Forrest v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Case No. 10-032V
Filed: August 10, 2017

* * * * * * * * * * * * *
*
STEVEN FORREST and NICOLE * PUBLISHED DECISION
FORREST, on behalf of E.M.F., *
* Special Master Thomas L. Gowen
Petitioners, *
* Denial of Entitlement; Hepatitis B
v. * (“Hep B”) Vaccine; Inactivated Polio
* Vaccine (“IPV”); Diphtheria-Tetanus-
SECRETARY OF HEALTH * Acellular Pertussis (“DTaP”) Vaccine;
AND HUMAN SERVICES, * Haemophilus Influenza (“Hib”)
* Vaccine; Pneumococcal Conjugate
Respondent. * Vaccine (“PCV”); Sudden Infant Death
* Syndrome (“SIDS”).
* * * * * * * * * * * * *

Jessica W. Hayes, Murray Law Firm, New Orleans, LA, for petitioners.
Heather L. Pearlman & Ryan D. Pyles, United States Department of Justice, Washington, DC, for
respondent.

DECISION ON ENTITLEMENT1

On January 14, 2010, Steven Forrest and Nicole Forrest (“petitioners”), as the
representatives of the estate of their deceased minor child, E.M.F., filed a petition under the
National Vaccine Injury Compensation Program (“Vaccine Act” or “the Vaccine Program”).2
Petitioners allege that E.M.F. died on January 14, 2008, as a result of receiving the Diphtheria-
Tetanus-acellular-Pertussis (“DTaP”), inactivated polio (“IPV”), haemophilus B influenza (“Hib”),
Pneumococcal Conjugate (“PCV”), and Rotavirus vaccinations on January 10, 2008. See Petition
(ECF No. 1) at 1-2.

1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1)
that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days of the date this decision is filed, the
decision will be posted on the court’s website without any changes.
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 decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

1
 After carefully analyzing and weighing all of the evidence and testimony presented in this
case in accordance with the applicable legal standards, I find that petitioners have not met their legal
burden. Petitioners have failed to provide preponderant evidence that the vaccinations E.M.F.
received on January 10, 2008, caused her death. Accordingly, petitioners are not entitled to
compensation.

I. BACKGROUND

A. Procedural History

On January 14, 2010, petitioners filed a petition for compensation on behalf of their
deceased minor daughter, E.M.F., pursuant to the Vaccine Act. The petition alleged that
vaccinations administered on January 10, 2008 were the cause-in-fact of E.M.F.’s death on January
14, 2008. Petition at 1-2. Petitioners filed medical records on April 12, 2010. Exhibits 1-10 (ECF
Nos. 8-9). On June 8, 2010, respondent filed a Rule 4(c) Report advising against compensation.
Respondent’s Report (ECF No. 10) at 8. Respondent argued that petitioners “failed to proffer a
reliable medical or scientific opinion or theory supporting their petition, and have failed to make a
prima facie case for entitlement to compensation.” Id. Thereafter, petitioners filed three expert
reports from Dr. John Shane (ECF Nos. 31, 40, 52). Respondent filed two reports from Dr. Sara
Vargas and two reports from Dr. Hart Lidov (each expert’s first report is at ECF No. 45; each
expert’s second report is at ECF No. 66). Both petitioners’ affidavits were filed on October 24,
2013. Affidavits (ECF No. 60).

The case was reassigned to me on March 4, 2014. Petitioners requested and were granted
several extensions of time to file an additional expert report. On September 29, 2014, petitioners
submitted the expert report of pathologist Dr. Laurel Waters, along with her curriculum vitae and
supporting medical literature. Exhibits 25-28 (ECF No. 80).

During a telephonic status conference on October 22, 2014, petitioners stated that they
would not move forward with Dr. Shane as an expert. Order (ECF No. 84). Respondent indicated
that removing Dr. Shane would narrow the issues going forward and limited the need for Dr. Lidov,
who was primarily responding to Dr. Shane. Id. On December 3, 2014, petitioners filed Dr.
Waters’s second report. Exhibit 31 (ECF No. 87). On March 24, 2015, after settlement efforts
proved unsuccessful, I set dates for an entitlement hearing. Hearing Order (ECF No. 95). On
November 9, 2015, petitioners submitted additional medical literature in support of their position.
Exhibits 40-42 (ECF No. 101). On November 30, 2015, petitioners filed supplemental affidavits
from Steven Forrest, Elmer Darwin, and Dianne Darwin. Exhibits 43-45 (ECF Nos. 104-106). The
parties filed separate prehearing submissions and a joint prehearing submission in preparation for
the entitlement hearing. (ECF Nos. 98, 99, 102).

The entitlement hearing was held on December 7, 2015, in New Orleans, Louisiana. See
Transcript (“Tr.”) filed December 29, 2015 (ECF No. 109). Petitioners Mr. and Ms. Forrest
appeared as fact witnesses. Dr. Waters also testified on behalf of petitioners. Dr. Vargas testified
on behalf of respondent. On March 15, 2016, petitioners filed a post-hearing brief and an
addendum from Dr. Waters intended to “supplement [her] initial report.” Petitioners’ Post-Hearing
Brief (ECF No. 112). On April 29, 2016, respondent filed his post-hearing brief, in which he
argued I should not consider Dr. Waters’s addendum or alternatively, I should allow respondent and
Dr. Vargas to “respond to any new arguments made therein.” Respondent’s Post-Hearing Brief
(ECF No. 114). I granted respondent’s request to respond to any new arguments raised by Dr.
2
Waters. Order filed June 23, 2016 (ECF No. 115). On August 23, 2016, respondent filed a third
report from Dr. Vargas in response to Dr. Waters. Exhibit R (ECF No. 117). This matter is now
ripe for adjudication.

B. Standards for Adjudication

The Vaccine Program was created to compensate injuries and deaths associated with
vaccines administered within the United States. § 300aa-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 Vaccine 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).

Petitioners’ burden of proof is by a preponderance of the evidence. § 300aa-13(a) (1).
Under this standard, petitioners must demonstrate that it is more likely than not that a vaccine
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). If petitioners satisfy this burden, they are entitled to compensation
unless respondent can prove, by a preponderance of the evidence, that the injury is “due to factors
unrelated to the administration of the vaccine.” § 300aa-13(a) (1) (B).

To receive compensation under the Vaccine Program, petitioners must prove either: (1) a
“Table injury” – i.e., a specific injury within a specific period of time following the administration
of a vaccine listed on the Vaccine Injury Table – or (2) that the vaccine caused the injury. See §§
300aa-13(a) (1) (A), 300aa-11(c) (1); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317,
1319-20 (Fed. Cir. 2006). Petitioners must show that the vaccine was “not only a 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));
Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006).

In the present case, petitioners do not allege a Table injury, so they must argue that the
vaccines E.M.F. received were the cause-in-fact of her death. To do so, they must establish by a
preponderance of the evidence each of the three prongs in the test detailed in Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Namely, petitioners must establish:
(1) a medical theory causally connecting the vaccines and E.M.F.’s injury; (2) a logical sequence of
cause and effect showing that the vaccines was the reason for the injury; and (3) a showing of a
proximate temporal relationship between the vaccines and the injury. Althen, 418 F.3d at 1278.

Further, the causation theory must relate to the injury alleged. Thus, petitioners must
provide a reputable 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). Petitioners cannot establish
entitlement to compensation based solely on their assertions. Rather, their claim must be supported
either by medical records or by the opinion of a medical doctor. § 300aa-13(a) (1).

3
 In determining whether petitioners are entitled to compensation, the special master shall
consider all material contained in the record, including “any . . . conclusion, [or] medical judgment .
. . which is contained in the record regarding . . . causation.” § 300aa-13(b) (1) (A). The special
master must weigh the submitted evidence and the testimony of the parties’ experts and rule in
petitioners’ favor when the evidence weighs in their 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 (emphasizing that “close calls” are resolved in petitioners’
favor).

Another important aspect of the causation-in-fact case law under the Vaccine Act concerns
the factors that a special master may consider in evaluating the reliability of expert testimony and
other scientific evidence relating to causation issues. In Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), the Supreme Court listed certain factors that federal trial courts should utilize in
evaluating proposed expert testimony concerning scientific issues. In Terran v. Sec’y of Health &
Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999), the Federal Circuit ruled that it is appropriate
for special masters to apply the Daubert factors while evaluating the reliability of causation-in-fact
theories actually presented in Vaccine Program cases. In addition, where both sides offer expert
testimony, a special master’s decision may be “based on the credibility of the experts and the
relative persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health & Human
Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe v. Sec’y of Health & Human Servs., 219
F.3d 1357, 1362 (Fed. Cir. 2000)). However, nothing requires the acceptance of an expert's
conclusion “connected to existing data only by the ipse dixit of the expert,” especially if “there is
simply too great an analytical gap between the data and the opinion proffered.” Snyder v. Sec’y of
Health & Human Servs., 88 Fed. Cl. 706, 743 (2009) (quoting Gen. Elec. Co. v. Joiner, 522 U.S.
146 (1997)).

C. Summary of Relevant Facts3

E.M.F.’s mother, Ms. Nicole Forrest, is a registered nurse and a clinical manager of the
intensive care unit at West Jefferson Medical Center in Louisiana, a position she has held since
1996. Tr. 9. Ms. Forrest stated that while she was pregnant with E.M.F., she did not drink, smoke,
or have any health problems, and that she received consistent prenatal care. Tr. 11.

E.M.F. was born on August 28, 2007, at forty-weeks gestation, weighing six pounds, eight
ounces. Exhibit 1 at 17. E.M.F. had a physical exam on August 30, 2007, and was discharged from
the hospital in good health on September 1, 2007. Joint Pre-Hearing Submission at 1.

E.M.F.’s pediatrician Dr. Vigour found her to be a well child at visits on September 4, 2007
and September 15, 2007. Joint Pre-Hearing Submission at 1. On September 29, 2007, Dr. Vigour
saw E.M.F. for her one-month check-up. Exhibit 4 at 9. At that visit, Dr. Vigour noted that E.M.F.
was spitting up her formula after feeding and diagnosed her as a well child with reflux. Exhibit 4 at
9. A few weeks later, on October 13, 2007, E.M.F. was brought to the pediatrician for a rash on her
face and was diagnosed with baby acne. Exhibit 4 at 9.

3
Although I considered the record as a whole to reach my decision, this section reviews only the most relevant facts. A
more detailed recitation of the facts may be found in respondent’s Rule 4(c) Report and the parties’ pre-hearing
submissions.

4
 On October 29, 2007, E.M.F. was seen for her two-month check-up. Exhibit 4 at 8. Dr.
Vigour noted that E.M.F. continued to have reflux, but otherwise her examination was normal.
Exhibit 4 at 8. At that visit, E.M.F. received her first DTaP, pneumococcal, Hib, IPV, and rotavirus
vaccinations. Exhibit 4 at 8. Ms. Forrest stated that about two hours after the vaccinations, E.M.F.
began to develop a fever, which went up to 103° Fahrenheit. Tr. 16-17; see also Tr. 55 (testimony
of Mr. Forrest, concurring that E.M.F. had a fever “that afternoon, by the time [Ms. Forrest] brought
her home”). That night, E.M.F. was fussy, irritable, and vomiting when she ate. Tr. 16. Ms.
Forrest also noticed some inflammation and redness at the site of administration on E.M.F.’s thigh.
Tr. 16. Ms. Forrest called the pediatrician’s office and was instructed to give Tylenol to treat the
fever. Tr. 16. Ms. Forrest stated that the elevated temperature lasted for several days after receipt
of the vaccines. Exhibit 12 at 1. The gastrointestinal difficulties with vomiting and constipation
began after receipt of the vaccines, and continued intermittently until E.M.F.’s death on January 14,
2008. Ms. Forrest’s Affidavit (ECF No. 60-1).

Mr. Forrest, who was a nursing student at the time, also observed these symptoms, and
“could have just seen [them] as GI, - you know - other than the fever.” Tr. 63. But he thought the
most notable changes were “neuro.” Id. Specifically, during her first two months of life, E.M.F.
“seemed like a happy child” and “was always smiling.” Id. But after receiving her first
vaccinations, within two days (by October 31, 2007), E.M.F.’s behavior changed. Id. She “wasn’t
acting like herself.” Tr. 63. She did not try to climb out of her car seat. Tr. 64-65. She also spent a
lot of time on her back, and did not try to turn onto her front. Tr. 64-65.

On November 12, 2007, the pediatrician recorded a statement from Ms. Forrest that E.M.F.
was constipated and spitting up. Exhibit 4 at 7. Neither Mr. Forrest nor Ms. Forrest remembered
whether this was a telephone call or whether they brought E.M.F. to the pediatrician in person. Tr.
35, 80.

On November 19, 2007 at approximately 12:40 a.m., E.M.F. was brought to the emergency
room at Slidell Memorial Hospital. Exhibit 6 at 2. The complaints included a one-day history of
high fever and congestion. Joint Pre-Hearing Submission at 2. The emergency room records note a
rectal temperature of 102.1° Fahrenheit. Exhibit 6 at 2. Bloodwork results included an automated
differential of 39.1% neutrophils (lower than the normal range of 42.2 - 75.2%) and 52.5%
lymphocytes (higher than the normal range of 21.0 - 51.0%). Exhibit 6 at 8. The absolute cell
count for lymphocytes was 4.0 cells per cubic milliliter (higher than the normal range of 1.2- 3.4
K/ul). Exhibit 6 at 8.

E.M.F. was discharged from Slidell with instructions to be taken directly to West Jefferson
Medical Center (where her mother, petitioner Ms. Forrest, worked as a nurse). Ex. 6 at 5. E.M.F.
was admitted to West Jefferson with an assessment of “fever, vomiting, and rule out sepsis”. Joint
Pre-Hearing Submission at 2. Upon discharge on November 24, 2007, the diagnosis was resolved
acute gastroenteritis, GE reflux, and a slight dilation of the lower pole collecting system of the right
kidney. Joint Pre-Hearing Submission at 2.

Ms. Forrest stated that after discharge from the hospital on November 24, 2007, E.M.F. had
some increased congestion and needed more frequent suctioning. Tr. 20. On November 26, 2007,
Ms. Forrest took E.M.F. to a follow-up with Dr. Vigour. Tr. 20; Exhibit 4 at 7. Dr. Vigour noted
that E.M.F. had a fever of between 100.0 - 100.7° Fahrenheit and had been vomiting. Exhibit 4 at 7.
A chest x-ray performed that day showed a “patchy infiltrate noted in the left perihilar region and to

5
a lesser extent right lower lobe infrahilar region,” leading to a radiologic impression of pneumonia.
Exhibit 3 at 9. Nasal washing tested negative for influenza A, influenza B, para-influenza types 1-
3, adenovirus, and respiratory syncytial virus. Exhibit 3 at 6-8.

A record from the pediatric clinic dated November 29, 2007, notes that petitioner had nasal
congestion and a rash on the elbow, but no fever. Exhibit 4 at 6. The rash was treated with
hydrocortisone cream and moisturizer. Exhibit 4 at 6.

On December 3, 2007, E.M.F. was seen by a pediatric gastroenterology and nutrition
specialist, Dr. Khoshoo, at West Jefferson Medical Center. Exhibit 5 at 1. He recorded that E.M.F.
presented with a history of post-prandial regurgitation without much irritability, but she did not
have any recurrent respiratory illnesses. Exhibit 5 at 1. Dr. Khoshoo recommended discontinuing
all medication and “treat[ing] her very conservatively with small volume thickened feeds,
positioning, and avoidance of cigarette smoke.” Exhibit 5 at 1. Ms. Forrest testified that over the
next month, E.M.F. had continuing respiratory issues, but stopped having fevers and began to return
to her normal self. Tr. 24-25.

There do not appear to be any medical records for E.M.F. from December 3, 2007, until
January 10, 2008, when she had a four-month check-up with Dr. Vigour. Tr. 22; Exhibit 4 at 6. On
January 10, E.M.F. had constipation, nasal congestion, and a rash on her elbows and forearms. She
was diagnosed with constipation and dermatitis and prescribed 1% hydrocortisone cream. Exhibit
4 at 6. It is difficult to tell if the doctor did a complete physical examination at this appointment, as
the various systems -genital, eyes, ENT, heart, lungs, and abdomen - are just checked without any
notation. Id. E.M.F. received her second DTaP, pneumococcal, Hib, IPV, and rotavirus
vaccinations that day. Id. Dr. Vigour’s chart record provides that the appointment began at 10:36
a.m. and ended at 11:45 a.m. Id.

Ms. Forrest stated that E.M.F.’s reaction to the second vaccines was “similar... but more
intense” than her reaction to the first vaccines. Tr. 26. “Immediately” after the vaccines, E.M.F.
began crying and developed a fever; she did not sleep that afternoon or that night. Tr. 26-27. Her
parents began alternating doses of Motrin and Tylenol, gave her a cool bath, and drove her around
in the car, but she still stayed up the entire night. Tr. 67. Ms. Forrest’s and Mr. Forrest’s first
affidavits state that on the evening of January 10, 2008, E.M.F. had an elevated temperature of 102°
Fahrenheit. Affidavits (ECF Nos. 60-1, 60-2). At the hearing, Mr. Forrest stated that her fever was
“between 103 and 105.” Tr. 67, 85. Ms. Forrest said that the fevers fluctuated off and on and that
E.M.F. was not eating. Tr. 26.

The next morning, on Friday, January 11, 2008, E.M.F. was “still very sick.” Tr. 27. Ms.
Forrest was scheduled to work a three-day shift at the hospital. Tr. 68. They decided together that
Mr. Forrest would monitor E.M.F. and “if there were any other persisting problems, [he] would
bring her to the ER.” Tr. 68.

Over the weekend, Mr. Forrest stayed with E.M.F. Tr. 71. He took her rectal temperature
every four hours. Id. On January 11 and 12, 2008, E.M.F. had a periodic fever that went down
when she received Motrin or Tylenol, and then went back up. Tr. 68-70. She was vomiting, as she
had been doing since late October 2007, but in greater volume. Tr. 69. Mr. Forrest assumed that
she did not like the formula. Tr. 68. These symptoms “began tapering off” in the morning of
Sunday, January 13, 2008. Tr. 70. That evening, Mr. Forrest told his wife over the phone that

6
E.M.F. seemed to be doing better and he would like to bring her to their new babysitter the next
day, January 14, 2008, so that he could go to school. Tr. 72.

Mr. Forrest stated that on the morning of January 14, 2008, he was “a little bit rushed,” but
E.M.F. did not seem sick. Tr. 72-73. She did not have a fever. Tr. 73. Mr. Forrest brought her to
their new babysitter for the first time. Exhibit 22 at 3; Tr. 28 (“it was her first day there”). Before
that day, Mr. and Ms. Forrest had met the babysitter at her home twice and had given her written
instructions in advance. Tr. 86-89. The instructions stated that E.M.F. was being medicated with
“gas drops 0.3 as needed but not more than twice daily, teething tablets or Orajel as needed.”
Exhibit 7 at 16. They also directed the babysitter to “make sure [E.M.F.] eats her jar food twice
daily and a 4 oz. bottle every 3 to 4 hours. She will let you know when she is hungry.” Id.

Mr. Forrest stated that he dropped off E.M.F. at about 8:40 a.m., on his way to classes that
began at 9:00 a.m. Tr. 72-73. However, according to the police incident report, the babysitter
stated that Mr. Forrest dropped off E.M.F. a little later - “between 900 and 930 hrs.” Exhibit 22.
The babysitter stated that Mr. Forrest told her when and what to feed E.M.F. Exhibit 30 at 14:45-
18:40.4 She said that Mr. Forrest also mentioned that E.M.F. “got a little fussy with gas from her
feedings.” Id. at 33:05-33:24. According to the babysitter, Mr. Forrest left without filling out a
contract or saying goodbye. Id. at 14:45-18:40. The babysitter did not notice that he left, because
she was holding E.M.F. and cleaning up after the six other children in her care. Id. at 14:45-18:40.
After Mr. Forrest left, the babysitter placed E.M.F. in a swing in the living room, fed her, burped
her, then placed her back in the swing. Id. at 19:10-20:08. The babysitter noticed that E.M.F.’s
eyes were red and that she looked tired and ready for a nap. Id. at 20:50-21:10. However, E.M.F.
was not crying. Id. at 21:10 (the babysitter told another child that E.M.F. was “not crying, she’s
laughing. She’s happy.”) At about 11:00 a.m., the babysitter placed E.M.F. on her back in a
portable crib, in a bedroom at the end of the hall. Id. at 21:10-22:20. She left the door “cracked
open” and took another baby into the kitchen to be fed. Id. at 22:20-23:50. The babysitter brought
the other baby back into the bedroom, laid him down for a nap, and then went into the kitchen again
to feed the other children. Id. at 23:50- 24:50. At approximately 11:30 a.m., the babysitter went
back into the bedroom and observed that E.M.F. was still on her back and appeared to be sleeping.
Id. at 26:00-26:50. The babysitter took care of the other children and then ate lunch. Id. at 26:50-
27:45.

When the babysitter went into the bedroom again, she found E.M.F. lying on her stomach
and what appeared to be spit-up by her face, on the mattress. Id. at 27:45-28:30. The babysitter
picked up E.M.F. and saw that she was not breathing and that blood appeared to be coming from her
nose. Id. at 28:30-29:10. At 12:34 p.m., the babysitter called 911. Exhibit 9 at 1. While waiting
for EMS to arrive, the babysitter performed CPR. Exhibit 30 at 29:20-31:20. When the paramedics
arrived, they recorded that E.M.F. was a “baby girl [with] no signs of life and vomit (sic) and blood
on [her] shirt.” Exhibit 9 at 1. The paramedics ventilated her, resumed CPR, and administered
epinephrine and atropine while transporting her to the hospital. Exhibit 9 at 1. Upon arrival to the
hospital, E.M.F. had no blood pressure, no pulse, and a temperature of 88.8° Fahrenheit. Exhibit 7
at 3. E.M.F. was pronounced dead at 1:14 p.m. Exhibit 7 at 5. There does not appear to have been
a police reconstruction of the events.

4
The police detective interviewed the babysitter in the presence of her attorney on the day of E.M.F.’s death. No
transcript was made of the interview but I have reviewed the videotape of that interview. The time entries noted
represent minutes and seconds elapsed on the videotape and not time of day.

7
 Dr. Peter R. Galvan performed an autopsy on January 15, 2008. Exhibit 11. He found no
evidence of injury or trauma. Id. at 4. The heart was noted to have a 3-millimeter atrial septal
defect. Id. at 4. The right lung weighed 100 grams and the left lung weighed 80 grams. Id. at 5.
Pulmonary cut surfaces of the lungs demonstrated congestion. Id. at 5. The microscopic report
noted “mild congestion; intra-alveolar microphages”5 in the lungs. Id. at 7. It also noted “mild
congestion” in the kidneys and “mild portal triaditis” in the liver. Id. at 7. The final diagnosis was
atrial septal defect of heart and the cause of death was sudden infant death syndrome. Id. at 3.

D. Sudden Infant Death Syndrome6

Sudden infant death syndrome is defined as “the sudden death of an infant under one year of
age which remains unexplained after a thorough case investigation, including performance of a
complete autopsy, examination of the death scene, and review of the clinical history.”7 SIDS is
temporally associated with sleep, “leading to the premise that it occurs during sleep or transitions
between sleep and waking.” Exhibit 17 at 306.

SIDS is a leading cause of infant mortality, with an overall incidence of 0.57 per 1,000 live
births. Exhibit 17 at 306. “SIDS peaks at 2-4 months of age, and 90 percent of cases occur under 6
months of age, suggesting that development mechanisms play a major role in pathogenesis.”
Exhibit 17 at 306.

In 1994, Dr. Hannah C. Kinney, Dr. James J. Filiano, and their colleagues proposed a
framework for SIDS called the Triple Risk Model, which they illustrated in the diagram below.8

5
The medical examiner’s report uses the term “microphages” but Dr. Vargas testified that that must be a typographical
error as there are no microphages in the lung. The term should have been macrophages. Tr. 190.
6
This summary introduces the basic concept of SIDS. It draws from one book chapter and one article filed by
petitioners and Dr. Waters. For a longer explanation of SIDS and relevant medical literature, see my ruling on
entitlement in Boatmon v. Sec’y of Health & Human Servs., No. 13-611V (Fed. Cl. Spec. Mstr., July 10, 2017).
7
Exhibit 17, R. Folkerth & H.C. Kinney, Disorders of the Perinatal Period: Sudden Infant Death Syndrome, in
Greenfield’s Neuropathology (8th ed. 2008) at 306.
8
Exhibit 17, citing J.J. Filiano & H.C. Kinney, A Perspective on Neuropathologic Findings in Victims of the Sudden
Infant Death Syndrome, 65 Biol. Neonate 194 (1994).

8
As shown on the diagram, SIDS is thought to occur when: (1) an infant in a critical development
period; (2) possessing an underlying vulnerability; (3) encounters an exogenous stressor.

The first risk factor is the critical developmental period, thought to be the first year of life.
The second risk factor is fulfilled by the infant possessing some inherent vulnerability. Many SIDS
deaths have been characterized by: (i) maternal and pregnancy-related risk factors, such as pre-natal
exposure to tobacco and alcohol; (ii) neonatal abnormalities in neurological or autonomic function;
(iii) post-neonatal abnormalities in crying, cardiac, and ventilatory patterns, and state organization;
and (iv) subtle CNS and/ or systemic abnormalities. Exhibit 17 at 309. The “most robust and
specific” neurologic hypothesis, which has been “confirmed in several independent data sets and
laboratories” is that up to 70% of SIDS infants studied have a brainstem abnormality in the
medullary serotonergic (5-hydroxytryptamine [5-HT]) system.9 This area of the brain “plays a key
role in coordinating many respiratory, arousal, and autonomic functions and, when dysfunctional,
might prevent normal protective responses to stressors that commonly occur during sleep.” Exhibit
34 at 7. A defective 5-HT system may fail to respond to exogenous stressors, such as disruptions to
the infant’s breathing, and therefore causes SIDS. Ex. 17 at 310. Researchers are also investigating
genetic mutations to the serotonin transporter, cardiac channelopathies, the autonomic nervous
system, and other areas. Exhibit 34 at 8. These “require more study to determine their importance.”
Exhibit 34 at 8.

Third, the infant must encounter one or more “exogenous stressors” which, combined with
the aforementioned two risk factors, lead to death. Exhibit 17 at 310. Kinney et al. have
emphasized that SIDS is likely to be multifactorial, and often an infant whose death is classified as
SIDS has at least two exogenous stressors. Perhaps the most widely recognized exogenous stressor
is the prone sleep position. Exhibit 17 at 306. The mechanism is unknown, but “may involve
rebreathing of expired gases with hypoxia, hypercapnia or asphyxia, upper airway obstruction, or
impaired arousal thresholds in the prone position that hamper efforts to turn the head. Other
possible explanations include compromised upper airway reflexes, hyperthermia due to heat
trapping in the face-down position, or altered sensory/vestibular influences on blood pressure.”
Exhibit 17 at 306-7.

II. EXPERT OPINIONS AND CAUSATION ANALYSIS10

A. Althen Prong One: Petitioners’ Medical Theory

Under the first Althen prong, petitioners must set forth a medical theory explaining how the
vaccines could have caused E.M.F.’s death. Andreu v. Sec’y of Health & Human Servs., 569 F.3d
1367, 1375 (Fed. Cir. 2009); Pafford, 451 F.3d at 1355-56. Petitioners’ theory of causation must be
informed by a “sound and reliable medical or scientific explanation.” Knudsen, 35 F.3d at 548; see
also Veryzer v. Sec’y of Health & Human Servs., 98 Fed. Cl. 214, 223 (2011) (noting that under §
300aa- 13(b) (1) and Vaccine Rule 8(b) (1), special masters must consider only evidence that is both
“relevant” and “reliable”). If petitioners rely upon a medical opinion to support their theory, the

9
Exhibit 34, American Academy of Pediatrics – Task Force on Sudden Infant Death Syndrome, SIDS and Other Sleep
Related Infant Deaths: Expansion of Recommendations for a Safe Infant Sleeping Environment, 128 Pediatrics 1030
(2011).
10
As stated above, to reach my decision, I considered the record as a whole, including all aspects of the experts’
opinions and their supporting medical literature. This section only reviews the materials that were most relevant to my
decision.

9
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, 618 F.3d at 1347 (“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)).

1. Petitioners’ Expert Dr. Laurel Waters

Dr. Laurel Waters is board-certified in pediatric pathology, anatomic pathology, clinical
pathology, and nuclear medicine. Tr. 109. She graduated from the University of California at
Berkeley in 1974 with one major in nutrition and food science, and a second major in biochemistry.
Tr. 108-09. Dr. Waters earned her medical degree from the University of California at Davis in
1978. Tr. 109. She has completed a residency in anatomic and clinical pathology and a fellowship
in pediatric pathology. Tr. 109-112; Exhibit 32 at 1. Dr. Waters has worked as a pathologist at
several hospitals. Exhibit 32 at 1-3. She testified that she last performed autopsies “routinely”
while working as an associate pathologist at Children’s Hospital in Oakland, California from 1995-
2000. Tr. 121. She has done pediatric autopsies “periodically, independently” for other
pathologists in the area, most recently “a few years” ago. Tr. 121. At the entitlement hearing in
December 2015, Dr. Waters indicated that she had been a clinical assistant professor in pathology at
UC Davis since 2014. Tr. 114; see also Exhibit 32 at 1. Dr. Waters stated that the frequency of her
teaching was “variable.” Tr. 115.

In 2000, Dr. Waters founded PerinatalPath, where she currently works as a medical legal
consultant and expert witness. Exhibit 32 at 1. Her practice has been primarily in the medical legal
consulting arena since 2000. Exhibit 32 at 1; Tr. 116-18. I admitted Dr. Waters as an expert in
pathology and pediatric pathology. Tr. 122-23.

Dr. Waters stated that she formed her opinion after reviewing E.M.F.’s medical records,
autopsy reports and slides, medical literature, and various reports by other experts, and then
interviewing Mr. and Ms. Forrest over the phone. Tr. 127. Dr. Waters opined that SIDS is a
diagnosis of exclusion and that past studies have not established whether or not vaccines may cause
certain deaths that are currently categorized as SIDS. She theorized that vaccines may cause these
deaths by causing elevated temperatures that act as an exogenous stressor in the recognized “Triple
Risk Model” for SIDS. She also opined, with more detail, that vaccines could prompt a “type IV
anamnestic hypersensitivity response” leading to death. Tr. 128. She stated that when E.M.F.
received her first set of vaccines, she had a fairly significant reaction. E.M.F. had a fever,
indicating that the initial exposure to the antigens provided a release of lymphokines that would
cause a reaction like that. Then, when the second set of vaccines were administered, “it could be an
anamnestic response, which is much, much bigger than the initial response.” Tr. 128.

Dr. Waters stated that SIDS “is a term used when an infant who was previously well
unexpectedly dies.” Exhibit 25 at 13. These deaths occur “primarily in early infancy with 95%
occurring between one and nine months of age,” most frequently between “two to four months.”
Exhibit 25 at 13. She stated that SIDS is a “diagnosis of exclusion.” Exhibit 25 at 15. An autopsy
and death scene investigation are necessary to rule out possible causes of death, including
“homicide, asphyxiation, congenital heart disease, other serious structural abnormalities, infectious
causes, and inborn errors of metabolism.” Exhibit 25 at 15. Once these are ruled out, the cause of
death is recorded as SIDS. Exhibit 25 at 15. However, she said the term SIDS is not universally
10
accepted because it implies a syndrome that is well understood and has clear diagnostic criteria. Dr.
Waters and others would prefer to say sudden unexpected death of an infant (“SUDI”) or sudden
unexpected infant death (“SUID”). Exhibit 31 at 4, Tr. 123.

Despite arguing that SIDS is not understood and merely a “diagnosis of exclusion,” Dr.
Waters acknowledged “agreement on a basic model,” – the Triple Risk Model – in which “a
vulnerable infant at a critical developmental period suffers from exogenous stressors.” Exhibit 25 at
13. Dr. Waters stated that all three aspects of this model are still being studied. Exhibit 25 at 13.
However, prone sleeping has been identified as an external stressor. The “Back-to-Sleep” campaign
in the 1990s, which encouraged placing infants to sleep on their backs, was followed by a
significant decrease in the SIDS incidence rate. Exhibit 25 at 13. Dr. Waters also stated that SIDS
may be caused by hyperthermia, caused by high external temperatures, overdressing, or “recent
febrile illness.” Exhibit 25 at 13. She stated that fevers are commonly seen after immunizations.
Exhibit 25 at 13. She also stated that SIDS infants’ lungs often – but not always – have congestion,
edema, hemorrhages, macrophages, and inflammation. Exhibit 25 at 13-14.

Dr. Waters opined that a small subset of the deaths attributed to “SIDS” are caused by
vaccinations. Tr. 162. She stated this has not been proven yet, because past studies were “poorly
designed.” Exhibit 25 at 14. She cited a 2003 Institute of Medicine report11 that reviewed a number
of controlled studies on vaccination and SIDS from “a position of neutrality.” Exhibit 25 at 14.
This report “found the evidence inadequate to accept or reject a causal relationship between SIDS
and DTaP… HiB, HepB, OPV, and IPV.” Exhibit 25 at 14. Dr. Waters stressed that the IOM
report was inconclusive and that it recommended further study.

Dr. Waters stated that past studies were poorly designed because they compared children
that had been vaccinated with children who had never been vaccinated. Exhibit 25 at 17-18. She
opined that “the never-vaccinated group made a flawed comparison in that it was made up of
individuals from socioeconomic categories already identified as being at increased risk for SIDS,
specifically those whose parents were poorer and having children at an earlier age.” Exhibit 25 at
17; see also Tr. 128-29. Dr. Waters further opined that future studies should control for these
socioeconomic and age factors, and focus on the temporal association between vaccination and
death. Exhibit 25 at 17. Dr. Waters stated that one study by Walker12 was designed well and
supported her theories. Exhibit 25 at 17. This 1987 study was of immunized and non-immunized
infants who died in infancy. It included all apparently-healthy infants of birthweight greater than
2500 grams born between 1972-83 in hospitals affiliated with the Group Health Cooperative of
Puget Sound (GHC), who subsequently used GHC medical services and had retrievable records.
The Walker study’s key finding was that there was a 7.3-fold elevation in the risk for SIDS in the
first four days following DTP immunization within the first year of life. Walker also reported that
the group of children who were old enough to receive DTP but never received it had a mortality rate
“more than six times higher than those who had been immunized.” Exhibit 19 at 945.

11
Exhibit 28, Institute of Medicine, Immunization Safety Review: Vaccinations and Sudden Unexpected Death in
Infancy (K. Stratton et al., eds. 2003).
12
Exhibit 19, A. Walker et al., Diphtheria-Tetanus-Pertussis Immunization and Sudden Infant Death Syndrome, 77
American Journal of Public Health 945 (1987).

11
 Dr. Waters also filed a 2014 study by Maturri which found that 11.8% of deaths categorized
as SIDS occurred within seven days of a hexavalent vaccination.13 Maturri stated that the study
“does not prove a causal relationship between the hexavalent vaccination and SIDS,” but
hypothesized that “vaccine components could have a lethal outcome in vulnerable babies.” Exhibit
39 at 1. Maturri recommended that deaths shortly following hexavalent vaccinations be
“appropriately investigated and submitted to a post-mortem examination, particularly of the
autonomic nervous system to objectively evaluate the possible causative role of the vaccine in
SIDS.” Exhibit 39 at 1. Dr. Waters also cited several studies of simultaneous sudden infant deaths
in twins shortly after vaccination, to “lend weight to an association” between vaccinations and
death. Exhibit 25 at 6.14 Based on these studies, Dr. Waters opined that certain SIDS deaths are
caused by vaccines. Exhibit 25 at 4. She stated that “there are no specific markers we know at this
time.” Exhibit 25 at 4. However, she believes that “vaccinations are eventually going to be found –
be proven to be” the cause of a small subset of SIDS cases. Tr. 162.

Dr. Waters suggested that vaccinations can cause elevated temperatures, which act as an
exogenous stressor in the Triple Risk Model of SIDS. Exhibit 25 at 4; Tr. 131-32. However, she
did not discuss this theory in detail. Her primary theory is that vaccinations cause an anamnestic
type IV delayed hypersensitivity response that leads to death.

Dr. Waters filed an excerpt from a book by Roger Byard that discusses whether various
antigens cause increased immunoreactivity.15 It provides: “An alternative approach suggests that
SIDS infants are in fact immunologically ‘too’ competent, and that allergic responses to a wide
variety of materials are responsible for their unexpected death. Many substances have been
proposed, including a variety of intrauterine pathogens, fungal organisms, house dust mite
(Dermatophagoides pteronyssinus), and cow’s milk protein.” Exhibit 33 at 2. Byard writes that
studies have not consistently demonstrated elevated levels of these materials in SIDS infants, and
have “cast doubt” on the theory of immunoreactivity. Exhibit 33 at 2. Byard does not discuss
vaccines as the source of antigens that possibly cause this fatal immune response.16

Other than the Byard excerpt, Dr. Waters did not file any other medical literature about how
antigens in general, or vaccines in particular, may cause a heightened immune system response
leading to death. Tr. 153. She primarily presented this theory in her own reports and testimony.
Dr. Waters stated that the first administration of an antigen can trigger an immune response, and
that this response may not be very severe. Tr. 130. However, “when the antigen is seen again,
there’s a more rapid response that can be of a much greater magnitude than the initial response
because you already have primed cells.” Tr. 128. This subsequent response is “anamnestic.” Tr.
129, Exhibit 31 at 3. She testified that this is a cell-mediated response, mostly involving T cells and

13
Exhibit 42, L. Maturri et al., Sudden Infant Deaths Following Hexavalent Vaccination: A Neuropathologic Study, 21
Current Medicinal Chemistry 941 (2014).
14
Citing Exhibit. 36, Y. Balci et al., Simultaneous Sudden Infant Death Syndrome, 14 Journal of Forensic Legal
Medicine 87 (2007); Exhibit 37, S.C. Roberts, Vaccination and Cot Deaths in Perspective, 62 Archives of Disease in
Children 754 (1987).
15
Exhibit 33, Roger W. Byard, Sudden Death in the Young (3rd ed. 2010) at 592-593.
16
These pages from this book discussing SIDS can fairly be categorized as a general description of various theories to
explain SIDS causation including infection, immunodeficiency, increased immune reactivity, genetic mutations and
toxic exposures. As discussed below, respondent filed another page from the book with the specific heading,
“Immunization.” See below and Exhibit P.

12
some natural killer cells are involved, and lymphocytes scattered throughout the body as E.M.F. had
in the lungs in particular. Tr. 129. In referring to lymphocytes, Dr. Waters may have been
addressing the autopsy finding of lymphoid hyperplasia17 in the lungs.

Dr. Waters stated that antigens can trigger several different responses within different time
frames. A “humoral response” producing fever and other “sickness behaviors” may occur within
twenty-four hours. Tr. 154. She also stated that “a few days” following exposure, she might expect
to see a “reaction at the site.” Tr. 158. She did not say whether she expected that this would be a
humoral or cellular response, but she compared it to the response in a tuberculosis vaccination. She
did not recall if there were any indications of a site reaction in E.M.F.’s case. Tr. 157-58.

Dr. Waters stated that an antigen can trigger increased activity of lymphocytes. Tr. 147. She
opined that E.M.F. was exposed to these antigens at the two-month vaccinations and was primed.
Then, upon receiving the four-month vaccinations containing these same antigens, E.M.F.
experienced an anamnestic response with cellular immunity. Tr. 147. The lymphocytes produce
lymphokines, which are chemicals that are reactive and can cause cellular problems throughout the
body, according to Dr. Waters. Tr. 147-48.

Dr. Waters stated that one possible immune response is “a type IV hypersensitivity
response.” During this response, “various lymphocytes including CD4 and CD8 T cells, and NK
cells,” secrete specific cytokines, called lymphokines. Petitioners’ Post-Hearing Brief, Addendum
A at 4. The lymphokines “attract more immunoactive cells and cause cellular damage.” Id. at 4.
Dr. Waters stated that lymphokines can cause apoptosis (cell death) “from various different
mechanisms. Punching holes in the membrane, in the outer cell membrane and so forth.” Tr. 150.

She stated that when an antigen – specifically a vaccine – is injected into the muscle, it is
“picked up by the bloodstream and goes throughout the body.” Tr. 150. Therefore, it would cause
damage on the cellular level, “systemic[ally]” throughout the body. Tr. 150-51. Dr. Waters stated
that the apoptosis would not be as “massiv[e]” as the damage caused by chemotherapy or certain
other treatments. Tr. 156. She said that the apoptosis alone would not cause a sudden death, but
that “a combination of apoptosis and other things” could cause death. Id. The apoptosis would be
“one of many mechanisms.” Id. Dr. Waters thought “the actual final mechanism… could be an
arrhythmia or there could be a neurological kind of pathway to the death.” Tr. 172. Dr. Waters
stated that this apoptosis would not necessarily be found in the cell samples taken at autopsy. Tr.
150-51. Therefore, there would be no direct evidence of the type IV hypersensitivity response.

Dr. Waters stated that “with the hypersensitivity reaction, you’re going to get a mixture of
findings. And you’re not necessarily going to get…lymphoid hyperplasia” (discussed in more
depth below, in the section on Dr. Vargas’s testimony). Tr. 134. However, the hypersensitivity and
lymphoid hyperplasia would be “consistent,” because they are both immune responses. Tr. 131,
134, 172. Dr. Waters opined, without reference to any literature, that the lymphoid hyperplasia seen
on autopsy in E.M.F. helps support the diagnosis or mechanism that the death was actually caused
by hypersensitivity. Tr. 131.

17
Lymphoid hyperplasia is defined as a form of chronic lymphadenitis occurring in an immunologic response, often
induced by drugs, and characterized by transformation of T cells to lymphoblasts, endothelial cell hypertrophy and the
presence of a mixed leukocyte infiltrate. Dorland’s Illustrated Medical Dictionary at 894 (32d ed. 2012)
(“Dorland’s”). Lymphoblasts are activated lymphocytes that have been transformed in response to antigenic
stimulation. Dorland’s at 1084.

13
 Dr. Waters stated that the type IV hypersensitivity response generally occurs within three
days of exposure to the antigen. Tr. 127. However, a “delayed” type IV hypersensitivity response
can “take a longer time than the normal three days that’s considered an association.” Tr. 127. She
later stated that the type IV hypersensitivity response “starts at about 48 to 72 to 96 hours and then
continues for a while after that.” Tr. 129-30.

Dr. Waters discussed a possible element of this immune response, lymphoid hyperplasia (the
growth and aggregation of many lymphocytes). Tr. 131. This is a non-specific marker. She stated
that “some degree of lymphoid hyperplasia is accepted in SIDS, but it could be that when there’s
enough lymphoid hyperplasia, it’s actually a subset that is caused by an immunological response.”
Tr. 177; see also Exhibit 31 at 3. Dr. Waters acknowledged that lymphoid hyperplasia could be
caused by a viral infection, such as pneumonia. Tr. 139. She opined that lymphoid hyperplasia
could also be caused by the administration of vaccines. Exhibit 31 at 3. She testified that the
lymphoid hyperplasia seen in this case was not very significant, that the finding would be
acceptable within a SIDS diagnosis, and that it was not a sufficiently significant finding to be
diagnostic as a cause of death. Tr. 177-78.

On direct examination, Dr. Waters’s explanation of the type IV hypersensitivity reaction and
its possible relationship to vaccines was rather vague and general. On cross-examination, she was
able to explain it somewhat more clearly. Dr. Waters said that her theory was that E.M.F. had
received the two-month vaccines as scheduled, which primed her system. When E.M.F. received
the second dose of these antigens in the four-month vaccines, E.M.F. had an anamnestic response.
Tr. 147. Dr. Waters explained that E.M.F.’s response to the second set of vaccines seemed stronger
than the response to the first and that an “anamnestic” response “is much, much bigger than the
initial response.” Tr. 128. On redirect, Dr. Waters said that she was persuaded of the likelihood of
an anamnestic response to the second vaccines because the child had an immunological reaction to
the first ones. Tr. 174. Dr. Waters continued that the body produced lymphocytes in response to
the vaccines, which in turn produced lymphokines. Tr. 174. She listed Interleukin 2 and Tumor
Necrosis Factor as lymphokines that have been identified, and explained that she used the term
lymphokines to mean a subset of cytokines that are produced by the immune system while
cytokines can be produced by multiple body systems. Tr. 148-50. She said that there are many
lymphokines and they can wreak havoc in the body. Tr. 148. She suggested that the lymphokines
could cause excessive apoptosis and that death could be caused by a combination of apoptosis and
“other things.” Tr. 154. Dr. Waters did not see evidence of apoptosis on the autopsy slides. She
indicated that apoptosis could occur and not be visible on the slides. Tr. 151. Ultimately, on
questioning by respondent’s counsel and the Court, Dr. Waters testified that there are a number of
theories about how SIDS occurs, but that it was not clear how hypersensitivity would cause death.
Tr. 160.

Dr. Waters did not file any medical literature in support of the notion that a vaccine-caused
type IV hypersensitivity reaction could cause a death classified as SIDS, or initially discuss how
long it would take lymphoid hyperplasia to form. In her post-hearing brief, she sought to rebut Dr.
Vargas’s contention that hypersensitivity type IV is not a recognized disease, by referencing the
eighth edition of a well-known pathology textbook.18 See Petitioners’ Post-Hearing Brief,
Addendum A at 2. Petitioners did not file this reference. The ninth and current edition of that
textbook does describe four categories of hypersensitivity reaction and does describe a type IV

18
Citing V. Kumar et al., Robbins and Cotran: Pathologic Basis of Disease) at 205-08 (8th ed. 2010).

14
delayed reaction as being one that does not occur immediately, such as a Type I or anaphylactic
reaction would, and that it is a T-cell-mediated response.19 The textbook provides that subsequent
exposure to an antigen results in the secretion of cytokines. Kumar et al. at 208-11. IFN-γ activates
macrophages to produce substances that cause tissue damage and promote fibrosis. IFN-γ also
produces IL-17 and other cytokines that recruit leukocytes thus promoting inflammation. The
textbook also provides that the classical T-cell-mediated inflammatory reaction is a delayed type
hypersensitivity and that CD8+ cytotoxic T lymphocytes specific for an antigen recognize cells
expressing the target antigen and kill these cells. Id. at 211.

Dr. Waters indicated that the lymphoid hyperplasia could be evidence of a hypersensitivity
reaction, but she said that signs and symptoms of a delayed hypersensitivity response are not well
explained. Tr. 158. She also acknowledged that the autopsy finding of lymphoid hyperplasia could
have been residual of the pneumonia E.M.F. had at the end of November, although she thought that
it probably would have cleared by the date of death based on her experience as to how long it takes
to recover from pneumonia. Tr. 139. She criticized Dr. Vargas’s explanation of this issue (set forth
below) but she did not recall if there were “mature” germinal centers seen on the slides, as Dr.
Vargas testified, and she did not research whether “mature” germinal centers could form in less than
the eight-to-twenty-one days suggested by Dr. Vargas and the exhibit she produced to support that
opinion. Tr. 142.

Dr. Waters did not discuss the symptomatology associated with lymphoid hyperplasia,
though she did say that most pathologists do not consider lymphoid hyperplasia to be a cause of
death. Petitioners’ Post-Hearing Brief, Addendum A at 1. She did not consider it a cause of death
in this case. Tr. 178. She argued that epidemiological studies of SIDS deaths were not properly
controlled and compared vaccinated to not-vaccinated populations which likely skewed the results,
a deficiency which has been noted in the literature regarding some of these studies.

2. Respondent’s Expert Dr. Sara Vargas

Dr. Sara Vargas is board-certified in anatomic and clinical pathology and pediatric
pathology. Tr. 181. She received her bachelor’s degree from Harvard University in 1988, and her
medical degree from the University of Vermont in 1994. Tr. 180; Exhibit B at 2. She then
completed a residency in anatomic and clinical pathology at Brigham and Women’s Hospital in
Boston, Massachusetts. Tr. 180. Subsequently, she completed a fellowship in pediatric pathology
at the Children’s Hospital in Boston, Massachusetts. Tr. 180. Dr. Vargas now works as a staff
pathologist at the Boston Children’s Hospital and Brigham and Women’s Hospital. Exhibit B at 2.
She does a combination of surgical pathology and autopsy pathology at Brigham and Women’s.
She is also an associate professor at Harvard University. Id. at 2. Dr. Vargas did a fellowship
specifically in lung pathology at Brigham and Women’s Hospital. Tr. 181. She also works with the
SIDS research team at the hospital, which is led by Dr. Hannah Kinney, who is a neuropathologist
and who relies on lung pathologists such as Dr. Vargas to interpret lung pathology slides. Tr. 182.
Dr. Vargas testified that she reviews patient pathology slides and reviews cases one-on-one with
pediatric pathology fellows. Tr. 182-83. She performs one or two autopsies each week, primarily
on children, and also consults on autopsies that involve difficult lung pathology. Tr. 181. I
admitted Dr. Vargas as an expert in clinical, anatomic, and pediatric pathology. Tr. 186.

19
V. Kumar et al., Robbins and Cotran: Pathologic Basis of Disease (9th ed. 2014).

15
 Dr. Vargas endorsed the Triple Risk Model of SIDS and agreed that the underlying
mechanism is not fully understood. Exhibit A at 5-620; Tr. 187. She stated that some deaths
categorized as SIDS actually could be due to lung disease, but “[t]here are no specific guidelines for
precisely how much or which type of lung inflammation precludes a diagnosis of SIDS.” Exhibit A
at 6.21 She noted that Byard discusses “focal aggregates of submucosal inflammatory cells . . .
within the upper airways, extending on occasion to the alveolar septa” and “focal aggregates of
incidental, interstitial chronic inflammatory cells.”22 In what seemed to be a semantic debate with
little relevance to the question of whether the vaccines could cause a hypersensitivity reaction
resulting in death, Dr. Vargas and Dr. Waters debated whether the death should properly be called
SIDS as the medical examiner did, or whether it is more properly called SUDI (Sudden
Unexplained Death in Infancy), which would allow for the recognition of the lymphoid hyperplasia
present in this case. In her final rebuttal report, Dr. Vargas emphasized that she did not think that
the degree of lymphoid hyperplasia in the lungs of E.M.F. was adequate to cause death. Exhibit R
at 1. She reiterated her opinion: “Since it is not clear that the degree of lung disease was adequately
severe to cause death, the cause of death is best left undetermined, in other words, sudden
unexpected death in infancy in the presence of pulmonary interstitial lymphoid hyperplasia. SIDS
is the main consideration in the differential diagnosis, but its definitive diagnosis is precluded
because of semantic variation over whether the degree of pulmonary lymphoid hyperplasia seen
herein is permitted within the case definition of SIDS.” Id. at 1-2. In short, Dr. Waters and Dr.
Vargas agreed that it was unlikely that the lymphoid hyperplasia seen on the autopsy slides of this
child was sufficient, by itself, to cause death.

Dr. Vargas brought to bear her considerable background and qualification in the field of
pediatric lung pathology in explaining the findings on the autopsy slides in this case. She said that
on microscopic examination, there was an accumulation of lymphocytes in the lung that was more
than normal and that had been present for some time. She explained when lymphocytes aggregate,
they eventually start to form almost a miniature lymph node. They start to form germinal centers
and follicles when there is persistent lymphoid inflammation. Tr. 188. She further explained that a
germinal center is a cluster of lymphocytes with a specific architecture. The lymphocytes make
follicles and the germinal center is the inside part of that follicle. Tr. 189. She said that in this case
the lymphoid hyperplasia that was present was potentially the cause of the lungs weighing twice the
normal weight, and that the weight of lungs in the presence of lymphoid hyperplasia could help to
determine that the lymphoid hyperplasia was substantial. Tr. 189.

Dr. Vargas testified that the fact that E.M.F. had pneumonia diagnosed by x-ray on
November 26, 2007, fits very well with the time course for what was seen at autopsy, which is a
well-developed lymphoid infiltrate with follicle formation six weeks after the chest x-ray. Tr. 190-
91. Critical to the issue in this case, Dr. Vargas testified that lymphoid hyperplasia develops slowly
and that what she saw on the slides was a substantial infiltrate with follicle formation, so that she
was very confident that the lymphoid hyperplasia was older than four days. Tr. 197. She said that
the lymphoid follicle distribution was “bronchocentric,” or surrounding the airways in the lungs,
which would be consistent with a viral pneumonia. Tr. 199.

20
Citing Exhibit G, H.F. Krous et al., SIDS and Unclassified Sudden Infant Deaths: A Definitional and Diagnostic
Approach, 114 Pediatrics 236 (2004); Exhibit C, Roger W. Byard, Sudden Death in the Young (3rd ed. 2010) at 576-77.
21
A specific diagnosis - for example, a lung infection or pneumonia - as a cause of death would take the death out of the
category of SIDS, which is limited to those deaths that are unexplained after complete autopsy and investigation.
22
Exhibit C at 576-77.

16
 Dr. Vargas disagreed with Dr. Waters’s opinion that vaccines may cause deaths categorized
as SIDS. Dr. Vargas opined that there was no literature showing that vaccinations are associated
with a higher incidence of SIDS or suggesting that vaccinations cause SIDS. Tr. 200. Dr. Vargas
stated that the IOM found that “the evidence favors rejection of a causal relationship between some
vaccines and SIDS; and that the evidence is inadequate to accept or reject a causal relationship
between other vaccines and SIDS.” Exhibit O at 3.23 Therefore, she said that there is no evidence
at this time, even if the IOM did recommend future research on the issue.

Dr. Vargas did not know whether any study had examined the relationship between SIDS
and the specific combination of DTaP, pneumococcal, haemophilus b, influenza, inactivated polio
virus, and rotavirus vaccines. Tr. 232. She said she did not always pay attention to which vaccines
were included in each study she reviewed. Tr. 232.

Dr. Vargas discussed the 1987 article by Walker filed by petitioners.24 She opined that
Walker’s most significant finding was that the SIDS mortality rate was lower in vaccinated children
than in non-vaccinated children. Exhibit O at 3.25 Dr. Vargas believed the Walker article “supports
a lack of association between vaccination and sudden death.” Tr. 238. But she also argued that it
was “probably not well-controlled” and did not rule out the other possible SIDS risk factors in the
non-vaccinated group. Tr. 238.

Dr. Vargas also questioned Walker’s finding that the SIDS mortality rate was higher in the
first three days following vaccination as compared to later time periods. Tr. 233. She opined that
the Walker study – published in 1987 – was not properly controlled and was not guided by the
stringent epidemiological methods that have subsequently been adopted. Tr. 233. She also opined
that Walker said the study could be “reproduced easily by any number of people,” but in the past
thirty years, no one has done so. Tr. 234.

Dr. Vargas did not address Maturri’s finding of a higher incidence of deaths in the seven
days following a hexavalent vaccination, the authors’ hypothesis that “vaccine components could
have a lethal outcome in vulnerable babies,” or their recommendations for further studies.26 Exhibit
O at 4. Dr. Vargas opined only that Maturri had no proof of a causal relationship between
vaccinations and SIDS. Exhibit O at 4.

Dr. Vargas alleged that Dr. Waters “misrepresent[ed]” Byard’s discussion of vaccinations
and sudden death in the young. Exhibit O at 2. Specifically, Dr. Waters filed one paragraph from
one page of the book, which summarized several studies about vaccination and SIDS. Exhibit 33 at
2. Dr. Waters then said these studies were poorly designed and not appropriate to determine if a
subset of SIDS cases are related to vaccinations. Exhibit 31 at 4. In response, Dr. Vargas filed two
23
Citing Exhibit 28 at 1; see also Exhibit E, Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality
581-82. (K. Stratton et al., eds. 2003)
24
Exhibit 19, A. Walker et al., Diphtheria-Tetanus-Pertussis Immunization and Sudden Infant Death Syndrome, 77
American Journal of Public Health 945 (1987).
25
Dr. Vargas’s representation of the article was in contrast to the author’s statement that the “major finding” from the
study “is an apparent 7.3 fold elevation in the risk for SIDS in the first four days following immunization with DTP in
the first year of life.” Id. at 947.
26
Exhibit 42, L. Maturri et al., Sudden Infant Deaths Following Hexavalent Vaccination: A Neuropathologic Study, 21
Current Medicinal Chemistry 941 (2014).

17
full pages from the Byard text, which included the entire discussion of SIDS. Exhibit P at 2.27 On
these pages, Byard devotes another four paragraphs to the topic of vaccinations and sudden death
and concludes: “Thus, it has been demonstrated convincingly in many studies from a number of
countries that immunization is not causally related to SIDS.” Exhibit P at 2. Dr. Vargas that Dr.
Waters’s other filings did not support a causal relationship between vaccinations and SIDS. Exhibit
O at 3.28 As noted above, the Byard article was a brief summary of multiple proffered theories of
SIDS causation and not a scientific study.

Dr. Vargas stated that the normal immune response to vaccinations can include fever. Tr.
203. She did not address Dr. Waters’s first theory that vaccine-induced fever may act as an
exogenous stressor under the Triple Risk Model.

Dr. Vargas rejected Dr. Waters’s second theory, that vaccines could cause a type IV
hypersensitivity response, as being vague and overly simplistic. Dr. Vargas stated that two
researchers in the 1960s outlined “four types of hypersensitivity based on the four types of normal
immunity in the body.” Tr. 201. However, subsequent research has demonstrated that each disease
or disorder is complex and involves several types of hypersensitivity. Tr. 201. Therefore, it is not
accurate to describe anything as purely a “type IV response.” Tr. 201; see also Exhibit R at 2.

Dr. Vargas agreed with Dr. Waters’s basic explanation of lymphoid hyperplasia, but she
went into more detail about the timing. Dr. Vargas opined that it takes longer than a few days to
form lymphoid hyperplasia. Exhibit A at 6. Dr. Vargas stated: “While it is true that lymphocytes
may migrate to sites of injury/ inflammation within a time period as short as 3-4 days, the amount of
time that it would take them to become organized into well-developed lymphoid tissue with mature
follicles demonstrating germinal centers, as were present in this case, is significantly longer.”
Exhibit O at 2.

Dr. Vargas admitted that it was difficult to find data on germinal center formation in
humans. Tr. 199. She filed an article by Victora, which discussed germinal center formation in
mice.29 Victora wrote that the germinal center reaction “can vary greatly, depending on the
experimental system, from a few weeks to several months or longer.” Exhibit R at 2. However, in
mouse models, the typical kinetics are: an antigen encounter (days 0-1); antigen-activated B and T
cells meeting at the border of the T cell zone and B cell follicle (days 2-4); early germinal center:
expansion (days 5-7); mature germinal center: selection (days 8-21); and dissolution (days >21).
Exhibit R at 1-2. Dr. Vargas referenced the illustration below to demonstrate that mature germinal
centers would take eight to twenty-one days to form and thus would have been forming in response
to an antigen prior to the receipt of the second set of vaccines that were administered four days prior
to death:

27
Citing Exhibit 33, Roger W. Byard, Sudden Death in the Young (3rd ed. 2010) at 590.
28
Exhibit 34, American Academy of Pediatrics – Task Force on Sudden Infant Death Syndrome, SIDS and Other Sleep
Related Infant Deaths: Expansion of Recommendations for a Safe Infant Sleeping Environment, 128 Pediatrics 1030
(2011).
29
Exhibit R, G.D. Victora, SnapShot: The Germinal Center Reaction, 159 Cell 700 (2014).

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Exhibit R at 1. This exhibit was developed through a study of mice. Dr. Vargas opined that the
timeframe for germinal center formation in humans would be “at least somewhat analogous.” Tr.
214.

Dr. Vargas also discussed her background and clinical experience with lymphoid
hyperplasia in children. She opined that viral infection is the most common cause of lymphoid
hyperplasia among children in E.M.F.’s age group. Tr. 192. When a child has a viral infection, he
or she will have elevated white blood cells, including lymphocytes. Tr. 237. It takes at least seven
to ten days for these lymphocytes to accumulate to the level that is observable on an x-ray, and she
believed that these infiltrates were likely present seven to ten days prior to the E.M.F.’s x-ray and
diagnosis of pneumonia on November 26, 2007, well before the second set of vaccines were
administered. Tr. 222. She said that the medical examiner did not describe from what parts of the
lungs the tissue slides were made, and therefore she could not determine if the lymphoid
hyperplasia was in the same location as the infiltrates seen on the earlier x-ray. Tr. 221.

Dr. Vargas opined that a child with lymphoid hyperplasia can show symptoms, such as
“increased work of breathing, grunting, flaring of the nostrils, [and] wheezing.” Tr. 223. However,
the child may also be asymptomatic. Tr. 223.

If a child is symptomatic, the child is sent for a chest x-ray, and it detects lymphoid
hyperplasia, the treating physician’s first course of action will be to prescribe antibiotics or some
other treatment. Tr. 195. If some time passes (at least six weeks) and the child is still symptomatic,
the physician may order new radiology. Tr. 195-96. If lymphoid hyperplasia is still shown, the
treating physician will ask Dr. Vargas to do a lung biopsy. Tr. 196. Therefore, she only ever
biopsies lungs that have at least six weeks of symptomatology, and these tend to show mature
19
germinal centers. Dr. Vargas acknowledged that she might be “biased” due to this clinical
experience. However, she maintained that germinal centers take more than a few days to develop in
the human body.30

Dr. Vargas was asked how long germinal centers can exist before dissolving. Tr. 219. The
Victora source suggests that “dissolution” occurs in “days > 21.” Exhibit R at 700. Dr. Vargas
responded that new germinal centers might be “forming and breaking down all the time,” in which
case, they would be “persistent.” Tr. 219. Therefore, lymphoid hyperplasia with germinal centers
would take more than a few days to form, but could persist for months.

3. Althen Prong One: Evaluation of the Evidence

As stated above, under Althen prong one, petitioners must set forth a reliable medical theory
explaining how the vaccines at issue could have caused the alleged injury. Althen, 418 F.3d at
1278. While scientific certainty is not required to establish causation under the Vaccine Act, the
theory must be supported by a “sound and reliable” medical or scientific explanation. Althen, 418
F.3d at 1279; Knudsen, 35 F.3d at 548.

Here, petitioners, through their expert Dr. Waters, have failed to establish Althen prong one.
Dr. Waters presented three different theories, with varying levels of detail. First, she proposed that
E.M.F.’s fever may have acted as an exogenous stressor under the Triple Risk Model of SIDS. But
she did not thoroughly develop this theory.

Second, Dr. Waters suggested that E.M.F.’s apparent reaction after both sets of vaccinations
could represent a challenge/re-challenge phenomenon. Dr. Waters pointed to an anamnestic
response to the second set of vaccines, which she indicated would be much stronger than the
reaction to the first. It is true that E.M.F. suffered fever and various other symptoms after both her
two-month and four-month vaccinations, but her father testified that she seemed to be fine on the
first day that she was taken to the new babysitter, the day on which she died. The challenge/re-
challenge theory generally requires a showing of an enhanced reaction to a second dose of a vaccine
that is more pronounced than the initial reaction. The possible reaction to the second set of vaccines
included fever and congestion over the weekend. Ms. Forrest described E.M.F.’s reaction to the
second vaccinations as similar but more intense than her reaction to the first. Tr. 26. Ms. Forrest
said that after E.M.F. received the second vaccinations, she began crying, developed a fever, and
did not sleep that afternoon or that night. Tr. 26-27. Mr. and Ms. Forrest alternated doses of Motrin
and Tylenol and gave her a cool bath, but she stayed up all night. Tr. 67. At the hearing, Mr.
Forrest stated that E.M.F.’s fever was between 103° and 105° Fahrenheit that night. Tr. 67, 85.
While Mr. Forrest and Ms. Forrest did report a high fever, crying, and sleeplessness through the
first night, there was no hospitalization or medical consultation after the second vaccines. More
importantly, E.M.F. appeared to be better by the third day post-vaccination and in good health on

30
Dr. Waters’s two pre-hearing reports did not address germinal centers. At the hearing, Dr. Waters stated that she
“hadn’t seen the full study” by Victora studying germinal center formation in mice and she “wondered about the
methodology and how well that is established.” Tr. 141. Dr. Waters did not have any citations or literature to indicate
that mature germinal centers could form more quickly in humans. Tr. 142.

Petitioner also filed a post-hearing addendum from Dr. Waters. With regards to the timing of germinal center
formation, Dr. Waters notes again that Dr. Vargas may be biased because she examines only lungs with “persistent”
lymphoid hyperplasia; Dr. Vargas’s only support was the Victora article involving mice; and Dr. Vargas did not have a
source for timing in humans. Post-Hearing Brief, Addendum A at 1.

20
the fourth day, when she was taken to the babysitter. E.M.F. appeared to have passed the
symptomatic phase of that reaction by the day she died, as Mr. Forrest testified that the symptoms
began tapering off the day before and that she did not seem sick on the morning when he took her to
the babysitter. Tr. 72. Dr. Waters did not explain how the re-challenge mechanism could cause
death after the reactive symptomatology had passed.

Additionally, about 21 days after the first vaccinations, E.M.F. was taken to Slidell
Memorial Hospital with complaints of a one-day history of high fever and congestion. Exhibit 6 at
214-215. Upon examination at that time, she was noted to have fever, rhinorrhea, cough, nausea,
and vomiting, and she was diagnosed with acute febrile illness. Id. at 215. Later that day, E.M.F.
was transferred to West Jefferson Medical Center with an admitting diagnosis of fever, vomiting,
and possibly sepsis. Exhibit 2 at 77, 81. E.M.F. remained hospitalized for five days, until
November 24, 2007. On November 26, 2007, she was taken to her pediatrician with a fever and
vomiting for the past two days. She was diagnosed with fever and on chest x-ray with pneumonia.
Exhibit 3 at 198. It appears that the late November symptoms with a diagnosis of pneumonia were
more severe than those that occurred in close proximity to both vaccinations, and in Dr. Vargas’s
opinion the pneumonia was the more likely source of the lymphoid hyperplasia seen on autopsy
than were the vaccines administered four days before death.

Dr. Waters’s third theory, and her primary focus, was that E.M.F. experienced a type IV
delayed hypersensitivity reaction to the four-month vaccinations. She seemed to base this theory on
the occurrence of similar symptoms after both sets of vaccinations. However, though she stressed
the T-cell nature of the type IV response, she acknowledged on cross-examination that the
symptoms immediately after the vaccination, such as fever, were probably a reaction to the
“humoral sensitivity which is the antibody sensitivity.” Tr. 154. Dr. Waters did not explain why
she thought that the vaccines would cause a T-cell response on the heels of a humoral or B-cell
response, nor how the initial post-vaccination symptoms which she said were probably a humoral
response would be a likely precursor of the T-cell delayed hypersensitivity response. She then
admitted that the lymphoid hyperplasia, which she did not find sufficiently significant to mention in
her first report but which she later addressed after it was introduced by Dr. Vargas, was the sole
piece of evidence in favor of a type IV delayed hypersensitivity response other than the time course.
Tr. 14.

Dr. Waters proposed this theory of a hypersensitivity response, but did not supply significant
literature to support it. She did produce one book chapter by Drs. Folkerth and Kinney which offers
a summary description of SIDS.31 However, that reference does not mention a hypersensitivity
reaction, nor do Dr. Kinney’s other more detailed articles on the subject of SIDS causation. While
various hypotheses about SIDS causation exist without specific proof of a single cause, this
hypothesis seems particularly weak both in terms of its mechanism of action and in terms of its
consistency with the underlying facts of this case. I have not found this theory to be persuasive or
to be a likely explanation of the cause of this child’s death.

31
Exhibit 17, R. Folkerth & H.C. Kinney, Disorders of the Perinatal Period: Sudden Infant Death Syndrome, in
Greenfield’s Neuropathology (8th ed. 2008) at 306.

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 B. Althen Prong Two: Logical Sequence of Cause and Effect

The second Althen prong requires preponderant evidence of a “logical sequence of cause and
effect showing that the vaccination was the reason for the injury.” Althen, 418 F.3d at 1278. This
prong is sometimes referred to as the “did it cause” test; i.e., in this particular case, did the
vaccine(s) cause the alleged injury. Broekelschen, 618 F.3d at 1345 (“Because causation is relative
to the injury, a petitioner must provide a reputable medical or scientific explanation that pertains
specifically to the petitioner’s case . . . .”); Pafford, 451 F.3d at 3. Temporal association alone is
not evidence of causation. See Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148
(Fed. Cir. 1992).

Even if I were to accept the theory of a delayed hypersensitivity reaction having occurred in
response to the second set of vaccines, based upon the timing of E.M.F.’s unfortunate death and her
symptoms after both sets of vaccinations, Dr. Waters completely failed to logically explain how this
reaction could cause the child’s death. She just said, “There have been a lot of different theories
about just how death occurs in this kind of situation. In a sudden death some of them have to do
with neurological theories and there’s a wide range of actual mechanisms that would be the final
pathway.” Tr. 160. Dr. Waters was not aware of any literature that linked pulmonary lymphoid
hyperplasia to vaccinations. Tr. 161. I asked her specifically whether she could think of a logical
explanation for how the amount of lymphoid hyperplasia that was seen on the autopsy would cause
the baby to go into cardiac arrest or to stop breathing or anything that would cause death. She
answered that the final mechanism is one of those mechanisms that is not explained, that there could
be an arrhythmia or there could be a neurological kind of pathway to the death. I asked her further
whether she could think of anything that would help us to understand how the lymphoid hyperplasia
could activate one of those pathways. She said that during a delayed hypersensitivity reaction,
lymphoid hyperplasia is going to be happening all around the body and it could set up an arrhythmia
or another more specific final pathway. Tr. 173. Dr. Waters then admitted that the minimal
changes that she saw on the slide were not significant and that it seems that there were a few
lymphocytes here and there but she was not quite positive on that. Tr. 175. In short, Dr. Waters
had no coherent explanation for how the immune response to the vaccines cause a progression from
an initial humoral response to a delayed T-cell response to a sudden unexplained death.

What is more, Dr. Waters did not address the issue of E.M.F. being found in the prone
position. While the babysitter stated that she put E.M.F. down for her nap on her back, when the
babysitter found her later, E.M.F. was lying prone and she had vomited. The prone sleep position is
probably the most recognized exogenous risk stressor under the Triple Risk Model of SIDS, and it
gave rise to the Back-to-Sleep campaign, as noted by Dr. Vargas. Tr. 208. The prone position is
also not proved as a cause of death in this case, but it at least provides a more plausible explanation
than Dr. Waters’s vague hypersensitivity theory.

C. Althen Prong Three: Proximate Temporal Relationship

Under the third Althen prong, petitioners must provide “preponderant proof that the onset of
symptoms occurred within a timeframe for which, given the understanding of the disorder’s
etiology, it is medically acceptable to infer causation-in-fact.” De Bazan, 539 F.3d at 1352. The
acceptable temporal association will vary according to the particular medical theory advanced in the
case. See Pafford, 451 F.3d at 1358. A temporal relationship between a vaccine and an injury,
standing alone, does not constitute preponderant evidence of vaccine causation. See, e.g., Veryzer v.
Sec’y of Health & Human Servs., 100 Fed. Cl. 344, 356 (2001) (explaining that “a temporal
22
relationship alone will not demonstrate the requisite causal link and that petitioner must posit a
medical theory causally connecting vaccine and injury”).

In consideration of the testimony, I have concluded that Dr. Vargas’s experience with and
training in pediatric lung pathology should be given more weight in terms of the disagreement as to
timing of the development of the lymphoid hyperplasia with mature germinal centers. Dr. Vargas
substantiated her contention as to the length of time required for formation of mature germinal
centers from her considerable experience in pediatric lung pathology and with the literature source
referenced above. Dr. Waters does not have comparable experience with complicated lung
pathology and she said that she had not researched the literature on the timing of the development of
germinal centers. I have concluded that it is most likely that the lymphoid hyperplasia was present
well before the vaccines were administered, as Dr. Vargas testified, and was likely a residual of the
pneumonia the child suffered in late November.

Dr. Waters is certainly correct that E.M.F.’s tragic death occurred within a relatively short
time period after the administration of the second set of vaccines – four days later. However, the
significance of the temporal relationship must be tied to a reasonable theory of how the vaccines
could have caused the death and then logically how they did cause the death. A temporal
relationship by itself is not sufficient to establish causation, even though it may reinforce a
reasonable theory and logical explanation. In this case, neither a persuasive and reliable theory nor
a logical explanation of cause and effect were provided leaving the temporal relationship standing
alone. Accordingly, petitioners have failed to prove prong three of the Althen test.

III. CONCLUSION

I certainly sympathize with the parents in this case who have lost their child, but the Vaccine
Act requires that I find that it was more likely than not that the vaccines caused their child’s death in
order to find them eligible for compensation. Based on the evidence presented in this case, I cannot
conclude that petitioners have met this evidentiary burden. Therefore, their claim must be
dismissed.

In the absence of a timely-filed motion for review filed pursuant to Vaccine Rule 23, the
Clerk of the Court SHALL ENTER JUDGMENT consistent with this decision.

IT IS SO ORDERED.

s/Thomas L. Gowen
Thomas L. Gowen
Special Master

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