Denial of Entitlement – SIDS Death – Triple Risk Model


Copenhaver v. HHS, (Fed. Cl. Spec. Mstr. May 31, 2016) (Moran, SM)

This case is very similar to several recent SIDS cases, all involving the same theory and the same experts, and previous denials such as this one have been affirmed on appeal, e.g. Cozart. The specific reasons petitioner lost in this case were characterized this way: “First, the Secretary’s expert, Dr. McCusker, was much better qualified to discuss cytokines. Second, the articles do not support the opinions Dr. Miller and Dr. Axelrod expressed. Third, there are gaps in the medical record for Nicholas that Dr. Miller fills with assumptions.

The Court expressed some concern about Petitioner’s immunologist, David Axelrod, who had solicited the petitioner’s bar, and apparently also HHS, and also advertised his vaccine expert services on the Internet. Ultimately, the court found that he sincerely held his opinions. However, the court also determined that the field of cytokines was outside the bounds of Dr. Axelrod’s expertise.

One helpful quote, for petitioners, was included in the decision: “When the treating doctors do not know about the vaccination, any lack of connection between the vaccination and injury should not be held against the petitioners.

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