Swick v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
RYAN L. SWICK and MARY M. SWICK, *
legal representatives and parents of their * No. 13-526V
deceased minor child, J.R.S., * Special Master
* Christian J. Moran
Petitioners, *
* Filed: January 7, 2016
*
v. * Findings of fact; onset
*
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Richard H. Moeller, Berenstein, Moore, Heffernan, Moeller & Johnson, L.L.P.,
Sioux City, IA, for petitioners;
Ryan Daniel Pyles, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED RULING FINDING FACTS1
On July 29, 2013, Ryan and Mary Swick filed a petition on behalf of their
deceased son, J.R.S., under the National Vaccine Injury Compensation Program
(the “Vaccine Program”), 42 U.S.C. § 300aa-10 through 34 (2012). This ruling is
focused on resolving inconsistent factual details surrounding J.R.S.’s death on
August 11, 2011. When special masters are confronted with discrepancies among
medical records and affidavits, they are encouraged to hold a hearing to evaluate
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
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the testimony of the affiants. See Campbell v. Sec’y of Health & Human Servs.,
69 Fed. Cl. 775, 779-80 (2006). This has occurred.
Procedural History
On July 25, 2011, J.R.S. received the hepatitis B, rotavirus, diphtheria-
tetanus-acellular pertussis (“DTaP”), haemophilus influenzae type b, inactivated
poliovirus (IPV), and pneumococcal conjugate vaccines. Pet. ¶ 5. Mr. and Mrs.
Swick (“the Swicks” or “petitioners”) allege a vaccination, or combination of
vaccinations, caused J.R.S.’s death a month later. Id. ¶¶ 21, 23. To support their
claim for compensation, petitioners filed medical records (exhibits 1-6, 8-10) and
affidavits (exhibits 7, 15).
In addition to submitting the medical records and affidavits, petitioners were
ordered to file an expert report outlining the basis of their theory. Neurologist Dr.
Walter Kozachuck’s first report opined that J.R.S. died as a result of posterior
reversible encephalopathy syndrome, which can begin soon after vaccination.
Exhibit 11 at 12. The Secretary filed her Rule 4 report shortly after Dr.
Kozachuck’s report, and concluded there was insufficient evidence to prove
petitioners are entitled to compensation. Resp’t’s Rep. at 10. With her report, the
respondent submitted blog posts by Mrs. Swick dated April 26, 2012 (updated
April 27, 2012) and February 20, 2012. Exhibit A; exhibit B.
The case was then transferred to the undersigned. Order, filed June 5, 2014.
Following the transfer, Dr. Kozachuck authored a supplemental expert report in
response to the Secretary’s Rule 4 report. This report was filed on August 19,
2014. The supplemental report concluded that additional autopsy studies are
required to rule out sudden infant death syndrome (SIDS) as a cause of death and
establish a more certain cause of death. See exhibit 13 at 3.
After reviewing the filings in the case, the undersigned determined that there
were factual discrepancies concerning the time period from J.R.S.’s vaccination
through his death. Specifically, differences exist between medical records,
affidavits, blog posts, and manuscripts regarding J.R.S.’s temperament, cough,
vomiting, and C-Phen intake, as well as what transpired the morning of J.R.S.’s
death, and whether anyone else was ill in the Swicks’ home around the time J.R.S
died.
On October 30, 2014, a fact hearing was held to address factual
discrepancies in the record by evaluating the testimony of the affiants. Five people
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testified. The undersigned has considered their testimony as well as the
documentary evidence.
Following the hearing, petitioners filed proposed findings of fact on
December 22, 2014, which outline the chronology of events leading to J.R.S.’s
death. On January 20, 2015, respondent submitted her response to petitioners’
proposed findings of fact. The Secretary agreed with, or did not dispute, many of
petitioners’ proposed facts. She did, however, object to certain proposed facts, in
particular challenging the proposed timeline for J.R.S.’s symptom onset, and
whether he was found with a blanket over his head, which affects whether
asphyxia could be ruled out as a cause of death. See Resp’t’s Resp. to Pet’rs’
Proposed Findings of Fact at ¶¶ 26-28, 36-40, 47. The facts still in dispute are the
focus of the analysis below.
Standard for Finding Facts
Petitioners are required to establish their case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
The process for finding facts in the Vaccine Program 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. Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras, in which the petitioners
asserted that their daughter, Nicole, began having seizures within one day of
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receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).
Decisions by judges of the Court of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
The presumption that contemporaneously-created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a symptom first
appeared despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that contemporaneous written records are accurate,
testimony is required to be “consistent, clear, cogent, and compelling.” Blutstein
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v. Sec’y of Health & Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed.
Cl. Spec. Mstr. June 30, 1998).
Special masters will consider various explanations for inconsistencies
between contemporaneously created medical records and later given testimony.
The Court of Federal Claims listed four such explanations. Inconsistencies can be
explained by: (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 Health &
Human Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013), aff’d, 746 F.3d 1334 (Fed.
Cir. 2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously-written medical records to be more probative than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.
1992).
The relative strength or weakness of the testimony of a fact witness affects
whether this testimony is more probative than medical records. An assessment of a
fact witness’s credibility may involve consideration of the person’s demeanor
while testifying. 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).
These criteria are considered in the analysis below.
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Summary of Undisputed Facts
The respondent does not dispute many of the underlying facts proposed by
petitioners. The parties do not dispute the dates of J.R.S.’s birth (May 14, 2011),
vaccinations (July 25, 2011), or date of death (August 11, 2011). They also do not
dispute the location of the Swicks’ home, the Swicks’ education, the history of the
Swicks’ other children, and the account of J.R.S.’s birth and medical history up to
his leaving the hospital. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶
1-9, 11-12. Respondent also did not dispute J.R.S.’s healthy appearance on May
28-30, 2011, or the history of J.R.S.’s vaccinations. Id. at ¶¶ 15, 24. Finally, the
facts outlining the events beginning with arrival of the emergency medical
technicians (EMTs) and proceeding through to J.R.S.’s autopsy were supported by
medical records and not disputed by the parties. Id. at ¶¶ 41-45.
Two other proposed facts were not disputed by the respondent, although
clarified. First is J.R.S.’s gestation at birth. Petitioners and respondent agree to 36
weeks and 3 days despite slight variations in the medical records. See id. at ¶ 10.
Second is J.R.S.’s weight gain after birth. Respondent noted that J.R.S. lost weight
after birth, but subsequently regained 3 ounces in 3 days, which led to the
documented positive comments regarding his weight gain. Id. at ¶ 14.
Discussion and Assessment of Parties’ Arguments and Evidence
The parties dispute the facts in six general areas. Those areas are: (1) the
degree, if any, to which J.R.S.’s temperament became more “fussy” after
vaccination; (2) when J.R.S. began coughing after his vaccination; (3) the
magnitude and characterization of J.R.S.’s oral expelling which occurred roughly
four to five days before J.R.S.’s death; (4) whether J.R.S. ingested C-Phen; (5) the
events that occurred from the time J.R.S. was taken to his bed the morning of
August 11, 2011, until the arrival of the EMTs later that morning; and (6) whether
anyone was ill in the Swicks’ home immediately prior to J.R.S.’s death.
The submitted evidence is summarized below in six sections.
J.R.S.’s Temperament before and after his July 25, 2011 Vaccinations
The Swicks have testified and stated in their affidavits that prior to J.R.S.’s
July 25, 2011 vaccinations, he was a content and happy child, rarely fussy or
colicky. See Tr. 15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4. In contrast, after
vaccination, J.R.S. was fussy, inconsolable, and had a decreased appetite. See Tr.
15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4. Respondent argues that a shift in
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J.R.S’s temperament is not corroborated by the medical record as ample evidence
shows the temperament issues identified by the Swicks pre-date J.R.S.’s
vaccinations. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶ 19-20, 26-
27. To understand if J.R.S. experienced a temperament shift post-vaccination, it is
necessary to look at the corresponding medical records for periods both before and
after the July 25 vaccination.
Temperament before the July 25, 2011 Vaccination
At a June 21, 2011 medical appointment, the doctor noted that J.R.S. was
receiving more formula, but was fussier with formula than with breast milk.
Exhibit 2 at 10. On June 23, 2011, Mrs. Swick called the doctor and reported
J.R.S. was constipated and fussy. Id. at 13. On June 24, 2011, Mrs. Swick called
the doctor again and reported fussiness. However, by June 28, 2011, Mrs. Swick
reported J.R.S.’s “fussiness has greatly improved.” Id. at 16, 19.
At the July 12, 2011 doctor’s visit, Mrs. Swick reported that J.R.S. had a
fever and was vomiting prior to his last bowel movement, and reported that those
issues resolved with the bowel movement. Exhibit 2 at 22. As a result, J.R.S. was
given a daily glycerin suppository to help with constipation. Id.
On July 25, 2011, J.R.S. was seen for a well child examination. Id. at 25.
J.R.S. received his vaccinations at this examination. Id. at 27. The records from
the examination also note J.R.S. was experiencing 2 A.M. to 7 A.M. crying
episodes, and that the prescribed glycerin suppositories were helping his
constipation. Id. at 25.
Temperament after the July 25, 2011 Vaccination
Mrs. Swick testified that J.R.S.’s constipation returned during the two week
period between July 25, 2011, and August 11, 2011. She stated: “[Constipation]
was pretty constant. We were still using the suppositories, they just didn’t seem to
be working as well as they had before. He wasn’t going regularly now. Now it
could be every three or four days.” Tr. 39.
Mrs. Swick further testified that J.R.S.’s outbursts and crying were random
after he received his July 25, 2011 vaccinations. Tr. 24. She testified that J.R.S.
previously cried only “when he was hungry or when his tummy hurt when he was
constipated.” Id. The distinction being drawn between J.R.S.’s pre- and post-
vaccination outbursts is not clear based on the medical records or testimony. As
discussed previously, prior to vaccination, principally between June 21, 2011, and
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July 11, 2011, Mrs. Swick thought J.R.S. was fussier than normal, principally due
to constipation. Exhibit 2 at 10-22. Then there was a break in uncharacteristic
fussiness between July 11, 2011, and July 25, 2011, ostensibly because the
constipation had subsided. See id. at 25.
Mrs. Swick’s testimony states J.R.S. was constipated for multiple days at a
time between July 25, 2011, and August 11, 2011. It would not be surprising for a
constipated four-month-old baby to be fussy. Thus, Mrs. Swick’s observation and
testimony that J.R.S. was fussy is credited. However, Mrs. Swick was not
persuasive in attempting to distinguish J.R.S.’s random outbursts and crying from
those previously triggered by constipation.
The parties remain free, within the confines of these factual findings, to
argue causation regarding J.R.S.’s temperament shifts.
J.R.S’s Cough
The Swicks testified that J.R.S. developed a cough roughly five days after he
received his July 25, 2011vaccinations, and that the cough progressively got more
frequent, though still intermittent. Tr. 22, 46 to 47, 65. They also testified that the
cough progressed to the point that it would wake him up. Tr. 22, 65. In contrast to
this testimony, respondent highlights the Iowa medical examiner’s records, and
multiple blog posts by Mrs. Swick, as fixing the onset of the cough much closer to
the date of J.R.S.’s death. See exhibit 6 at 11; exhibit A at 2; exhibit B at 4.
Specifically, respondent relies on a notation in the medical examiner’s
August 11, 2011 report, which is contemporaneous with J.R.S.’s death. The
medical examiner’s report states: “coughing started 8-10-11 – coughed up /
gagging clear phlegm – 0200 8/11/11.” Exhibit 6 at 11. August 10, 2011, was 17
days after J.R.S.’s vaccination, and one day before his death.
Additionally, Mrs. Swick’s February 2012 blog post, the closest in time to
J.R.S.’s August 2011 death, does not mention J.R.S. having a cough, and the April
2012 blog post states: “I was a few weeks late on getting [J.R.S.] his shots, but the
night we came home [July 25, 2011], [J.R.S.] had a slight fever, (normal), and then
later developed a cough. The night he developed the cough he passed away.”
Exhibit A; exhibit B.
Respondent argues that if J.R.S. had a cough, it would have been mentioned
in the February 2012 blog post, which is closest in time to J.R.S.’s death. Further,
Mrs. Swick’s April 2012 blog post, which is closer in time to J.R.S.’s death than
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either her affidavit or testimony, puts J.R.S.’s cough onset as August 10, 2011, not
days before.
The August 11, 2011 statement regarding the timing of the onset of J.R.S.’s
cough states “coughing started 8-10-11.” Exhibit 6 at 11. The specific onset date
is clear. Although the Swicks provided this history in an extremely stressful
situation, the preponderance of the evidence suggests the Swicks, as the diligent
parents they are, would have noted all of J.R.S.’s coughing, even slight coughing,
that began in proximity to the date of his death. There is no such notation of an
earlier cough, and no explanation for the absence of the notation.
Due to the specificity and timeliness of the August 11, 2011 statement, its
evidentiary value outweighs other contrary evidence about J.R.S.’s coughing. The
February 2012 blog post contains no information about J.R.S.’s cough, but the lack
of mention of a cough is not important because the Swicks agree he had a cough.
See Murphy, 23 Cl. Ct. at 733. The April 26, 2012 blog post is consistent with the
finding that the cough started on August 10, 2011. Mrs. Swick posted, “[t]he night
he developed the cough he passed away.” Exhibit A at 2. Although Mrs. Swick
attempted to explain the April 26, 2012 blog post (Tr. 29 to 31), this testimony
does not overcome the August 11, 2011 statement. See Cucuras, 993 F.2d at 1528.
Therefore, the undersigned finds the preponderance of the evidence establishes that
J.R.S.’s cough began on August 10, 2011.
Oral Expelling Magnitude
Petitioners allege that J.R.S. had a significant vomiting incident four to five
days before his death. Pet’rs’ Proposed Findings of Fact at ¶ 33. Various
testimony characterized J.R.S.’s vomit as “more than a baby would be expected [to
vomit.]” Id. The basis for petitioners’ assertion is the testimony of Mr. and Mrs.
Swick and Mrs. Meyer. Mrs. Meyer is the wife of one of Mr. Swick’s coworkers,
and witnessed J.R.S.’s early August vomiting episode. The Secretary, in response,
states one alleged episode of vomiting is insufficient to conclude that J.R.S. was
suffering from an ongoing disease process. Resp’t’s Resp. to Pet’r’s Proposed
Findings of Fact at ¶ 33.2
The testimony presented by petitioners through Mr. Swick and Mrs. Meyer
leaves no doubt that J.R.S. threw up, as opposed to spit up, and that the volume
2
It appears the Secretary’s response is focused on establishing as fact that the record is
insufficient to conclude J.R.S. suffered from an ongoing disease process, not on disputing the
magnitude of J.R.S.’s vomiting incident four to five days before his death. Resp’t’s Resp. to
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produced relative to J.R.S.’s age and size was significant. Tr. 73 to 74, 85 to 88. It
is unclear whether the Secretary is disputing these facts by citing Mrs. Meyer’s
testimony that she was “puked on a lot of times.” Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 33; Tr. 86. Regardless, Mrs. Meyer’s testimony as
to her experience with children’s vomiting supports her ability to recognize an
anomalous quantity of vomit.
Petitioners ask for a finding that the incident Mrs. Meyer witnessed in early
August was more severe than J.R.S.’s previous vomiting. See Pet’rs’ Proposed
Findings of Fact at ¶ 33. As pointed out by respondent, however, the record shows
that Mr. Swick was not aware of J.R.S.’s prior vomiting. Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 33; Tr. 81 to 82. Additionally, Mrs. Meyer could
not, and Mrs. Swick did not, testify to the magnitude of the vomit in early August
2011 relative to J.R.S.’s earlier vomiting. While the evidence supports a finding
that J.R.S. vomited four to five days prior to August 11, 2011, petitioners request a
further finding that the quantity was very large, and therefore unique from previous
vomiting episodes. See Pet’rs’ Proposed Findings of Fact at ¶ 33. Probative
evidence, however, does not support a finding that J.R.S.’s early August vomiting
incident was unique.
Nonetheless, the parties remain free, within the confines of these factual
findings, to argue the significance of J.R.S.’s early August vomiting.
C-Phen
It is undisputed that the Swicks attempted to give J.R.S. roughly one-quarter
milliliter of C-Phen for his cough on the morning of August 11, 2011. Tr. 41.
However, while petitioners state that J.R.S. spit the entire amount out, respondent
says such a statement is conclusory. Resp’t’s Resp. to Pet’r’s Proposed Findings
of Fact at ¶ 35. The active ingredients in C-Phen, chlorpheniramine and
dextromethorphan, were part of the comprehensive toxicology panel performed on
J.R.S.’s heart blood and were reported as negative. Exhibit 6 at 20. While the
toxicology panel suggests that J.R.S. did not consume any C-Phen, the evidence is
not definitive, as questions remain regarding the rate of metabolism of C-Phen.
Pet’r’s Proposed Findings of Fact at ¶ 33. Regardless, a factual finding comparable to what the
Secretary is requesting is beyond what the testimony of the lay witnesses supports, or what the
undersigned can find based on that testimony. Such a finding is squarely in the realm of what an
expert witness would opine on, as opposed to the lay witness testimony at issue in this hearing.
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Therefore, the parties remain free, within the confines of these factual findings, to
argue the significance of J.R.S.’s receiving C-Phen.
The Morning of August 11, 2011
Testimony surrounding the morning of August 11, 2011, concentrated on
three main issues: (1) whether a blanket was covering J.R.S.’s face when he was
found by Mrs. Swick; (2) how J.R.S. was laid to sleep; and (3) J.R.S.’s
physiological condition when found. Issue one is analyzed and resolved below,
while issues two and three remain unresolved. While unresolved, the clarifications
provided below on issues two and three should assist the parties in directing their
respective experts.
The parties dispute whether J.R.S. was found with a blanket covering his
head. See Pet’r’s Proposed Findings of Fact at ¶ 36; Resp’t’s Resp. to Pet’r’s
Proposed Findings of Fact at ¶ 36. Mrs. Swick testified that she found J.R.S. on
his stomach, face sideways, with a blanket covering his body to roughly his
armpits. Tr. 34, 57. These statements, however, represent a change in the
petitioners’ assertions. Compare Pet’rs’ Proposed Findings of Fact at ¶ 36 (stating
that “[t]here was nothing in contact with J.R.S.’s face; the blanket on him was
covering his body below his armpits”) with exhibit 4 at 2 (where the emergency
medical service report states that Mrs. Swick found J.R.S. with a “blanket over
[his] head”), and exhibit 7 at ¶ 15(f) (aff., dated July 23, 2013) (Mrs. Swick
indicates that “there was a blanket on his head”). Additionally, respondent notes
other documents which support that J.R.S.’s face was covered by a blanket when
found by Mrs. Swick. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶ 36
(citing exhibit 6 at 8 and 10, exhibit B at 3, and exhibit 19 at 5-6).
Though respondent has identified significant contemporaneous records and
temporally closer statements that argue against Mrs. Swick’s oral testimony, that
evidence still must be balanced against the persuasiveness of Mrs. Swick’s
testimony. See Reusser, 28 Fed. Cl. at 523; Campbell, 69 Fed. Cl. at 779.
Regarding this specific aspect of Mrs. Swick’s testimony, the undersigned finds
that the records created contemporaneously are more persuasive than Mrs. Swick’s
testimony years later.
As discussed previously, to overcome the presumption that
contemporaneous written records are accurate, testimony is required to be
“consistent, clear, cogent, and compelling.” Blutstein, 1998 WL 408611, at *5.
Mrs. Swick’s July 2013 affidavit and October 2014 oral testimony, however, are
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inconsistent. In the July 2013 affidavit, Mrs. Swick averred that the state medical
examiner’s report contained errors, to include that “there was a blanket on his
head, but it was not wrapped around his head or situated in any other way that
would have obstructed his breathing or caused suffocation.” Exhibit 7 at ¶ 15(f).
In contrast, in October 2014 Mrs. Swick was asked, “[w]hen you found [J.R.S.],
how far up was the blanket on his body?” To which Mrs. Swick responded,
“[m]aybe his armpits.” Tr. 57. The lack of consistency about the location of the
blanket diminishes the persuasiveness of Mrs. Swick’s testimony.
Furthermore, more than three years transpired between August 2011 and
October 2014, when Mrs. Swick testified. The lapse of time with associated
decline in memory is an additional factor reducing the overall persuasiveness of
Mrs. Swick’s testimony. Regardless of the myriad explanations for the various
inconsistencies, the undersigned finds the contemporaneous documentation
regarding how J.R.S. was found relative to his blanket more persuasive than Mrs.
Swick’s later October 2014 testimony. The undersigned finds that J.R.S. was
discovered on August 11, 2011, with a blanket covering his head.
The remaining issues are how J.R.S. was laid to sleep, and J.R.S.’s
physiological condition when found. While no definitive finding can be made, it is
possible to narrow the parties’ disputes.
Regarding how J.R.S. was laid to sleep, it is unclear whether Mr. Swick
placed J.R.S. on his back (supine) or stomach (prone) the morning of August 11,
2011. Contemporaneous records suggest prone. See exhibit 6 at 10. Mr. Swick,
however, testified to placing him supine. Tr. 65. Mrs. Swick testified that she was
unsure how they usually placed him in his crib, and also testified that J.R.S. could
roll over. Tr. 42. Respondent challenges the contention that J.R.S. could roll over,
and notes that it is undisputed that J.R.S. was found in the prone position. Resp’t’s
Resp. to Pet’r’s Proposed Findings of Fact at ¶ 34; exhibit 6 at 8.
In addition to the evidence being unclear, the significance of how J.R.S. was
placed to sleep is also unclear. Therefore, an expert’s opinion about causation may
draw support from either scenario, that is, J.R.S. was laid to sleep on his back, or
on his stomach. If using either scenario, the expert must thoroughly explain why
J.R.S.’s original position upon being placed to sleep matters in his (or her) opinion.
The final issue to address is J.R.S.’s physiological condition, that is,
temperature and overall appearance, when Mrs. Swick found him, until the time
the EMTs arrived. Mr. Swick testified that J.R.S. was warm when found the
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morning of August 11, 2011. Tr. 69 to 70. Mrs. Swick testified that J.R.S. was
warm to the touch, sweaty, pale, limp, and still. Exhibit 6 at 10; Tr. 34 to 37. She
also testified that just before she stopped CPR, the area below J.R.S.’s lips started
to turn blue, but his lips were not blue, nor his face. Tr. 37. This testimony by the
petitioners is credible. Further, respondent does not dispute the Swicks’ subjective
impressions. Resp’t’s Resp. to Pet’r’s Proposed Findings of Fact at ¶¶ 38-40.
While the physiological conditions above are findings of fact, the
undersigned declines at this time to draw any further inference from them. For
example, whether J.R.S. was still alive when found depends on all evidence,
including expert reports, and cannot be determined based on the evidence currently
of record.
Illness in the Swicks’ Home
The Swicks testified that J.R.S. was the only sick family member during the
time surrounding his death. Tr. 24, 53, 78. Respondent highlights a
contemporaneous notation in the medical examiner’s report which asks, “Anyone
Else in Household or Other Contacts (e.g. daycare) Recently Ill?” Exhibit 6 at 11.
In response, “Yes” is selected, with a handwritten note stating, “colds both parents
and 2 older sibs [siblings] all in past 2 wks.” Id.
The contemporaneous medical examiner’s report is persuasive. The report is
more persuasive not only because it is contemporaneous, unlike the Swicks’ more
recent testimony, but also because it includes a specific notation which identifies
the family (both parents and two older siblings) and a timeframe in which the
illnesses occurred. Exhibit 6 at 11. While a scrivener’s error in selecting “yes” or
“no” could be imagined, it strains reasonableness to argue that not only did the
person completing the form err in selecting yes or no, but went so far as to provide
details to support the erroneous marking. Given the greater persuasiveness of the
medical examiner’s contemporaneous report, the undersigned finds the
preponderance of the evidence supports that both J.R.S.’s parents and two older
siblings were sick at some point during the two weeks prior to J.R.S.’s death.
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Specific Findings of Fact
The undisputed and clarified facts, as listed above, and found in Petitioners’
Proposed Findings of Fact and the Response to Petitioners’ Proposed Findings of
Fact, are adopted by the undersigned as findings of fact.
The undersigned has considered the respondent’s additional proposed
findings of fact, but finds them to either be a restating of the undisputed existing
record, or the domain of expert opining, and therefore does not address them.
Finally, the following findings of fact reflect the determinations concerning
the six general areas of dispute above:
J.R.S.’s Temperament
1. J.R.S.’s normal temperament was to cry only when hungry, constipated,
or his tummy hurt. Tr. 24.
2. J.R.S.’s temperament was fussier than normal between June 21 and July
11, 2011. Exhibit 2 at 10-22.
3. J.R.S. was constipated for portions of time between June 21 and July 11,
2011. Exhibit 2 at 10-22.
4. J.R.S.’s temperament was not fussier than normal, and he was not
constipated, between July 12 and July 24, 2011. See exhibit 2 at 10-22. However,
J.R.S. was experiencing early AM crying episodes during this period. Id. at 25.
5. J.R.S.’s temperament after his July 25, 2011 vaccinations was fussier
than normal, and comparable to his fussier than normal temperament between June
21 and July 11, 2011. Tr. 15, 61 to 62; exhibit 7 at ¶ 6; exhibit 15 at ¶ 4.
6. J.R.S. was constipated for portions of time between July 25 and August
11, 2011. Tr. 39.
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J.R.S’s Cough
7. J.R.S.’s cough began the evening of August 10, 2011. Exhibit 6 at 11.
The cough was significant enough that it woke J.R.S. from his sleep and compelled
the Swicks to give J.R.S. C-Phen. Tr. 33, 40 to 41.
Oral Expelling Magnitude
8. Around July 12, 2011, J.R.S. vomited prior to a bowel movement. The
bowel movement resolved the vomiting issue. Exhibit 2 at 22.
9. Four to five days before his death, J.R.S. had a single vomiting incident
in which he vomited a significant amount relative to his size and age. Tr. 73 to 74,
85 to 88.
C-Phen
10. The Swicks gave J.R.S. one-quarter milliliter of C-Phen on the morning
of August 11, 2011. Tr. 41.
11. J.R.S., in response to receiving the C-Phen, spit up. Tr. 41.
12. The active ingredients in C-Phen were not found in the toxicology panel
performed on J.R.S.’s blood following his death. Exhibit 6 at 20.
The Morning of August 11, 2011
13. Mrs. Swick found J.R.S. with a blanket covering his head. Exhibit 6 at
8, 10; exhibit 4 at 2; exhibit 7 at ¶ 15(f); exhibit B at 3; exhibit 19 at 5-6.
14. When Mrs. Swick found J.R.S. he was warm to the touch, sweaty, pale,
limp, and still. Exhibit 6 at 10; Tr. 34 to 37, 69 to 70. His face and lips were not
blue, but the area below J.R.S.’s lips started to turn blue just before Mrs. Swick
stopped performing CPR. Tr. 37.
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Illness in the Swicks’ Home
15. The Swicks and J.R.S.’s two older siblings were sick at some point
during the two weeks prior to J.R.S.’s death. Exhibit 6 at 11.
Conclusion
The parties are ordered to provide these Findings of Fact to any expert
whom they may retain to offer an opinion in this case. An expert’s assumption of
any fact that is inconsistent with these findings of fact will not be credited. Burns
v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that
the special master did not abuse his discretion in refraining from conducting a
hearing when the petitioner’s expert “based his opinion on facts not substantiated
by the record”).
A status conference is set for Wednesday, January 20, 2016 at 11:30 A.M.
Eastern Time. The parties should be prepared to discuss the next step in this case.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
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