# Nunez v. Secretary of Health and Human Services

> United States Court of Federal Claims · June 12, 2019

URL: https://www.frixlaw.com/law-library/cases/4406160

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** June 12, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Herbrina Sanders
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4406160

## How later opinions describe it (automated extraction)

- holding that it is not a petitioner’s burden “to rule out possible alternative causes” (internal citations omitted)

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 29, 2019

* * * * * * * * * * * * * * *
JORDIA NUNEZ and JOHN DIAZ, * No. 14-863V
as legal representatives of J.J.D., *
an infant, deceased, * Special Master Sanders
*
Petitioners, * Hepatitis B (“HBV”) Vaccine; Rotavirus
* Vaccine; Diphtheria-Tetanus-acellular
v. * Pertussis (“DTaP”) Vaccine; Haemophilus
* Influenza Type B (“HiB”) Vaccine;
SECRETARY OF HEALTH * Inactivated Polio Vaccine (“IPV”);
AND HUMAN SERVICES, * Pneumococcal Conjugate Vaccine; Sudden
* Infant Death Syndrome (“SIDS”); Althen
Respondent. * Causation
* * * * * * * * * * * * * *
Sylvia Chin-Caplan, Law Office of Sylvia Chin-Caplan, Boston, MA, for Petitioners.
Adriana R. Teitel, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ENTITLEMENT1

On September 17, 2014, Jordia Nunez and John Diaz (“Petitioners”), as legal
representatives of J.J.D. (“J.J.”),2 a deceased infant, filed a petition pursuant to the National
Vaccine Injury Compensation Program.3 Petitioners alleged that the death of their minor son, J.J.,
was caused by “adverse effects” of hepatitis B virus (“HBV”); rotavirus; Diphtheria-Tetanus-
acellular Pertussis (“DTaP”); haemophilus influenza type B (“HiB”); inactivated polio (“IPV”);
and pneumococcal conjugate vaccines that he received on November 14, 2012. Pet. at 1, ECF No.
1; Amended Pet. at 1, ECF No. 21-1.

After carefully analyzing and weighing all the evidence and testimony presented in this
case in accordance with the applicable legal standards, the undersigned finds that Petitioners have

1
This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such material
will be deleted from public access.
2
J.J.D. was referred to as “J.J.” throughout the hearing, despite the caption. J.J. will be used throughout
the opinion. Tr. at 10:15.
3
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-
10 et seq. (hereinafter “Vaccine Act,” “the Act,” or “the Program”).
not met their legal burden. Petitioners have not provided preponderant evidence that the
vaccinations J.J. received on November 14, 2014, can cause SIDS generally, or that one or more
of them caused J.J. to succumb to SIDS. Accordingly, Petitioners are not entitled to compensation.

I. Procedural History

This case was originally assigned to Special Master Hamilton-Fieldman. See ECF No. 4.
Petitioners filed eleven exhibits consisting of medical records and affidavits. Pet’rs’ Exs. 1–11;
ECF No. 6-1–6.11. On February 3, 2015, Respondent filed his Rule 4(c) Report. ECF No. 11.
Respondent argued that Petitioners’ claim “lack[ed] any medical corroboration” and that
Petitioners had “not proffered any mechanism of injury to explain how [J.J.’s] death was vaccine-
related.” Id. at 5. Respondent also noted that “[n]o treating physician ha[d] ascribed [J.J’s] death
as being related to any of the vaccinations he received on November 14, 2012.” Id.

On June 19, 2015, Petitioners filed an amended petition, substituting initials for J.J.’s name
throughout the document and adding language alleging that J.J.’s death was “a result of the adverse
effects” of the vaccines he received. Amended Pet. at 1. The same day, Petitioners filed an expert
report authored by Dr. Douglas Miller. Pet’rs’ Ex. 12, ECF No. 21-2.

On November 19, 2015, Respondent filed two responsive expert reports, authored by Dr.
Christine McCusker and Dr. Rebecca Folkerth. Resp’t’s Exs. A, C, ECF Nos. 37-1, 41-1.
Thereafter, Petitioners filed a supplemental expert report authored by Dr. Miller on January 19,
2016. Pet’rs’ Ex. 37, ECF No. 44-1. Respondent filed supplemental responsive expert reports
authored by Dr. McCusker and Dr. Folkerth on April 11, 2016, and April 14, 2016, respectively.
Resp’t’s Exs. E, F, ECF Nos. 51-1, 56-1.

At a status conference held on May 10, 2016, the parties agreed to proceed to an entitlement
hearing. Order, ECF No. 58. Another status conference was held on October 18, 2016, and the
parties discussed the case in light of Special Master Hamilton-Fieldman’s August 29, 2016
decision denying entitlement in a similar case, Jewell v. Sec’y of Health and Human Servs., No.
11-138V, 2016 WL 5404165 (Fed. Cl. Spec. Mstr. Aug. 29, 2015). Order, ECF No. 59.
Ultimately, Petitioners admitted that their case bore many similarities to Jewell, but they requested
to proceed to a hearing. See id.; Pet’rs’ Stat. Rept., ECF No. 65.

The case was reassigned to the undersigned on January 10, 2017. See ECF Nos. 66–67.
At a status conference held on February 16, 2017, the parties discussed the case and the features
which Petitioners felt distinguished their case from Jewell. See Order, ECF No. 69. Petitioners
again requested that they and their expert be afforded an opportunity to testify at an entitlement
hearing. Id. Thereafter, Petitioners filed a second supplemental expert report authored by Dr.
Miller and a second affidavit authored by Petitioner Jordia Nunez (“Ms. Nunez”). Pet’rs’ Exs. 38–
39, ECF No. 71-1, 71-2.

An entitlement hearing was held in Washington, D.C., on February 22 and 23, 2018. The
parties timely filed post-hearing briefs. ECF Nos. 103, 106, 110. This matter is now ripe for a
decision.

2
II. Factual Background

A. Medical Records

Ms. Nunez was in her early twenties when she became pregnant with twins in 2012. Pet’rs’
Ex. 5 at 24 (filed on compact disk; ECF No. 6). Ms. Nunez had previously given birth to a baby
girl in 2008 and had experienced preeclampsia and mild hypertension with that pregnancy. Id.
The 2012 pregnancy was considered high risk due to Ms. Nunez’s history and it being a twin
gestation, but an early workup for preeclampsia and hypertension was negative. Id. at 66, 82. Ms.
Nunez attended several prenatal appointments between March and July 2012. See id. at 23–99.
On July 10, 2012, Ms. Nunez was transported to Bronx Lebanon Hospital in pre-term labor. Pet’rs’
Ex. 2 at 5 (filed on compact disk; ECF No. 6). Ms. Nunez naturally delivered twins on July 11,
2012. Pet’rs’ Ex. 6 at 6 (filed on compact disk; ECF No. 6). J.J. and his twin sister were born at
approximately twenty-nine weeks and two days’ gestation. Id. at 8; Pet’rs’ Ex. 2 at 58. J.J.’s
Apgar scores4 were seven and eight at one minute and five minutes, respectively. Pet’rs’ Ex. 6 at
6. The twins were transferred to the neonatal intensive care unit (“NICU”) after birth due to their
prematurity. Id. at 6, 27; Pet’rs’ Ex. 2 at 58. Ms. Nunez was discharged from the hospital on July
13, 2012. Pet’rs’ Ex. 2 at 58.

J.J. had episodes of respiratory distress upon admission to the NICU, and he received nasal
continuous positive airway pressure (“NCPAP”) from July 11 through July 15, 2012. Pet’rs’ Ex.
6 at 29, 34, 36, 38, 40, 898–99. He remained in the NICU until August 31, 2012, when he was
discharged home in stable condition. Id. at 901.

On September 13, 2012, J.J. was seen by Dr. Yves Verna for his two-month well-baby
examination. Pet’rs’ Ex. 7 at 1–3 (filed on compact disk; ECF No. 6). Dr. Verna noted that J.J.
was taking vitamin supplements and that he was being breastfed approximately every twelve
hours, supplemented with cow’s milk formula as needed. Id. at 1. Dr. Verna wrote that J.J. was
“[w]ell-appearing, alert, well hydrated, and active” and that he was “[n]ot acutely ill.” Id. She
noted the following about J.J.’s growth and development: “Vocalizes, attentive to voices, has a
social smile, the gaze follows past the midline, lifts the head and chest off a surface, the head is
steady in an upright position, and the hands are open 50% of the time.” Id. at 2. J.J. received
rotavirus, DTaP, HiB, IPV, and pneumococcal conjugate vaccines during the visit. Id. at 3. J.J.’s
parents were instructed to give him Tylenol every four hours for 48 hours after vaccination. Id. at
2.

On November 14, 2012, J.J. was brought to Dr. Verna for his four-month well-baby
examination. Pet’rs’ Ex. 7 at 3–5. Dr. Verna documented that J.J. had “[n]o fever,” “[n]o cough,”
his “[a]ppetite [was] not decreased[,]” and he had “[n]o difficulty sucking.” Id. at 3. She also
documented that there were “[n]o parental concerns about hearing[,] vision[, or] behavior.” Id.
J.J. weighed 11 lbs. and measured 22.75 inches long with a head circumference of 39.5 cm. Id.
Those measurements put him at the low end of the normal range for weight and slightly under the

4
An Apgar score is “a numerical expression of the condition of a newborn infant . . . being the sum of
points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color.”
Dorland’s Illustrated Medical Dictionary 1682 (32nd ed. 2012) [hereinafter “Dorland’s”]. Between seven
and ten is considered “[n]ormal [r]ange.” See Pet’rs’ Ex. 7 at 2.
3
normal range for body length and head circumference. Id. Dr. Verna wrote that J.J. was “[w]ell-
appearing, alert, well hydrated, and active.” Id. She noted the following about J.J.’s growth and
development: “Turns toward voices, visual track 180 degrees, laughs, no head lag when pulled to
sitting position, brings hands together, and reaches for objects.” Id. at 4. The physical examination
portion of the note reflects no abnormalities, including “[n]o nasal discharge seen.” Id. at 3. J.J.
received HBV, rotavirus, DTaP, HiB, IPV, and pneumococcal conjugate vaccines during the visit.
Id. at 5. The note reflects that the vaccines were administered between 5:40 p.m. and 6:24 p.m.
that evening. Id. at 4–5. J.J.’s parents were instructed to give him Tylenol every four hours for
48 hours after vaccination. Id. at 4.

The next morning, on November 15, 2012, a 911 call was made from Petitioners’ residence
at around 9:49 a.m. Pet’rs’ Ex. 8 at 1 (filed on compact disk; ECF No. 6). The caller described
J.J. and stated: “He’s not breathing.” Id. An ambulance was dispatched and arrived at Petitioners’
home at 9:53 a.m. Id. EMS crew members evaluated J.J. and found him to be unresponsive, with
non-reactive pupils and absent lung sounds. Id. at 3. The crew members documented that J.J.’s
skin color was either cyanotic5 or normal, and his skin temperature and condition were marked as
normal. Id. Crew members found no injuries on physical examination. Id. At both 9:55 a.m. and
10:00 a.m., J.J. was found to have no pulse or respiration. Id. In the ambulance, J.J. was treated
with a bag valve mask, oral/nasal airway support, CPR, and oxygen therapy. Id. Petitioners
reported to the EMS crew members that J.J. was last awake at 11:00 p.m. the night before. Id.
The ambulance left Petitioners’ home at 9:57 a.m. and arrived at the nearest hospital at 10:01 a.m.
Id. at 1. J.J. was pronounced dead at the hospital at 10:23 a.m. Pet’rs’ Ex. 9 at 12 (filed on compact
disk; ECF No. 6); Pet’rs’ Ex. 6 at 1.

The attending physician upon arrival at the hospital was Dr. Ye Aung. He and a resident
authored a note which includes a timeline of events provided by Petitioners. Pet’rs’ Ex. 9 at 15–
19. The note reflects that J.J. had received vaccinations in the previous evening and had been
given Tylenol. Id. at 16. Petitioners reported that J.J. “was a bit cranky,” that he was fed formula
around 9:30 p.m., and that he was put to bed at around 11:00 p.m. Id. Petitioners stated that the
next morning, Ms. Nunez awoke at around 8:30 a.m., found J.J. and his twin sister sleeping, and
took the older sister to school. Id. Mr. Diaz brought J.J.’s twin sister to the living room at
approximately 9:00 a.m. because she had awakened and J.J. remained sleeping. Id. Ms. Nunez
returned home at around 9:30 a.m. and checked on J.J. She saw that “his face [was] all blue and
unresponsive[.]” Id. Ms. Nunez “carried [J.J.] to the living room, called 911, and started a
cardiopulmonary resuscitation on him.” Id.

The note also includes a timeline that Petitioners provided to a social worker at the hospital.
Pet’rs’ Ex. 9 at 15. According to the note, Petitioners relayed that Ms. Nunez last checked on J.J.
and his twin sister at 11:00 p.m. the previous evening. Id. J.J. and his twin sister “slept thr[ough]
the night as always[.]” Id. The next morning, Ms. Nunez took her oldest daughter to school after
checking on the twins. Id. Mr. Diaz relayed that J.J.’s twin “started crying [and] he hurried up to
pick her up so she would not wake” J.J., who “appeared to be asleep[.]” Id. When Ms. Nunez
returned home, she observed Mr. Diaz and J.J.’s twin sleeping together, and she checked on J.J.
Id. At that point, Ms. Nunez “noticed [J.J.] was not breathing and screamed” for Mr. Diaz. Id.

5
Cyanosis is “a bluish discoloration, especially of the skin and mucous membranes due to excessive
concentration of deoxyhemoglobin in the blood.” Dorland’s at 452.
4
Ms. Nunez “tried blowing in [J.J.’s] mouth[,]” and Mr. Diaz “called the police.” Id. The note
reflects that the social worker contacted the authorities, but that child services “decline[d] to
[a]ccept the case[,] [c]iting [the] M.D. rul[ing]” that the cause of death was SIDS. Id.

An autopsy was performed on November 16, 2012, by Dr. James Gill. Pet’rs’ Ex. 10 (filed
on compact disk; ECF No. 6). Dr. Gill’s report reflects that J.J. was “a well-developed, well-
nourished, average-framed, 23[-inch-long], 14-pound” boy, with no evidence of recent injury. Id.
at 5. The head was “turned to the right on presentation.” Id. Dr. Gill noted bandages on the thighs,
commenting that there were “recent vaccinations.” Id. Dr. Gill indicated that the myocardium,
lungs, liver, kidneys, spleen, intestines, stomach, esophagus, laryngeal wall, thyroid gland, and
thymus gland were unremarkable, although petechiae6 were noted on the thymus gland.7 Id. at 1.
He noted a “[f]ocal epicardial hemorrhage” in the heart. Id. He also noted “[p]ancreas with
autolysis” and “[a]drenal glands with medullary congestion.” Id. A nasopharyngeal swab was
tested, but no influenza viruses were detected. Id. at 2.

Under a section of the report entitled “Final Diagnoses,” Dr. Gill wrote the following:

I. SUDDEN UNEXPECTED DEATH IN INFANT.
A. HISTORY OF PREMATURITY (26 [sic] WEEKS).
B. RECENT UPPER RESPIRATORY INFECTION.
C. RECENT IMMUNIZATIONS.
D. ONE OF A TWIN GESTATION.
E. CO-SLEEPING WITH TWIN IN CRIB.
F. BLOOD AND CSF CULTURES: NEGATIVE.
G. INFLUENZA STUDIES: NEGATIVE.
H. TOXICOLOGY POSITIVE FOR ACETAMINOPHEN.
I. METABOLIC STUDIES: NEGATIVE.

Id. at 3. Dr. Gill ruled that the “cause of death” was “Sudden Infant Death Syndrome” and the
“manner of death” was “natural.” Id.

An examination of the brain was performed by Dr. Hernando Mena on November 27, 2012.
Pet’rs’ Ex. 10 at 10. The brain weighed 618 grams. Id. Dr. Mena wrote that microscopic
examination revealed “recative [sic] astrocytes8 within the region of the raphe nucleus in the
midbrain and pons, and medullary inferior olivary nuclei. The intracranial dura reveals formation
of a subdural fibrovascular membrane with few hemosiderin-laden macrophages.” Id. The report
reflects two diagnoses: (1) “subdural hemorrhage, organized, cerebral convexities;” and (2)
“[g]liosis,9 brain stem nuclei.” Id.

6
A petechia is “a pinpoint, nonraised, perfectly-round, purplish red spot caused by intradermal or
submucous hemorrhage.” Dorland’s at 1422.
7
The thymus is a lymphoid organ. Dorland’s at 1925. It is the site where T lymphocytes are produced.
Id.
8
Astrocytes, also known collectively as astroglia, are neuroglial cells of ectodermal origin. Dorland’s at
169–70. They “appear to play a role in myelin formation, transport of material to neurons, and maintenance
of the ionic environment of neurons.” Id. at 1265.
9
Gliosis is “an excess of astroglia in damaged areas of the central nervous system.” Dorland’s at 784.
5
The accuracy of the medical records is not in dispute in the case. Both parties agree on the
date and circumstances surrounding J.J.’s vaccinations as represented in the medical records.
Additionally, J.J.’s medical history is not disputed by either party, although different conclusions
are drawn from symptoms and test results within the record. Both parties also agree that J.J.’s
cause of death was SIDS and that all the information noted in the autopsy report is accurate;
however, the significance of any objective finding may be in dispute.

B. Affidavits

Ms. Nunez filed two affidavits and Mr. Diaz filed one affidavit. Pet’rs’ Exs. 3–4, 39 (filed
on compact disk; ECF No. 6), ECF No. 71-2. The affidavits were consistent with the medical
records detailing Ms. Nunez’s pregnancy and the twins’ medical histories. Ms. Nunez wrote that
J.J. “had respiratory problems due to lung immaturity and was placed on a CPAP machine[, and
that h]e was also placed on antibiotics and in photo therapy for jaundice.” Pet’rs’ Ex. 3 at 2; see
also Pet’rs’ Ex. 4 at 2. Both parents also wrote that “[a]ll testing that was done on [J.J.] came back
normal” and he “was the healthier, stronger of the two” twins. Id. They wrote that J.J. was
discharged from the NICU on August 31, 2012, while his twin remained in the NICU until
September 7, 2012. Id. Ms. Nunez wrote that the twins “slept together at opposite ends of their
crib. When they were put to bed at night, they each had a light blanket that [she] tucked around
their waist. There were no pillows in their crib.” Pet’rs’ Ex. 39 at 1.

Ms. Nunez and Mr. Diaz both wrote that J.J. was examined and found to be “a healthy
baby” at his first well-baby visit on September 13, 2012. Pet’rs’ Ex. 3 at 2–3; Pet’rs’ Ex. 4 at 2.
They described a call to the pediatrician in October 2012 because J.J. “had a stuffy nose.” Pet’rs’
Ex. 3 at 3; Pet’rs’ Ex. 4 at 2. They wrote that Ms. Nunez “was told to use saline.” Id. After that,
Ms. Nunez wrote that J.J. “continued to thrive.” Pet’rs’ Ex. 3 at 3. Mr. Diaz wrote that J.J. “was
growing and getting stronger.” Pet’rs’ Ex. 4 at 2.

Both parents wrote that J.J. had his four-month visit with Dr. Verna on November 14, 2012,
at approximately 7:00 p.m. Pet’rs’ Ex. 3 at 3; Pet’rs’ Ex. 4 at 2. Both also wrote that J.J. and his
twin sister “had runny noses and productive coughs” on that date. Id. Ms. Nunez wrote that Dr.
Verna “did not perform a physical examination” on either twin and that “neither their ears [n]or
chests were checked.” Pet’rs’ Ex. 3 at 3. Mr. Diaz wrote that Ms. Nunez “pointed out [the
symptoms of runny nose and cough] to the doctor.” Pet’rs’ Ex. 4 at 2. The parents wrote that Dr.
Verna weighed, measured, and administered vaccinations to the twins. Pet’rs’ Ex. 3 at 3; Pet’rs’
Ex. 4 at 2.

Both parents wrote that they returned home at approximately 8:30 p.m. that evening.
Pet’rs’ Ex. 3 at 3; Pet’rs’ Ex. 4 at 3. J.J. was fed and given Tylenol because he “was fussy and his
nose was still running.” Id. Ms. Nunez added that J.J. “did not have any fever.” Pet’rs’ Ex. 3 at
3; see also Pet’rs’ Ex. 39 at 1. The parents wrote that J.J. was placed in a vibrating chair and fell
asleep at around 10:30 p.m. Pet’rs’ Ex. 3 at 3; Pet’rs’ Ex. 4 at 3. He was moved to his crib, which
he shared with his twin, at approximately 11:30 p.m. Id.

6
Ms. Nunez wrote that J.J. usually “slept through the night from 11 p.m. until 8 a.m.” Pet’rs’
Ex. 3 at 3. Ms. Nunez described checking on J.J. and his twin sister the next morning at 8:00 a.m.,
when she found them both sleeping. Id.; Pet’rs’ Ex. 39 at 3. Mr. Diaz wrote that at around 9:15
a.m., he “heard that [J.J.’s twin] was up and immediately went in to get her so she would not wake
[J.J.] if he was still asleep.” Pet’rs’ Ex. 4 at 3. Mr. Diaz wrote that J.J. was still asleep at that time,
so he took J.J.’s twin out of the room to change and feed her. Id. Mr. Diaz also wrote that when
Ms. Nunez arrived home, she “immediately went in to check on [J.J.] since he never slept that
late.” Id. Ms. Nunez wrote that when she found J.J., his “eyes were open and his mouth was blue”
but he was warm. Pet’rs’ Ex. 3 at 4; see also Pet’rs’ Ex. 39 at 3. Mr. Diaz described J.J. in the
same manner. Pet’rs’ Ex. 4 at 3. Ms. Nunez wrote that she began CPR, which caused the “blueness
around his mouth [to go] away,” but “a lot of mucus [was] coming out of his mouth and nose.”
Pet’rs’ Ex. 3 at 4; see also Pet’rs’ Ex. 4 at 3. The parents wrote that an ambulance arrived around
15 minutes later, and J.J. was taken to the hospital where they were told he had died. Id.; Pet’rs’
Ex. 39 at 3.

C. Fact Testimony

Ms. Nunez did not initially describe J.J.’s health on the day of his four-month well-baby
visit during her testimony. On cross-examination and re-direct, both counsel referenced her
written statements describing J.J.’s “runny nose” and “productive cough” at the time of that visit.
Tr. 20:14–15, 22:5–10. Ms. Nunez affirmed those statements. Tr. 20:16, 22:11. Ms. Nunez then
testified that J.J. had a stuffy nose in October of 2012 that was “no longer stuffy on the day of his
appointment . . .” Tr. 22:14–22. She testified that his stuffy nose occurred in the beginning of
October, and she administered saline drops “for a couple of days” until J.J. “had just a runny nose,
[which] was from [her] giving him saline drops.” Tr. 23:14–23. She emphasized that the stuffy
nose from early October went away and was replaced by the runny nose, which “got better” with
time. Tr. 23:24–24:4. Ms. Nunez clarified that “he still had [the runny nose], but just not so often.”
Tr. at 24:6–7. She testified that on the day of his four-month appointment, his nose was “just
runny” with “very light, clear . . . mucus,” which she attributed to allergies. Tr. 22:18–21. She
stated that “he had a cough as well” during the appointment, but she said it was “less” of a cough
than when it started with the congestion in early October. Tr. 22:21–22, 24:10–16. Ms. Nunez
denied that she was “concerned about the stuffy nose, the runny nose[,] or the cough” on the day
of J.J.’s four-month visit. Tr. 24:19–21.

Ms. Nunez stated that, other than being “a bit cranky” and “[a] bit more fussy,” J.J. was
behaving normally and “it was just like another day” after his four-month appointment. Tr. at
14:16–22. She stated that J.J. was fed approximately twice before being put to bed. Tr. 14:23–
15:2. Ms. Nunez testified that J.J. was both breast- and bottle-fed. Tr. 21:20–23.

Ms. Nunez testified that J.J. and his twin sister slept together in one crib, lying with space
between them and their heads on opposite ends of the crib. Tr. 13:4–9. The crib contained a crib
sheet and a thin receiving blanket tucked “under [J.J.’s] waist [and] around his thighs and leg area.”
Tr. 15:3–12. There were no bumpers, blankets, bedding, stuffed animals, or pillows in the crib.
Tr. 15:10–11. Ms. Nunez testified that she never placed J.J. on his belly when putting him to sleep,
and J.J. was not yet able to roll over on his own. Tr. 15:23–16:8.

7
Ms. Nunez testified that she woke up at around 6:30 a.m. the next day to get J.J.’s older
sister ready for school. Tr. 17:1–3. She saw J.J. “sleeping on his back [in] the same position [she]
left him [i]n, [with] the blanket still . . . around his thighs [and] under his waist,” at approximately
6:45 a.m. Tr. 17:5–8.

Ms. Nunez’s testimony with respect to the chronology immediately following J.J.’s
vaccination and leading up to his death was consistent with the information provided in the
affidavits filed in this case. Ms. Nunez’s responses to questions regarding the severity of J.J.’s
symptoms on the date of his vaccination and his mobility were less clear. For example, Ms.
Nunez’s testimony regarding whether J.J. could successfully roll over or push up when he “would
try to roll his neck and just like push his hands . . . .” was inconsistent. Tr. 21:7–12. Also, Ms.
Nunez testified that she pointed out J.J.’s symptoms of cough and runny nose to the doctor on the
day of J.J.’s vaccinations, but she testified that she was not concerned about either at the time. Tr.
24:19–21.

III. Expert Review

A. Expert Qualifications

1. Petitioners’ Expert, Douglas C. Miller, M.D., Ph.D.

Petitioners’ expert, Dr. Douglas Miller, authored three expert reports and testified at the
entitlement hearing. Pet’rs’ Exs. 12, 37, 38, ECF Nos. 21-2, 44-1, 71-1; Tr. 26–122, 338–371. Dr.
Miller is a neuropathologist with experience in academia and forensic practice. Pet’rs’ Ex. 12 at
1. He is board certified in anatomic pathology and neuropathology. Id. He currently serves as a
clinical professor in the Department of Pathology and Anatomical Sciences at the University of
Missouri School of Medicine, where he has been employed since December 2007. Id.

Dr. Miller has published more than 150 articles and book chapters, co-authored a text-atlas
of neurology, and is the sole author of a surgical neuropathy text. Id. at 2. In addition to academia,
he has been a consultant neuropathologist for various hospitals and medical examiners. Id. He
currently serves as associate medical examiner as part of his duties at the University of Missouri,
where his office provides forensic autopsy services throughout the state. Id. His neuropathology
experience includes analysis of infant deaths where SIDS is suspected. Id. Dr. Miller testified
that in his current position, he completes “the neuropathology parts of autopsies” with residents.
Tr. 29:3–4. Dr. Miller has “been an expert witness in many legal cases, both civil and criminal,
including many infant deaths in which SIDS has been either suspected prior to autopsy or
suggested as an alternative diagnosis to one of traumatic brain injury.” Pet’rs’ Ex. 12 at 2. Dr.
Miller has testified three times in the United States Court of Federal Claims regarding potentially
vaccine-related injuries and deaths. Id.

Dr. Miller is not an immunologist. Tr. 87:10–12. Dr. Miller does not have educational or
clinical experience in pediatrics. Tr. 87:13–14. At the hearing, Petitioners did not seek to admit
Dr. Miller as an expert in any specific area. Respondent, however, did not object to Dr. Miller’s
testimony, and the undersigned did not limit his testimony. Based off Dr. Miller’s filed CV and
his testimony describing his research and practice areas, the record provides evidence that his

8
expertise lies in neuropathology. Dr. Miller has also testified previously in the Program as an
expert in neuropathology, specifically in cases that alleged vaccine-caused SIDS. Jewell, 2017
WL 7259139; Boatmon v. Sec’y of Health and Human Servs., No. 13-611V, 2017 WL 3432329
(Fed. Cl. Spec. Mstr. Jul. 10, 2017); Copenhaver v. Sec’y of Health & Human Servs., No. 13-
1002V, 2016 WL 3456436 (Fed. Cl. Spec. Mstr. May 31, 2016); Lord v. Sec’y of Health & Human
Servs., No. 12-255V, 2016 WL 806818 (Fed. Cl. Spec. Mstr. Feb. 9, 2016).

2. Respondent’s Expert Rebecca D. Folkerth, M.D.

Dr. Rebecca Folkerth issued two reports in this case and testified at the entitlement hearing
on behalf of Respondent. Resp’t’s Exs. C, F, ECF Nos. 41-1, 56-1; Tr. 122–177. Dr. Folkerth
received her medical degree from the University of Louisville School of Medicine. Resp’t’s Ex.
C at 2. She completed her residency in anatomic pathology and a fellowship in neuropathology
before establishing a practice at Brigham and Women’s Hospital Department of Pathology. Id.
Dr. Folkerth holds board certifications in anatomic pathology, neuropathology, and cytopathology.
Id. Dr. Folkerth is a clinical associate professor at New York University School of Medicine in
the Forensic Medicine Department and the neuropathologist for the Office of the Chief Medical
Examiner in New York City. Tr. 124:7–10. She has written over 100 peer-reviewed articles
covering various issues in pathology. Resp’t’s Ex. C at 2.

The undersigned finds that Dr. Folkerth’s testimony was generally consistent with the
filings and essentially limited to a discussion of whether J.J.’s death was properly categorized as
SIDS. There was no disagreement between the parties that J.J.’s death was properly categorized
as SIDS, and on cross-examination, Dr. Folkerth was asked whether J.J. had a brainstem defect
that made him more vulnerable to SIDS. Dr. Folkerth stated that given his brainstem gliosis, “[i]t’s
probably likely, more likely than not” that J.J had a defective medullary serotonergic system. Tr.
134:3–6. She does not, however, believe that this is “necessarily indicative of a vulnerability to
SIDS.” Tr. 133:13–14. Instead, Dr. Folkerth opined that the gliosis “is a marker for whatever
leads to various apneic periods” and should be seen as “an indicator of some sort of previous mild
or chronic hypoxic ischemic changes.” Tr. 133:24–25.

3. Respondent’s Expert Dr. Christine McCusker, M.D.

Dr. Christine McCusker authored two expert reports and testified during the hearing on
behalf of Respondent. Resp’t’s Exs. A, E, ECF Nos. 37-1, 51-1; Tr. 178–337. She received her
Master of Science in Molecular Virology and Immunology and her M.D. from McMaster
University in Hamilton, Ontario. Resp’t’s Ex. B at 1, ECF No. 37-2; Tr. 178:25–179:1. Dr.
McCusker then completed a clinical fellowship in allergy and immunology at McGill University
in Montreal, Quebec. Id. at 2. She is board certified in pediatrics and currently works as a staff
physician in the Emergency Department and an associate professor in the Department of
Pediatrics, Division of Allergy and Immunology (Pediatric) of Montreal Children’s Hospital and
McGill University. Id. at 2–3.

Dr. McCusker has taught several courses at the undergraduate and graduate levels on
biochemistry, cytokines, and the development of the immune system in infancy. Tr. 181:20–182:3.
She has published peer-reviewed articles on pediatric immunology and specifically cytokine

9
activation. See Resp’t’s Ex. B. Dr. McCusker has testified previously in the Program, specifically
in cases that allege vaccine-caused SIDS. Jewell, 2017 WL 7259139; Boatmon, 2017 WL
3432329.

B. Sudden Infant Death Syndrome and the Triple Risk Model

Dr. Miller opined that “there is no evidence of any acute process in the brain which would
have been a cause of death” for J.J., such as meningitis. Pet’rs’ Ex. 12 at 4; see Tr. 33:22–24. Dr.
Miller stated that J.J.’s death was properly categorized as a SIDS death. Tr. 39:21–22. He
emphasized that “SIDS is a syndrome, not a disease[.]” Pet’rs’ Ex. 38 at 4. He testified that SIDS
“has lots of different potential causes, not all of which are fully understood.” Tr. 39:18–20. Dr.
Folkerth similarly noted that the medical examiner “designated the cause of death as ‘Sudden
Unexpected Death in Infancy.’” Resp’t’s Ex. C at 5. Dr. Folkerth further opined “that this case
falls into the category of SUDI/SIDS.”10 Id. at 6. Dr. McCusker also noted that the coroner ruled
that SIDS was the cause of death. Resp’t’s Ex. A at 2.

Dr. Miller opined that J.J. meets the criteria for the “Triple Risk Model” of SIDS, which
was “formulated by Dr. Hannah Kinney quite a few years ago.” Pet’rs’ Ex. 12 at 4 (citing Pet’rs’
Ex. 14, ECF No. 91-211). Dr. Folkerth agreed that “[t]he prevailing concept of SUDI/SIDS is that
proposed by Kinney and colleagues, [i.e.,] the ‘Triple Risk Model[.]’” Resp’t’s Ex. C at 5. Dr.
McCusker also discussed the Triple Risk Model in her reports and considered J.J.’s case under that
model. See Resp’t’s Ex. A at 2–3; Resp’t’s Ex. E at 2–6.

The Triple Risk Model, as described by Dr. Kinney and Dr. Filiano in a 1994 article,
proposes that “sudden death in SIDS results from the intersection of three overlapping factors: (1)
a vulnerable infant; (2) a critical developmental period in homeostatic control[;] and (3) an
exogenous stressor[ or stressors].” Pet’rs’ Ex. 14 at 1–2.12 Under the model, “an infant will die
of SIDS only if he/she possesses all three factors; the infant’s vulnerability lies latent until he/she
enters a critical developmental period and is subject to an exogenous stressor which matches the
infant’s underlying vulnerability and overwhelms an already compromised homeostatic system.”
Id. at 2. Furthermore, “death occurs only if all three factors intersect and only if the exogenous
stressor matches the specific vulnerability of the individual infant[.]” Id. at 3. Therefore, “the
infant may survive as ‘normal,’” despite an underlying vulnerability, “if the stressor is avoided, or
if the underlying vulnerability is ameliorated by therapeutic interventions.” Id.

10
Dr. Folkerth testified that “SUDI is a more generalized term” than SIDS. Tr. 129:23. She explained that
a death is classified as a “sudden unexpected death in infancy,” or SUDI, “any time an infant dies suddenly
and unexpectedly.” Tr. 129:9–12. She continued that the autopsy and related investigations may reveal
the cause for a subset of SUDI cases such that “they[ are] no longer an unexplained death.” Tr. 129:12–17.
However, if the death remains unexplained, then it is classified as a SIDS death. Tr. 129:17–22.
11
James J. Filiano & Hannah C. Kinney, A Perspective on Neuropathologic Findings in Victims of the
Sudden Infant Death Syndrome: The Triple-Risk Model, 65 BIOL. NEONATE 194 (1994).
12
When medical literature is referenced in this opinion, the undersigned will cite to the CM/ECF page
numbers of the filed documents rather than the page numbers of the articles as they appeared in the journals
or other original sources.
10
Dr. Kinney’s model favors “evidence [that] suggests that SIDS involves a convergence of
stressors that probably results in the asphyxia of a vulnerable infant who has . . . defective . . .
defense systems . . . .” Pet’rs’ Ex. 37, Tab C at 8, ECF No. 93-4.13 The research has not identified
“a universally accepted biologic explanation” for SIDS; however, the “current understanding . . .
reflects the simultaneous juxtaposition of multiple events that, when taken individually, are far
less powerful than the result of their chance combination.” Id.

1. Vulnerability under the Triple Risk Model

i. “Intrinsic Risk Factors” of Male Gender and Prematurity

Vulnerability is not clearly defined by any of the experts or the medical literature, but the
designation serves to identify the pool of infants that are more likely to suffer from SIDS using
their common traits. These traits, or intrinsic risks, are genetic or environmental in nature and
affect susceptibility, such as prenatal exposure to cigarettes and maturity at birth. Resp’t’s Ex. A,
Tab 5 at 2, ECF No. 38-5.14 The 1994 article by Dr. Kinney and Dr. Filiano considers such
“epidemiologic risk factors” in the discussion of “[t]he concept of the vulnerable infant.” Pet’rs’
Ex. 14 at 2. These types of factors “point to a suboptimal intrauterine environment[] and suggest
that the mechanisms for risk for SIDS develop in fetal life in at least some cases.” Id. Male infants
are also identified as potentially more vulnerable to SIDS. There is “mounting evidence” in studies
done with mice that “sexually dimorphic features in the brain[]” manifest as “differences in
brainstem-mediated 5-[hydroxytryptamine (“5-HT”)] function, with females’ brains apparently
relying less on 5-HT neurons in chemoreception and adapting more readily to the loss of 5-HT
function.” Pet’rs’ Ex. 20 at 11, ECF No. 91-8.15 These studies help to identify potential markers
for vulnerability, such as gender, and shed light on the biological systems that are affected in SIDS
cases, such as the brainstem. Id. Intrinsic risk factors also include identification markers that
indicate a statistically increased risk of SIDS, but the specific effect of the marker remains unclear,
such as the sub-Saharan African descent marker denoting race.16 Id. at 4.

Intrinsic risk factors were discussed by each expert in varying contexts. At times, intrinsic
factors were discussed in relation to infant vulnerability, and at other times they were considered
in combination with certain other “risk factors” that fall into the category of exogenous stressors.
See, e.g., Tr. 81; Pet’rs’ Ex. 37 at 6; Resp’t’s Ex. C at 5. Dr. McCusker also discussed intrinsic
risk factors as part of her “critical window” analysis. Resp’t’s Ex. E at 3–4. All the experts agreed
that J.J. was born prematurely and was a male, and that both of those facts increased his relative
risk of SIDS. Tr. 51: 16–23, 81:4–6, 134:24, 172:10–12, 208:13–14; Resp’t’s Ex. C at 5; Resp’t’s
Ex. E at 3–4. They do not all agree, however, on whether J.J. qualified as a “vulnerable infant”
under the Triple Risk Model. J.J.’s male gender and prematurity certainly did not cause him to

13
Hannah C. Kinney & Bradley T. Thach, The Sudden Infant Death Syndrome, 361 N. ENGL. J. MED. 795
(2009).
14
Felicia L. Trachtenberg et al., Risk Factor Changes for Sudden Infant Death Syndrome After Initiation of
Back-to-Sleep Campaign, 129 PEDIATRICS 630 (2012).
15
Hannah C. Kinney et al., The Brainstem and Serotonin in the Sudden Infant Death Syndrome, 4 ANN.
REV. PATHOL. 517 (2009).
16
The article designates “African-American” as a race, however, African-American is not a race. Pet’rs’
Ex. 20 at 4.
11
die from SIDS, but both are specifically identified by Dr. Kinney as risk factors that would have
statistically increased his chances of suffering from SIDS.

ii. Brainstem Defects

Dr. Miller testified that one major potential vulnerability under the Triple Risk Model is a
developmentally defective medulla. He explained that medical and scientific literature has shown
that “the brain structures responsible for regulation of respiration, including those that sense
increased blood carbon dioxide levels during sleep and respond[] to them with arousal and
increased (gasping) breathing, reside in the medulla in a network of nuclear structures which use
serotonin as their neurotransmitter.” Pet’rs’ Ex. 12 at 4 (citing Pet’rs’ Exs. 15–21, ECF Nos. 91-
3–917). He further explained that “there are several sets of neurons in the medulla in different
locations which have related but different functions” associated with “sensing how much carbon
dioxide there is in the blood” and stimulating respiratory drive and arousal from sleep. Tr. 43:11–
18. This “system of nerve cells . . . use[s] the transmitter serotonin” 5-HT.18 Tr. 43:9–11. He
also wrote that “[t]he arcuate nuclei are one important member of this network[.]” Pet’rs’ Ex. 12
at 4. In his testimony, Dr. Miller stated that based on what is known from animal data, the arcuate
nucleus is “the primary carbon dioxide sensor in the brain.” Tr. 43:23–25. Therefore, he opined
that “[a] critical structure to examine in the brain of a potential SIDS case is the arcuate nucleus in
the ventral medulla.” Pet’rs’ Ex. 12 at 4 (citing Pet’rs’ Ex. 13, ECF No. 91-119). Dr. Miller noted
that infants with defects in the brain structures responsible for respiratory regulation are thought
to make up as much as 70 percent of the SIDS population. Pet’rs’ Ex. 12 at 4; see also Pet’rs’ Ex.
20 at 6.

Dr. Miller explained that “[i]n an infant with such a defective brainstem, during the period
of early post-natal life before full maturation of brain systems that regulate heart rate, respiratory
activity, sleep, and related autonomic functions, one or more external ‘stressors’” can cause a life-

17
Pet’rs’ Ex. 15, Hannah C. Kinney et al., Medullary Serotonergic Network Deficiency in the Sudden Infant
Death Syndrome: Review of a 15-Year Study of a Single Dataset, 60 J. NEUROPATHOLOGY &
EXPERIMENTAL NEUROLOGY 228 (2001); Pet’rs’ Ex. 16, Hannah C. Kinney et al., Subtle Developmental
Abnormalities in the Inferior Olive: An Indicator of Prenatal Brainstem Injury in the Sudden Infant Death
Syndrome, 61 J. NEUROPATHOLOGY & EXPERIMENTAL NEUROLOGY 427 (2002); Pet’rs’ Ex. 17, Hannah
C. Kinney, Brainstem Mechanisms Underlying the Sudden Infant Death Syndrome: Evidence from Human
Pathologic Studies, 51 DEVELOPMENTAL PSYCHOBIOLOGY 223 (2009); Pet’rs’ Ex. 18, Hannah C. Kinney
et al., The Serotonergic Anatomy of the Developing Human Medulla Oblongata: Implications for Pediatric
Disorders of Homeostasis, 41 J. CHEMICAL NEUROANATOMY 182 (2011); Pet’rs’ Ex. 19, Kevin J.
Cummings et al., Postnatal Loss of Brainstem Serotonin Neurones Compromises the Ability of Neonatal
Rats to Survive Episodic Severe Hypoxia, 589 J. PHYSIOLOGY 5247 (2011); Pet’rs’ Ex. 20, Kinney et al.,
supra note 15; Pet’rs’ Ex. 21, David S. Paterson et al., Medullary Serotonin Defects and Respiratory
Dysfunction in Sudden Infant Death Syndrome, 168 RESPIRATORY PHYSIOLOGY NEUROBIOLOGY 133
(2009).
18
Dr. Miller explained in his testimony that serotonin is a synaptic neurotransmitter, “a chemical molecule
that neurons use to communicate from one cell to the next across a gap, which is called a synapse.” Tr.
47:9–11. Specifically, serotonin is “an excitatory synaptic transmitter,” which “is supposed to increase
activity” in the target neuron. Tr. 47:12–16.
19
James J. Filiano & Hannah C. Kinney, Arcuate Nucleus Hypoplasia in the Sudden Infant Death
Syndrome, 51 J. NEUROPATHOLOGY & EXPERIMENTAL NEUROLOGY 394 (1992).
12
threatening situation in one of two ways. Pet’rs’ Ex. 38 at 4. External stressors can “suppress the
normal homeostatic responses mediated by this medullary serotoninergic network, leading to a
failure of homeostasis and death.” Id. Alternatively, external stressors “can create a dangerous
situation, such as apnea, to which the medullary mechanisms which ought to respond by producing
arousal just fail to do so.” Id.

Dr. Miller explained that all humans “experience periods of apnea” during sleep, meaning
that there are periods where “we stop breathing in sleep.” Tr. 45:22–23. Normally, the period is
brief and a person wakes up, “or at least arouse[s] enough to breathe again.” Tr. 45:23–25. If
pillows or other objects are obstructing an infant’s face, the infant will re-inhale carbon dioxide-
rich air, which will lead to an increase in blood carbon dioxide levels. Tr. 46:9–19. Under normal
circumstances, if the body’s “level of CO2 rises above a safe level during sleep, the arcuate nuclei
should detect that[] and respond by signaling through their neurotransmitter serotonin to other
nuclei in the network to stimulate arousal and gasping respirations.” Pet’rs’ Ex. 38 at 4–5. Dr.
Miller wrote that it is “suppression of this network’s activity” that is thought to provoke SIDS in
a vulnerable infant. Id. at 5. Infants with “various different defects in the medulla,” particularly
where the “arousal mechanism, which is mediated by serotonin neurons, is defective,” will not
wake up. Tr. 46:25–47:3. As a result, carbon dioxide levels continue to rise, eventually leading
to death. Tr. 47:3–6. Dr. Miller explained that under the Triple Risk Model, “there are various
things which can cause stress on the brainstem functions, which then get no response or an
inadequate response” from the defective arousal mechanism when there is an apnea event. Tr.
46:1–7.

Dr. McCusker also acknowledged that studies suggest that infants who die of SIDS may
have “intrinsic defects in the autonomic nervous system with inadequate compensation[,] which
when stressed[,] can lead to death.” Resp’t’s Ex. E at 3 (citing Resp’t’s Ex. E, Tab 1, ECF No.
52-1;20 Tab 4, ECF No. 52-421). Dr. Folkerth did not explicitly discuss in her reports whether
brainstem defects or abnormalities can make an infant “vulnerable” under the Triple Risk Theory.
Instead, Dr. Folkerth wrote that “the finding by Dr. Kinney and others that a subset of infants dying
of SIDS . . . has brainstem abnormalities detected using research tools means only that there is a
biologically plausible basis for an intrinsic abnormality of the brainstem that leaves an infant at
risk for death when confronted by potential stressors[.]” Resp’t’s Ex. F at 2. She emphasized that
“a brainstem abnormality (such as arcuate nucleus hypoplasia)” is not required for a diagnosis of
SIDS. Id.

a. The Autopsy Procedure

Dr. Miller criticized the examination of the brain in this case, describing it as “suboptimal.”
Pet’rs’ Ex. 12 at 3. Dr. Miller explained that “[t]here is only one level of medulla available for
histological examination[.]” Id. Furthermore, he explained that “[t]he hippocampus section is
overly small, and at a rather more anterior level than is ideal for examination.”22 Id. at 3–4.

20
Kinney & Thach, supra note 13.
21
André Kahn et al., Sudden Infant Deaths: Stress, Arousal and SIDS, 75 EARLY HUM. DEV. S147 (2003).
22
Dr. Miller argued that sectioning all levels of the medulla would be “best practice[]” to rule out the
absence of the arcuate nucleus or hypoplasia in a SIDS autopsy. Pet’rs’ Ex. 37 at 2. In support of that
argument, he noted that experts retained by the Department of Health and Human Services have previously
13
Additionally, Dr. Miller wrote that the review of the hippocampus slide “is further limited by a
poor histological preparation, with the tissue in fragments, not in one piece.” Id. at 4. Finally, Dr.
Miller explained that “[t]here is only one other sample with any cerebral cortex, [and that sample
is] also small and inadequate.” Id. Dr. Miller noted that there is “more gliosis than Dr. Mena
described, including in the frontal cortex, in the frontal white matter, and in the cerebellar white
matter.” Id. Dr. Miller testified that “the gliosis didn’t happen the day [J.J.] died” and that it could
be evidence of prior episodes of adverse events. Tr. 92:24–25. He noted that “[g]liosis is a process
which takes days to evolve,” and that it can exist in a brain for “weeks or years.” 23 Tr. 92:25–
93:5.

Dr. Folkerth did not agree with Dr. Miller’s assessment that the brain examination was
“suboptimal,” because she explained that “only one level of the medulla is necessary to confirm
an impression of SUDI/SIDS.” Resp’t’s Ex. C at 6. She wrote that studies which have “detected
abnormalities in the medulla, principally of the serotonergic system,” rely on “research methods
(i.e., specialized biochemical, cell-counting, and other techniques)[] not available to forensic or
hospital pathology practitioners for diagnostic purposes.” Id. (emphasis in original). She also
wrote that “the lack of complete sectioning of the entire medulla in no way decreases the likelihood
that the child died of SUDI/SIDS[,]” and that “an examination of the entire medulla[]” is not
required to find a diagnosis of SIDS. Id. Dr. Folkerth opined that the brain sections available for
review were “adequate for the purposes of detecting alternate causes of death (such as encephalitis,
malformations, etc.).” Id. She concluded that “the sampling of the brain was within [the] standard
of care[.]” Resp’t’s Ex. F at 2.

b. J.J.’s Brain

Dr. Miller testified that the autopsy of the brain in this case showed “markers” of defects
associated with the medulla. Tr. 48:2–4. Dr. Miller opined that “the [arcuate] nuclei in the single
section available” from the examination performed in this case “are at least somewhat
hypoplastic,24 but this may just be due to the level of the section, as the nucleus varies in size from
level to level.” Pet’rs’ Ex. 12 at 4. He emphasized in his testimony that the single slide of medulla
available “has arcuate nuclei that in [his] judgment are too small,” and that the single slide is “the
only evidence [he] ha[s] to go on.” Tr. 115:22–24; see also Tr. 81: 9–14. He also noted that the
nucleus is “mildly gliotic,” which, he stated, “goes along with the gliosis Dr. Mena did record in
the adjacent inferior olivary nuclei.” Pet’rs’ Ex. 12 at 4. Based on his overall review of the autopsy
slides, Dr. Miller opined that “there is definite evidence of brainstem impairment in this infant,

opined that “the absence of any arcuate nuclei in a single section of medulla is insufficient evidence for a
brainstem defect[.]” Id. at 4. Dr. Miller opined that “[w]henever there are negative findings[,]” such as a
finding that there were no abnormalities, “one must ask about the adequacy of the examination[.]” Id. In
Dr. Miller’s opinion, the sampling Dr. Mena provided is not adequate. Id.
23
He noted that “there was gliosis, which is a sign of ongoing cellular damage[,] in several of the areas”
where serotonergic neurons exist, including the arcuate nuclei and the inferior olivary nuclei. Tr. 48:9–12.
He testified that additional areas of generalized gliosis were found in the brain, “including in the cerebral
hemispheres,” which, he testified, “indicat[es] that there had probably been prior episodes of perhaps lower
oxygen or higher carbon dioxide,” possibly related to J.J.’s prematurity. Tr. 48:19–24.
24
Hypoplasia is the “incomplete development or underdevelopment of an organ or tissue.” Dorland’s at
905.
14
especially of the medulla.” Id. Dr. Miller emphasized that “there is evidence in the autopsy that
[J.J.] had some of the brainstem defects reported as indicative of vulnerability to SIDS . . . and he
presumptively had a defective medullary serotoninergic system as the cause of his vulnerability.”
Pet’rs’ Ex. 37 at 6. Therefore, Dr. Miller opined that J.J.’s “maldeveloped or damaged medulla”
qualifies him as a “vulnerable infant” under the Triple Risk Model. Pet’rs’ Ex. 12 at 4. His
opinion was based in part on “the evidence of gliosis in the brain stem, and particularly in the
medulla.” Tr. 93:14–15. It was also based on his opinion that “in the slide that’s available of the
medulla, the arcuate nucleus is hypoplastic.” Tr. 94:10–12. Additionally, Dr. Miller testified that
he made a “statistical inference” based on the fact that 70 percent or more of infants who die from
SIDS “have defects in the serotonergic system in the medulla” at autopsy. Tr. 93:17–20.

Dr. Folkerth wrote in her report that “[a] single section of the medulla may or may not
show . . . aplasia or hypoplasia of the arcuate nucleus[.]” Resp’t’s Ex. C at 6. She did not provide
an opinion in her reports as to whether J.J. may have had a brain defect that would qualify him as
a vulnerable infant. She wrote only that “[t]he arcuate nucleus was present in the medulla.” Id. at
5. In her testimony, Dr. Folkerth opined that a single section of medulla is “adequate to exclude a
diagnosis of hypoplasia for the most part.” Tr. 131:22–25. She testified that she could not
remember and did not write anything down about the arcuate nuclei “appearing small or otherwise
abnormal” upon her review of the slide. Tr. 131:25–132:2. Therefore, she testified that she did
not “feel that there were enough grounds to say anything regarding arcuate hypoplasia,” and later
opined more definitively that she does not “think the arcuate nucleus is small.” Tr. 132:2–4,
137:10–11. Dr. Folkerth wrote in her report that the “[d]eep cerebral white matter had some
prominent reactive astrocytes.” Resp’t’s Ex. C at 5. Additionally, Dr. Folkerth noted that
“[s]ections of midbrain, pons, and medulla were notable for rare reactive astrocytes in the median
raphe[] and in the inferior olivary nucleus.” Id. Dr. Folkerth opined that “[g]liosis is a result of
any kind of injury,” and is therefore “not specific in the least.” Tr. 130:24–25. She agreed with
Dr. Miller’s assessment that “they’re sort of the scar cells of the brain,” noting that they can be
seen “following all sorts of processes,” such as “infection[, lack of] oxygen[,] or actual mechanical
trauma or seizures.” Tr. 131:2–10. Dr. Folkerth opined that gliosis does not “necessarily have a
lot of significance when [it is] very limited, as in this case.” Tr. 131:15–16. Dr. Folkerth further
opined that evidence of gliosis is “not necessarily indicative of a vulnerability to SIDS.” Tr.
133:13–14. She testified that gliosis is “a marker for whatever leads to various apneic periods that
result in gliosis.” Tr. 133:23–24.

Despite her opinions regarding the autopsy findings, Dr. Folkerth conceded that J.J. “could
very well have had, [and] probably did have[,] an intrinsic brain stem abnormality.” Tr. 159:1–3.
Dr. Folkerth testified that J.J.’s “brain stem was not studied to look for specific serotonergic
defects, so none of us in this room can say whether he had them or not.” Tr. 137:23–138:1.
Continuing, she testified that “based on the information we have [and] using the routine diagnostic
standards that we use, [she] think[s] [J.J.’s death] completely fits a SIDS picture.” Tr. 138:1–3.
Thus, she explained that “we’re sort of inferring that since J.J. died of SIDS and since most babies
who die of SIDS have a brain stem defect, more likely than not he did.” Tr. 168:25–169:2.

Dr. Folkerth wrote that a “vulnerable infant” under the model has “features such as
premature delivery, exposure to cigarette smoke, [or] male gender[,]” and she noted that both
prematurity and male gender are applicable in this case. Resp’t’s Ex. C at 5–7.

15
Based on all the evidence, the undersigned finds that it is more likely than not that J.J. had
a brain defect which, along with his male gender and prematurity, qualified him as a “vulnerable
infant” under the Triple Risk Model of SIDS. Dr. Miller persuasively opined that the arcuate
nuclei in the single section of medulla available for examination were “at least somewhat
hypoplastic[.]” Pet’rs’ Ex. 12 at 4. Dr. Folkerth agreed that, statistically, “[i]t’s probably likely,
more likely than not,” that J.J. had a defective medullary serotonergic system. 25 Tr. 134:4–6.
Ideally, multiple slides of the medulla would be available to the parties’ experts so that they could
determine definitively whether the arcuate nuclei were hypoplastic. However, as Dr. Folkerth
stated, the methods used to “detect[] abnormalities in the medulla, principally of the serotonergic
system,” are research methods which are “not available to forensic or hospital pathology
practitioners[.]” Resp’t’s Ex. C at 6. In Program cases involving infant deaths, petitioners must
rely on results from the procedures used by those practitioners,26 and it would be unfair to expect
hospital pathologists, while determining a cause of death, to replicate the type of comprehensive
examination done in research settings to study etiology. The Program does not ever require
medical certainty, and in this case, there is supporting evidence and the experts agree that
statistically speaking a condition is more likely than not present. It is enough for Petitioners to
establish it is more likely than not that J.J. had a defective brainstem and was a vulnerable infant
as defined by Dr. Kinney’s Triple Risk Model.

2. The Critical Development Period under the Triple Risk Model

The critical development period is defined by Dr. Kinney as the first year of life, with “the
peak age being between 2–4 months of age.” Resp’t’s Ex. E at 3. The window of time is significant
because it “coincides with progression both in brain and in lung development.” Id. at 3–4. All
three experts reviewed the medical records and concur that J.J. died from SIDS the day after his
receipt of four vaccines that were administered during his four-month well-baby examination.
This fits squarely within the critical development period and is not in dispute.

3. Exogenous Stressors under the Triple Risk Model

An exogenous stressor, or “extrinsic risk,” is “defined as a physical stressor around the
time of death that may increase the risk of SIDS for an already vulnerable infant.” Resp’t’s Ex.
A, Tab 5 at 2–3. Dr. McCusker cited Dr. Kinney’s findings from a 2012 study that found that
ninety-nine percent of SIDS infants “had at least 1 [intrinsic or extrinsic] risk factor.” Resp’t’s
Ex. A at 3 (citing Resp’t’s Ex. A, Tab 5 at 3). Dr. Kinney reported in that same study that “75%
[of SIDS infants] had at least 1 of each [extrinsic and intrinsic risk factor]” and “[t]he majority

25
Dr. Folkerth noted that she could not be certain without conducting a study such as the one Dr. Kinney
uses in her research. Tr. 134:7–11. Dr. Folkerth emphasized that “about 70 percent of SIDS infants do turn
out to have these abnormalities after [researchers] do research on them, but . . . that is not determined by
the routine standard neuropathologic examination that[ is] available . . . in medical examiners’ offices.” Tr.
134:12–18.
26
Dr. Folkerth testified that “the guidelines are sort of loose among all medical examiners’ offices about
exactly what should be submitted.” Tr. 132:11–14. Dr. Folkerth added that if she can include two sections
of the medulla, she will do so in order to “feel more sure that [she is] seeing . . . representational tissue.”
Tr. 132:14–17.
16
(57%) had at least 2 extrinsic risks and 1 intrinsic risk factor.” Resp’t’s Ex. A, Tab 5 at 3. Dr.
McCusker testified that “there is a suggestion that there is an increased frequency of sudden infant
death if there is more than one risk factor,” although the total number of risk factors “doesn’t
appear to . . . make a difference.” Tr. 268:23–269:5. She also noted that “you can have sudden
infant death with none” of the identified risk factors present. Tr. 269:9.

Dr. McCusker explained that “extrinsic factors,” which have been “identified through the
epidemiological studies,” are “those elements which may contribute to a change in the mechanics
of respiration, as opposed to the neurochemical.” Resp’t’s Ex. A at 3. She also described them as
“those factors that are consistent with hypoxia[-]generating conditions[.]” Resp’t’s Ex. E at 5,
(citing Pet’rs’ Ex. 37, Tab C27). She listed “prone or side sleeping, bed sharing, over-bundling,
soft bedding, [having one’s] face covered[,] upper respiratory tract infection[,] . . . parental,
especially maternal smoking[,] . . . bottle feeding[,] smoking in the home[,]” and “GE reflux” as
examples of external risk factors. Resp’t’s Ex. A at at 3, 9. She noted that “[h]igher ambient
temperatures” created by bundling or use of covers “are also considered risk factors for SIDS
[because they] inhibit[] respiratory drive and reduc[e] the normal heart-rate variability without
raising core body temperature.” Resp’t’s Ex. E at at 5 (citing Resp’t’s Ex. A, Tabs 1,28 4,29 15,30
ECF Nos.38-1, 38-4,39-5).

Dr. McCusker wrote that, “[i]n the case of [J.J.], he was co-sleeping, was known to be a
bottle[-]fed baby[,] and had symptoms of an upper respiratory tract infection.” Resp’t’s Ex. A
at 3 (emphasis in original); see also Resp’t’s Ex. E at 5 (Dr. McCusker’s second report, describing
bed sharing, bottle feeding, and “upper respiratory tract infection (per his parents)” as risk factors).
As discussed previously, Dr. McCusker also identified prematurity and male gender as risk factors
in J.J. Resp’t’s Ex. A at 9. Dr. Folkerth noted that J.J. “was born prematurely[] and had additional
known risk factors of a potentially unsafe sleeping environment (co-sleeping with his twin), and
male gender.” Resp’t’s Ex. C at 7. She also noted that Petitioners’ affidavits identified that J.J.
had a runny nose and cold, which she testified “probably represented a risk factor.” Tr. 135:5–7.

In contrast, Dr. Miller opined that some of the stressors which are generally accepted as
having an association with SIDS do not involve obstruction of an infant’s airway. For example,
he wrote that “[t]here is clear evidence that hyperthermia, whether from an overly warm external
environment . . . or fever, is another external stressor[.]” Pet’rs’ Ex. 37 at 6. Dr. Miller continued
that this condition is distinguished from the stressor of airflow obstruction seen with prone
sleeping, co-sleeping, or blanket use, and “it is unlikely to have its effect through any obstruction
of airflow.” Id. He further opined that “[t]here is equally clear evidence that [URIs] provoke
cytokine responses which have central nervous system [(“CNS”)] actions, not as inflammatory
mediators but as modifiers of synaptic activity[.]” Id.
Dr. Miller wrote that the majority of SIDS cases involve the presence of two or more
stressors. Pet’rs’ Ex. 38 at 5. He explained that the “stressors interact, and their combined effects
are likely to be multiplicative or geometric rather than just additive.” Id. However, Dr. Miller

27
Kinney & Thach, supra note 13.
28
Id.
29
Kahn et al., supra note 21.
30
Erwan Stéphan-Blanchard et. al., Heart Rate Variability in Sleeping Preterm Neonates Exposed to Cool
and Warm Thermal Conditions, 36 PLOS ONE 1 (2011).
17
emphasized that it “is impossible with present knowledge” to apportion the relative contribution
that each stressor would have had. Id. at 6. He wrote that “each would represent a substantial
contributing factor.” Id. Dr. Miller opined that “the most important potential external stressor”
for J.J. was the series of vaccinations he received on November 14, 2012. Pet’rs’ Ex. 12 at 4. He
asserted that J.J.’s only other risk factors were prematurity and male gender, which are both
intrinsic. Dr. Miller testified that there was no evidence of a URI or any other infection. Tr. 82:21–
23.

Dr. Gill’s autopsy report identified J.J.’s final diagnosis as SIDS. He then listed additional
information which, if not ultimately deemed relevant, was at least initially considered prior to
determining the cause of death. Dr. Gill’s list included intrinsic SIDS risk factors, extrinsic risk
factors, recent medical history, and test results. Pet’rs’ Ex. 10. Several of the items listed were
used to rule out other potential causes of death before SIDS could be considered, e.g., URI history,
influenza studies, and cerebrospinal fluid (“CSF”) cultures. Id. Other items were identified as
SIDS risks factors, such as J.J.’s prematurity and history of co-sleeping. Dr. Gill also listed J.J.’s
“recent immunizations”, but there is no indication of what, if any, significance Dr. Gill gave this
part of J.J.’s medical history. It is also unclear whether this line item was an example of something
that was ruled out as a cause (see influenza studies: negative) or identified as a possible
contributing risk factor (co-sleeping with twin).

i. Co-Sleeping

Dr. Miller wrote that “the data on the risks of co-sleeping” largely involve an infant
sleeping in the same bed or on a couch with an adult. Pet’rs’ Ex. 38 at 2. He explained that such
co-sleeping creates a “hazardous sleeping condition” because it may cause “accidental
asphyxiation of the infant when the adult rolls over in his or her sleep and smothers the child,
without awakening.” Id.

Dr. Miller explained that co-sleeping as a potential external stressor in this case is “almost
certainly a red herring, for two reasons[.]” Pet’rs’ Ex. 37 at 6. First, J.J. was sleeping with his
approximately equal-sized twin sister in a crib, as opposed to with an adult or older sibling in an
adult bed. Id. Dr. Miller noted J.J.’s “twin was not large enough to cause asphyxiation should the
two of them end up with one on top of the other[,]” and the crib “was large enough for them to be
entirely separate, so there was no chance for such an interaction to occur.” Pet’rs’ Ex. 38 at 2.
Second, the evidence suggests that his twin sister was removed from the crib before he experienced
the event which ultimately led to his death.31 Pet’rs’ Ex. 37 at 6.

In her testimony, Dr. Folkerth agreed that co-sleeping is “[p]robably not” a risk factor in
this case based on Ms. Nunez’s testimony that J.J. and his twin sister slept at opposite ends of the
crib. Tr. 177:11–16. Dr. McCusker similarly testified that based on Ms. Nunez’s testimony
regarding how the infants were sleeping at opposite ends of their crib, she “would say that this [co-

31
Based on the recorded temperature at the time of death, and with the disclaimer that “[e]stimating time
of death is admittedly quite imprecise,” Dr. Miller estimated that J.J. died only about an hour prior to the
time that his temperature was measured. Pet’rs’ Ex. 38 at 2. Dr. Miller noted that, based on the timeline
of events, J.J.’s twin had been removed from the crib well before that time, and thus co-sleeping was not a
risk factor contributing to J.J.’s death. Id.
18
sleeping] would not be considered a risk factor.” Tr. 284:13–20. Based on the record as a whole,
including Ms. Nunez’s testimony and Respondent’s experts’ ultimate concessions based on that
testimony, the undersigned finds that co-sleeping was not a relevant risk factor in this case.

ii. Bundling/Use of a Receiving Blanket in the Crib

Dr. Folkerth provided “soft bedding” and “hyperthermia/overbundling” as examples of
exogenous stressors under the Triple Risk Model. Resp’t’s Ex. C at 6. Dr. McCusker also
described two ways in which over-bundling is thought to be a risk factor for SIDS. Tr. 206:6–16.
She testified that a high ambient temperature can be a risk factor because it can affect the
sleep/wake cycle and respiratory rates. Tr. 206:6–11. Additionally, she explained that over-
bundling can create a situation where an infant’s startle reflex is compromised, such that if there
is a respiratory problem, the infant will not be able to startle himself awake. Tr. 206:14–22. Dr.
Miller noted that “[t]here is clear evidence that hyperthermia, whether from an overly warm
external environment . . . or fever, is another external stressor[,]” separate from the stressor of
airflow obstruction seen with blanket use. Pet’rs’ Ex. 37 at 6.

Dr. McCusker testified that the blanket tucked around J.J.’s legs was not “the equivalent
of bundling, but it is not recommended, because it’s considered an increased risk factor for sudden
infant death.” Tr. 288:4–6. Dr. McCusker testified that the Pediatric Task Force concluded that
“things should not . . . encircle the infant.” Tr. 287:13–14 (citing Resp’t’s Ex. A, Tab 7,32 ECF
No. 38-7). Specifically, Dr. McCusker read the following from the article: “Even if covered by a
sheet, it should not be placed under a sleeping infant.” Tr. 286:22–23. Dr. McCusker testified that
Ms. Nunez’s “description of having the blanket underneath the child . . . would be considered
something that would decrease the startle reflex.” Tr. 208:18–21. She testified that she “didn’t
appreciate that when [she] read the notes before, so that’s another sort of add-on” to her list of risk
factors in this case. Tr. 206:21–24.

Dr. McCusker’s late addition of the loosely tucked sheet as a risk factor in this case is not
persuasive. None of the experts testifying in this case suggested that the crib sheet led to
hyperthermia or asphyxiation in J.J. Additionally, the undersigned does not find that the Pediatric
Task Force considered a sheet loosely tucked underneath an infant’s legs to be a risk factor separate
from hyperthermia-inducing over bundling or mechanical obstruction. In the section that Dr.
McCusker referenced, the authors recommend that infants sleep on “a firm sleep surface,” and
more specifically, “[a] firm crib mattress, covered by a fitted sheet[.]” Resp’t’s Ex. A, Tab 7 at 3.
The sentence referenced by Dr. McCusker during her testimony appears in a paragraph regarding
such mattresses, which states in pertinent part:

Pillows or cushions should not be used as substitutes for mattresses or in addition
to a mattress. Soft materials or objects such as pillows, quilts, comforters, or
sheepskins, even if covered by a sheet, should not be placed under a sleeping infant.

Id. By leaving out the context of the sentence that she read, Dr. McCusker did not accurately
portray the authors’ concerns regarding the use of a sheet. Dr. McCusker conceded that there were

32
Task Force on Sudden Infant Death Syndrome, SIDS and Other Sleep-Related Infant Deaths: Expansion
of Recommendations for a Safe Infant Sleeping Environment, 128 PEDIATRICS 1030 (2011).
19
no other soft materials in the crib, other than the sheet. Tr. 287:20–24. Therefore, the undersigned
finds that the use of a receiving blanket in this case, based on Ms. Nunez’s description of how she
loosely tucked it around J.J.’s legs, was not a relevant risk factor for SIDS.

iii. Bottle Feeding

Dr. McCusker wrote that breastfeeding and pacifier use are considered “‘protective’ factors
in SIDS[,]” because infants with those factors “rouse more easily and more frequently compared
to those bottle fed.” Resp’t’s Ex. E at 5 (citing Tabs 4,33 16,34 17,35 ECF Nos. 52-4, 53-6, 53-7).
In her testimony, Dr. McCusker clarified that “[b]reast feeding is considered to be protective for
SIDS[, s]o bottle feeding is considered to be a risk factor.” Tr. 209:5–7. She was unable to answer
a question regarding whether a combination of breastfeeding and bottle feeding would change the
risk of SIDS. Tr. 309:23–310:5.

The risk associated with bottle feeding is very different than the exogenous stressors such
as prone sleeping or co-sleeping, which are associated with the “mechanics of respiration.”
Resp’t’s Ex. A at 3. Although breastfeeding’s protective effect was not explained, the literature
that Dr. McCusker filed reflects that “[b]reastfeeding is associated with a reduced risk of SIDS[,]”
and “[t]he protective effect of breastfeeding increases with exclusivity.” Resp’t’s Ex. A, Tab 736
at 5. This article notes that “any breastfeeding has been shown to be more protective against SIDS
than no breastfeeding.” Id. Therefore, bottle feeding does not appear to affirmatively contribute
to SIDS, like an unsafe sleeping position does. Instead, breastfeeding serves to help to protect
against SIDS. In this way, it is more like the intrinsic “risk factors” of prematurity or male gender
than exogenous stressors such as a dangerous sleeping environment. Ms. Nunez testified that J.J.
was fed with both breastmilk and formula. Tr. 21:20–21. Although exclusive breastfeeding may
have a protective effect, the undersigned found nothing in the literature to suggest that SIDS is in
any way caused by an infant’s having been partially (or exclusively) bottle fed. Because the
undersigned is considering potential causes of J.J.’s death in this case, the undersigned does not
find the fact that J.J. was partially bottle fed to be a significant factor in the analysis.

iv. Upper Respiratory Infection

a. URI as an Exogenous Stressor Generally – Cytokine Production vs.
Airway Obstruction
Dr. Miller testified that “one of the risk factors that [has] been statistically highly
important” in SIDS cases is having a mild infection. Tr. 53:7–9. He explained that the infection
can be either a mild or trivial URI or a gastrointestinal infection. Tr. 53:9–11. In his reports, Dr.
Miller wrote that “[a]mong the described external stressors[,] the presence of a URI is
prominent[,]” noting that studies have found URIs or other minor infections may be present in
anywhere from 20 percent to over 80 percent of SIDS cases. Pet’rs’ Ex. 38 at 4.

33
Kahn et al., supra note 21.
34
Bert Alm et al., Breastfeeding and Dummy Use Have a Protective Effect on Sudden Infant Death
Syndrome, 105 ACTA PAEDIATRICA 31 (2016).
35
Edwin A. Mitchell & Henry F. Kraus, Sudden Unexpected Death in Infancy: A Historical Perspective,
51 J. OF PAEDIATRICS AND CHILD HEALTH 108 (2015).
36
Task Force on Sudden Infant Death Syndrome, supra note 32.
20
Dr. Miller argued that “[t]he mechanism whereby [URIs or other minor] infections increase
the risk of a SIDS event . . . is believed to be mediated by cytokines.” Id. Dr. Miller explained
that the innate immune system produces cytokines, which both “promote the adaptive immune
system to react to the pathogens invading the body” and “mobiliz[e] more cells of the intrinsic
immune system to attack the pathogens.” Id. He opined that “[t]here is . . . clear evidence that
[URIs] provoke cytokine responses which have [CNS] actions, not as inflammatory mediators but
as modifiers of synaptic activity[.]” Pet’rs’ Ex. 37 at 6. He noted that IL-1, IL-6, and tumor
necrosis factor (“TNF”) are among the cytokines produced in response to infection. Pet’rs’ Ex. 38
at 4. Dr. Miller explained that some of these cytokines can cross the blood-brain barrier into CNS
tissues. Id. (citing Pet’rs’ Ex. 38, Tab D,37 ECF No. 94-2; Pet’rs’ Ex. 37, Tab M,38 ECF No. 93-
9). Dr. Miller wrote that the cytokines can mediate fever, produce “sick behaviors” such as
lethargy, excessive sleepiness, fussiness, crankiness, loss of appetite, and restlessness, and alter
sleep patterns. Pet’rs’ Ex. 38 at 4. Dr. Miller also wrote that the cytokine “actions which are
thought to lead to SIDS involve the[] suppression of the activity of the serotoninergic network[.]”
Id. This hypothesis is derived “from multiple published experimental animal studies which have
examined the functional responses and electrophysiological changes in serotoninergic medullary
neurons exposed to some of these relevant cytokines.” Id. (citing Pet’rs’ Ex. 38, Tabs 5,39 6,40 7,41
8,42 ECF Nos. 91-10, 92-1, 92-2, 94-3).

Dr. McCusker rejected Dr. Miller’s explanation of how a trivial URI increases the risk of
SIDS and wrote that “[c]ytokine production with respiratory or gastrointestinal infections have not
been defined as factors” in apneic episodes leading to SIDS. Resp’t’s Ex. E at 6. She further
wrote that “[t]here are no studies presented demonstrating that hypercapnia43 results from cytokine
release[.]” Id. at 5; see also Tr. 200:3–20 Dr. McCusker also testified that she is not aware of any
evidence that mild URIs create a risk factor for SIDS by causing a cytokine response in the
brainstem. Tr. 207:22–25.
Instead, Dr. McCusker argued that mild infection as a risk factor for SIDS “has to do with
[the] compromising of breathing.” Tr. 200:3–4. Specifically, she wrote that URIs “are sufficient
to interfere with normal infant respiration and act as a risk factor influencing gas exchange[.]”
Resp’t’s Ex. E at 5. Dr. McCusker explained that URIs “result in intermittent obstruction of the

37
Steven W. Threlkeld et al., Ovine Proinflammatory Cytokines Cross the Murine Blood-Brain Barrier by
a Common Saturable Transport Mechanism, 17 NEUROIMMUNOMODULATION 405 (2010).
38
William A. Banks et al., Bidirectional Transport of Interleukin-1 Alpha Across the Blood-Brain Barrier,
23 BRAIN RESEARCH BULLETIN 433 (1989).
39
Lauritz Stoltenberg et al., Changes in Apnea and Autoresuscitation in Piglets After Intravenous and
Intrathecal Interleukin-Iβ Injection, 22 J. PERINAT. MED. 421 (1994).
40
J. Frederik Frøen et al., Adverse Effects of Nicotine and Interleukin-1β on Autoresuscitation After Apnea
in Piglets: Implications for Sudden Infant Death Syndrome, 105 PEDIATRICS E52 (2000).
41
D. Brambilla et al., Interleukin-1 Inhibits Firing of Serotonergic Neurons in the Dorsal Raphe Nucleus
and Enhances GABAergic Inhibitory Post-synaptic Potentials, 26 EUR. J. NEUROSCI. 1862 (2007).
42
Alfredo Manfridi et al., Interleukin-18 Enhances Non-rapid Eye Movement Sleep when Microinjected
into the Dorsal Raphe Nucleus and Inhibits Serotonergic Neurons in Vitro, 18 EUR. J. NEUROSCI. 1041
(2003).
43
Hypercapnia is an excess of carbon dioxide in the blood. Dorlands at 887.
21
upper airway sufficient to affect the O2/CO2 balance in infants[.]” Resp’t’s Ex. A at 6 (citing
Pet’rs’ Ex. 26 at 9,44 ECF No. 92-4).

Dr. McCusker wrote that “[i]nfants are obligate nose breathers and have relatively small
nasal passages and airways.” Resp’t’s Ex. E at 5. Therefore, she explained, “[c]ongestion that
occurs with seemingly trivial upper respiratory tract infections results in increases in respiratory
effort and distress.” Id. Dr. McCusker noted that “[i]ncreases in carbon dioxide levels in affected
children have been documented in several studies.” Id. However, when discussing the articles
that she cited for that assertion, Dr. McCusker acknowledged that the studies were not looking at
increases in carbon dioxide levels and that “[t]here is no study that measures CO2 levels in SIDS
patients.” Tr. 275:9–10; see also Tr. 273–283.

Dr. McCusker also wrote that “[e]vidence suggests that the central functions of the
cytokines IL[-]1β, IL[-]6 and TNF[-]α at times of infection are to promote fever and to affect the
sleep architecture by increasing [non-rapid eye movement (“NREM”)] versus [rapid eye
movement (“REM”)] sleep resulting in more disturbed sleep with more frequent arousal . . .”
Resp’t’s Ex. A at 5 (citing Resp’t’s Ex. A, Tabs 19,45 20,46 21,47 ECF Nos. 39-9, 39-10, 40-1). She
discussed infant sleep patterns in her supplemental report and wrote that in infants, “NREM sleep
is associated with regular heart rate and respiratory patterns[, whereas] REM sleep is more
disorganized and considered ‘immature.’” Resp’t’s Ex. E at 4 (citing Resp’t’s Ex. E, Tab 11,48
ECF No. 53-1). She noted that although “the expression of the circadian rhythm and changes in
sleep wake cycles are specific to the infant period, there is no evidence that cytokines act
differently in infants[.]” Resp’t’s Ex. E at 4. Therefore, she opined that cytokine increases would
actually lead to increased arousal. Id.

On cross-examination, Dr. McCusker was asked about the Rognum et al.49 study,
specifically whether mild infection may trigger SIDS by cytokine interaction in a compromised
medullary system, and she disagreed with the hypothesis of the paper. Tr. 267:10–18. She then
noted that “infection can result in hypercapnia” and that the Rognum et al. paper “actually shows”
that “the presence of IL-6 may be related to the response to the infection or the stressor that the
baby is undergoing and not be related to actually a mechanistic causality association.” Tr. 268:5–
10. Dr. McCusker was asked again to clarify whether the study shows “the elevated IL-6 is related
to an infection, but that the elevated IL-6 does not necessarily relate to the impaired respiration.”
Tr. 268:11–13. She replied, “No. . . . what they say is that the presence of the IL-6 may be related
to the infection or may be related to the increase that – of the CNS in response [to] the stressor.”
Tr. 268:14–17. She did not elaborate further. The Rognum et al. study is also supported by the

44
Ingvar J. Rognum et al., Interleukin-6 and the Serotoninergic System of the Medulla Oblongata in the
Sudden Infant Death Syndrome, 118 ACTA NEUROPATHOL. 519 (2009).
45
James M Clinton et al., Biochemical Regulation of Sleep and Sleep Biomarkers, 7 J. CLINICAL SLEEP
MED. S38 (2011).
46
Charlene E. Gamaldo et al., The Sleep-Immunity Relationship, 30 NEUROLOGIC CLINICS 1313 (2012).
47
Nicolas Rohleder et al., Role of Interleukin-6 in Stress, Sleep, and Fatigue, 1261 ANNALS OF THE N.Y.
ACAD. OF SCI. 88 (2012).
48
Oskar G. Jenni & Mary A. Carskadon, Sleep Behavior and Sleep Regulation from Infancy through
Adolescence: Normative Aspects, 2 SLEEP MED. CLINICS 321 (2007).
49
Rognum et al., supra note 44.
22
2009 Kinney et al. study that found that “in infants who die unexpectedly of infection, the given
organism may precipitate a lethal cytokine cascade or toxic response.” Pet’rs’ Ex. 37, Tab C at
3.50

Dr. McCusker wrote that “[n]asal congestion associated with upper respiratory tract
infections can compromise infant respiration and increase carbon dioxide[,]” and that “‘noisy
breathing,’ as seen with nasal congestion or obstruction, positively correlates with sleep apnea.”
Resp’t’s Ex. E at 6 (citing Resp’t’s Ex. E, Tab 451). When questioned about the basis for her
mechanical hypothesis, Dr. McCusker stated that “[i]ncreased CO2 associated with upper
respiratory tract infections in infants is basic pediatrics.” Tr. 274:15–17. She emphasized that an
infant with a “stuffed up” nose will use “a lot of respiratory effort,” but there will be “no intake of
air,” which usually results in the infant waking up crying or upset. Tr. 200:10–16. She testified
that these infants “really do have a lot of difficulty getting their air in because the idea of breathing
through the mouth [does not] come naturally to these babies.” Tr. 200:16–20. She added that an
infant “making greater respiratory efforts” will have increased metabolic activity, which will also
“increase[] the risk of increasing carbon dioxide” in the body. Tr. 201:5–10. Dr. McCusker noted
that when a stuffy nose is obstructing the airway, “most of the time, suctioning is all [one] need[s]
to do and [the infant’s] oxygen comes right back up.”52 Tr. 202:17–19.

In response to Dr. McCusker’s arguments, Dr. Miller argued that “[t]here is no support in
the literature” for . . . a mechanical hypothesis[]” of URI as an external stressor, whereby
“mechanical obstruction of an infant’s nasal passages by mucus causes hypoxia and leads to
SIDS.” Pet’rs’ Ex. 38 at 5. Dr. Miller also disagreed with Dr. McCusker’s assertion that increased
cytokine activity would lead to increased arousal. Pet’rs’ Ex. 37 at 5. Dr. Miller opined that “this
mechanism might operate in normal infants[,]” whereas in “infants with defective medullary
serotonin networks . . . there cannot be a response to cytokines” as described because of the defect.
Id. He also emphasized that the mechanism described by Dr. McCusker in support of her assertion
would not be applicable in this case because infants such as J.J. “have not yet developed sleep
regulation by circadian rhythms[,]” and the article studied older children. Id. Dr. Miller
acknowledged that “over time[,] some cytokines can also stimulate the pituitary-adrenal axis to
drive greater production of serotonin in a healthy nervous system[.]” Pet’rs’ Ex. 38 at 6. However,
he emphasized that in a developmentally defective nervous system, this stimulation “ought not to
be regarded as an argument against the hypothesis that infection or vaccine-induced cytokine
responses can suppress the medullary serotoninergic network[.]” Id.

The role of cytokines stimulated by mild infection is central to Petitioners’ theory in this
case, because Dr. Miller compares the cytokine response in mild infection to that of vaccination to
explain his theory. The experts drastically diverge in their discussion at this point because Dr.
McCusker does not agree with the basis of Dr. Miller’s analogy: the mechanism by which a mild

50
Kinney & Thach, supra note 13.
51
Kahn et al., supra note 21.
52
Dr. McCusker testified that “[i]n more severe cases,” if an infant’s carbon dioxide level is “very, very
high,” they may “need assisted ventilation in order to get through that infection.” Tr. 202:19–24. Dr.
McCusker discussed bronchiolitis, where an infant’s upper and lower airways become obstructed, and noted
that even in such severe cases, “first-line management of bronchiolitis is upper airway suctioning.” Tr.
203:18–22.
23
infection can increase the risk of SIDS. Dr. Miller points to the Rognum et al.53 study which
“provides evidence for aberrant interactions in SIDS infants between IL-6 and the arcuate nucleus,
a key medullary 5-HT related region . . . potentially induced by the combined effect of prone
position and mild infection.” Pet’rs’ Ex 26 at 9. He then uses that same mechanism to argue that
a vaccine-initiated immune response is by its very nature similar to the immune response prompted
by an infection and, consequently, “[the mechanism] applies to all vaccines.” Tr. at 89:23.

b. URI as an Exogenous Stressor in this Case

Dr. Miller wrote that Petitioners’ descriptions of J.J. and his twin having “‘runny noses and
a productive’ cough” at the time of their visit to the pediatrician on November 14, 2012, “suggest
that J.J. had a URI[.]” Pet’rs’ Ex. 38 at 3. However, he noted that references to “runny noses and
productive coughs” come from Petitioners’ affidavits, which “were put together months after the
infant’s death[.]” Pet’rs’ Ex. 37 at 3.

Dr. Miller highlighted that neither the pediatrician’s note from the evening of November
14, 2012, nor the November 15, 2012 EMS and emergency department notes contain any
indication that Petitioners described a runny nose or recent URI symptoms at the time of J.J.’s
death. Pet’rs’ Ex. 37 at 3. Dr. Miller noted in his testimony that the pediatrician’s note contains
“a lot of specifics . . . in terms of physical examination that are mentioned that are all normal
findings, including . . . that there was no nasal discharge.” Tr. 32:14–16. He also emphasized that
the records from November 15, 2012, reflect only that J.J. was “cranky” after his vaccinations.
Pet’rs’ Ex. 37 at 4. Dr. Miller testified that he “tend[s] to go with medical records rather than
parent recollections” when the two conflict. Tr. 82:15–17. Therefore, Dr. Miller stated that “[f]or
the purposes of analyzing potential risk factors” in the Triple Risk Model, he “cannot agree that
there is any medical evidence [of] an URI in [J.J.] on the day before his death[.]” Pet’rs’ Ex. 37
at 4; see also Tr. 82:21–23.

Dr. Miller conceded that Dr. Gill’s autopsy report listed “recent upper respiratory
infection” under the “final diagnoses” section but noted that “recent immunizations” is noted on
the same list. Pet’rs’ Ex. 37 at 3–4. Therefore, Dr. Miller opined that, “[i]f the ME report is to be
regarded . . . as reliable as to the history of a recent URI as a contributing factor for SIDS . . . ,
[then the inclusion of] ‘[r]ecent immunizations’ directly under the diagnosis of the URI[ is]
presumably equally important as a potential contributor to death in this case.” Id. at 4. Dr. Miller
opined that if there were medical evidence of a mild infection in this case, “it would be an
additional risk factor.” Tr. 120:12–15. Dr. Miller opined that if J.J. did have a mild URI at the
time of vaccination, it may have “further increase[d] the risk of a SIDS event over the risk of
exposure to either stressor[, i.e., mild URI or vaccination,] alone.” Pet’rs’ Ex. 38 at 6. However,
he testified that such a finding would not change his analysis that the vaccines were still a
substantial contributing factor for the death. Tr. 120:21–23.

Dr. McCusker discussed URI as a risk factor for SIDS in this case without substantially
addressing the contradiction between the medical records and Petitioners’ affidavits. In both of
her reports, Dr. McCusker wrote that J.J.’s “parents reported nasal congestion, runny nose and
cough on the day and evening of November 14, 2012.” Resp’t’s Ex. A at 1; Resp’t’s Ex. E at 1.
53
Rognum et al., supra note 44.
24
In her first report, she opined that J.J. “had symptoms of an upper respiratory tract infection[,]”
among his risk factors for SIDS. Resp’t’s Ex. A at 3. In her second report, Dr. McCusker listed
“upper respiratory tract infection (per his parents)[]” as a risk factor in this case. Resp’t’s Ex. E at
5. In her testimony, Dr. McCusker indicated that she was “[p]erhaps . . . referring to the congestion
associated with the upper respiratory tract infection in October” when she included congestion in
her summary of symptoms on the evening of November 14, 2012. Tr. 262:15–23. She conceded
that there was no parental report nasal congestion on November 14, 2012. Tr. 263:1–4. However,
she nonetheless testified that “[t]he presence of the upper respiratory tract infection would be
considered a risk factor” in this case. Tr. 208:15–17. With regard to the absence of notation in
the medical records regarding URI symptoms on November 14, 2012, Dr. McCusker testified that
“on the balance of probabilities, in this situation, when the parents are clearly giving statements
related to runny nose and cough at the time of the vaccination, then you have to feel that there was
probably some runny nose and cough.” Tr. 265:15–19. Dr. Folkerth summarized in her report
that the father reported “runny noses and productive coughs,” but she acknowledged that “the
doctor’s note for that visit describes no fever or cough or other abnormality.” Resp’t’s Ex. C at 3.
She did not list URI among the risk factors for SIDS in this case. See id. at 7.

Discussing the “final diagnoses” section of the autopsy report, Dr. Folkerth was asked
about the significance of the nine listed items underneath “sudden unexpected death in infant.” Tr.
169:16–21. Dr. Folkerth agreed that it is “[g]enerally true” that each listed item under the final
diagnosis is relevant to the cause of death. Tr. 169:19–22. However, she testified that the office
where the autopsy was performed, which is the same office where she now works, receives all the
medical records of an infant prior to autopsy. Tr. 172:19–20. Therefore, she opined that the
medical examiner, Dr. Gill, “was listing some of the historical [data]—the things that were known
about the baby’s history as things to be ruled out as possible historical significance to the child,”
and not necessarily items which he felt were related to the SIDS diagnosis. Tr. 170:4–7.

There is contradicting evidence in the record regarding whether J.J. was exhibiting
symptoms consistent with a URI on the day of his death. The medical records do not document
any type of infection or note that J.J. suffered any symptoms. However, the affidavits in this case
state that J.J. was suffering from runny nose and cough. Additionally, Ms. Nunez testified that on
the day of J.J.’s four-month pediatrician appointment, she was not concerned by his symptoms.
Tr. 24:19–21. She stated that J.J.’s nose was “no longer stuffy” as it had been in October when he
suffered from congestion, and his cough “was getting better.”54 Tr. 22:18, 24:16. She explained
that his nose was “just runny” with no congestion, and there was only a “very light, clear, like
mucus or just clear from the allergies.” Tr. 22:19–21. Based on the medical record and the
testimony provided by Ms. Nunez, the undersigned finds that it is more likely than not that J.J. had
a runny nose but was not suffering from a URI on the evening that he received the vaccines at
issue in this case.

C. Vaccination as a Risk Factor for SIDS

54
Furthermore, she testified that she was instructed about how to decongest J.J.’s nostrils with saline when
he had a stuffy nose in the beginning of October 2012. Tr. 23. Therefore, it is most plausible that if J.J.
had congestion on the evening when he received his vaccines, Ms. Nunez would have been able to remedy
the stuffiness such that J.J.’s airway would not be obstructed.
25
Dr. Miller wrote that he has seen “well over a dozen” cases of SIDS death within 48 hours
of vaccination as part of his regular work as a neuropathologist and as an expert in the Vaccine
Program. Pet’rs’ Ex. 12 at 5. Dr. Miller explained that “the peak age for SIDS is between 2 and
4 months of post-natal age, corresponding to ages at which infants now receive their first and
second rounds of multiple vaccinations.” Pet’rs’ Ex. 12 at 5; see also Pet’rs’ Ex. 1555 at 2 (“Ninety
percent of SIDS occurs in the first 6 months of life, with a peak at 2–4 months[.]”). He noted that
such a correlation “raises a suspicion that vaccinations may trigger SIDS[,]” a suspicion which he
emphasized is recognized in some medical literature. Pet’rs’ Ex. 12 at 5 (citing Pet’rs’ Exs. 30–
33,56 ECF Nos. 92-8, 92-9, 92-10, 93-1). Dr. Miller acknowledged that no single piece of medical
literature sets forth his theory of causation. Tr. 96:7–10. Dr. Miller testified that “Dr. Kinney has
never evaluated vaccinations one way or the other.” Tr. 94:23–24.

Dr. Folkerth testified that she has never seen a case where she would attribute a death to
vaccination, other than acute immediate reactions. Tr. 173:2–15. Dr. McCusker testified that she
does not believe that any vaccine, under any circumstance, could result in SIDS. Tr. 332:16–20.

1. Epidemiological Studies

The 1991 Adverse Effects of Pertussis and Rubella Report concludes that “evidence does
not indicate a causal relation[ship] between DPT vaccine and SIDS.” Pet’rs’ Ex. 34 at 18 (filed
on compact disk; ECF No. 22).57 The 2012 Adverse Effects of Vaccines Report, however, held
that “evidence is inadequate to accept or reject a causal relationship between diphtheria toxoid-,
tetanus toxoid-, or acellular pertussis-containing vaccine and ITP.” Pet’rs’ Ex. 35 at 62 (filed on
compact disk; ECF No. 22).58

In the 2000 article by Jonville-Bera et al.,59 the authors “conducted a multicentre case-
control study in the 28 French ‘SIDS Centers.’” Resp’t’s Ex. A, Tab 25 at 1, ECF No. 40-5. The
authors selected 114 cases based on deaths labeled as a SIDS death of an infant between 30 and
90 days old. Id. The study’s authors selected 341 living controls (approximately three per case of
SIDS), who were “matched for sex [and] gestational age[.]” Id. The controls were also “born
immediately after the victim in the same maternity unit.” Id. The study’s authors found that
“vaccination does not constitute a risk factor for early SIDS[.]” Id. at 4. However, they noted

55
Kinney et al., supra note 17.
56
Pet’rs’ Ex. 30, Rüdiger von Kries et al., Sudden and Unexpected Deaths After the Administration of
Hexavalent Vaccines (Diphtheria, Tetanus, Pertussis, Poliomyelitis, Hepatitis B, Haemophilius Influenzae
Type b): is there a signal?, 164 Eur. J. Pediatrics 61 (2005); Pet’rs’ Ex. 31, B. Zinka et al., Letter to the
Editor: Unexplained Cases of Sudden Infant Death Shortly After Hexavalent Vaccination, 24 VACCINE
5779 (2006); Pet’rs’ Ex. 32, Giulia Ottaviani et al., Sudden Infant Death Syndrome (SIDS) Shortly After
Hexavalent Vaccination: Another Pathology in Suspected SIDS?, 448 VIRCHOWS ARCHIV 100 (2006);
Pet’rs’ Ex. 33, Giuseppe Traversa et al., Sudden Unexpected Deaths and Vaccinations During the First
Two Years of Life in Italy: A Case Series Study, 6 PLOS ONE e16363 (2011).
57
INSTITUTE OF MEDICINE, ADVERSE EFFECTS OF PERTUSSIS & RUBELLA VACCINES 125–43 (Christopher
P. Howson et al. eds., National Academy Press 1991).
58
INSTITUTE OF MEDICINE, ADVERSE EFFECTS OF VACCINES. EVIDENCE AND CAUSALITY 581–82
(Kathleen Stratton et al. eds., National Academy Press 2011).
59
Annie-Pierre Jonville-Bera et al., Sudden Unexpected Death in Infants Under 3 Months of Age and
Vaccination Status—a Case-control Study, 51 BRITISH J. CLINICAL PHARMACOLOGY 271 (2000).
26
several biases which “might explain a failure to demonstrate a risk[,]” including a selection bias
affecting the representativeness of the cases. Id. at 5. Dr. McCusker wrote that the authors “found
that vaccination was not an independent risk factor for SIDS.” Resp’t’s Ex. A at 7.

The 2007 article by Vennemann et al.60 examined “[n]ine case-control[] studies” which
examined a potential association between immunization and SIDS. Resp’t’s Ex. A, Tab 24 at 1,
ECF No. 40-4. The authors found that “[i]mmunisations are associated with a halving of the risk
of SIDS[]” and that they should thus “be part of the SIDS prevention campaigns.” Id. The authors
noted that “[t]here are biological reasons why this association may be causal, but other factors,
such as the healthy vaccine effect, may be important.” Id.

The 2010 paper authored by Traversa et al.61 studied “whether the immunisation with
hexavalent vaccines increased the short[-]term risk of [sudden unexplained death] in infants” in
Italy. Pet’rs’ Ex. 33 at 1. The authors considered a population of “around 3 million infants
vaccinated in Italy” between 1999 and 2004, of which “1.5 million received hexavalent
vaccines[.]” Id. For that population, events of sudden infant death were identified using death
certificates, and vaccination history was “retrieved from immunisation registries.” Id. A case
series design was utilized, which focused on varying intervals of risk periods between zero and
fourteen days after vaccination. Id. The authors concluded that the relative risks of sudden
unexplained death “for any vaccines and any risk periods, even when greater than 1, were almost
an order of magnitude lower than the estimates” of another study conducted in Germany. 62 Id.
They found that “[t]he limited increase in [relative risks] found in Italy appears confined to the
first dose and may be partly explained by a residual uncontrolled confounding effect of age.” Id.

Dr. Miller emphasized that there was “a statistically significant increased risk of sudden
death” following the first doses of several vaccinations, although he acknowledged that the authors
did not find such a risk after second doses. Tr. 79:12–14. In contrast, Dr. McCusker emphasized
the authors’ acknowledged limitation of “the confounding effect of age[.]” Resp’t’s Ex. A at 7.
Dr. McCusker also noted that the “association was not seen in older infants with subsequent
vaccination.” Id. Furthermore, she noted that the authors of that study, “as in others,” found a
lower immunization rate among sudden unexplained death cases when compared with controls,
which she opined “support[s] the concept of the ‘healthy vaccinee effect’ where vaccination
appears to reduce the risk of SID[S].” Id.

Dr. McCusker used many of the studies to support her position that “there is no evidence
for a role of vaccination in SIDS in the epidemiologic literature.” Id. at 9. She wrote that “[w]ell
designed publications . . . increase the strength of evidence against a causal association for SIDS
and vaccines providing strong epidemiological evidence for temporal association only.” Id. at 7

60
M.M.T. Vennemann et al., Sudden Infant Death Syndrome: No Increased Risk After Immunisation, 25
VACCINE 336 (2007).
61
Traversa et al., supra note 56.
62
The referenced study was filed as Petitioners’ Exhibit 30 and will be discussed below.
27
(citing Resp’t’s Ex. A, Tabs 24,63 28;64 Pet’rs’ Ex 33;65 ). She wrote that those “studies were
designed to be sufficiently powered to evaluate associations for rare events.” Id. She did not
elaborate further on what made the studies well designed or why she felt they were “sufficiently
powered.” See id.

Dr. McCusker wrote that the findings in the Toro et al.66 study “suggest[] that vaccination
was a protective measure for children at risk for SIDS[]” because the incidence of SIDS lowered
when children were vaccinated. Resp’t’s Ex. A at 7 (citing Resp’t’s Ex. A, Tab 26, ECF No. 40-
6). Dr. McCusker also referred to the article by Moro et al.,67 which looked at “the mortality data
in the [Vaccine Adverse Event Reporting System (“VAERS”)] dataset.” Id. (citing Resp’t’s Ex.
A, Tab 27, ECF No. 40-7). She wrote that the authors “found no difference in frequency or patterns
of SIDS compared with the expected frequency in the population.” Id.

Dr. Miller testified that there have been “more than several” epidemiological studies which
have looked at the potential role of vaccination in sudden infant death and noted that some have
found an increased incidence and some have not. Tr. 79:19–22. Dr. Miller also acknowledged
that some medical literature reflects no relationship between vaccines and SIDS. Pet’rs’ Ex. 12 at
5 (citing Pet’rs’ Exs. 34,68 3569). However, Dr. Miller opined that “none of the epidemiological
studies on this question have been appropriately done with quality neuropathological
examinations[, which are] the necessary foundation for any quality study.” Id. Dr. Miller wrote
that he has previously “detailed and testified as to the inadequacies of virtually all of the
epidemiological studies” which have considered possible relationships between vaccinations and
SIDS. Pet’rs’ Ex. 37 at 8. He declined to “consider any of [the studies] in detail” in his report,
id., and stated that “[m]ultiple published re-analyses of epidemiological studies which originally
claimed to show no statistically significant relationship between vaccinations and SIDS have
shown major defects in how those studies were constructed and/or analyzed[,]” but he averred that
there “are too many to cite[.]” Pet’rs’ Ex. 12 at 5. Dr. Miller concluded that none of the studies
“are convincing that there is no relationship between vaccinations and SIDS in . . . those [infants]
with defective medullary 5-HT networks,” which is central to his causation theory. Pet’rs’ Ex. 37
at 8. Dr. Miller noted that “no test exists in living children[]” for such a vulnerability, which
limited the ability to study it adequately. Id.

The 2012 paper by Kuhnert et al.70 reexamined three previously published case-control
studies. Resp’t’s Ex. A, Tab 28. The three reexamined studies were: the German study on sudden
infant death (GeSID) by Vennemann et al.; the Confidential Enquiry into Still Births and Deaths

63
Vennemann et al., supra note 60.
64
Kuhnert et al., Reanalyses of Case-control Studies Examining the Temporal Association Between Sudden
Infant Death Syndrome and Vaccination, 30 VACCINE 2349 (2012).
65
Traversa et al., supra note 56.
66
Klára Toro et al., Change in Immunisation Schedule and Sudden Infant Death Syndrome in Hungary, 42
FEMS IMMUNOLOGY AND MED. MICROBIOLOGY 119 (2004).
67
Pedro L. Moro et al., Deaths reported to the Vaccine Adverse Event Reporting System (VAERS), United
States, 1997–2013, 61 VACCINES 980 (2015).
68
Howson et al. (eds.), supra note 57.
69
Stratton et al. (eds.), supra note 58.
70
Kuhnert et al., supra note 64.
28
in Infancy (CESDI) study by Fleming et al.; and the New Zealand Cot Death (NZCD) study by
Mitchell et al. Dr. McCusker described the Kuhnert report as “one of the more definitive studies.”
Tr. 245:25–246:1. Dr. McCusker also noted that the authors of this study found that “the healthy
vaccine effect” discussed in the Vennemann et al. paper “was basically an overcall.” Tr. 249:7–8.
Ultimately, the Kuhnert authors did not find an association between vaccination and sudden infant
death and she acknowledged that “there wasn’t a benefit to vaccination” either. Tr. 249:7–10.

Dr. Miller testified that the Kuhnert et al. study has several issues, including use of non-
vaccinated individuals as controls. Tr. 35114–352:7. He also opined that “when you start
manipulating data over and over again,” as he posited was done in that study, “all sorts of biases
that just distort [the] study” are introduced. Tr. 353:12–13. He opined that based on that
manipulation, he does not view the study as “statistically reliable.” Tr. 353:14–15.

2. Case Reports

Dr. Miller briefly reviewed several articles where there was a temporal correlation found
between vaccination and SIDS. Tr. 77:10–79:1 (discussing Pet’rs’ Exs. 30,71 31,72 3273). He did
not draw any specific conclusions from these studies but stated that the authors in one study were
“looking for a signal . . . [that there was] something happening after vaccination that led to
SIDS…”; in another, authors were “concern[ed] that this new vaccine schedule and this new
combination of vaccines might be dangerous . . .” Tr. 77:19–22, 78:3–10.

Dr. McCusker testified that “a case report is the lowest strength of evidence” in
epidemiology. Tr. 244:7–9. She explained that a case series then groups together five or six case
reports “all with the same or similar story” and suggests that “maybe there’s something going on.”
Tr. 244:11–14. She continued that “in order to really define whether or not there . . . may be an
association that’s greater than just time, you need to design a better study.” Tr. 17–21 Dr.
McCusker testified that the “best study” is a “randomized control trial [where] you enroll all
children that are born and half get vaccinated and the other half don’t[, and then] you follow them
forward and you see if there’s any difference in sudden infant death between the two groups.” Tr.
244:22–245:3. However, such a study cannot be ethically conducted “because there are so many
benefits associated with vaccination.” Tr. 245:4–5. Dr. McCusker noted that cohort studies or
case control studies are the next best options. Tr. 245:8–9.

Dr. McCusker discussed the Moro et al. article that analyzes deaths reported to the VAERS,
including “child reports with available death certificates/autopsy reports [that listed] sudden infant
death syndrome (n = 544 [44%]).” Tr. 251:9–21 (citing Resp’t’s Ex A, Tab 2774 at 1). She testified
that Moro “found that there was no concerning pattern noted amongst the death reports with respect
to vaccinations in SIDS in that the frequency of death in the reported group was not different from
the frequency in the general population.” Tr. 251:25–252:4. Dr. McCusker acknowledged that

71
Kries et al., supra note 56.
72
Zinka et al., supra note 56.
73
Ottaviani et al., supra note 56. Dr. Miller conceded that the Ottovani case report, where an infant died
within an hour or so after vaccination, would fall outside of a timeline that he would consider suspicious of
causation. Tr. 111:6–11.
74
Moro et al., supra note 67.
29
VAERS relies on self-reporting but testified that “since the event in this situation is death, you
would expect it to be more often reported rather than not.” Tr. 252:8–10.

Regarding an article by Zinka et al.,75 Dr. McCusker wrote that “5 autopsies in children
who died within 1–2 days of vaccination showed a significant element of brain oedema [sic]
associated with cellular infiltration of unknown etiology and in one case necrosis of the
cerebellum.” Resp’t’s Ex. A at 6 (citing Pet’rs’ Ex. 31). She explained that “the authors noted
that this would represent a significant increase (13 fold) in SIDS deaths in the local region in
Germany” if the deaths were classified as SIDS. Id. at 6–7. Dr. McCusker explained that the
authors of that study “suggested [the need to conduct] a study to examine, in a larger population,
the frequency of SIDS and hexavalent vaccination.” Id. She noted that a 2007 “large case[-
]control study also from Germany showed no association with vaccination and SIDS.” Id. at 7
(citing Resp’t’s Ex. A, Tab 2476).

D. Proposed Biological Mechanism for a Causal Role of Vaccines in SIDS

As was articulated in Boatmon, a previous SIDS claim in the Program, “[t]he question
arises as whether the cytokine response stimulated by vaccination can have the same effect as a
mild or trivial infection in a baby who presumably has a defect in the medullary 5-HT system.”
Boatmon, 2017 WL 3432329, at *12.

Dr. Miller began to answer this question by concluding that “the same mechanisms can be
presumed to be involved[]” in vaccination-related SIDS as are involved in infection-related SIDS.
Pet’rs’ Ex. 38 at 4. He explained that vaccinations “provoke a reaction from the innate immune
system, just as if they were an actual infection.” Id. Dr. Miller emphasized that vaccinations
“provoke cytokine production[;] that’s what they’re designed to do.” Tr. 85:6–7. He noted that
“it’s irrelevant” in terms of the type of vaccine received, but he explained that data suggest that
“[i]t may be relevant in terms of how many vaccines” are received, because there may be a “more
vigorous . . . cytokine response” when more vaccines are added. Tr. 119:25–120:6. Dr. Miller
stressed that a minor viral URI “elicit[s] the same cytokine response as a vaccination.” Pet’rs’ Ex.
12 at 5 (citing Pet’rs’ Ex. 29,77 ECF No. 92-7).

Dr. Miller testified that when the immune system detects “what it perceives as a foreign
antigen,” multiple cytokines are produced. Tr. 67:23–68:1. Dr. Miller explained that therefore
“vaccinations lead, inevitably and as a natural event, to the production of circulating cytokines
including IL[-]2, IL-6, and IL[-1β] (and likely others)[.]” Pet’rs’ Ex. 37 at 6. He explained that
“these cytokines can cross from the blood into the brain, where they can have synaptic modulatory
effects which produce multiple physiological changes, including fever and suppression of
medullary 5-HT activity.” Id. Dr. Miller emphasized that “in an infant with an already defective
5[-H]T system,” the suppression of medullary 5-HT activity caused by those cytokines “may be
enough in any given situation of apnea or hypercapnia to produce a failure of arousal and increased
respiration, leading then to death.” Id. at 6–7.

75
Zinka et al., supra note 56.
76
Vennemann et al., supra note 60.
77
Ashild Vege & Torleiv Ole Rognum, Sudden infant death syndrome, infection and inflammatory
responses, 42 FEMS IMMUNOLOGY MED. MICROBIOLOGY 3 (2004).
30
Dr. Miller wrote that one recent study on the “potential relationships between SIDS, sleep,
and infantile febrile seizures has re-emphasized the importance of the defects in the medullary
serotoninergic system and network[.]” Pet’rs’ Ex. 12 at 5 (citing Pet’rs’ Ex. 36,78 ECF No. 93-2).
That study looked at “factors which interact with this underlying defect” to produce either SIDS
or sudden death after a seizure, including “fever, high body temperature from environmental
causes, maternal smoking, prematurity, male sex, [URIs], and sleep position[.]” Id. Dr. Miller
noted that the “study does not mention, and does not deal with, the issue of vaccinations,” but he
opined that “it is clear . . . that the elevations in cytokines produced by vaccinations act through
the same pathways, and often the same molecules, as several of the quoted risk factors, especially
infections.” Id. Therefore, Dr. Miller opined that it is “probable that vaccinations elicit cytokine
production which can suppress arousal and breathing responses, and that this suppression can cross
a fatal threshold when the infant in question is vulnerable because of an already defective
medullary serotonin system.” Id.

1. Evidence Regarding Cytokines in the Brain

Dr. Miller acknowledged the role of some cytokines as neuromodulators but argued that
cytokines “can get to [parts of the brain] directly by some mechanisms or may act at the interface
of the brain with the rest of the world, which is called the blood-brain barrier.” Tr. at 56:2–6. Dr.
Miller then stated that cytokines IL-1β and IL-6 have “been found to be elevated in post-mortem
specimens from SIDS patients.” Pet’rs’ Ex. 12 at 4 (citing Pet’rs’ Exs. 25,79 26,80 27,81 ECF Nos.
92-3, 92-4, 92-5).

Dr. McCusker responded that cytokines “that are found in the CNS are more likely than
not intrinsically produced by the CNS, and [are] not coming from the peripheral functioning
immune system.” Tr. 334:19–22. She explained that “normal brains under normal physiologic
conditions produce cytokines,” which are referred to as neurokines “because they are operating as
signaling molecules from neuron to neuron.” Tr. 195:18–23. Dr. McCusker wrote that cytokines
are released by microglial cells in the brain, and production can increase when those cells are
exposed to psychological or other stressors, such as acute brain injury or neurodegeneration.
Resp’t’s Ex. A at 4 (citing Resp’t’s Ex. A, Tabs 13,82 15,83 1684). Dr. McCusker testified that “if
our bodies would allow cytokines to sort of flood into the CNS, we would end up with a lot of
trouble.” Tr. 336:8–10.

78
Toke Hoppenbrouwers, Sudden Infant Death Syndrome, Sleep, and Seizures, 30 J. of Child Neurology
904 (2015).
79
Hazim Kadhim et al., Distinct Cytokine Profile in SIDS Brain. A Common Denominator in a
Multifactorial Syndrome?, 61 NEUROLOGY 1256 (2003).
80
Rognum et al., supra note 44.
81
Hazim Kadhim et al., Interleukin-2 as a Neuromodulator Possibly Implicated in the Physiopathology of
Sudden Infant Death Syndrome, 480 NEUROSCIENCE LETTERS 122 (2010).
82
Noga Ron-Harel et al., Brain Homeostasis is Maintained by “Danger” Signals Stimulating a Supportive
Immune Response Within the Brain’s Borders, 25 BRAIN, BEHAVIOR, AND IMMUNITY 1036 (2011).
83
Hugo O. Besedovsky & Adrianna del Rey, Central and Peripheral Cytokines Mediate Immune-brain
Connectivity, 36 NEUROCHEMICAL RES. 1 (2011).
84
Yun Su et al., Predator Exposure-induced Cerebral Interleukins are Modulated Heterogeneously by
Behavioral Asymmetry, 135 IMMUNOLOGY LETTERS 158 (2011).
31
i. Cytokines Constitutively Expressed in the Brain

Dr. Miller described how cytokines in the brain “have depressive effects on the serotonin
system in the medulla and can suppress whatever arousal mechanisms might remain in an infant
with a maldeveloped or damaged medulla.” Pet’rs’ Ex. 12 at 4.

Dr. McCusker pointed out that “cytokines have also been shown to be constitutively
expressed by cells of the brain and play distinct roles in normal brain homeostasis[.]” Resp’t’s Ex.
A at 4. She opined that those cytokines “are not considered ‘proinflammatory,’” like those in the
peripheral immune system. Id. She continued that “[n]ormal brain function requires [the] release
of cytokines[,]” which she explained “play essential roles in neuroprotection and
neuromodulation.” Id. (citing Resp’t’s Ex. A, Tab 14,85 ECF No. 39-4). Citing an article authored
by Dr. Kinney, Dr. McCusker opined that “the presence of the increased cytokines [in the brain of
infants who died of SIDS] is considered to occur in response to the inciting event of
hypoxia/hypercapnia[,] rather than represent[ing] an element etiologically linked to the respiratory
failure in the vulnerable child.” Id. at 5.

In her reports, Dr. McCusker also wrote that “there is significant evidence in the medical
literature that cytokines play important roles in both maint[aining] homeostasis in the brain and in
alerting the system to potential danger.” Id. She explained that “in children experiencing a
premortal event, cytokines involved in neuroprotection would be released in an attempt to ‘save’
the system.” Id. at 5–6. Therefore, she opined that the “differences in IL[-]6 and IL[-]6R levels
seen in SIDS children are likely a marker of the acute brain injury prior to death[,] and the presence
of cytokines in the brain of SID[S] patients represent[s] normal physiologic responses to the
stressors associated with their terminal events.” Id. at 6.

Dr. McCusker agreed with Respondent’s counsel that the articles filed by Petitioners “look
at more the expression of a cytokine as opposed to the effect of the cytokine.” Tr. 242:14–18. She
reiterated that the function of cytokines in the CNS is different than their function in the peripheral
body. Tr. 242:23–25. She testified that IL-1β is involved in sleep and arousal cycles and that
without IL-6, “you don’t lay down long-term memories properly.” Tr. 242:19–23.

Dr. McCusker admitted that she could not answer a question regarding how many
cytokines would be necessary to affect the brain of an infant with a defect in the medullary
serotonergic network, as opposed to a normal brain. Tr. 333:16–21. Dr. McCusker testified that
she was assuming that the brain of an infant who dies from SIDS is able to properly regulate
cytokines, as a baseline. Tr. 336:18–20. She testified that she has “no evidence that says that
[such brains] operate differently, with the exception that the receptor changes that are found in the
IL-6 system do[] suggest that they are less sensitive to the presence of the cytokines.” Tr. 336:22–
337:1. Dr. McCusker testified that this type of intrinsic defect would work against the idea of
cytokines overwhelming the brain, because such a brain would be less sensitive to the presence of
cytokines. Tr. 337:2–9.

85
Shamsudheen Moidunny et al., Interleukin-6-type Cytokines in Neuroprotection and Neuromodulation:
Oncostatin M, but not Leukemia Inhibitory Factor, Requires Neuronal Adenosine A1 Receptor Function,
114 J. OF NEUROCHEMISTRY 1667 (2010).
32
ii. Circulating Cytokines

Dr. McCusker testified that a person does not “have massive amounts of circulating
cytokines, except in the case of a cytokine storm.” Tr. 192:24–193:1. Cytokine storm is “the
classic example of cytokines going rogue,” where the body experiences “uncontrolled cytokine
release.” Tr. 189:16–20. Dr. McCusker testified that this results in “multi-system effects,” such
as “kidney shutdown, . . . liver failure, . . . failure of the bone marrow to produce white blood cells
and red blood cells[,] or pulmonary compromise because of pulmonary inflammation.” Tr. 190:2–
8. However, Dr. McCusker testified that “even in a cytokine storm, the effects of this massive
release of cytokines on the CNS is actually much less than in the rest of the body.” Tr. 190:9–11.
She testified that “most of the effects of this massive release of cytokines are seen in the systemic
immune system, systemic body, and not as much in the CNS.” Tr. 190:16–18. Dr. McCusker
explained that “people can die of cytokine storm,” and “over three or four days you see their
immune systems just go crazy and they’ll die within a week or two if you can’t shut down the
system.” Tr. 109:19–24.

Dr. McCusker contrasted the multisystem failure that occurs during a cytokine storm to a
“normal coordinated immune response.” Tr. 190:25–191:1. Dr. McCusker wrote that cytokine
production in the body is subject to “diurnal variations” but acknowledged that “[v]accination is
predicted to activate immune responses in part through cytokine up[-]regulation.” Resp’t’s Ex. A
at 4 (citing Resp’t’s Ex. A, Tab 10,86 ECF No. 38-10). During this response, Dr. McCusker
continued, the peripheral immune system produces and releases cytokines, “but there is no
evidence to suggest that the levels are sufficient to influence the brain . . . .” Id. She testified that
cytokines “have a very short half[-]life” and do not “live very long from the time that they’re
released.” Tr. 192:3–5. Dr. McCusker explained that they “are rapidly either taken up by a cell
which has a receptor[] and/or they are degraded by protease in the serum.” Tr. 192:6–8.
Additionally, Dr. McCusker testified that “as cytokines start to go up, so does the production of
the off switches,” or the “decoy receptor[s,]” which she explained “basically pull[] away and
trap[]” the cytokines “so that you do not get excessive inflammation.” Tr. 192:9–18. Dr.
McCusker concluded that “to get from the thigh or the draining lymph node and to put those
cytokines as implicated in a death in the CNS is just biologically not tenable, given our current
understanding of cytokine biology.” Tr. 335:2–6.

iii. Crossing the Blood-Brain Barrier

Dr. Miller testified that “there are at least two ways, and maybe more,” that cytokines can
enter the brain. Tr. 112:21–24. First, he explained that “[t]here are areas in the brain which lack
a blood-brain barrier normally,” such that “circulating molecules can cross into the brain just by
diffusion.” Tr. 112:24–113:8. Alternatively, “there is an active transport system” where cytokines
in the blood “come up against brain endothelial cells and can be grabbed and transported into the
central nervous system across the blood-brain barrier.” Tr. 113:12–16. He testified that “it’s an
energy-dependent process and it’s a saturable process.” Tr. 113:16–17. Dr. Miller described a
paper by Banks et al.,87 which “demonstrated that radiolabeled IL[-1α which was] injected

86
Aroon D. Hingorani et al., Acute Systemic Inflammation Impairs Endothelium-dependent Dilatation in
Humans, 102 CIRCULATION 994 (2000).
87
Banks et al., supra note 38.
33
intravenously crossed into the brain, with different concentrations in different neuroanatomic
structures[.]” Pet’rs’ Ex. 37 at 8 (citing Pet’rs’ Ex. 37, Tab M, ECF No. 93-9). He noted that the
“kinetics [were] indicative of a transport mechanism across the [blood-brain barrier].” Id. Dr.
Miller testified that such a system “is well documented now to exist” but acknowledged that “[w]e
don’t know a whole lot about that system.” Tr. 113:25–114:2. Dr. Miller noted that the process
of active transport does not distribute cytokines everywhere and it is “probably . . . somewhat
selective so that different places in the brain have receptors and pumps for different cytokines.”
Tr. 114:5–7. He noted that “the medulla is probably one of the places” where the process works.
Tr. 114:3–4. Dr. Miller testified that the transport process is not dependent upon inflammation or
elevated temperature. Tr. 114:8–10. He further noted that researchers believe “that the fever
comes about only after cytokines have reached the hypothalamus.” Tr. 114:12–14.

Dr. McCusker explained t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4406160. Public record. Not legal advice.