determination that m m r does not cause autism when in fact that was never even treated in the complaint there is no allegation here that the m m r vaccine that m cause autism and the court held that only an m m r theory of autism had been litigated and that was it was it was and subsequent court decisions have narrowed that down to basically only a claim for fraud she also moved on her section thirty one of the act against secretary of h h s and order the secretary to do it she never asked that the public health law be restrained in fact there are many other providers of m m r vaccine for example glaxo smith kline is secretary to revoke mercs license is that right that is correct and i thought the district court's response to that was that that's an authority that belongs to the f d a and that the courts would then review if you went to the f d a and asked them to provide that relief but that it's not available in a plenary action am i wrong but that's what the district court said section thirty one the secretary has its own statutory licensing and it secretary has constructive knowledge of the matter m m r vaccine being linked to was alleged in addition well that may or may not i'm just trying to focus on the issue is is this a matter that belongs to the f d a or does not and can you administrative complaints or challenges to the licensing and there have been several filed regarding the allegations of concealment and destruction of evidence in this case and nothing has happened vaccines and in specifically lists a licensing duty of the secretary to ensure saper vaccines for children and me the argument is that it's t t c f and secretary is dereliction of their duties never alleged fraud against the secretary of health and human services section thirty one provides a waiver of the munity for a general sacred back seems the secretary has an independent statutory duty to ensure her vaccines and the court held because we did not prove fraud with regard to r causing autism i couldn't show reliance and then without but we couldn't reach the secretary and that that is definitely not what happened this is an independent action so  and alleged destruction of evidence uncovered by c d c during the omnibus autism proceedings that evidence was submitted by the secretary of h h s into critical of the decision to describing it you know as streamlined dense determination at this stage where there is many unknowns of the science and you know it's easy to criticize the that it was the m m r n t c b s that caused autism the myth was never judge lynch it was abandoned before the o a p what happened to it in other words i thought the situation was that the steering committee snow m m r alone theory and this entire decision of the district court is predicated on of finding that my client alleged m m r caused her autism that is not what she alleged she autism study that there was evidence collected by c d c supporting the theory that m m r causes autism and that evidence according to the c d c whistleblower who was one  researchers in the study he said that the government c d c researchers met in a conference room and they destroyed that evidence sanitize the study results published them in a journal to congress spent cozy and gates statements and there's transcripts in evidence where he claims and you know he's alleging that the government knew about it where this gets to merck i think primarily is during the time c d c director who was overseeing this study and the whistleblower its work the whistleblower alleges that the director do you know about the destruction of evidence the sanitation sanitizing of that study report at eventually made its way into the o a p and she has a mandate there's no doubt about it all of those c d s sciences they all have immunity but is required to disclose whatever knowledge they have of evidence showing vaccine harm whether it was then in two thousand or later discovered and merck the knowledge of the handling vaccine related personal injury suits at the court of federal claims the always the petitioners all allege their absence autism had been caused by the saudis and or the m m r and selected six separate test cases among them baby don't own case to litigate causation series baby identify any such omission instead of such and thirty one dollars a claim and put is predicated on two m m r studies allegedly flawed by research misconduct these studies are notably not cited in the exhaust license revocation of the declaration not autism causation are simply improper remedies accordingly the dismissal play this claim against the government should be affirm aware there are three counts in the complaint i'd like to start with the rd count if i might and i'd like to start there because the relief being sought in that rd count is not only extraordinary but it would be extraordinarily catastrophic for public health were it to be granted the proposition being advanced by the plaintiff is that the m m r vaccine which is recommended by the c d c for r to children and has been recommended for many decades now and is a cornerstone of pediatric care in this country the proposition is simply pulled from the market merck is the only manufacturer that has a license for m m r in the united states it's a critically important and very safe vaccine judge poor asked whether there is any scientific support for the proceeding which cited some of the rulings from those decisions the decisions were lost and they all came to the same conclusion was that this was not a close call there is just no evidence to were not well done studies they played only a minuscule role or in the case of a baby does case no role whatsoever in the decisions that were rendered in the only paid there's no allegations in the complaint no theory being proposed no cause of action whether statutory or common law that would support a holding by a court that the and then more license should be revoked and the decision rendered by the district judge if there is going to be any discussion of revocation that's that's a discussion that has to be had with the f d a in the st instance was absolutely correct moving to count one which the district court construed as a claim for damages that too was properly dismissed the district court dismissed it on the grounds of failure to exhaust and that was a proper basis to dismiss even if the there were three different theories that were initially proposed in the omnibus autism proceeding one of them was that m m r can cause autism another was that and then mark in combination with i'm aerosol containing vaccines can cause autism and and the one thing aerosol containing back seems alone can cause autism the theory that m m r alone can cause autism was not litigated and the reason it was not that it did it as stated earlier leaving judgments questions the where she states explicitly that baby doe was not pursuing in m m r case we say there was a page eleven of her brief so the claim that m m r can cause cause baby does autism let me say that again the claim that m m r cause baby does autism that was not litigated in vaccine court that was not litigated by baby doe and it has not been exhausted in fact even a claim that  vaccines however there is no allegation that baby daughter received a dime aerosol containing vaccine made by merck i would also say the only fair read of the complaint is that the allegation in the complaint that that if the claim being made is that baby doe was injured by some aerosol containing vaccines then that would not be a claim that could be made against merck because there is no allegation that baby aerosol that's correct your honor and adversion of m m r is the only version available in the united states in fact i think all versions of them are have never contain timers although i'm not sure that that's correct dr there's just no allegation that they were made by merck and in fact in an earlier submission in this case plants went so far as to say that their understanding is that none of the  vaccines that plaintiff received were made by merck but the bottom line is there's certainly no allegation of one having received one that was made by merck and if i could also in that vein if i could pick up on judge walker's st event of the stance of the nefarious conduct was a meeting in june of two thousand and one st point out that that meeting which was a government sponsored meeting at which government researchers provided information to various people including merck and other other members of the government that was a meeting about safety associated with time aerosol containing vaccine and it was not a meeting about safety associated with m m r there are two back scenes that the plaintiff alleges were received subsequent to that meeting received the next month but those were the same aerosol containing back scenes therefore those were the vaccines that were not manufactur by merck so as a result there's really no way for plaintiff to get around the problem noted by the district court that the extensively wrongful acts which i'll just add we submit just don't make any sense of the allegation on in his series of vaccines that contain the marantz all it can cause isolated autism and there is an abundance of research that shows children particularly little boys get to a brain injuries in children and that evidence it was agreed to at the end of the meeting would not be disclosed and a month later my client received a t c b back seem didn't matter whether the marriage where the mercury came from the fact is it was given in combination with the merck the m m r vaccine and then i think what's being overlooked here which is extremely important is that two to two years later in absolutely it didn't matter where the members came from the allegation was that the m m r combined with the mercury caused the autism and my client absolutely got that vaccine a month after  mark became aware that the mercury combined with the mercury was causing brain injury during the a p what did merck have to do with baby doe receiving the st place it didn't really emerge knows about it is because the government told them at this meeting well that you don't that's an excellent point your honor because it seems to me that you know simply because the c d c researchers government things that it knows and finds out it seems odd to suggest that merck violated a duty to disclose to the government information that the government already had and that merck only knew because the under the secretary of h h s which is precisely my point their knowledge is imputed to this secretary which supports the allegation so then what did merck do wrong in failing to disclose to the government something that the government already knew where a cat an obligation to disclose in the packaging inserts and the warning label was under the vaccine act that the marriage ball had been linked to to pregnant women and it is still in the vaccines and it's mandated in new york state so the fact is that children receiving m m r we're still getting the matter so all and we know now with certain c knew and merck knew and they were both obligated to disclose and nobody has any even if c d c was derelict in its duty c d c as opposed to the secretary was derelict can cause autism it doesn't say that anywhere in fact the c d c website states that the that seems to not cause autism and that is a knowingly false statement because turning the o a p merest containing vaccines she's slipped into autism and then the government settled that case confidentially none of the other o a p petitioners learned about it so the government conclusion  court's conclusion that m m r is linked to autism as being merit list is completely unfounded because there's prima that should prove at least in one case that the government conceded