may please the court and evaluating these vaccine cases i think it's important to look at the congressional intent and the cases that are predicted the meaning of what the vaccine act is for and how it is to be decide d the words that are used or awards or be made quickly easily was certainty and generosity a fair simple and easy way to administer and preponderance of the evidence is defined as fifty percent in a feather case the special master specifically forgot the imperfect paid off that is the purpose of the vaccines acts preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of h he did not establish crank that teac syndrome c f s that question of fact right now that is not a question of fact when you elevate the burden of what you elevate the burden and make it impossible to find that then it's not a question of fact it's a question vaccines in the and the this is maladies that come before this court then you can prove your case that's not what often held that is turning it upside down on its head moreover that particular or theory of of burden of proof actually contradicts with the statute in particular section three double a thirteen so paragraph small hail to capital it pushed pacifically and now this part of the zatanna which the court recognized that in the absence of the record prove the role of circumstantial evidence and program value of statements of treating physicians containing medical records is is streaming important and moreover special bester record specific propriety of the connection between chronic fatigue fatigue syndrome and a vaccination it's that the special master found based upon a lot of as a that it's that he didn't suffer from chronic fatigue syndrome at all remarks by saying i hope i don't ruin this case for you and talks about a couple other facts i think that was the beginning of his chronic fatigue syndrome and i'll be it he says it was secondary to the pressure but i can argue that one separately these even and i accept ninety nine percent of what i find arbitrary capricious in this regard is that he ignored his own findings of fact or fail to apply those findings of facts to the law he found that mr dean giulini suffered no physical illness before the vaccines he found that he had no fatigue or chronic b t before the vaccines a month and a half before he had his first vaccine he was given a pre employment exam clear to him to work he held two jobs he had normal blood test everything that the special master found would clearly indicate when you go towards a shoot or what he had that he was functionally functioning perfectly well and he was functioning in two jobs then we can look at the often criteria a reliable theory causally directing the vaccine to the injury by definition  i can prove compare that with the hoarding of andrew which show that the first chronic problem can be satisfied when medical theories propounded by medical experts with highly relevant academic credentials in specific field expertise such as those presented by d again the case of andrew moore berkeley guy is that the treating physicians are in the best position to determine whether a logical sequence of cause and effect shows vaccines the reason for the injury five treating dying doctors diagnosed thi propped proximate temporal relationship between the vaccine and see if that's the case was also whole that one evidence of one prong can be used to satisfy another prop in this case we have three vaccines and we have five doctors saying you see it as was caused by the vaccine i think from a logical viewpoint if you find expects symptoms its not diagnosis its symptoms to develop within weeks to months of the vaccine last year the case of pollock versus h h s also found that that particular timeframe was acceptable talking about vaccines and their ill effects remember c f s is a diagnosis of exclusion you have to have six months of it before you can get to the diagnosis and you have to eliminate other  if you do go and see his colleagues at the c d c came up with for this particular condition it is the condition that petitioner is alleging that on he has so this is the criteria he said syndrome after chronic fatigue and i think it was secondary to his depression primarily chronic fatigue syndrome is a diagnosis of exclusion and chronic fatigue is certainly a symptom happen syndrome and fibromyalgia are all included in sun in sort of a venn diagram relationship where they overlap some people only have one some people have two or three of those and what the clinicians try to do is to find the disease and treat it and get rid of the fatigue and she goes on and that is why the special master gave so much weight to one of the treating physicians dr norman she actually looked at the chronic fatigue syndrome criteria and concluded that he does not have chronic fatigue syndrome again there is no doubt that there are certain places in the record where a diagnosis of chronic fatigue syndrome is present but there was no basis given for why it was that these doctors came to this conclusion there is no evidence they held it up against the criteria and during the testimony dr v z who is one of the people who said he had chronic fatigue syndrome it made it that his sole reason for saying that he ha member in hindsight i agree with you your honor we have four days of very long testimony and i'm sure it's looking that we there are questions we wish we had asked but i believe that the evidence in this case is substantial deference by this court's precedent i think in one hundred six page decision it would be hard to find that he did not fully evaluate all of the evidence he weighed the evidence but he didn't mention this  of two i agree i will say that in over fifteen hundred pages of transcript the first time this paragraph is pointed out without this court's on during briefing it was not pointed out during post hearing briefing or jury briefing for the court of federal so i i don't know i don't know why it was not picked out earlier but it wasn't and i believe it's judge wallach said it was taken out of context if there are no further you i would disagree about taking this out of context again and i hate i don't want to be a dead horse but when an expert says in response to is it true that you didn't point this out to the special master in the brief that is one not finding c f s the lower court has scored a special master all the going back to essentially his finding that if there's then you've done you've presented i don't burn towards but when you ask somebody this is what bothers me about this in addition to his later testimony or actually earlier to us but when you ask someone to assume that the patient has something and he says well ok has it you've just asked him to assume it and i just i think it's out of context when you when you argue that way the the only thing i can respond to that is you're dealing with an expert who's testified quite a bit in this court and when he responds with a prefatory comment that i hope i don't ruin this case for you well everyone's ears start picking up he's not talking about running my case for  for the government well yes because it was a direct exam this is that this wasn't me asking who was directing sam so if the case he was ruining arguably was the government's case and then he starts talking about chronic fatigue syndrome it has to start at some point in time you're not born with it i believe this was clearly starting in him with the stories in our storage of sleep even in spite of sleeping for ten hours he was not rested he had suicidal ideation before the vaccines ever come came along i think that was the beginning of his chronic fatigue syndrome and i think it was second terry's to his depression i mean that's a direct answer that's not in  but i tell you what your problem with this i mean even if you interpret this testimony the way you do first of all is not an expert in chronic fatigue syndrome and second of all there's other evidence that comes the other way and that's what fact finders are supposed to do is to weigh the evidence and the special master found against you and it looks as though there's substantial evidence plenty of evidence to support his family wasn't suffering from chronic fatigue syndrome even if you accept the characterization of why put was one portion of this i still go back to the special masters in essence beginning in end of the scotian because he say there's no idiology to cry the teeth syndrome you've basically elevated my