ok final taste for argument this morning it's eighteen to we thirty three both men versus h h concluded that that petitioners failed to satisfy often prong one so that necessarily they failed on on two if we were reversed on prong one do we have to consider are has those additional risk factors there are male there are african american their current is a small i mean there's a whole list then that the special masters analysis was  address such as race african american he was often in african american baby but in the literature that is typically associated with sids due to either poor so's you know a status report healthcare which theory in the medical literature or elsewhere there is a and the petition is filed several medical medical articles explaining how sid's infants with mild or trivial infection it's not in the literature it's an infection or inflammatory process so doesn't necessarily have to be a triple a trivial infection it can be some sort of trivial inflammatory insult such as a bat seen and that's explicit in the literature and these articles do describe and and on a result cetacean so in the literature there is more support in the literature for mild infection of trivial infection or an inflammatory insult as a neurochemical risk factor versus mechanical respecter and the that mild infection or inflammatory insults act as a neurochemical risk factor versus mccain it seems to me that that what the weight of evidence pointed to other than and a specific result in this case was potentially an argument that when all these other factors were were present vaccines might need to be given in a later date months by really from two to six months in a much better in two to four months ahead this is a kind of i guess important i think i mean the charge here is there's no differentiation this infant five or seven shots i couldn't keep track but all of the shops the entire regiment at one time and you're suggesting that the medical evidence is such that parents should with whole the shots any of those shots from an indeterminate amount of time beyond six months for every male at least and every american male i'm not sure where you're we think the method the medical not we're we're we're we're trying to show in this case if you want one insult among many potential fatality and potentially can i ask about the sprain stem abnormality because that's considered a risk factor but in this case it's kind of a circular thing to me because there was an autopsy done but this particular and that was not tested so we don't know except we assume so the question answers itself because the child succumbed to said then we assume that that child had brain stem abnormality is that the way the site where the science takes us evidence in this case that the special master looked at yes he did look at the statistical data in the medical literature that fifty to ninety percent of sids infants have been found in the research to have an inherent evan malady it's not specialized techniques that dr kenny and her colleagues use in the seeds research in in the great percentage of those cases functional abnormalities of the brain so have been found as well so we looked at th show any structural of the melodies and in this case and like a lot of cases the brain stem isn't even syrup in a sample let alone cereals seriously so you know that in addition to that a lot of times even with  appropriate sampling the structure of a structural beat that is not going to be evident it's going to be of a functional abnormality which really practically speaking is only done in the research where they have the funding for those kind of  we see we will soon other cases in which the reasons for an adverse infant reaction to a vaccine are getting to be better understood than they had been over over history and that it's been known statistically over the decades that a very small percentage i think one half of one percent of inference will experience a and that the purpose of the statute was to accommodate that unknown or that propensity or that risk so that the national policy of for the greater good the greater public benefit without the r variously affected and what we see here and i was seen recently elsewhere is as the reason is going to be looking at these cases results directly contrary to the legislative purpose of the statute in the st place is this something on which that the the government or h h s or whoever it is that's fine you've answered my question on page fifty two of the joint appendix yes you're on the court of federal claims concluded that the special masters part are from the conclusions of four other special masters could only be explained by improper action of the standard of proof required in fact same case and you make similar arguments on pages eighteen dollars to twenty three dollars of the read rate what legal authority do you have holding that the decisions of those other special masters are finding in any way they are not your honor their persuasive there's a failure to acknowledge or distinguish non binding precedent render a decision arbitrary capricious by itself your honor no are you suggesting that the should be considered under go bare yes your honor they tell me why because i don't bear looks at whether at their yes acceptance in the scientific community and it does not have to be complete does not have to be  not scientific analysis of the sort that befalls with an adult there are no rules no but he's looking at how the expert is characterizing it and so the expert is talking about the literature and the special  able to say asked the expert in c the attorneys asked the expert has this been accepted anywhere else and then in this case their expert dr miller conceded that this theory that vaccines cause  has not been accepted it anywhere and in fact he said that he doesn't make it outside the vaccine program that's been rejected my i'm sorry that's still bare but what this special masters do is not  is because other special masters that found her to be credible is of the government's position that once an expert is found credible their conclusions must be accepted by the court regardless of the other evidence on the r in other cases you know your honor that is part of our argument on page twenty five of the joint appendix the special master notes that dr mccluskey has made misleading had made misleading statements on the findings fact were contrary to the interview that was conducted five days afterwards where there was an reenactment involving the police how does that impact your credibility argument  i am interrupting but i just want to follow up on this was the question right before the last that judge walt was asking about you conceded that the respondents expert so what's the differentiation between the impact of the  whether or not it's a mechanical thing or whether it's a neuro chemical the other side tells me that dr miller had plenty of scientific support for his theory and you acknowledge is that the appellant's do not have any support for the theory that cytokines act in the way that they say they act they do not cross the blood brain barrier all of the literature here talks about the expression of cyto kinds of their presence none of it talks about their effect there's a big difference on that now what's happens here is in the end if i may say in passing so we don't forget you're on a mccusker did not concede there was a brain stem defect here she was asked hypothetically if dr kenny's triple risk theory applied what would it look like she absolutely did not the special master got there wrong that's incredibly important because the case law notes and hanlon in this court make clear that you cannot child that has the brain stem defect the five h t it basically is the door is closed imagine it as a door and so the cytokines in the brain stem are knocking on the door and can't open it and so the cytokines the way it works is that they may be more or maybe more cytokines in that area but they don't actually have any effect on the child who is has the five h t defect the cytokines are basically there as the body's effort to solve this problem which they can not it is not an additional causation that come binds with the five h t and then kills this child i mean this this case is of monumental significance and i don't know what your doc it is but it's certainly the most important case that i have a one thousand cases in the torts branch in this is the most important case you know this is do vaccines cause since full stop full stop and the science is clear they do not they do not and thankfully the court of federal claims and hopefully the court of the federal circuit will reach the right decision before there is a national and worldwide panic experts at so tell me about that is what is the medical literature on it if i can go through that that the answer is as dr miller conceded there is no literature supporting his theory he said in the hearing i have connected the dots in a way that nobody else has and nobody's done it outside the vaccine program and so i can take you through every single one of his literature references and say why it doesn't apply this is a sense is an analysis of exclusion a myth we are looking at all of his literature none of it supports that cytokines act in the way he says they act sids and cause children to die and now i'm happy to walk through each one of the literature in each case study to get there and so that that's it i mean if you take what the special master did here and do not mistake length for rigor is what he did is he allowed dr miller to take a snippet from here snip it from there and then come up with what he caused called a plausible mechanism he called reasonable there is no federal circuit opinion where reasonable as the standard there is in fact in moberly this court rejected plausibility as the standard it's simply not reputable it's not sound science this expert came up with a connecting dots fieri that nobody else in the world has done it's not peer reviewed it is there is this junk science of the  that is incredibly dangerous but isn't it even worse john science to say because nobody knows why this infant nobody knew in advance of this infant was going to have an adverse reaction therefore the vaccine act provides no protection instant adverse reaction in this case death none the less there was no presumption no crime aphasia anything no movement about of the burdens the interact here yes we have seen some cases which say that you must you must prove if you are able to prove that there was a relationship in advance you test the infant and if the infant has the propensity that instantly die and because it says means you don't know i think why the infant so you would at least attempt to discover in advance that this is the situation you're going to encounter your honor you can't you have to cut the child open you cannot determine in advance a brain that and the fact without autopsy in the child exactly that's what this  is which i think everyone agrees are very important no your honor the era table injuries and non table injuries when it's a table and jury from the government has the burden of proof to prove by reputable sounding reliable medical or scientific evidence that the vaccine did not cause the engine rate when it's a non table  statue was elected because you couldn't prove it either way i'm not saying see either way there is no scientific evidence that vaccines cause sids i would i want to be absolutely clear on that for both  sound and reliable scientific or medical evidence they have not each one of the articles they put forth each of the case studies which are the lowest form of scientific evidence are concession as well and i think the question isn't whether we believe it was a concession but whether it was rational for the special master to find that it was concession based on her testimony i'm sorry to take your time you wanted to address a couple things responded mentioned that the vaccine program is not designed to give money when there is no scientific proof of injury but that's not the standard in the vaccine at standard scientific certainty is not the standard proponents of the evidence he also responded mention that there was no literature that cytokines cross the blood brain barrier and that there is no literature in all the literature deals with say the kind of expression and neither of those things is true to something if there is direct evidence in this case of that did happen there is a great deal of literature in this case that deals with sight a kind of expression of there's also a great deal of literature that deals in the function of those cytokines when they are in the central nervous system site on those place