cause and effect’ means what it sounds like – the claimant’s
theory of cause and effect must be logical.”). Although “definitive confirmation” of each
aspect within this sequence is not required, the evidence must establish that the links in
the causal chain are logical. See Hibbard, 698 F.3d at 1370-74 (O’Malley, J., dissenting)
(noting a tendency in Vaccine Act cases to “increase the hurdles . . . [c]laimants must
overcome”). Circumstantial evidence may be sufficient to meet this burden, but “[t]here
may well be a circumstance where it is found that a vaccine can cause the injury at issue
and where the injury was temporally proximate to the vaccination, but it is illogical to
conclude that the injury was actually caused by the vaccine.” Capizzano, 440 F.3d at
1327 (noting that evidence used to satisfy one prong of the Althen test may overlap to
satisfy another prong). Accordingly, “neither a mere showing of a proximate temporal
relationship between vaccination and injury, nor a simplistic elimination of other
potential causes of the injury suffices, without more, to meet the burden of showing
actual causation.” Althen, 418 F.3d at 1278 (citing Grant, 956 F.2d at 1149).
Here, Petitioner argues that he has established a logical sequence of cause and
effect through circumstantial evidence. Specifically, Petitioner submits that (1) Dr.
Griesemer’s testimony and reports that pertussis can cause infantile spasms, (2) the onset
of Joseph’s infantile spasms within hours of the vaccine, and (3) the lack of an alternative
cause of Joseph’s disorder makes it “illogical to conclude otherwise.” Pet’r Mot. 37-38.
As detailed above, Petitioner has failed to establish that the DTaP vaccine can cause the
specific seizure disorder of infantile spasms. Thus, this first link in Petitioner’s chain of
cause and effect is missing. Additionally, as demonstrated by the evidence in the record,
19
the “circumstantial evidence” surrounding Joseph’s injury contradicts the very conclusion
of causation that Petitioner advocates.
Upon receiving the DTaP vaccination, Joseph did not manifest any symptoms
indicative of a toxic insult to the brain, the theory advanced by Petitioner. There was no
evidence of the “necessary” condition of a breach of the blood brain barrier, Tr. II 40, nor
were there any signs of a generalized toxic insult to the brain, Tr. II 77-78, 120-21.
Moreover, as Petitioner highlights, Joseph “developed symptoms of [infantile spasms]
within hours of his pertussis vaccine.” Pet’r Mot. 38. Dr. Guggenheim demonstrated
through her testimony and peer–reviewed study that the onset of infantile spasms after an
insult to the brain does not occur for a period of some weeks. Therefore, the temporal
relationship between vaccine and alleged injury is wholly illogical when applied to Dr.
Griesemer’s theory of a direct toxic injury.
Additionally, the record evidence established that the peak onset age of infantile
spasms is six months, see, e.g., Tr. II 89, 177, consistent with the age at which Joseph’s
infantile spasms became clinically recognizable.14 Although the development of infantile
spasms is typically insidious, both experts indicated that early signs of the disorder are
subtle and often overlooked by parents. Thus, the temporal proximity of Joseph’s
vaccination and his injury is more suggestive of coincidence rather than causation.
As demonstrated by expert testimony and exhibits, infantile spasms are a unique
seizure disorder with a broad range of potential causes, some established, some as of yet
undiscovered. Resp’t Exs. I at 2; J at 1. Here, the mere fact that no other cause has been
identified for this unfortunate disorder is insufficient to show that the DTaP vaccine was
more likely than not the cause of Joseph’s suffering from infantile spasms. See Althen,
418 F.3d at 1278.
Finally, the Court notes that Petitioner dedicates substantial portions of his motion
for review to reproducing excerpts from Joseph’s medical records in an effort to bolster
his causation theory. In particular, Petitioner relies on Andreu for the proposition that the
testimony of treating physicians can be “quite probative” in establishing the second prong
of the test. Andreu, 569 F.3d at 1375 (citing Capizzano, 440 F.3d at 1326); Moberly, 592
F.3d at 1323 (noting that causation may be established by a treating physician’s reliable,
persuasive opinion that a vaccine caused the petitioner’s injury); cf. Cedillo v. Sec’y of
14
Joseph received his vaccinations when he was five months and three weeks. See Joint Post-Hr’g Mem.
at 4.
20
Health & Human Servs., 617 F.3d 1328, 1348 (Fed. Cir. 2010) (affirming that treating
physicians’ notations in medical records “simply indicat[ed] an awareness of a temporal,
not causal, relationship”).
Petitioner’s reliance on Andreu is inapposite, however, as the evidentiary record in
that case was significantly different from the case at bar. In Andreu, the Federal Circuit
found that the testimony of a claimant’s treating pediatric neurologist that he
“unequivocally . . . believed that the DPT inoculation caused [the claimant’s] seizures”
was sufficient to establish a logical sequence of cause and effect. Id. at 1375-76.
Additionally, in Andreu, the testimony of the admitting neurologist at the time of the
claimant’s initial hospitalization also supported a causal connection between the vaccine
and the child’s seizures. Id. 1376. Here, in stark contrast to the role of the physicians in
Andreu, it was Dr. Griesemer alone who drew a causal link between Joseph’s seizures
and the DTaP vaccination, and not any of his treating physicians. As the Special Master
pointed out, although there are multiple references to Joseph’s immunization history in
his medical records, the physicians merely note the temporal relationship between the
vaccination and the onset of the seizures.15 Therefore, these notations of a temporal
relationship are not probative of causation.
In sum, Petitioner’s theory of causation is speculative at best, and inconsistent
with decades of medical research regarding pertussis vaccinations and infantile spasms.
The Court agrees with the Special Master that “there is no logical reason to assume, and
no evidence in the record to support, the idea that the remote possibility of coincidence
was more remote than the remote possibility of vaccine causation.” Taylor, at *30.
Accordingly, the Court affirms the Special Master’s ruling that Petitioner failed to
establish a prima facie case entitling him to compensation.
Conclusion
For the foregoing reasons, the Special Master’s September 20, 2012 decision
denying compensation is AFFIRMED. This Court finds that the Special Master did not
err in denying Joseph Taylor’s claim. Accordingly, Petitioner’s motion for review is
DENIED.
15
Discharge diagnosis from Joseph’s initial hospital stay: “[i]nfantile spasms of idiopathic [unknown]
origin,” Pet’r Ex. 6 at 138; treating neurologist’s assessment: “new onset of seizure disorder of unknown
etiology. [Joseph] will be evaluated for infantile spasms[,]” id. at 256; emergency department report:
“[c]oncern was initially for either an atypical febrile seizure or an immunization reaction to the vaccines
that he received yesterday,” id. at 267.
21
Pursuant to Rule 18(b) of the Court’s Vaccine Rules, the parties may submit any
proposed redactions of confidential or other protected information within fourteen days
from the date of this opinion before it is released for publication.
IT IS SO ORDERED.
s/Thomas C. Wheeler
THOMAS C. WHEELER
Judge
22