[00:00:45] Speaker 01: The final case this morning is number 15, 1597 Contreras versus Health and Human Services, Mr. Popp. [00:01:22] Speaker 00: May it please the court. [00:01:25] Speaker 00: This is a case that will offer the opportunity for the court to provide guidance in the vaccine litigation arena, particularly guidance with respect to when petitioner eliminates other causes, other known causes for his illness, whether that in itself helps satisfy the primary FACIE case. [00:01:51] Speaker 00: Can it help overcome a prong of Alzheimer's if it's found lacking? [00:01:58] Speaker 00: In this case, Petitioner, in fact, eliminated all known causes of his illness, approximately 35 different causes. [00:02:09] Speaker 00: He was in perfect health on the day of his vaccination. [00:02:13] Speaker 00: He had a full physical on the day of his vaccination, which showed afterwards that he was in perfect health. [00:02:20] Speaker 00: And there was no claim in this case that he suffered anything else at that time. [00:02:27] Speaker 00: There's no claim of any alternative potential cause. [00:02:32] Speaker 00: The second area where this court can help the practitioners in the vaccine court is when is a special master allowed to disregard the opinion on causation of treating physicians? [00:02:50] Speaker 00: and can a special master use credibility to disregard the testimony of treating physicians. [00:02:58] Speaker 00: We have two treating physicians who either testified in trial or gave affidavits as to causation. [00:03:08] Speaker 00: They gave a good basis for it and they gave cause and effect, which is what they should have been doing. [00:03:15] Speaker 00: To hold the treating physicians to [00:03:18] Speaker 00: The standard of you have to satisfy all three prongs, I believe, is incorrect and improper. [00:03:26] Speaker 00: I believe it violates, in fact, the decisions of this court in Capizano, Andreu, and Alton. [00:03:39] Speaker 00: Furthermore, attempting to look at a record and try to find other treating physicians that didn't testify [00:03:48] Speaker 00: And what they may have said or may not have said is not proper when treating physicians do testify. [00:03:54] Speaker 00: And particularly in this case, the evidence is going to show that the three treating physicians who did not testify, who were not brought up at trial but later were brought up by the special master, basically said they could not tell whether or not the vaccine caused the injury. [00:04:14] Speaker 00: Those are the three treating physicians. [00:04:19] Speaker 00: That is found in the record. [00:04:21] Speaker 03: Can I just ask you this? [00:04:23] Speaker 00: Of course. [00:04:24] Speaker 03: I'm sure you know we have a really hard standard of review here for you. [00:04:27] Speaker 03: And this case, at least the way the Court of Federal Claims looked at it and the way the Special Master looked at it, rested on this very narrow question of whether there was a sufficient timing between the vaccine and I think just the transverse myelitis. [00:04:43] Speaker 03: And it found as a matter of fact that there was no [00:04:47] Speaker 03: theory to establish that TM could occur within one day of the vaccination. [00:04:54] Speaker 03: And I believe that's what the Court of Federal Acclaims decided to affirm on. [00:04:59] Speaker 03: What is the error in looking at it that way? [00:05:02] Speaker 00: The error is twofold. [00:05:04] Speaker 00: One, you're allowing the special master to diagnose the disease. [00:05:08] Speaker 00: and illness, and that's improper in this case. [00:05:13] Speaker 01: I know you've argued that. [00:05:14] Speaker 01: I don't understand that. [00:05:16] Speaker 01: That makes no sense to me, because here the diagnosis is an important part of the determination of causation. [00:05:25] Speaker 01: And whether Mr. Contreras had TM or GBS is pretty important. [00:05:35] Speaker 01: in terms of whether the form three of ALFIN be satisfied because there's significant evidence that TM wouldn't manifest itself within a period of one day, whereas there's conflicting evidence as to whether GBS would manifest within one day. [00:05:57] Speaker 00: The reason is this. [00:05:59] Speaker 00: TM and GBS in 20% of the cases are [00:06:05] Speaker 00: coexisting. [00:06:06] Speaker 00: Both TM and GBS involve the same symptoms, paralysis of the arms and legs. [00:06:13] Speaker 01: What you're saying is that it's improper to insist on a single diagnosis of only one thing. [00:06:19] Speaker 01: That may be true, but it's certainly important here. [00:06:23] Speaker 01: Is it not to determine whether GBS was part of the diagnosis? [00:06:29] Speaker 01: Because if it was, the evidence that TM couldn't occur within one day [00:06:34] Speaker 01: is undermined. [00:06:36] Speaker 00: Absolutely correct. [00:06:37] Speaker 00: And GBS was part of that diagnosis. [00:06:40] Speaker 00: And it was part of the diagnosis by the neurologist, Dr. Lake, which the respondent wants to, and the special master paid great deference to, and as far as Dr. Wagner also. [00:06:53] Speaker 00: And the way they did it is twofold. [00:06:57] Speaker 00: Both of them did the same Babinski test. [00:06:59] Speaker 00: The toes were pointed downward. [00:07:01] Speaker 00: And when that happens, that means that GBS [00:07:04] Speaker 00: And Dr. Lake at first believed it was GBS. [00:07:08] Speaker 00: And since they both can be treated together, it didn't make a difference later on that there was an MRI which also showed transverse mellitus. [00:07:17] Speaker 00: They treated the GBS with IVIG, which is what they should have been treating GBS for. [00:07:24] Speaker 00: That's also used for transverse mellitus. [00:07:26] Speaker 00: Both these diseases, although one is a central nervous system, one is peripheral nervous system, [00:07:33] Speaker 00: diseases that often, at least 20% of the time according to testimony, occur together. [00:07:40] Speaker 00: And a lot of times the GBS gets pushed down because of the MRI result. [00:07:48] Speaker 00: But here, Dr. Wagner clearly, the treating physician, said it's a typical GBS. [00:07:52] Speaker 03: So you're getting into the details a little bit. [00:07:54] Speaker 03: I'm still trying to figure out what [00:07:56] Speaker 03: No, it's helpful to hear the details, but I'm still trying to figure out what you think the legal error here is in isolating the TM. [00:08:04] Speaker 03: Is it that the TM may be detected at an earlier stage, so the fact that it didn't occur within one day doesn't mean that the vaccine didn't cause the GBS, and therefore the special master should have looked at both to determine whether the vaccine caused [00:08:23] Speaker 03: Something, I just, it's unclear to me. [00:08:25] Speaker 03: Again, going back to what I think is the sole basis that the Court of Federal Claims affirmed the special master's decision here, which is that he relied on the fact that it was TM and that TM couldn't occur one day. [00:08:39] Speaker 03: That, absent the rest of the context of this case, seems to be not necessarily arbitrary and capricious. [00:08:47] Speaker 03: So I'm trying to understand why that is legal error or arbitrary and capricious here. [00:08:53] Speaker 00: Okay, I believe it's legal error because Guillem Brace and then GBS can occur one day and there was a great amount of literature that shows it could occur in one day and there were good scientific discussions on how it could occur in one day, enough to meet the often prop. [00:09:15] Speaker 01: With respect to GBS. [00:09:16] Speaker 00: With respect to GBS. [00:09:18] Speaker 00: And since that was his first diagnosis and the diagnosis for the first [00:09:22] Speaker 00: 48 hours or so and what he was treated for. [00:09:26] Speaker 00: And since we have undisputed record here that you can have both diseases or illnesses occurring together, there would be no reason to believe that he didn't have GBS. [00:09:40] Speaker 01: Well, the only contrary testimony was by Sladky, right? [00:09:44] Speaker 00: Well, now, Slanky even said it was two and a half percent, and I would say... But the answer to my question is yes. [00:09:51] Speaker 01: The only testimony that he didn't have GBS was from Slanky. [00:09:55] Speaker 00: No, that's... Well, yes, as far as the experts. [00:10:00] Speaker 00: Dr. Garrett said he had transverse myelitis. [00:10:03] Speaker 01: Well, that doesn't mean he didn't have GBS. [00:10:04] Speaker 00: But you're exactly right. [00:10:06] Speaker 00: Exactly, Donna. [00:10:08] Speaker 00: That's correct. [00:10:13] Speaker 00: I believe that when there is an arbitrary credibility issue that's brought up as far as treating physicians, then that is very important for this court to look at. [00:10:27] Speaker 00: I believe the due process issue which occurred here also affects that last prong because Dr. Steinman apparently was ranked lower because of his testimony in other cases. [00:10:43] Speaker 00: And this is an extremely important issue because in the vaccine court, testimony in other cases can't be brought in. [00:10:50] Speaker 00: They weren't brought in at trial. [00:10:52] Speaker 00: It was only two and a half years later that the special master apparently tried to look at transcripts or looked at reports to say, well, Dr. Steinman may have given inconsistent statements in other courts. [00:11:11] Speaker 00: That is just totally improper. [00:11:14] Speaker 00: And I believe that that's an important issue. [00:11:20] Speaker 00: Finally, I think that the special master ignored substantial circumstantial evidence, case reports, which he should have given a great credence to. [00:11:33] Speaker 00: He didn't, and I think that, again, is an opportunity to reverse this matter. [00:11:44] Speaker 00: In the end, since no alternative cause was shown, Respondent is left with saying this is idiopathic and saying we didn't provide a prima facie case. [00:11:57] Speaker 00: And I think Walther says that we can eliminate causes and therefore make our prima facie case. [00:12:07] Speaker 00: Any other questions at this time, Your Honors? [00:12:10] Speaker 01: Thank you very much. [00:12:15] Speaker 01: Mr. Johnson? [00:12:18] Speaker 01: Good morning, Your Honor. [00:12:19] Speaker 01: It is the court. [00:12:22] Speaker 01: Your brief seems not to address the arguments that are made by the other side. [00:12:30] Speaker 01: So I hope in the questioning today we can get to some of that. [00:12:34] Speaker 01: Is it not the case that there was, put aside Dr. Slankey, that there was overwhelming evidence [00:12:44] Speaker 01: that Mr. Contreras suffered from GBS? [00:12:49] Speaker 02: Respectfully no, Your Honor. [00:12:50] Speaker 02: The evidence actually was in conflict. [00:12:53] Speaker 02: Was there conflicting evidence? [00:12:55] Speaker 02: Well, the Petitioner's own experts, Dr. Garrett, who offered an affidavit on behalf of Petitioner, he offered the diagnosis of transverse myelitis. [00:13:05] Speaker 02: He did not include in his affidavit that Petitioner suffered from GBS. [00:13:09] Speaker 01: Well, that doesn't mean that he's saying he didn't suffer from GBS. [00:13:12] Speaker 01: There was certainly testimony, was there not, that he was suffering from both TM and GBS? [00:13:20] Speaker 02: Dr. Steinman, Petitioner's expert, did testify that Petitioner suffered from both transverse myelitis and GBS. [00:13:27] Speaker 01: So was there anybody who testified that he didn't suffer from GBS? [00:13:30] Speaker 02: Dr. Slatt, he did testify. [00:13:32] Speaker 02: No, put aside Dr. Slatt. [00:13:34] Speaker 02: and putting aside Dr. Sladky and looking at the entire medical records for this case. [00:13:41] Speaker 02: The facts as they occurred were that Petitioner started experiencing symptoms in the morning after his vaccination. [00:13:48] Speaker 01: No, no, no, no. [00:13:48] Speaker 01: But the question is, was there any testimony that he was not suffering from GBS aside from Sladky? [00:13:54] Speaker 02: Well, Your Honor, the Special Master was obligated to con... No, no, no. [00:13:58] Speaker 01: Answer my question. [00:13:59] Speaker 01: Was there any testimony aside from Sladky that he was not suffering from GBS? [00:14:05] Speaker 02: There was no testimony that he was not suffering from GBS. [00:14:10] Speaker 02: But there were other physicians who were treating Mr. Contreras during his extended hospitalization for his illness. [00:14:19] Speaker 02: And Dr. Lake, who was the treating neurologist who was [00:14:23] Speaker 02: called in to evaluate Mr. Contreras. [00:14:27] Speaker 03: I assume you're going to say they diagnosed him with TM instead of GBS, but did any of them rule out GBS? [00:14:37] Speaker 03: You're asking us to make an inference that they ruled out GBS because they diagnosed him with something else. [00:14:43] Speaker 02: Well, actually, Your Honor, the special master drew the inference, and as the fact finder, that's his role. [00:14:49] Speaker 02: He was presented with [00:14:51] Speaker 02: conflicting evidence in this case about what the diagnosis was. [00:14:54] Speaker 03: Yes, but he relied, at least in part, on Slavki's testimony, which the Court of Federal Acclaims threw out altogether. [00:15:01] Speaker 02: Well, if you look back at the transcript, Dr. Wagner, who was the emergency room physician who treated Petitioner, he testified that he did perform this Babensky reflex test, and that that seemed to be evidence of GBS. [00:15:15] Speaker 02: But then he also testified that Petitioner was also experiencing the symptom of priapism, [00:15:20] Speaker 02: And that suggested to him spinal cord involvement. [00:15:23] Speaker 02: He also testified that even though there was an MRI that was performed on the day following the vaccinations when Petitioner first began to experience symptoms, and that MRI didn't show any lesions in the spinal cord, that early MRIs in transverse myelitis might not necessarily show a lesion. [00:15:38] Speaker 01: Where is the special master finding that he didn't suffer from GBS? [00:15:45] Speaker 02: The special master actually said that it wasn't [00:15:47] Speaker 02: necessarily all that important what the diagnosis was? [00:15:50] Speaker 01: So I'm asking, where did he make a finding that he wasn't suffering from GBS? [00:15:55] Speaker 02: Well, in his first decision, he said that based on his evaluation of the record as a whole, he believed that the sole diagnosis was transverse myelitis. [00:16:04] Speaker 02: But that finding wasn't necessarily important to his causation analysis because Dr. Slagheed... So is the answer that he didn't make a finding in his most recent decision that [00:16:15] Speaker 01: Mr. Contreras was not suffering from GBS? [00:16:19] Speaker 01: Well, he was criticized. [00:16:20] Speaker 01: Did he make such a finding? [00:16:22] Speaker 02: I believe he found that consistent with his first opinion that the sole diagnosis, the weight of the evidence in this case... Where did he say in the most recent decision that he was not suffering from GBS? [00:16:45] Speaker 02: Your honor, rather than taking the time to find it, I think the answer to your question is that, and I believe where the questioning is going is that the idea that GBS can occur within 24 hours after vaccination, and that is not what the evidence in the record is. [00:17:03] Speaker 02: Dr. Steinman testified directly that regardless of whether the condition was transverse myelitis or GBS, his opinion would not change. [00:17:12] Speaker 02: Dr. Witten testified that regardless of whether the condition was GBS or TM. [00:17:15] Speaker 01: Well, his opinion would not change that it satisfied prong three of ALTHEN. [00:17:18] Speaker 01: What does that have to do with it? [00:17:20] Speaker 01: I mean, if he's wrong about TM being manifested within a day, he could be right about GBS. [00:17:29] Speaker 02: Because, Your Honor, the dispositive issue in this case is the third prong of ALTHEN, the timing issue. [00:17:34] Speaker 03: Yes, but if there was air and focusing only on TM without [00:17:38] Speaker 03: without considering the effects of GBS, then it's arbitrary and capricious if it focused only on whether TM could occur within one day. [00:17:47] Speaker 03: I mean, it seems that the record suggests that GBS might occur within one day, whereas it seems possible that TM probably doesn't. [00:17:58] Speaker 02: Well, that wasn't the case that Petitioner presented below. [00:18:00] Speaker 02: The case that they presented below that was, through Dr. Stein, was that regardless of whether [00:18:08] Speaker 03: Yeah, but it doesn't really matter if they were arguing that TM could occur within one day, as long as they're arguing that both could occur within one day. [00:18:16] Speaker 03: And where did the special master rule out the vaccines causing GBS within one day? [00:18:23] Speaker 02: Well, Dr. Simon's testimony did not distinguish between transverse myelitis and GBS. [00:18:27] Speaker 02: He testified that both could occur within one day. [00:18:30] Speaker 02: Dr. Witten rebutted that testimony by explaining the immunological process [00:18:35] Speaker 02: of molecular mimicry, the nine-step process that he laid out in his testimony. [00:18:39] Speaker 02: And that, again, that testimony was not specific to transverse myelitis. [00:18:44] Speaker 02: It was specific to a vaccination going through the immunological process of molecular mimicry to lead to a demyelinating disease, whether in the peripheral or central nervous system. [00:18:55] Speaker 01: Your problem is that the special master, when he [00:18:59] Speaker 01: rejected the notion that this could happen within one day. [00:19:03] Speaker 01: Page 57 of the record relies on three points here. [00:19:10] Speaker 01: This is talking about the tubercular reaction and how that's similar to what happened here, and that the tubercular reaction could happen within one day. [00:19:21] Speaker 01: And he gives three reasons. [00:19:24] Speaker 01: The third and most important one, he says, is that the tubercular reaction occurred [00:19:29] Speaker 01: in an area not protected by the blood-brain barrier. [00:19:32] Speaker 01: Not a relevant consideration when you're talking about GBS, correct? [00:19:38] Speaker 02: Not to GBS, but there is no dispute, as the Special Master pointed out, that Petitioner did suffer from transverse myelitis. [00:19:46] Speaker 02: And that he did experience symptoms of transverse myelitis. [00:19:49] Speaker 02: So what? [00:19:50] Speaker 01: The question is, if he suffered from GBS, let's assume for the moment that it was established in the record that he [00:19:56] Speaker 01: suffered from GBS, maybe in addition to transverse myelitis. [00:20:01] Speaker 01: If he suffered from GBS, the blood brain barrier problem, which argues against it happening within one day, is inapplicable, right? [00:20:12] Speaker 02: It is inapplicable if it is only GBS, but here we are not talking about only GBS. [00:20:17] Speaker 01: Well, you're arguing that if they made both arguments and they were wrong about one, they necessarily lose on the other one. [00:20:23] Speaker 01: I don't understand the logic of that. [00:20:25] Speaker 02: Because, and as the Special Master pointed out in his decision, if the theory here is that the vaccine caused both GBS and transverse myelitis, the petitioner has to offer a theory that explains both. [00:20:37] Speaker 02: And here there is no dispute that the petitioner... Why? [00:20:40] Speaker 01: Why? [00:20:40] Speaker 01: Because the petitioner experienced... If he was suffering from two conditions and one of them was caused by the vaccine, he can recover, right? [00:20:49] Speaker 02: Well, the petitioner then has to offer a theory that explains [00:20:53] Speaker 01: But the answer is yes, right? [00:20:55] Speaker 01: No, respectfully no, Your Honor. [00:20:57] Speaker 01: And one of them was caused by the vaccine. [00:20:59] Speaker 01: He's entitled to recover. [00:21:00] Speaker 01: Is that not the case? [00:21:02] Speaker 02: Respectfully no, Your Honor. [00:21:03] Speaker 02: The petitioner would have to offer a theory that would explain how a hepatitis vaccine administered to Mr. Contreras caused only GBS, 24-Hour Swallowing Administration, but was totally unrelated to the concurrent transverse myelitis that was also occurring, as proven by the MRI that was done and showed the lesion on the spinal cord. [00:21:23] Speaker 02: So there is no dispute in this case that Petitioner suffered from transverse myelitis. [00:21:28] Speaker 02: And what I think you're asking the Special Master to do is to... We're asking the Special Master to address GBS, which he failed to do. [00:21:39] Speaker 02: Well, he did, respectfully, Your Honor, he did address GBS. [00:21:43] Speaker 02: He found that the weight of the evidence, the medical evidence, and the record did not support a diagnosis of GBS. [00:21:52] Speaker 02: Once the MRI was done, two days following... We're relying on Dr. Slavki. [00:21:56] Speaker 01: There isn't any... We just went through this with you. [00:21:59] Speaker 01: There isn't any testimony that he was not suffering from GBS. [00:22:12] Speaker 03: Let me ask you this. [00:22:12] Speaker 03: Let's say we even agree with you about TM, and that Special Master is right, that he suffered from TM, that [00:22:20] Speaker 03: the vaccine couldn't have caused the TM. [00:22:24] Speaker 03: Couldn't he still recover if there was a diagnosis of GBS and a showing that it occurred within one day of the vaccine, which some people have said can be a sufficient timing? [00:22:37] Speaker 03: If that were the theory that Petitioner had offered, then... So your argument seems to be because his theory says this vaccine caused both, he can only win if he proves both. [00:22:51] Speaker 02: What we are arguing is that it is the petitioner's burden to present a medical theory and a logical sequence of cause and effect. [00:22:58] Speaker 03: The medical theory in part is vaccine, GBS. [00:23:02] Speaker 02: Well, again, and that is part of his theory, but the theory actually was both transverse myelitis and GBS. [00:23:09] Speaker 02: And again, the evidence below is that neither condition could occur within 24 hours. [00:23:14] Speaker 03: What if he said, I have either GBS or TM that was caused by the vaccine? [00:23:19] Speaker 02: then the Special Master would have needed to evaluate that case. [00:23:22] Speaker 03: You seem to be splitting hairs then, because that seems to suggest that that's exactly what he was doing. [00:23:28] Speaker 03: I mean, the record is not precisely clear over what he suffered. [00:23:34] Speaker 02: Exactly, and as the fact finder, it was directly within the purview of the Special Master to look at the evidence in the record and to make a determination. [00:23:43] Speaker 03: That he suffered from one but not the other, but the problem [00:23:46] Speaker 03: you get into there, and I don't want to go over this again, is that the only evidence that he didn't suffer from GBS is the discredited slack key testimony. [00:23:56] Speaker 02: Respectfully, Your Honor, no. [00:23:57] Speaker 02: The treating physicians after the MRI was performed on June 18th following the vaccinations on June 16th that showed the lesion on the spinal cord, Dr. Lake, the treating neurologist at that point, changed her diagnosis from atypical GBS to transverse myelitis. [00:24:13] Speaker 02: From that point forward throughout the hospitalization, [00:24:15] Speaker 02: his diagnosis is consistently noted as transverse myelitis. [00:24:20] Speaker 02: GBS falls out of the diagnosis at that point. [00:24:23] Speaker 02: So the Special Master is not relying just on Dr. Slakey, but looking at the actual doctors who are treating Mr. Contreras during his illness, the doctors who are most concerned with what he had because they were responsible for his treatment and care. [00:24:35] Speaker 01: You haven't given a good point as to a finding by the Special Master that he wasn't suffering from GBS. [00:24:40] Speaker 01: I asked you, you can't point to such a finding. [00:24:43] Speaker 02: In his very first decision, [00:24:45] Speaker 01: He says, in the most recent decision, the first decision is tainted by his reliance on Dr. Slavki. [00:24:52] Speaker 01: In the most recent decision where he makes findings setting aside Dr. Slavki's testimony, show me where he said he's not suffering from GBS. [00:25:22] Speaker 02: The finding that he made was that, thus, even if a preponderant evidence established that Mr. Contreras suffered from both the peripheral and a central nervous system disease, [00:25:50] Speaker 02: he would be required to establish on a more likely than not basis that a vaccination caused both. [00:25:56] Speaker 01: That is not a finding that he didn't suffer from GBS. [00:26:00] Speaker 02: But the finding is that there was no dispute that he suffered from transverse myelitis. [00:26:06] Speaker 02: And again, I think the petitioner didn't offer any evidence to explain how the hepatitis vaccine could only cause GBS and not also the transverse myelitis, assuming that Mr. Contreras [00:26:20] Speaker 02: was suffering from both. [00:26:21] Speaker 02: I mean, I think what you're asking the special master to do is to essentially assume theories on behalf of petitioner that were not offered into evidence by petitioner's own expert. [00:26:33] Speaker 02: And the special master has to evaluate the record before him. [00:26:36] Speaker 02: He has to evaluate the evidence before him, which he's written over 170 pages single spaced on this case. [00:26:44] Speaker 02: I mean, I don't think there can be any argument that he's not carefully considered the evidence in this case. [00:26:49] Speaker 02: And he simply wasn't, he found the most persuasive. [00:26:53] Speaker 02: testimony of the government's expert immunologist. [00:26:56] Speaker 03: I mean, the court of federal claims judge found on the final opinion that he almost completely disregarded her instructions on remand about looking at Sladki, making specific findings and the like, and only at the end gave up and affirmed based on this very narrow question because that third remand opinion still went through and said why even though Sladki may have been discredited for some reasons, he wasn't discredited for others. [00:27:20] Speaker 03: almost in direct contravention of what the Court of Federal Claims said the time before. [00:27:24] Speaker 03: I mean, the relevant portion of this opinion that you're arguing for affirmance on is a very, very small portion of the third opinion. [00:27:33] Speaker 03: And all it talks about is TM not being caused by a vaccine within one day. [00:27:39] Speaker 02: And I see that I'm over my time. [00:27:41] Speaker 02: If I may briefly respond. [00:27:44] Speaker 01: You should respond. [00:27:45] Speaker 02: Your Honor, I think it is significant that Judge Bush, for all of the problems that she had with the way the Special Master handled this case, at the end of the day, could find no error in his evaluation and reliance on the testimony of the government's expert, Dr. Witten, on the amount of time it would take a vaccine to cause through molecular mammary any demyelinating disease. [00:28:07] Speaker 01: I have one more question for you. [00:28:08] Speaker 01: Will it assume, hypothetically, that we were to decide that this case had to be remanded? [00:28:14] Speaker 01: Is it within our authority to order that the case be transferred to a new special master? [00:28:21] Speaker 02: I think that you would have to show some misconduct on the part of the special master, and I don't think that this record. [00:28:28] Speaker 01: Well, we've decided that we have the authority in cases coming from the district court to order cases on remand to be heard by another district court judge. [00:28:36] Speaker 01: There's an established standard for that. [00:28:38] Speaker 01: Is there any reason that we can't apply that same established standard [00:28:42] Speaker 01: to ordering that the case be heard by a different special master. [00:28:46] Speaker 02: Your Honor, I'm frankly not familiar with that standard, but I would argue that absent some showing of misconduct by the special master in this case, it would be inappropriate for this court to transfer the case solely on the basis that you disagree with the special master's findings. [00:29:08] Speaker 01: Okay. [00:29:09] Speaker 01: Thank you, Mr. Johnson. [00:29:10] Speaker 01: Mr. Popp, you have [00:29:12] Speaker 01: I've got four minutes here. [00:29:25] Speaker 00: Thank you, Your Honor. [00:29:27] Speaker 00: On Appendix 526, that's where Dr. Lake makes the probable atypical Guillain-Barre finding based on a Babinski test. [00:29:40] Speaker 00: And unlike [00:29:43] Speaker 00: my worthy opponent, I don't believe because they found transverse mellitus that they ever said it wasn't GBS. [00:29:50] Speaker 00: As a matter of fact, they were treating Mr. Contreras for GBS. [00:29:55] Speaker 00: In answer to the question that you raised, which is a very interesting one, can this court order that the case be transferred to another special master because the taint of Dr. Slatkey? [00:30:08] Speaker 00: Yes, you have the authority, of course. [00:30:11] Speaker 00: to do that if you think that the special master was tainted not through the special master's own fault, but by the testimony of Dr. Slackie. [00:30:21] Speaker 00: And I think that, in fact, is what should happen in this case. [00:30:25] Speaker 00: I think that would be perfectly appropriate. [00:30:30] Speaker 00: And finally, Dr. Garrett, who did all say it was transverse mellitus, said that his differential diagnosis with GBS [00:30:38] Speaker 00: So this is not one of those cases where it falls into, it's either one disease or the other. [00:30:44] Speaker 00: These two diseases are very much coexisting in 27 cases as found by Dr. Steinman and by the literature. [00:30:55] Speaker 00: So thank you very much. [00:30:56] Speaker 01: Okay. [00:30:56] Speaker 01: Thank you, Mr. Popp. [00:30:58] Speaker 01: I thank both counsel. [00:30:59] Speaker 01: The case is submitted. [00:31:00] Speaker 01: That concludes our session.