problems they were psychosomatic whatever the problems were with doctor asterix credentials he was a board certified psychiatrist he ruled out the motional call it as he wrote out psychosomatic c so if it's if it's not emotional then the only explanation under any any kind of fear in a kind of differential diagnosis that it was caused by the vaccines what the law on that and your brief you suggest that it was kind of up to the government to necessarily prove up an alternative explanation and that was their burden that they feel to meet is that really what the law inquired i don't think we argued that it was their burden to come up with an alternative explanation i think what is those we lacking in the government's conduct throughout the entire litigation is they have no expert they have no medical that they didn't do and i admit they have no expert who they don't provide any kind of medical articles so the only thing we're relying on here is the medical report of the physicians who solve this terrorizer from the moment he got the vaccine until the till he still treating today they injury which was exactly what but the special master and the court below seem to require from me they wanted me to explain to them how could the that teams do what we say it i don't know how i don't know how point of the three factors that are required for me to prove and you're also supposed to give the benefit of that to the petitioner who has suffered some some injury as a result of this so if i can let's focus on the first thirty to sixty days after the vaccines first of all prior to that he is a professor with high levels intelligence eyelevel cognitive skills he's got no significant medical history that would explain what happens after the vaccine the course the government and the in the court close as well he had a period of psychiatrist for depression when his brother died of cancer he went to a psychiatrist twice and that was it there's nothing in the medical records to suggest that he was anything other than a healthy person before you when you got these two backseats who goes and gets the two vaccines and has the media reaction to th to the extent that the doctor says i'm going to refer you to a infectious disease specialist and to a neurologist so he goes to both of these doctors and  both conclude that he had an auto immune reaction to the vaccine do they say it was advertised as being as opposed to hepatitis a actually the neurologist says it was hepatitis a but how can determine which vaccine it was the core plough tries to continually say gee it's only hepatitis b that has the thimerosal and we've got this heavy metal toxicity and we keep talking about the components there's no evidence so we had this board certified psych archer's and he says if i can read from is the pain it was a three twenty the excess in my opinion the fisher's experience dramatic injury to the brain caused by subtle injuries to the various parts of the brain to the mechanism of demodulation medical history clearly establishes a systems occurred after he received hepatitis a containing aluminum and hepatitis b vaccines  facts are evaluated based on a deferential standard what precisely is your argument with respect to the appeal what do you to challenge in you challenging the legal standard that was applied and it was the incorrect legal standard are you challenging the weight of  the last fairly clear in this in the last fairly clear in this in this area you know we there are three factors you've got to prove basically general causation causation of fact and was there is or temporal proximity over a period of years and months exacerbated to the point where he is completely disabled no longer a professor living at home with his mother now what caused that is there to that we you know this isn't the case with you know we're presented paid experts who try to come up with something or these are doctors who meet doctor her eyes rest arise or and try to treat him they're not there to try to figure out the scientific mechanism or where there was a those what is his problem and can he be treated and so in the course of that you know the corporal of picked and chose portions of the various medical records to conclude that each medical record taken alone didn't prove what we had the proven to be offered factors that's just to me intellectually dishonest you take all of the medical records together and what do they what do they say all the doctors who are struggling to find out what happened to this guy conclude it was the vaccine that's what conclude there is no logical damage to conclude it's not emotional or psychosomatic three to occur surely after he had the vaccines for what evidence is there on the other side that were wrong there is no evidence they presented nothing at all there's a quote from the opinion and you'll tell they're there their purpose wasn't to come up with the reason in their report so they say it could be this it could be that so mum you were use words like she is very rare to have this kind of reaction whatever that's the purpose of the vaccine for isn't it that adverse reactions even anomalous reactions has one person has a reaction to a vaccine that thousands and thousands of people don't have so what so why was the whole vaccine court set up because this public policy that in this country to allow all the people who are going to be helped to occur so they have the vaccines know it though not know why or how knowing that some people have anomalous adverse reactions to those and therefore deserve to be compensated you recognise this is a fact finding more core you have to get substantial evidence deference to it so you're saying that the record does not contain substantial evidence that many of the treating physicians attributed his condition to condoms and related to the vaccine i'm saying that that statement is taken in the context of your read all the medical records so you want to pick and choose all of the comments in the medical records you can find i mean if if if everybody if or sponsor titian or the master the court below and each of your honor's makes this decision based on the entire medical records of the picture and nothing else because there's nothing from the respondent there's no expert report there's no articles there's nothing else all there are is is each of the positions that mr arise saw over the course of this terrible symptomatic period and what of those records were flying i don't see how you can read those records and how the  district court and then hepatitis a comes on the left and so we the district judge says go back to the vaccine court and litigate hepatitis a now now that it's on the  solve the problem on the table i mean your guess is as good as mine judgment i mean i think i think it is now it's on the list and now now the master says don't don't talk about hepatitis b don't mention hepatitis b you can only imagine have the time to say and then and then the corporal or says there's nothing there's no there's nothing in the record to try to suggest that it was hepatitis a hepatitis a alone that caused the symptoms well that's right because none of the physicians had either the means or the reason to focus on one vaccine or the other and in fact they often thought it was the vaccines together and the in the the one doctor that we had right supplemental reports summarizing all the medical records in the past and coming up with a conclusion said it was a combination of the to vaccines which when the reaction is media only after the administration a vaccine is in no burden on the government to come forward with contrary evidence your honor the burden shifts at the point that the petitioner establishe you're correct but in this case the such a master found as a matter of fact that the evidence submitted by petitioner simply didn't establish upon the facia case therefore the government was never under any burden to prove an alternate cause there there was  logical sequence of cause and effect and a medically appropriate temporal correlations of that was the analysis that the special master went through at the conclusion of his decision and he simply found that the evidence and the medical records in the opinion letters from dr aster didn't satisfy those three elements that this court has set in and often in later cases is what is what constitutes a privacy issue case for the petition we wouldn't say though that you only count the evidence on one side these are questions in there are a couple of points that i want to raise in response to that question first of all as this court has said and often and leader in moberly a temporal association and the elimination of other causes those two factors alone are and sufficient to meet petitioners this case presented a case study on why one should carefully evaluate treating physician statements prior to leaping to the conclusion that those statements are proven of evidence of causation that the special master did a thorough job nine pages of single spacing in his decision analyzing each of the records the petitioner relied upon that he submitted supported his claim and the special master that explain that each of those notations why when placed in the broader context of either that physicians record or the medical records as a whole provides the special master with considerable discretion in determining what constitutes the record the record in this case consisted of petitioners medical records of which there were numerous and then the the opinions that he submitted from a doctor a temporal if temporal relationship between the onset of symptoms of vaccinations is itself and sufficient to establish petitioners legal for they have to say they have to meet often factors of providing a method of reliable medical theory a stablish in a logical sequence of cause and effect and then establishing a medically appropriate temporarily show such a master found as a matter or matter of fact that while there was a literal temporal association between the onset of symptoms and the vaccination that under this court's holding  it couldn't be proved and therefore it was proven is you who actually are honest the vaccine table does set forth specific time frames for sometimes following a vaccination because there is because there is some knowledge for those vaccines and for those condemned those injuries about when you would expect when a medically appropriate time frame would be and causation in fact he says you're correct there is no table time frame there is no put your time frame on it within there's a  and and those are stablished based on some medical knowledge of when the injury might be expected to occur following a particular vaccination and a causation and back case like this one where there is no  presumed timeframe it's petitioner's burden to offer evidence to show to show what the medically appropriate timeframe would be for the injury and for the vaccination and ask you for some clarification this is just and that the alternate all the causation and prove arises in connection with the non fatal injuries so here you had hepatitis a put on the table so why does all this causation stuff matter you meet the criteria but if it's already it's a table injury because there are no table injuries for the hepatitis a vaccine that the table has to both identify both the vaccine and then a specific injury and only if just keep just the fact that it was put on the table i mean that caused me some confusion here in terms of the big deal was it got placed on the table but you're saying based on the table you couldn't even bring students right that adding it to the table made of the covered vaccine under the vaccine them close to my injury and i just don't like the idea of asking the petitioner to have to figure out which one of the two concretely or to exclude them from arguing the combination for example i understand that that that there is that is a sympathetic argument that mr riser is making but the facts are that he filed a petition relating to the hepatitis b that he chose to withdraw that position under the provision of the vaccine that states that if of special master has not issued a decision within two hundred forty days the the petitioner can withdraw the petition and then file a civil action against the fact that to manufacture and support mr riser availed himself of his rights under the statute to do that the congress did not envision a situation where a petitioner would withdraw petition filed suit against a civil action and then get to come back to the vaccine program to get a resolution  first two thousand and four which we cited in our briefing of the sixty nine federal register six six six nine nine four five dash two makes it clear that as of october twenty second two thousand and four which was nine days before mr riser withdrew his position all of the there reading the federal register on a daily basis to see if possibly you might had had a some point with future or worse yet like you're alleging give him an indication that it's been approved and is going to possibly be added i mean that this doesn't seem like a reasonable thing  suggest that he should be doing i i can only say that this is the information that was publicly available at the time was it on the table at the time no it was it wasn't added to the table until december first two thousand and four which was the date as a and b to feel right now that i don't believe that argument is laced how do you respond to that does your case hinges on his inability to argue anything absolutely not your honor we don't believe that the evidence is sufficient to establish that the vaccine caused the symptoms and for the same reason the way we are finding by the court of claims for us by the special master in that regard for us you know there is not because the special master found that mr riser had waived the right to argue that habitat is the vaccine and he simply disregard that evidence but in his analysis of the medical records the physicians statements that he examined and finds that are not persuasive and not don't rise to the level for ponderous they themselves don't most of them don't people who are offering opinions outside of their their area of expertise those same problems are present whether you're talking about they have tried as a backup or they have tried to see that so you think that the physicians statements should be disregarded or medical degree and when you're talking about identifying causation when you're talking about establishing medical theories that show why neurologically a vaccine can cause a particular injury neuropsychologists is not always going to and i don't understand your argument judge first is that seeing if you preserves the argument for appeal meaning did you raise the pillow improperly object and or appeal at the time frame that you needed the yes we as opposed to say they all said the vaccinations the vaccines a and b in combination and in the law in this area it doesn't say you've got to prove it's only the vaccine that causes that it says it's got to be a substantial factor so just like the vaccine then something else out there causes the injury you're covered if the vaccine and a and vaccine b which is out there cause injury then you're evidence you would agree with your friend on the other side right the evidence with respect to a b or a combination of a or b is the set i mean there's no reason for us to suggest based on analysis by the vaccine but i don't want i don't want to talk about the whole case i want to talk about the question of whether or not that would have been a different if he had a lot of consideration with respect to what you're expert that is there a difference between considering  considering a combination and i think if the master had said i'm going to consider the the opinions of the physicians with respect to be in making my decision i think you would i don't see how we could not have made the decision that it was a b then you have to consider b b s that to be is that is in the universe of stuff outside of of of hepatitis a vaccine if anything if a is a substantial really only needs a yes or no if i was under the assumption that that be that if if any court could say it was below that that the that the courts would say you know what because of th