# Palattao v. Secretary of Health and Human Services

> United States Court of Federal Claims · March 1, 2019

URL: https://www.frixlaw.com/law-library/cases/4372888

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 1, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran). (cr) Service on parties made
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-591V
(to be published)

*************************
GREG PALATTAO and ANGELA *
PALATTAO, as Parents and Natural *
Guardians of minor, R.P., *
*
Petitioners, * Filed: February 4, 2019
*
v. *
* Decision; Entitlement; Dismissal of
SECRETARY OF HEALTH * Claim; Transverse Myelitis (“TM”);
AND HUMAN SERVICES, * Althen Prong Three; Innate Immune
* System Activation
Respondent. *
*
*************************

Kate Gerayne Westad, Larkin Hoffman, et al., Ltd., Minneapolis, MN, for Petitioners.

Mollie D. Gorney, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION DENYING ENTITLEMENT1

On August 20, 2013, Greg and Angela Palattao filed a petition on behalf of their minor
child, R.P., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program”).2 Petitioners allege that R.P. suffered from transverse myelitis (“TM”) as a
result of receiving his third round of childhood vaccinations (including diphtheria-tetanus-acellular
pertussis (“DTaP”), haemophilus influenza B (“Hib”), inactivate polio virus (“IPV”),
pneumococcal conjugate (“PCV”), and his first dose of the influenza vaccine) on January 7, 2013.

1
This Decision will be posted on the United States Court of Federal Claims website, and in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access
to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request 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).
Otherwise, the whole Decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012))
[hereinafter “Vaccine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act.

1
Petition (“Pet.”) (ECF No. 1). An entitlement hearing was held on May 17-18, 2018, followed by
a half-day rebuttal hearing on August 20, 2018. The parties thereafter filed post-hearing briefs on
October 29, 2018. ECF Nos. 90-91.

After considering the record as a whole and the testimony at hearing, I find that Petitioners
have failed to carry their burden establishing causation, and therefore their request for
compensation under the Vaccine Program must be denied. While Petitioners made a number of
persuasive points regarding the role of certain immune system components in causing TM, there
is insufficient reliable evidence to support the conclusion that the vaccines he received are
themselves reasonable explanations for it, or (even more importantly) that they could cause TM in
the short timeframe in which his symptoms first presented.

I. Factual Background

R.P.’s Birth and Early Medical History

R.P. was born to the Palattaos on July 6, 2012, at 39 3/7 weeks gestation, via spontaneous
vaginal delivery after an uncomplicated pregnancy. Ex. 8 at 1. Mrs. Palattao’s medical records
reveal, however, that she experienced recurrent urinary tract infections, material renal calculi, and
depression during the pregnancy, for which she was prescribed antibiotics and Prozac. See, e.g.,
Ex. 3 at 1-3; Ex. 8 at 1. R.P.’s Apgar scores at birth were 8 and 9 at one minute and five minutes.
Ex. 8 at 2. Apart from a reported concern for respiratory distress (which appeared to resolve on its
own), R.P.’s newborn exam was normal. Id. at 3-8.

According to his treating pediatrician, Dr. Lian Tio of Health Partners in Minneapolis,
Minnesota, R.P. was essentially healthy and developing normally during his first two months of
life. Ex. 8 at 15-30. The Palattaos voiced no concerns about his behavior or development at birth,
and his first well-baby examination was normal (apart from newborn acne/jaundice on the face).
Id. at 16. At his two-month well-baby visit, R.P. was noted to be feeding every 2-3 hours and
stooling 2-5 times per day. Id. at 19. His neurologic exam was normal and he was assessed as an
overall “healthy infant.” Id. at 20.

R.P. returned to see Dr. Tio on September 10, 2012, for his two-month well-baby
examination. Ex. 8 at 19. He received his first round of childhood vaccinations (including DTaP,
Hib, PCV, IPV, and rotavirus), along with a second Hep B vaccination. Id. at 24-45. No adverse
effects were reported. Id. Thereafter, R.P. presented for his fourth-month well-baby examination
on November 12, 2012, and received a second round of childhood vaccinations, along with a third
Hep B vaccination. Id. at 26-27. Again, no adverse events were noted. Id.

2
On December 21, 2012, R.P. (now five months old) and his father returned to see Dr. Tio,
reporting that R.P. had been suffering from cold and cough symptoms for three weeks. Ex. 8 at 31.
R.P. was afebrile, but had been crying that week for “no reason.” Id. R.P.’s father explained that
the family planned to travel out of town for the Christmas holiday. Id. Dr. Tio assessed R.P. with
an “occasional deep sounding cough,” but on examination determined that his lungs were clear
and that he was alert. Id. The assessment also noted “wax on both ear canal[s]” that could be
removed with a curette. Id. Dr. Tio diagnosed R.P. with a “prolonged” upper respiratory infection
and “right serous otitis media,” and prescribed Amoxicillin. Id. He recommended that R.P. return
to the clinic in six months for a follow-up. Id.

January 2017 Vaccinations and Subsequent Medical Problems

On the morning of January 7, 2013 (seventeen days later), R.P. presented to Dr. Tio for his
six-month well-baby visit. His December 2012 illnesses appeared to have resolved by this point in
time. Ex. 8 at 33-35. Exam notes indicated that R.P. was able to roll from his back to his stomach,
and could transfer objects from one hand to the other. Id. R.P.’s physical and developmental exam
were normal, and the Palattaos voiced no concerns. Id. Exam notes make no mention of any further
ear complaints or URI symptoms. Id. R.P. received his third round of childhood vaccinations
(including DTaP, Hib, PCV, and IPV), as well his first seasonal influenza vaccination. Id. at 24-
25, 31.

Mrs. Palattao called Dr. Tio’s office on January 8, 2013 (one day post-vaccination) around
5:30 PM to report that R.P. had a fever of 101.6 degrees. Ex. 8 at 39. Mrs. Palattao also reported
that she had picked him up from daycare and noticed he was experiencing dyspnea, limpness, weak
crying, and weakness. Id.; see also Ex. 8 at 40 (“pt’s mother states that since 17:00 pt is unable to
sit up by himself or hold up his head, he has labored breathing”), 40 (“when he cries he does not
make any noise, and has shortness of breath”). The nurse advised R.P.’s mother to take him to the
emergency room immediately. Id. The telephone note also indicated that R.P. had fed somewhat
less than usual (10 ounces instead of 16) that day, and that he was experiencing URI symptoms
(i.e. rapid respirations) and irritability. Id. at 39.

That evening the Palattaos took R.P. to Children’s Hospitals and Clinics of Minnesota
(“Minneapolis Children’s”). Ex. 8 at 41; Ex. 5 at 1-2. Upon admission, he was examined by ER
physician Dr. Patrick Carolan. Ex. 5 at 1. The chief complaint was noted to be fever (starting
during the day at daycare) and “decreased activity.” Id. Dr. Carolan noted that R.P. had received a
round of childhood vaccinations the previous day, and had also recently completed a ten-day
course of oral antibiotics for “fluid behind the eardrums” and a URI. Id. The ER history note further
indicated that R.P. had fed well during the morning hours on January 8th, but was running fevers,
and by mid-afternoon “seemed much less active overall,” along with noticeable behavioral
changes. Id. In addition, the record states that “[h]e has had no urinary output per day care report

3
relayed to mother.” Id. This record thus seems to suggest that the Palattaos were informed by the
daycare about R.P.’s progression that day.

Upon exam, Dr. Carolan noted that R.P. was slightly congested with a temperature of 98
degrees. Ex. 5 at 1. He appeared to have normal movement in his extremities. Id. Respirations
appeared unlabored. Id. at 2. His neurological exam revealed “normal tone and power.” Id. A chest
x-ray also revealed normal imaging, and R.P.’s breathing improved over the course of a few hours.
Id. Following a well-feeding, Mrs. Palattao reported that R.P. was interacting and breathing more
normally (as opposed to earlier that evening). Id. He was released home and the Palattaos were
encouraged to monitor R.P. for infection and follow up if his symptoms progressed. Id. Upon
discharge, Dr. Carolan opined that R.P.’s fever and “transiently altered behavior” were likely both
related to the vaccines he had received the day before. Id.

R.P.’s symptoms worsened over the next 24 hours. Ex. 5 at 10-11. His parents therefore
brought him back to the ER the next day, on January 9, 2013. Id. at 10. Mrs. Palattao reported to
Dr. Micah Niermann, an internist, that R.P. had been well prior to receiving his six-month-old
vaccinations on January 7, 2013 (at approximately 8:00 AM). Id. She estimated that around 3:00
AM on the following Tuesday (January 8, 2013), however, R.P. became more fussy and irritable,
and did not feed well. Id. It also appears Mrs. Palattao reported a fever with onset prior to his
arrival at day care, although that is inconsistent from the ER record from the immediately prior
date. Id. (“did have temperature up to 101.5 that morning, but was still doing well and went to day
care”). She otherwise noted that R.P. had appeared well enough when she dropped him off at
daycare, but appeared to have “lower tone” and weakness when she picked him up around 5:00
PM that evening, which prompted the initial ER visit. Id. at 10. Mrs. Palattao also reported that
since the ER visit the prior evening, R.P. had continued to weaken. Id. He had an episode during
the morning hours where he “gasped for air” and “seemed to stop breathing for 5 to 10 seconds
and turned blue around the lips.” Id. Some vomiting followed, and it was noted R.P.’s temperature
was 100.5 (but had normalized as the day progressed). Id.

Upon admission, R.P. was examined by Dr. Niermann. Ex. 5 at 10. Dr. Niermann observed
R.P. to be “floppy in his mother’s arms” with minimal, if any, movement in his extremities. Id. He
was unable to sit on his own and had poor head control. Id. Exam notes revealed low muscle tone
and strength, diminished tendon reflexes, and trouble breathing (“belly breathing”). Id. at 11. Due
to his rapid decline in health, R.P. was admitted and transferred to the pediatric intensive care unit
(“PICU”) for further evaluation. Id. In the PICU, R.P. was evaluated by Dr. John Fugate (an
intensivist). Id. at 13-24. Upon exam, Dr. Fugate similarly noted that R.P. was experiencing
weakness/limpness “significant” difficulty breathing, decreased deep tendon reflexes, and a
distended abdomen. Id. at 14. Differential diagnoses included Guillain-Barré syndrome, botulism,
infection, intracerebral or intraspinal event, possible post-polio syndrome, and myasthenia gravis.

4
Id. at 11, 14-15. Shortly after admission, R.P. was intubated and a central line was placed. Id. at
15.

During his hospitalization, R.P. underwent a comprehensive work-up, including an MRI
of his spinal cord that showed extensive signal abnormalities in his cervical and thoracic cords
(consistent with a diagnosis of TM). Ex. 5 at 17. The MRI was negative for demyelinating disease.
Id. at 16. A lumbar puncture and cerebrospinal fluid (“CSF”) analysis revealed a 173 white blood
cell count (with 87 percent neutrophils and 21 percent lymphocytes), elevated protein at 87, but
unremarkable glucose. Id. at 21-22. Cultures for viruses and bacteria were negative. Traditional
blood tests for inflammation (including sedimentation rate) were similarly negative, though one
such test, the CRP rate, was noted to be “quite low” (at 0.5). Id. at 20.

Thereafter, a specialist in infectious disease, Dr. Tamara Pozos, was consulted on January
10, 2013, to rule out any potential infectious etiologies. Ex. 5 at 18. Dr. Pozos opined, based on
her review of R.P.’s medical history, imaging studies, and lab work at the time, that R.P. likely
had TM “secondary to a viral process that he was able to clear in late December with consequent
immunologic myelitis.” Id. at 23. An infectious disease panel, including bacterial cultures from
R.P.’s blood and CSF, was negative, however. Id. at 24. With regard to R.P.’s recent vaccinations,
Dr. Pozos noted that the “live attenuated” flu vaccine had been associated with TM, though she
disputed that an inactivated flu vaccine of the kind R.P. received3 could trigger such an injury (due
in part to the extremely short interval between vaccination and onset of R.P.’s symptoms). Id.

R.P. was also evaluated by a neurologist, Dr. Abigail Boetticher, during this hospital stay
(on January 10, 2013). Ex. 5 at 25-26. R.P.’s health history recorded during this visit included
references to both his URI in December 2012, as well as his receipt of his six-month vaccinations
(including the flu vaccine) “[one] day before onset.” Id. at 26. Dr. Boetticher reported that R.P.
presented with “rapidly progressive weakness and decreased muscle tone over the past 2 days”
(placing onset on January 8, 2013). Id. at 25. Dr. Boetticher diagnosed R.P. with TM with
accompanying respiratory failure. Id. at 26.

While in the hospital, R.P. was treated with high doses of a corticosteroid for five days but
showed no significant improvement to his paraplegia. Ex. 5 at 37. On January 13-14, 2013, a
second neurologist, Dr. Lawrence Burstein, examined R.P. and assessed him with TM,
recommending that his treatment be adjusted to include IVIG therapy followed by plasmapheresis.
Id. Dr. Burstein opined that possible etiologies for R.P.’s TM remained “[e]ither primary viral or
postinfectious on an autoimmune basis.” Id. Additional lab tests were negative for syphilis, IgG,
HSV-1 IgG, influenza viral A IgG and IgM antibodies, salmonella, shigella, e. coli, and
campylobacter jejune. Ex. 5 at 41; Ex. 8 at 191, 204, 215, 248.

3
See Ex. 8 at 24 (noting R.P. received the Fluzone version of the flu vaccine, lot #u4483ba).

5
A follow-up MRI conducted on January 24, 2013, showed less signal abnormality in R.P.’s
posterior cord. Ex. 5 at 61. During his hospitalization, R.P. required a bronchoscopy for persistent
right lobe atelectasis, as well as a multiple feeding tubes. Ex. 5 at 56; Ex. 8 at 107, 132. He was
extubated on January 29, 2013, and his respiration improved thereafter. Ex. 5 at 67, 91. His ability
to swallow gradually improved, and at the time of discharge on February 6, 2013, R.P. was
drinking five to eight ounces of breast milk per day. Id. at 91. Given his improvement, treaters
planned to remove the feeding tube within a week. Id.

R.P. was thereafter transferred to Gillette Children’s Hospital (“Gillette”) on February 6,
2013, for three days of inpatient physical therapy to improve strength in his trunk and extremities,
as well as his range of motion, mobility, and ability to swallow. Ex. 4 at 1-11. He was ultimately
discharged home on February 9, 2013 (one month following his admittance to the hospital). Id. at
5, 8-9. His final discharge diagnosis was “[t]ransverse [m]yelitis, [s]uspected [vi]ral [e]tiology.”
Id. at 9.

Treatment Following TM Diagnosis

Following his discharge from Gillette, R.P. went back to his pediatrician, Dr. Tio, on
February 11, 2013, for monitoring of his symptoms. Ex. 8 at 243. Dr. Tio noted that R.P. had
regained strength in his upper extremities but was not moving in his lower extremities. Id. The
next day, R.P. returned to Gillette for a follow-up outpatient physical therapy session. Ex. 4 at 36.
The Palattaos reported that R.P. had been steadily improving, with sporadic leg movements and
had attempted to sit up for three to five seconds. Id. It was also noted that his feeding tube had
been removed, and he was gaining weight. Id. R.P. continued to receive physical, occupational,
and pool therapy through April 2013, and showed notably improvement in his upper extremities
during that time. Id. at 43.

Treater Speculation as to Etiology for R.P.’s TM

On March 6, 2013, R.P. presented to a neurologist, Dr. Steven Janousek of Noran
Neurological Clinic in Minneapolis, Minnesota, for treatment relating to his lingering symptoms.
Ex. 9 at 4. Dr. Janousek noted that R.P. had regained some movement in his upper extremities, but
that his prognosis remained unclear. Id. Upon exam, R.P. was noted to have normal deep tendon
reflexes and appropriate head control, but very limited movement in his lower extremities. Id.
Following the appointment, Dr. Janousek referred R.P. to Dr. Ralph Shapiro, of the Midwest
Immunology Clinic, for an immunologic assessment. Id.

At the first visit to the Midwest Immunology Clinic on March 19, 2013, R.P. was evaluated
by Kristin Epland, FNP-C (as Dr. Shapiro did not have an opening for several months). Ex. 6 at 1-
4. The health history recorded during this visit is generally consistent with R.P.’s earlier-in-time

6
records. Id. In short, Mrs. Palattao recounted that R.P. had been prescribed antibiotics in December
2012 (due to family Christmas travels). Id. The URI symptoms he had been experiencing at the
time subsequently resolved, and R.P. was well until around 3:00 AM on January 8, 2013 (the
morning after his vaccinations), when R.P.’s mother found him “whimpering” with a fever around
100 degrees. Id. R.P.’s mother administered Tylenol and took him to daycare later that morning
(as he seemed to have improved). Id. However, by 6:00 PM on the evening of January 8th, R.P.
was reported to be “limp and unable to sit independently or hold his head up.” Id. His temperature
was again elevated to 100 degrees and his breathing appeared labored, so R.P.’s parents took him
to the ER, where he was examined and discharged after a normal chest x-ray. Id. Thereafter, his
condition deteriorated (including poor muscle tone/limpness and weak cry and cough), and R.P.
presented a second time to the ER the following day, after which he was admitted to the intensive
care unit and subsequently assessed with TM. Id. at 1-2.

Upon exam, Nurse Practitioner Epland noted that R.P. had recently completed a second
round of antibiotics for purulent rhinitis since being discharged from the hospital five weeks prior.
Ex. 6 at 2. Based on his health history, she assessed R.P. with TM “temporally related to his
vaccinations.” Id. at 4 (emphasis added). Nurse Practitioner Epland encouraged the Palattaos to
“make contact with the vaccine injury fund as he would likely be a candidate for compensation.”
Id. She otherwise recommended that R.P. start a third round of antibiotics and planned to schedule
an immunity lab panel in three months (given R.P.’s receipt of immune-modifying treatment
during his hospitalization). Id.

R.P. and his parents returned to Midwest Immunology for an appointment with Dr. Shapiro
three months later, on June 23, 2013. Ex. 6 at 5. During the visit, R.P.’s parents reported a health
history consistent with the records discussed above. However, they relayed a slightly different
history with regard to his December 2012 URI. Specifically, R.P.’s parents now stated that the
December URI was “minimal and [R.P.] had a complete recovery within a very brief period of
time.” Id. at 6; but see Ex. 8 at 31 (parents reported in December 2012 that R.P.’s cold/cough
symptoms had been ongoing for three weeks). It was noted that Amoxicillin was prescribed for
the symptoms “because of fluid present behind [R.P.’s] tympanic membranes and he was to travel
for Christmas.” Ex. 6 at 5.

Dr. Shapiro opined that R.P. had “suffered an immune-based attack of his spinal cord
(transverse myelitis) immediately after receiving his third set of routine immunizations,” and that
it was “reasonably certain” the immunizations triggered the response. Ex. 6 at 8. Dr. Shapiro noted
that this opinion was the result of his review of R.P.’s history, testing results, and his own
examination of R.P., although he added that “there were no other significant related events.” Id.
To explain how the vaccine-triggered response had occurred, Dr. Shapiro proposed that R.P. “was
sensitized with his initial [two] immunizations and had a secondary immune reaction to the third
which explain[ed] the immediate nature of his symptoms,” although he added that the “reason for

7
the breach [of] his blood brain barrier [was] uncertain.” Id. Dr. Shapiro recommended withholding
all future immunizations and discussed possible triggers that cause a reoccurrence of symptoms
(including infection, stress, contact dermatitis, or immunization). Id. Additional lab work,
including an immunodeficiency panel, revealed normal results. Id. at 9-10.4

On April 9, 2013, R.P. presented to Dr. Tio for his nine-month well-baby visit. Ex. 8 at
256. Upon exam, R.P. was still unable to move his legs, but otherwise appeared healthy and was
developing normally. Id. at 256-58. There was also some discussion concerning the Vaccine
Program during this visit and the possibility of bringing a Program claim. It was recommended
that R.P. return in four months for his twelve-month-old well visit. Id. at 258. Follow-up MRIs of
R.P.’s spine were conducted on June 23, 2013, and revealed normal imaging compared to the prior
studies recorded during his hospitalization in January. Ex. 9 at 21-22.

On July 20, 2013, R.P. (now twelve months old) presented for a follow-up appointment
with his treating neurologist, Dr. Janousek, at which time Mrs. Palattao requested that he author a
letter concerning his opinions regarding the cause of R.P.’s TM. Ex. 9 at 23. According to Dr.
Janousek, R.P.’s health history revealed that he received vaccinations “shortly before the onset of
his symptoms” and was subsequently diagnosed with TM thereafter. Id. Dr. Janousek’s letter
concluded that “it was more likely than not that [R.P.]’s myelitis and resultant disability was a
consequence of his immunizations.” Id. He relied, however, primarily on the fact that “no other
cause had been determined,” and that immunization-related TM had been documented in the
literature. Id.5

II. Witness and Expert Testimony

A. Angela Palattao

Angela Palattao provided witness affidavits in support of Petitioners’ claim. See Affidavit
of Angela Palattao, dated August 14, 2013, filed as Ex. 13 (ECF No. 4) (“First Aff.”); Affidavit of
Angel Palattao, dated Sept. 7, 2013, filed as Ex. 57 (ECF No. 48-2) (“Second Aff.”). She also
testified in person at the entitlement hearing, and was the only direct fact witness to testify. Tr. at
5-57.

Mrs. Palattao confirmed most of what is reflected in the medical records, specifically
testifying to the fact that R.P. was a healthy baby prior to his vaccinations and that he had
experienced a normal birth, and was healthy and developmentally normal prior to his January 2013

4
Upon examination, Dr. Shapiro also noted that R.P.’s testing showed a lack of IgM antibody to Hep A, which he
determined to be unrelated to his subsequent TM. Ex. 6 at 5.

5
Dr. Janousek’s letter is also filed as Exhibit 11.

8
vaccinations. Tr. at 7-13. On January 7, 2013, Mrs. Palattao recalled presenting to Dr. Tio for
R.P.’s six-month well-baby visit. Id. at 22. She reported that R.P. was healthy at the time of the
visit and completed multiple developmental milestones, including unassisted sitting, rolling over,
and passing objects from hand-to-hand. Id. at 23. Following R.P.’s receipt of his six-month
vaccinations, Mrs. Palattao reported that he appeared normal for the remainder of the day, but
experienced some increased fussiness. Id. at 24, 38. Mrs. Palattao reported that she administered
Tylenol for the fussiness, but noted that R.P. was still feeding and voiding normally throughout
the evening. Id. at 24-25.

On the morning of January 8th, Mrs. Palattao testified, R.P. was still experiencing increased
fussiness,6 but was acting normally otherwise when dropped off at daycare. Tr. at 25, 38-39.
According to Mrs. Palattao, she picked R.P. from daycare around 5:00 PM that evening and found
him to be more lethargic (which she reported was not typical, as R.P. was normally very happy
and active). Id. at 26. She also indicated some concern regarding his apparent inability to sit up or
play, but denied that R.P. appeared limp or weak. Id. at 27, 40-42. Respondent specifically
questioned Mrs. Palattao about a telephone call (Ex. 8 at 39) made to R.P.’s treating pediatrician
on January 8th (just prior to his initial ER presentation that evening). Tr. at 41-42. Notes from the
call indicate that the Mrs. Palattao reported R.P. had been limp and was unable to move (Ex. 8 at
39), but Mrs. Palattao asserted that she observed him only to be lethargic. Tr. at 41-42. Mrs.
Palattao was also asked about a daycare note referenced in the ER record (Ex. 5 at 1) stating that
R.P. had experienced decreased urine output throughout January 8th, but argued this only meant
that he had not taken as many bottles that day. Id. at 43-44. She otherwise asserted that she was
indeed diapering R.P. that day. Id. at 54.

The Palattaos reported to the emergency room around 6:00 PM that evening out of concern
for the aforementioned symptoms (in addition to breathing troubles). Tr. at 27-28, 41. Mrs. Palattao
reported that the treating ER physician assessed R.P. with a localized vaccine reaction, and
discharged R.P. around 8:30 PM that evening following a normal exam. Id. at 29-30, 55-56. R.P.
otherwise behaved normally during the evening of January 8th. Id. at 30. He was still feeding and
she noticed no urinary retention or change in his bowels at that time. Id.

By the morning of January 9th, however, R.P. was still experiencing the same concerning
symptoms that prompted the ER visit the previous night (including lack of energy and trouble
breathing). Tr. at 32-33. On cross, Mrs. Palattao also reported an onset of limpness, weakness, and
decreased urine output by 10:00 AM on the morning of the 9th. Id. at 47-48. Mrs. Palattao further
testified that she and her husband returned to the ER with R.P. around noon on the 9th, and his
course deteriorated from there. Id. at 33. R.P. was admitted to the PICU and intubated later that
evening. Id. Following relevant testing, the diagnosis of TM was confirmed and R.P. was

6
Mrs. Palattao’s affidavit filed in support also noted that R.P. would cry when touched (during the evening of January
8th). See Tr. at 44-45; First Aff. at 2. At hearing, she clarified that this was intended to describe his fussiness. Tr. at
45.

9
hospitalized for roughly one month and completed a short stay at an inpatient rehab unit. Id. at 34,
49.

Mrs. Palattao also described R.P.’s current condition as of May 2018. R.P. (now five years
old) is paralyzed from the mid-chest down and requires daily use of a wheelchair. Tr. at 6. He is
fully dependent on his parents for his primary care. Id. Accordingly to Mrs. Palattao, R.P. recently
had surgery to help with control over his bladder and bowels. Id. She otherwise described him as
“willful, energetic, and spunky.” Id. He attends preschool five days a week and enjoys spending
time with his classmates. Id.

Apart from the above, Mrs. Palattao also clarified her recollection of events and the medical
records with regard to R.P.’s pre-vaccination URI (or mild cold symptoms). According to Mrs.
Palattao, R.P.’s father took him in for an examination on December 21, 2012, in part because R.P.
was “pulling on his right ear.” Tr. at 16, 36-37. The medical record does not reflect a complaint of
ear tugging, however, discussing only cough and cold symptoms. See Tr. at 37 (citing Ex. 8 at 31).
The family was expecting to travel for the Christmas holiday and Mrs. Palattao felt it would be
best to have R.P. evaluated prior to the trip. Id. at 17-18, 36. Mrs. Palattao suggested that R.P.’s
pediatrician found some fluid behind the ear, but nothing too notable. Id. at 17. She explained that
R.P.’s treater prescribed Amoxicillin as a precaution given R.P.’s discomfort and the family’s
travel plans. Id. at 17-18. Otherwise, no immediate concerns were noted by R.P.’s pediatrician or
his parents. Id. at 18-19. She subsequently administered the antibiotic as directed, adding that
R.P.’s ear tugging resolved within a couple of days. Id. at 19.

B. Dr. Marcel Kinsbourne

The first of Petitioners’ two experts, Dr. Marcel Kinsbourne, M.D., filed three written
reports and testified via videoconference at hearing. See Expert Report, dated Dec. 27, 2013, filed
as Ex. 14 (ECF No. 12-1) (“First Kinsbourne Rep.”); Expert Report, dated Mar. 24, 2014, filed as
Ex. 17 (ECF No. 22-2) (“Second Kinsbourne Rep.”)7; Expert Report, dated Apr. 5, 2018, filed as
Ex. 76 (ECF No. 76-1) (“Third Kinsbourne Rep.”). Dr. Kinsbourne opined that the R.P.’s January
2013 vaccinations (most likely the DTaP vaccination in his estimation)8 caused his TM.

As his CV indicates, Dr. Kinsbourne is a pediatric neurologist. CV, filed as Ex. 15 (ECF
No. 12-2) (“Kinsbourne CV”). He received his medical degree in England, and he has been

7
Dr. Kinsbourne’s first report (dated December 2013) and his second report (dated March 2014) are identical. The
March 2014 report was filed to remove language related to a Hep B vaccination (as R.P. did not receive this vaccine).
Dr. Kinsbourne acknowledged this correction in his testimony at hearing. See Tr. at 89-90; Second Kinsbourne Rep.
at 1, 3, 6.

8
Dr. Kinsbourne’s testimony was primarily limited to the DTaP vaccine (and specifically its tetanus components). At
times, however, he also suggested the flu vaccine (or the multiple vaccines in combination that R.P. received on
January 7, 2013) might also have played a role. Tr. at 70, 349. In his view, because all vaccines cause innate immune
responses, it can be difficult to differentiate between their effects when given as a group. Id. at 349.

10
licensed to practice medicine in North Carolina since 1967. Id. at 2; Tr. at 60. From 1967 to 1974,
Dr. Kinsbourne served as an associate professor in pediatrics and neurology and a senior research
associate at Duke University Medical Center before holding a series of academic positions,
including professorships in pediatrics, neurology, and psychology. Kinsbourne CV at 2. His
clinical experience includes serving as a senior staff physician in Ontario from 1974-1980, and a
clinical associate in neurology at Massachusetts General Hospital from 1981-1991. Id. at 2-3. Dr.
Kinsbourne has experience treating pediatric patients with TM, although (as noted in other Vaccine
Program cases) twenty years (or more) have passed since he regularly saw patients. Tr. at 85-86.
He has published several articles examining neurological diseases (though none directly
addressing TM), and he is on the editorial board of several journals, such as Brain and Cognition
and Archives of Clinical Neuropsychology. Kinsbourne CV at 4, 7-40.

At hearing, Dr. Kinsbourne began his testimony by describing TM and its common clinical
symptoms. Dr. Kinsbourne characterized TM as an inflammatory, demyelinating disorder of the
spinal cord. Tr. at 68; Second Kinsbourne Rep. at 3. In TM, the spinal cord’s nerve fibers lose their
myelin sheath, thereby resulting in a loss of cell communication between the muscles and the
body’s nerve endings up to the brain. Tr. at 68. According to Dr. Kinsbourne, TM has many
potential triggers (including a bacterial infection, viral illness, genetic abnormalities, and in certain
circumstances, a vaccine). Id. at 70; Second Kinsbourne Rep. at 3-4.9

A typical course of TM can include motor weakness, sensory abnormalities (referable to
the spinal cord), bladder dysfunction, and paresthesia. E. Frohman, et al., Transvers Myelitis, 63
New Eng. J. Med. 564, 565 (2010), filed as Ex. 21 (ECF No. 65-2). TM is often monophasic,
meaning it begins abruptly and impacts the white matter of the brain (as opposed to the gray
matter). Tr. at 69. Recovery is highly variable from patient to patient, resulting in complete
recovery in some cases, but permanent disability in others. Id.

Upon review of R.P.’s record, Dr. Kinsbourne opined that R.P.’s presenting symptoms
were best categorized as acute TM of the “utmost severity.” Tr. at 69. As the medical records filed
in the case revealed, R.P. was developing normally prior to vaccination, and exhibited no adverse
reaction to his first two rounds of childhood vaccinations. Id. After the third round, however, Dr.
Kinsbourne opined, R.P. had a “striking, almost explosive onset” of TM. Id. Dr. Kinsbourne relied
heavily on MRI evidence conducted during R.P.’s hospital stay (which confirmed the TM
diagnosis), as well as his presenting symptoms over the course of his hospitalization (including
lack of sensation and numbness of the limbs, trouble breathing, and the inability to void). Id. at 67,
91.

9
At hearing, Dr. Kinsbourne offered some theory that a certain genetic defect, such as a polymorphism gene, could
play some role in the initiation of TM (via immune dysfunction). Tr. at 72. On cross however, Dr. Kinsbourne
acknowledged that R.P. was never tested for the above-mentioned genetic defect. Id. at 108-09. And the defect
otherwise played no role in his theory in the present matter.

11
Dr. Kinsbourne theorized that R.P.’s TM was likely initiated by the tetanus toxoid
component of the DTaP vaccine. Second Kinsbourne Rep. at 4-5, 7. It was then mediated by a
“pathologic” effect of the innate immune system and induced by an overwhelming attack of
proinflammatory cytokines on R.P.’s spinal cord.10 Tr. at 71, 73, 105, 107-08, 343-44; Third
Kinsbourne Rep. at 3. Dr. Kinsbourne categorized the innate immune response as the body’s first
defense to an immune challenge. Tr. at 71, 74, 77, 345; Third Kinsbourne Rep. at 2.11 Components
of the innate immune system include macrophages,12 cytokines,13 and neutrophils,14 for example.
Tr. at 71, 345, 359. Dr. Kinsbourne explained that when the body encounters a foreign protein (i.e.
a bacterium or virus), the immediate innate response signals macrophage-mediated TLRs (or “toll-
like receptors”) producing proinflammatory cytokines (distinct from the T cell/B cell components
of the adaptive immune system). Id. at 71, 76-77. According to Dr. Kinsbourne, proinflammatory
cytokines typically cause localized inflammation at the injection site (along with generalized
lethargy and fever if released into the bloodstream, similar to those symptoms R.P. experienced).
Id. at 71, 350, 356.

In most cases, the production of proinflammatory cytokines after vaccination is perfectly
harmless and actually aids the immune system in establishing immunity against a particular
disorder that the vaccine is intended to secure. Tr. at 71, 345. In rare cases, however, Dr.
Kinsbourne opined, the effect of proinflammatory cytokines can be excessive and dangerous (or
“toxic”), resulting in a secondary autoimmune (or inflammatory) disease process (i.e. TM). Id. at
71, 108. According to Dr. Kinsbourne, the brain (functioning normally), has multiple methods of
regulating cytokines so that they exert a beneficial effect, rather than endanger the host. Id.
However, unrestrained cytokines can migrate from the peripheral nervous system, breach the blood
brain barrier (“BBB”), and then attack components of the central nervous system (i.e. the brain,

10
Dr. Kinsbourne testified that he is not invoking the mechanistic process of molecular mimicry in the present case.
Tr. at 105. His report, however, makes reference to the concept as a possible biologic explanation for onset of TM
post-vaccination. Second Kinsbourne Rep. at 5. He also cited to various pieces of literature addressing molecular
mimicry. See, e.g., K. Stratton, et al., Adverse Effects of Vaccines: Evidence and Causality, Institute of Med. (2002),
filed as Ex. 31 (ECF No. 25).
11
The adaptive immune system, by contrast, initiates a protective response at a much slower rate (i.e. days to months)
by recognizing specific antigens. Tr. at 250-51. The adaptive system is made of both B cells (which make antibodies
against the foreign protein) and T cells (that help eliminate diseased cells). Dorland’s Illustrated Medical Dictionary
315, 324, 1084 (32nd ed. 2012) (hereinafter, “Dorland’s”).
12
Macrophages are mononueclear phagocytes that kill and digest foreign invaders during an immune response.
Dorland’s at 1093.

Cytokines are nonantibody specific proteins released by cells upon contact with a foreign antigen. Dorland’s at 466.
13

They act as intercellular mediators in an immune response. Id.

14
Neutrophils are white blood cells that patrol the bloodstream and attack foreign antigens (including viral and
bacterial ). See Neutropenia, Mayo Clinic, https://www mayoclinic.org/symptoms/neutropenia/basics/definition/sym-
20050854 (last accessed on Jan. 10, 2019).

12
spinal cord, or both), resulting in some form of demyelinating disease in rare cases. Id. at 72, 108,
355, 357.15 Once across the BBB, these cytokines induce microglia16 and other astrocytes17 to
produce more cytokines thereby causing the demyelination of axons and death of
oligodendrocytes. Id. at 351; Third Kinsbourne Rep. at 3.

Dr. Kinsbourne asserted that the chief proinflammatory cytokines applicable to the present
case are IL-6, IL-1 beta, TNF alpha, and IL-17. Tr. at 73; Second Kinsbourne Rep. at 4. He
described IL-1 beta and TNF alpha as “stimulat[ors]” or generators of IL-6, whereas IL-17
“regulates” all three. Tr. at 73, 75, 350-51; Third Kinsbourne Rep. at 3. The IL-6 cytokine,
however, was determined to be “necessary and sufficient to cause [TM]” (or the “active destructive
influence”). Tr. at 73, 75, 351. Following vaccination, Dr. Kinsbourne opined that astrocytes
produce IL-6 in response to direct stimulation by TNF alpha and IL-1 beta, causing a significant
release of cytokines into the blood stream (resulting in a breach of the BBB and eventual attack on
the spinal cord). Second Kinsbourne Rep. at 5; Tr. at 351. Dr. Kinsbourne acknowledged that the
trigger for the initial production of IL-6 in astrocytes is still being investigated. Id. at 6. He
maintained, however, that currently literature supports his contention that a vaccination could be
a potential instigator. Id.

In support of his contention that vaccines can cause the production of proinflammatory
cytokines, Dr. Kinsbourne referenced the Kashiwagi paper. See Y. Kashiwagi, et al., Production
of Inflammatory Cytokines in Response to Diphtheria-pertussis-tetanus (DPT), Haemophilus
Influenza Type B (Hib), and 7-Valent Pneumococcal (PCV7) Vaccines, 10 Human Vaccines &
Immunotherapies 677 (2014), filed as Ex. 46 (ECF No. 72-6) (“Kashiwagi”). Kashiwagi was an
in vitro study comparing the levels of inflammatory cytokines in the sera of 61 vaccine recipients
with febrile illness, against 18 recipients without febrile illness, 24 hours post vaccine
administration. Kashiwagi at 677. The study’s authors tested the peripheral blood cultures of the
61 patients by (separately and concurrently) introducing combinations of the DPT, Hib, and/or
PCV7 vaccines in order to determine the levels of cytokine production in the cell cultures. Id.
Researchers found that concurrent stimulation with combinations including Hib/PCV7 and

15
Dr. Kinsbourne’s explanation for how cytokines cross from the periphery through the BBB and into the central
nervous system was both vague and conclusory. At hearing, Dr. Kinsbourne asserted that cytokines cross the BBB via
an unspecified “mechanism” and once there stimulate CNS microglia to “eject proinflammatory cytokines in the CNS
space” (including IL-6). Tr. at 355. He did not further explain the “mechanism” responsible for their transportation,
and he cited no scientific literature or evidence suggesting that proinflammatory cytokines originating in the periphery
can actually be stimulated in levels high enough to function in this matter. See id. at 358 (“everyone in the field knows”
that “certain substances” can cross the BBB and are assisted by “processes which are specific to them”). Dr.
Kinsbourne similarly did not fully indicate how long it would take cytokines in the periphery to cross the BBB (from
the time of stimulation to resulting viewable symptomology). He made some suggestion that process could occur
rather quickly and not drag on “day after day,” but could not be more specific. Id. at 357.

16
Microglia are CNS cells that act as macrophages and scavenge various intruders (including infectious agents and
waste products of nerve tissue). Dorland’s at 1159.

17
Astrocytes or astroglia are CNS cells in the brain that support neuronal function by producing antioxidants, recycling
neurotransmitters, and maintaining the BBB. Dorland’s at 169, 170.

13
DPT/Hib/PCV7 produced higher levels of the TNF-alpha and human G-CSF cytokines. Id.
Notably, however, Kashiwagi’s authors noted that only Hib induced increased levels of IL-6 post-
vaccination, with no significant differences in production of IL-6 was noted in response to
stimulation by the DPT or PCV7 vaccines. Id. at 679. Overall, testing in Kashiwagi indicated there
was “no significant difference . . . observed in IL-6 production with the single or concurrent
stimulation” of DPT, Hib, and or PCV7. Id.

To link the IL-6 cytokine to the pathologic process resulting in TM, Dr. Kinsbourne relied
on a different study. See A. Kaplin, et al., IL-6 Induces Regionally Selective Spinal Cord Injury In
Patients With the Neuroinflammatory Disorder Transverse Myelitis, 115 J. Clin. Invest. 2731
(2005), filed as Ex. 22 (ECF No. 65-3) (“Kaplin I”); Third Kinsbourne Rep. at 3. Kaplin I
researchers conducted a cytokine antibody array for six patients presenting with acute, idiopathic
TM (prior to any immunotherapy treatment), contrasting their findings with eight healthy patients.
Kaplin I at 2733. Researchers found that the cytokine IL-6 was elevated 300-fold within the CSF
of TM patients (whereas all other cytokine levels were altered less than 10-fold). Id. at 2733, 2738.
Two TM patients in the study died from respiratory failure. Id. Following their autopsies,
researchers performed postmortem immunohistochemical staining of the spinal cord of both
patients to determine the source of the IL-6 production. Id. at 2733. In both cases, researchers
found that the increased IL-6 was induced by astrocytes “in and around the area of inflammation
within the spinal cord” (i.e. within the CNS). Id. Serum absorption levels also supported this
finding. Id.

Kaplin I researchers also conducted an animal model study to determine if IL-6 was
sufficient to cause cellular injury in the spinal cord (and thus produce symptoms attributable to
TM). To test this, researchers added CSF from a TM patient to culture spinal cord sections of rats.
Kaplin I at 2733-34. Researchers next injected high levels of IL-6 (24ng of IL-6 for seven days)
directly into the rat spinal cords and compared those results to rat spinal cords infused directly
with a saline solution. Id. at 2735. Based upon an eight-day observation period, researchers found
that the rats injected directly with IL-6 displayed an onset of demyelination and neuronal damage
(including a 50% loss of both hind leg strength) characterized by swollen, empty myelin-encased
chambers after two days. Id. Relying on the above, Kaplin I’s authors concluded that the IL-6
cytokine “is a critical determinant of patient outcome in TM[,]” though they could not
affirmatively state the source of the IL-6 stimulation, acknowledging that it remained a subject of
investigation. Kaplin I at 2738-39. They did, however, offer various biological hypotheses for such
an increase – including an antecedent infection, genetic differences, or an immune response
following vaccination. Id.

For the assertion that IL-6 could be stimulated as a result of an immune response post-
vaccination, Dr. Kinsbourne referenced a second paper also co-authored by Kaplin. See A. Kaplin,
et al., Diagnosis and Management of Acute Myelopathies, 11 Neurologist 2 (2005), filed as Ex. 49
(ECF No. 73-1) (“Kaplin II”). Kaplin II cites to two case reports of TM following receipt of a flu
vaccine and a booster Hep B vaccine. Kaplin II at 4. The Kaplin II article also referenced autopsy
14
reports of post-vaccination TM which revealed elevated levels of lymphocytic infiltration of the
spinal cord. Id. Despite the above, Kaplin II cautioned against any over reliance on the cited case
reports within the article (as extensive data sets show vaccines are not associated with an increased
incidence of neurologic complication). Id. Kaplin II otherwise acknowledges that increased IL-6
has been associated with TM, but does not offer further comments regarding the source of its
stimulation. Id. at 5.

Besides the above, Dr. Kinsbourne also referenced a third item of literature purporting to
associate IL-6 to TM. See Graber, et al., Interleukin-17 in Transverse Myelitis and Multiple
Sclerosis, 196 J. Neuro. Immunol. 124 (2008), filed as Ex. 69 (ECF No. 63-3); Third Kinsbourne
Rep. at 3. Similar to Kaplin I and II, Graber’s authors noted that IL-6 cytokine levels have been
shown to be increased in the CSF of TM patients. Graber at 124. Researchers in Graber sought to
determine if the IL-17 cytokine was similarly elevated in TM patients (given it is role as a regulator
of the IL-6, TNF-alpha, and IL-1 beta cytokines) in an attempt to link IL-17 cytokines to a CNS
IL-6 cascade. Id. at 124, 131. To test the above, researchers measured the IL-17 and IL-6 levels in
the peripheral blood of 13 TM patients along with 37 multiple sclerosis (“MS”) patients. Id. at 125.
Upon review of the peripheral blood cytokine assays, the Graber authors found both an increase
in IL-17 and IL-6 in the CSF of both MS and TM patients. Id. From this, it was determined that
IL-17 could potentially stimulate initial IL-6 production, but that only IL-6 could “induce IL-6
production by astrocytes.” Id. 125, 131. Graber too, however, could not identify what specifically
triggers the increased production. Id. at 130 (“immunodepletion of IL-6 . . . did not completely
suppress astrocyte IL-6 production, suggesting other soluble factors may also be involved”).
Graber also does not implicate any vaccine as playing a role in the simulation of IL-17 or IL-6.

Dr. Kinsbourne next referenced various review articles investigating the role a vaccine
could play in initiating an overproduction of cytokines sufficient to result in TM. See, e.g., N.
Agmon-Levin, et al., Transverse Myelitis and Vaccines: A Multi-Analysis, 18 Lupus 1198, 1199
(2009), filed as Ex. 52 (ECF No. 73-4) (“Agmon-Levin”); Second Kinsbourne Rep. at 4. Agmon-
Levin catalogued 37 case reports of TM following vaccination (four of which followed the DPT
or DT vaccine). Another article discussed various case studies reporting an onset of acute TM
following vaccine administration (but involved only the flu or booster Hep B vaccines). See D.
Kerr, et al., Immunopathogenesis of Acute Transverse Myelitis, 15 Current Op. In Neuro. 339, 340-
41 (2002), filed as Ex. 24 (ECF No. 65-4) (“Kerr”). A third review article found that 38 percent of
a 47-patient population reported immunization within 30 days prior to onset of TM. See F.
Pidcock, et al., Acute Transverse Myelitis in Childhood: Center-Based Analysis of 47 Cases, 68
Neurology 1474, 1479 (2007), filed as Ex. 26 (ECF No. 65-5) (“Pidcock”); Second Kinsbourne
Rep. at 4. Pidcock, however, generally found no “significant relationship” between vaccination
and TM (given the high incidence of immunization in the pediatric population generally). Pidcock
at 1479. Agmon-Levin and Kerr similarly noted that extensive data sets suggested that
vaccinations are not associated with an increased incidence of neurological disease, and thus

15
cautioned against over reliance on the conclusion (hinted at by the various case reports they
reviewed) that TM is vaccine-induced. Agmon-Levin at 1202; Kerr at 341.

Notably, Dr. Kinsbourne also filed literature directly contradicting the case reports
discussed in Agmon-Levin, Kerr, and Pidcock. The Baxter article (an epidemiological study), for
example, reviewed nearly 64 million vaccine doses cataloged by the Vaccine Safety Datalink and
found no safety concern or association between vaccination and onset of TM. See R. Baxter, et al.,
Acute Demyelinating Events Following Vaccines: A Case-Centered Analysis, 63 CID 1456, 1461
(2016), filed as Ex. 65 (ECF No. 58-4).

Besides the case reports mentioned in Agmon-Levin, Dr. Kinsbourne’s second report cited
some specific case reports of onset of TM following administration of a tetanus-containing
vaccine. Second Kinsbourne Rep. at 4-5; see, e.g., E. Whittle, et al., Transverse Myelitis After
Diphtheria, Tetanus, and Polio Immunization, 4 Brit. Med. J. 1450 (1977), filed as Ex. 36 (ECF
No. 68-1) (“Whittle”) (seven month-old developed TM six to seven days following Td/polio
vaccine); R. Riel-Romero, Acute Transverse Myelitis in a 7-month-old Boy After Diphtheria-
Tetanus-Pertussis Immunization, 44 Spinal Cord 688 (2006), filed as Ex. 28 (ECF No. 65-7)
(“Riel-Romero”) (seven month-old developed TM following DPT vaccine; admitted to hospital
17 days after vaccination)18; S. Savas, et al., Transverse Myelitis Following Diphtheria Tetanus
Toxoids (Td) Vaccination: A Case Report, 59 Turk. J. Physical Med. & Rehab. 349 (2013), filed
as Ex. 74 (ECF No. 68-6) (“Savas”) (46 year-old developed TM following Td vaccine, with onset
in two hours and symptoms lasting six months before individual sought medical intervention); S.
Read, et al., Acute Transverse Myelitis After Tetanus Toxoid Vaccination, 339 Lancet 1111 (1992),
filed as Ex. 27 (ECF No. 65-6) (50 year-old developed TM following tetanus toxoid vaccination).19
Despite the above, Dr. Kinsbourne agreed that case reports cannot prove causality on a scientific
level, while insisting that they nevertheless bulwarked Petitioners’ contention that a vaccine was
a likely cause where no other reasonable trigger was established. Tr. at 99, 360.

As to the timing of onset of TM post-vaccination, Dr. Kinsbourne maintained that the
production of proinflammatory cytokines would happen “almost immediately” following vaccine

18
Riel-Romero significantly allowed for the likelihood that the subject of the study had developed TM due to a URI
he had experienced within two weeks of vaccination. Riel-Romero at 690. The article also admits that causality
between vaccine and TM could not be assumed simply on the basis of the temporal association. Id.

19
More broadly, Dr. Kinsbourne referenced some case reports of other neurologic injuries (presumably based on the
contention that they are comparable) sustained following tetanus-containing vaccines. See, e.g., H. Topalogu, et al.,
Optic Neuritis and Myelitis After Booster Tetanus Toxoid Vaccination, 339 Lancet 178 (1992), filed as Ex. 55 (ECF
No. 73-7) (case report of 11 year-old who developed optic neuritis/myelitis following booster tetanus toxoid vaccine
with onset of twenty hours); D. D’Costa, Transverse Myelitis Following Cholera, Typhoid and Polio Vaccination, 83
J. Royal Soc. Med. 653 (1990), filed as Ex. 73 (ECF No. 68-5) (case report of 24 year-old who developed TM
following OPV/cholera/typhoid vaccine with onset of 24 hours); N. Abdul-Ghaffar, et al., Brown Séquard Syndrome
Following Diphtheria and Tetanus Vaccines, 24 Trop. Doct 74, 74-75 (1994), filed as Ex. 71 (ECF No. 68-3) (case
report of 13 year-old who developed a rare neurologic condition involving spinal cord lesions following Td
vaccination with onset of 36 hours).

16
administration. Tr. at 75, 117. In his estimation, reasonable scientific literature suggested that an
innate immune response could occur between six hours post-vaccination to a maximum of two
days later. Id. at 77, 109.20 For support, Dr. Kinsbourne cited to various case reports showing an
onset of TM after receipt of a tetanus-containing vaccine within hours to days/weeks following
administration. See, e.g., Agmon-Levin at 1200 (three case reports of months-old children who
developed TM between six and seventeen days post-vaccination); Savas at 349 (46 year-old
developed TM two hours following Td vaccine). Dr. Kinsbourne acknowledged that he had not
filed any evidence in support of a six-hour onset, but maintained that there existed various studies
that would support such a rapid onset. Id. at 109-111. He did, however, admit that two hours would
be too soon to be medically plausible. Id. at 110.

Dr. Kinsbourne’s three expert reports offered varying statements regarding the most likely
onset for R.P.’s initial TM symptoms. See, e.g., First Kinsbourne Rep. at 6 (R.P.’s TM began “less
than two days” following receipt of his vaccinations); Second Kinsbourne Rep. at 4 (R.P.’s TM
“began less than 36 hours after a DTaP vaccination”). At hearing, however, Dr. Kinsbourne
highlighted evidence in R.P.’s medical records that he maintained supported the conclusion that
onset of his neurological disease process began sometime within 48 hours of vaccination – most
likely sometime between his initial January 8th ER visit and the return ER visit on January 9th (or
36 to 48 hours following vaccine administration). Id. at 347-48.

In so maintaining, Dr. Kinsbourne acknowledged that Mrs. Palattao had reported
concerning symptoms to Dr. Tio’s office on January 8th (including an inability to sit up, labored
breathing, pain when touched, lethargy, decreased urine output, and weak crying) – less than 36
hours post-vaccination. Tr. at 92-93. However, he noted that R.P.’s initial neurological exam on
the 8th was normal (revealing normal tone and power). Id. at 92, 94, 347. He therefore argued that
R.P.’s symptoms at his initial presentation on January 8th (and even those he experienced the
evening of the 7th) were distinguishable from those he experienced on January 9th (which now
included arm weakness, numbness, and decreased tone), and that such symptoms plus the
confirming MRI imaging made onset most likely to have occurred later. Id. at 91-92, 94, 117. He
also suggested the MRI imaging indicated demyelination “very high up in the cervical area and
the thoracic area” which would be more consistent with arm weakness – not the purported
decreased urinary output as suggested in records from January 8th, which he deemed associated
with the lower portion of the spinal cord. Id. at 93-94. Overall, Dr. Kinsbourne maintained that
R.P.’s earlier symptoms (while still vaccine related) were not wholly neurologic in nature. Id. at
93, 347; Third Kinsbourne Rep. at 1-2. In so opining, however, Dr. Kinsbourne acknowledged a
clear continuity between R.P.’s initial symptoms (i.e. fever and malaise) and those he experienced
two days beyond. Tr. at 116-18, 351, 352.

20
An adaptive immune response, by contrast, would require a minimum of four days to occur. Tr. at 77.

17
Consistent with the above, Dr. Kinsbourne disputed Respondent’s expert’s contention that
R.P.’s January 8th symptoms (including crying/fever/touch sensitivity) could be evidence of
“meningeal irritation” (or irritation of the membranes that wrap around the brain and spinal cord).
Tr. at 79-80, 95. Based on his own review of the record, Dr. Kinsbourne found no treater support
for such an assertion in the record. Id. Furthermore, he opined that any meningeal irritation R.P.
experienced could be confirmed only by symptoms such as stiffness and rigidness or headache-
associated pain (all of which R.P. did not experience). Id.

Although Dr. Kinsbourne did seem to lean in favor of an onset of neurologic symptoms on
January 9th, at one point during Respondent’s cross examination he opined that R.P.’s onset of
TM could also have occurred within 36 hours post-vaccination. Tr. at 91. When asked to explain
this, Dr. Kinsbourne referenced the concept of innate immune memory. Dr. Kinsbourne opined
that innate immune system memory (or presensitization) might play a role in a quick time interval
between vaccination and onset of symptoms. Tr. at 353-54; Third Kinsbourne Rep. at 3-4.
According to Dr. Kinsbourne, R.P.’s innate immune system could have developed a memory from
his receipt of the third DTaP vaccination, which upon stimulation could facilitate a significant (and
more extreme) enough release of cytokines to cause TM within a two-day timeframe. Tr. at 74,
353-54; Third Kinsbourne Rep. at 4. Dr. Kinsbourne categorized this response as an anamnestic
reaction, which he defined as an “accelerated and augmented production of specific antibody after
reexposure to an agent . . . .” Third Kinsbourne Rep. at 4. (Of course, as noted above Dr.
Kinsbourne in this case is not proposing that R.P.’s TM was mediated by an autoantibody
response).

As an alternative explanation for a more rapid onset, Dr. Kinsbourne referenced a single
item of literature. See M. Netea, et al., Innate Immune Memory: A Paradigm Shift In
Understanding Host Defense, 16 Nature Immunol 675 (2015), filed as Ex. 68 (ECF No. 63-2)
(“Netea”); Tr. at 353. Netea is a “meeting report” authored following the first Innate Immune
Memory Conference in Hixton, Cambridge in March 2015. Netea at 675. Netea generally attempts
to explore a self-described “new[]” concept (innate immune memory) which challenges the
accepted scientific principle that the innate immune system mounts nonspecific immune responses
to invading antigens (rather than an antigenic-specific response), without any conferred
immunologic memory (a concept generally applicable to plants and invertebrates). Id.

According to Netea, the concept of innate immune memory (or “innate reprograming”)
proposes that the innate system has adaptive qualities capable of producing immune memory via
a “priming response” where the innate system would be altered after first exposure to an antigen
such that upon re-exposure to the same stimuli, it would display a heightened response in
subsequent defense against that same invader. Netea at 675. Upon re-exposure to a priming event,
chronic inflammation (initiated during an innate response) could “possibly” reprogram the
microglia and astrocytes such that plaque clearance in the body is impaired (leading to an
enhancement of NLRP3 inflammasome) and a resulting disease process. Id. Netea’s authors
suggest that vaccinations provide “some of the best evidence” of innate immune memory in
18
humans (given the resulting protective effects experienced upon receipt of a booster vaccine). Id.
at 678-69. Overall, however, Netea does not implicate vaccines as capable of initiating a pathologic
process via the innate system simply due to secondary exposure to it.

Finally, Dr. Kinsbourne spent some time at hearing discussing records pertaining to R.P.’s
pre-vaccination health history, in an attempt to refute Respondent’s contention that R.P.’s TM was
triggered by a pre-vaccination viral illness (or his diagnosed ear infection). Tr. at 82-83, 350, 361.
Rather, Dr. Kinsbourne categorized R.P.’s December 2012 respiratory symptoms as likely
noninfectious fluid in the ear (given the lack of confirming viral evidence in the record) or an
allergy. Id. at 83, 361-62; Third Kinsbourne Rep. at 1. R.P. had no fever or evidence of “systemic
effect” of existing autoimmune process around that time (or any time prior to his hospital
presentation). Tr. at 83, 361. Dr. Kinsbourne acknowledged that R.P.’s health record indicated that
he was prescribed antibiotics for the symptoms experienced in December 2012, but he inferred
from the record (and the mother’s testimony) that this was a prophylactic attempt to avoid any
bacterial infection occurring while the Palattaos travelled for the 2012 Christmas holiday. Id. at
84, 98; Third Kinsbourne Rep. at 1. Overall, given the lack of viral evidence in the record, Dr.
Kinsbourne found it “very unconvincing” that R.P.’s symptoms in December 2012 could explain
his TM. Id. at 361-62.

C. Dr. Ralph Shapiro

Petitioners’ second expert was Dr. Ralph Shapiro. He filed two expert report and also
testified at hearing. See Expert Report, dated May 28, 2015, filed as Ex. 38 (ECF No. 39-1) (“First
Shapiro Rep.”); Expert Report, dated Dec. 18, 2015, filed as Ex. 40 (ECF No. 41-1) (“Second
Shapiro Rep.”).21 Like Dr. Kinsbourne, Dr. Shapiro opined that the record best supports the
conclusion that R.P.’s TM was vaccine-induced, given the timing of injury and the lack of alternate
explanation for R.P.’s symptoms. Tr. at 154-55, 310, 312.

Dr. Shapiro is the owner and medical director of the Midwest Immunology Clinic in
Plymouth, Minnesota. Tr. at 120; CV, filed as Ex. 39 (ECF No. 39-2) (“Shapiro CV”). He
completed his undergraduate and medical degrees at the University of Minnesota School of
Medicine (“University”), followed by a three-year residency in pediatrics and a three-year
fellowship in pediatric hematology and oncology. Id. at 120-21; Shapiro CV at 1. Following his
fellowship, Dr. Shapiro was hired by the University as an instructor (and later assistant professor)
in the pediatrics department. Shapiro CV at 1-2. During that time he helped develop the
immunology section (and also treated immune deficient patients with cancer and storage disorders
and performed bone marrow transplants). Id. at 121. He remained with the University from 1986
to 1996, and then entered a primary-care pediatric practice from 1995 to 1999. Id.; Shapiro CV at
2. Dr. Shapiro thereafter opened his own clinic in 2000 and limited his practice to pediatric and

21
It appears that Exhibit 12 was also filed with the title of “expert report,” but is simply a copy of Dr. Shapiro’s
treatment notes from R.P.’s initial examination (which were already filed under Exhibit 6). See Ex. 12 (ECF No. 4).

19
adult immunologic treatment. Tr. at 122. His clinic is designated as a Modell Center of Excellence
for diagnosis and treatment of immune deficiency and he serves as the president of the Consortium
of Independent Immunology Clinics. Id. at 124-45. Dr. Shapiro is licensed in the state of Minnesota
and holds board certifications in pediatrics and pediatric hematology and oncology. Id. at 122-23;
Shapiro CV at 2.

At hearing, Dr. Shapiro testified that he has conducted research on relevant topics
(including immunosuppressive drugs and genetic immunodeficiencies), and has published
extensively on the complications of immunosuppression following organ/bone marrow transplants
(as well as pediatric oncology). Tr. at 123; Shapiro CV at 3, 5-17. He also has experience treating
patients with neuroimmunologic conditions (as well as developing immunoglobulin treatment).
Tr. at 163. Dr. Shapiro served as medical director of the Noran Clinic from 2003 to 2006 and
assisted with developing an infusion center aimed at co-managing patients with both neurologic
and immunologic conditions. Id. Over the course of his career, he estimated that he had treated
around twenty patients with TM. Id. at 162. Dr. Shapiro testified that some of those patients were
pediatric, but he could not remember an exact number. Id.

Dr. Shapiro began his testimony by recounting R.P.’s health history both prior to and
following the January 7, 2013 vaccinations. Consistent with Dr. Kinsbourne’s testimony, Dr.
Shapiro testified that R.P. was relatively healthy prior to his vaccinations, but exhibited an overall
decline in health thereafter. Tr. at 130. Dr. Shapiro first examined R.P. in June 2013 (almost six
months following his receipt of his January 2013 vaccinations and ensuing onset of TM). Tr. at
126. R.P.’s treating pediatrician referred him to Dr. Shapiro with the goal of identifying a possible
etiology for the TM. Id.

Upon initial exam, R.P. had poor motor function in his lower extremities, as well as weak
reflexes, but was otherwise healthy. Tr. at 127-28. Dr. Shapiro ordered various lab testing
(including white blood cell, IgA/IgM antibody, ANA, Hep A, and T cell counts) to determine if
R.P. had any underlying immune problem, but testified that the results were unremarkable. Id. at
128-29, 131-32.22 Dr. Shapiro found no evidence of a potential infectious cause in light of R.P.’s
negative infectious disease panel conducted during his hospitalization. Id. at 132, 153-54. Based
on his review of R.P.’s medical history and June 2013 evaluation, Dr. Shapiro opined, consistent
with Dr. Kinsbourne, that R.P. likely experienced an autoinflammatory “immune-based attack of
his spinal cord . . . after receiving [a] third set of routine immunizations.” Id. at 128, 148. He could

22
Notably, the ordered lab testing revealed the presence of Hep A antibodies in R.P.’s system. Tr. at 129. Upon further
questioning, however, Dr. Shapiro acknowledged that he considered a Hep A etiology for R.P.’s TM in his initial
assessment, though he later determined the relevant testing suggested the antibody response was evidence of a resolved
infection. Id. at 171-72. Respondent otherwise does not assert any theory related to Hep A exposure.

20
not, however, identify which vaccine was implicated or why (in this case) R.P.’s immune cells
targeted the spinal cord. Id. at 134, 137.23

Dr. Shapiro agreed with the mechanism24 offered by Dr. Kinsbourne, which he described
as an acute, innate immune reaction to vaccination “that caused [a] release of proinflammatory
cytokines” resulting in immune system dysregulation (including demyelination and nerve/tissue
damage). Tr. at 134-36, 309, 312-13; First Shapiro Rep. at 2.25 Consistent with Dr. Kinsbourne,
Dr. Shapiro identified the IL-6 cytokine as the primary destructive culprit in R.P.’s case (though
he felt others could also play a role). Tr. at 137, 156; Second Shapiro Rep. at 2. He similarly
maintained that cells in the immune system require some trigger to induce the production of the
IL-6 cytokine (for example, an antecedent infection, or in his opinion, a vaccination). Tr. at 155.
Dr. Shapiro allowed for the possibility that isotype variance, environmental, or genetic factors
could also play a role. Id. at 136; Second Shapiro Rep. at 3.26

Consistent with Dr. Kinsbourne’s testimony, Dr. Shapiro referenced Kaplin I in support of
Petitioners’ theory implicating the IL-6 cytokine as the likely destructive mediator of R.P.’s TM.
Tr. at 319. Dr. Shapiro agreed that relevant testing conducted in Kaplin I revealed an onset of
weakness and demyelination following direct injection of high levels of the IL-6 cytokine into rat
spinal cords. Id. In his view, such experimental results were enough to show a “possible”
connection between the upregulation of IL-6 and disease onset. Id. at 319-20. He further explained
that in “a real world” cytokine-mediated reaction, many inflammatory cytokines are transmitted
throughout the body at much faster pace. Id. at 319. He therefore deemed it reasonable to assume
(based on Kaplin I) that since IL-6 (albeit in high levels) could initiate a demyelinating process in

23
Dr. Shapiro’s expert report filed in support of Petitioners’ claim affirmed the above statement, but also made some
reference to immune cells being “highly activated” due to stimulation by “multiple vaccines with adjuvants.” First
Shapiro Rep. at 3. It does not appear that he relied on this argument to the same extent at hearing.

24
Though Dr. Shapiro appeared to agree with cytokine-mediated theory offered by Dr. Kinsbourne, at times during
the hearing, he referred to R.P.’s reaction being consistent with a “hypersensitivity reaction” (or an antigen-antibody
immune complex theory) which he described as activating “complement” and resulting in tissue damage. Tr. at 133.
He also references hypersensitivity in the context of an acute, innate immune response. Id. at 134, 142. Apart from
the above references, Dr. Shapiro’s testimony regarding this type of reaction was vague and unclear. Notably, his
expert reports filed in support of this matter offer no opinion regarding this theory and he filed no literature addressing
the topic.

25
At hearing, Dr. Shapiro at times referred to this cytokine-mediated attack as a product of the adaptive immune
system (which would be inconsistent with the opinion of Dr. Kinsbourne, as well as the relevant scientific literature
filed in support). See, e.g., Tr. at 141. Later in his testimony, however, it appears he corrected this mistake. Id. at 173-
74. Dr. Kinsbourne, at times, also described Dr. Shapiro’s statements as adaptive in nature. Id. at 344, 346.

26
Similar to Dr. Kinsbourne, Dr. Shapiro specifically testified that he is not relying on an adaptive process, such as
molecular mimicry, as a mechanism in this case (though, he later opined that molecular mimicry could work had the
timing of R.P.’s alleged reaction been more delayed). Tr. at 148, 174, 309, 313. He thus categorized R.P.’s reaction
as “autoinflammatory[,]” rather than autoimmune. Id. at 148, 176, 178.

21
rats, IL-6 alone (or in combination with other inflammatory cytokines) could result in the same
process in humans. Id.

Dr. Shapiro also relied heavily on the initial fever and irritability documented in R.P.’s
hospitalization records as evidence that R.P. was experiencing an overproduction of cytokines. Tr.
at 175, 323-34; Second Shapiro Rep. at 1-2. At hearing, Dr. Shapiro noted that R.P. presented with
a fever of 100.2 at his January 9th ER visit (though, this was lower than would ordinarily be deemed
concerning). Tr. at 323 (“we worry about fevers over 101”). In his view, a “low grade” fever could
be attributable to a recent vaccination. Id. at 324.

Also consistent with Dr. Kinsbourne, Dr. Shapiro referenced Kashiwagi in support of his
assertion that vaccines stimulate the production of proinflammatory cytokines (as evidenced by
fever). Tr. at 316-17. Dr. Shapiro emphasized that researchers in Kashiwagi found that the G-CSF
cytokine was elevated in the peripheral blood of patients concurrently stimulated with the DPT,
Hib, and PCV7 vaccines. Id. at 317; Kashiwagi at 1. He similarly noted that higher levels of G-
CSF were observed in febrile patients (as opposed to nonfebrile participants). Tr. at 317;
Kashiwagi at 1. Given the above, Dr. Shapiro found it reasonable to theorize that R.P.’s fever was
caused by the G-CSF cytokine and others (and thus occurred in response to his recent vaccination).
Tr. at 318. Notably, however, Dr. Shapiro did not address the fact that Kashiwagi found no increase
in the IL-6 cytokine in the peripheral blood of the patients tested. He also otherwise acknowledged
that R.P.’s cytokine levels were never tested in connection with his onset of TM – making it
impossible herein to corroborate the theoretical contention of what an overproduction of those
cytokines could do. Id. at 175, 318.

Besides the above, Dr. Shapiro placed great significance on the elevated neutrophil levels
noted in R.P.’s record from his hospitalization testing as evidence of an adverse innate response to
his vaccinations. Tr. at 131, 135, 141, 314. Dr. Shapiro defined neutrophils as “complement
proteins” released by the body during an immune reaction. Id. at 145. According to Dr. Shapiro,
neutrophils draw in immune cells (or “scavengers”) via chemotaxis to fight off whatever agent
(usually an infection) is triggering the response. Id. at 145, 328. Neutrophils are initially released
within 24 hours following a triggering agent, whereas lymphocytes (or the secondary responders)
typically take over within a 24-48 period thereafter. Id. at 146. Both proteins can be drawn out (or
produced) by various agents in the context of TM (including direct injury to the spinal cord or viral
infection of the spinal cord). Id. at 145-45, 328.27

27
On rebuttal, Dr. Kinsbourne generally affirmed the points made by Dr. Shapiro regarding the neutrophilic evidence
in R.P.’s record. See Tr. at 352 (categorizing neutrophils as part of the initial response mounted by the innate system
and lymphocytes as adaptive responders), 359 (arguing elevated neutrophils are evidence of a proinflammatory
cytokine reaction to a vaccine), 363 (increased neutrophils are evidence of a close-in-time trigger). He offered no
literature to support these statements, however. And it appears he mainly relied on and reiterated the statements made
by Dr. Shapiro (as described above).

22
In his opinion, the release of proinflammatory cytokines (including IL-6) into the blood
stream can cause not only a breach of the BBB (and resulting inflammatory response), but also an
increase in neutrophil production. Tr. at 135, 175, 314. In the present matter, R.P.’s lab results at
the time of his TM diagnosis evidenced 87 percent neutrophils in the spinal fluid. Id. at 131 (citing
Ex. 5 at 17). Accordingly, Dr. Shapiro asserted that the neutrophilic accumulation in the CSF not
only revealed underlying inflammation in the spinal cord, but supported his contention that R.P.’s
underlying disease had been initiated by an acute trigger (or event close-in-time to the relevant
testing/disease presentation).28 Id. at 142, 147 (“within a few days”). Accordingly, Dr. Shapiro
opined that evidence of increased neutrophils (or the immune system’s “immediate response
team”) suggested the existence of an innate response (as they migrate to the site of the injury and
accumulate within a 24 to 48 period to protect against the ensuing damage). Id. at 146. In contrast,
an infection three weeks prior to onset of injury (in this case, TM) would not initiate a production
of neutrophils in the CSF (but would rather initiate the production of secondary lymphocytes). Id.
at 146-47, 311.29 Despite the above, however, Dr. Shapiro did not address how (if at all) the
increased neutrophils could be specific indicia of a disease process such as TM.30

As independent support for his contentions about the evidentiary significance of
neutrophils, Dr. Shapiro offered one item of literature. Tr. at 315-16; see S. Matas, et al.,
Cerebrospinal Fluid Analysis in the Context of CNS Demyelinating Diseases, 72 Arq.
Neuropsiquiatr. 685 (2013), filed as Ex. 77 (ECF No. 81-1) (originally published in Spanish
journal) (“Matas”). Matas discusses the differences in CSF content analyses for three CNS
demyelinating conditions: acute demyelinating encephalomyelitis (“ADEM”), multiple sclerosis
(“MS”), and neuromyelitis optica (“NMO”). Id. at 685. In considering the CSF of 687 patients
presenting with one of these demyelinating diseases, Mata determined that each typically
contained a “mixture of cells” – inconsistent with R.P.’s neutrophil-predominant readings,
especially since he was not believed to have been experiencing a bacterial infectious process at the
time. Tr. at 315; see Matas at 687. Accordingly, in Dr. Shapiro’s view “some other mechanism”
(i.e. R.P.’s January 2013 vaccinations) was likely responsible for the influx of neutrophils. Tr. at
315. Matas does support the assertion that the CSF of patients with demyelinating disease can

28
Notably (and consistent with his inadvertent confusing of innate and adaptive), Dr. Shapiro initially described the
production of neutrophils as consistent with an adaptive response. Tr. at 147-48. He later corrected this statement. Id.
at 311 (noting neutrophilic accumulation is consistent with an innate response).
29
According to Dr. Shapiro, lymphocytes in CSF would be more typical of delayed trigger in the context of TM (for
example, an antecedent viral infection). Tr. at 144, 314-15.
30
As noted earlier, Dr. Shapiro also at times contradicted the above theory at hearing. For example, at one point, he
asserted that neutrophils were produced in the adaptive immune system. Tr. at 148. He also testified that the resulting
spinal inflammation R.P. experienced was due to inflammatory tissue damage as opposed to an attack with an
“autoimmune” basis. Id. He then later opined that the facts of R.P.’s case did not suggest an autoimmune response
occurred (which would be consistent with the overall theory offered by Petitioners: that R.P. experienced a cytokine-
mediated attack). Id. at 148-49.

23
evidence a variety of cells (including neutrophils, macrophages, eosinophils, lymphocytes, and/or
plasma cells), but does not discuss the CSF of TM patients specifically, and it does not contain any
conclusions about what a neutrophil-predominant CSF suggests in terms of identifying an illness’s
etiology (as opposed to other CSF findings like specific antibodies). See Matas at 687.

Dr. Shapiro next discussed the reasonableness of the timeframe for R.P.’s symptom onset.
Tr. at 158. Based on his review of the record, Dr. Shapiro opined that R.P.’s onset of TM symptoms
occurred within 24 to 48 hours following vaccine administration (which would be somewhat
sooner than that opined to by Dr. Kinsbourne). Id. at 134. At times, however, Dr. Shapiro seemed
to embrace one end of his proposed time frame over the other. See, e.g., id. at 133, 134 (“within
24 hours he did have some symptoms and within 48 he had tissue damage”), 144 (R.P. “developed
symptoms within 24 hours . . . and had a continuous progressive course”), 137 (asserting R.P.
experienced fever caused by IL-6 cytokine production); but see id. at 157-58, 312-13 (agreeing
with the two-day timeframe with peak cytokine production at 24 hours); First Shapiro Rep. at 4
(suggesting R.P. developed symptoms at 36 hours).

To support his onset timing, Dr. Shapiro explained that proinflammatory cytokines in the
body are released four to six hours following stimulation. Tr. at 158. In his opinion, the body can
produce enough cytokines within a day to produce irritability, fatigue, and fever (and did so in
R.P.’s case), which would be consistent with a 24-hour onset. Id. Spinal inflammation, however,
would then occur within an additional 24-hour period, subsequently resulting in a full TM course.
Id. In support of his timeframe determination, Dr. Shapiro referenced many of the same case
reports cited earlier by Dr. Kinsbourne. Tr. at 159-60; Second Shapiro Rep. at 2; see also Agmon-
Levin at 1200; Kaplin II at 4; H. Topalogu, et al., Optic Neuritis and Myelitis After Booster Tetanus
Toxoid Vaccination, 339 Lancet 178, 178 (1992), filed as Ex. 55 (ECF No. 73-7). He also
referenced a case report which detailed an onset of redness and swelling at the vaccine injection
site 12 to 28 hours following receipt of the pneumovax vaccine. Tr. at 157; Second Shapiro Rep.
at 2 (noting the case report was dated in 2015 and not filed, but taken from his practice’s “personal
archives”). Dr. Shapiro otherwise suggested that Kaplin I’s rat model supported his point (as rats
receiving a direct injection of IL-6 into the spinal cord developed an onset of weakness over two
days). Second Shapiro Rep. at 3.

Similar to Dr. Kinsbourne, Dr. Shapiro also offered an opinion contending that R.P.’s rapid
onset could be a product of a reaction due to R.P. being presensitized by his previous vaccinations
(presumably the two previous DTaP vaccinations he had received in his life, which would cause
“pre-existing sensitized effector cells” to be activated upon re-exposure to the vaccination), though
at hearing he seemed to walk back this assertion. First Shapiro Rep. at 4; Tr. at 128 (“I’m not sure
the evidence supports that basis”). He also filed no literature addressing this argument. First
Shapiro Rep. at 4. At hearing, Dr. Shapiro also opined that the immaturity of an infant’s BBB
supported Petitioners’ contention that R.P.’s TM symptom onset could occur more quickly (or

24
within two days following vaccination). Tr. at 137 (the BBB is “a lot more permeable, and it’s not
as intact as it is later in life”). He did not, however, offer literature discussing the topic, and his
reports similarly did not mention this point.

Dr. Shapiro next attempted to refute Respondent’s contention that R.P.’s TM had been
triggered by a pre-existing viral illness in December 2012. Tr. at 144-45, 150-53, 320; First Shapiro
Rep. at 3, 5. Rather, other than the fact that R.P. was diagnosed with a URI, R.P.’s medical record
offered an inconclusive picture. Tr. at 152-53. Dr. Shapiro agreed that R.P.’s health history
evidenced some mild respiratory symptoms (and serous otitis media) roughly three to four weeks
prior to his onset of TM, but maintained that it was not necessarily viral in nature (and in particular
that the serous form of an ear infection was not viral either). Id. at 153; Second Shapiro Rep. at 1;
see K. Hayes, Serous Otitis Media: Fluid in the Ears, Very Well Health,
https://www.verywellhealth.com/serous-otitis-media-1192111?print (last updated Aug. 2017),
filed as Ex. 75 (ECF No. 73-8) (“serous otitis media is not an ear infection”). There was otherwise
no evidence of a fever or severe, infectious symptoms in the December 2012 pediatric note. Tr. at
153; Ex 8 at 31. He also referenced MRI evidence taken during that time, which he opined showed
evidence of sinus thickening as “nonspecific” or “mild mucosal swelling.” Tr. at 160.31 He thus
categorized these earlier symptoms as nonspecific at best, or possibly related to teething. Id. at
150.32 Overall, he concluded that the December 2012 record did not support an identified, definite
virus or infection as the triggering event. Id.33 Though, he agreed on rebuttal (and in his report)
that respiratory viruses could trigger an adverse immune response resulting in TM. Id. at 322; First
Shapiro Rep. at 3; Second Shapiro Rep. at 1.

Dr. Shapiro also found R.P.’s lab tests results to be supportive of this point. As noted
earlier, Dr. Shapiro emphasized that R.P.’s viral panel conducted during his hospitalization was
negative for any infectious agent. Tr. at 152. Had R.P. experienced a viral-induced TM, R.P.’s
clinical presentation (including labs) would have identified the specific viral trigger. Id. at 150-51.
He also suggested a prior infection would have triggered the production of lymphocytes (which
R.P.’s labs similarly did not reveal). Id. at 144, 150, 153. Overall, he asserted that a post-infectious
CNS event would have included both documented viral symptoms post-vaccination, and/or

31
Petitioners filed the Nazari article in support of these particular assertions. See M. Nazari, et al., Incidental Detection
of Sinus Mucosal Abnormalities on CT and MRI Imaging of the Head, 3 Quant. Imaging Med. Surg. 82 (2013), filed
as Ex. 78 (ECF No. 81-2).

32
See S. Wilson, et al., Tooth Eruption and Otitis Media: Are They Related?, 8 Am. Acad. Pediatric Dentistry 296,
296 (1986), filed as Ex. 42 (ECF No. 72-2);

33
Upon further questioning, he also asserted that a viral URI was not one of the typical viruses associated with an
onset of TM. Second Shapiro Rep. at 1. Rather, he limited the TM viral triggers to include only varicella zoster, herpes
simplex, cytomegalovirus, Epstein-Barr, influenza, echovirus, HIV, Hep A, and rubella. Id.; see Transverse Myelitis
Fact Sheet, NIH, filed as Ex. 47 (ECF No.72-7).

25
mediation by a clearly identifiable antibody or lymphocyte (both of which were not definitively
supported by R.P.’s record). Id. at 152, 322.

D. Dr. Timothy Lotze

Respondent submitted one report from Dr. Lotze, who also testified for Respondent at
hearing. See Expert Report, dated July 10, 2014 (filed as Ex. A) (ECF No. 27-1) (“Lotze Rep.”).

Dr. Lotze obtained his bachelor’s degree from Texas A & M University in College Station,
Texas, followed by a medical degree at the University of Texas, San Antonio. Lotze CV, filed as
Ex. C (ECF No. 32-1) (“Lotze CV”) at 1. Thereafter, he completed two residencies and an
internship at Ohio State University in Columbus, Ohio, finishing his education with a residency in
child neurology at Baylor College of Medicine in Waco, Texas. Tr. at 178. He was then hired as a
faculty member at the Baylor College of Medicine, where is currently employed as an associate
professor of pediatrics and child neurology. Id.; Lotze CV at 1. He also serves as the director for
pediatric multiple sclerosis at Texas Children’s Hospital, as well as the director of the Muscular
Dystrophy Association Care Center (both in a clinical setting). Tr. at 179. He is board certified in
both neurology and pediatrics. Lotze CV at 1-2.

Dr. Lotze testified that he spends fifty percent of his time treating patients. Tr. at 179. At
Texas Children’s, Dr. Lotze treats infants and pediatric patients with both neuromuscular disease
and demyelinating CNS syndromes (including ADEM, MS, and NMO). Id. He estimated that he
has diagnosed around 100 children with TM over the course of his practice. Id. Dr. Lotze serves
as a panel reviewer for multiple scientific journals (including the Journal of Pediatrics and the
Journal of Neurology). Lotze CV at 3. He has also published papers on various CNS disorders
(including TM, MS and NMO). Id. at 3-7.

Although Dr. Lotze acknowledged that he lacked specific training or expertise in
immunologic matters, he opined that R.P.’s TM was not related to any of the vaccinations he
received in January 2013. Tr. at 182, 196; Lotze Rep. at 4. Based on his review of the record, Dr.
Lotze argued instead that R.P.’s TM-related symptoms presented within 24 hours of vaccine
administration, making it unlikely that the vaccines at issue herein were causative of his condition.
Lotze Rep. at 5. He also suggested that R.P.’s condition could be attributable to a pre-existing URI.
Id.

Consistent with Petitioners’ experts, Dr. Lotze characterized TM as an inflammatory
process damaging the spinal cord’s myelin (or insulation surround the nerve), which causes
demyelination and destruction of nerve tissue, resulting in both motor and sensory dysfunction.
Tr. at 183; Lotze Rep. at 4; see V. Wolf et al., Pediatric Acute Transverse Myelitis Overview and
Differential Diagnosis, 27 J. Child Neurol. 1426, 1426 (2012), filed as Ex. A, Tab 1 (ECF No. 70-
1) (“Wolf”). The clinical symptoms of TM can include weakness, lack of or loss of muscle tone
(resulting in flaccid paraplegia), lack of sensation, pain, irritability, bladder dysfunction or

26
complete absence of bladder activity, and/or bowel issues. Tr. at 183-84; Lotze Rep. at 4; Wolf at
1428.

Dr. Lotze testified that a child with acute onset TM would likely present with symptoms
such as general lethargy, lack of motor ability, pain, or sensory deficits (similar to the typical
course described above). Tr. at 184; see also Wolf at 1428. It could, however, be difficult to
evaluate the presenting symptoms in an infant given their inability to voice specific concerns. Id.
at 185; Lotze Rep. at 4. In assessing an infant for TM, Dr. Lotze opined that a “clear change” in
the child’s neurological abilities (such as an inability to sit up, be picked up, or changes in bladder
function) would indicate that an adverse process was occurring. Tr. at 185. With infants, many
times treaters will develop differential diagnoses when considering TM (given the constellation of
symptoms that can present as well as the infant’s inability to describe them). Id.

As Dr. Lotze explained, a TM diagnosis involves both the patient’s clinical history and
ancillary diagnostic studies, such as an MRI and CSF testing. Tr. at 183. Despite some well-defined
diagnostic criteria, the cause of TM is typically unknown (i.e. idiopathic). Id. at 189-90; Lotze
Rep. at 4. However, TM can be “disease-related” in some circumstances, meaning onset coincides
with another disease process (for example, MS, NMO, or lupus), some of which can be verified
through relevant antibody testing. Tr. at 190. He also allowed for the conclusion that TM can be
initiated by a viral illness. Id. at 192; Lotze Rep. at 4 (noting 50-100% of pediatric TM cases are
preceded by a mild URI three to four weeks prior to acute presentation). More often than not,
however, Dr. Lotze testified that TM is overwhelmingly idiopathic in nature, with no diagnostic
lab test which can identify a trigger. Tr. at 189-90.

Based on his own review of the medical records, Dr. Lotze agreed that R.P. was properly
diagnosed with TM based on the MRI evidence (which confirmed a “very extensive inflammatory
process” in the spinal cord from the cervical to thoracic region) along with the CSF analysis
conducted during his hospital stay. Tr. at 188-89; Lotze Rep. at 4. Contrary to Petitioners’ experts
(who attributed R.P.’s onset of TM to his vaccinations), however, Dr. Lotze concluded that R.P.’s
TM was instead more likely idiopathic in nature (given that immediate treaters could not identify
a possible cause at the time of diagnosis). Tr. at 189, 191-92. He acknowledged that later-in-time
treaters considered the vaccine as playing some role, but maintained that a “direct cause” was not
clearly identified during R.P.’s hospital stay in light of the relevant testing conducted at that point.
Id. at 192, 204-05.

R.P.’s respiratory symptoms pre-vaccination, Dr. Lotze proposed, could have played some
role in his development of TM. Tr. at 197; Lotze Rep. at 4-5. In so arguing, Dr. Lotze relied
primarily on two medical evaluations R.P. received during his hospitalization in January 2013. Tr.
at 192. That record assessed R.P. with “acute transverse myelitis” following a “viral illness.” Id.
(citing Ex. 5 at 18-24). Dr. Lotze agreed, however, that R.P.’s viral and bacterial panels conducted
during his hospitalization were both negative. Id. He also cited to various pieces of literature and
his own clinical experience in opining that the “vast majority” of idiopathic TM patients will have

27
reported some form of an upper respiratory infection prior in the weeks preceding onset of clinical
symptoms. Id. at 190; Lotze Rep. at 5; see also Wolf at 1427 (pediatric acute TM is preceded by a
“mild illness” in the three weeks prior in 50 to 100 percent of reported cases). Dr. Lotze also noted
that multiple case reports filed by Petitioners (reporting an onset of TM post-vaccination) involved
a preexisting viral illness or respiratory symptoms. Tr. at 190 (citing Riel-Romero at 688; Whittle
at 1450). Apart from the above, Dr. Lotze could not firmly identify a cause of R.P.’s TM, nor was
he aware of any association between TM and vaccination as set forth in any medical or scientific
literature. Id. at 206, 223-24.

As to the timing prong, Dr. Lotze testified that R.P.’s onset of TM symptoms likely
occurred on January 8th (or around 24 hours following vaccination), given the symptoms
documented in the record (including fever, urinary retention, generalized weakness, and
irritability). Tr. at 186, 187-88, 207, 211. In particular, Dr. Lotze referenced records from R.P.’s
initial hospital presentation on the 8th which revealed concern for urinary retention, generalized
weakness, and pain (i.e. not wanting to be picked up or touched) throughout the day of January
8th. Tr. at 187, 198; Lotze Rep. at 4-5. Dr. Lotze acknowledged that notes from the visit indicated
a normal neurologic assessment,34 but he also took note of the fact the R.P.’s parents and reported
persistent weakness (and urinary retention) with onset of January 8th (at daycare), along with a
low-grade fever within hours following vaccine administration. Tr. at 187-88, 200, 202-03; Lotze
Rep. at 5. The normal neurologic exam did not change Dr. Lotze’s opinion (even if tone and power
were not considered). Tr. at 207.

Given the evolution of R.P.’s symptoms, Dr. Lotze agreed that the continuing low-grade
fever and irritability reported in the early morning of January 8th would be consistent with a TM
course (as well as a post-vaccination reaction). Tr. at 187, 203. Even if R.P. lacked “full
manifestations” of TM symptoms on the 8th, Dr. Lotze did not deem his initial symptoms to be
significantly different in nature from those documented at the time of diagnosis on January 9th. Id.
at 187, 198, 208. Overall, Dr. Lotze stressed that his onset opinion considered the whole picture
with regard to R.P.’s health course (including both visit notes on January 8th and 9th, along with
parental reports of symptoms), which in his view evidenced a progression of symptoms with onset
on January 8th. Id. at 200. Based on his determination that onset occurred closer-in-time to January
8th, Dr. Lotze opined that the vaccinations R.P. received could not be the inciting factor for his TM
given how rapidly his symptoms progressed to diagnosis from date of vaccination. Id.

Given Petitioners’ reliance on the neutrophilic evidence contained in R.P.’s records (and
as evidence of a vaccine injury), Dr. Lotze offered some testimony in an attempt to diminish its
significance. Dr. Lotze agreed that increased levels of neutrophils can be detected in the CSF early

34
At hearing, Dr. Lotze pointed out that the “neurologic exam” conducted on January 8 th was performed by an ER
physician. Tr. at 187, 198, 210. But in his opinion, it was possible that this physician did not conduct a full assessment
of neurologic symptoms at this original presentation. Id. Dr. Lotze also later noted that R.P. was not seen by a
neurologist until January 10th. Id. at 210.

28
on in a TM diagnosis, while protein production tends to shift to “lymphocytic predominance” later
on in the disease process if the CSF is retested (which usually does not occur). Tr. at 195-96. But
he maintained that Petitioners’ experts had not adequately explained why neutrophils were
produced in the early stages of TM as opposed to in the context of other immune responses. Id. at
222. According to Dr. Lotze, the production of neutrophils and lymphocytes are a normal response
to any autoinflammatory process (whether caused by a virus or an infection). Id. at 196, 217-18,
221.35 In R.P.’s case, Dr. Lotze acknowledged that the record indicated a neutrophilic percentage
of 87% (with a contrasting lymphocytic percentage of 3%), but he concluded this only indicated a
neutrophilic predominance – not proof of cytokine involvement or vaccine-causation consistent
with Petitioners’ theory. Id. at 216-18.

Dr. Lotze did not offer any testimony regarding Petitioners’ proposed causation mechanism
in this case. He readily admitted that he is not an immunologist and could not offer an opinion
regarding the relationship between vaccine administration and a pathologic process resulting from
the stimulation of proinflammatory cytokines. Tr. at 215. Even so, he maintained (based on his
clinical experience) that he could find no “biological evidence for causation” in light of the facts
contained in R.P.’s medical history. Id. at 206.

E. Dr. Christine McCusker

Dr. McCusker served as Respondent’s second expert. She submitted two expert reports and
testified at hearing See Expert Report, dated June 25, 2014, 2016, filed as Ex. B (ECF No. 27-2)
(“First McCusker Rep.”); Expert Report, dated Aug. 24, 2015, filed as Ex. E (ECF No. 40-1)
(“Second McCusker Rep.”).

Dr. McCusker received her Masters in Molecular Virology in 1988, followed by a medical
degree in 1993, from McMaster University in Hamilton, Ontario. McCusker CV, filed as Ex. D
(ECF No. 32-2) (“McCusker CV”) at 1; Tr. at 226. She completed her residency in pediatrics at
Montreal Children’s Hospital, McGill University (“McGill”). Tr. at 227. Dr. McCusker also
completed a fellowship in allergy and immunology at McGill. Id. She currently serves as an
associate professor of pediatrics at McGill University Health Centers and directs the translational
respiratory research disease unit. Id. at 227-28. Her research domain also includes a wet lab
centered on understanding the interplay between the innate and adaptive immune system. Id. at
230-31. Dr. McCusker estimated that she spends fifty percent of her time in a
research/teaching/administrative capacity. Id. at 228. She is licensed in Canada and holds a
certification from the Royal College of Physicians and Surgeons of Canada in pediatrics and
clinical immunology. Id. at 227.

35
Dr. Lotze also cites to a visit note authored by R.P.’s treating infectious disease physician confirming this point. Tr.
at 221 (citing Ex. 5 at 21).

29
Dr. McCusker also maintains a clinical practice. She is an allergist “in practice” and
routinely sees infant and pediatric patients within the allergy/immunology and general pediatric
clinics at McGill. Tr. at 228. She also works part-time as an urgent care physician at Montreal
Children’s Hospital. Id. In her immunology practice, Dr. McCusker treats patients with various
allergic diseases (including allergies to vaccinations). Id. at 229. She is also responsible for
diagnosing and managing primary and secondary immunodeficiencies. Id. at 229-30. Dr.
McCusker’s treatment responsibilities in the general pediatric clinic are more varied and can
include acute care of small injuries or more serious ailments (i.e. a brain tumor or demyelinating
disease). Id. at 230, 307. At hearing, Dr. McCusker estimated that she has treated roughly four
patients with pediatric TM over the course of her career. Id. at 307.

Consistent with Petitioners’ experts, Dr. McCusker agreed that R.P. was properly
diagnosed with TM close-in-time to his January 2013 vaccinations. First McCusker Rep. at 7. She
opined, however, that the vaccines played no causal role in its development. Tr. at 234. In
particular, Dr. McCusker took issue with certain components of Petitioners’ proposed
immunologic mechanism—a cytokine storm resulting in dysregulation of the innate immune
system—arguing that the facts of this case (coupled with the relevant medical and scientific
literature) did not provide a reliable explanation for how cytokine upregulation could lead to a
pathologic process resulting in TM within the timeframe proposed.

Dr. McCusker began her testimony by describing idiopathic TM and its possible causes.
Consistent with prior testimony offered in this case, she categorized TM as a “progressive
inflammatory disease” of the spinal cord brought about by an inappropriate immune response
directed against self structures in the body. Tr. at 245, 285; First McCusker Rep. at 2. Medical
science, however, has not conclusively determined the cause of idiopathic TM. Tr. at 245, 276. In
her view, most of what is known about the disease relates to a patient’s course only after the disease
has been initiated (i.e. symptomology, cytokine levels, etc.). Id. at 276. She acknowledged that the
relevant research on the disease supports the conclusion that viral infections (via an autoimmune
theory) or direct trauma to the spinal cord can result in an onset of TM. Id. at 244, 279; First
McCusker Rep. at 2-3. Thus, in the specific context of a known autoimmune cause,36 Dr.
McCusker theorized that “autoreactive components” directed against the myelin or spinal cord
could be a product of a T cell-mediated response against the self-molecules. Tr. at 246.

Dr. McCusker next discussed her own understanding of Petitioners’ proffered causation
37
theory. According to Dr. McCusker, the sequence of events necessary for TM to develop post-

36
See Y. Katz-Levy, et al., Temporal Development of Autoreactive Th1 Responses and Endogenous Presentation of
Self Myelin Epitopes by Central Nervous Systems-Resident APCS in Theiler’s Virus Infected Mice, 165 J. Immunol.
304 (2000), filed as Ex. B, Tab 5 (ECF No. 70-8) (filed to support the mechanisms by which an infectious agent could
trigger an autoimmune disease).

37
Dr. McCusker expressed some confusion at hearing regarding portions of Dr. Shapiro’s testimony as it related to

30
vaccination (in R.P’s case) would require first the activation of the immune cells by
proinflammatory cytokines (specifically IL-6), followed by bulk cytokine migration from the
periphery through the BBB. First McCusker Rep. at 7. Then signaling for the inflammation to
begin in the spinal cord would have to occur (in conjunction with activation of inflammatory cells),
along with migration of immune cells to this site of injury. Id. In addition, the TM-related
inflammation and demyelination would have to precede the development of any symptomology
(resulting in an onset of observable symptoms over a period of days rather than hours). Id. As
discussed in more detail below, Dr. McCusker identified multiple deficiencies with this theory.

Dr. McCusker defined cytokines as a complex system of “proteins” released by immune
cells during an innate immune response. Tr. at 236. She estimated that cells can produce between
60-70 different types of cytokines, all with various cellular targets and functions (depending on
their location in the body). Id. at 237-38. For example, the body can produce “growth factor”
cytokines during an immune response. Id. at 237. Growth factor cytokines, such as IL-2, act as
signaling molecules that encourage T cell growth. Id. “Proinflammatory” or pyrogenic cytokines,
on the other hand, are released immediately (and increased) during periods of existing
inflammation and induce other cells to combat injury, infection, and the presence of disease. Id. at
237, 252, 292-93; First McCusker Rep. at 4. Cytokines are primarily a result of activation of the
innate immune system, and can also implicate the development of “sickness factors” (such as
general malaise or irritability) upon initial stimulation. Id. at 282, 291-92. Dr. McCusker identified
the “classic” proinflammatory cytokines as IL-1, IL-6, and TNF alpha. Id. at 282.

According to Dr. McCusker, cytokine-mediated inflammation caused by an innate immune
response to a vaccine is typically specific or localized to the place of insult (for example redness,
pain, or swelling at the injection site). Tr. at 249.38 She agreed that inflammation can expand within
the body, but it would do so locally (not systemically). Id. at 249-50. In R.P.’s case, for example,
Dr. McCusker postulated that a vaccination received in the thigh could cause inflammation at or
around the thigh area, but not the type of inflammation that could spread to other organ systems in
the body. Id. She agreed also that a localized response to a vaccination could also cause fever or

the proffered medical theory in this case. As she understood it, Petitioners’ theory centered on a vaccine-induced
production of proinflammatory cytokines (which caused an activation/dysregulation of the innate immune system and
eventually resulted in inflammation in the spinal cord). Tr. at 234. At times, however, Dr. Shapiro seemed to describe
Petitioners’ theory as a “type III hypersensitivity reaction” or an immune complex disease. Id. Dr. McCusker opined
that a type III hypersensitivity reaction requires the presence of “preformed mediators” or antibodies that bind to
antigens and result in immune complex deposits. Id. at 235. The amplified immune responses is then a result of the
preformed immune complexes, not cytokines. Id. Thus, she found that kind of theory wholly inapplicable to the present
matter.
38
Dr. McCusker agreed that adjuvants can upregulate inflammation to assist with an immune response. Tr. at 254.
She maintained, however, that such upregulation would only result in a more amplified localized reaction (consistent
with the above). Id. In her view, adjuvants play no role in any alleged cytokine upregulation or expansion to the CNS.
Id. at 255-56. She also cited literature generally discussing the safety of using adjuvants in vaccines. See M. Kool, et
al., Alum Adjuvant Boosts Adaptive Immunity by Inducing Uric Acid and Activating Inflammatory Dendritic Cells,
205 JEM 869 (2008), filed as Ex. E, Tab 3 (ECF No. 71-5).

31
sickness behaviors (as noted earlier). Id. a 291-92. But these symptoms are not due to systematic
circulation of cytokines, but “local stimulation of nerve endings resulting in a signal directly to the
hypothalamus.” Id. at 292.

Consistent with the above, Dr. McCusker categorized the proinflammatory cytokine, IL-6,
as “primarily a localized cytokine” produced in the periphery. Tr. at 238-39. In the immune system,
IL-6 is released in very low levels in the systemic circulation during an inflammatory process (as
evidenced by the onset of fever and inflammation). Id. at 238; First McCusker Rep. at 4. In the
CNS, or the brain, however, IL-6 can play a different role depending on the site of expression and
timing of release (including the differentiation/survival of neuronal or glial cells, the amelioration
of disease, and/or the regulation of food intake, energy expenditure, and body temperature control).
Tr. at 238; First McCusker Rep. at 4. Brain cells can also express proinflammatory cytokines in
response to an attack or infection in the brain or CNS. Tr. at 239; see M. Erta, et al., Interleukin-
6, A Major Cytokine in the Central Nervous System, 8 Int. J. Bio. Sci. 1254, 1256 (2012), filed as
Ex. B, Tab 3 (ECF No. 70-6) (finding both the central and peripheral nervous system can express
IL-6).

Based on her review of the relevant scientific and medical literature filed in the present
matter, Dr. McCusker disputed Petitioners’ contentions that a vaccine could sufficiently stimulate
the production of IL-6 to result in a pathogenic process leading to TM. Tr. at 243, 306. She began
by referencing Kaplin I (which Petitioners argue supports the conclusion that an upregulation of
IL-6 alone is sufficient to cause TM). Dr. McCusker agreed that Kaplin I supports the conclusion
that IL-6 has been shown to be elevated in the CSF of TM patients – and more importantly, that it
may mediate some of the immunopathological effects of the disease as well. Tr. at 294; First
McCusker Rep. at 4; Kaplin I at 2733, 2738. But, she maintained, Kaplin I does not persuasively
implicate any vaccine as a trigger for the IL-6 production in the first place. First McCusker Rep.
at 4. Kaplin I also identified the likely source of the IL-6 production as the microglia located inside
the spinal cord/CNS, not from the periphery as Petitioners propose. Tr. at 242; Kaplin I at 2733.
The Graber study similarly undercuts the role of IL-6 by suggesting other soluble factors might be
involved in its production in astrocytes. Graber at 130.

In addition, Dr. McCusker took issue with the rat model evidence in Kaplin I, noting that
it resulted from the use of “super high” doses of IL-6 (in amounts exceeding that normally found
in the human blood by multiples of thousands) injected directly into the spinal cord, thus bypassing
the other biological processes that Petitioners’ theory assumes to have occurred. Tr. at 242-43; see
Kaplin I at 2735. She therefore maintained that Kaplin I only supported the argument that IL-6
could be implicated in the development of the pathology associated with the disease – not that
vaccination could be causative of an overproduction of IL-6 originating in the periphery sufficient
to cause CNS harm. Tr. at 243.

32
Dr. McCusker next discussed the relationship between the alleged vaccine-induced IL-6
cytokine upregulation and the eventual migration of these cytokines from the periphery through
the BBB. First McCusker Rep. at 7. Dr. McCusker defined the BBB as both the “theoretical” and
“actual” construct separating the periphery from the CNS. Tr. at 238-39. Breach of the BBB could
occur via the “actual transport” of cytokines from outside the CNS through the BBB via the binding
of cells at its surface, or through an “active transport system” involving cytokine/receptor
signaling. Id. at 241. Dr. McCusker thus admitted that cytokines can cross the BBB, but opined
that cytokines released in the periphery are produced in too small amounts to have a harmful CNS
effect. Id. at 253, 267. She stressed that it could not be assumed that periphery cytokines cause
every adverse event that occurs in the CNS (especially since, as noted above, cytokines can be
expressed inside the CNS without peripheral involvement). Id. at 300. Dr. McCusker thus argued
that the Petitioners could not explain how a miniscule amount of IL-6 (while originating in the
periphery) could cross the BBB and expand to the CNS. Id. at 249-50, 296.

Dr. McCusker also supported her opinion with reference to Kashiwagi. Tr. at 265. She
acknowledged that Kashiwagi supports the contention that small amounts of proinflammatory
cytokines are upregulated upon receipt of a vaccination (and can lead to fever as well). Id. at 265,
267; Kashiwagi at 677. But Kashiwagi concluded that only one cytokine (G-CSF, a growth-factor
cytokine) was found to be upregulated in febrile, vaccinated children (thus, in her view, only G-
CSF could be a good marker for prediction of onset of fever). Tr. at 266. This conclusion undercut
Petitioners’ assertion that IL-6 is the key vaccine-induced cytokine (as Kashiwagi found no
significant increase in IL-6 production post-vaccination). Kashiwagi at 679. Accordingly, in her
view, Kashiwagi better supported the conclusion that most peripheral cytokines (apart from G-
CSF) are not increased post-vaccination, and are not necessarily associated with post-vaccination
fever either. Tr. at 267; see Kashiwagi at 680.

In addition, Dr. McCusker maintained that R.P.’s overall clinical picture was inconsistent
with what is known about a typical cytokine-mediated reaction or syndrome. In her view, a
cytokine-mediated pathologic event (consistent with Petitioners’ theory) would result initially in
identifiable symptoms either originating or occurring in the periphery (including headaches
stimulated from the periphery, hypotension, and/or peripheral organ damage) prior to any CNS
harm. Tr. at 253-54. This was consistent with the fact (as also argued by Petitioners) that cytokines
are released from the site of vaccination immediately upon the vaccine’s administration (and can
result in certain autoinflammatory syndromes and/or sickness factors). Id. at 252, 298. Here,
however, R.P.’s clinical picture was inconsistent with the above. Id. at 254. At most, R.P.’s record
included initial concerns for fever and general malaise (which could be vaccine-related), but he
then experienced initial CNS symptoms at least by 36 hours following vaccine administration –
nothing like what Dr. McCusker would expect in a cytokine-mediated reaction beginning
peripherally. Id. at 254, 283, 290.

33
Along those same lines, Dr. McCusker opined that any cytokine-mediated innate immune
response would require anywhere from two to four days – measured from activation in the spinal
cord (and not the date of vaccine administration) to the onset of clinical symptomology. Tr. at 251-
52, 288; Second McCusker Rep. at 3. For support, Dr. McCusker again referenced the rat model
studied in Kaplin I, which, following direct injection of IL-6 (at extremely high levels) into the
spinal cord, required at minimum two days more before weakness developed – and this did not
account for the time it would take for the cytokines in the periphery to breach the BBB first. Tr. at
251, 288. The two to four-day timeframe proffered in Kaplin I could not be used as a template for
assessing the timeframe from vaccination to CNS harm. Id. at 288. And as a result, in Dr.
McCusker’s view, R.P.’s onset of TM likely could not have occurred within two days of
vaccination, as Petitioners alleged. See id.39

Based on her review of R.P.’s illness course, Dr. McCusker opined that any the
inflammatory process responsible for R.P.’s TM likely began prior to his January 7th vaccinations.
Second McCusker Rep. at 3; see Tr. at 244, 257. In so maintaining, she placed his onset of TM
symptoms close-in-time to his emergency room presentation on the evening of January 8th (or
within 36 hours post-vaccination). Tr. at 263-64, 290. Any inciting event leading to R.P.’s onset
of TM would have been initiated and likely progressed over several days before recognizable
neurologic symptoms manifested. Id. at 264; Second McCusker Rep. at 3. In support, Dr.
McCusker referenced R.P.’s ER presentation notes from January 8th (which included concerns for
symptoms that looked neurologic in nature, as well as a recommendation that R.P. return should
symptoms progress further, underscoring their significance). Tr. at 264, 258. She also relied on her
own clinical practice in so opining. In her own ER experience, it was common for a pediatric TM
patient to present to the ER initially (with irritability, fever, and/or “soft neurologic signs”), and
return with additional/progressive symptoms later resulting in a TM diagnosis. Id. at 263-64.

Dr. McCusker did acknowledge that the two-day timeframe argued by Petitioners was at
least partially consistent with some of the case reports filed by Petitioners in support. Tr. at 269.
Based on her view of the case report evidence, she determined that R.P.’s timing would be the
second earliest reported case to date. Id. However, she directly disputed the significance of case
reports as implicating any causal connection between a vaccine and an injury. Id. In her view, case
reports simply alert the medical community to a possible association, to encourage further
investigation. Id. at 268. She otherwise filed case reports in response reporting a vaccination close-
in-time to onset of TM (but with onset measured by days rather than hours). See, e.g., H. Kelly,
Evidence for Causal Association Between Oral Polio Vaccine and Transverse Myelitis: A Case
History and Review of the Literature, 42 J. Ped. & Child Health 155 (2006), filed as Ex. B, Tab 7

39
At hearing, Dr. McCusker testified that she would not accept Petitioners’ cytokine-mediated theory even if R.P.’s
TM onset occurred six days following administration – a period of time more consistent with her reading of Kaplin I.
Tr. at 296-97. Given the way cytokines are regulated in the immune system (i.e. produced locally), by day six, the
periphery would contain insufficient cytokines left over from the initial inciting event to keep up the pathologic process
implicated in such a theory. Id. at 297-98.

34
(ECF No. 71-2) (six-month-old infant developed TM seven days following receipt of oral polio
vaccine); G. Zanoni, et al., Transverse Myelitis After Vaccination, 9 Eur. J. Nephrology 687
(2002), filed as Ex. B, Tab 6 (ECF No. 71-1) (fifteen-month-old infant developed TM twenty-one
days following receipt of MMR vaccine).

Dr. McCusker also directly disputed Petitioners’ reliance on Netea to support the
contention that R.P.’s previous vaccine doses could have hastened his onset of TM symptoms via
a presensitization/anamnestic response. Tr. at 247-48. Based on her review of Netea and her
knowledge of general immunologic principles, Dr. McCusker opined that the purpose of a booster
vaccination is to increase an immune response to certain components of the vaccine by training
the immune system’s memory B/T cells to recognize the invader. Id. She stressed, however, that a
booster vaccine does not “expand the profile” of immune responses against the component being
vaccinated against. Id. at 247. Rather, it decreases the possibility of any bystander effects or
antigenic mimicry presented by exposure to the wild virus at issue. Id. at 248. In her opinion,
presensitization or an anamnestic response plays no role in the pathogenesis of an alleged vaccine-
induced injury occurring in the innate system. Id. According to Dr. McCusker, the relevant
scientific literature categorizes an anamnestic response as a cell-mediated product of the adaptive
immune system (as opposed to a cytokine-mediated innate response). Id. at 250-52. And in any
event, an adaptive response would require a delayed manifestation of symptoms (by at least seven
to fourteen days following the inciting event). Id. at 250-51.

Apart from the above-identified deficiencies, Dr. McCusker also maintained that the
scientific literature submitted could not reliably support any causal relationship between a vaccine
and the development of TM even if one were to assume that an upregulation of IL-6 cytokines in
the periphery somehow could cross the BBB under the present facts. Tr. at 284-85, 287. Dr.
McCusker referenced Pidcock (submitted by Petitioners as supportive of a vaccine-induced TM
injury), which she acknowledged indicated a report of a previous vaccination within 30 days of
TM onset in 28 percent of the pediatric cases studied. Id. at 257; Pidcock at 1479. Upon review,
however, Dr. McCusker noted that study actually concluded that there was no significant causal
relationship between immunization and an onset of TM. Pidcock at 1479. Specifically, (as Dr.
McCusker asserted at hearing) Pidcock’s authors took into account the fact that young children
receive many vaccines earlier in life (as recommended by the schedule), further weighing against
any significant relationship. Tr. at 258-89; Pidcock at 1479.

Given Petitioners’ reliance on the neutrophilic evidence in R.P.’s health record, Dr.
McCusker next attempted to refute the argument that R.P.’s increased levels of neutrophils post-
vaccination suggested a vaccine-related TM injury. Tr. at 301. Consistent with prior testimony,
Dr. McCusker categorized neutrophils as the primary repair or defensive white blood cell in the
innate system. Id. at 302.40 She also acknowledged that neutrophils are the nonspecific, first

40
In comparison, Dr. McCusker opined that lymphocytes (or secondary responders) are a part of the adaptive immune

35
responders to areas of inflammation and tissue damage in the body during an immune response.
Id. In the context of the present matter, Dr. McCusker agreed that increased levels of neutrophils
could indicate that R.P. was experiencing some underlying inflammation, but she contended that
neutrophils cannot indicate what triggered their increased production or what caused the
inflammation. Id. at 303.

Consistent with Dr. Lotze’s testimony, Dr. McCusker asserted that R.P.’s TM (while
idiopathic in nature) could more likely have been caused by his preexisting URI/otitis media than
the subsequent vaccinations. Tr. at 244, 289.41 At hearing, Dr. McCusker asserted that pediatric
TM is commonly associated with an antecedent infection (with up to 71 percent of patients
reporting some prior infection). Id. at 256-57; Second McCusker Rep. at 3. She acknowledged, on
the other hand, that R.P.’s viral work-up (completed during his hospitalization) was negative, and
that he appeared healthy at the time of vaccine administration. Tr. at 290. She opined, however,
that a resolved infection could still be sufficiently pathogenic to result in the development of TM
(via the typical, immune-mediated mechanisms such as antigenic mimicry or bystander activation).
Second McCusker Rep. at 3. In her view, a resolution of symptoms (or even treatment of an
infection with antibiotics, for example) did not change the initial “kick-up” of the immune response
caused by that infection in the first place. Tr. at 259-60.

To support the above, Dr. McCusker pointed to an instance in the record where R.P.’s
treating pediatrician diagnosed him with respiratory symptoms (and serous otitis media) during a
visit in December 2012 (roughly three weeks prior to vaccine administration). Id. at 244. It was
noted that R.P. was prescribed antibiotics as well. Ex. 8 at 31. During his hospital stay, an
emergency room physician similarly opined that R.P.’s pre-vaccination respiratory symp

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4372888. Public record. Not legal advice.