[00:00:00] Speaker 02:
and is in good standing with the highest court of Virginia.

[00:00:04] Speaker 02:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications."

[00:00:11] Speaker 02:
Those are the magic words that have to be stated officially.

[00:00:14] Speaker 02:
I would just add as a very, very brief personal gloss, Scott is my law clerk.

[00:00:19] Speaker 02:
He's done an excellent job

[00:00:21] Speaker 02:
working with me this year.

[00:00:23] Speaker 02:
And I know that he will be, if my motion is granted, an excellent addition to the bar of the court.

[00:00:29] Speaker 02:
I move his admission.

[00:00:30] Speaker 05:
Well, thank you.

[00:00:31] Speaker 05:
We shall see.

[00:00:32] Speaker 05:
We can take a vote.

[00:00:36] Speaker 05:
Judge, you may.

[00:00:37] Speaker 05:
Yes.

[00:00:38] Speaker 05:
The motion is granted.

[00:00:40] Speaker 05:
Please proceed to the clerk take the oath.

[00:00:57] Speaker 05:
Well thank you Mr. Allen.

[00:00:59] Speaker 05:
Welcome to the bar of this court.

[00:01:01] Speaker 05:
We look forward to seeing you before the bench in the future.

[00:01:08] Speaker 05:
The argued case this morning is number fifteen, number five zero zero five.

[00:01:14] Speaker 05:
Still well against the Department of Health and Human Services.

[00:01:18] Speaker 05:
Mr. Adgerman.

[00:01:20] Speaker 03:
I'd like to make one inquiry if I could before I start arguing.

[00:01:28] Speaker 05:
Please proceed to the podium so that your comments can be recorded.

[00:01:37] Speaker 03:
I noticed last week that one page was missing from the appendix.

[00:01:41] Speaker 03:
It has to do with the first page of the Brighton Group report, which is page 300.

[00:01:47] Speaker 03:
I bought copies, page 600, I bought copies if that's necessary of that first page that's missing.

[00:01:56] Speaker 03:
And I just wanted to direct your attention to that fact.

[00:01:59] Speaker 05:
All right.

[00:01:59] Speaker 05:
Thank you.

[00:01:59] Speaker 05:
Now please send it to us.

[00:02:02] Speaker 05:
If there's anything else that we need, please provide it to the court.

[00:02:07] Speaker 03:
I can provide it, yes.

[00:02:08] Speaker 05:
OK.

[00:02:09] Speaker 03:
Thank you.

[00:02:09] Speaker 03:
Thank you.

[00:02:12] Speaker 03:
Please proceed.

[00:02:17] Speaker 03:
In the spill well case, I believe there are four factors that we really ought to examine.

[00:02:23] Speaker 03:
Although the factors are not independent from one another, they would be a starting point.

[00:02:29] Speaker 03:
The first factor is what is a variant disease process and an atypical disease process.

[00:02:40] Speaker 03:
The second is the burden of proof that's required in a vaccine case.

[00:02:45] Speaker 03:
The third is the application of the more likely than not standard of proof, as opposed to something of a higher standard.

[00:02:56] Speaker 02:
One of the arguments you make, and I think you probably just allude to without naming it, is it's your contention, as I understand it, that the special master erred in following the Breckelsen-Lombardi approach.

[00:03:11] Speaker 02:
That's correct.

[00:03:14] Speaker 02:
Could you really elaborate on that a bit?

[00:03:16] Speaker 02:
I'm not sure I quite understand what the basis for your objection to that is.

[00:03:23] Speaker 03:
Well, that obviously goes to the heart of the question and it's rather complex.

[00:03:28] Speaker 03:
The question becomes, we know that the special master is supposed to review in detail the record as a whole.

[00:03:40] Speaker 03:
to draw plausible inferences from it and then to elicit a rational decision.

[00:03:49] Speaker 03:
Now the problem is that if there's a conflict in the record, the conflict that created here was not in the record, it was in the testimony of the government's expert witness.

[00:04:03] Speaker 03:
So the question is what can be considered with reference to the government's expert witness in determining whether the applicant has or the petitioner has established a prima facie case.

[00:04:23] Speaker 02:
What seemed to me as I understand it here was the contention, your contention, the Stilwell's contention.

[00:04:30] Speaker 02:
that she was afflicted with ADEM as a result of the influenza vaccination she received.

[00:04:39] Speaker 02:
As I understand it, it was the government's position that no, she did not develop ADEM.

[00:04:47] Speaker 02:
Rather, she had some unspecified demyelinating condition.

[00:04:52] Speaker 02:
So I guess why wasn't, under those circumstances, why wasn't it appropriate

[00:04:58] Speaker 02:
for the Special Master to go the Breckelsen-Lombardi route and make a determination as to whether she had the analogy about which she complained.

[00:05:10] Speaker 03:
Well, this goes to the issue of what is a variant disease process, a typical disease process, and Lombardi involved two totally different disease processes that the Special Master had to focus in on.

[00:05:26] Speaker 03:
And he had trouble in doing that in agreeing to that specific one that the applicant was alleging.

[00:05:38] Speaker 03:
So he had a division there.

[00:05:41] Speaker 03:
Now that's not the case here.

[00:05:43] Speaker 03:
We know what the disease process was.

[00:05:45] Speaker 03:
It was a lesion in the midbrain.

[00:05:53] Speaker 03:
So now we've got a situation where we know what the disease process, and it's just a matter of categorizing it.

[00:06:01] Speaker 03:
Medically, you categorize a disease process for purposes of treatment and prognosis and not for purposes of determining causation, which is a legal standard.

[00:06:15] Speaker 03:
Now we get into more likely the not standard as opposed to the medical diagnosis standard, which is a much higher standard.

[00:06:22] Speaker 03:
The problem in applying the BARDI here is when you have a variant in a disease process, which we did here, because it involved an adult and not a children.

[00:06:35] Speaker 03:
The prevailing types of cases that occur in ADM are primarily children.

[00:06:41] Speaker 03:
So when you get an adult, you've got a variant or an atypical.

[00:06:48] Speaker 03:
But it's known that adults will

[00:06:51] Speaker 03:
develop ADEM.

[00:06:53] Speaker 03:
And the fact that it was a child versus an adult disease has nothing to do with the case.

[00:07:02] Speaker 03:
We know adults got it, they got it.

[00:07:05] Speaker 03:
Now the question becomes, how do you apply all of this to a prima facie case?

[00:07:11] Speaker 02:
So you're saying it's your position, and I want to make sure I understand, that it was error for the judge to use the Breckles and Lombardi approach because

[00:07:20] Speaker 02:
ADEM is a variation or a subset of a demyelinating disease, and it's your position that in that kind of a circumstance, the Greckleson approach isn't appropriate.

[00:07:33] Speaker 03:
Is that your... That is correct.

[00:07:35] Speaker 02:
I just want to understand what it is.

[00:07:37] Speaker 03:
Yeah, because when you apply the ADM approach, you're in effect incorporating any variant of the ADEM approach into the decision-making process, the medical decision-making process.

[00:07:51] Speaker 03:
I started to talk about the variant type of diseases and when you have an adult you've got a variant from the prevailing characteristics of the disease process which is primarily children and once you get that variant

[00:08:13] Speaker 03:
you now have a situation where you've got a person, an adult versus a child who has a developing brain, you're going to have different reactions and that was the testimony of Dr. Kinsborne in our case.

[00:08:28] Speaker 03:
So that goes to the variant disease process.

[00:08:33] Speaker 03:
We come to the issue of the

[00:08:37] Speaker 03:
more likely than not standard prima facie, how do we determine what's the prima facie case in which the government witness testimony can be considered by the special master.

[00:08:53] Speaker 03:
You know, there are three types of evidence.

[00:08:56] Speaker 03:
There are evidentiary facts, ultimate facts, and also there's conclusions that you reach from those facts.

[00:09:04] Speaker 03:
As to evidentiary facts, then in a prima facie case, the government should be able to contest any evidentiary fact, particular evidentiary fact, that the appellant is, or the petitioner is relying on,

[00:09:22] Speaker 03:
because that's an error and then he should testify as to what that error is and the effect of the error.

[00:09:29] Speaker 03:
When you get into ultimate facts, you get into a little bit different situation because there are being conclusions reached or inferences reached from those facts.

[00:09:40] Speaker 02:
In this case, what would you give me an example of what you would say is a

[00:09:46] Speaker 02:
an evidentiary fact on the one hand and an ultimate fact on the other.

[00:09:51] Speaker 03:
Sure.

[00:09:52] Speaker 03:
In this case, for example, there was a lesion.

[00:09:55] Speaker 03:
There's no question there was a lesion on the brain.

[00:09:57] Speaker 02:
That's an evidentiary fact.

[00:09:59] Speaker 03:
That's an evidentiary fact.

[00:10:00] Speaker 02:
And the ultimate fact would be, what is that a manifestation of?

[00:10:04] Speaker 03:
Right, exactly.

[00:10:05] Speaker 03:
Exactly.

[00:10:06] Speaker 03:
And then from that you go into whatever the conclusion is going to be with respect to the disease process.

[00:10:13] Speaker 03:
Now, to contest

[00:10:16] Speaker 03:
the conclusions of the witness to contest that testimony simply by saying your conclusion is wrong.

[00:10:33] Speaker 03:
Well, my gosh, you're opening the door now to all kinds of litigation, because when you have an atypical or variant disease process, there's always going to be differences in you.

[00:10:45] Speaker 01:
Well, isn't that what the special master is there to resolve, though?

[00:10:48] Speaker 01:
Pardon?

[00:10:49] Speaker 01:
Isn't that what the special master is there to resolve?

[00:10:51] Speaker 01:
That's a factual question.

[00:10:53] Speaker 03:
No, because if you're going to allow that kind of evidence in on a normal case,

[00:10:59] Speaker 03:
Not like the Lombardi or the Brook and Shine cases.

[00:11:04] Speaker 03:
If you're going to allow that in, you're opening up the litigation into a total litigation as you have in a civil trial.

[00:11:10] Speaker 01:
And that's not what the... I'm not quite understanding what you're saying.

[00:11:16] Speaker 01:
Is it your contention then that once you introduce evidence of causation, that the government isn't allowed to contest that?

[00:11:24] Speaker 03:
What I'm talking about, all we had here in this case was an expert witness on the part of the government who was contesting whether this condition was ADEM based upon his personal experience.

[00:11:40] Speaker 03:
And that personal experience was not even supported by the medical literature that he supported.

[00:11:46] Speaker 01:
But again, isn't that a question for the special announcer?

[00:11:49] Speaker 01:
No, I'm arguing no.

[00:11:51] Speaker 01:
Can I finish my question, please?

[00:11:53] Speaker 01:
Oh, I'm sorry.

[00:11:55] Speaker 01:
I mean, whether somebody is a competent expert or not,

[00:11:58] Speaker 01:
is usually a question to the finder, which is the special master.

[00:12:03] Speaker 01:
I agree, I agree.

[00:12:05] Speaker 01:
So I don't understand why, I mean you disagree obviously with the government's expert, but that's a question generally left to the trior fact.

[00:12:16] Speaker 03:
If it's a question of evidentiary fact, yes.

[00:12:19] Speaker 03:
If it's a question of ultimate fact, yes.

[00:12:24] Speaker 03:
What happened here is

[00:12:27] Speaker 03:
which is more important in this case, I believe, is the fact that the special master is supposed to review the record as a whole, reach rational, not rational, but possible inferences from the record, and then rendering a rational articulation of the decision.

[00:12:47] Speaker 03:
The problem we had here is that the special master relied, what they're supposed to do is first review the medical record,

[00:12:56] Speaker 03:
and then go through the process and they reach a decision for the medical record.

[00:13:01] Speaker 03:
What happened here is that the special master adopted the testimony of the government's expert witness and then sought evidence in the record to support that decision.

[00:13:16] Speaker 03:
That's not the way the process is supposed to go.

[00:13:19] Speaker 03:
When you turn it upside down like that, you get into a real problem.

[00:13:25] Speaker 05:
yes what you would have to show or what you're asking us to accept is that in the absence of any evidence other than the fact that the symptoms appeared within a couple of months after the inoculation.

[00:13:41] Speaker 03:
No, the actual onset of the disease process

[00:13:45] Speaker 03:
and there was no dispute as to that, was within the 42 days of the criteria for an onset of the disease process.

[00:13:56] Speaker 03:
What happened was the special master went to the IOM, and this is an illustration of what I'm talking about, went to the IOM report, the Institute of Medicine report,

[00:14:08] Speaker 03:
went to a particular paragraph extracted from that one paragraph, one sentence that could have been interpreted to mean that it was a shorter period than 42 days on the onset.

[00:14:23] Speaker 03:
But then again, the next paragraph specifically concluded that the 42-day onset period was a proper onset period.

[00:14:31] Speaker 03:
Now, that's inexplicable.

[00:14:33] Speaker 03:
What she was trying to do at that point is to support

[00:14:36] Speaker 03:
Dr. Cohen's testimony and the medical literature that was all cited, cited a period of Dr. Cohen's testimony was between 10 days to 2 weeks.

[00:14:49] Speaker 03:
But Dr. Cohen's testimony wasn't even supported by his medical literature or other medical literature.

[00:14:55] Speaker 02:
So that's an indication, that's one indication.

[00:14:58] Speaker 02:
Respectfully one thing, you had said that the special master

[00:15:04] Speaker 02:
you know, simply after the fact, looked for reasons to support the Cohen analysis.

[00:15:11] Speaker 02:
But in fact, if you look at the Dr. Cohen's report, his June 25, 2011 report, the items that he relied on, that Special Master relied on, those six points that were critical for him, are basically set forth

[00:15:30] Speaker 02:
in the Cohen Report of June 25th.

[00:15:33] Speaker 03:
That's correct.

[00:15:34] Speaker 03:
Let me address it.

[00:15:36] Speaker 02:
I don't think it's correct to say that the Special Master came to a conclusion or just backed up the

[00:15:46] Speaker 02:
the Cohen report, backed up Dr. Cohen, and then kind of looked for reasons to run the Cohen report.

[00:15:52] Speaker 03:
If I might, I'm sorry for interrupting, but my timing is a little bit out.

[00:15:56] Speaker 03:
And I want to address very quickly those six factors.

[00:16:00] Speaker 03:
I mean, the first one of the factors was the statistical probability.

[00:16:03] Speaker 02:
But you do agree, before you address it, but you do agree that they were cited by Dr. Cohen.

[00:16:09] Speaker 02:
Oh, yes.

[00:16:10] Speaker 02:
Yeah, they weren't just

[00:16:11] Speaker 02:
manufactured by the special master.

[00:16:13] Speaker 03:
Oh, no, no, no, no, no.

[00:16:15] Speaker 03:
I'm not indicating that at all.

[00:16:17] Speaker 03:
But look at the first factor of the six factors.

[00:16:20] Speaker 03:
It was that this was a statistical probability that it was going to be incurred by a child rather than an adult.

[00:16:32] Speaker 03:
I mean, I don't understand that reason.

[00:16:35] Speaker 03:
I find it mind boggling.

[00:16:36] Speaker 03:
That's like saying that a vaccine won't cause an injury because it's not likely to cause an injury.

[00:16:43] Speaker 02:
The second factor that she relied on... Isn't it a relative point when you have here the patient, a 53-year-old woman who received the vaccine and she's complaining about ADAM, whereas the literature suggests that 97% of the people who

[00:17:05] Speaker 02:
or afflicted with ADEM are children.

[00:17:08] Speaker 02:
That's correct.

[00:17:09] Speaker 02:
That's correct.

[00:17:10] Speaker 03:
But that's the evidentiary of the fact that an adult didn't get the disease when it's known that an adult gets the disease.

[00:17:18] Speaker 03:
One other factor that I can speak of real quickly, and that is the decision that because no other physician diagnosed this condition,

[00:17:28] Speaker 03:
that this is evidence that she didn't have the condition.

[00:17:31] Speaker 03:
Well, for Pete's sakes, if the physicians had actually considered ADDM and excluded it, that certainly would be relevant evidence.

[00:17:42] Speaker 03:
But they didn't diagnose any classification of that particular disease process.

[00:17:48] Speaker 03:
They did not diagnose nothing.

[00:17:50] Speaker 03:
The only thing they considered at one point was MS.

[00:17:53] Speaker 03:
And as to that MS, they excluded it.

[00:17:57] Speaker 03:
So there was no classification.

[00:17:59] Speaker 05:
Let's hear from the government.

[00:18:00] Speaker 05:
I'm sorry.

[00:18:01] Speaker 05:
Let's hear from the government.

[00:18:02] Speaker 05:
We will save some rebuttal time.

[00:18:05] Speaker 03:
Thank you.

[00:18:12] Speaker 00:
This is the case where the Chief Special Master, then Chief Special Master, considered the relevant evidence in the record as a whole, drew plausible inferences, and articulated a rational basis for her decision.

[00:18:31] Speaker 00:
The Court of Federal Claims, after considering the evidence, affirmed the Special Master's decision, and we request that this be held as the same.

[00:18:38] Speaker 00:
I think a brief sketch of facts, which we've alluded to before, is important to understand.

[00:18:44] Speaker 00:
There was a vaccination on February 22nd.

[00:18:46] Speaker 00:
More than two months later, the petitioner showed up at the doctor, reporting some vague symptoms, which at the time were actually diagnosed as an ear infection.

[00:18:55] Speaker 00:
And over the following several months, other symptoms appeared.

[00:18:59] Speaker 00:
It was very unclear the treating petitions weren't sure what was going on.

[00:19:02] Speaker 00:
MRIs were normal.

[00:19:03] Speaker 00:
And then eventually her symptoms were worse in August and then they sort of developed over the following year or so.

[00:19:11] Speaker 00:
I think it's critical in this case that not a single treating physician diagnosed her with ADEM, which was the alleged injury, because her symptoms were not consistent with ADEM.

[00:19:21] Speaker 00:
And this is in fact what the Special Master considered in conducting her analysis on the case.

[00:19:26] Speaker 00:
As Your Honor's probably noticed, the first 20 pages of appellate's brief and most of the argument today has really focused on an effort to re-litigate the case in this forum.

[00:19:37] Speaker 00:
We'd respectfully say that the Special Master did consider the evidence as a whole and her decision here should not be disturbed.

[00:19:46] Speaker 00:
There was nothing arbitrary and capricious about the weighing of the evidence in the case.

[00:19:50] Speaker 05:
Would you know what's troubling about this?

[00:19:53] Speaker 05:
is that there is no other explanation.

[00:19:56] Speaker 05:
The only thing that happened was the inoculation.

[00:20:00] Speaker 00:
Well, respectfully, Your Honor, it's not clear.

[00:20:03] Speaker 00:
The inoculation was more than two months before she had an ear infection.

[00:20:07] Speaker 00:
So there's really no evidence at all that there's any link to what happened to her and the vaccination at any point.

[00:20:15] Speaker 00:
And more importantly, Petitioner's allegation here was that she had ADEM, which is a very specific neurological condition with very specific characteristics.

[00:20:25] Speaker 00:
And that was really the focus of the evidence presented in the case in the literature that the special master considered.

[00:20:30] Speaker 00:
So if there's no evidence that the vaccination caused her condition, then there was no way for the Special Master to make the finding that she was entitled to compensation.

[00:20:39] Speaker 00:
She simply looked at the overall evidence in the case.

[00:20:42] Speaker 05:
But in this entire body of law, the reason that we have stable injuries and a lot of the rest of it is because of the difficulty of tracing causation from vaccination to all sorts of ailments.

[00:21:00] Speaker 05:
That's really how this entire statute is based to somehow try and cross this

[00:21:08] Speaker 05:
difficulty, the medical difficulty of causation.

[00:21:13] Speaker 00:
Absolutely.

[00:21:14] Speaker 00:
There is scientific evidence that vaccinations do cause some injuries afterwards.

[00:21:21] Speaker 00:
But as this court's precedent clearly says, simply because something happens at some period in time after a vaccination doesn't mean that it's necessarily linked to it.

[00:21:31] Speaker 00:
And by chance alone, there are many, many conditions which are idiopathic or we just don't know what the cause was.

[00:21:38] Speaker 05:
But the law is not necessarily, is it?

[00:21:40] Speaker 05:
It's more likely than not.

[00:21:41] Speaker 05:
It is more likely than not.

[00:21:43] Speaker 05:
Or at least possibly, I think it's quite permissive just because of the difficulties of proof.

[00:21:50] Speaker 00:
We would submit that the burden is more likely than not.

[00:21:54] Speaker 00:
It's more than possible.

[00:21:57] Speaker 00:
It needs to be probable.

[00:21:58] Speaker 00:
But the special master did consider whether there was any link between petitioner's condition here and her vaccination.

[00:22:05] Speaker 00:
And she found in weighing the evidence and the literature and the testimony, and in a fairly exhaustive way, that there just wasn't any link.

[00:22:12] Speaker 00:
And we think that that weighing of the evidence was not arbitrary and capricious in this case.

[00:22:20] Speaker 02:
If I understand, the government would correct me if I'm wrong.

[00:22:23] Speaker 02:
I'm reading the briefs.

[00:22:25] Speaker 02:
It's my sense the government says, okay, semi-illuminating denotes a type of malady or affliction as a general umbrella that affects the nervous system.

[00:22:38] Speaker 02:
Under that umbrella we have certain specific afflictions.

[00:22:43] Speaker 02:
There's ADEM, there's multiple sclerosis.

[00:22:47] Speaker 02:
Then there can be just something that is categorized as demielinating because it impacts the nerve endings, whatever.

[00:22:58] Speaker 02:
And I guess it's the government's position that if anything the record shows that it was this latter type of

[00:23:05] Speaker 02:
condition that maybe is at work here and is still well as conditioned, rather than ADEM, which is a specific subset like multiple sclerosis.

[00:23:19] Speaker 02:
Is that the government's position, Vic?

[00:23:21] Speaker 00:
I think that's absolutely correct.

[00:23:23] Speaker 00:
I'll note though that in this case, it's not even 100% clear that she had a demyelinating issue.

[00:23:28] Speaker 00:
They, the treaters, it was sort of a differential diagnosis because they knew a lesion was there and they knew that she had had spinal fluid testing, which they actually suspected maybe she had multiple sclerosis for a period of time.

[00:23:40] Speaker 02:
And fibromyalgia was talked about.

[00:23:42] Speaker 00:
And fibromyalgia, which is again a completely different injury with different etiologies.

[00:23:47] Speaker 00:
What's important and the reason that it needs to be narrowed down from sort of a broader umbrella is different neurological conditions underneath that umbrella have different timing of onset.

[00:23:59] Speaker 00:
You could have, for something like multiple sclerosis, a medically accepted timeframe might be a little bit longer than for something like ADEM, which is typically within one to two weeks of whatever the inciting agent is, if it is.

[00:24:12] Speaker 00:
So that's really critical to a special master doing a causation analysis.

[00:24:16] Speaker 00:
More importantly, the allegation was specifically that she had ADEM here.

[00:24:21] Speaker 00:
So the special master looked at what is the evidence that's been presented, what is the literature that's here.

[00:24:27] Speaker 00:
what's the testimony of the experts, and found that she didn't have it.

[00:24:31] Speaker 00:
And she considered the medical records, which no single-treater diagnosis of ADEM, no one even treated her as if she had ADEM, because there's a typical, there's a medication course that's typically administered with ADEM.

[00:24:45] Speaker 00:
And it's just not here.

[00:24:46] Speaker 00:
Because they didn't, ultimately, the Special Master found, and I think it was an error for her to do so, that there's just no evidence that she had it in this case.

[00:24:54] Speaker 05:
Let's go back to what we were talking about.

[00:24:58] Speaker 05:
You said more likely than not.

[00:24:59] Speaker 05:
I don't think that's the standard.

[00:25:03] Speaker 05:
I think the standard for this statute is that if it's possible, nobody said it's impossible.

[00:25:11] Speaker 05:
If it's possible, when there's no other cause, no other intervening is unknown.

[00:25:17] Speaker 05:
There's still a lot the medical science doesn't know that the statute is supposed to come into effect.

[00:25:24] Speaker 05:
Is that your understanding?

[00:25:26] Speaker 00:
I think I would respectfully disagree with you, Your Honor.

[00:25:29] Speaker 00:
I think that the Alton Criteria in particular, which articulate there is a plausible medical theory, but then there is a logical sequence of cause and effect, I think it's something more than just possible.

[00:25:40] Speaker 00:
And I believe this court has addressed that it needs to be more than just possible.

[00:25:44] Speaker 05:
There was no other theory, as I recall.

[00:25:47] Speaker 05:
No other causation, no postulate, no competing diagnosis.

[00:25:54] Speaker 05:
In this case?

[00:25:55] Speaker 00:
Correct.

[00:25:56] Speaker 00:
We did not say that something else caused her condition, whatever it is characterized.

[00:26:02] Speaker 00:
We're just pretty sure it's not ADEM.

[00:26:04] Speaker 00:
But it's not, the special master was evaluating whether the petitioner had established her burden and establishing more likely than not that the vaccine caused the injury here.

[00:26:16] Speaker 00:
And she ultimately held that the petitioner did not.

[00:26:20] Speaker 00:
And therefore, she was not entitled to compensation.

[00:26:23] Speaker 00:
Your corrector was not an alternate cause here, but we would submit there doesn't have to be an alternate cause.

[00:26:27] Speaker 00:
Simply because a vaccine occurred at some point in time before an injury occurs doesn't necessarily mean that the vaccine is the cause for that.

[00:26:36] Speaker 05:
It's the only difference, the only thing that's happened.

[00:26:39] Speaker 05:
Why doesn't it meet even the higher standard for a non-table injury?

[00:26:45] Speaker 00:
I think because essentially the position is that you have to have some evidence that it's by something more than chance alone.

[00:26:51] Speaker 00:
If I have a flu vaccine and next week I'm in a car accident, the flu vaccine was not the cause of my car accident, and I realize I'm grossly oversimplifying, but I think if I have a flu vaccine,

[00:27:03] Speaker 00:
And then I get a really, you know, I get a horrible upper respiratory infection.

[00:27:08] Speaker 00:
So there's been something administered into my body.

[00:27:10] Speaker 00:
It doesn't necessarily mean that the upper respiratory infection, which I had afterwards, it's a causal effect.

[00:27:14] Speaker 05:
No, but you're really changing the fact that it's right at the point of difference.

[00:27:20] Speaker 05:
Because here, as I recall, there was nothing intervening.

[00:27:25] Speaker 00:
More than two months elapsed, also.

[00:27:27] Speaker 00:
She received a flu vaccine on February.

[00:27:31] Speaker 05:
This is not my field, but I think that a two-month gestation period for something as dramatic as multiple sclerosis may not be unusual.

[00:27:43] Speaker 05:
That takes years, does it not?

[00:27:45] Speaker 05:
Well, she doesn't have multiple sclerosis.

[00:27:47] Speaker 05:
Or the symptoms, the pre-violating diseases don't happen overnight.

[00:27:52] Speaker 00:
They actually happen, and in response to Judge Schall earlier, their ADEM is typically within one to two weeks.

[00:28:00] Speaker 00:
It's a short period of time.

[00:28:01] Speaker 00:
Multiple sclerosis can sometimes be a little bit longer, but again, it's clear.

[00:28:05] Speaker 00:
They considered MS as a diagnosis here and rejected it.

[00:28:08] Speaker 00:
She does not meet the diagnostic criteria, and they ultimately did not think that that's what she had.

[00:28:12] Speaker 00:
They also didn't think she had ADEM.

[00:28:15] Speaker 00:
But you're looking at, that's why it's important to focus on what the specific allegation is.

[00:28:21] Speaker 00:
And part of what the special master's evaluation here was, what does the science say about the appropriate onset for this particular medical condition?

[00:28:31] Speaker 00:
And she looked at the ILM report.

[00:28:32] Speaker 00:
She looked at the other literature that had been submitted.

[00:28:35] Speaker 00:
And then she made a decision that it just didn't support.

[00:28:37] Speaker 00:
Well, as a threshold matter, that she didn't have ADEM.

[00:28:41] Speaker 00:
But she also did consider if it would have been an appropriate time frame and found that it was not.

[00:28:45] Speaker 00:
There were some questions when Mr. Agilat was up about whether it was error for the Chief Social Master to rely on Lombardi and Brokkelshens.

[00:28:56] Speaker 00:
As I sort of touched on already, I think absolutely not.

[00:29:00] Speaker 00:
What the actual injury is, is critical to an evaluation even under the often prongs of the causation prongs in the case.

[00:29:07] Speaker 00:
You have to understand

[00:29:09] Speaker 00:
what they're alleging has happened in order to determine whether there's a medical theory like different, you know, molecular mimicry might be a theoretical cause for one neurologic injury, but it's not for another neurologic injury.

[00:29:21] Speaker 00:
And even under a broad demyelinating umbrella like you were asking about before, Your Honor, you have to understand a more specific injury in order to articulate a mechanism by which it must be caused and articulate whether that's a plausible mechanism.

[00:29:37] Speaker 00:
So the special master rightly made her initial inquiry whether the petitioner had ABM in the case and found that she did not.

[00:29:47] Speaker 00:
And there was, Mr. Agilent argued in his brief and then before you today that

[00:29:52] Speaker 00:
It would err somehow for the special magic to consider Dr. Cohen's testimony, but we'd submit that it's absolutely not erring.

[00:30:00] Speaker 00:
The government, like any other defendant, as this court said in Davis on, is allowed to present evidence to rebut petitioner's case when they're established in the Prince Basha case.

[00:30:09] Speaker 00:
Petitioners are saying one thing, but the government can bring evidence in to say, here's why that's not a logical sequence of cause and effect.

[00:30:15] Speaker 00:
It's part of the evaluation of petitioner's case in chief, and it absolutely is.

[00:30:20] Speaker 00:
Otherwise, the special master is essentially evaluating a case with blinders on, which would make no sense.

[00:30:26] Speaker 00:
And it's certainly come in in subsequent cases, I believe, that David's on, and then also in Stone and Hammett, where panels here have emphasized that, of course, it's fine for the government to bring that evidence in if necessary.

[00:30:39] Speaker 00:
Ultimately, the court should give great deference to the special master's determinations.

[00:30:44] Speaker 00:
She considered the evidence through plausible inferences and articulated a record that's clear upon review.

[00:30:50] Speaker 00:
Unless you have any other questions, I would request the decision below to be confirmed.

[00:30:56] Speaker 00:
Thank you.

[00:30:57] Speaker 05:
Mr. Edgeworth, you have three minutes.

[00:31:02] Speaker 03:
touch on a couple of points.

[00:31:04] Speaker 03:
One, the decision of the special master, as I understood it, was that the six criteria were out of the outer limits of ADEM, but they were within the criteria of ADEM.

[00:31:18] Speaker 03:
When she does that, she's rendering a medical diagnosis.

[00:31:21] Speaker 03:
the other credentials, other conditions of which Your Honor brought up.

[00:31:31] Speaker 03:
There was no other condition that was specified.

[00:31:34] Speaker 03:
The only condition that was specified as to a classification was ADEM.

[00:31:40] Speaker 03:
There can't be an inference that it was somewhere else because that's what all of the evidence is.

[00:31:47] Speaker 03:
Finally, the

[00:31:52] Speaker 03:
the the the condition

[00:31:59] Speaker 03:
Oh, the problem we get here is that if you're going to open up the door to a physician coming in and saying, hey, I disagree with Appellant's testimony, simply on the conclusion of what the classification was here, you're undermining the entire Vaccine Injury Act and the approach that it's taking, as well as the ATLANT test.

[00:32:25] Speaker 03:
which requires that once a primatesia face is established, it switches now burden onto the respondent to prove that of some other factor.

[00:32:39] Speaker 03:
Here we have simply testimony based upon expert witnesses, the government expert witnesses,

[00:32:48] Speaker 03:
experience with children when he says it's 97%.

[00:32:52] Speaker 03:
There was nothing that established that in his testimony other than, I mean, in the records other than his testimony.

[00:33:00] Speaker 03:
So he has experience with 97% of his patients being children, and that's what he's testifying to.

[00:33:08] Speaker 03:
However, my gosh,

[00:33:12] Speaker 03:
If you allow that kind of testimony, as I say, you're simply undermining the vaccine injury act in establishing a prima facie case.

[00:33:24] Speaker 03:
Unless you have a question, I don't know what else to say.

[00:33:27] Speaker 05:
Thank you.