In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                       No. 14-1108V
                                   Filed: March 7, 2017

* * * * * * * * * * * * * * * * * * *
SUZANNE FUHRI, Representative of            *      UNPUBLISHED
the ESTATE of T.F.,                         *
                                            *
               Petitioner,                  *      Encephalopathy; Death; Diphtheria-
                                            *      Tetanus-Acellular Pertussis Vaccine
 v.                                         *      (“DTaP”); Table injury; Dismissal
                                            *      of Table claim only
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
               Respondent.                  *
* * * * * * * * * * * * * * * * * * *
Edward Kraus, Esq., Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Adriana Teitel, Esq., US Department of Justice, Washington, DC, for respondent.

                          PARTIAL RULING ON ENTITLEMENT1

        On November 13, 2014, Suzanne Fuhri (“Ms. Fuhri” or “petitioner”) timely filed a
petition for compensation on behalf of the estate of her minor child, T.F., under the National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (“Vaccine Act” or “the
Program”). The petition alleged that T.F. suffered an acute illness following administration of
diphtheria-tetanus-acellular pertussis (“DTaP”), haemophilus influenza type B (“Hib”),
inactivated polio (“IPV”), pneumococcal, and hepatitis B vaccines on November 29, 2012, which
led to his death on December 1, 2012. Petition (“Pet.”), ECF No. 1 at 1. Petitioner also alleged
that T.F. suffered the Table injury of acute encephalopathy “within an hour of his vaccinations

1
 Because this unpublished ruling contains a reasoned explanation for the action in this case, I
intend to post this ruling on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), petitioner
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 ruling. If, upon review, I agree that the identified material fits
within the requirements of that provision, I will delete such material from public access.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.


                                                 1
that lasted until his death 36 hours later, which meets the requirements of a table injury for the
DTaP vaccine. 42 U.S.C. § 11(c)(1)(C)(i).” Id. at 4.3 Lastly, petitioner alleged that the vaccines
were the cause in fact of T.F.’s death. Id.

       In cases involving an injury on the Vaccine Injury Table (“Table”), petitioners are
presumed to be entitled to compensation. If a petitioner did not experience a Table injury, he or
she can pursue a claim based on causation-in-fact, in which petitioner must demonstrate by
preponderant evidence that the vaccine in question caused the injury alleged.

       In this matter a fact hearing addressing whether T.F. experienced a Table encephalopathy
was held on October 19, 2016, in Chicago, Illinois. Ms. Fuhri, Brian Fic, Sr., Brian Fic, Jr.,
Joseph Fic, and Steven Fic submitted affidavits on October 6, 2016, and testified at the hearing.
Robert Fuhri and Angelica Fic submitted affidavits on October 6, 2016, but did not testify at the
hearing.

        Having carefully considered the medical records, affidavits, investigation reports, and
testimony, I find that petitioner has not presented preponderant evidence that T.F. suffered from
a Table encephalopathy following receipt of the vaccines on November 29, 2012. Accordingly,
petitioner’s Table encephalopathy claim is hereby DISMISSED. However, petitioner’s
causation-in-fact claim is unaffected by this Partial Ruling on Entitlement.

                                       I. Procedural History

        Petitioner filed her petition on November 13, 2014. Pet., ECF No. 1. This case was
originally assigned to Special Master Dorsey.4 On December 15, 2014, petitioner filed 11
exhibits. Pet. Ex. 1-11, ECF No. 9-10. A Statement of Completion was filed on January 6,
2015. ECF No. 11.
        On January 9, 2015, respondent filed a status report (“Resp. S. R.”) requesting that
petitioner file “the police report generated by Officer Bryan following his interview of the family
and communications with hospital staff.” Resp. S. R., ECF No. 12, at 1. An Order was entered
requiring the filing of the requested documents and an Amended Statement of Completion by
February 9, 2015. Order, issued Jan. 9, 2015, ECF No. 13.

        On February 9, 2015, petitioner filed a motion requesting an additional 21 days to file the
outstanding records, which was granted. Order, issued Feb. 10, 2015, ECF No. 15. On February
24, 2015, petitioner filed the police report and an Amended Statement of Completion. Pet. Ex.
12, ECF No. 16-17. On April 27, 2015, respondent filed a Rule 4(c) Report (“Rule 4 Report”)
stating that compensation was not appropriate. ECF No. 20. Following a Rule 5 conference held
on May 14, 2015, an Order was entered for the filing of petitioner’s expert reports. Order, issued
May 18, 2015, ECF No. 21.

3
 While all of the vaccines received by T.F. are listed in the Vaccine Injury Table, only the DTaP
that T.F. received is associated with the Table Injury of “encephalopathy.”
4
    Special Master Dorsey was elevated to Chief Special Master on September 1, 2015.


                                                 2
      On June, 3, 2015, petitioner filed the expert report of Dr. Douglas Miller. Pet. Ex. 13-14,
ECF No. 22. Following a Motion for Extension of time, respondent filed two expert reports and
medical literature by compact disc on October 20, 2015. Resp. Ex. 1-29, ECF No. 32.

         This case was reassigned to me on October 19, 2015. Notice of Reassignment, ECF No.
31. A status conference was held on November 5, 2015, following which Petitioner was ordered
to file a status report by November 20, 2015, indicating how she wished to proceed. Order,
issued Nov. 6, 2015, ECF No. 33. On November 20, 2015, petitioner filed a status report
requesting 60 days to file a supplemental expert report from Dr. Miller, which was granted.
Scheduling Order Non PDF, issued Nov. 20, 2015. On January 19, 2016, petitioner filed Dr.
Miller’s supplemental expert report. Pet. Ex. 15, ECF No. 35.

        At a status conference held on February 9, 2016, in addition to my request for
outstanding medical records for what appeared to be a hospitalization of T.F. noted in the record,
petitioner requested a fact hearing to resolve the Table encephalopathy claim. Order, issued Feb.
11, 2016, ECF No. 36. Respondent’s counsel was to file his supplemental expert report by
March 25, 2016. Id. at 2.

       On March 10, 2016, petitioner filed a status report requesting that the fact hearing be held
in Chicago, IL, and advising that T.F. had only had a bilirubin test during the time noted in
record but was never hospitalized. Pet. S. R., ECF No. 37. On March 24, 2016, respondent
submitted a supplemental expert report via compact disc. Resp. Ex. E., ECF No. 38.

        A status conference was held on April 28, 2016 to discuss potential hearing dates.
Petitioner was ordered to file a joint status report by May 31, 2016, providing the agreed upon
hearing dates. Order, issued April 28, 2016, ECF No. 39. Petitioner filed a joint status report
indicating the parties preferred hearing dates, and the undersigned set a factual hearing date for
October 19-20, 2016, in Chicago IL. Order, issued June 23, 2016, ECF No. 41.
        In anticipation of the hearing, petitioner was ordered to file affidavits from individuals
whom she expected to testify and all outstanding documents she intended to rely upon at the
hearing. Prehearing Order, issued June 23, 2016, ECF No. 42. Petitioner submitted the
affidavits of Brian Fic, Sr. (Pet. Ex. 16), Brian Fic, Jr. (Pet. Ex. 17), Joseph Fic (Pet. Ex. 18),
Robert Fuhri (Pet. Ex. 19), Steven Fic, (Pet. Ex. 20), and Angelica Fic (Pet. Ex. 21). ECF No.
46.
       The hearing was held on October 19, 2016, in Chicago, IL. Petitioner, Brian Fic, Sr.,
Brian Fic, Jr., Joseph Fic, and Steven Fic appeared in person and provided testimony. No post-
hearing briefs were necessary for a decision regarding the alleged Table encephalopathy.
       This matter is now ripe for a ruling on petitioner’s Table encephalopathy claim.




                                                  3
                                       II. The Factual Record

        The hearing in this matter focused solely on the events immediately before and after
T.F.’s November 29, 2012 vaccinations and whether T.F. suffered a Table encephalopathy.
Therefore, the facts presented below will address only those events which are directly related to
that aspect of petitioner’s claim. This ruling should not be interpreted to mean that the remainder
of the facts, medical history, affidavits and testimony are not important or are not being
considered. Only the facts and evidence directly related to petitioner’s Table encephalopathy
claim are being addressed in this ruling.

A.     Medical Record

       While pregnant with T.F., Ms. Fuhri was on Levonox for deep vein thrombosis (“DVT”).
She had a Greenfield filter.5 She had multiple ultrasounds throughout her pregnancy due to
decreased amniotic fluid. Pet. Ex. 3 at 72. At thirty-six weeks, Ms. Fuhri switched from taking
Levonox to Heparin in anticipation of induction. Id. She developed cellulitis at thirty-eight
weeks. Id. Due to blood clotting problems, Ms. Fuhri was induced at thirty-nine weeks. Id.

        T.F. was born on September 28, 2012. Pet. Ex. 1 at 1. Upon delivery, T.F. required
phototherapy due to hyperbilirubinemia.6 Id. at 4. He received a Hepatitis B vaccine prior to
being discharged from the hospital. Id. Ms. Fuhri stated that she took T.F. back to the hospital
for a bilirubin check, however, there is no record of this visit. Id. at 3.

        T.F did not have a one-month well baby visit. Id. On November 29, 2012, T.F. was
taken to Southwest Medical Associates for his two-month well baby check where he received the
Pentacel [DTaP/IPV/Hib], Prevnar 13, and Hepatitis B vaccines. Id. at 3. Ms. Fuhri was advised
to give T.F. Tylenol if needed. Id. at 5. She was also advised to change T.F.’s sleeping position
due to “slight left occipital flattening.” Id. T.F. was noted to be a well-baby. Id.

     On December 1, 2012, T.F. was brought by ambulance to the emergency room at Palos
Community Hospital. According to the Emergency Medical Squad who arrived at T.F.’s home

5
  Greenfield Filter is “a filter placed in the inferior vena cava under fluoroscopic guidance. It is
used in patients who are particularly vulnerable to pulmonary embolism, such as those diagnosed
with deep venous thrombosis with contraindications to anticoagulation, to prevent venous emboli
from entering the pulmonary circulation.” Greenfield filter, Farlex Partner Medical Dictionary
2012, http://medical-dictionary.thefreedictionary.com/Greenfield+filter (last visited Feb. 13,
2017).
6
 Hyperbilirubinemia is “an excess of BILIRUBIN in the blood, occurring as a result of liver or
biliary tract dysfunction or with excessive destruction of red blood cells. It is classified as
conjugated or unconjugated, according to the type of bilirubin present. Jaundice is manifested
when excess bilirubin is deposited in the skin and mucous membranes.” Hyperbilirubinemia,
Farlex Partner Medical Dictionary 2012, http://medical-
dictionary.thefreedictionary.com/hyperbilirubinemia (last visited Feb. 13, 2017).



                                                 4
that morning, the “[f]amily stated that they last saw [T.F.] awake and crying at 5:00 am.” Pet.
Ex. 2 at 8. The emergency room physician stated that, according to Ms. Fuhri, T.F. “was last
seen alive at 3 o’clock this morning. [T.F.] recently had immunizations on Thursday. [Ms.
Fuhri] had been seeing Dr. Strambozi and [T.F.] has had a little bit of a fever. Otherwise, he was
acting normally and feeding well.” Id. at 17.

B.     Investigation Report

        The Worth Police Department responded to T.F’s home. The narrative report of the
responding police officer stated that Ms. Fuhri went to bed around 3:00 am. Pet. Ex. 12 at 2.
T.F. was already asleep in Ms. Fuhri’s bed, and at that time, he was “‘fine.’” Id. When she was
asked if T.F. had any medical problems since birth, Ms. Fuhri stated that “he was jaundiced but
suffered no other ailments.” Id. Additionally, other family members who saw T.F. on
November 30, 2012, advised the police that T.F. “appeared to be in good health.” Id. at 2-3.

C.     Facts According to Family Members

        T.F. lived with his mother, Ms. Fuhri, father, Brian Fic, Sr. (“Mr. Fic”), and his half-
brothers, Brian Fic, Jr. (“Brian”) and Michael Fic (“Michael”). Robert Fuhri (“Robert”), Ms.
Fuhri’s brother, was also living with them. Mr. Fic had two other children, Steven Fic
(“Steven”) and Angelica Fic (“Angelica”) who visited their father every other weekend. Pet. Ex.
16 at 1. Below are the facts as told by each family member regarding the events that took place
from November 29, 2012 through December 2, 2012.

       1.      Facts according to Ms. Fuhri

        Ms. Fuhri submitted an affidavit on December 15, 2014 in support of her petition; she
also testified at the fact hearing on October 9, 2016. Pet. Ex. 6; Tr. 5.17 to 57.17. According to
Ms. Fuhri, T.F. “was a happy, healthy, normally developing two-month old child before his
vaccinations.” Pet. Ex. 6. At the hearing, Ms. Fuhri testified that T.F was a typical baby. She
stated that when T.F. was awake, he appeared to be alert, however, because he was still so
young, there wasn’t really much of a reaction. Tr. 10.18 to 13.17.

        Ms. Fuhri testified that after the doctor’s appointment on November 29, 2012, T.F. slept a
lot but she thought that was usual after receiving vaccines. Tr. 16.13 to 16.16. Ms. Fuhri stated
that she was told by the doctor that drowsiness and irritability might be a side effect of the
vaccines. Tr. 16.14 to 16.16. That evening, T.F. seemed warm and uncomfortable, so Ms. Fuhri
gave him a dose of infant’s Tylenol per the doctor’s recommendation. Pet. Ex. 6 at 2; Tr. 16.25
to 17.3.

        Ms. Fuhri testified that the next day, T.F. acted the same way as the day before; He slept
a lot and did not wake for his feedings or to be changed. She stated that she noticed T.F.’s face
looked puffy so she took a picture of him on her phone and sent it to his dad, Mr. Fic, at work via
text message. Pet. Ex. 4 at 4; Tr. 17.4 to 17.10. When she went to change T.F’s diaper that
morning, she stated that he let out a high-pitched scream. Tr. 18.19 to 18.21. To get him to calm
down, she picked him up and comforted him. Tr. 18.21 to 18.23. When asked if she was


                                                 5
concerned about the scream, Ms. Fuhri responded: “Not really… maybe something startled
him…” Tr. 19.2 to 19.4. Ms. Fuhri stated that she did not call or take T.F. to the doctor because
the doctor had told her that T.F. might be tired cranky, irritable, and sleepy after receiving his
shots, and if there was a fever, to give him Tylenol. Tr. 19.18 to 19.21. Ms. Fuhri stated that she
gave T.F. Tylenol around 5:00 or 6:00 pm later that day. Tr. 19.10 to 19.21.

        Ms. Fuhri stated that Steven and Angelica came over for their weekend visit that
afternoon. Tr. 19.23 to 20.3. While she and Angelica were watching TV together she put T.F. in
his swing after he had fallen asleep. Tr. 20.4 to 20.18. Ms. Fuhri stated she fell asleep as well
watching TV. Tr. 20.17 to 20.18. She recalled Angelica waking her up and handing her T.F.
Tr. 20.18 to 20.21. She noticed that Angelica had put a different outfit on T.F., and that the
outfit was too big for him. Tr. 20.24 to 20.25. She noted that T.F.’s hands were cold. Tr. 21.2.
She recalled going to her bedroom to change his outfit and put mittens on him so he wouldn’t
scratch his face. Tr. 21.3 to 21.12.

        According to Ms. Fuhri, at around 2:30 am, she went into her bedroom with T.F. and put
him on her bed and she laid down at an angle so that he could not move anywhere. Tr. 22.10 to
22.14. She recalled putting T.F. on a pillow, mostly his shoulders and head. Tr. 24.3 to 24.11.
She noted that it was a regular flat pillow, not a “big, fluffy” one. Tr. 23.19 to 23.20. Ms. Fuhri
stated that T.F. also had a blanket on him that she put up to his armpits but not past his neck. Tr.
24.18 to 24.22.

        The next morning, Ms. Fuhri recalled waking up around 8:30 am. Pet. Ex. 6 at 3; Tr.
25.8. According to Ms. Fuhri, T.F. looked “really, really pale and his lips were blue.” Tr. 25.9
to 25.10. She stated that he was in the same position on his back with the blanket still covering
his body and his head and shoulders still on the pillow. Pet. Ex. 6 at 3; Tr. 25.11 to 25.19. At
this point, Ms. Fuhri recalls yelling for Mr. Fic, who tried performing CPR. Pet. Ex. 6 at 3. Ms.
Fuhri stated that she does not remember anything after that. Pet. Ex. 6 at 4; Tr. 26.7 to 26.5.

        I questioned Ms. Fuhri further about what T.F. was like the day of November 30, 2012.
Other than sleeping for most of the day, which she attributed to a typical reaction to the vaccines
he received, she did not remember anything unusual that day. Tr. 36.3 to 36.23. The only thing
that Ms. Fuhri recalled being unusual that day was when Angelica woke her to hand her T.F and
his hand felt very cold. Tr. 54.10 to 54.12.

       2.      Facts according to Brian Fic, Sr.

        Mr. Fic is the father of T.F. He submitted an affidavit on October 6, 2016 and testified at
the fact hearing on October 9, 2016. Pet. Ex. 16; Tr. 58.8 to 90.6. Mr. Fic typically worked the
night shift 4:00 p.m. until approximately 2:30 a.m. unless he worked overtime, in which case he
would work until almost 4:00 a.m. Pet. Ex. 16 at 1; Tr. 60.14 to 60.24.

        Mr. Fic testified that T.F. was a happy baby, “smiling, playing, [and] making noises.” Tr.
63.6 to 63.7. He recalled that T.F. was finicky or colicky early on. Tr. 63.1 to 63.2. Mr. Fic did
not recall T.F. really focusing on anything yet nor did he recall T.F. having a favorite toy. Tr.
81.16 to 82.9. Mr. Fic noted that T.F. spent a lot of time in his swing and would often sleep


                                                   6
there. Tr. 63.22 to 63.23. He stated that although T.F. had a crib in their bedroom, he normally
slept in the bed with Ms. Fuhri and usually slept on his back. Tr. 64.1 to 64.13.

        Mr. Fic testified that on November 29, 2012, he left for work before Ms. Fuhri brought
T.F. home from the doctor. Pet. Ex. 16 at 2; Tr. 65.7 to 65.9. Mr. Fic further stated that he did
not recall seeing T.F. the following day before he left for work. Pet. Ex. 16 at 2; Tr. 65.16 to
65.20. He did recall that Ms. Fuhri told him about the vaccines T.F. had received the day before,
and that T.F. had screamed when the shots were given to him. Tr. 79.16 to 79.21. Mr. Fic stated
that he thought it would be normal for children to scream getting shots. Tr. 80.20 to 80.22. Mr.
Fic did not remember Ms. Fuhri texting him a photo of T.F. on November 30, 2012. Pet. Ex. 6 at
2; Tr. 85.9 to 85.17. The only photo he remembered receiving was one of T.F. that was taken in
the doctor’s office at his checkup. When he was shown the photo that Ms. Fuhri referred to as
the one that she sent to him on November 30, 2012, he stated that he did not recall seeing that
photo. Pet. Ex. 4 at 4; Tr. 85.9 to 86.20. Mr. Fic testified that he did not recall anything out of
the ordinary on November 30, 2012. Tr. 86.21 to 87.25.

        Mr. Fic recalled that he arrived home around 5:00 a.m. on December 1, 2012. Pet. Ex. 16
at 2; Tr. 67.12 to 67.13. When he went into the bedroom to change, T.F. and Ms. Fuhri were
sleeping in the bed, with Ms. Fuhri sleeping at an angle and T.F. sleeping on a pillow on his back
in front of her. Pet. Ex. 16 at 2; Tr. 67.20 to 68.24. Mr. Fic recalled hearing T.F. “exhale” and
“tuck[ing] him in before [he] left the room” to watch television in the living room, where he fell
asleep. Tr. 69.18 to 70.17. Mr. Fic stated that nothing struck him as unusual. Tr. 70.3.

       Mr. Fic recalled waking to Ms. Fuhri screaming. He recalled running into the bedroom to
find Ms. Fuhri sitting in bed with T.F. lying on his back in front of her. Pet. Ex. 16 at 2; Tr.
70.19 to 71.17. Mr. Fic testified that he first picked up T.F. to check his airway and to make sure
there was nothing in his mouth. Tr. 71.6 to 71.8. After finding no pulse, Mr. Fic stated that he
performed CPR. Pet. Ex. 16 at 2; Tr. 71.25.

       3.      Facts according to Joseph Fic

         Joseph is Mr. Fic’s brother and T.F.’s uncle. Joseph submitted an affidavit on October 6,
2016 and testified at the fact hearing on October 9, 2016. Pet. Ex. 18; Tr. 90.11 to 105.2. Joseph
testified that he lived with Ms. Fuhri and Mr. Fic when T.F. was born. Pet. Ex. 18; Tr. 91.14 to
92.1. He worked for UPS and regularly did the early morning shifts; therefore, he stated that he
was around the house a lot with Ms. Fuhri and T.F. during the day and helped out when Ms.
Fuhri needed a break. Pet. Ex. 18 at 1; Tr. 92.1 to 20.7. Joseph recalled T.F. being a happy,
normal baby. Pet. Ex. 18 at 1; Tr. 93.18 to 93.20. He stated that when Ms. Fuhri brought T.F.
home after he received his vaccines on November 29, 2012, T.F. seemed tired and slept a lot.
Pet. Ex. 18 at 1; Tr. 95.35 to 96.11. According to Joseph, T.F. would open his eyes, smile a bit
and then go back to sleep. Joseph stated that T.F. was not his usual self. Tr. 95.14 to 96.7.

        Joseph recalled that T.F. slept for most of the day on November 30, 2012. Pet. Ex. 18 at
2; Tr. 96.17 to 97.16. He stated that he played with T.F. sometime that evening and recalled that
he smiled a bit then went back to sleep. Id. Joseph estimated that he played with T.F. for about
thirty minutes, pushing him in his swing, trying to get him to smile, but that he would just go


                                                7
back to sleep. Tr. 97.10 to 97.12. Joseph stated that he went to bed at around 1:30 a.m. and
woke up for work the next morning about twenty minutes before Ms. Fuhri began screaming that
something was wrong with T.F. Pet. Ex.18 at 2; Tr. 97.23 to 98.24. He stated that he hurried
downstairs and saw Mr. Fic performing CPR on T.F. Pet. Ex. 18 at 2; Tr. 97.23 to 98.24.

       4.      Facts according to Steven Fic

        Steven is Mr. Fic’s son and T.F.’s half-brother. Steven submitted an affidavit on October
6, 2016 and testified at the fact hearing on October 9, 2016. Pet. Ex. 20; Tr. 105.6 to 113.9.
Steven and his sister Angelica lived with their mother, but visited Mr. Fic and Ms. Fuhri every
other weekend. Pet. Ex. 20 at 1; Tr. 106.7 to 106.11. He recalled T.F. as “being a happy, normal
baby” and remembered interacting with him on the weekends when he would be at his father’s
house. Pet. Ex. 20 at 1; Tr. 107.18 to 108.1. He recalled arriving at Mr. Fic’s house at around
4:00 or 5:00 p.m. on November 30, 2012. Tr. 108.13. According to Steven, T.F. was sleeping in
his swing in the living room when he arrived. Pet. Ex. 20 at 2; Tr. 108.14 to 108.24. Steven
stated that he did not remember much else about that evening. Pet. Ex. 20 at 2.

       5.      Facts according to Angelica Fic

         Angelica is Mr. Fic’s daughter and T.F.’s half-sister. Angelica submitted an affidavit on
October 6, 2016 but did not testify at the fact hearing. Pet. Ex. 21. In her affidavit, Angelica
stated that she arrived at her father’s house sometime in the afternoon on November 30, 2012
and T.F was sleeping in his swing when she arrived. Pet. Ex. 21 at 1-2. Angelica affirmed that
later in the evening, both Ms. Fuhri and T.F., who was in his swing, were asleep in the living
room. Id. She stated that T.F. woke up and was fussing, so she woke up Ms. Fuhri and then
went upstairs. Id. Overall, she “didn’t notice anything different or usual [sic] about [T.F.] that
night.” Id.

       6.      Facts according to Brian Fic, Jr.

        Brian is Mr. Fic’s son and T.F.’s half-brother. Brian lived with Mr. Fic and Ms. Fuhri on
November 30, 2012. Brian submitted an affidavit on October 6, 2016 but did not testify at the
fact hearing. Pet. Ex. 17. Brian recalled T.F. as “being a happy, healthy, normal baby before he
died.” Pet. Ex. 17 at 1. He recalled seeing T.F. the night before he died around 12:00 a.m. Id.
Brian stated that he and Joseph played with T.F. for a few minutes before going to bed. Id.
Brian recalled that T.F. smiled but did not seem to notice as much as he usually would. Id. at 2.
Brian stated that he did not remember much else that was different about T.F. that night. Id.

       7.      Facts according to Robert Fuhri

        Robert is Ms. Fuhri’s brother and T.F.’s uncle. He lived with Mr. Fic and Ms. Fuhri on
November 30, 2012. Robert submitted an affidavit on October 6, 2016 but did not testify at the
fact hearing. Pet. Ex. 19. Robert recalled T.F. as “being a happy, normal baby before he died.
Pet. Ex. 19 at 1. Robert further stated that he did not recall anything about the day before T.F.
died. Id.



                                                   8
                                        III. Legal Standard

A.     Claimant’s Burden in Vaccine Program Cases

        To receive compensation under the Vaccine Act, petitioner must prove either: (1) that
T.F. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of the vaccinations in question within a statutorily prescribed period of
time or, in the alternative, (2) that T.F.’s illnesses were actually caused by a vaccine (“Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)( 1 )(C)(ii)(I); see also Moberly v. Sec‘y of Health & Human Servs., 592 F.3d 1315, 1321
n.2 (Fed. Cir. 2010) (citations omitted).

        Petitioners bear the burden of establishing their claims by a preponderance of the
evidence. 42 U.S.C. § 300aa-13(1)(a). A petitioner must offer evidence that leads the “trier of
fact to believe that the existence of a fact is more probable than its nonexistence before [he or
she] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 440 F.3d 1317 at 1322 n.2 (citations omitted). Causation is presumed after
a Table’s factual predicates are established, therefore, the definition of encephalopathy is deemed
“very restrictive” under the Vaccine Table. Dixon v. Sec 'y of Health & Human Servs., No. 01-
605V, 2003 WL 23218020, at (Fed. Cl. Spec. Mstr. Nov. 25, 2003), mot. for review den'd, 61
Fed. Cl. 1 (2004).

        “In determining whether or not an encephalopathy is a condition set forth in the Table,
the Court shall consider the entire medical record.” § 100.3(b)(2)(iv). A special master may
consider all the evidence presented, including that of respondent, in determining whether
petitioners have met their burden of proof. See Doe 11 v. Sec’y. of Health and Human Servs, 601
F.3d 1349, 1357–58 (Fed. Cir. 2010).

B.     Legal Standards Regarding Fact Finding

        The process for making determinations in Vaccine Program cases regarding factual
issues, begins with analyzing the medical records, which are required to be filed with the
petition. 42 U.S.C. § 300aa-11(c)(2). Medical records, created contemporaneously with the
events they describe are presumed to be accurate and “complete” (i.e., presenting all relevant
information on a patient’s health problems). Cucuras v. Sec’y of Health & Human Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993); Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl. 598,
608 (2010).

       Where medical records are clear, consistent and complete, they should be afforded
substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are generally found to be deserving of greater evidentiary weight than oral testimony—especially
where such testimony conflicts with the record evidence. Cucuras, 993 F. 2d at 1528; see also
Murphy v. Sec’y of Health and Human Servs., 23 Cl. Ct. 726, 733 (1991), aff’d, 968 F. 2d 1226
(Fed. Cir.) (citing United States v. United States Gypsum Co., 333 U.S. 364, 396 (1947)(“[i]t has
generally been held that oral testimony which is in conflict with contemporaneous documents is


                                                 9
entitled to little evidentiary weight”). In making contemporaneous reports, the declarant’s
motivation for accurate explication of symptoms is more immediate, as opposed to testimony
offered after the events in question, which is considered inherently less reliable. Reusser v. Sec’y
of Health & Human Servs., 28 Fed. Cl. 516, 523 (1993).

        There are situations in which compelling oral testimony may be more persuasive than
written records—for instance in cases where records are deemed to be incomplete or inaccurate.
Campbell v. Sec’y of Health &Human Servs., 69 Fed. Cl. 775, 779 (2006)(“like any norm based
upon common sense and experience, this rule should not be treated as an absolute and must yield
where the factual predicates for its application are weak or lacking.”); Lowrie, 2005 WL.
6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should be accorded less
deference than those which are internally consistent”)(quoting Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991), aff’d per curium, 968 F. 2d 1226 (Fed. Cir. 1992).
Ultimately, a determination regarding a witness’s credibility is needed when determining the
weight that such testimony should be afforded. Andreu v. Sec’y of Health & Human Servs., 569
F. 3d. 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F. 2d. 1570,
1575 (Fed. Cir. 1993).

        In determining the accuracy and completeness of medical records, the Court of Federal
Claims has listed four possible explanations for inconsistencies between contemporaneously
created medical records and later testimony: (1) a person’s failure to recount to the medical
professional everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported to her or him; (3) a person’s faulty
recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of
symptoms that did not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed Cl. 184,
203-204 (2013), aff’d, 746 F. 3d. 1334 (Fed. Cir. 2014). In making a determination regarding
whether to afford greater weight to contemporaneous medical records or other evidence, such as
testimony at hearing, there must be evidence that this decision was the result of a rational
determination. Burns by Burns v. Sec’y of Health & Human Servs., 3 F. 3d 415, 417 (Fed. Cir.
1993).

C.     Encephalopathy Table Claim

         To prove a Table injury, petitioner must show that T.F. suffered an injury listed on the
Vaccine Injury Table and that such injury first manifested within the period listed on the Table.
Shalala v. Whitecotton, 514 U.S. at 274 (citing § 300aa–11(c)(1)(C)(i)); 42 U.S.C. § 300aa–
14(a). The current version of the table is found at 42 C.F.R. § 100.3(a). The Vaccine Act’s
qualifications and aids to interpretation (“QAI”), 42 C.F.R. § 100.3(b), contain definitions for the
terms used in the table. See Althen v. Sec’y. of Health and Human Servs., 58 Fed. Cl. 270, 280
(2005), aff’d 418 F. 3d. 1274 (Fed. Cir. 2005) (noting that the QAI should be used to interpret
key terms found in the Table).

         Petitioner alleges that T.F. suffered from the Table injury, encephalopathy within 24
hours of receiving his DTaP vaccine. The QAI defines “acute encephalopathy” to mean “one
that is sufficiently severe so as to require hospitalization (whether or not hospitalization
occurred.” 42 C.F.R. § 100.3(b)(2)(i). For children who are less than 18 months of age,


                                                10
including T.F., “an acute encephalopathy is indicated by a significantly decreased level of
consciousness lasting for at least 24 hours.” 42 C.F.R. § 100.3(b)(2)(i)(A). The definition of
the phrase “significantly decreased level of consciousness” is found in paragraph D, which
states:

       A “significantly decreased level of consciousness” is indicated by at least one of the
       following clinical signs for at least 24 hours or greater (see paragraphs (2)(i)(A) and
       (2)(i)(B) of this section for applicable time frames.

               (1) Decreased or absent response to environment (response, if at all, only to loud
                   voice or painful stimuli);
               (2) Decreased or absent eye contact (does not fix gaze upon family members or
                   other individuals); or
               (3) Inconsistent or absent responses to external stimuli (does not recognize
                   familiar people or things.)

42 C.F.R. § 100.3(b)(2)(i)(D); see also Waddell, 2012 WL 4829291, at 7 (holding that the QAI
definition of “significantly decreased level of consciousness” implies “a state of diminished
alertness that is much more than mere sleepiness or inattentiveness…[It] requires markedly
impaired – or strikingly absent – responsiveness to environmental or external stimuli for a
sustained period of at least twenty-four hours.”)

       The following has been excluded as factors contributing to an “encephalopathy.”

               The following clinical features alone, or in combination, do not demonstrate an
               acute encephalopathy or a significant change in either mental status or level of
               consciousness as described above: Sleepiness, irritability (fussiness), high-pitched
               and unusual screaming, persistent inconsolable crying and bulging fontanelle.
               Seizures in themselves are not sufficient to constitute a diagnosis of
               encephalopathy. In the absence of other evidence of an acute encephalopathy,
               seizures shall not be viewed as the first symptom or manifestation of the onset of
               an acute encephalopathy.

42 C.F.R. § 100.3(b)(2)(i)( E), see also Watt v. Sec’y. of Health and Human Servs. No. 99-25V,
2001 WL 166636, at 8 (Fed. Cl. Spec. Mstr. Jan. 26, 2001) (explaining that a Table
encephalopathy “cannot merely be crying” and “it cannot merely be crankiness”).

                               IV. Discussion and Findings of Fact

        A fact hearing was held because the parties disagreed about T.F.’s health after his
vaccinations and prior to his death on December 1, 2012. There is no disagreement that T.F. was
a healthy baby at his two-month check up on November 29, 2012. Therefore, the issue requiring
analysis here is T.F.’s health between the afternoon of November 29, 2012, following receipt of
his vaccination and the time of his death on December 1, 2012.




                                                11
       In this matter, there are only two relevant records: the Palos Community Hospital record
and the Worth Police Department investigation report prepared shortly after T.F.’s death.

         The hospital record provides that T.F. “is a 2-month-old child who was found
unresponsive around 8:45 this morning and brought in by paramedics pulseless and
apneic…According to the mother, [T.F.] was last seen alive at 3 o’clock this morning. The child
recently had immunizations on Thursday. She had been seeing Dr. Strambozi and [T.F.] has had
a little bit of a fever. Otherwise, he was acting normally and feeding well. Normal birth history.
He was a little jaundiced at birth but went home with the mother about 2 months ago.” Pet. Ex. 2
at 17.

         The initial police investigation states that, according to Ms. Fuhri, T.F. had a doctor’s
examination on November 29, 2012. He received three immunizations in his left leg. Redness
to the left leg was noted on Friday November 30, 2012. She gave him Tylenol on November 29,
2012 after the examination for low fever and for pain and again on November 30, 2012 at 8 p.m.
for pain. Ms. Fuhri advised that T.F. drank formula and consumed 6 to 8 ounces per feeding.
Pet. Ex 12 at 11. Ms. Fuhri stated that she went to bed about 3 a.m. T.F. was already in bed
sleeping and he was “fine.” Pet. Ex. 12 at 2.

        Mr. Fic advised that he arrived home from work at about 4 a.m. on December 1, 2012.
He stated that when he went to change in his room, he saw Ms. Fuhri and T.F. sleeping in the
bed. Mr. Fic related that T.F. was sleeping but “moving around and grunting.” Pet. Ex. 12 at 2.
Joseph, Robert, Angelica and Steven all stated that they had seen T.F., the night before at some
point and that he “appeared to be in good health.” Pet. Ex. 12 at 2. Brian stated that he saw T.F.
at around midnight in the living room and he “appeared to be in good health. Pet. Ex. 12 at 3.

        Michael Fic, who also resided in the Fuhri/Fic home at the time, did not submit an
affidavit or testify at the hearing. When questioned by the police, Michael stated that nothing
unusual occurred within the residence on Friday, November 30, 2012 and that T.F. appeared to
be in good health. Michael stated that he saw T.F. asleep in his swing in the living room at
around 5 p.m. He then went to his room and came downstairs for something to eat at around
midnight. When he was downstairs, he noticed that T.F. was up in his swing and that Joe and
Brian were in the living room playing with him. Pet. Ex. 12 at 5 to 6; Pet. Ex. 12 at 9.

        At the hearing, Ms. Fuhri testified that on November 29, 2012 and November 30, 2012,
T.F. slept a lot and did not wake for feedings. She stated that his face looked puffy. Tr. 17.4 to
17.10. Pet. Ex. 4 at 4. Ms. Fuhri further stated that while changing T.F.’s diaper on November
30, 2012, he let out a high-pitched scream. She comforted him until he settled down. Tr. 18.19
to 18.23. However, she stated that she was not concerned about him, thought his cry was due to
something startling him and his sleeping more than usual was typical and to be expected. Tr.
19.2 to 19.4. She stated that she did not call or take T.F. to the doctor because the doctor had
told her what to expect, that T.F. may be tired, cranky and irritable. Tr. 19.18 to 19.21.

       When I questioned Ms. Fuhri further about what T.F. was like the day of November 30,
2012, other than being sleepy for most of the day, which she attributed to a typical reaction to the
vaccines he received, Ms. Fuhri did not recall anything unusual about T.F. Tr. 36.3 to 36.23.


                                                12
The only thing that Ms. Fuhri recalled being unusual that day was when Angelica woke her to
hand her T.F and his hand was very cold. Tr. 54.10 to 54.12.

        Joseph recalled T.F. being tired, sleeping a lot and not being his normal self after his
vaccinations. Pet. Ex. 18 at 1; Tr. 95.14 to 96.11. However, he did recall playing with T.F.
sometime during the evening on November 30, 2012 and that T.F. smiled a bit then went back to
sleep. Pet. Ex. 18 at 2; Tr. 96.17 to 97.19. Joseph estimated that he played with T.F. for about
thirty minutes. Tr. 97.10 to 97.12. The remainder of the family members who testified or
submitted affidavits, or both, did not remember anything unusual about T.F. on November 30,
2012.

        The facts as developed at hearing suggest that T.F. may have slept more than usual
following receipt of his vaccines on November 29, 2012. However, there was no evidence in the
record that would establish the requirements for a Table encephalopathy. T.F.’s behavior did not
alarm those around him, nor did it prompt a need for a phone call to the doctor. There appeared
to be nothing unusual on November 29, 2012 or November 30, 2012, to anyone in the household,
other than T.F. sleeping more than usual. The facts and evidence in this case are insufficient to
establish that T.F. suffered a Table encephalopathy following receipt of his DTaP or other
vaccines on November 29, 2012.

        The loss of T.F. is a tragedy to this family. However, constrained by the QAI definition
of acute encephalopathy and “significantly decreased level of consciousness” which implies “a
state of diminished alertness that is much more than mere sleepiness or inattentiveness…[It]
requires markedly impaired – or strikingly absent – responsiveness to environmental or external
stimuli for a sustained period of at least twenty-four hours”, I must find that T.F. did not suffer a
Table encephalopathy following his vaccinations on November 29, 2012.

                                            V. Conclusion

       I have carefully reviewed the record and considered all of the evidence submitted in
support of petitioner’s claim that T.F suffered from a Table encephalopathy following his
vaccinations on November 29, 2012. I find that T.F. did not suffer from a Table encephalopathy
following his vaccinations and therefore, petitioner is not entitled to compensation for T.F’s
death on her Table injury claim.

       The following is therefore ORDERED:

       By no later than Monday, June 5, 2017, petitioner must file a status report updating
the court on how she would like to proceed.

       IT IS SO ORDERED.

                                               s/Mindy Michaels Roth
                                               Mindy Michaels Roth
                                               Special Master



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