our first says disk morning or poor girl versus the health and human services and night verses health and human services we're going to deal with them jointly was that right yes  the ground that the special master was barred from assessing the credibility of petitioners chief expert witness dr phil on t v this court however has helped both before and after the court of federal claims decision here that special masters are entitled and indeed expected to weigh the credibility of expert witnesses this is frankly an unremarkable feature of our legal system special map the fact finders regularly assess the credibility of expert witnesses that appear before them and in fact this court in a variety of other contexts including in patent cases and tucker act cases we read we can ask the other side put it just seems that it appears that there may no longer be a dispute on that particular but that's certainly the way we read their brief your honor so it might be helpful at least to me if details of the factual findings which it was but let me let me ask you further if if in fact we agree with you that the lower courts like it approach to this i was wrong as it relates to simply discarding every finding on their their bases that the credibility discussions were too extreme wouldn't it be more appropriate for us to remain answer to that to the lower court so that don's arbitrary and capricious findings can be made under the appropriate standard i mean i don't think there'd be much point to that in this court's review of the for the federal claims decision is to nov and so it would seem to be somewhat of a waste of time to send it back to the court of federal claims to engage an arbitrary and capricious review of the master's fact findings only to have end up back in this court on to nova review the court of federal claims decision because it obviously doesn't mean in the first instance that it means we're really looking at it again completely and we have the right to  disregard the findings but we're not supposed to be the first prong on this analysis are we well i would point out the petitioners are asking for a remained in the alternative this court has been for the entire record that was before the court of federal claims there's no reason to think that the that the factual record can be developed further when it goes below in fact what a federal claims is far from itself taking new evidence and so it would be i think just more efficient of this court having the record in the part sort of put the gun government as i recall in terms of the alternative because what's wrong with the other drugs but it seems to me in the other case he didn't he didn't necessarily do that now we'll get we can get to the point of whether or not it could he could petitioners had to explain for the purposes of their affirmative case this wasn't an alternative cause this was the simply the claim that if you are going to prove a causal link then you have to demonstrate why again this is on our just review quite reasonably discounted that case study it noted that case reports are of limited probative value because they're the report of only a single case and in any event even looking at the what the case report said it credited the explanation of dr cough dr cough testified quite sensibly that the subject of the study had been suffering from a separate symptomatic autoimmune have otitis for a long period of time before he was diagnosed with  hepatitis at the special master was well within its broad discretion fact finding discretion to credit dr kos explanation of the hopper to case study the case of the also was discussed a supposed connection between have tight as a an auto immune have otitis so it was an opposite in several respects dr cough testified in both cases right he did though that these cases were combined with three others at trials so  of the government provided another expert doctors wyman testified in a combined drawing we've had a lot of discussion about whether dr belonged to you was discounted by the special master but can we also read these cases is the special master relying on other expert testimony that of dr cough yes absolutely certainly it's within the power of the special master to credit the government's expert witness or credit an expert witness on either side if that expert witness is providing sort of test testimony that seems to hold together and isn't directly contradicted by and he's trying to get a chance that's that certainly within the power of the fact finder and in the porter case at well it was it was the first very was the molecular level arena great thank you your honor thank you are yes molecular mimicry he conceded when the government presented evidence showing that there were no each challenge of vents  and that he said that we would have to look for another explanation the special master quite correctly concluded that that was a mark against dr bill long tease over all credibility and so quite reasonably assessment isn't it i think it's all i think that's a harsh assessment of what the special master did i think the special master was looking at the merits of what dr belonged to was saying and recognizing that when dr belonged he said for instance that there are in his expert report he said there are reports in the literature that demonstrate that me challenge events occur after someone who has an autoimmune hepatitis takes the hepatitis b vaccine that was explicit unambiguous statement and his expert report and then it comes to trial and he's unable to provide any such literature and in fact backs away from molecular mimicry when he sees the government's literature showing that there that the opposite was true that there were no real challenge offense when someone who had out and have a typist received to have titus b over and over again those are the sorts of credibility determinations that the special master was making this wasn't a claim that that but dr bill on t v was line this was a claim that he was an evil on the substance of his of his assertions was unable to provide any supporting evidence now that's perfectly fine if you read the last nine pages there's no way you can you can get around the conclusion that he's calling him a liar i think it's i think the he never calls him a liar example in the corner cases the attacks on his inability to to pinpoint the exact date in which her illness began and yet that's not the standard is that you know that's just i'm just within a medically acceptable timeframe no it's that's it that's not the standard and this is the but there was again nothing wrong with the special master's overall approach to addressing dr beyond his testimony you may be able to quit well with certain things that standard and he makes him he says you have to give me an exact date and then when he doesn't give many jack they can say that's evidence of your lack of forthrightness that you can't give me an exact date even though everyone agrees that it would be impossible to give an exact date for  again he could only he as far as i know he couldn't even hazard a guess and so i think that was the main thrust of it there were a range of dates and i mean if that if that conclusion was belonged to for there were many other i gave one example there were many other examples of where with respect to the medical theory in particular and dr blount he was principally testifying as to the general causation the medical theory possibly connecting the vaccine to the disease he was unable to substantiate the claims that he made in his expert report and so that was the main thrust of that entire nine page section at the end special masters decision in any event even if you thought fact the special master gave the petitioners an opportunity to bring on a happy holiday just as an expert witness at the beginning of the proceeding before trial and petitioner did not do so instead they relied entirely  immunologist so that all of that as well gives dr carson peers somewhat more weight do you have you wish to preserve some of your but i believe that i preserve some time already but i'm happy to  capricious with respect to findings of fact and in this particular instance petitioner he actually asserts that the theories put forth i actually was more than substantiated by both the medical testimony as well as the evidence evidence that's in the record we were proving causation and fact here maybe you could help me with just the kind of common sense are hundreds of thousands of people get have to tie this vaccine every year did you put forth any evidence of numerous cases of that being a link to it is known from various areas within the world and it has been estimated approximately one point eight perhaps for hundred thousand people and dr blotches testimony was that the people new anthrax vaccine i'm sorry the defense department and the new anthrax vaccine to challenge both the safety and the adverse reaction rate he continue used to it they're trying to develop unhealable needles vaccine probably the greater ability to determine whether these adverse reactions were relayed to a vaccine and how do you get around in the night case the evidence from dr karpf that this was already in stage three at the point that it was recognized at any time associated with the vaccine it was in stage three you're on it there was a statement that was indeed made by dr khan and i think it's a factual finding puts article which granted didn't look at while tight capitated so that's that's one case right it is one case and that's also the article that said we can't exclude the possibility that this one case had petitioners opposition here the facts are we're dealing with a seven year old child who the article indicated really had no risk factors for the development of hepatitis a he was exposed in his football club which is and then  out underpowered to detect this small risk when we dealing with one point eight cases of auto mean hepatitis prohibit thousand people and that all the causes are related to hepatitis b that scene then w review and we're not sort of waiting two pieces of evidence doc to court the expert versus this one case study where we're having to evaluate whether or not the finding of the special master was arbitrary in other words based on evidence that is holding the implausible what is there i mean we've got an expert testimony and we've got this one case that you think that sufficient to establish clear  respondent presents evidence which challenges her position and it's rebut it then at that point it's up to the respond and to turn around and present evidence which supports his position while not mentioned not we but contained within our appendix are honest is the fact that there is actually another case that supports the rapid onset of cirrhosis after the adminstration after the development of new hepatitis case article which was introduced to demonstrate that a person who developed hepatitis b wildfires subsequently went on to develop or union of titus in that going back to the genetic predisposition to auto immune diseases is there anything in the record where the petitioners were tested for mutations in their h l a genes you know your honor that's why wouldn't that have happened i that's not normally done in clinical practice is primarily a research protocol and in all the studies that were presented in which there seems to be a genetic predisposition they were all done under research auspices now there was an article presented the baloney article which indicated that non responders had  in the case studies when they were reporting the individual cases may have done so but i can tell you that in the hard parts article at least the there was not that type  responders they possessed that type of genetic makeup that need them at risk for the development of or to mean disorders now ms while ms which ali did not have her testing done i think it would not be a  reasonable conclusion to draw that because she was a non respond or that she would have been within that population that would have doubt developing who knew disorder and in fact she did she develop more than one organ disorder and that is also recognize within at the time of hearing and they are in fact supported by the literature that they submitted and i o m which describes how order munity occurs in general they also presented evidence that the natural while disease hepatitis b had blood work drawn because she was on a medication that could affect a liver function tests and those liver function tests were normal at that time within weeks of receiving the third hepatitis b that seen her liver function test be on the drug and there was no evidence to support the fact that she was taking in a cycling at the time that she received her first hepatitis b vaccine but she got it within two years which was the expected count right taking it because the literature all indicates that sometimes the only way in which to determine whether it's an unknown cause only appetizers or whether it's related to the drug is to withdraw the truck in the person gets better now when dr the effect is gone within eighteen hours it can be presumed i would think that within a week's time there was no further effect that one would expect to see the dr so then that's when he brought up this issue that was lipophilic and because a hangs around in the tissue it could and we knew also that the hepatology people by and large treat rather than make a determination of how it appears that it was not necessary for us to put forth another expert in improper finding improper legal standing by utilising credibility standing they also believe that the requirement to show how the they repeated required to show how the harvey is a physician and he does rely to a certain extent on epidemiological studies however when one looks at the data that was presented in that study there were two populations that were starting those one to fifty who were on treatment in those sixteen and above who were not on treatment of those four patients were sixteen and above and two of them were not responders and one of them was already on a liver transplant list those poor people received that series of three immunizations one individual that was on the list for a liver transplant had to go into immediate surgery for replacement of the liver and two of them had elevations of the liver function test but not to the point that there was clinical deterioration there was some clinical deterioration now if this is entrained had been present at the time at the decision more likely alternative to cause suggested by the medical literature and by the experts minus cycling in the first case and of course the preexistent stage three  fibrosis in the second case how can we find that those are arbitrary and capricious when they have the backing of very substantial experts as well here they from the government had met its burden in one case and the other case they analyze this with respect to timing that that's a per se finding by the special master that you met your burden if he gets into the analysis of what the  you proceed on sure will alternative theories and and you have to receive all the evidence that may be necessary i'm puzzled as to why the special master couldn't take evidence or an alternative there is the same time it was taking evidence on whether you met your burden which found you did not it's not at least position that the the special ma proximate cause of why can the special master say you didn't prove your case and by the way it's also very evident that this was either monocycle in one case he says that he did her however our the petition is burned at that point was to provide a theory and they did provide a theory it was agreed to by responding to experts and in fact is supported by  and nonspecific the evidence indicated that after the second instruction of hepatitis b she developed more nonspecific symptoms and after the third within ten days possibly that's when they found th needed evidence which demonstrated that the onset of cirrhosis or fibrosis who did indeed occur within the eight and a half month time frame in which some expert testimony on whether that could actually happen but you did well you know on its thing it seems that from someone who's treated a lot of liver disorders would be able to give some kind of  assessment of that which of course the record only has one assessment which is that it cannot occur so quickly yes or no however that is rebut it to a certain extent by an article which was evidence well when one looks at the fact the case or there was not this is a seven year old child who had a known exposure to hepatitis a hepatitis a the doctor made it has been reported as a trigger to the development of or to napa titus and when he was presented with the evidence that the that that exposure heard somewhere within ten to sixteen weeks and the development of the fibrosis that was noted in this child's live advice occurred sometime within that ten to sixteen weeks and then he tried to others but he couldn't demonstrate that the child had been on an eating so he in essence was trying to we interpret an audible which contradicted his testimony special master and that's of course not this court's job well you just told me before that it is our job to decide whether the decision whether his conclusions are arbitrary and capricious that science can look to see i salute the absolutely but as a very high burden for petitioners to carry in this court and simply point to evidence that contradicted the testimony of dr coffee is not sufficient they have to somehow show that there was no other rationalize while the rational thing to do then rule in minocycline would disappear and soon as he stopped taking the drugs no i believe that the no i don't i think that the special master recognize that the burden was on the government to prove the alternative cause and having proven that alternative cause i think the special master is simply recognizing that once the government has proven that this is the alternative cause you have to tell me why it isn't and that's there's nothing wrong with that the there is nothing there's no legal  article because he couldn't translated and he didn't speak german i believe that dr cough was looking at the provision the articles that were cited by the rosen but by that text by the textbook i'm not exactly those articles to death to say that the textbook got wrong quite a moment there was no testimony that anyone ever read those articles because they were all in germany the i'm not i'm not exactly sure what the point of that of the textbook was a believe it might have been to said i think the textbook was wrong because of these articles that no one ever read i believe that well i don't know that it was but if the articles were in german then the petitioners had to they were relying on those articles they would have had to provide translat but of course that's not this court's job and i just want to highlight that the importance of the limited standard of review for ensuring the efficiency of the vaccine compensation program that was one of the reasons that congress in one thousand nine hundred nine created the office of special masters and in the conference report for that bill which created the office special masters and the arbitrator standard or view the conference report stresses that special masters decisions would not be reversed frequently but only in cases where truly arbitrary decisions have been may and that limit standard review is critical to fulfilling the congress's goal of these of ensuring the efficiency of the vaccine compensation program because absent that standard view you end up with a proceeding much like we have here where the parties are just  resolved by the special master and that would simply be a delay and a waste of time thank you