[00:00:00] Speaker 01:
We have four argued cases this morning.

[00:00:02] Speaker 01:
The first is number 24, 1765, Kamboa, Avila, versus HHS, Mr. Webb.

[00:00:12] Speaker 02:
I'm going to please the court.

[00:00:14] Speaker 02:
I want to first thank the courts and the court staff for making accommodations for my difficulty hearing.

[00:00:21] Speaker 02:
That way I hope I will hear your questions a bit better than I have in the past.

[00:00:29] Speaker 02:
This appeal presents the question of whether the special master required Gamboa to provide objective confirmation for his medical theory for medical literature specific to Guillain-Barre syndrome.

[00:00:43] Speaker 02:
The special master clearly required Gamboa to provide objective confirmation of testimony supporting his medical theory.

[00:00:51] Speaker 02:
In his analysis of Gamboa's medical theory, the special master wrote,

[00:00:57] Speaker 02:
that the testimony of Kimball's expert witness was speculative because a key element of his medical theory was, quote, not accepted overall by medical science specific to Guillain-Barre syndrome, and, quote, was not addressed in reputable publications and studies.

[00:01:19] Speaker 01:
So suppose I were to read

[00:01:21] Speaker 01:
that as saying not that medical literature confirmation was required, but that the absence of medical literature confirmation means that the theory is less believable.

[00:01:39] Speaker 01:
Is that permissible under our cases?

[00:01:45] Speaker 02:
It's not permissible under ALFIN because that's

[00:01:53] Speaker 01:
You can't take it into account at all under ALFIN?

[00:01:59] Speaker 02:
Because that is a higher, you cannot, the special master can't say that testimony that is not confirmed by objective medical literature or acceptance is not persuasive or not acceptable or not credible because that is a higher standard under what ALFIN said.

[00:02:19] Speaker 02:
It basically says that ALFIN says that medical testimony

[00:02:24] Speaker 02:
alone is sufficient.

[00:02:26] Speaker 02:
And if you require objective confirmation, it is essentially required starting from a position that the vaccine probably didn't cause the injury.

[00:02:44] Speaker 02:
Or maybe not probably, but you start from a position that unless very strong evidence is presented,

[00:02:54] Speaker 02:
we're not going to find vaccine causation.

[00:02:56] Speaker 02:
It's a higher standard, and that is essentially, that was the essence of the Alfven decision, that requiring objective confirmation required more of the petitioner.

[00:03:10] Speaker 02:
It is a hard line to explain or to draw, but the critical point is that you start, the Finder of Fact is supposed to start neutral, without an opinion whether or not

[00:03:24] Speaker 02:
the critical fact, in this case, medical vaccine causation, the petitioner's medical theory, was proven, whether it was established or not established.

[00:03:38] Speaker 02:
And you can't start with the premise that, well, only evidence that has objective confirmation can be credible.

[00:03:47] Speaker 02:
Because that means the petitioner starts at a disadvantage, which is inconsistent with the Vaccine Act.

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and the preponderance of evidence established by the Vaccine Act.

[00:03:56] Speaker 02:
And that was the critical holding in the Alton case.

[00:04:05] Speaker 02:
And I have quoted, both in my initial argument and in my brief, this paragraph from the special master.

[00:04:13] Speaker 02:
But I do want to say it again, because it's critical.

[00:04:15] Speaker 02:
This is what the special master wrote.

[00:04:18] Speaker 03:
What page?

[00:04:20] Speaker 03:
Go ahead.

[00:04:20] Speaker 03:
What page of the joint appendix?

[00:04:22] Speaker 02:
This is on page 35 of the appendix, 35 of the special master's decision.

[00:04:42] Speaker 02:
That's 35 of the special master's appendix, page 36.

[00:04:49] Speaker 00:
Which paragraph are you looking at?

[00:04:51] Speaker 02:
It's the second paragraph.

[00:04:53] Speaker 02:
It begins, and this is the whole first couple sentences.

[00:04:57] Speaker 02:
Next, Dr. Steinman proposes an antigenic autoimmune self-target for GBS pathogenesis, polar head groups containing phospholipid components that is not accepted overall by medical science specific to GBS, let alone addressed in reputable publications or studies.

[00:05:19] Speaker 02:
In effect, if Dr. Steinman is correct, he has made a major discovery about GBS that others in the field more well-versed in the specific study of peripheral neuropathies have fully missed.

[00:05:33] Speaker 02:
It is simply speculative to propose that GBS could be mediated by an attack on this target, et cetera.

[00:05:41] Speaker 02:
The point here is that the special master found

[00:05:48] Speaker 02:
Dr. Steinman's testimony unpersuasive or inadequate or deficient because there was not objective confirmation in reputable publications or studies or general acceptance in the medical science specific to GBS.

[00:06:08] Speaker 02:
If you look at the Alton decision, that is almost exactly word for word what the disputed Stevens test required

[00:06:18] Speaker 02:
In other words, what the special master, why the special master denied compensation in alpha.

[00:06:24] Speaker 00:
One of the things I'm struggling with in this case is the very deferential standard of review that we owe to the fact finders decision making here.

[00:06:34] Speaker 00:
Right.

[00:06:35] Speaker 00:
And I'm not sure that I'm seeing a heightened burden of proof, as you say.

[00:06:40] Speaker 00:
And so I'm looking at the fact findings and trying to determine whether they're implausible.

[00:06:47] Speaker 00:
And that makes it difficult in this case.

[00:06:49] Speaker 00:
And what is your response to that?

[00:06:54] Speaker 02:
It is difficult to distinguish between just looking at and requiring an issue.

[00:07:01] Speaker 02:
But I think the critical point here is the standard against which the special master measured the evidence.

[00:07:10] Speaker 02:
It wasn't a weighing of the evidence.

[00:07:12] Speaker 02:
It was measuring the evidence up against what

[00:07:16] Speaker 02:
he expected in order to be preponderance.

[00:07:19] Speaker 02:
In other words, he believed that evidence, in the absence of evidence, objectively confirming Dr. Steinman's medical theory, it was speculative.

[00:07:34] Speaker 02:
It wasn't persuasive because it was speculative.

[00:07:37] Speaker 02:
In other words, lack of confirmation denied Dr. Steinman's testimony the credibility he needed to satisfy what the special master believed was the standard.

[00:07:46] Speaker 01:
Let's suppose that I disagree with you as to the reading of the special master's decision, and I read the special master as saying, well, yes, you could support a vaccine claim successfully without medical literature supporting the theory, but the absence of medical literature

[00:08:08] Speaker 01:
weakens the weight of the expert's testimony.

[00:08:12] Speaker 01:
Let's assume that I read the special master saying that.

[00:08:17] Speaker 01:
Is that contrary to Alton?

[00:08:24] Speaker 02:
I think the point is, I'm trying to answer that clearly here.

[00:08:29] Speaker 02:
It does

[00:08:33] Speaker 02:
I'll say if you conclude that the Special Master did not require objective confirmation, then we lose.

[00:08:44] Speaker 02:
Now, the point I'm trying to make is that the specific holding out was that objective confirmation could not be required.

[00:08:58] Speaker 02:
And so it's not.

[00:09:03] Speaker 02:
I guess I'm trying to go back, the Special Master talks about the fact that there's more evidence for the influenza vaccine in GBS.

[00:09:14] Speaker 02:
And that evidence includes objective confirmation, general acceptance, or at least widespread acceptance in a community specific to GBS.

[00:09:24] Speaker 02:
But that is the fact that there is more evidence on a different theory of causation doesn't mean that only

[00:09:32] Speaker 02:
only theories of medical theories that reach that level, the flu GBS level, are sufficient.

[00:09:43] Speaker 02:
The question is what kind of evidence is sufficient?

[00:09:47] Speaker 02:
And he said it's not sufficient unless there's objective confirmation.

[00:09:51] Speaker 02:
So he can look at the medical literature.

[00:09:54] Speaker 03:
What kind of evidence do you think would be sufficient?

[00:09:58] Speaker 03:
I mean we have

[00:09:59] Speaker 03:
Of course, we've said in cases that, you know, no objective confirmation evidence is required or no medical literature is necessarily required, but we've also at the same time said that what is required for Alphenprongone is some kind of reputable scientific or medical explanation.

[00:10:21] Speaker 03:
And I think we've also said there needs to be some indicia of reliability.

[00:10:26] Speaker 03:
to support your expert's position.

[00:10:29] Speaker 03:
And so there has to be something more than your expert asserting a position, right?

[00:10:39] Speaker 02:
I think the Special Master absolutely can require that there be reputable science behind the medical theory.

[00:10:47] Speaker 02:
And that is in that he certainly can and should look at the medical literature submitted to determine whether

[00:10:55] Speaker 02:
special master, Dr. Steinman's medical theory is founded in reputable science.

[00:11:02] Speaker 02:
And the context of this case, that means, and whether he used a methodology in coming to his conclusions that is founded in reputable science.

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And in this case, the special master acknowledged that that existed.

[00:11:20] Speaker 02:
He said that the theory of molecular mimicry on which the

[00:11:25] Speaker 02:
which Dr. Steinman based his medical theory, was widely accepted in science and in the program.

[00:11:35] Speaker 02:
And that provided a foundation that the Special Master acknowledged was there.

[00:11:40] Speaker 02:
And he, throughout the two or three pages that discussed the critical conclusions on causation, acknowledged that the methodology of identifying a

[00:11:53] Speaker 02:
substance in the vaccine and a molecular mimic or a molecularly similar substance in the peripheral nervous system was an accepted way of evaluating the likely causal relationship between an exposure and GBS.

[00:12:15] Speaker 02:
And he pointed both to the context of how medical science determined

[00:12:20] Speaker 02:
that the C. jejani bacteria cause the GBS through molecular mimicry.

[00:12:27] Speaker 02:
And how the medical science and the program has concluded that vaccines can, influenza vaccines can cause GBS through molecular mimicry.

[00:12:41] Speaker 02:
And I think what I'm saying is that the inquiry should be whether, not focused on the conclusion,

[00:12:48] Speaker 02:
that somewhere there's some kind of medical confirmation specific to Dr. Steinman's conclusion concerning the causal relationship.

[00:12:58] Speaker 02:
But whether there is sound science in the methodology.

[00:13:03] Speaker 00:
I was just going to say, do you think that a special master could never look at how things were shown, for example, with respect to the flu vaccine and GBS and compare that and say,

[00:13:17] Speaker 00:
you know, give a different weight to the evidence here because it doesn't arise to the level, or nearly to the level that relates to the flu vaccine and mimicry, the theory of mimicry with respect to that in GBS.

[00:13:35] Speaker 02:
I don't think that the special master should use, I mean, basically what I think, I understand your question is that,

[00:13:46] Speaker 02:
I think this is an answer to it.

[00:13:48] Speaker 02:
That I don't think it's appropriate for the professional to say that in another case on another, involving another vaccine, the evidence was at this level.

[00:13:59] Speaker 02:
And only evidence at that level would be sufficient to persuade me.

[00:14:03] Speaker 00:
But what if they don't say only evidence at this level?

[00:14:06] Speaker 00:
Instead, the question is, well, that helps me understand how much weight to give this or how this compares.

[00:14:14] Speaker 02:
I think that it's appropriate to consider evidence in a specific record about how the determination of flu vaccine and GBS was arrived at.

[00:14:30] Speaker 02:
And say, here's the evidence that existed in that context.

[00:14:35] Speaker 02:
In other words, I think that informs the question of whether the petitioner's theoretical theory

[00:14:44] Speaker 02:
is founded in sound science.

[00:14:46] Speaker 02:
It informs the question of whether it's legitimate, not junk science.

[00:14:52] Speaker 02:
But I think it's an error to say that you have to have achieved that same level in order to win a case.

[00:15:07] Speaker 02:
I think that the critical point is that the special master found

[00:15:12] Speaker 02:
Dr. Steinman's testimony speculative because he found there wasn't objective confirmation.

[00:15:24] Speaker 02:
There was that, if you will, causal relationship between the absence of confirmation and why he denied compensation that makes his decision something that you should reverse.

[00:15:34] Speaker 01:
OK.

[00:15:35] Speaker 01:
We'll give you two minutes for rebuttal.

[00:15:37] Speaker 01:
Thank you, Mr. Webb.

[00:15:38] Speaker 01:
Mr. Sacks.

[00:16:00] Speaker 04:
Thank you, Your Honor.

[00:16:01] Speaker 04:
May it please the court?

[00:16:03] Speaker 04:
Petitioner advances one allegation.

[00:16:04] Speaker 01:
Before we get to this medical literature confirmation issue, there's something extremely troubling going on here.

[00:16:13] Speaker 01:
And if you look at page 42 of the appendix, the chief special master here said, if this case had come before another special master, it would have come out differently.

[00:16:26] Speaker 01:
And he says it's not explained by different facts in different cases.

[00:16:34] Speaker 01:
He said this kind of case is decided by me one way and by other special masters another way.

[00:16:42] Speaker 01:
That's very, very troubling because it makes it seem as though the luck of the draw is going to determine the outcome of the case.

[00:16:50] Speaker 01:
What mechanism is there?

[00:16:53] Speaker 01:
before the special masters are in the claims court to make sure that this doesn't happen.

[00:17:00] Speaker 01:
It just doesn't seem right.

[00:17:03] Speaker 04:
I agree, Your Honor.

[00:17:04] Speaker 04:
There is some troubling, there's a troubling notion at the point that different special masters can decide the same vaccine injury cases differently, but at the same time,

[00:17:16] Speaker 04:
reasonable minds can disagree, it's well established that special masters are outbound by... We have a special master here saying that's not the situation.

[00:17:25] Speaker 01:
He's saying on identical facts, this case would come out differently depending on which special master heard it, right?

[00:17:32] Speaker 04:
I think it's close to that.

[00:17:33] Speaker 04:
I think they're much of the same medical literature.

[00:17:37] Speaker 04:
I think in some of the other cases that were decided in favor for petitioners, there were similar expert lineups.

[00:17:42] Speaker 04:
In this case, there was petitioners expert Dr. Steinman.

[00:17:45] Speaker 04:
In others, there was respondents expert Dr. Whitten.

[00:17:48] Speaker 04:
But at the same time, I think, Your Honor, I think the Chief Special Master is somewhat troubled by the fact that these come out differently.

[00:17:57] Speaker 04:
And expressively says that he wished it didn't.

[00:17:59] Speaker 04:
But at the end of the day,

[00:18:01] Speaker 04:
He thinks that the other special masters might be inadvertently lowering that burden, and we'd agree with the chief special master there.

[00:18:07] Speaker 04:
There is, to get to Judge Stoll's question, seems to be some importation of the flu GBS framework into a separate vaccine, Prevnar GBS cases, that he's carefully looking at this medical literature and- If I could just follow up on Judge Dyck's question.

[00:18:25] Speaker 03:
Is there no mechanism

[00:18:28] Speaker 03:
in order to get all the special masters in line to standardize their practice with respect to this non-table injury?

[00:18:39] Speaker 03:
It's hard for me to imagine just because... I would think the government would also be equally interested in having consistent outcomes in these cases rather than, you know, this luck of the draw question where you're playing roulette and if you get the right special master you get one outcome but if you

[00:18:57] Speaker 03:
draw the wrong straw, then you're out of luck.

[00:19:01] Speaker 03:
Somebody gets $500,000, another person gets $0 on the exact same facts.

[00:19:08] Speaker 04:
Well, I'd point out, respectfully, not every case has the exact same facts.

[00:19:12] Speaker 03:
Let's just assume that's what is going on.

[00:19:15] Speaker 03:
OK, so is there or is there not some kind of mechanism for a standardization of practice among the special masters for this particular issue?

[00:19:27] Speaker 04:
It's hard for me to imagine a mechanism because so much of this comes down to fact-finding.

[00:19:31] Speaker 04:
And as Judge Stoll was getting at, this court and the Court of Federal Claims applies a highly deferential arbitrary or capricious standard of review.

[00:19:39] Speaker 04:
At the end of the day, the special masters are weighing the evidence.

[00:19:43] Speaker 04:
This case comes down to factual determinations, not a legal standard, not a heightened burden of review.

[00:19:49] Speaker 01:
We understand that.

[00:19:50] Speaker 01:
But the problem is the same facts, different results.

[00:19:53] Speaker 01:
That's not tolerable.

[00:19:57] Speaker 01:
The question is, isn't there some mechanism for bringing consistency to what the special masters are doing?

[00:20:08] Speaker 04:
I think we're looking at every vaccine-injury combo as presenting the same facts, and that's, I respectfully, that's just, it's not the case.

[00:20:15] Speaker 04:
And there are different medical, there's different medical literature submitted in each of these cases.

[00:20:20] Speaker 04:
There are different expert lineups, different special masters find.

[00:20:23] Speaker 01:
Okay.

[00:20:24] Speaker 01:
Okay.

[00:20:25] Speaker 01:
It seems to be supported explicitly by the special master in this case.

[00:20:30] Speaker 01:
Except the premise, on identical facts, the cases are coming out differently.

[00:20:36] Speaker 01:
and it all depends on which special master you end up with.

[00:20:40] Speaker 01:
That's intolerable, right?

[00:20:43] Speaker 04:
It's less, it's not ideal, Your Honor, yes.

[00:20:47] Speaker 04:
As far as the mechanism that this court could implement to change that, I'm sorry, I'm struggling to find

[00:20:57] Speaker 04:
a legal rule that could be implemented to tell every special master to treat a hepatitis B transverse myelitis case the same, or a Prevnar GBS case the same.

[00:21:10] Speaker 04:
All right.

[00:21:16] Speaker 04:
Matt, why don't you go ahead.

[00:21:19] Speaker 04:
Well, OK.

[00:21:21] Speaker 04:
To petitioner's argument here,

[00:21:25] Speaker 04:
The Chief Special Master did not elevate the burden by requiring objective confirmation of his causation theory in the scientific medical literature.

[00:21:32] Speaker 04:
As Judge Tapp observed below, we agree this is a factual disagreement disguised as a legal challenge.

[00:21:39] Speaker 04:
The Special Master did not demand scientific certainty or universal acceptance.

[00:21:43] Speaker 04:
He expressly stated he was not applying such a heightened burden.

[00:21:46] Speaker 04:
Instead, he fulfilled his role as a fact finder.

[00:21:48] Speaker 04:
carefully evaluating the reliability of Petitioner's theory, weighing it against competing expert testimony.

[00:21:53] Speaker 03:
He said he wasn't doing that.

[00:21:55] Speaker 03:
He wasn't making that requirement.

[00:21:57] Speaker 03:
But the question is, functionally, was he basically, in practice, creating such a requirement?

[00:22:05] Speaker 03:
I mean, it's unclear to me what else the chief special master would have needed to have satisfied him

[00:22:17] Speaker 03:
that there was this causal connection in the absence of confirmatory medical literature.

[00:22:25] Speaker 03:
Can you identify what is that something else that would have satisfied the Chief Special Master?

[00:22:31] Speaker 04:
Yes, Your Honor.

[00:22:32] Speaker 04:
The evidence, the medical literature submitted, it's not that he was requiring medical literature per se, which would be in violation of health.

[00:22:39] Speaker 04:
And I agree with what one of the readings that Judge Dyke might have given that the absence of evidence within, absence of the connection within the evidence that was submitted was probative.

[00:22:50] Speaker 04:
In fact, it made it unreliable, unpersuasive.

[00:22:53] Speaker 04:
It wasn't, the petitioner's theory wasn't supported by recognition.

[00:22:56] Speaker 03:
I understand that, but do you understand the mystery I have in reading

[00:22:59] Speaker 03:
his opinion, I'm trying to figure out what else would have satisfied the special master.

[00:23:08] Speaker 03:
Or, you know, confirmatory medical literature.

[00:23:12] Speaker 03:
Right, well, to be clear, we don't agree that he required the... I understand that, but then what is it?

[00:23:17] Speaker 03:
What is it that would have been good enough?

[00:23:19] Speaker 04:
Well, if you look at the various other components of Petitioner's theory, which this clause in

[00:23:26] Speaker 04:
The decision at Appendix 36 doesn't speak to this.

[00:23:29] Speaker 04:
It speaks to one of the three prongs essentially that was underlying Petitioner's Theory of the target of the autoimmune attack in GBS.

[00:23:37] Speaker 04:
So that ignores the first component of

[00:23:42] Speaker 04:
what component of the vaccine is supposed to trigger the supposed auto antibodies.

[00:23:47] Speaker 04:
And there was separate literature and separate opinion presented on that, which he found didn't support Dr. Steinman's theory and in fact undermined it in several instances.

[00:23:57] Speaker 04:
He found respondents expert Dr. Witten persuasively rebutted those points on all the three or more prongs of the theory.

[00:24:06] Speaker 04:
So it wasn't, I mean, if you look at the absence of

[00:24:12] Speaker 04:
support in the medical literature that Petitioner provided showing that that component of the nerve, the peripheral nerve, is attacked.

[00:24:22] Speaker 04:
Yes.

[00:24:23] Speaker 04:
I mean, he said the articles you submitted don't say that.

[00:24:27] Speaker 04:
And in fact, there's a breadth of literature in GBS that associates the target as gangliosides, right?

[00:24:34] Speaker 04:
Not the target that was alleged here.

[00:24:37] Speaker 04:
I'm sorry, am I, someone answering your question?

[00:24:40] Speaker 01:
I think what Judge Chen is saying is if a special master gives lip service to the Elton requirement, but in reality is requiring medical literature, that would seem to be a problem, right?

[00:24:55] Speaker 04:
I'm not sure, I don't understand how he's giving lip service to Elton?

[00:24:59] Speaker 01:
Well, he's saying, recognizing the appropriate standard, but in effect,

[00:25:05] Speaker 01:
requiring medical literature because that's the only thing that can satisfy.

[00:25:10] Speaker 04:
I respectfully disagree.

[00:25:13] Speaker 04:
He's looking at the literature and the evidence that's submitted and he's weighing it.

[00:25:17] Speaker 03:
But just accept Judge Dyke's premise for a second.

[00:25:20] Speaker 03:
Okay.

[00:25:20] Speaker 03:
If a special master were to approach the issue in that manner, you would agree that would be a problem, right?

[00:25:29] Speaker 04:
If any special master required scientific medical literature,

[00:25:33] Speaker 04:
That is in violation of alpha.

[00:25:36] Speaker 03:
Even though the special master announced that that's not what he was doing, but if you read the special master's analysis, you could see in effect that is in fact what the special master was requiring.

[00:25:50] Speaker 03:
You would agree that would be a legal defect in the decision, right?

[00:25:55] Speaker 04:
Yes, Your Honor, but I don't obviously accept that that's what happened here, of course.

[00:26:04] Speaker 04:
Okay.

[00:26:04] Speaker 04:
Thank you, Your Honor.

[00:26:05] Speaker 04:
We ask that this court affirm the decision's flow.

[00:26:08] Speaker 01:
Okay.

[00:26:09] Speaker 01:
Thank you.

[00:26:10] Speaker 01:
Mr. Webb, you have two minutes.

[00:26:13] Speaker 01:
Two minutes.

[00:26:14] Speaker 02:
Did I use all my time last?

[00:26:16] Speaker 01:
No, I gave you two minutes for a rebuttal.

[00:26:18] Speaker 02:
Well, thank you so much.

[00:26:21] Speaker 02:
Next time I'll figure out better where to locate the captioning device.

[00:26:25] Speaker 01:
It's hard with the court asking questions.

[00:26:27] Speaker 01:
We tend to eat up all your time.

[00:26:30] Speaker 02:
I think I'd like to answer the question that you started with, Mr. Sacks.

[00:26:35] Speaker 02:
The inconsistency is absolutely there.

[00:26:38] Speaker 02:
And the Prevnar GBS cases has never been more obvious.

[00:26:43] Speaker 02:
If you draw the right special master, you will win.

[00:26:46] Speaker 02:
And if you draw the wrong special master, you will lose.

[00:26:50] Speaker 02:
And I believe that the reason why you will lose with those special masters is because they require objective confirmation.

[00:26:57] Speaker 02:
They require higher standards.

[00:26:59] Speaker 02:
They expect to see the kind of evidence that proves that flu vaccine causes GBS

[00:27:05] Speaker 02:
in order to win a case involving a far less common and less studied issue.

[00:27:13] Speaker 02:
So the only way to assure, to increase the likelihood of some degree of consistency is to set objective criteria for what a special master can and cannot require.

[00:27:28] Speaker 02:
To specify, in this case, that he can't require objective confirmation.

[00:27:33] Speaker 02:
And that's the reason why we lost, it's the reason why other people are losing with Special Master, Chief Special Master Gorkowicz, and with one other Special Master, maybe two, I don't know.

[00:27:42] Speaker 02:
Most of the Special Masters have found that the theory we relied upon is sufficient.

[00:27:49] Speaker 02:
And going back to what I was trying to argue before, in civil litigation, you assure that you have a neutral fact-finder at the beginning of the case by either a jury,

[00:28:04] Speaker 02:
of people who have never been exposed to a question, like whether they're vaccine-caused in the industry, or a judge, this is the first time he's looked at the question, if it's not a jury.

[00:28:16] Speaker 02:
In a program like this, where you have special masters that have spent a decade or more hearing these cases, it's very hard to assure that they haven't developed a bias.

[00:28:28] Speaker 02:
So you enter a court if they've already decided two or three cases of the same sort.

[00:28:33] Speaker 03:
It is a fact-bound issue in the end, is it not?

[00:28:36] Speaker 03:
I mean, isn't it possible for two reasonable people to examine a very fact-bound scientific medical theory and come to opposite conclusions where one reasonable fact-finder concludes that the proposed theory is too speculative, whereas the other reasonable fact-finder concludes the theory is strong enough

[00:28:58] Speaker 02:
Certainly, that's entirely possible.

[00:29:01] Speaker 02:
The question is, when you look at the analysis, whether the analysis was flawed by one or the other, that they required too little or too much evidence.

[00:29:12] Speaker 02:
And that's why this isn't about fact finding.

[00:29:15] Speaker 02:
It's about what the standard was required of them.

[00:29:19] Speaker 02:
How high we had to jump?

[00:29:21] Speaker 02:
How high was the hurdle?

[00:29:23] Speaker 02:
And the hurdle here was higher in proponents of the evidence.

[00:29:27] Speaker 02:
And that's clearly explained in the often case.

[00:29:30] Speaker 02:
Thank you very much.

[00:29:31] Speaker 01:
Well, I have one more question.

[00:29:32] Speaker 01:
OK.

[00:29:33] Speaker 01:
In district court, where you have similar cases, for example, if you had a fire that was alleged to have killed people, if the victims of states sue in district court, there's a related case rule.

[00:29:53] Speaker 01:
All the cases involving that fire would go to a single judge.

[00:29:56] Speaker 01:
Is there a related case rule with the special masters or do they not follow that practice?

[00:30:06] Speaker 02:
I'm not sure I understood that question.

[00:30:08] Speaker 02:
Try again please.

[00:30:09] Speaker 01:
Is there a related case rule with the special masters so that related cases are given to the same special master?

[00:30:20] Speaker 02:
There is no such rule in practice that has been done.

[00:30:26] Speaker 02:
Prior cases in the program were gathered together and tried in together or the same special masters here in the same cases.

[00:30:36] Speaker 02:
But that has not been followed of late.

[00:30:40] Speaker 02:
And why?

[00:30:41] Speaker 02:
Do you know why?

[00:30:42] Speaker 02:
There's not a specific rule.

[00:30:44] Speaker 02:
The why in this case is because I don't know why, I guess.

[00:30:50] Speaker 02:
I have no idea.

[00:30:52] Speaker 02:
Other than that the special masters are overwhelmed

[00:30:58] Speaker 02:
And they didn't see this one coming.

[00:31:01] Speaker 02:
They had what they call omnivorous proceeding with the autism cases because there were thousands of those.

[00:31:08] Speaker 02:
Before that, they had what a similar mini-omnivorous hearing in the context of hepatitis B vaccine and neurologic disorders like GBS and transverse myelitis and MS.

[00:31:21] Speaker 02:
And they tried three test cases before a single special master.

[00:31:27] Speaker 02:
She decided those cases, and then she came back and addressed similar issues that came up in other cases.

[00:31:34] Speaker 02:
So there was, that was the practice 10, 15 years ago.

[00:31:40] Speaker 02:
It hasn't been the practice since the omnibus autism cases.

[00:31:46] Speaker 02:
They did a similar process with arthritis after rubella vaccine, but it hasn't been done.

[00:31:54] Speaker 02:
This problem is actually aggravated by the case of different decisions from different special masters.

[00:32:02] Speaker 02:
In this case, the case was before a special master.

[00:32:06] Speaker 02:
They would likely have ruled for the petitioner that she was overwhelmed in cases.

[00:32:12] Speaker 02:
She was slow to decide cases.

[00:32:14] Speaker 02:
Chief Special Master Corcoran, in an effort to expedite the resolution of cases, a laudable goal, reassigned the case to himself.

[00:32:24] Speaker 02:
So I went from a special master who was likely to have ruled for me to a special master who was likely to rule against me.

[00:32:30] Speaker 02:
And I knew that before the case ever got presented to the chief special master.

[00:32:35] Speaker 02:
It's deeply concerning.

[00:32:36] Speaker 02:
I don't know that consistency is possible, but you shouldn't roll the dice and it shouldn't be the determinative factor in whether your client who has a significant disability is compensated or not.

[00:32:53] Speaker 02:
And I think it can be corrected by recognizing the standard that you set.

[00:33:01] Speaker 02:
And the decisions of this court, specifically Alton and Caposano, do in fact mean something about the level of proof requirement should not be elevated beyond the preponderance evidence.

[00:33:18] Speaker 02:
And we have to be careful about beyond that.

[00:33:21] Speaker 01:
OK.

[00:33:21] Speaker 01:
Thank you, Mr. Webb.

[00:33:22] Speaker 01:
Thank you all Council of Cases.