Roscoe v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 8, 2020
* * * * * * * * * * * * * * *
STEPHANIE ROSCOE, as * PUBLISHED
Representative of the Estate of *
B.R., deceased, * No. 11-206V
*
Petitioner, * Special Master Nora Beth Dorsey
*
v. *
* Entitlement; Hepatitis A (“Hep A”)
SECRETARY OF HEALTH * Vaccine; Tetanus-Diphtheria-Acellular
AND HUMAN SERVICES, * Pertussis (“Tdap”) Vaccine; Meningococcal
* (“Menactra”) Vaccine; Human
Respondent. * Papillomavirus (“HPV”) Vaccine;
* Streptococcus Pyogenes; Death.
* * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
I. INTRODUCTION
On April 4, 2011, Stephanie Roscoe (“petitioner”), as representative of the estate of B.R.,
deceased, filed a petition under the National Vaccine Injury Compensation Program (“Vaccine
Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleges that as a result
1
Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it on the United States Court of Federal Claims’ website in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). This means the Ruling will be available to
anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
of receiving hepatitis A (“Hep A”), tetanus-diphtheria-acellular pertussis (“Tdap”),
meningococcal (“Menactra”), and human papillomavirus (“HPV”) vaccines on March 31, 2009,
B.R. suffered fever, leg and bodily pain, emotional and mental confusion and anguish, and death.
Petition at 1 (ECF No. 1). Respondent argued against compensation, stating that “this case is not
appropriate for compensation under the terms of the Vaccine Act.” Respondent’s Report (“Resp.
Rept.”) at 2 (ECF No. 16).
After carefully analyzing and weighing the evidence presented in this case in accordance
with the applicable legal standards, the undersigned finds that petitioner provided preponderant
evidence that one or more of the vaccines B.R. received caused her to develop a Streptococcus
pyogenes3 infection that caused her death, which satisfies her burden of proof under Althen v.
Secretary of Health & Human Services, 418 F.3d 1274, 1280 (Fed. Cir. 2005). Accordingly,
petitioner is entitled to compensation.
II. ISSUES IN AGREEMENT AND IN DISPUTE
The parties agree that B.R.’s death was “most likely caused by a gram-positive bacteria,
Streptococcus pyogenes [], that resulted in an infection in her hip, which led to septic shock that
ultimately caused her death.” Resp. Submission, filed Dec. 20, 2019, at 4 (ECF No. 166); accord
Petitioner’s (“Pet.”) Submission, filed Dec. 23, 2019, at 2 (ECF No. 167). They generally agree
that there is a factual issue as to whether B.R. had a sore throat prior to her vaccinations, and if
so, the medical significance of her sore throat. Resp. Submission at 4; Pet. Submission at 2.
This issue will be addressed as part of the causation analysis related to Althen Prong Two.
The issue in dispute is whether petitioner has established by preponderant evidence that
B.R.’s vaccinations administered on March 31, 2009 were a substantial factor in causing her
death.
III. BACKGROUND
A. Procedural History
This case has a long and complicated procedural history. Petitioner filed her claim on
April 4, 2011, and subsequently filed medical records and an expert report. See Petitioner’s
Exhibits (“Pet. Exs.”) 1-6. On November 18, 2011, respondent filed his Rule 4(c) Report, in
which he recommended against compensation. Resp. Rept. at 2. Respondent maintained that
petitioner failed to provide a “sound and reliable” medical theory that supports the claim that
B.R. was injured and died as a result of the vaccinations. Id. at 11.
3
Streptococcus pyogenes is “a ß-hemolytic species [of Streptococcus] that comprises group A of
the Lancefield classification and is toxigenic and pyrogenic.” Streptococcus Pyogenes,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?
id=108772 (last visited May 27, 2020). Throughout this Ruling, Streptococcus pyogenes may be
abbreviated as S. pyogenes or simply as strep.
2
On January 5, 2012, petitioner was ordered to file a supplemental expert report to address
the issues raised in respondent’s Rule 4(c) Report. Order dated Jan. 5, 2012, at 1 (ECF No. 18).
Petitioner sought and was granted several extensions of time within which to file the
supplemental expert report, which was ultimately filed on January 15, 2013. Supplemental
(“Suppl.”) Expert Rept., filed Jan. 15, 2013 (ECF No. 26). Respondent filed an expert report on
April 10, 2013. Resp. Ex. A. An entitlement hearing was scheduled for November 19 through
21, 2013. Prehearing (“Prehr’g”) Order dated May 14, 2013, at 1 (ECF No. 32). During summer
2013, the parties engaged in settlement negotiations, and on August 22, 2013, the case was
referred to Special Master Moran for alternate dispute resolution (“ADR”) proceedings. Order
dated Aug. 22, 2013, at 2 (ECF No. 38). The case did not proceed to hearing but remained in
ADR until February 2014, at which time a 15-Week Stipulation Order was entered and an order
removing the case from ADR was issued. See 15-Week Stipulation Order dated Feb. 4, 2014
(ECF No. 44); Order dated Feb. 6, 2014 (ECF No. 45).
On July 8, 2014, a status conference was held by the presiding special master to discuss
petitioner’s counsel’s concerns about the stipulation. Order dated July 8, 2014, at 1 (ECF No.
47). Petitioner’s counsel reported that petitioner may have received a settlement for B.R.’s
injury and death.4 Id. Petitioner had been instructed not to disclose information about the
settlement and the implications on the agreed upon stipulation related to the present claim. Id.
Petitioner’s counsel was instructed to obtain more information. Id.
On July 18, 2014, petitioner filed a copy of the complaint she filed in the State Court of
Dougherty County, State of Georgia, on April 1, 2011, against a number of individually named
physicians, their employers, and Phoebe Putney Memorial Hospital (“Phoebe Putney”) for
medical negligence and the wrongful death of B.R. Response to Court Order, filed July 18,
2014, at 2-20 (ECF No. 49). Petitioner also filed an amended complaint, which included
affidavits of Dr. George Jerome Shaw, III and Dr. Robert Mills, setting forth alleged negligent
acts committed by the physicians and nursing staff at Phoebe Putney. Id. at 21-36. Neither the
complaint or the amended complaint state any allegations based on the vaccines, against the
person who administered the vaccines, or the manufactures of the vaccines. Subsequently,
discovery depositions from petitioner’s Georgia civil case were filed. (ECF Nos. 55, 58-60).
On July 21, 2014, the special master issued an Order to Show Cause why the case should
not be dismissed because the petitioner had a pending civil action when she filed her petition in
this Court. Order dated Sept. 25, 2014, at 3 (ECF No. 54). The issue was briefed, and the parties
agreed that the controlling case was Schumacher v. Secretary of Health & Human Services, 2
F.3d 1128 (Fed. Cir. 1993). Id. (citing Pet. Brief in Support of Mutual Agreed upon Stipulation
Approval and Opposition to Dismissal, filed Aug. 22, 2014, at 3-4 (ECF No. 52); Resp. Reply to
Pet. Response to the Order to Show Cause and Motion to Strike, filed Sept. 25, 2014, at 4 (ECF
4
The Vaccine Act provides, “[i]f a plaintiff has pending a civil action for a vaccine-related
injury or death, such person may not file a petition under [the Vaccine Act] for such injury or
death.” § 11(a)(5)(B). It also provides that if “a civil action brought against a vaccine
administrator or manufacturer for a vaccine-related injury or death” results in an award of
damages “under a judgment of a court or a settlement of such action, the person who brought
such action may not file a petition under [the Vaccine Act] for such injury or death.” § 11(a)(7).
3
No. 53)). In Schumacher, the Federal Circuit held that the Vaccine Act does not bar a petitioner
from filing a vaccine petition when her pending civil action is not against a vaccine manufacturer
or vaccine administrator. Id.; Schumacher, 2 F.3d at 1133. Thus, the special master issued an
order in which she ruled that the Vaccine Act did not require dismissal of the petition in this
Court. Order dated Sept. 25, 2014, at 3. Respondent was given time to review new evidence,
particularly the deposition testimony of the physicians who provided care to B.R. as well as the
experts who gave testimony in the State Court civil action in Georgia, and to reevaluate his
position as to the settlement agreement. Id. at 4. After review of the new evidence, respondent
withdrew the settlement offer and wished to proceed with litigation. Order dated Feb. 20, 2015
(ECF No. 62).
The special master then reviewed the evidence, and issued an order providing her
impressions of the evidence. See Order dated Mar. 25, 2015, at 2-8 (ECF No. 63). She listed
several options for the parties to take: (1) petitioner can provide pathology slides to the
respondent’s expert for review; (2) the parties can consider revisiting mediation; and (3) if the
parties could not informally resolve the case through settlement, they can proceed to a hearing.
Id. at 8. The parties did not revisit mediation. Petitioner was ordered to file medical literature,
locate or file the culture results for B.R., and exchange the autopsy slides so that experts for both
parties could review them. Order dated Mar. 26, 2015, at 1 (ECF No. 64). Petitioner filed a
supplemental expert report by Dr. Harry S. Latham, and respondent filed a supplemental expert
report by Dr. Sara Vargas. (ECF Nos. 67, 69).
The case was assigned to the undersigned on February 4, 2016, and an entitlement
hearing was set for March 15 and 16, 2017. Notice of Reassignment dated Feb. 4, 2016 (ECF
No. 77); Prehr’g Order dated Mar. 22, 2016 (ECF No. 81). On January 17, 2017, the
undersigned held a status conference to advise the parties that due to the continuing resolution,
the Office of Special Masters did not receive its full budgetary allotment for 2017, and therefore,
special masters did not have funds to travel for hearings. Order dated Jan. 18, 2017, at 1 (ECF
No. 82). Petitioner requested that the hearing be rescheduled once the continuing resolution had
ended, and requested that the hearing be held in Albany, Georgia so that petitioner and B.R.’s
family could attend. Id. Alternative hearing dates in June and August 2017 were discussed and
provided to the parties. Id. The hearing was rescheduled for June 6 and 7, 2017. Prehr’g Order
dated Feb. 3, 2017 (ECF No. 84). The parties filed their respective pre-hearing submissions, and
additional documents including medical literature.
On June 2, 2017, petitioner’s counsel contacted the undersigned to request that the
hearing set for June 6 and 7, 2017 be rescheduled due to petitioner’s counsel’s medical
emergency. Order dated June 5, 2017 (ECF No. 100). The entitlement hearing was cancelled
and rescheduled for January 8 and 9, 2018. Id.; order dated Sept. 25, 2017 (ECF No. 106). At
the pre-hearing status conference on December 19, 2017, counsel for petitioner advised that he
required further hospitalization due to his medical condition, and therefore, the hearing was
again postponed and rescheduled for May 21 and 22, 2018. Order dated Dec. 19, 2017 (ECF No.
109); order dated Jan. 31, 2018 (ECF No. 113). Petitioner’s counsel was asked to consider
associating with co-counsel. Order dated Dec. 19, 2017, at 1; order dated Jan. 31, 2018, at 1.
Subsequently, the hearing set for May 2018 was cancelled to allow petitioner’s counsel to
associate counsel. Order dated Feb. 13, 2018 (ECF No. 115).
4
On June 25, 2018, petitioner filed a motion to substitute counsel for Attorney Richard
Gage. Motion to Substitute Attorney, filed June 25, 2018 (ECF No. 121). The motion was
granted and a status conference was held on July 12, 2018 with new counsel. Order dated July
13, 2018 (ECF No. 122). Petitioner requested the opportunity to obtain an additional expert,
which was granted, and petitioner was ordered to file the expert report by September 11, 2018.
Id. at 1-2. The medical records and other exhibits were refiled in proper format. See Pet. Exs.
12-41. A Vaccine Adverse Event Reporting System (“VAERS”) report was also filed. Pet. Ex.
42. After several motions for extension of time were requested and granted, petitioner filed the
expert report of Dr. Douglas Miller on March 12, 2019. Pet. Ex. 43. Respondent filed his
responsive report on July 15, 2019. Resp. Ex. Z.
On December 24, 2019, petitioner filed a motion to amend the case caption to remove the
name of Frederick Parks as a petitioner. Motion to Amend Caption, filed Dec. 24, 2019 (ECF
No. 168). Letters of Administration dated October 4, 2013, naming Stephanie Michelle Roscoe
as Administrator of the estate of B.R., were also filed. Pet. Ex. 45. The motion amending the
case caption was granted on January 3, 2020.5 Order dated Jan. 3, 2020 (ECF No. 171).
An entitlement hearing was finally held on January 8, 2020 in Atlanta, Georgia. The
petitioner attended the hearing but did not testify. See Transcript (“Tr.”) 3-4. Petitioner’s
expert, Dr. Miller, and respondent’s expert, Dr. Vargas, testified. Tr. 3. After the hearing,
respondent requested the opportunity to brief the deposition testimony of physicians who
testified in petitioner’s civil action, including Dr. Latham, Dr. Mills, Dr. Mark Noel Burns, and
Dr. Belise Livingston-Burns, as well as address additional matters that arose during the hearing.
Resp. Status Rept., filed Jan. 22, 2020, at 1-2 (ECF No. 175). Respondent’s request was granted.
Order dated Jan. 22, 2020 (ECF No. 176). Respondent’s post-hearing brief was filed on
February 24, 2020, and petitioner filed her post-hearing brief on March 9, 2020. Resp. Post-
hearing Brief (“Posthr’g Br.”), filed Feb. 24, 2020 (ECF No. 181); Pet. Posthr’g Br., filed Mar. 9,
2020 (ECF No. 182).
This matter is now ripe for adjudication.
B. Summary of Relevant Facts
1. Medical Records
B.R. was born on September 4, 1997. Pet. Ex. 14 at 1. Prior to the March 31, 2009
vaccinations, she had no prior significant illnesses, no previous surgeries, and no hospitalizations
since birth. Id. She did have the Sickle Cell Trait. Id.
On March 31, 2009, B.R. presented to her pediatrician’s office for her 11-year well-child
visit. Pet. Ex. 14 at 3. She had no new complaints. Id. Her records show that she had no known
drug allergies. Id. She was afebrile, pulse 90 and regular, and respiratory rate 22. Id. She was
5
For the sake of accuracy and consistency, this Ruling refers to petitioner instead of petitioners
throughout, reflecting that Stephanie Roscoe is the current and proper petitioner, although the
petition was originally filed by both Frederick Parks and Stephanie Roscoe.
5
five feet and three inches tall and weighed 149 pounds. Id. Her BMI was 26.39. Id. Urine dip
stick analysis was normal and hemoglobin was normal at 11.8. Id. B.R. received the Hep A and
HPV vaccines in her upper right arm and the Tdap and Menactra vaccines in her upper left arm.
Id. at 4.
On the following day, April 1, 2009, at 5:45 PM, B.R. was admitted to Phoebe Putney
Emergency Department (“ED”) with complaints of hip pain and fever. Pet. Ex. 14 at 10. Triage
assessment performed at 6:00 PM revealed that B.R. had a fever of 102.9°F, pulse of 115 per
minute, and pain level of 10/10. Id. She was noted to have been febrile with poor oral intake.
Id. B.R.’s pain began at 3:30 AM, and was described as “affecting [her] left iliac crest and
pelvis.” Id. at 11. A history was obtained from B.R.’s mother, petitioner. Id. B.R. had no
history of cough, sore throat, runny nose, or ear pain. Id. Prior to her arrival, she had “been
playful and normally active.” Id. She did have history of fever for the last few hours, with a
maximum temperature of 102 to 103, without chills or sweats. Id. She had no nausea, vomiting,
or diarrhea. Id.
A physical examination was performed by Dr. Alfred L. Woodard. Pet. Ex. 14 at 12.
B.R.’s neck was supple with “[n]o significant adenopathy.” Id. Her throat was clear with no
evidence of inflammation. Id. Her tympanic membranes were clear and there were no signs or
symptoms of otitis media (i.e. ear infection). Id. There was no anterior or posterior
lymphadenopathy. Id. She had unlabored respirations with good breath sounds, and “[n]o
audible rales, ronchi [sic], or wheezing.” Id. She did not cough or have wheezing during the
examination, and she had no respiratory distress. Id. B.R. was “[m]oderately tender to palpation
over the left anterior thigh” and her skin was “clear with no lesions or rash.” Id. Diagnosis was
fever and pediatric viral syndrome. Id. B.R. was given acetaminophen and ibuprofen. Id.
Laboratory tests were performed including a complete blood count (“CBC”) with differential,
urinalysis, and urine culture. Id. at 13. The differential portion of B.R.’s CBC was abnormal,
with lymphocytes low at 13.1% (normal 26.0-40.0) and monocytes elevated at 12.6% (normal
1.0-9.0). Id. B.R.’s urinalysis was normal. Id. The results of the urine culture were not
reported back before B.R.’s discharge from the ED, but subsequently the report showed less than
100,000 morphotype bacteria with no predominant organism. Id. at 18.
B.R. was discharged from the ED at 8:47 PM by Dr. Woodard. Pet. Ex. 14 at 14. Her
temperature at the time of discharge remained abnormal and her mother was advised to follow-
up with her pediatrician if B.R.’s symptoms worsened. Id. B.R.’s pain at the time of discharge
was 2/10. Id.
At 8:04 AM on April 3, 2009, B.R. was taken by her parents to the Palmyra Medical
Center (“Palmyra”) Emergency Room (“ER”) for fever and pain in the left thigh, with nausea
and vomiting, and a rash. Pet. Ex. 14 at 120. An “Emergency Room Patient Sign-in Sheet
Patient Information” form was completed and stated that B.R. had a “[h]igh fever since
Tues[day]. Extreme upper thigh pain. She had 4 vaccines on Tues[day]. Gagging Dehydrated.”
Id. at 133. On the form’s list of signs and symptoms, B.R. was noted to have fever and fatigue.
Id. She did not have a cough, shortness of breath, or close contact with a person who had
respiratory symptoms. Id.
6
An initial assessment was performed at 8:20 AM. Pet. Ex. at 120. B.R. was noted to be
in mild distress, with an elevated heart rate of 147 and elevated temperature of 102.7 F. Id. Her
pain level was 6/10 and her pain was described as aching. Id. She had no respiratory distress
and breath sounds were normal. Id. She was seen by Dr. David L. Kocherla who noted a rash on
B.R.’s neck. Pet. Ex. 13 at 17. He ordered blood and urine cultures, urinalysis, other laboratory
studies, intravenous fluids, and a portable chest X-ray. Pet. Ex. 14 at 122. The urine culture
showed “[m]ixed urogenital flora” with no growth of a significant single organism.6 Pet. Ex. 13
at 24. The chest X-ray impression was “[n]o evidence of frank pneumonia,” but “bronchitis or
atypical pneumonia” could not be excluded. Id. at 27. Motrin, Tylenol #3 and Zofran were
administered. Pet. Ex. 14 at 121. Dr. Kocherla’s diagnosis was post-vaccination reaction. Id. at
139. At 1:00 PM, Dr. Kocherla ordered that B.R. be transferred to Phoebe Putney for admission.
Id.
B.R. was transported from Palmyra to Phoebe Putney by ambulance. Pet. Ex. 14 at 35.
The ambulance trip report states B.R. “is being transferred . . . for follow up care . . . for a
possible allergic reaction to immunizations administered on 03/31/2009,” and “[B.R.] [complains
of] left hip pain,” which she describes “as sharp and non radiating” and “[r]ates pain as 10 on 1-
10 scale.” Id.
After arrival at Phoebe Putney, B.R. was seen by admitting physician, Dr. Belise
Livingston. Pet. Ex. 14 at 27. Dr. Livingston’s history of present illness includes the fact that
B.R. received vaccinations four days prior to her admission, B.R.’s history of fever and left hip
pain, and B.R.’s symptoms progressed to the point that “she began having marked difficulty
ambulating.” Id. Dr. Livingston noted that B.R. had a history of borderline elevated blood
pressure thought to be due to her obesity. Id. at 28. B.R. had no history of cough, wheezing,
trouble breathing, or respiratory distress. Id. Dr. Livingston charted, “[t]he patient has had a
sore throat off and on for the past week” and “[s]he did have some nausea with the sore throat.”
Id. Dr. Livingston also included that “[t]he mother does report intermittent red rash that has
come and gone for the past 3 days.” Id.
Dr. Livingston conducted a physical examination, noting that B.R.’s oropharynx was
“mildly injected.” Pet. Ex. 14 at 28.7 No significant adenopathy was present. Id. Respiratory
sounds were clear bilaterally. Id. B.R. had tenderness of her left upper thigh and hip and she
was unable to ambulate due to pain. Id. Dr. Livingston did not see any rashes or lesions at the
time of her exam. Id. Consults were obtained from neurology and orthopedics. Id. at 29. The
neurologist, Dr. Alan Little, found no evidence of acute neuropathy. Id. at 29, 31-32. The
orthopedist, Dr. Thomas M. Darden, noted that B.R. received four vaccines, and his impression
was “transient synovitis secondary to the viral load from the vaccine although cannot completely
rule out the possibility of a bacterial sepsis of the joint.” Id. at 33. An MRI was ordered to
evaluate for infection or septic joint. Id. at 34.
6
This report was interpreted as a contaminated specimen and not infection. See Tr. 56; Pet. Ex.
13 at 24.
7
Dr. Livingston’s history and physical examination was dictated on April 3, 2009, at 10:19 PM,
and transcribed April 4, 2009, at 10:39 AM. Pet. Ex. 14 at 30.
7
The preliminary interpretation of the MRI was edematous changes “noted within the
muscular surrounding of the left hip compatible with myositis/rhabdomyolysis.” Pet. Ex. 14 at
29. An abscess was not seen. Id. Dr. Livingston concluded that B.R.’s labs were “consistent
with an acute inflammatory process” suggesting possible infectious myositis. Id. at 29-30. She
ordered a rapid strep test, throat culture, and influenza (“flu”) testing to rule out “likely causes of
infectious arthritis or myositis.” Id. at 30. The tests were all negative. Id. at 66, 93. Dr.
Livingston noted that the blood culture was still pending. Id. at 30. Dr. Livingston stated that it
was not clear whether B.R.’s illness was related to her vaccinations. Id. at 58.
At 11:10 PM, the nursing staff received a call from Palmyra reporting that the blood
cultures drawn earlier were positive, showing gram positive cocci in chains. Pet. Ex. 14 at 57,
71. Dr. Livingston, was notified, and an antibiotic, ceftriaxone, was ordered. Id. at 57, 71.
Throughout the early hours of April 4, 2009, B.R. received medication for hip pain. See
Pet. Ex. 14 at 71. At 1:25 AM, she was given morphine, at 5:10 AM, she was given Toradol,
and at 6:45 AM, she was again given morphine. Id. At 6:45 AM, her left hip was described as
swollen, with bruising, and the skin was taunt. Id. At 9:30 AM, B.R. was found unresponsive
but breathing. Id. at 61-62. Dr. Livingston arrived and a code was called. Id. at 62. B.R. was
taken to the ED for emergent care because the ICU was full. Id. at 62, 81. B.R. progressively
worsened and despite lengthy resuscitative efforts, she died at 12:27 PM on April 4, 2009. Id. at
70, 81, 112-13.
A VAERS report was filed on or about April 15, 2009. Pet. Ex. 42. The report contains
a summary of information that appears to have been taken from B.R.’s medical records. See id.
On April 21, 2009, the death certificate was signed by Dr. Livingston, identifying
necrotizing fasciitis (Group A Streptococcus) as the cause of death. Pet. Ex. 12.
2. Autopsies
Two autopsies were performed: the first was performed by Dr. Mark N. Burns, the
Medical Director of the Laboratory and Pathologist at Phoebe Putney, and the second by Dr.
Harry S. Latham, performed at the family’s request. See Pet. Ex. 14 at 83-84; Dr. Latham’s
Autopsy Report (“Latham Autopsy”), filed June 2, 2017 (ECF No. 98).
a. Autopsy by Dr. Mark N. Burns
Dr. Burns performed the initial autopsy on April 7, 2009. Pet. Ex. 14 at 83. External
examination revealed “prominate swelling of the left leg” with induration and discoloration of
the left groin extending to the medial thigh and superiorly to the iliac crest. Id. at 83-84. Bullae
with serosanguinous fluid were present. Id. at 84. External genitalia was unremarkable and
there was “no palpable cervical, axillary, or inguinal lymphadenopathy.” Id. at 83.
Internal examination showed edema and hemorrhage, as well as “highly variable numbers
of coccal bacteria” in the soft tissues of the left leg and thigh. Pet. Ex. 14 at 83, 87. The pleural
(lung) surfaces were normal except some apical fibrous adhesions. Id. at 84. The cause of death
8
was “necrotizing fasciitis (gram positive cocci) with septic shock.” Id. at 83 (emphasis omitted).
Tissue samples were taken from skin, lymph nodes, left perineal, groin, inguinal and hip, and
spleen and liver. Id. at 87.
b. Autopsy by Dr. Harry S. Latham
Dr. Latham also concluded that necrotizing fasciitis due to gram positive cocci of the left
upper leg, hip, and inguinal/groin area with septic shock was the cause of death. Latham
Autopsy at 6. He described the external, internal, and microscopic findings relative to the left
leg and thigh similarly to those noted by Dr. Burns. See id. at 3, 6. Unlike Dr. Burns, Dr.
Latham performed a full autopsy to include all of the abdominal organs and brain. See id. at 4-5.
Relevant to the issues here, he described the lungs as “markedly edematous and congested” but
did not describe any evidence of pneumonia. Id. at 4. Under pathological diagnosis, Dr. Latham
noted,
Status post history of inoculations one day before onset of clinical symptoms. No
distinct point of origin for the introduction of the Group A Beta Hemolytic
Streptococcus (Streptococcus Pyogenes) is found. However, wounds as minor as
pin pricks, needle punctures, bruises, blisters or abrasions are as serious as
traumatic injury or surgical incision and can provide an opportunity for bacteria to
enter the body.
Id. at 6 (emphasis omitted).
C. Deposition Testimony
As described above in the procedural history, petitioner filed a civil action against a
number of defendants alleging medical malpractice arising out of the medical and nursing care
provided to B.R. During the pendency of that action, a number of depositions were taken, which
were later filed in this matter. A brief summary of each deposition follows.
1. Stephanie Roscoe
Ms. Roscoe’s deposition was taken on October 26, 2011. Resp. Ex. L at 1. She is the
petitioner and mother of B.R. At the time of these events, she worked at Ryan’s Steakhouse. Id.
at 13.
On Tuesday, March 31, 2009, Ms. Roscoe had to work, so Mr. Parks took B.R. to the
doctor for her routine appointment and vaccinations. Resp. Ex. L at 14, 87. Prior to that
doctor’s visit, B.R. had no complaints of pain, and did not have a stuffy nose, cough, sore throat,
or fever. Id. at 31-32.
At approximately 3:00 AM the morning after her vaccinations, April 1, 2009, B.R. woke
her mother and complained of leg pain. Resp. Ex. L at 36-37. B.R. felt warm. Id. at 38. She
did not have a runny nose, cough, or sore throat. Id. at 35, 39. Ms. Roscoe had to work that day.
Id. at 39. When she got home from work, B.R. continued to complain of leg pain and her skin
9
was hot. Id. at 40-41. Ms. Roscoe took B.R. to the Phoebe Putney ED, where B.R. was seen by
Dr. Woodard. Id. at 42-43. B.R. did not have a cough, and did not complain of sore throat, ear
pain, or chills. Id. at 44. She did have nausea and was limping. Id. at 44-46. Dr. Woodward
diagnosed B.R. with a reaction to her vaccinations, and recommended Tylenol or Motrin for the
fever. Id. at 47.
The next day, April 2, 2009, Ms. Roscoe worked. Resp. Ex. L at 52. When she got home
from work, B.R.’s limp was worse and it was more difficult for her to walk. Id. at 53-54. B.R.
did not have any complaints of runny nose or cough. Id. at 54-55. About 6:00 AM the next
morning, April 3, 2009, B.R. was really hot, in extreme pain, and unable to walk. Id. at 55-56.
Ms. Roscoe took her to Palmyra. Id. at 57. After being seen at Palmyra, B.R. was transferred to
Phoebe Putney by ambulance. Id. At Phoebe Putney, B.R. was seen by Dr. Livingston and an
orthopedist Dr. Darden, and an MRI was performed. Id. at 59-62.
After B.R. passed away, Ms. Roscoe and Mr. Parks wanted to know what caused B.R.’s
death and decided to pay for a full autopsy to be performed. Resp. Ex. L at 67.
In addition to filing her deposition from the civil case, Ms. Roscoe filed an affidavit in
which she averred that B.R. did not have a “cough or cold prior to receiving the vaccine shots.”
Pet. Ex. 37 at ¶ 13.
2. Frederick Parks
Mr. Parks is the father of B.R. He gave his deposition on October 26, 2011. Resp. Ex. K
at 1. In April 2009, Mr. Parks worked at W.W. Construction Company, pouring asphalt and
concrete for parking lots. Id. at 7.
Prior to B.R.’s vaccinations on March 31, 2009, she did not complain of hip pain, sore
throat, headache, pain, cough, or runny nose. Resp. Ex. K at 14.
After receiving the vaccinations, B.R. complained that her arms were a bit sore. Resp.
Ex. K at 13, 18. The next day, April 1, 2009, after Ms. Roscoe came home from work, B.R.
complained that her leg hurt. Id. at 22. After B.R. was seen at the hospital that day, she had a
limp. Id. at 27. On April 2, 2009, B.R. laid in her bed most of the day. Id. at 30. She
complained of leg pain. Id. The next day, April 3, 2009, Mr. Parks helped get B.R. in the car so
that his wife could take her to the hospital. Id. at 37. Mr. Parks came to see his daughter at the
hospital on April 3, and again on the morning of April 4. Id. at 40-42, 62.
3. Dr. Mark N. Burns
Dr. Burns attended the first two years of medical school at the University of South
Dakota, then transferred and completed his medical training at Emory University. Resp. Ex. Y at
5. He completed his residency in pathology at Emory, and then began practicing pathology at
Phoebe Putney in Albany, Georgia, where he worked until he retired. Id. at 5-6. Dr. Burns is
board certified in pathology. Id. at 6. In his capacity at the pathologist at Phoebe Putney, he
10
worked in concert with the medical examiner or coroner to perform autopsies to determine the
cause of death. Id. at 8-9.
Dr. Burns testified that B.R. was the youngest patient with necrotizing fasciitis that he
had ever seen. Resp. Ex. Y at 16. After completing his evaluation and autopsy, Dr. Burns was
unable to determine the etiology of B.R.’s necrotizing fasciitis. Id. at 16-17.
Dr. Burns defined necrotizing fasciitis as,
an uncommon infectious process that is rapid and life-threatening and requires
rapid surgical and antimicrobial intervention. The most common sites of infection
are the lower extremities, including the groin and perineal regions. It’s a bacterial
infection which is rapidly progressing. There’s generally a site of entrance,
usually a wound of some sort or a natural occurring defect in one of the natural
body barriers, such as the skin or the bowel or the urinary or genital tract. The
most common organism identified as Strep pyogenes.
Resp. Ex. Y at 22. In a majority of cases, “there’s a clearly apparent site of entry, a wound, or an
infectious process and localized infection that is readily apparent as the origin of the process.”
Id. at 23.
Dr. Burns was not able to identify a site of entry for the bacteria that caused B.R.’s
illness. Resp. Ex. Y at 22-23. When asked whether B.R.’s vaccinations had anything to do with
her illness, Dr. Burns answered no, that there was “no known scientific connection between such
unrelated processes.” Id. at 23.
Dr. Burns did not do a full autopsy; he did not examine the brain, lungs, or heart. Resp.
Ex. Y at 20. He did examine the perineal area and the external genitalia, which were
unremarkable. Id. at 72, 74. Further, there was no inguinal lymphadenopathy. Id. at 72.
4. Dr. Harry S. Latham
Dr. Latham attended medical school at the University of North Carolina, and then began
his residency in clinical and anatomical pathology in Palo Alto, California, and finished it at the
Medical College of Virginia, in Richmond, Virginia. Resp. Ex. J. at 6. He started his practice in
Burlington, North Carolina, and then moved to Union and Gaffney, South Carolina. Id. at 7-8.
He later moved to Cordele, Georgia, where he worked at Crisp Regional Medical Center. Id. at
8. He has performed approximately 1,600 autopsies over his 40-year career. Id. at 11-12.
Dr. Latham testified that “there was a very good likelihood that the vaccinations may
have been the cause” of B.R.’s infection, “[a]nd that was strictly because of time and effect of
the event.” Resp. Ex. J. at 28. He explained that the cause of necrotizing fasciitis is not always
known, “[i]t can be just a small prick and the bacteria get into the body.” Id. at 28-29. Dr.
Latham expounded on his opinions as follows:
11
The reason I thought it might have been the inoculations is simply because she got
the inoculations the morning or maybe afternoon of the 31st of March and, within
12 hours or so, she was complaining of pain in her hip. And while it’s possible
she got an injury somewhere else that introduced the organisms into her body,
likelihood, to me, is that it could have been from the inoculations because either
sterility wasn’t obtained before they did the injection[s] and it was introduced—
because we have bacteria all over our body, including beta Strep. And it just
resides there. Normally it doesn’t cause problems. But if it gets introduced into a
certain area where it can grow well, that’s when the problems occur.
Id. at 29.
There was no area seen at autopsy that Dr. Latham was able to identify as a site for the
introduction of bacteria and no evidence of injury. Resp. Ex. J. at 30-31. Further, Dr. Latham
testified that B.R. did not have strep throat. Id. at 35, 37.
When asked how long B.R. had the infection, Dr. Latham responded that the type of
bacteria B.R. had causes symptoms fairly quickly and that the pain she had the day after
vaccination was caused by the infection. Resp. Ex. J. at 38-39.
5. Dr. Belise Livingston-Burns
Dr. Livingston-Burns8 gave a deposition on June 25, 2013. Resp. Ex. W at 1. She
attended medical school at the University of Chicago, Pritzker School of Medicine, and did her
residency in pediatrics at Emory University School of Medicine. Id. at 7. Dr. Livingston-Burns
practiced two years at a National Health Service clinic in Lake City, Florida, then joined the
Albany Area Primary Health Care practice. Id. at 8.
Dr. Livingston-Burns recalls that B.R.’s presentation on April 3, 2009, was concerning
for Guillain-Barré syndrome (“GBS”) following vaccination or viral myositis, due to her
difficulty walking, leg weakness, and recent vaccines. Resp. Ex. W at 13-14, 25. Her ultimate
diagnosis was necrotizing fasciitis and sepsis. Id. at 15. Necrotizing fasciitis was low on the list
of differential diagnoses because B.R. had no open wounds and no history of trauma. Id. at 15-
16. Dr. Livingston-Burns documented that there were no wounds or lesions noted on B.R.’s
skin. Id. at 59.
Due to concern regarding GBS, Dr. Livingston-Burns consulted Dr. Little, a neurologist.
Resp. Ex. W at 31. After consultation, Dr. Little’s impression was septic versus inflammatory
arthritis of the left hip, and he recommended an orthopedic consult who ordered an MRI. Id. at
33-35. The MRI showed edematous changes in the muscle adjacent to the left hip consistent
with myositis/rhabdomyolysis with no evidence of abscess. Id. at 38. At that point, Dr.
Livingston-Burns ordered an infectious disease consult. Id. at 39. She considered a viral illness,
and ordered flu and strep testing, along with other lab studies. Id. at 43-44. The evening of
8
Dr. Livingston changed her surname to Livingston-Burns sometime between treating B.R. and
giving her deposition. See Resp. Ex. W at 5, 7.
12
April 3, Dr. Livingston-Burns was notified that B.R.’s blood culture was positive for gram-
positive cocci in chains, and she suspected some type of Streptococcus, so she ordered
antibiotics. Id. at 49-52.
Dr. Livingston-Burns did not offer any opinion as to the source of B.R.’s infection and
necrotizing fasciitis. Resp. Ex. W at 124. She believed that a report was filed regarding the
B.R.’s vaccinations and the problems she had afterward, but she was not involved in that
process. Id. at 125-26.
6. Dr. David Kocherla
Dr. Kocherla’s deposition was taken on September 5, 2012. Resp. Ex. X at 1. Dr.
Kocherla attended medical school in India, and then took specialized training in general surgery,
also in India. Id. at 5-6. He practiced general surgery in India and Iran, and then in 1994 came
to the United States, where he completed a three year residency in internal medicine at Long
Island Jewish Hospital in New York. Id. at 6-7. After completion of his residency, he moved to
Albany, Georgia, where he joined a practice doing internal medicine, family practice, and
emergency room care. Id. at 8. Subsequently, he joined Palmyra as a full-time emergency
medicine physician. Id. at 9.
Dr. Kocherla provided care to B.R. when she presented to the Palmyra ER on April 3,
2009. Resp. Ex. X at 23-24. Her chief complaints were fever, rash, inability to walk,
polymyalgia, and polyarthralgia. Id. at 28-29. She had pain in the left hip, left knee, lower limb
myalgia, and lower leg weakness due to pain. Id. at 30. B.R. also had a rash on her neck. Id. at
40, 42. Dr. Kocherla’s suspected that B.R. had sepsis and a septic joint due to the tenderness in
her left hip and knee and fever. Id. at 37-43. He was aware that she had received four
vaccinations four days before, and thought the condition was related to vaccination, and
questioned whether she had a rheumatological process. Id. at 42-43. His diagnosis was “post-
vaccination reaction,” and he ordered a sepsis work up. Id. at 33-34, 37-43.
After Dr. Kocherla reviewed lab results, specifically the elevated sedimentation rate of
57, he thought that B.R. had sepsis or “post-vaccination myopathy.” Resp. Ex. X at 53, 56-58.
Dr. Kocherla cited UpToDate “[u]nder post-vaccination reactions” as a resource providing
information about a vaccination reaction that caused focal pain in the hip and thigh. Id. at 54.
After reviewing the lab results, Dr. Kocherla’s diagnosis was “unexplained pain in the upper
thigh” which could represent myopathy, a rheumatology problem, infection, abscess, sepsis,
infected joint, infected tissues, and possibly bone infection. Id. at 58. His working diagnoses
were “post-vaccination reaction, polyarthralgia, [and] serum sickness.”9 Id. Because B.R. had a
rash, Dr. Kocherla also considered that B.R. might have “Still’s Disease or juvenile rheumatoid
arthritis,” which presents with “rash, fever, and pain in the joints.” Id. at 71. He ordered that
B.R. be transferred to Dr. Livingston at Phoebe Putney for pediatric care. Id. at 33-34, 49-50.
9
Serum sickness is “a hypersensitivity reaction to the administration of foreign serum or serum
proteins characterized by fever, urticaria, arthralgia, edema, and lymphadenopathy.” Serum
Sickness, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/
definition?id=106046 (last visited May 27, 2020).
13
7. Dr. Robert W. Mills
Dr. Mills’ deposition was taken July 9, 2013. Pet. Ex. 18 at 1. He attended medical
school and completed a residency in pediatrics at the Medical College of Ohio. Id. at 13-14. He
is in private practice and the Medical Director at Mercy Children’s Hospital in Toledo, Ohio. Id.
at 18.
Unlike the other physicians who gave a deposition, Dr. Mills did not provide any medical
care to B.R.; instead, he was plaintiff’s expert in the medical malpractice case. Dr. Mills
submitted an expert affidavit, in which he testified that the nurses at Phoebe Putney violated the
standard of care by failing to notify a physician on April 4, 2009 of B.R.’s vital signs at 12:00
midnight (BP 76/52, heart rate 140, and respiratory rate 36) and at 4:00 AM (BP 90/48, heart rate
140, and respiratory rate 32). Pet. Ex. 15 at ¶¶ 7(o)-7(r), 10. Dr. Mills’ affidavit was required
under Georgia law to support a complaint for malpractice against the defendant, Phoebe Putney.
Pet. Ex. 18 at 32.
Dr. Mills’ deposition testimony generally focused on his opinions as to the nursing care.
Pet. Ex. 18 at 58. During his deposition, Dr. Mills was asked whether B.R.’s immunizations
played any role in the development of her illness, and he testified that it was “highly, highly
unlikely.” Id. at 45-46. Dr. Mills stated that since B.R. had the vaccinations in her arm, they
were unlikely to seed the infection in her leg. Id. at 46. He explained that in children, infection
can seed through mucus membranes, or the nose, throat, or skin. Id. He also testified that little
breaks, even tiny breaks in the skin, can seed infection and cause bacteremia. Id. He noted that
B.R. had a history of a sore throat, but acknowledged that her strep screen came back negative.
Id. at 47. Dr. Mills also questioned whether minor muscle trauma from jogging (described in
B.R.’s father’s deposition) may have incited the infection, but conceded that opinion was
speculative. Id.
D. Affidavits from Family Members and Pastor Mary Whitley
Several affidavits were executed by family members and Pastor Mary Whitley. See Pet.
Exs. 33-40. Relevant to the causation issues addressed in this Ruling are statements about B.R.’s
health prior to her vaccinations and/or death. Brittany Parks, B.R.’s sister, lived in the same
house and shared a bedroom with her sister. Pet. Ex. 38 at ¶ 5. She averred that she “did not
observe or witness her sister having any complications with coughs or cold immediately prior to
her death.” Id. at ¶ 8. Terry Roscoe, B.R.’s brother, similarly testified that “[his] sister never
exhibited complications with colds or rash or the like prior to being administered the vaccine
shots.” Pet. Ex. 39 at ¶ 7. Pastor Whitley testified that prior to the vaccinations, B.R. “never
complained about flu or cold or anything of that nature.” Pet. Ex. 40 at ¶ 6.
E. Expert Reports
The experts agreed as to the cause of death, necrotizing fasciitis with septic shock due to
a bacterial infection caused by Streptococcus pyogenes; however, they disagreed as to how B.R.
“came to be infected” with the bacteria. Resp. Ex. Z at 1; see also Pet. Ex. 43 at 6-8. Dr. Miller
opined that the source of bacteria was B.R.’s vaccinations, whereas Dr. Vargas opined that it
14
came from the throat, the genital tract, or an unknown origin. Pet. Ex. 43 at 6-8; Resp. Ex. Z at
1-5.
Both experts reviewed the medical records, the autopsy reports, and the autopsy tissue
slides. Pet. Ex. 43 at 1; Resp. Ex. A at 1; Resp. Ex. M at 1-2. The medical records do not
document redness, warmth, or swelling at B.R.’s vaccination sites. Resp. Ex. A at 7.
1. Petitioner – Dr. Douglas Miller, M.D.
a. Background and Qualifications
Dr. Miller is a physician, certified in both neuropathology and anatomic pathology by the
American Board of Pathology. Pet. Ex. 43 at 1. He earned his B.A. from Williams College in
Massachusetts in 1974. Pet. Ex. 44 at 1. He then attended University of Miami where he earned
both his M.D. and Ph.D. Id. Thereafter, Dr. Miller completed an anatomic pathology residency
from 1980 to 1982 and a neuropathology residency from 1982 to 1984 at Massachusetts General
Hospital. Id. Since 1984, he has spent his career in academic pathology. Pet. Ex. 43 at 1. Dr.
Miller currently works as a Clinical Professor in the Department of Pathology & Anatomical
Sciences, Interim Chair of the Department of Pathology & Anatomical Sciences, and the
Pathology Residency Director at the University of Missouri School of Medicine. Id.
Throughout his career, he has served as a consultant to medical examiners requiring
neuropathology subspecialty expertise. Id. at 1-2; Pet. Ex. 44 at 3. Dr. Miller serves on various
committees and editorial review boards and has authored or co-authored almost 300 publications.
Id. at 4-26.
b. Opinion
i. Althen Prong One
There are two tenets to Dr. Miller’s theory of causation. The first tenet is that
Streptococcus pyogenes is a well-known cause of skin and other infections. Pet. Ex. 43 at 7.
This aspect of Dr. Miller’s theory is not in dispute.
The second tenet of Dr. Miller’s mechanism of causation is that Streptococcus pyogenes
bacteria can be distributed through the blood stream to various body sites. Tr. 61, 68-69; Pet. Ex.
43 at 7-8. This mode of infection is referred to as hematogenous spread. Tr. 105. Tissue with
less perfusion that receives less blood flow, like the fatty area of the thigh, can create a location
for infection to set up, particularly in obese persons. Tr. 61. Bacteria grows better in fatty areas
than in other body tissue. Id. Dr. Miller opined that a bacterial infection can occur in a site
remote from the place where the infection entered the body. Tr. 59-61. Specifically, he testified
that in cases of hematogenous spread of bacteria, an infection can occur at a remote site even if
there are no symptoms of infection at the site where the bacteria entered the body. Tr. 67-70, 91.
15
In support of his theory of causation, Dr. Miller cited the Merck Manual, a guidebook for
physicians. Tr. 58 (citing Pet. Ex. 26).10 With regard to necrotizing fasciitis due to
Streptococcus pyogenes, the Merck Manual states that “[i]noculation originates through the skin
or bowel, and the defect may be surgical, trivial, distant from the disease site, or occult, as with
colonic diverticula or an appendiceal abscess.” Pet. Ex. 26 at 4. Thus, the defect where the
bacteria enters the body can be trivial, and Dr. Miller emphasized that the site of bacteria entry
may be distant from the disease it causes. Tr. 59-61.
Dr. Miller also referenced an article filed by respondent, authored by Ian F. Cook.11 Tr.
63-65 (citing Resp. Ex. N). Cook reviewed adverse infectious events that occurred after
vaccination, to emphasize the importance of skin disinfection before administering vaccines. Tr.
65. Dr. Miller explained that bacteria can be introduced into the body through the skin via
injection, and that is why it is important to sterilize the skin prior to vaccine injection. Tr. 68-69,
85. Even proper disinfection technique does not completely sterilize the skin, and there is some
chance for bacteria to be carried through the skin by a needle even if the person who administers
the vaccine follows proper procedure. Tr. 86.
Cook reviewed data from a number of sources, including the VAERS database, Vaccine
Safety Datalink (“VSD”) program, Korean, Italian, and Canadian surveillance programs, Kaiser
clinics, Medicare, and published reports in the medical literature. Resp. Ex. N at 2-3. He
reported 1534 cases of sepsis12 following vaccinations, noting that the majority (65.9%) were
associated with cellulitis.13 Id. at 8.
Twelve cases of necrotizing fasciitis were summarized in a Table in the Cook article:
seven from the literature and five from the VAERS database. Resp. Ex. N at 6-7 tbl.5. One of
the case reports in the table was from a paper authored by Thomas,14 about an 80-year-old
patient who received the flu vaccine in her left upper arm. Id. at 6 tbl.5 (citing Resp. Ex. BB).
Two days later, the patient presented with a blue discoloration of her left forearm, “blister-like
10
Streptococcal and Enterococcal Infections, Merck Manual, https://www.merckmanuals.com/
professional/infectious-diseases/gram-positive-cocci (last visited Sept. 11, 2013).
11
Ian F. Cook, Sepsis, Parenteral Vaccination and Skin Disinfection, 12 Hum. Vaccines &
Immunotherapeutics 2546 (2016).
12
Cook defined sepsis as a systemic inflammatory response syndrome which occurs when
infection is associated with organ dysfunction, hypoperfusion, and/or hypotension. Resp. Ex. N
at 8.
13
Cellulitis is defined as “an acute, infectious and expanding inflammatory condition of the
skin.” Resp. Ex. N at 2.
14
M.G. Thomas, Clostridium Septicum Gas Gangrene Following Intramuscular Infection from
an Influenza Vaccine Booster, 44 British J. Clinical Prac. 709 (1990).
16
fluid collections” or bullae, and a “cold, pulseless left hand.” Tr. 64 (citing Resp. Ex. N at 6
tbl.5). The fluid in the lesions cultured clostridium septicum.15 Id. (citing Resp. Ex. N at 6
tbl.5). Dr. Miller testified that based on the description provided in Cook, the injection site was
the upper left deltoid muscle, and the “subsequent soft tissue infection was in the forearm and
hand, without a direct connection to the vaccination site.” Tr. 64-65. Dr. Miller noted that the
infection was remote from the vaccine site. Tr. 65.
Cook also described ten cases of osteomyelitis16 following vaccination. Resp. Ex. N at 5.
Cook identified three mechanisms of infection spread: haematogenous17 and contiguous spread
with or without vascular insufficiency. Id. One case was due to hematogenous spread18 after flu
vaccination in the right arm of the patient. Id. at 5, 8 tbl.6. The patient’s clinical history was
notable for cellulitis in the right arm and the patient developed L3-4 vertebral osteomyelitis. Id.
at 8 tbl.6. Dr. Miller explained that the mechanism of hematogenous spread of bacteria in the
blood stream described in the patient in Cook’s article was the same “mode of spread” in B.R.’s
case. Tr. 105.
Septic arthritis19 was another type of adverse infection occurring after vaccination
reported by Cook. Resp. Ex. N at 5, 9 tbl.7. Hematogenous spread was reported in four cases of
septic arthritis:
1) Male, age 72, had an influenza vaccine given in his left arm. Id. at 9 tbl.7. He
developed pain and swelling in his right wrist, arm, and left ankle. Id. Group A
strep was cultured from the right wrist. Id.
15
Clostridium septicum is defined as “a toxicogenic species commonly found in animal
intestines and soil, causing diseases such as braxy and malignant edema; in humans it is
sometimes associated with gas gangrene.” Clostridium Septicum, Dorland’s Med. Dictionary
Online, https://www.dorlandsonline.com/dorland/definition?id=65642 (last visited May 27,
2020).
16
Osteomyelitis is the “inflammation of bone caused by infection, usually by a pyogenic
organism, although any infectious agent may be involved.” Osteomyelitis, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=35862 (last visited
May 27, 2020).
17
This is the British spelling of the word, hematogenous. For clarity, the English spelling will be
used throughout this Ruling.
18
Dr. Miller defined hematogenous as “spread in the bloodstream.” Tr. 105.
19
Septic arthritis is an “infection of the joint.” Resp. Ex. N at 5.
17
2) Female, age 1 year, 1 month, had Hepatitis A and Varicella vaccinations in the
left leg, and subsequently was unable to move her left elbow. Id. Aspirate of the
left elbow was positive for Alcaligenes faecalis.20 Id.
3) Male, age unknown, had Hepatitis B vaccination in the left leg and developed
pain and decreased movement in the left leg, and was diagnosed with septic
arthritis of the left hip and ankle. Id. Blood cultures showed methicillin-
susceptible Staphylococcus aureus21 (“MSSA”), as did left ankle ulcer. Id.
4) Male, age 16, received the meningococcal and Tdap vaccines in his right arm, and
developed methicillin-resistant Staphylococcus aureus (“MRSA”) bacteremia
with left sacroiliac joint, and septic arthritis on bone scan and MRI. Id.
There was no mention of symptoms of infection at the site of vaccination in the four
cases described above, where the route of spread was hematogenous. See Resp. Ex. N at 9 tbl.7.
Dr. Miller testified that the case involving the 16-year-old male who had a distant site infection
illustrates his causal theory. Tr. 110-11.
Dr. Miller also cited another article filed by respondent, authored by Stevens et al.,22 in
support of his opinions. Tr. 65-67 (citing Resp. Ex. Z, Tab 4). The article describes patients
who had severe Group A Streptococcal infections. Tr. 66. Dr. Miller notes that “some of the
patients did not have any documented portal of entry,” explaining that these patients had
negative throat cultures and demonstrated no sign of injury to the skin. Tr. 67. Of the patients
with no evidence of skin infections, one had a “bacterial infection of the interior of the eye
globe” or “endophthalmitis.” Id. Dr. Miller opined that the patient with the eye infection had an
infection from a source that was “clearly a distant site” and “no detectable site of entry.” Id.
Therefore, Dr. Miller concluded that the infection had “to be carried in the bloodstream.” Id.
ii. Althen Prong Two
The autopsy established that B.R. had Streptococcus pyogenes, a bacteria that Dr. Miller
opines is known to be present on human skin, and a known cause of human infections. Pet. Ex.
20
Alcaligenes faecalis is “a species isolated from hospital environments and from blood, sputum,
and urine specimens.” Alcaligenes Faecalis, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=55314 (last visited May 27, 2020).
21
Staphylococcus aureus is “a species comprising the yellow-pigmented, coagulase-positive
pathogenic forms of [Staphylococcus]” that “causes serious suppurative infections and systemic
disease, including impetigo bullosa, staphylococcal pneumonia, and staphylococcal scalded skin
syndrome, and has developed resistance to nearly all classes of antibiotics.” Staphylococcus
Aureus, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/
definition?id=108211 (last visited May 27, 2020).
22
Dennis L. Stevens et al., Severe Group A Streptococcal Infections Associated with a Toxic
Shock-like Syndrome and Scarlet Fever Toxin A, 321 New Eng. J. Med. 1 (1989).
18
43 at 7. Dr. Miller opines that the “autopsy findings are consistent with septic shock from an
infection centered in the left hip region.” Id. at 4. According to Dr. Miller, bacteria got into the
bloodstream at the site of one of B.R.’s vaccinations, and once in the bloodstream, traveled to the
thigh, an area of high fat content. Tr. 69. Dr. Miller opines that there was no source of infection
other than vaccination as evidenced by the autopsy. Pet. Ex. 43 at 6.
Dr. Miller disagrees with respondent’s position that B.R. likely had strep throat, or other
infection that caused her necrotizing fasciitis and septic shock. Pet. Ex. 43 at 6. He opines that
the clinical history does not provide evidence of any other source or site of infection. Id. At the
hearing, Dr. Miller painstakingly reviewed the medical records in chronologic order to support
his position that there was no evidence of strep throat that could have been the source of B.R.’s
necrotizing fasciitis.23 See Tr. 13-57.
Dr. Miller began by stating that on March 31, 2009, at B.R.’s well child visit, she had no
complaints, her vital signs, lab tests, and urinalysis were normal, and there were no identifiable
illnesses. Pet. Ex. 14 at 3-4; Tr. 14. The only issue noted was B.R.’s weight. Tr. 14. Four
vaccines were administered at this visit, two in each arm. Pet. Ex. 14 at 4; Tr. 15.
On April 1, 2009, B.R. was seen in the Phoebe Putney ED at 5:45 PM, complaining of
hip pain and fever that began that morning at 3:30 AM. Pet. Ex. 14 at 10-12; Tr. 16. B.R. had
no infectious disease risk factors, no contacts with illness, had been acting normally, was voiding
urine, had no ear pain, had no vomiting or diarrhea, felt hot, and was febrile for two-and-one-half
hours. Tr. 17. B.R. denied injury to the hip, and had a fever of 102 to 103. Id.; Pet. Ex. 14 at
11. There was no history of cough, sore throat, stuffy or runny nose, chills, or sweats, and her
appetite was okay. Pet. Ex. 14 at 11. A physical exam found B.R. had no ear, nose, or throat
abnormalities, her neck was supple, she had no significant adenopathy (no enlarged lymph nodes
in her neck, face, or head), and her oropharynx (throat) was clear with no inflammation or
evidence of otitis media (ear infection). Id. at 12; Tr. 18-19. She had good breath sounds, no
labored breathing, no coughing, and no wheezing. Pet. Ex. 14 at 12; Tr. 19. Lastly, her
abdomen was soft with no palpable or enlarged organs, she had good bowel sounds, she had
“moderate tenderness to palpation over the left anterior thigh,” and her skin was clear with no
rash. Tr. 20; see Pet. Ex. 14 at 12.
Based on the clinical history and physical examination on April 1, Dr. Miller concluded
there was no evidence that B.R. had strep throat. Tr. 20. Specifically, he testified that she had
no inflammation in her throat and no enlarged lymph nodes, which he finds typical for a patient
with strep throat. Id. However, Dr. Miller opined that there was evidence that B.R.’s leg was
infected on April 1 because she complained of pain and her leg was tender to palpation. Tr. 20-
21.
Next, Dr. Miller recounted that B.R. was next seen by a physician on April 3, when she
presented to the Palmyra ER with a high fever and “[e]xtreme upper thigh pain.” Pet. Ex. 14 at
120, 133; Tr. 21. She was again noted to have no cough, no shortness of breath or difficulty
23
Dr. Miller’s complete review of B.R.’s medical records will not be recounted in this section.
For a more detailed summary of relevant facts, see supra Section III.B.1.
19
breathing, no sore throat, no close contact with anyone who had respiratory symptoms, and no
contact with any person having a flu-like illness. Pet. Ex. 14 at 133; Tr. 22. Physical exam
revealed B.R. was in mild distress. Pet. Ex. 14 at 120; Tr. 23. She had normal breath sounds, an
exam of her head, ears, eyes, nose, and throat was normal, she had no history of trauma, and her
skin was warm and intact with no breaks or lesions. Pet. Ex. 14 at 120; Tr. 23-25. Based on the
medical records from April 3, Dr. Miller concluded that there was no evidence that B.R. had
strep throat. Tr. 26.
Dr. Miller testified that B.R. was transferred from Palmyra to Phoebe Putney later that
day and the admitting pediatrician, Dr. Livingston, documented a history and physical exam. Tr.
27-28, 34; see Pet. Ex. 14 at 27-30. On exam, B.R. had no nasal discharge, no cough, no
wheezing, and no trouble breathing. Tr. 36. Dr. Livingston stated, “[t]he patient has had a sore
throat off and on for the past week” and had “some nausea with the sore throat.” Pet. Ex. 14 at
28. B.R. had no pain on urination. Id. She had leg weakness, worse pain in the left hip and
thigh, and decreased ambulation. Id. Dr. Livingston also noted that B.R.’s mother reported that
B.R. had an “intermittent red rash that had come and gone for the past 3 days.” Id. Physical
examination revealed B.R.’s oropharynx was “mildly injected,” there was “[n]o significant
adenopathy,” and her lungs were clear. Id. Dr. Miller testified that the phrase “mildly injected”
suggests mild irritation or inflammation. Tr. 38. Given the history of vomiting at this point, Dr.
Miller stated that the note about B.R. having a sore throat was possibly related to irritated mucus
membranes from vomiting, but admitted that without more information, the finding was difficult
to interpret. Id.
The next physical exam occurred the morning of April 4, at 9:35 A.M. Tr. 39; see Pet.
Ex. 14 at 61. At that time, an exam revealed that B.R. had moist mucus membranes without
inflammation, no cough, and clear lungs. Pet. Ex. 14 at 61.
In summary, Dr. Miller testified that B.R. had five consecutive examinations of her
throat: March 31, April 1, April 3, evening of April 3, and the morning of April 4. The note on
April 3 from Phoebe Putney is the only time that any abnormality is seen and documented, and
thus, it is inconsistent with all of the other contemporaneous entries. Tr. 37. Dr. Miller also
explained that a child with acute strep throat would have an inflamed throat, often with white
follicles and exudate. Tr. 40. Thus, the description by Dr. Livingston on April 3 of “mildly
injected” is not consistent with acute strep throat.24 Id. Further, the rapid strep test and throat
culture done on the evening of April 3 were negative. Tr. 32. The throat culture showed no
evidence of a strep organism. Id. Dr. Miller testified that the accuracy rate of a rapid strep test
combined with a throat culture is 90-95% sensitive. Tr. 32, 71. Thus, he concludes that there is
no evidence “at all” that B.R. had strep throat. Tr. 33.
24
A CDC monograph on Group A Strep and scarlet fever, filed as Respondent’s Exhibit Z, Tab
6, describes symptoms of strep throat as very red, sore throat, fever, whitish coating on the
tongue, and swollen glands in the neck, consistent with Dr. Miller’s testimony on this point.
Group A Streptococcal (GAS) Disease, Ctrs. for Disease Control & Prevention,
https://www.cdc.gov/groupastrep/diseases-public/scarlet-fever.html (last visited July 13, 2019).
20
Dr. Miller also disagreed with respondent’s suggestion that B.R. had pneumonia or
bacterial bronchitis. Pet. Ex. 43 at 6. The lung tissue slides showed “marked congestion and . . .
intra-alveolar hemorrhage,” as well as “considerable desquamation of alveolar and bronchiolar
lining cells and alveolar macrophages, as a terminal and autolytic phenomenon,” but there was
no pneumonia or indication of a prior infection of the lungs. Id. at 4-5. Dr. Miller disagrees with
respondent’s expert, Dr. Vargas, that lung tissue slide Q shows “early bronchopneumonia”
because Dr. Vargas did not identify any evidence of “early bronchopneumonia” in the other three
lung slides. Id. at 5. The areas of lung tissue identified as abnormal by Dr. Vargas are,
according to Dr. Miller, artifactual or terminal findings. Id. at 6. Dr. Miller also referred to these
findings as “agonal,” which are changes that occur during death, and “autolysis,” or changes that
occur when there is a delay in conducting an autopsy. Tr. 195-96. To the extent that there were
any changes consistent with early pneumonia, Dr. Miller opined they would be a consequence of
B.R.’s septicemia, and not a preceding infection. Tr. 196. Dr. Miller also notes that B.R.’s
records include many statements that her lungs were clear, except a note close in time to her
death, where she was noted to be in mild respiratory distress. Id.
Dr. Miller stated that the pathologists who performed the autopsies did not opine that
B.R.’s infection started in her throat. Tr. 51-52. B.R.’s urine culture was also negative and not
compatible with streptococcus. Tr. 56. Dr. Miller opined that there was no evidence of a urinary
tract infection as the course of the infection in B.R.’s medical records. Tr. 70. There was no
history of trauma, no other breaks in the skin. Tr. 72. There was no reason for the treating
physicians to culture the genital tract as there were no symptoms to suggest that was the source
of infection. Tr. 91. Dr. Miller concluded that other than her vaccinations, there is no other
explanation as to the cause of B.R.’s infection. Tr. 71.
Dr. Miller agreed that there was no evidence of a local infection at the site of B.R.’s
vaccinations. Tr. 91. He pointed out that the Stevens article documented a remote infectious
complication (endophthalmitis) from an unknown site of entry. Tr. 89 (citing Resp. Ex. Z, Tab
4). Dr. Miller conceded that in the cases of remote infections cited in Cook, most had an
infection at the injection site; however, there were also cases cited in Cook that documented a
hematogenous spread of infection, in the same manner that Dr. Miller’s asserts occurred in
B.R.’s case, where there was no infection described at the site of vaccination. Tr. 89-90, 107-11
(citing Resp. Ex. N at 9 tbl.7).25
Consistent with the autopsies, Dr. Miller testified that B.R.’s cause of death was
necrotizing fasciitis with septic shock, caused by Streptococcus pyogenes. Tr. 48-49. Dr. Miller
explained that Streptococcus pyogenes is ubiquitous in the environment and on our skin. Tr. 50.
While soft tissue infections like B.R.’s are very rare, they can be fatal. Tr. 51.
Dr. Miller testified that here, there was bacteria on the needle as it penetrated the skin,
and the bacteria was deposited into the subcutaneous tissues, or “penetrate[d] a blood vessel,”
thus getting into the bloodstream. Tr. 111. At the cellular level, Dr. Miller explained that B.R.
25
For the cases cited in Cook documenting a hematogenous spread of infection, see supra
Section III.E.1.b.i.
21
had “transient bacteremia” and the bacteria that entered the bloodstream from the vaccination
seeded the soft tissue of the hip and thigh. Tr. 103, 111. Then, she developed an infection of the
bloodstream and septic shock as a final complication. Tr. 103-04. Dr. Miller said that Cook
describes this as “metastatic,” meaning that it spreads from somewhere else. Tr. 104-05.
In summary, Dr. Miller opined that B.R. was previously healthy, but mildly obese, and
was “given a clean bill of health” on the day she received four different injectable vaccinations.
Pet. Ex. 43 at 8. Within 15 hours, she had left hip pain and fever. Id. She developed septicemia
and septic shock, which caused her death. Id. She was diagnosed with a streptococcal infection.
Tr. 97. She had no infection in her throat. Id. There is no evidence that she had evidence of
genital infection. Id. She had four needle punctures that violated the skin. Id. Autopsy did not
show any source for the bacteria.26 Pet. Ex. 43 at 8. For all of these reasons, Dr. Miller
concluded that bacteria was introduced into the bloodstream by a vaccination, “a rare but
reported complication” of vaccination administered by needle injection. Id.; see also Tr. 96-97.
iii. Althen Prong Three
Dr. Miller testified that the onset of B.R.’s illness, the time frame between her
vaccinations and thigh pain, was approximately 14 hours. Tr. 69-70. According to Dr. Miller,
this time frame was appropriate given his proposed mechanism of causation. Tr. 70. In support
of his opinion as to onset, Dr. Miller cites a case described in the Stevens article, where a patient
had a fulminant presentation within eight hours of presentation. Id. (citing Resp. Ex. Z, Tab 4 at
2). Dr. Miller opined that 14 hours was a sufficient time for bacteria to enter the bloodstream
and seed an infection in the soft tissue and muscle of B.R.’s left hip. Tr. 96-97.
2. Petitioner – Dr. Harry Latham
Petitioner filed four experts reports authored by Dr. Latham. See Pet. Exs. 22-25. Dr.
Latham was not called as a witness at the hearing.
In his first report, an affidavit, Dr. Latham provided a summary of B.R.’s medical
records. See Pet. Ex. 22 at ¶ 5. He then opined in a conclusory fashion that “there is no
evidence to suggest a cause for [B.R.’s] symptoms and disorders other than the vaccinations;
and, [B.R.’s] injuries and death five days later were related to the administration of her . . .
vaccinations.” Pet. Ex. 22 at ¶ 6.
Dr. Latham provided four reasons for his causation opinion in his second report. The
first reason was the onset of B.R.’s illness: the time frame between vaccination on March 31,
2009, at about 1:00 PM, and the onset of pain on April 1, at approximately 3:00 AM, indicates a
“strong temporal association” which “speaks [to] cause and effect.” Pet. Ex. 23 at 1. Second,
B.R. received four vaccines, two in each arm. Id. Third, while Dr. Latham acknowledged that
the “area affected by necrotizing fasciitis was not at the site of vaccination,” he noted that
“necrotizing fasciitis has been documented to occur in areas away from the apparent point of
26
For a more detailed analysis of the facts in the autopsy reports that contribute to Dr. Miller’s
opinion, see Pet. Ex. 43 at 3-6.
22
introduction of the bacteria.” Id. Fourth, he asserts that bacteria were carried away from the
point of introduction (vaccination) to a “possibly more susceptible area which has been
traumatized” or has a “compromised blood flow.” Id.
In his third expert report, Dr. Latham provided a theory explaining how vaccination in the
arm can cause necrotizing fasciitis in the hip. Pet. Ex. 24 at 1-2. Quoting the Merck Manual, he
wrote “[i]noculation originates through the skin . . . and the defect may be surgical, trivial,
distant from the disease site, or occult.” Id. at 1 (quoting Pet. Ex. 26 at 4). He gave examples of
the mechanism. The first example is that dental care can cause endocarditis, due to bacteria in
the mouth traveling through the blood stream to a compromised heart valve. Id. Another
example was sepsis caused by an infection in the bladder or lungs. Id. The third example was
lymphohematogenous27 spread of bacteria “from a distant source such as pneumonia or a remote
wound infection.” Id. at 2. Dr. Latham stated that S. pyogenes is normally found in the skin and
can also be harbored in the respiratory tract. Id. With regard to the facts here, he opined that the
“injection of the vaccine caused the break in the skin which introduced the pathogenic organism
into the bloodstream. This in turn, caused the necrotizing fasciitis.” Id. The bacteria “spread
rapidly” once it entered the body. Id. It then infected the fascia, “connective bands of tissue that
surround muscles, nerves, fat, and blood vessels.” Id. Dr. Latham described B.R.’s clinical
course and how it was consistent with his proposed theory. Id. at 2-3.
In his third and fourth reports, Dr. Latham addressed respondent’s assertions that B.R.’s
necrotizing fasciitis was caused from either strep throat or vaginal infection. Pet. Ex. 24 at 3-4;
Pet. Ex. 25 at 1-2. Dr. Latham opined that if B.R. had strep throat, she would have had a positive
throat culture, and an “inflamed oropharynx.” Pet. Ex. 24 at 3; see also Pet. Ex. 25 at 2. He also
disagreed that B.R.’s necrotizing fasciitis was caused by vaginal infection since urine cultures
did not show streptococcal infection and there was no evidence of vaginal discharge. Pet. Ex. 24
at 3.
3. Respondent – Dr. Sara Vargas, M.D.
a. Background and Qualifications
Dr. Vargas is a doctor licensed to practice in Massachusetts and board-certified in
anatomic pathology, clinical pathology, and pediatric pathology. Resp. Ex. A at 1. Dr. Vargas
earned her A.B. from Harvard University in 1988 and her M.D. from University of Vermont
College of Medicine in 1994. Resp. Ex. AA at 1. She then completed a residency in anatomic
and clinical pathology at Brigham and Women’s Hospital and a fellowship in pediatric pathology
at Children’s Hospital. Id. Since completing her residency and fellowship, Dr. Vargas has
taught at Harvard Medical School as an Instructor, Assistant Professor, and now Associate
Professor and has also worked as a staff pathologist at Children’s Hospital and Brigham and
Women’s Hospital. Id. at 1-2; Resp. Ex. A at 2. Throughout her career, she has served on
27
Lymph is defined as fluid and cells, primarily lymphocytes, “collected from all parts of the
body and returned to the blood via the lymphatic system.” Lymph, Dorland’s Med. Dictionary
Online, https://www.dorlandsonline.com/dorland/definition?id=28971 (last visited May 27,
2020).
23
various committees and editorial boards and joined numerous professional societies. Resp. Ex.
AA at 3-5. Dr. Vargas has authored or co-authored almost 200 publications. Id. at 17-36.
b. Opinion
i. Althen Prong One
Dr. Vargas does not disagree with Dr. Miller’s general theory of causation, but disagrees
with his specific opinion that bacteria from a vaccination site can cause necrotizing fasciitis if
there is no infection at the vaccination site. Tr. 189-90. Where the source of infection is the
skin, Dr. Vargas does not believe that bacteria can proliferate and cause infection if the
vaccination site is clean and without infection. Tr. 190. In the alternative, if the source of
infection is from another area of the body that is colonized with strep, then an infection at the site
is not required for the bacteria to travel to a distant site and cause infection. Tr. 193.
Like Dr. Miller, Dr. Vargas testified that necrotizing fasciitis is “a rapidly moving
bacterial infection involving deep soft tissue.” Tr. 128. She stated that in approximately fifty
percent of cases, the source of the bacteria is not known. Tr. 128, 193-94. The infection that
causes necrotizing fasciitis can come from sources other than skin. Tr. 128-29. Strep bacteria
“can colonize surfaces that are contiguous with the outside world” like the throat and female
genital tract. Tr. 128; see also Resp. Ex. Z at 1-2. Dr. Vargas opined that there can also be
hematogenous translocation28 of strep “from the throat in the presence or absence of
symptomatic pharyngitis to a site of blunt trauma or muscle strain.” Tr. 130 (quoting Resp. Ex.
Z, Tab 2 at 5).29
Dr. Vargas agreed that the skin can be the source of bacteria in necrotizing fasciitis. Tr.
130. However, to attribute necrotizing fasciitis to a vaccine given at a distant site, Dr. Vargas
feels it would be important to see an infection at the point of entry or site of vaccination. Tr.
130-31. She agreed that vaccinations can introduce bacteria that cause necrotizing fasciitis, but
the bacteria can also come from somewhere else because there is no known source in over half of
the cases of necrotizing fasciitis. Tr. 133. Dr. Vargas also agreed that bacteria can travel to
distant sites. Tr. 135. She testified that bacteria can travel when large amounts of it are seeded
in the bloodstream. Id.
In support of her opinion that in order for vaccination to cause a distant site infection,
there must first be an infection at the vaccination site, Dr. Vargas referenced the Cook article.
Tr. 136-37; Resp. Ex. Z at 3. Dr. Vargas explained that in cases of infectious abscesses post-
vaccination, there is a description of an abscess or infection at the site of vaccine injection. Tr.
28
Dr. Vargas defined translocation as the “way by which bacteria get into the bloodstream.” Tr.
188.
29
Michael E. Pichichero, Complications of Streptococcal Tonsillopharyngitis, UpToDate,
https://www.uptodate.com/contents/complications-of-streptococcal-tonsillopharyngitis (last
updated Mar. 22, 2019).
24
138-40; see Resp. Ex. N. at 4-5 tbl.4. Dr. Vargas noted that she was “unable to find a single
reference in the medical literature in which any author ever attributed an invasive bacterial
infection to vaccination when there was no evident cellulitis occurring at the vaccination site
itself.”30 Resp. Ex. Z at 3; see also Tr. 147.
With regard to the necrotizing fasciitis cases summarized by Cook in Table 5, Dr. Vargas
did not see “any evidence of any injection site that stayed clean and yet had an infection at a
distant site attributed to it.” Tr. 144. There was one caveat: Dr. Vargas was unable to read the
Thomas article listed in Table 5, and the description of that case study was too ambiguous for her
to confirm that there was no infection at the site of vaccination.31 Tr. 144-45.
In response to the Merck Manual reference cited by petitioner, Dr. Vargas testified that
the examples used in that text were cases where an infection had “set up” and then the “infection
travel[ed] to a distant site,” which is different than a situation where bacteria comes from “a
clean site.” Tr. 146-47.
Dr. Vargas cited several articles to support her opinions. In an article by Bellapianta, et
al.,32 the authors state, “[n]ecrotizing fasciitis typically follows an injury to the involved site.”
Resp. Ex. D at 1. The authors also state that “[n]ecrotizing fasciitis has been associated with . . .
injection sites.” Id. “Although the skin is the most common portal of entry, in 45% of cases, no
definitive access point can be found.” Id. at 2. One of the risk factors for the illness is obesity,
although half of cases occur in healthy persons. Id.
Another article cited by Dr. Vargas was a survey article by Stevens and Baddour.33 Resp.
Ex. F. The authors state that strep “may localize to the exact site of muscle injury due to
30
The phrase “invasive infection” was used in an UpToDate article authored by Stevens and
Kaplan and filed by respondent as Respondent’s Exhibit G. See Dennis L. Stevens & Sheldon L.
Kaplan, Group A Streptococcal (Streptococcus Pyogenes) Bacteremia in Children, UpToDate,
https://www.uptodate.com/contents/group-a-streptococcal-streptococcus-pyogenes-bacteremia-
in-children (last updated June 23, 2012). They define invasive infections to include “bacteremia,
pneumonia, osteomyelitis, septic arthritis,” necrotizing fasciitis, “or any other infection
associated with the isolation of [strep] from a normally sterile body site.” Resp. Ex. G at 1.
31
After the hearing, respondent filed the Thomas article. Resp. Ex. BB. In it, the author states
that the patient received a flu vaccine in the left upper arm. Id. at 1. One day later, she
developed some discomfort at her vaccination site. Id. Other than the reference to discomfort,
there is no description of infection or cellulitis at the site of vaccination. See id. at 1-2.
32
Joseph M. Bellapianta, Necrotizing Fasciitis, 17 J. Am. Acad. Orthopaedic Surgeons 174
(2009).
33
Dennis L. Stevens & Larry M. Baddour, Necrotizing Soft Tissue Infections, UpToDate,
https://www.uptodate.com/contents/necrotizing-soft-tissue-infections (last updated Feb. 28,
2013).
25
increased surface expression of the vimentin,” a protein, which binds the bacteria. Id. at 2. In
cases with no clear entry point, the infection likely occurs due to hematogenous translocation of
strep “from the throat (asymptomatic or symptomatic pharyngitis) to a site of blunt trauma or
muscle strain.” Id. at 3.
On cross-examination, Dr. Vargas agreed that strep can move through the body to remote
locations from where it enters. Tr. 174-75. She also agreed that while strep is likely to be found
in warm moist areas, it can be found anywhere on the body. Tr. 174. The bacteria “uses
multiple tissues, including [] blood, to spread.” Tr. 175. Dr. Vargas specifically agreed that a
puncture can introduce bacteria into the body. Id.
When questioned about the septic arthritis cases summarized by Cook in Table 7, Dr.
Vargas agreed that patients one, two, and four had infections at locations distant from
vaccination. Tr. 178-79. She also agreed that Cook did not describe any infection at the site of
injection in these three cases. Id. Dr. Vargas stated that the VAERS reports of these three cases
were not filed, so there is no additional information about the site of injection.34 Tr. 193.
Dr. Vargas testified that “septic arthritis is . . . just like necrotizing fasciitis, it presents,
and we don’t know why. Many, many cases, we say it got there through the bloodstream, but we
don’t know.” Tr. 183. In general, Dr. Vargas, explained that hematogenous is defined as
“spread through the bloodstream.” Tr. 184. She testified that when there is no evidence of
contiguous infection, or direct contamination, “then you have to invoke a hematogenous source.”
Tr. 183.
ii. Althen Prong Two
Dr. Vargas opined that in B.R.’s case, the bacteria that caused necrotizing fasciitis was
introduced by a source other than vaccination. Tr. 168; Resp. Ex. A at 7. She stated that there is
“no evidence that [B.R.’s] vaccination site . . . ever showed any evidence of infection” and “there
is no known case of necrotizing fasciitis due to a medical injection in which the fasciitis occurred
without involving the injected area.” Resp. Ex. M at 4. She further opined that “the more
common and more probable causes of bacterial seeding of the groin fascia” include strep throat,
“direct spread from a nearby genital infection,” and unknown or idiopathic. Resp. Ex. A at 8.
She states that idiopathic cases are “well-known” but “poorly understood.” Id.
In her first expert report, Dr. Vargas opined strep throat was likely. Resp. Ex. A at 7. In
her supplemental expert report, Dr. Vargas agreed with the testimony by Dr. Mills, when he
“pointed to the throat as one of the possible sources of bacterial seeding.” Resp. Ex. M at 2. At
34
Respondent cited an article by Varricchio et al., which explains that “VAERS are not formal
case reports, but rather nonstandardized descriptions of symptoms and signs temporally
associated with a vaccination or vaccinations. The information in a report is not necessarily
complete, nor is it verified in most cases.” Frederick Varricchio et al., Understanding Vaccine
Safety Information from the Vaccine Adverse Event Reporting System, 23 Pediatric Infectious
Disease J. 287, 288 (2004) (filed as Resp. Ex. R).
26
the hearing, Dr. Vargas testified that the medical records state that B.R. had a sore throat and
“mildly injected” throat, which supports her opinion that the strep bacteria could have come from
the throat. Tr. 154-57. Dr. Vargas asserts that B.R.’s sore throat had occurred “off and on for a
week” prior to her transfer to Phoebe Putney on April 3, and thus, it preceded her vaccination.
Resp. Ex. Z at 2.
According to Dr. Vargas, B.R.’s negative rapid strep test and negative throat culture do
not “rule out” the possibility of S. pyogenes in the throat. Resp. Ex. M at 5. She notes that
“throat cultures are known to miss 5-10% of S. pyogenes infection[s].” Id. When asked about
the accuracy of the rapid strep test and throat culture, Dr. Vargas agreed with Dr. Miller’s
testimony that the tests were 90% accurate, stating Dr. Miller was “not too far off.” Tr. 171.
Respondent filed a medical article by Wald35 which confirmed the veracity of Dr. Miller’s
opinion. Resp. Ex. M, Tab 7 at 5. Wald observes that “[w]hen performed properly, the
sensitivity of [a] throat culture is 90 to 95 percent for [group A strep].” Id.
The reference in B.R.’s medical record to a rash was significant to Dr. Vargas. She
testified that “a rash is a common manifestation of strep pyogenes infection.” Tr. 156. She
noted the records indicate on April 4 that a rash had been present off and on for three days.
Resp. Ex. Z at 3 (citing Pet. Ex. 14 at 28, 59). Dr. Vargas opined that rashes in patients with
strep throat are often seen one to two days after the onset of bacterial infection. Id. She stated
that “[t]he characteristic rash occurring in the setting of group A strep infection is termed scarlet
fever.” Id. She further opined that in patients with scarlet fever, the most common site for
bloodstream infection (sepsis) is the pharynx (throat). Id.
On cross-examination, Dr. Vargas was questioned about B.R.’s medical record entries
related to the presence of a rash on physical examination. On March 31 and April 1, no rash was
noted on examination. Pet. Ex. 14 at 3-4, 10-12. On April 3, Dr. Kocherla noted a rash on
B.R.’s neck. Pet. Ex. 13 at 17; Resp. Ex. X at 40. Dr. Vargas agreed that if the infection started
in B.R.’s leg on April 1, then one could attribute a rash present on April 2 or 3 to the infection in
B.R.’s leg. Tr. 174.
Next, Dr. Vargas testified about the autopsy, specifically her review of one microscopic
slide of lung tissue. She opined that lung tissue slide Q showed inflammatory cells and intra
alveolar macrophages. Tr. 160-63. Dr. Vargas described an area with “mucopurulent material in
alveolar spaces.” Tr. 163. She explained that these findings indicated “possible early
bronchopneumonia.” Resp. Ex. M at 2; see also Resp. Ex. Z at 3-4. Dr. Vargas stated these
findings “fit[] very well with bacteria coming down from the upper respiratory tract, down into
the lungs.” Tr. 164. However, she explained that it “doesn’t have to be strep” that caused the
finding seen in the lung slide; “[o]ther bacteria could have done this, but it fits, you know, that it
could have been strep.” Id. Dr. Vargas conceded that the finding on the lung slide was not
unique to, or diagnostic of, strep throat. Tr. 185.
35
Ellen R. Wald, Approach to Diagnosis of Acute Infectious Pharyngitis in Children and
Adolescents, UpToDate, http://www.uptodate.com/contents/approach-to-diagnosis-of-acute-
infectious-pharyngitis-inchildren-and-adolescents (last updated June 2, 2015).
27
More importantly, Dr. Vargas conceded that the findings were “very common in any
death, any hospital death that [she] see[s].” Tr. 185. Dr. Vargas testified that it is common for
patients to get pneumonia when they are very ill. Id. Further, she stated that when patients get
septic, it is “common to start getting the proteinaceous exudate into the lung. It’s the lung’s way
of reacting.” Id.
In addition to the lung tissue slide, Dr. Vargas believes that B.R.’s chest X-ray36 showed
“opacities in the lung fields,” that looked like “very early bronchopneumonia.” Tr. 165. She
testified that there was no “frank” or “obvious pneumonia” but they could not “exclude
bronchitis or an atypical pneumonia.” Tr. 188. Based on the chest X-ray, Dr. Vargas believes
the changes she saw in lung tissue occurred before B.R. became critically ill. Tr. 186. She
explained that portable chest X-rays, like the one here, are more difficult to interpret than
standard chest X-rays with two views. Tr. 188. Dr. Vargas said that the radiologist saw a “slight
prominence of the interstitial markings in the infrahilar regions,” which she interpreted as
“bronchitis and an early bronchopneumonia.” Tr. 187. However, the radiologist who interpreted
B.R.’s portable chest X-ray stated, “No evidence of frank pneumonia. Cannot exclude bronchitis
or atypical pneumonia.” Pet. Ex. 13 at 27. The radiologist did not diagnosis B.R. with
bronchitis or early bronchopneumonia. See id.
Dr. Vargas filed a several articles that specifically support her opinion that the source of
B.R.’s strep infection was the throat, including the Stevens and Baddour article. See Resp. Ex.
F. The authors state that “[i]n cases with no clear portal of entry, the pathogenesis of infection
likely consists of hematogenous translocation of [Group A Streptococcus] from the throat . . . to
a site of blunt trauma or muscle strain.” Id. at 3.
In the UpToDate article by Stevens and Kaplan, the authors agreed that “among patients
with scarlet fever, the pharynx is the most common source of bloodstream [Group A
Streptococcus].” Resp. Ex. G at 3. However, they noted that “[t]he least common source of
bacteremia in children has been the lower respiratory tract. When bacteremic [Group A
Streptococcal] pneumonia occurs, it usually is associated with prior viral infections, particularly
influenza.” Id. They also state that “[t]he most frequent source of [Group A Streptococcal]
bacteremia in children is the skin,” incited by cellulitis, minor trauma, and varicella infections.
Id. at 2.
iii. Althen Prong Three
Dr. Vargas testified that a 14 hour onset seemed too short a period of time for transient
bacteremia to occur from a vaccine injection, and for the bacteria to travel to a distant site and
multiply. Tr. 190-91. Dr. Vargas opined that onset would not “be less than 24 hours.” Tr. 190.
She did not cite any source to support her onset opinion.
Respondent filed several articles addressing onset. In Stevens, the authors studied 20
cases of Group A Streptococcal soft tissue infection. Resp. Ex. Z, Tab 4 at 2. One patient had
36
Dr. Vargas testified that she did not review the actual chest X-ray, only the report. Tr. 186.
28
“fulminant myositis eight hours after presentation.” Id. In Thapa et al.,37 the authors presented a
case report of an infant who developed necrotizing fasciitis following a BCG38 vaccination.
Resp. Ex. H at 1. The infant had symptoms of infection 18 hours after vaccination. Id.
The authors of Thuong, et al.39 summarize data of nine children who developed severe
Staphylococcus aureus infections following vaccination.40 Resp. Ex. O at. 1. Three children had
a systemic syndrome consistent with toxic shock syndrome. Id. at 2. Four of the children had
skin and soft tissue infections, including one with necrotizing fasciitis. Id. All of the skin and
soft tissue infections occurred at the vaccination site. Id. In seven of the nine children, onset of
symptoms occurred in a range of nine to 14 hours. Id. at 3.
IV. DISCUSSION
A. Standards for Adjudication
The Vaccine Act was established to compensate vaccine-related injuries and deaths.
§ 10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system
as a simple, fair and expeditious means for compensating vaccine-related injured persons. The
Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty
and generosity.’” Rooks v. Sec’y of Health & Human Servs., 35 Fed. Cl. 1, 7 (1996) (quoting
H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344).
Petitioner’s burden of proof is by a preponderance of the evidence. § 13(a)(1). The
preponderance standard requires a petitioner to demonstrate that it is more likely than not that the
vaccine at issue caused the injury. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315,
1322 n.2 (Fed. Cir. 2010). Proof of medical certainty is not required. Bunting v. Sec’y of Health
& Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). In particular, petitioner must 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 (quoting Shyface v. Sec’y of Health &
Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); see also Pafford v. Sec’y of Health &
Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). A petitioner who satisfies this burden is
entitled to compensation unless respondent can prove, by a preponderance of the evidence, that
37
Rajoo Thapa et al., Necrotizing Fasciitis Following BCG Vaccination, 48 Indian Pediatrics
235 (2011).
38
BCG stands for “Bacille-Calmette-Guérin.” Resp. Ex. H at 1. BCG is a vaccine for
tuberculosis. Tuberculosis (TB): BCG Vaccine Fact Sheet, Ctrs. for Disease Control &
Prevention, https://www.cdc.gov/tb/publications/factsheets/prevention/bcg.htm (last reviewed
May 4, 2016).
39
Tang Chi Thuong et al., An Outbreak of Severe Infections with Community-Acquired MRSA
Carrying the Panton-Valentine Leukocidin Following Vaccination, 2 PLoS ONE e822 (2007).
40
The vaccines included Hepatitis B (“HBV”), Measles, Mumps, Rubella (“MMR”), and
varicella. Resp. Ex. O at 3.
29
the vaccinee’s injury is “due to factors unrelated to the administration of the vaccine.” §
13(a)(1)(B).
B. Factual Issues
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding her claim. § 13(a)(1)(A). To resolve factual issues, the special master must weigh
the evidence presented, which may include contemporaneous medical records and testimony.
See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that
a special master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to be
accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir.
1993). To overcome the presumptive accuracy of medical records, a petitioner may present
testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec’y of Health &
Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013)
(citing Blutstein v. Sec’y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5
(Fed. Cl. Spec. Mstr. June 30, 1998)).
There are situations in which compelling testimony may be more persuasive than written
records, such as where records are deemed to be incomplete or inaccurate. Campbell v. Sec’y of
Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“[L]ike any norm based upon common
sense and experience, this rule should not be treated as an absolute and must yield where the
factual predicates for its application are weak or lacking.”); Lowrie v. Sec’y of Health & Human
Servs., No. 03–1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005)
(“[W]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent.” (quoting Murphy v. Sec’y of Health & Human Servs., 23
Cl. Ct. 726, 733 (1991), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992))). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir.
1993).
Despite the weight afforded medical records, special masters are not bound rigidly by
those records in determining onset of a petitioner’s symptoms. Valenzuela v. Sec’y of Health &
Human Servs., No. 90–1002V, 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30, 1991); see
also Eng v. Sec’y of Health & Human Servs., No. 90–1754V, 1994 WL 67704, at *3 (Fed. Cl.
Spec. Mstr. Feb. 18, 1994) (Section 13(b)(2) “must be construed so as to give effect also to §
13(b)(1) which directs the special master or court to consider the medical records (reports,
diagnosis, conclusions, medical judgment, test reports, etc.), but does not require the special
master or court to be bound by them”).
C. Causation
To receive compensation through the Program, petitioner must prove either (1) that B.R.
suffered a “Table Injury”—i.e., an injury listed on the Vaccine Injury Table—corresponding to a
vaccine that she received, or (2) that B.R. suffered an injury that was actually caused by a
30
vaccination. See §§ 11(c)(1), 13(a)(1)(A); Capizzano v. Sec’y of Health & Human Servs., 440
F.3d 1317, 1319-20 (Fed. Cir. 2006). Because petitioner does not allege that B.R. suffered a
Table Injury, she must prove that a vaccine B.R. received caused her injury. To do so, she must
establish, by preponderant evidence: (1) a medical theory causally connecting the vaccine and
B.R.’s injury (“Althen Prong One”); (2) a logical sequence of cause and effect showing that the
vaccine was the reason for B.R.’s injury (“Althen Prong Two”); and (3) a showing of a
proximate temporal relationship between the vaccine and B.R.’s injury (“Althen Prong Three”).
§ 13(a)(1); Althen, 418 F.3d at 1278.
The causation theory must relate to the injury alleged. The petitioner must provide a
sound and reliable medical or scientific explanation that pertains specifically to this case,
although the explanation need only be “legally probable, not medically or scientifically certain.”
Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). Petitioner
cannot establish entitlement to compensation based solely on her assertions; rather, a vaccine
claim must be supported either by medical records or by the opinion of a medical doctor. §
13(a)(1). In determining whether petitioner is entitled to compensation, the special master shall
consider all material in the record, including “any . . . conclusion, [or] medical judgment . . .
which is contained in the record regarding . . . causation.” § 13(b)(1)(A). The undersigned must
weigh the submitted evidence and the testimony of the parties’ proffered experts and rule in
petitioner’s favor when the evidence weighs in her favor. See Moberly, 592 F.3d at 1325-26(“Finders of fact are entitled—indeed, expected—to make determinations as to the reliability of
the evidence presented to them and, if appropriate, as to the credibility of the persons presenting
that evidence.”); Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in petitioner’s
favor).
“Expert medical testimony which merely expresses the possibility—not the probability—
of the occurrence of a compensable injury is insufficient, by itself, to substantiate the claim that
such an injury occurred.” LaCour v. Sec’y of Health & Human Servs., No. 90–316V, 1991 WL
66579, at *5 (Fed. Cl. Spec. Mstr. Apr. 15, 1991); accord Burns v. Sec’y of Health & Human
Servs., No. 90–953V, 1992 WL 365410, at *6 (Fed. Cl. Spec. Mstr. Nov. 6, 1992), aff’d, 3 F.3d
415 (Fed. Cir. 1993). The Federal Circuit has likewise made clear that the mere possibility of a
link between a vaccination and a petitioner’s injury is not sufficient to satisfy the preponderance
standard. Moberly, 592 F.3d at 1322 (emphasizing that “proof of a ‘plausible’ or ‘possible’
causal link between the vaccine and the injury” does not equate to proof of causation by a
preponderance of the evidence); Waterman v. Sec’y of Health & Human Servs., 123 Fed. Cl.
564, 573-74 (2015) (denying petitioner’s motion for review and noting that a possible causal link
was not sufficient to meet the preponderance standard). While certainty is by no means required,
a possible mechanism does not rise to the level of preponderance. Id.; see also De Bazan v.
Sec’y of Health & Human Servs., 539 F.3d 1347, 1351 (Fed. Cir. 2008).
D. Causation Analysis
1. Althen Prong One
Under Althen Prong One, petitioner must set forth a medical theory explaining how the
received vaccine could have caused the sustained injury. Andreu, 569 F.3d at 1375; Pafford, 451
31
F.3d at 1355-56. Petitioner’s theory of causation need not be medically or scientifically certain,
but it must be informed by a “sound and reliable” medical or scientific explanation. Boatmon v.
Sec’y of Health & Human Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also Knudsen, 35
F.3d at 548; Veryzer v. Sec’y of Health & Human Servs., 98 Fed. Cl. 214, 223 (2011) (noting
that special masters are bound by both § 13(b)(1) and Vaccine Rule 8(b)(1) to consider only
evidence that is both “relevant” and “reliable”). If petitioner relies upon a medical opinion to
support her theory, the basis for the opinion and the reliability of that basis must be considered in
the determination of how much weight to afford the offered opinion. See Broekelschen v. Sec’y
of Health & Human Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (“The special master’s
decision often times is based on the credibility of the experts and the relative persuasiveness of
their competing theories.”); Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 n.6
(Fed. Cir. 1994) (stating that an “expert opinion is no better than the soundness of the reasons
supporting it” (citing Fehrs v. United States, 620 F.2d 255, 265 (Ct. Cl. 1980))).
Petitioner cannot prevail with just an opinion that since there is no other factor to explain
B.R.’s infection but the vaccines, the vaccines must have been the cause. However, this case
involves more than that assertion. Both Dr. Miller and Dr. Vargas, as well as Cook and other
authors of the medical literature filed in this matter, agree that there is streptococcal bacteria on
the skin. They agree that an injection can serve as a portal of entry for the bacteria to enter the
tissues and blood stream. They agree that this mechanism of action—hematogenous spread
through the blood stream—can cause sepsis and other rare, adverse, and even fatal, infections.
They agree that these invasive infections can occur in sites distant to the portal of entry. For
example, in osteomyelitis, the infection occurs in the bone. In septic arthritis, the infection
occurs in the joint. In the case of endophthalmitis, the infection occurs in the eye. This causal
mechanism, recognized by the experts and authors of relevant medical literature, is thus, sound
and reliable.
Respondent, however, adds an additional requirement to the causal mechanism as it
relates to the facts and circumstances presented here. Respondent argues that a patient must have
an infection at the portal of entry—here, the site of vaccination—in order for there to be spread
of that bacteria by the bloodstream to a remote site. None of the medical articles filed by either
party address that narrow issue. The articles provide a brief summary of the facts about each
case report. Some of the articles describe the local condition of the skin where the portal of entry
is the skin. The take away from the medical literature relevant here is that injections, including
vaccinations given by injection penetrating the skin, can provide a portal of entry for bacteria to
spread via the bloodstream to other sites.
Dr. Vargas agreed that the mechanism of hematogenous spread is the same for septic
arthritis as it is for necrotizing fasciitis. Likewise, Cook did not draw distinctions in the
mechanism of hematogenous bacterial spread, as applied to septic arthritis, osteomyelitis, or
necrotizing fasciitis. Certainly, the case reports specific to necrotizing fasciitis occurring after
vaccination may have included information suggesting there may have been signs of infection at
the site of vaccination or injection. However, this was not universal. Further, the case reports of
invasive infections caused by strep bacteria, including bacteremia, osteomyelitis, and septic
arthritis, often omitted a description of the vaccine or infection site. None of the authors of the
relevant articles stated an opinion like that held by Dr. Vargas, specifically that there must be
32
infection at the vaccine site for a remote infection to occur. Thus, it would be erroneous for the
undersigned to impose the equivalent of a “condition precedent” to a causal mechanism where
physicians who have studied and authored medical reports on the subject did not do so.
Accordingly, the undersigned finds that petitioner has set forth a sound and reliable medical
theory, satisfying Althen Prong One.
2. Althen Prong Two
Under Althen Prong Two, petitioner must prove by a preponderance of the evidence that
there is a “logical sequence of cause and effect showing that the vaccination was the reason for
the injury.” Capizzano, 440 F.3d at 1324 (quoting Althen, 418 F.3d at 1278). “Petitioner must
show that the vaccine was the ‘but for’ cause of the harm . . . or in other words, that the vaccine
was the ‘reason for the injury.’” Pafford, 451 F.3d at 1356 (internal citations omitted).
In evaluating whether this prong is satisfied, the opinions and views of the vaccinee’s
treating physicians are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano, 440 F.3d
at 1326 (“[M]edical records and medical opinion testimony are favored in vaccine cases, as
treating physicians are likely to be in the best position to determine whether a ‘logical sequence
of cause and effect show[s] that the vaccination was the reason for the injury.’” (quoting Althen,
418 F.3d at 1280)). Medical records are generally viewed as trustworthy evidence, since they are
created contemporaneously with the treatment of the vaccinee. Cucuras, 993 F.2d at 1528. The
petitioner need not make a specific type of evidentiary showing, i.e., “epidemiologic studies,
rechallenge, the presence of pathological markers or genetic predisposition, or general
acceptance in the scientific or medical communities to establish a logical sequence of cause and
effect.” Capizzano, 440 F.3d at 1325. Instead, petitioner may satisfy her burden by presenting
circumstantial evidence and reliable medical opinions. Id. at 1325-26.
Petitioner has demonstrated that administration of vaccines can lead to remote site
infections, including necrotizing fasciitis and septic shock, through hematogenous spread of
bacteria and thus, satisfied Althen Prong One. Petitioner has also shown causation specific to
this case—that B.R.’s vaccinations lead to her necrotizing fasciitis and septic shock,
consequently causing her death. There is preponderant evidence to establish a “logical sequence
of cause and effect showing that the vaccination was the reason for the injury.” Capizzano, 440
F.3d at 1324 (quoting Althen, 418 F.3d at 1278).
There are three reasons for this finding. First, B.R.’s clinical course and autopsy are
consistent with the mechanism proposed by Dr. Miller. Second, there is insufficient evidence to
support a finding that B.R. had strep throat, early pneumonia, or a urogenital source of infection.
And third, this finding is consistent with the medical records and testimony of treating
physicians, Dr. Kocherla and Dr. Darden, and pathologist, Dr. Latham.
a. Clinical Course and Autopsy
B.R. was healthy, although mildly obese, on the day that she received four vaccinations
by injection—four needle punctures of the skin. Within 15 hours, she had left hip pain and fever.
A throat culture was negative for strep, but a blood culture revealed strep in her blood. She
33
developed septicemia and septic shock, which caused her death. There is no evidence that she
had a genital infection. The autopsies did not show any source for the bacteria. For these
reasons, Dr. Miller concluded that bacteria was introduced into the bloodstream by a vaccination,
“a rare but reported complication” of vaccination administered by needle injection. Pet. Ex. 43
at 8; see also Tr. 96-97.
Through the expert report and testimony of Dr. Miller, petitioner established by
preponderant evidence that B.R. developed transient bacteremia—that is, bacteria entered the
bloodstream from vaccination, which seeded the soft tissue of the hip and thigh. The autopsy
established that B.R. had S. pyogenes, a bacteria known to be present on the skin and a known
cause of infection. The autopsy findings were consistent with septic shock and an infection in
tissue of the left thigh and hip. B.R. developed necrotizing fasciitis, infection of the
bloodstream, and septic shock which caused her death.
Moreover, B.R.’s clinical course was consistent with the case reports in the medical
literature filed in this case. In Stevens, the authors studied 20 cases of Group A Streptococcal
soft tissue infection. Resp. Ex. Z, Tab 4 at 1. Abrupt onset with severe pain was the common
presentation. Id. at 2. One patient had “fulminant myositis eight hours after presentation.” Id.
In addition to onset, the clinical course of several of the patients was similar in time frame to
B.R.’s course. Twelve of the 20 patients had bacteremia, and of these patients, six died. Id. at 4.
Of these six, three died within 36 hours of hospital admission. Id. Nineteen patients had shock
on admission to the hospital or shortly thereafter. Id.
b. B.R. Did Not Have Strep Throat, Pneumonia, or a Urogenital
Source of Infection
Based on the medical records, results of the throat culture, autopsies, expert reports and
testimony, and the totality of facts and circumstances, the undersigned finds that B.R. did not
have strep throat, pneumonia, or a urogenital source of infection that caused her necrotizing
fasciitis and septic shock.
While the records include a reference to sore throat and a description that B.R.’s throat
was “mildly injected,” this evidence is insufficient to establish that B.R. had strep throat given
the weight of the evidence against such a finding. The most compelling evidence was B.R.’s
negative throat culture. When performed properly, the literature and experts agreed that this test
has an accuracy rate of 90-95%. See Tr. 32, 71, 171. There is no evidence that B.R.’s throat
culture was performed improperly. The negative results establish that it is very unlikely that she
had strep throat or that the bacteria that seeded her necrotizing fasciitis came from the throat.
The consecutive physical examinations of B.R. conducted by different doctors over a
five-day period provide more evidence that B.R. did not have strep throat. The physicians who
performed these exams did not document evidence of the usual characteristics of strep throat,
which include inflamed appearance, often with white follicles or exudate. B.R. did not have
adenopathy or enlarged lymph nodes in the neck area suggestive of a throat infection. None of
B.R.’s treating physicians diagnosed her with strep throat. Additionally, the two pathologists
who performed autopsies did not attribute her infection to strep throat.
34
There is also insufficient evidence to support respondent’s position that B.R. may have
had early pneumonia or bronchopneumonia. There is no documentation that B.R. had a cough,
wheezing, or respiratory distress, and until she became critically ill on April 4, she had no
respiratory distress. Medical records establish that on her admission to Phoebe Putney on April
3, B.R. had no history of cough, wheezing, trouble breathing, or respiratory distress. Lung
sounds were clear bilaterally. B.R. was not diagnosed with pneumonia by any of the doctors
who examined her on March 31, April 1, April 3, or April 4. The two pathologists who
performed autopsies also did not diagnose pneumonia.
Dr. Vargas opined that one lung tissue slide (slide Q) may have shown findings that
indicated “possible early bronchopneumonia.” Resp. Ex. M at 2; see also Resp. Ex. Z at 3-4.
However, opinions based on possibilities are insufficient to establish causation. See, e.g.,
Moberly, 592 F.3d at 1322; De Bazan, 539 F.3d at 1351; Burns, 1992 WL 365410, at *6;
LaCour, 1991 WL 66579, at *5.
Further, Dr. Vargas conceded that the findings on lung slide Q, are “very common in . . .
any hospital death,” as it is common for patients to get pneumonia where they are very ill. Tr.
185. Assuming this was true for B.R., if she did have pneumonia, it would have occurred after
she became very ill on April 4, and therefore, it would not have caused the infection that
manifested as hip pain on April 1.
With regard to Dr. Vargas’ opinion that B.R.’s chest X-ray showed very early
bronchopneumonia, that opinion was based, in part, on her review and opinion of one lung slide.
For the reasons explained above, the undersigned does not find Dr. Vargas’ opinion about the
lung slide to be persuasive evidence that B.R.’s infection was caused by pneumonia. Moreover,
the undersigned finds the opinion of the interpreting radiologist to be the most reliable evidence
as to the results of the X-ray, and that opinion did not include the finding of pneumonia.
Lastly, there is no evidence to support a conclusion that B.R.’s infection originated from
a urogenital source. The medical records do not document that B.R. ever complained of
urogenital symptoms. Her urinalysis was normal. Her urine culture did not show bacterial
infection. B.R. was not diagnosed with urogenital infection by any treating physician. On
autopsy, external genitalia was unremarkable and there was no inguinal lymphadenopathy. The
pathologists did not make any findings consistent with urogenital infection, or attribute B.R.’s
infection to a urogenital source.
In summary, there is either no evidence or insufficient evidence to show that the source
of B.R.’s infection was due to any source other than her vaccinations. As to Dr. Vargas’ position
that the cause was idiopathic or unknown, that might be a viable option but for the fact that B.R.
had four injections of her skin, and the breach of the skin, even when the skin is properly
cleaned, is known to be associated with remote infections, caused by hematogenous spread. The
undersigned cannot ignore the fact of B.R.’s vaccinations, and the resulting portal of entry that
each injection created, so as to entertain a suggestion that they did not play a role, and thus
conclude that the cause here was idiopathic.
35
c. Treating Physicians41
Several of B.R.’s treating physicians records offered evidence supportive of vaccine
causation. On April 3, Dr. Kocherla’s diagnosis was post-vaccination reaction. He ordered a
sepsis workup, including blood cultures that revealed S. pyogenes. In his deposition, Dr.
Kocherla testified that he believed that B.R. had sepsis or post-vaccination myopathy, and he
was correct. The blood cultures revealed that B.R. had S. pyogenes sepsis.
Orthopedist Dr. Darden examined B.R. after her transfer to Phoebe Putney. His
impression was transient synovitis secondary to viral load from vaccines and possible bacterial
sepsis of the joint. Testing of the joint was not performed, so it is not known whether B.R. had a
septic joint. Regardless, based on the literature filed in this case, a septic joint caused by bacteria
occurs due to the same mechanism of action propounded by Dr. Miller.
The pathologists were split on the issue of vaccine causation. In his autopsy, Dr. Burns
did not express an opinion as to vaccine causation, but in his deposition, he testified that B.R.’s
vaccinations had nothing to do with her illness. On the other hand, Dr. Latham opined that the
vaccines may have caused B.R.’s illness based on the fact that she had S. pyogenes, which is
known to be present on the body, and that the illness can be caused by a skin prick, or in this
case vaccination.
On the whole, the undersigned finds the records and opinions of Drs. Kocherla, Darden,
and Latham provide support for vaccine causation, and when combined with the other evidence
summarized above, add to the weight of the evidence in favor of petitioner.
The undersigned found petitioner’s Althen Prong One theory sound and reliable, and now
finds petitioner, by preponderant evidence, has shown that the vaccinations were the source of
the bacteria that caused B. R.’s infection and death. Accordingly, petitioner has satisfied Althen
Prong Two.
3. Althen Prong Three
Althen Prong Three requires petitioner to establish a “proximate temporal relationship”
between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been
equated to mean a “medically acceptable temporal relationship.” Id. The petitioner must offer
“preponderant proof that the onset of symptoms occurred within a timeframe which, given the
medical understanding of the disease’s etiology, it is medically acceptable to infer causation-in-
fact.” De Bazan, 539 F.3d at 1352. The explanation for what is a medically acceptable time
frame must also coincide with the theory of how the relevant vaccine can cause the injury alleged
(under Althen Prong One). Id.; Koehn v. Sec’y of Health & Human Servs., 773 F.3d 1239, 1243
41
The undersigned has considered the opinions and testimony of all of the physicians whose
depositions were filed in this matter but gives more weight to the opinions and testimony of
those who treated B.R. and created contemporaneous medical records. Thus, the opinion of Dr.
Mills, who was not a treating physician nor an expert in this matter, was afforded less weight.
36
(Fed. Cir. 2014); Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 542 (2011),
recons. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d mem., 503 F. App’x 952 (Fed. Cir.
2013).
The undersigned finds petitioner has provided preponderant evidence of a proximate
temporal relationship between B.R.’s vaccinations and the first manifestation of the infection
which led to her death. Dr. Miller and Dr. Vargas agree that the time frame between B.R.’s
vaccinations and the onset of her infection, marked by hip and thigh pain, was approximately 14
hours. Dr. Miller opined that 14 hours was appropriate, and cited to the case report published by
Stevens. Dr. Vargas testified that 14 hours seemed too short, but did not cite any literature or
other evidence to support her testimony on this point. The articles cited by respondent provided
eight cases where onset was in the range of nine to 18 hours. See Resp. Ex. H at 1 (discussing
patient with symptoms of infection 18 hours post-vaccination); Resp. Ex. O at 3 (describing
seven children who had onset ranging from nine to 14 hours). Given the case reports described
in the literature, and the lack of other evidence, the undersigned finds the petitioner’s evidence as
to onset more credible and persuasive.
E. Alternative Causation
Because the undersigned concludes that petitioner has established a prima facie case,
petitioner is entitled to compensation unless respondent can put forth preponderant evidence
“that [B.R.’s] injury was in fact caused by factors unrelated to the vaccine.” Whitecotton v.
Sec’y of Health & Human Servs., 17 F.3d 374 (Fed. Cir. 1994), rev’d on other grounds sub
nom., Shalala v. Whitecotton, 514 U.S. 268 (1995); see also Walther v. Sec’y of Health &
Human Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007). As discussed above in the analysis related
to Althen Prong Two, the undersigned found the respondent failed to establish evidence to show
that B.R.’s infection was caused by a source other than her vaccinations. Thus, respondent did
not prove by a preponderance of evidence that B.R.’s injury is “due to factors unrelated to the
administration of the vaccine.” § 13(a)(1)(B).
V. CONCLUSION
This is a very tragic case. The undersigned extends her sympathy to the petitioner and
family of B.R. for their loss. The undersigned’s decision, however, is not based on sympathy,
but based on the evidence. For the reasons discussed above, the undersigned finds that
petitioner has established by preponderant evidence that she is entitled to compensation. A
separate damages order will issue.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
37