[00:00:31] Speaker 00:
Okay, the next argued case this morning is number 15-5153, Nuttall against the Secretary of Health and Human Services, Mr. Webb.

[00:00:46] Speaker 03:
Thank you for this opportunity.

[00:00:50] Speaker 03:
The critical question in Nathan Nuttall's claim for compensation under the Vaccine Act was whether the MRI scans done in his brain in November of 2005

[00:01:01] Speaker 03:
in October of 2011 show that he had suffered an encephalitis.

[00:01:08] Speaker 03:
The record contained four pieces of evidence on the categories of evidence on that question.

[00:01:16] Speaker 03:
The opinion of the radiologist that performed the 2005 MRI, Dr. Hewell.

[00:01:24] Speaker 03:
The opinion of the neuroradiologist that performed the 2011 MRI, Dr. Jose Balzo.

[00:01:32] Speaker 03:
the opinion of Nathan Nuttall's expert witness, Dr. Schuman, who is a neuropathologist and a pediatric neurologist, and the opinion of the secretary's expert witness, Dr. Wisneser, who is a pediatric neurologist.

[00:01:51] Speaker 03:
The Nuttalls have brought this appeal because the special master either did not consider Dr. Nuttall's opinion,

[00:01:59] Speaker 03:
that the MRI scans showed abnormalities consistent with encephalitis or did not have a reasonable basis for his decision to give Dr. Bowser's opinion little or no way.

[00:02:16] Speaker 03:
The special master's opinion does mention Dr. Bowser's opinion on pages 6, 16, and on pages 23 through 25.

[00:02:27] Speaker 03:
On page 6, the special master

[00:02:30] Speaker 03:
includes Dr. Bowser's report in his recitation of the facts appearing in the medical records.

[00:02:40] Speaker 03:
On page 16, he references Dr. Bowser's disagreement with Dr. Shuman on a not particularly important point in a footnote.

[00:02:52] Speaker 03:
And on pages 23 through 25, the special master explains his decision not to include

[00:02:59] Speaker 03:
the opinions of Dr. Huell and Dr. Bowser in his analysis of whether or not the MRI scans showed abnormalities consistent with the use of Lyos.

[00:03:12] Speaker 03:
I believe the special master's failure to include Dr. Bowser's opinion in his analysis amounts to a failure to consider Dr. Bowser's opinion.

[00:03:23] Speaker 03:
The special master characterizes his decision

[00:03:26] Speaker 03:
not to include Dr. Bowser's opinion in his analysis of what the MRI scans did or did not show as giving the opinion little weight.

[00:03:40] Speaker 03:
I believe that the Special Master's treatment of Dr. Bowser's opinion was arbitrary and capricious, whether you consider it a failure to consider the evidence or a decision to afford it little weight.

[00:03:53] Speaker 03:
Because the reasons the Special Master

[00:03:56] Speaker 03:
articulated for giving the opinion little weight are unreasonable.

[00:04:03] Speaker 03:
Your decisions in Pollock v. Secretary of Health and Human Services and Moriarty v. Secretary of Health and Human Services, which I submitted as a supplemental authority on April 15, make it clear that if a special master did not consider Dr. Bowser's opinion, his decision was arbitrary and capricious.

[00:04:26] Speaker 03:
And those decisions also make it clear that acknowledging the existence of an expert report or other piece of evidence is not the same thing as considering it.

[00:04:40] Speaker 03:
In Moriarty, the Special Master acknowledged the expert witness report and medical articles that he chose not to consider.

[00:04:49] Speaker 03:
In Pollock, the Special Master described both the testimony and the MRI report that he did not consider.

[00:04:57] Speaker 03:
Yet in both cases, this court held that the special master's decision not to consider that evidence was arbitrary and capricious.

[00:05:10] Speaker 03:
In my brief, I have emphasized the dictionary meaning of consider.

[00:05:15] Speaker 03:
That is to think carefully about a subject, to think carefully in order to make a choice or a decision.

[00:05:26] Speaker 03:
I believe consider in the context of this case required the special master to include Dr. Bowser's opinion and the fact that it was the opinion of Dr. Bowser in his analysis of the MRI scans.

[00:05:43] Speaker 03:
Dr. Bowser's opinion should have been factored in.

[00:05:48] Speaker 03:
His opinion should have been put on the scales when considering what the MRI scans did or did not show.

[00:05:54] Speaker 00:
But how clear is it?

[00:05:56] Speaker 00:
that it wasn't considered.

[00:05:58] Speaker 00:
The judge commented that Dr. Baths didn't appear in person and didn't testify, but I didn't see anything to say that what was written was not considered by the special master.

[00:06:12] Speaker 00:
Is that accurate?

[00:06:14] Speaker 03:
That's correct.

[00:06:16] Speaker 03:
I finally understood your question.

[00:06:17] Speaker 03:
The special master said one of the main reasons he either did not consider or afforded

[00:06:24] Speaker 03:
Dr. Bowser's opinion testimony, anyway, was because he did not testify.

[00:06:30] Speaker 00:
He didn't say that he didn't consider it and weigh it along with everything else?

[00:06:36] Speaker 03:
I'm sorry?

[00:06:37] Speaker 00:
I don't recall him saying that he didn't consider it.

[00:06:41] Speaker 00:
It was a matter of weight rather than the existence of the written opinion.

[00:06:47] Speaker 00:
Is that right?

[00:06:48] Speaker 03:
Well, yeah, that is right.

[00:06:50] Speaker 03:
If I understand your question, I thought through exactly how

[00:06:54] Speaker 03:
you consider his approach to Dr. Bowser's opinion.

[00:07:02] Speaker 03:
Either he decided that because Dr. Bowser did not testify, and because Dr. Bowser's report was brief, and because Dr. Bowser may not have been neutral.

[00:07:15] Speaker 03:
He either chose not to consider Dr. Bowser's report for those reasons, or he chose to afford it a little weight.

[00:07:24] Speaker 03:
for those reasons.

[00:07:26] Speaker 03:
I don't think whether you consider it, whether you, we've used the word consider or afford little weight makes much difference because the reasons the special master provided for affording that little weight are unreasonable.

[00:07:40] Speaker 01:
There's another angle I thought, which is that there were really four doctors that provided some kind of diagnosis.

[00:07:50] Speaker 01:
And the special masters saw that, well, there's really two classes of diagnosis among the four doctors.

[00:07:58] Speaker 01:
There's two doctors that provided very extensive reports and then came in and actually testified.

[00:08:05] Speaker 01:
the special master got to understand those doctors' experience and qualifications.

[00:08:13] Speaker 01:
And that's Schumann and Wisnitzer, I think.

[00:08:15] Speaker 01:
And then there's two other doctors, Huell and Bauza, who the special master didn't see testify.

[00:08:26] Speaker 01:
the special master didn't get to know what their qualifications and experience are.

[00:08:32] Speaker 01:
And the diagnoses that the special master had and the record from those two doctors was very brief.

[00:08:40] Speaker 01:
Some might say concise, others might just say conclusory.

[00:08:43] Speaker 01:
But in any event, it appeared to the special master that the real main event of trying to understand what is the best interpretation

[00:08:52] Speaker 01:
these MRIs was based on all of the evidence and testimony he was getting from Schumann and Wisnitzer.

[00:09:00] Speaker 01:
And so when it came to trying to figure out how to fold in Heuel and Bauze,

[00:09:07] Speaker 01:
he treated them kind of on the same level, which is I'm not going to give these two as much weight as I'm going to give to Schumann and Wisnitzer, because these two I really have a lot more considered evidentiary-based testimony to really evaluate.

[00:09:27] Speaker 01:
And so I really ought to be figuring out these two since

[00:09:31] Speaker 01:
Kuhl and Bowser actually are conflicting testimony and almost cancel each other out.

[00:09:37] Speaker 01:
So maybe if you, you know,

[00:09:40] Speaker 01:
Fuel is sort of like this much weight.

[00:09:42] Speaker 01:
Well, Bowser is also about this much weight, and so they don't really... They're part of a record.

[00:09:49] Speaker 01:
They're going to be considered somewhat, but in the end, they don't push the ball forward as a collective matter, especially when the special master has Schumann and Wisnitzer in front of him.

[00:10:02] Speaker 01:
Is that a fair assessment of what happened here?

[00:10:07] Speaker 03:
I think it's a fair assessment of what the special master said, but I don't think it's an accurate description of what happens in the sense that first, Dr. Bowser and Dr. Hewitt's reports, you really can't say they're in any way comparable.

[00:10:29] Speaker 03:
Dr. Hewitt said this MRI scan is negative, and he only looked at the 2005 MRI.

[00:10:36] Speaker 03:
Dr. Bowser gave a careful, concise description of specific abnormalities and explained why they were abnormal.

[00:10:47] Speaker 03:
And that merited careful consideration.

[00:10:56] Speaker 03:
And the real important thing, though, is it's clear, at least to me, and maybe it's not clear to you,

[00:11:03] Speaker 03:
that the special master went through and discussed only Dr. Whitsnitzer and Dr. Schumann's opinions and came to a conclusion.

[00:11:13] Speaker 03:
And then he said, well, I didn't consider these people because they weren't much help.

[00:11:17] Speaker 03:
And then he said some things that were just completely not true about Dr. Bowser's opinion, and they're unreasonable things.

[00:11:24] Speaker 03:
And what Pollock tells us is if there's not a reasonable basis for what the special master does, that's arbitrary and capricious.

[00:11:33] Speaker 03:
It wasn't reasonable to not consider Dr. Bowser's opinion if he wasn't neutral, because certainly Dr. Wisnitzer and Dr. Truman weren't neutral.

[00:11:46] Speaker 03:
It wasn't reasonable, and according to the Moriarty opinion, it may not be legally justifiable to disregard an opinion or to give it no weight, because it's written as opposed to oral testimony.

[00:12:01] Speaker 01:
He did give it the same weight that he gave to Dr. Huell's diagnosis, right?

[00:12:07] Speaker 01:
I'm sorry?

[00:12:08] Speaker 01:
The special master, in terms of whatever weight he gave to Dr. Bauze's diagnosis, was the same weight he gave to Dr. Huell's diagnosis.

[00:12:21] Speaker 03:
Well, as far as I'm concerned, he could certainly have assigned little weight.

[00:12:26] Speaker 01:
That's what I think I saw the special master say.

[00:12:29] Speaker 01:
And at the same time, you know, the special master clearly wasn't considering Dr. Hewlett's or questioning Dr. Hewlett's neutrality, right?

[00:12:41] Speaker 03:
He didn't question Dr. Hewlett's neutrality.

[00:12:43] Speaker 03:
But it is accurate to say that Dr. Hewlett's report contains no explanation of the reasoning behind his finding.

[00:12:55] Speaker 03:
That's accurate with Dr. Hewlett.

[00:12:57] Speaker 03:
It's inaccurate.

[00:12:59] Speaker 03:
with regard to Dr. Bowser.

[00:13:04] Speaker 03:
And this was not just some evidence that might have some collateral importance.

[00:13:12] Speaker 03:
It was of critical importance.

[00:13:14] Speaker 03:
It was an MRI scan reviewed by a neuroradiologist, and he gave specific findings that he said were abnormal that he said were an encephalitis.

[00:13:29] Speaker 03:
And those specific findings that Dr. Bowser spelled out answer critical issues in the analysis that the special master went through.

[00:13:41] Speaker 03:
And he didn't factor them in.

[00:13:44] Speaker 03:
On each of the issues that's critical to the determination of whether these MRI scans were abnormal, Dr. Bowser had something to say.

[00:13:56] Speaker 03:
But the special master didn't factor in what Dr. Balza had to say.

[00:14:01] Speaker 03:
He said that the hyperintensities in the parotrigonal region were abnormal because of Nathan's age.

[00:14:09] Speaker 03:
That information does not appear in the analysis that the special master used.

[00:14:16] Speaker 03:
It doesn't appear in the decision at all.

[00:14:20] Speaker 03:
Dr. Balza said that he saw the hyperintensity in the hippocampus.

[00:14:26] Speaker 03:
in multiple thin cuts through that part of the brain.

[00:14:31] Speaker 03:
Multiple.

[00:14:33] Speaker 03:
And Dr. Wisnitzer's whole defense to the hyperintensities in the hippocampus was that one image that we presented was a, quote, artifact, end quote.

[00:14:49] Speaker 03:
And the special master's analysis disregarded what Dr. Bowser said.

[00:14:53] Speaker 03:
that this image was visible in multiple cuts.

[00:14:56] Speaker 03:
They also disregarded that Dr. Schumann demonstrated by providing in exhibit 49 another image from a different plane in the MRI scan that showed the exact same abnormality.

[00:15:10] Speaker 03:
And Dr. Bowser said that the fornices were inflamed where the disagreement on the hyperintensity of the fornices was

[00:15:21] Speaker 03:
whether those were the fornesses or the ventricle linings that were inflamed.

[00:15:25] Speaker 03:
So the point is that by not factoring what Dr. Bowser said, and he did it because it was a written report instead of an oral report, the special mask was arbitrary and capricious, and did not consider or unreasonably fail to assign weight to Dr. Bowser's opinion.

[00:15:45] Speaker 00:
OK, thank you.

[00:15:46] Speaker 00:
Save you some rebuttal time, Mr. Webb.

[00:15:48] Speaker 00:
Mr. Johnson.

[00:15:51] Speaker 02:
Thank you, Your Honor, as may please the court.

[00:15:54] Speaker 02:
I'd like to begin by addressing the claim that the Special Master did not carefully consider Dr. Bauza's report.

[00:16:02] Speaker 02:
And I think that the issue that counsel is taking with it is that somehow the Special Master didn't consider the substance of Dr. Bauza's report, that he focused solely on whether he was neutral or whether he had qualifications to interpret the MRI.

[00:16:16] Speaker 02:
But in actuality, the Special Master

[00:16:19] Speaker 02:
analyze the substance of Dr. Bowles' report.

[00:16:22] Speaker 00:
And he did this.

[00:16:22] Speaker 00:
But if you do consider it, then don't you have a heavier weight in favor of causation than if you just have conflicting viewpoints?

[00:16:34] Speaker 02:
Well, you're correct.

[00:16:37] Speaker 02:
He did have conflicting viewpoints.

[00:16:38] Speaker 02:
He had two doctors saying that the MRIs were normal, and he had two doctors saying that there were abnormalities.

[00:16:45] Speaker 02:
And it was the special master's job to determine which of those interpretations was more persuasive.

[00:16:52] Speaker 02:
The way that he looked at Dr. Bauza's report, though, was in the context of examining Dr. Schuman's testimony.

[00:16:58] Speaker 02:
Because the first two abnormalities that Dr. Schuman testified about were actually the same two abnormalities that Dr. Bauza identified in his report.

[00:17:07] Speaker 02:
And if you look at the special master's decision, and this is pages 16 through

[00:17:15] Speaker 02:
20 of the appendix, the Special Master spends all of those pages examining the trigonal hyperintensities and the hyperintensities in the hippocampi, which were the two findings that were identified in Dr. Bowser's report.

[00:17:32] Speaker 02:
And Dr. Schuman testified that these were the same abnormalities that Dr. Bowser was talking about in his report.

[00:17:38] Speaker 02:
So the Special Master actually analyzed what Dr. Schuman was saying

[00:17:43] Speaker 02:
about these abnormalities, what Dr. Wisnitzer responded about these abnormalities, and then found that Dr. Wisnitzer was more persuasive in explaining why they were not abnormal.

[00:17:53] Speaker 02:
And to the point that counsel raised that Dr. Balza was speaking about the paratrigonal hyperintensities as being abnormal because of Nathan's age, if you look at page 16 of the Special Institutional Decision, that's page 17 of the appendix,

[00:18:08] Speaker 02:
That page actually does discuss the fact that Dr. Schumann also said that they were abnormal for Nathan's age and then explained what Dr. Wisnitzer's response to that was and again found Dr. Wisnitzer to be more persuasive.

[00:18:22] Speaker 02:
So the idea that somehow the Special Master has not carefully considered Dr. Bowers' report is just inaccurate based on the record.

[00:18:30] Speaker 02:
The Special Master's decision does address the substance of what was in Dr. Bowers' report.

[00:18:36] Speaker 02:
But the Special Master did also have other very reasonable reasons for, as Judge Hanyu said, not giving either Dr. Huel or Dr. Bauza's opinion much weight.

[00:18:46] Speaker 02:
And that is that the reports themselves from these radiologists, or Dr. Huel is a radiologist and Dr. Bauza who is a neuroradiologist, while they identify what they saw as the abnormalities, what they do not do is identify the specific images from the MRIs that

[00:19:05] Speaker 02:
basically illustrated the abnormalities.

[00:19:08] Speaker 02:
And that was what Dr. Schumann and Dr. Wisnitzer did at the hearing.

[00:19:12] Speaker 02:
They spent a significant amount of time going through specific images from Nathan's MRIs and showing, pointing out what they thought was abnormal and what Dr. Schumann thought was abnormal.

[00:19:23] Speaker 02:
And then in response, Dr. Wisnitzer provided images that were similar to what Dr. Schumann was saying was an abnormal finding in Nathan's MRI, but in the medical literature had been reported as normal.

[00:19:35] Speaker 02:
And so Dr. Wisnitzer says, so if you look at these similar images, Dr. Schuman is saying this is abnormal.

[00:19:41] Speaker 02:
It's been reported in the medical literature as normal.

[00:19:44] Speaker 02:
So I conclude that this isn't necessarily an abnormality.

[00:19:48] Speaker 00:
But it was agreed that there was some abnormality, is what I get from the record.

[00:19:56] Speaker 00:
And the problem was in tying whatever observed abnormality there is to either an encephalitis

[00:20:05] Speaker 00:
due to the administration of the vaccine or to the particular or say or and to the particular disability, which is real.

[00:20:15] Speaker 00:
And when you do have medical gaps of that sort, isn't the policy to resolve doubt in favor of the real observed disability?

[00:20:28] Speaker 02:
Well, respectfully, Your Honor, Dr. Wissnitzer's testimony was that there were no abnormalities, that he did not see abnormalities in the MRIs.

[00:20:36] Speaker 02:
So there wasn't really an agreement that there were abnormalities.

[00:20:39] Speaker 02:
The testimony from the government was that there was no evidence in the MRIs of an encephalitis.

[00:20:47] Speaker 00:
There's no evidence of encephalitis, but I thought that some abnormality was observed.

[00:20:53] Speaker 00:
without knowing what it was due to.

[00:20:55] Speaker 02:
There were symptoms that Nathan certainly experienced.

[00:21:00] Speaker 02:
There was a dispute over when those symptoms arose.

[00:21:03] Speaker 02:
But there were clinical symptoms that both experts agreed were consistent with either an encephalitis or childhood disintegrative disorder.

[00:21:14] Speaker 02:
And the reason the MRI evidence became so critical is because Dr. Schuman, the petitioner's expert,

[00:21:21] Speaker 02:
testified that without an abnormal MRI finding, he would not be able to offer the opinion that Nathan experienced in encephalitis, that the clinical symptoms alone were not sufficient for him to conclude that what Nathan had was an encephalitis.

[00:21:36] Speaker 02:
And so that is why the focus of the case became the MRIs and whether there were any abnormalities on there.

[00:21:43] Speaker 02:
Dr. Schumann testified that there were.

[00:21:45] Speaker 02:
Dr. Woosnitzer testified that there weren't.

[00:21:48] Speaker 02:
And the special master, at the end of the day, found Dr. Wisnitzer's testimony more persuasive because he was able to substantiate what he was saying by providing examples from the medical literature that supported what he was saying.

[00:22:03] Speaker 02:
And I briefly just want to address the issue of Dr. Bowles' role as a treating physician.

[00:22:11] Speaker 02:
And I think it's important just to understand fully how he became involved in this case.

[00:22:17] Speaker 02:
Dr. Schuman testified at the hearing that he first reviewed Nathan's 2005 MRI sometime in the summer of 2011.

[00:22:26] Speaker 02:
And after reviewing the MRI, he decided that he wanted Nathan to undergo a second MRI.

[00:22:32] Speaker 02:
And he said to, quote, test the correctness of his observations and inferences.

[00:22:38] Speaker 02:
Dr. Schuman then sent a letter to Nathan's pediatrician in Las Vegas at the time, Dr. Winkler.

[00:22:44] Speaker 02:
And this letter stated that,

[00:22:46] Speaker 02:
While the radiologist, Dr. Hewell, who had performed the 2005 MRI, had interpreted it as being normal, Dr. Schumann interpreted it as showing evidence of limbic encephalitis.

[00:22:58] Speaker 02:
And so what he wanted Dr. Winkler, the pediatrician, to do was to refer Nathan to Dr. Barkovich in San Francisco for a second MRI.

[00:23:06] Speaker 02:
Unbeknownst to Dr. Schumann, petitioners had moved to Georgia during this time frame, and Nathan was no longer being treated by Dr. Winkler.

[00:23:15] Speaker 02:
The next thing that appears on the record is on September 27th of 2011, Nathan had his initial consultation with a pediatric neurologist in Georgia named Dr. Fisher.

[00:23:26] Speaker 02:
And Dr. Schuman is listed as one of the referring physicians on the record.

[00:23:31] Speaker 02:
And the record also states that an MRI that had been previously done showed evidence of an encephalitis.

[00:23:40] Speaker 02:
Dr. Schuman testified at the hearing that he assumed the way that

[00:23:45] Speaker 02:
And the director also references a note from Dr. Schumann.

[00:23:49] Speaker 02:
And Dr. Schumann testified that he believes what happened was Dr. Winkler in Las Vegas forwarded a copy of his letter to Dr. Fisher.

[00:23:56] Speaker 02:
And that's what she had in her possession when she first saw Nathan.

[00:24:00] Speaker 02:
Nathan then had his second MRI done on October 24th of 2011.

[00:24:03] Speaker 02:
The physician who ordered the MRI is listed as Dr. Squires.

[00:24:09] Speaker 02:
And their briefing petitioners represent that Dr. Squires is Nathan's uncle and an oncologist, but there's nothing in the record to confirm that.

[00:24:17] Speaker 02:
What is clear is that Dr. Bowser references in his report a history of previous encephalitis, which plainly indicates that someone had communicated to him an opinion that Nathan experienced an encephalitis.

[00:24:32] Speaker 02:
Nowhere in the medical records do any of Nathan's treating physicians diagnose him with an encephalitis.

[00:24:38] Speaker 02:
the only source of the statement could have been the note from Dr. Schumann, whether that was provided to Dr. Bowser directly or whether it was communicated to him indirectly.

[00:24:48] Speaker 02:
In any event, it was perfectly reasonable, based on this evidence, for the Special Master to conclude that Dr. Bowser's interpretation of the MRI evidence

[00:24:58] Speaker 02:
could have been influenced by Dr. Schuman's opinion provided to him that Nathan had experienced an encephalitis.

[00:25:06] Speaker 02:
And Dr. Schuman is the only person who had provided that opinion at that point.

[00:25:10] Speaker 02:
So it was reasonable for the Special Counsel to conclude that this MRI was not done for purposes of treatment.

[00:25:18] Speaker 02:
It was done in furtherance of this claim and therefore treating Dr. Balza as a true treating physician under this court's precedent that

[00:25:27] Speaker 02:
provides a treating physician opinion in a significant way, that Dr. Bowser's opinion wasn't entitled to deference for that reason.

[00:25:33] Speaker 00:
That's not quite fair.

[00:25:35] Speaker 00:
You can't expect an afflicted family to look ahead and read the fine points of the law that no one else has read and think, well, we'd better do this because 11 years from now, we may need to establish a claim.

[00:25:53] Speaker 00:
If, in fact, there was some observation of encephalitis,

[00:25:57] Speaker 00:
which was communicated to a treating physician along with other observations.

[00:26:06] Speaker 00:
Doesn't that have to be taken at reasonable face value?

[00:26:11] Speaker 00:
We see adverse consequences.

[00:26:13] Speaker 00:
The only question is for encephalitis, I think that's a table injury, is it not?

[00:26:18] Speaker 00:
So that makes it easier to establish one's claim.

[00:26:23] Speaker 02:
Yes, Your Honor, and it was entirely reasonable for the family to obtain the second MRI.

[00:26:28] Speaker 02:
The only point I was trying to make is that the Special Master, in looking at how to analyze this MRI, took into consideration the fact that somebody had communicated to Dr. Bowser that they believed that Nathan had experienced a past encephalitis.

[00:26:42] Speaker 02:
And as evidenced by the competing opinions from Dr. Huell and Dr. Wisnitzer and Dr. Schumann and Dr. Bowser, reading an MRI is

[00:26:52] Speaker 02:
is as much of an art as it is a science, that there can be different interpretations by qualified experts looking at the same MRIs.

[00:27:00] Speaker 02:
And I think the special master reasonably concluded that if somebody had told Dr. Balza that Nathan had experienced encephalitis in the past, that in looking at the MRIs, he might have been influenced and been looking for things that would confirm that.

[00:27:16] Speaker 02:
And so it doesn't necessarily.

[00:27:17] Speaker 00:
Isn't that how it works in the medical profession?

[00:27:23] Speaker 00:
This is an art as much as a science, as you say?

[00:27:28] Speaker 02:
Well, absolutely.

[00:27:29] Speaker 02:
But I think the only point I was making is that it was reasonable for the special master to take that into consideration in determining how to analyze Dr. Bowser's report and how much weight it deserves.

[00:27:45] Speaker 02:
And unless there are further questions, we would ask the court to affirm the special master's decision below.

[00:27:51] Speaker 00:
Thank you, Mr. Johnson.

[00:27:53] Speaker 00:
Mr. Webb, you have some rebuttal time.

[00:27:56] Speaker 03:
I appreciate you giving me a few more minutes, and it won't take long.

[00:28:00] Speaker 03:
One doctor or a doctor special master that decided this case did not hear the witnesses.

[00:28:08] Speaker 03:
It was not present at the entitlement hearing.

[00:28:10] Speaker 03:
The case was assigned to him after the entitlement hearing.

[00:28:13] Speaker 03:
So there really is no difference between the documentary evidence provided by Dr. Bauza and the documentary evidence of the transcript

[00:28:23] Speaker 03:
Two, it's not reasonable to suggest the highly qualified physician.

[00:28:28] Speaker 03:
A board-certified neuroradiologist is going to see something that's not there because another doctor had a diagnosis of encephalitis.

[00:28:37] Speaker 03:
And that doctor was Dr. Fisher.

[00:28:41] Speaker 03:
And Dr. Fisher may have been, she probably did, she apparently did have the letter from Dr. Truman, but that's all.

[00:28:49] Speaker 03:
She had a letter from Dr. Truman in which Dr. Truman asked

[00:28:52] Speaker 03:
Dr. Winkler to refer Nathan to a neuroradiologist because he needed a scan to see whether he had an encephalitis.

[00:29:03] Speaker 03:
And that would have helped the case and it would have helped treatment of Nathan as well.

[00:29:09] Speaker 03:
And whether or not Dr. Bowser was a tweeting physician, that doesn't mean his opinion shouldn't have been considered or

[00:29:21] Speaker 03:
that it should have been given so little weight.

[00:29:24] Speaker 03:
It's unreasonable for the Special Master to simply, whatever you use it, to not use an opinion in the medical records of a child when analyzing a well-qualified witness.

[00:29:42] Speaker 03:
It's just unreasonable for him not to consider that or to give it so little weight, to dismiss it as if

[00:29:50] Speaker 03:
It was redundant because it wasn't redundant.

[00:29:54] Speaker 03:
There is a very significant difference between discussing Dr. Schumann's opinions and not acknowledging that a neuroradiologist that actually saw the scans first had similar supportive opinions that addressed the specific issues addressed by the expert witnesses.

[00:30:19] Speaker 03:
and going over the same territory.

[00:30:20] Speaker 03:
In other words, if you read only the opinion from the special master, you wouldn't know that Dr. Bauza had the critical opinion that the hyperintensities in the paratrigonal region were abnormal because of age.

[00:30:39] Speaker 03:
Because of age being the critical issue that Dr. Schuman and Dr. Wisner disagreed about.

[00:30:46] Speaker 03:
If you read only the special master's opinion,

[00:30:49] Speaker 03:
You wouldn't know that Dr. Wisner identified one image in which the hyperintensities in the hippocampus were an artifact.

[00:31:01] Speaker 03:
Only one image.

[00:31:03] Speaker 03:
And there are hundreds of images in an MRI scan.

[00:31:06] Speaker 03:
You wouldn't know.

[00:31:07] Speaker 03:
Dr. Bowles said, I saw this in lots of different, multiple slices through the hippocampus.

[00:31:14] Speaker 03:
You wouldn't know that.

[00:31:16] Speaker 03:
And you wouldn't know that Dr. Bowser specifically said that I see hyperintensity in the fornices greater in the left than the right, which suggests that this was clearly in the fornices, not in the ventricles.

[00:31:34] Speaker 03:
These were the three critical factual questions on which Dr. Wisnitzer and Dr. Heisting, Dr. Wisnitzer and Dr. Schumann disagreed.

[00:31:44] Speaker 03:
And to not calculate, to not even describe or articulate what the evidence was available from a written report from a neuroradiologist in making that decision is unreasonable.

[00:31:59] Speaker 03:
It's arbitrary.

[00:32:00] Speaker 03:
It's capricious.

[00:32:01] Speaker 03:
I'll ask you to remand this case so that it can be considered.

[00:32:05] Speaker 00:
Thank you.

[00:32:06] Speaker 00:
Thank you, Mr. Webb and Mr. Johnson.

[00:32:08] Speaker 00:
The case is taken under submission.

[00:32:11] Speaker 00:
That concludes the argued cases.

[00:32:15] Speaker 00:
small.