medical literature did not support issues claim his experts use were based on assumptions that were persuasively rebutted by the government's experts as well as the medical literature which there's three different problems developing yes which which seem you want to focus on as your strongest argument well let's start with prong one which is that there was no medical theory are you starting there because it's first or because you think it's your strongest argument well i think that they're all strong i think that in my view i think that's the strongest but i think that we can win on any and all of the three prong the special master out ok so if you're asking my opinion i think we should start or it was one of the also in one the medical they're right that's correct and the special master and what was this area that was proposed here the theory here was that the hepatitis b vaccine causes chronic receipt for cheek syndrome through a reaction which was called a cytokine cascade which in turn causes a series of events that result in chronic fatigue syndrome and what the special master found was he had knowledge that you don't necessarily need medical literature but he examined it anyway because it was offered by the british and the special master set i understand that there's a theory of how this title kind cascade causes chronic fatigue syndrome and you persuade to be asked to that the missing link the special master said if you haven't shown that the hepatitis b vaccine the particular vaccine in this case can cause that kind of reaction that might be at an explanation in theory but you haven't shown the vaccine causes that series of events and he said why why does that undermine the fear because you need to show that the vaccine at issue in the case was the cause in fact of the injury so having same evidence that went to prong one as to primes two and i think that sometimes that they do overlap but the theory here was that the government experts explained and the special master founded to be persuasive been part of the government evidence as i understand it was the reason they didn't think that it happened in this case that at the last hepatitis c that scene would have been would have had a less likely antigen effect illogical studies or you don't have to have actual stablished science that is that is broadly accepted you just have to have a theory that is that is that could that it could you have to have a theory that this particular hepatitis the could be in every case the intention be enough to cause the cascade of events but that it was possible with regard to this particular individual because he had some other with munitions that he was otherwise cut in a particular area is right a particular person that in my prep alexion was they singled him out as uniquely susceptible by virtue of another auto immune issues he had and why wouldn't that ha supports the government and the special master family concede and here you can say this is a one sided case he said there is evidence on petitioner side but i look at the totality of the evidence and i have to weigh it all and then with the court a federal and he made a finding that he thought the most persuasive evidence was the government had provided the theory that in this particular case the hepatitis b vaccine caused the injury the medical literature didn't support it and looking at the town of the evidence a special master came to  findings including the credibility of witnesses is arbitrary work appreciates and that this court has said that when the special master looked at the relevant record evidence and draws plausible and reasonable inferences from that find a little confusing your application of the arbitrary capricious standard in the briefs and i'm wondering if i'm misunderstanding it or if you mean to go quite as far as you do i might be over reading what you  front of a special master and they declined but the special master's credibility findings had nothing to do with demeanor like reading the character they were about the fact that her own testimony was internally inconsistent especially after you and contradicted by the paper record but not not testimony as to this particular timeframe because as to the fact that there was no dispute that the child actually did not go to school those two days right well no it would be well there's a couple of things one is that her own report to the doctor november he was there all during that time so her testimony was he just missed all of november and understand ok so the school records sensually disprove her testimony as to other days in november but actually corroborate her testimony two days immediately after the vaccine so what's the basis for rejecting her testimony under that theory because there is no evidence that he had onset of symptoms during that time she went to the doctor and reported to the doctor  after the fact d c ethic two weeks after the vaccine are you what or are you talking about the november roughly nineteen i might not be getting it right doctor's visit where she says he's had a fever for the last two days no i'm talking about the january of the following year th this was in january she was talking about the vaccine and she said he got sick two weeks after well but i mean you're a mother you're now you're in january two months later your child is missed a couple days a small you think ok the better you send them back and then you realize they're very sick and i need to take them back to the doctor so what she remembers is is you know as the point at thing is that time when she had to go back to the doctor two weeks later that doesn't that doesn't mean that it wasn't true that but he missed school for two days but even when she went to the doctor to example she said he's been sick for two to three days fever she didn't say since the day the vaccination open the whole day right we think about it she went to the doctor and she said he has had a fever for the last two to three days he did she didn't take him on day one the fever onset so suppose that right after the vaccine he had a two to three day fever which the record is consistent with the virtue of missing school and that is in fact her testimony well and that it abated she sent him back to school and it  arguments that if you were the special master might of persuaded you but the special master did what he was supposed to do you look at all the record evidence there's nothing implausible or irrational about the decisions that he made either on the mother's testimony or on the fact that the government medical legal concerns that case after case after case comes up from this special master and the special master tries to cap and all of its findings into credibility determination and now even with respect to people he didn't know your honor i think that's a part of it with the credibility of germination but they're not really and it was about medical theory and weighing the overall evidence and yet i was here with this special master and the same court of federal claims a little more than a year ago when patrick in which it was the same thing it was  and that's the clients the two men dr lewis and dr bill was the chairman of chronic fatigue syndrome for that offensive and yet but that testimony was predicated on the belief that prior to the date of that that forced vaccine the child was healthy and yet the entire year before he's gone through you know  and constant reports to the to the doctor even if months of school me how can we say that i mean obviously he's doing a differential diagnosis and he said well he's completely healthy before now we had the vaccine and now he's sick so therefore and i think  got you know chronic fatigue so therefore it must have been caused by that i mean he and he believes that there is a theory that allows it but how do we say that that is something that that it's reliable or that at least the special master was allowed to discount it when it's predicated on false assumptions well in the first place your honor he did in his testimony is quite late because it appeared twice and he went to explain this is a child  use the word weakened immune system had problems that are obvious in the record and historically fizzes father has new patients but from july he was preparing for i tap dance recital of some sort that he was going to go to yes he did have problems in milan with the us the year before but he was better examining the child interviewing the parents and as he testified you know i've been doing clinical work for a long time he didn't say i'm an expert in chronic fatigue syndrome but i am as occurs in two thousand and four the event occurred in two thousand and one well after the fact that one of the things that bothered me the most about dr about test money is that she was very explicit that he said this child rarely ever got fevers and you go back through the medical history and also from the time he was a baby from the time he was about a year and a half old it's a constant report a fever story out the course of his entire medical history actually five doctors who contributed their offense to all of the doctors got it wrong they wouldn't make a diagnosis chronic fatigue syndrome even though they claimed that they had dealt with many many park there was it's in the doctor it was after the hearing dr parker he was taken to dr parker who said this child from the psychological point of view is fine but the was examining the child i was tapping he said this is part of my diagnosis because a person with chronic fatigue syndrome has trouble answering the questions when i'm having my pencil because chronic fatigue syndrome means that you can't multitask you focus on one thing and when he was tapping the pencil it interrupted his the child's ability to answer the question he testified to that in that first hearing i remember it so clearly because i was amazed at here it's a symptom i know that i was well but he made a diagnosis he said if you have all these various events that occur and you end up with a child dr lang why was it an error for the special master to reject the idea that your client had proven that there was a notation in the diary he said i reject the mother's testimony he didn't see her but he said in reading the records of what i rejected testimony but the diary was written indicate a child was not in schools with the first two days after the fourth election age right yes s then what the special master those is but other things on the table because just had up all the facts to see which way the scale tips and the special masters discounting the testimony of of your of the mother the pointing out that the mother took the child to hospital or to and lots of places and it was also inconsistent with the mother's testimony to about the severity of the fever and when the fever on that and when he first got sick the diary was accurate lots of places a diary that he was out of school for the entire month of december report and he filed it years after the episode right around the time that the petition is filed so how is that a meaningful report by a tree physician when it's actually the family that is that it urging whatever why did they file it years later when you're in the midst of litigation rather than and when the events occur what i can i cannot answer why he did that i only know that dr finck and you know in the course of this of the eleven years of this litigation has always been very straightforward honest he calls it the way he sees it as a doctor and he's treating a patient but question that was before the onset well that's why the difficulty i'm having which is somewhere that judge amount we started with accepting doctor bills testimony in the event that it was predicated on and then accurate understanding namely finke report on page two o seven indicate to covering and then she took him again to the doctor multiple times as late as july second complaining saying he is to take the ghena time t has to be carried and there is no evidence the mother nucleosynthesis was continuing this is months later and yet in fact there's one point in may where he says it's possible the child has strep because that was another pretty complaint by different question from whether there may exist substantial evidence in the record for him to have rejected dr bell's opinion as a sudden inaccurate fact well you have dr beller you also have d opinion do we know why those of bill seems to have misunderstood the rules medical history i can answer you could not and there's none of the races we know for example whether and dr alessi and dr finck appeared in person in norfolk in zero seven then ten by telephone here in washington that his hearing was here reviewing the case in mine and hazlehurst and many other cases you've called the standard uniquely deferential to the special master the most deferential possible and extremely difficult to show reversible error let me just ask you a question because all of the inconsistency that he found and how the record contradicted the testimony have nothing to do with her medical training the basis for finding her not credible had nothing to do with that if anything you would think that a consistent depiction of the symptoms would be more readily found in someone with medical training and without so that anything i think it cuts against the petitioner not in their favor but certainly the court of federal claims never explained why the fact of her medical training would make the the findings arbitrary people with medical training can be credible or not credible too just like anyone else can just like a layman but you have to show that your account is credible to the fact finder the fact finder here did not find that to be credible neither did the special master found the medical evidence to be of additional favor he found it in the government's favor and you can certainly marshal evidence that supports a petitioner and the said as much but is as judge moore said whether you would have come to the same conclusion on this evidence de novo is not the question what that's a big issue here for you so appeal very much a civil tell it you who didn't what's the big issue are you i don't worry about the cannot can i answer ok i think that there are a couple of things number one is it does appear to to to me and to us as a department that there's a fundamental misunderstanding of as a matter of law what the correct standard should be and just to give you a couple of answers from an application she didn't parrot the wrong standard anywhere so you mean the application and the fact that she reversed citing all these sexual things that she was just reaching a different factual finding on evidence is that even if she parroted the correct standard she didn't apply it correctly but there's a couple of there are things i think that are particularly salient in this case for example there was criticism by the court of federal claims of the special master for engaging in entire record and independent fact finding which of course is the role of the special master and not the role of the court or federal claims the court a federal claim said things like i don't need to show evidence of timeframes you don't need reliable medical evidence just to correct you on one little point that's not really relevant to your case but i just can't help myself sure the standard of review section says if the court a federal claims rejects a special masters findings it should issue we don't finding the facts and conclusions of all so when you say that's the statute i realize that's a really bizarre section but when you say she has no right to find findings of fact actually i think that's my standard of review says if she's rejecting the special masters fact finding she has a right to then issue