three things of the alleged but if i could let me just talk about each of those specifically and show how requiring that elevated the burden of proof a good example is the proof of not going to have an injury before we go forward all there was injured there was an injury and nobody's proven if i understand correctly there were various theories but never was anything proven to be an injury you know there were in fact there was not for feeling that she had medical symptoms approval your honor that's correct she does not have to prove a diagnosis you have to prove an injury caused by the by the vaccine and that's what we're alleging she prove to give an example of how this burden of proof is elevated let me give you a good example special one of our experts was lupus which are progressive diseases that progress over a long period of time it often takes time for that diagnosis that the main the diagnose question the diagnosis was raised early on by the doctors but there wasn't enough evidence early on until the disease a progressed far enough to involve mashes burden of proof to prove lupus went well beyond what was required by the statute the special master relied upon the exhibit hand which is the revised criteria for the classification of lupus and the special master said that four of the eleven that if you meet four of the criteria then you are ninety five percent certain that the case a systemic lupus erythematosus so the special master is holding us to a burden of proof of ninety five percent certainty that the diagnosis was lupus even though the diagnosis was made by the doctor who writes books like this on edit bodies on auto immune diseases a leading expert in the world of lupus said this is a clinical diagnosis the reason we have criteria like this is so we can do epidemiological studies and assure that we have the best cases and even their expert admitted in these final study me a logical studies are statistical analyses they are not diagnoses of a single patient correct and what you do with these criteria is you're trying to get pure cases so you can do any logical studies if you feel if you meet for the eleven criteria here that means you're ninety five percent certain that your diagnosis is lupus and that were pushed for deep into the facts which this court's not going to find that but you'd also have to deal with dr kagan who said those criteria were not met at all well he's saying the criteria were not met the special master says they weren't met because for him or what i'm saying it's a clinical diagnosis the world's leading expert made the diagnosis in another expert said that there was no evidence to support that and the fact finder made a decision contrary to your client now we can't reassess the facts we don't have those doctors in front of us we don't have the evidence you know but you can determine that the special master rejected the diagnosis on the basis of an article that says if you meet those four predator and you are ninety five percent certain so he was holding us to a standard of ninety five percent probability which is not the probability required of anything else in this program i for meeting for three out of the eleven that special master dr schoenfeld went through and explained in his testimony why some of the rashes didn't qualify even though they were not specifically a male or a rash for instance or this kind of rash he went through and explained all the different systems were involved one of things that was rejected was of the nervous system was involved in the doctor trying to tory testify that it was involved another good example if you go to the shoemaker we have a situation where  that's exactly the point let me let me explain something called ockham's razor ockham's razor simply means that if you have a complex situation and if you've seen how she has seen a right all these things in the board if you have a complex situation and if you can say that one thing caused all these problems and that's the most likely cost you don't go around say well this simple comment on this this didn't happen this this could have been caused by that we have a situation where everything that happened in this patient was explained on the basis of being caused by that scene in other cases vaccines have been shown to have times the vaccine has been shown to prove prove the cause transverse myelitis chronic deceit fatigue syndrome and lupus these cases are not easy cases they're complex cases to give you an example of one of our other cases the governor is the only title we won this case in time with hepatitis b vaccinations causation of various illnesses including our own you have a paris pots and so a lot of the lupus like syndrome and neuropathy in these cases are not always easy to fit into a little box of a diagnosis because you're dealing with an auto immune are immune mediated reaction that affects multiple parts of the body that we're dealing with a very complex situation in other respects to the patient here was depressed lost a child and went through trauma all of which can and vince itself in certain s how do we deal with all of these information that comes flying at us on appeal now you're talking about an alternate cause if you can't even get through the alternate analysis and determine whether or not we never made it to the elfin that's right so we never got to the cost the government was allowed in this case to disprove our case with less evidence than would be required for an alternate cause argument to give unit and other example chronic fatigue syndrome the special master admitted that she met all the criteria for chronic fatigue syndrome but then he went on to say the reason he was rejecting it because there were other potential causes of person or chronic fatigue he's getting into alternate cause he's changing he's asking us to prove an alternate cause he's asking us to eliminate alternate causes vaccine program can be caused by multiple things for instance transverse myelitis with young brice and rome can be caused by viral illnesses that caused by the things so we're not dealing with something where you know if you it's not like a virus like you get means you know that measles virus caused these brain and stuff that attacks your joints and so forth rheumatoid arthritis so that the vaccine the mini date condition all of our experts were saying was that all of her injuries were immune mediator injuries caused by the vaccine if you try to put we claimed that she had this incomplete mild lightness that was caused by the vaccine and that was part of her overall injury she was injured in many ways she had incomplete myelitis she had this product fatigue which was caused by that scene she had all the other respond very quickly that the judge in this case said the court finds that petitioners case was fatally compromised by the fact that there was no agreement among her expert witnesses her contemporary contemporaneously treating physicians or in the underlying medical records if you look at the records of physicians and the experts none of them could agree that's absolutely not t being doctors dr john campbell the cleveland clinic under his impressions said that this was a post vaccine syndrome post vaccination he's talking about post vaccine chronic fatigue dr  process of question levy ology hepatitis b that seems certainly possible we have a whole section of our brief here on and it starts on page i think fourteen or fifteen the talks about all the treating doctor so this is not a case where you have no treating doctors there are treating doctors who are spreading this they're having a hard time defining it they're having a hard time pitching a wing into some specific little box you can't fit vaccine injuries into a neat little box a good example that let me ask you this  concerned about the way that that administrative judge approached this but she said even if you were to apply often she thinks that that the facts would come out in the same place where she made the finding that even under of even walking through the appropriate tests that that you end up in saying well we don't end up in the same place because we made a prime facie case the case was defeated according to special master because he took and picked and choose and said well this this was caused by this this was caused by that so he eliminated all these symptoms that could be caused by the vaccine by attributing to multiple things if you look at the chronic fatigue syndrome for instance he admits that she fits the cr then goes on to say however the reason she doesn't have chronic fatigue syndrome is because there are other possible causes of her chronic fatigue other possible costs in other words if the response experts strong enough step up on the wall some up will stick and it can be used against us good morning may it please the court my name is heather problem and i represent your honor and i represent the respondent in this matter the secretary of health and human services under the vaccine act the statute requires a petition or to demonstrate by a preponderance of the evidence that she sustained or significantly aggravated an illness disability injury or condition which was caused by a vaccine covered by the vaccine injury table was testimony in by one medical person it could be in certain circumstances your honor that was not what happened here the testimony of petitioners experts when considered with all of the evidence and there were over one hundred exhibits and thirteen hours of expert testimony it simply didn't meet the standard of propounder and in fact there was significant evidence that she misses the party did not have any of the three conditions is it correct that for every piece of evidence latest none of the symptoms that she displayed strongly after the vaccine are indicative of transfer smiley yes those were the things the special master looked at and what he should have been looking at because he was required to look at the evidence as a whole lupus sure the lupus as you mentioned it came up in the second hearing by definition four out of eleven particular symptoms needed to be present we certainly conceded that there were two of of the evidence your honor i think that's similar for four was given for a reason i'm not sure what that reason was but four hours was given for a reason is probably the same reason that the american academy of dermatology who wrote these criteria indicated very specific symptoms like a mallet rash not just any old rash a mal or ash is required not just any neurological injury it has to be  to simply follow the test that the court has set out and apply often and in if you're going to look at alternative causes look at it in at the proper point in time i think we need to consider the context in which he raised these the legal burdens aside in order to reach this diagnosis it is incumbent on whoever is making it to eliminate the other potential diagnoses our experts testified and gave provided literature indicating that there were at least two other conditions of vitamin b twelve deficiency in osteoarthritis that could very well be accounting for all of the symptoms that this islam party was experiencing here saying it's a diagnosis of exclusion absolutely that is in the record repeatedly and it is in the special masters decision as well but that's not true with respect to lupus that has that is correct but she didn't have lupus why would the special master go through the analysis to a condition she doesn't have the example he gave you gave it with transfers my latest but it's equally applicable to lupus you can't have a logical sequence of cause and effect between a vaccine and a question mark if you don't have to have a given diagnosis crestor proceed with the all the tests you just have to have an injury even even a conglomeration of symptoms could be deemed a sufficient injury under the act isn't that right correct there was no conglomeration of symptoms here so it's her problem that she that she had experts who were trying to pinpoint it and if they had not pinpointed it she would have been fine and been able to move forward i don't think that was her only problem but you braise a point in that her experts identified these three conditions and all of their testimony was directed towards these three conditions that because hepatitis b has been associated with those conditions in other cases i am not sure why that was that i guess that's a question better asked to a collins counsel what i what i do know is that that is what they alleged and that is what they try to prove they did not prove the initial the initial injury condition disability illness that is what is required not a diagnosis at no point to the special master stand diagnosis was required nor very much helps us out think you're on or as this court is aware last year prohibition was decided clearly holding that an off the table petitioner who does not benefit from a presumption of causation which is certainly the case here must specify his vaccine related injury and shoulder the burden of proof on causation a dentist finding the injury is a prerequisite to this analysis and this makes sense especially in the context of often often requires a petitioner show a medical theory connecting the vaccination to an injury cause and effect showing the vaccination was the reason for the injury and approximate temporal relationship between the vaccination and the injury injury injury injury we don't diagnoses there both were in the record and it was just a question of which there was more evidence of which there was a preponderance of the of it's we don't have that here we have three distinct conditions against nothing she didn't establish these three distinct conditions therefore the special master had no choice but at that point to dismiss the claim everything else was there was no evidence that the special master raised the burden of proof and in any way there is no evidence that the special master required any certainty or single diagnoses or required her to exclude alternative diagnoses or agree on her diagnoses if you look at appellant's brief there is not one citation to to the record for that and that's because it's not there and it simply did not happen all the special master required was behind her in evidence that she had any of the condition not just to touch briefly on it because mr shoemaker sounded like he was trying to re argue this case before this panel as you are aware it is the role of the special master to weigh the evidence and the factual evidence and that is what we're talking about here law that is absolutely correct your honor is the special master's comprehensive forty three page decision clearly demonstrates that he thoroughly of evaluated the entire record and considered all of the relevant evidence his well reasoned conclusions that appellant did not have transfer smile atest that was a straightforward case where the only question was whether or not the spinal cord lesion was caused by a venous occlusion of a vascular kluge and or an auto immune transverse light miles that was the only question this case is a case unlike broke in the case it's zero for dash fifteen ninety three be decided by the judge braden and particularly i'd ask you to look at footnote thirty four where she gives a string site to all the decisions where the special master has been overturned because we have we have a lesion we have the the test results all these things explained he found diminished pinprick sensation on examination he explained why was mild as he never called the transverse myelitis the closer you came to that was an incomplete what he said in his report was that she had a mild lightest and he goes through all the symptoms he said he said she had these injuries caused by it he disagree with the other experts no because if you look on and it's this is important to look on the last page of his testimony you will see how he says and the fact she has these other room to logic and things that dr schoenfeld is going to testify about that supports his opinion so he's saying here's my belly where gets neurology by saying that other possibilities for chronic fatigue possibilities not probabilities defeat the definition defeat the diagnosis they don't defeat the diagnosis their own cause of it is a diagnosis of it's that what they said is a treating doctors did support this case also the fact that the s l e was diagnosed by a leading expert in the world on lupus he doesn't need some criteria that guarantee ninety five percent certainty in order to make that diagnosis he made the