well next argument next to number two thousand and eleven five zero five zero cement ski against the secretary of health and human services caplan when you're ready it takes time to get your material together management of a case specifically that's the of special master have the authority to substitute his own judgment but that of two well qualified experts in dismiss a case in the absence of any evidence from responded later point in time in massively there is a special master advocate his role of the not to find a fact in law when he advocates a position which in comparison to most programs which have some adversarial process the vaccine act has to two goals to promote the manufacture of vaccines and also to compensate children proceeding in part because you said there's a disputed question of fact if there were no disputed question of fact if for example your expert totally not only failed to address causation for example suppose it's just missing entirely then a summary judgment could arguably be appropriate couldn't it that would be true your honor even if the government hadn't submitted any contrary evidence if you failed to put forth any evidence of one of the required aspects of proof none at all then you agree summary judgment would be appropriate in that case in a very limited circumstances china and these are very complicated issues in this particular case involves immunology which is one of the most complex areas of medicine normal daily life experience it would be difficult to imagine how that could occur you do agree that if there was a total failure to address something by the expert one of the required problems summary judgment would be appropriate the and we can agree that in the absence of any references to all the articles and all of that but merely said in my opinion the vaccine caused this without any explanation of you know how it could have caused it or why it caused it that any citation any studies without anything at all such a conclusory statement by the expert without any support would that be something over which the special master would be entitle to issue summary judgment conclude the squad is very decided conclusions by themselves without evidence to support those conclusions would be appropriate however that's not the situation here in this particular instance the the actual help provided a theory which was possible and reliable indicating was a young infant whose immune status was not that of an adult yet and it could occur earlier because of the immaturity of the union status and once the petitioner has cited those facts it you just articulated your argument very clearly i completely understand but you start from the proposition that the only burden the applicant has is to prove that a theory that is plausible and either way this was in direct this was in direct opposite to untrain and when the experts agree but in addition the petitioner's expert also had evidence to support the reliability of his argument risk of having your petition dismissed years ago by your ward time and time again that you're at the risk of having a petition to the nih if you don't supply more information and at one point your client what injury that petition has heard and the role of vaccines in that injury then that notice requirement has and provided and once that requirement has been provided what is in dispute and what is not in dispute so that the proceeding can go whole within a group or she says that within thirty days after five of the petition the respondent let's review the document and determine whether all the information necessary perfected when the documentary evidence does have the documentary evidence the medical records the petition as well as the the affidavit of the petitioner that is the documentary evidence normally that is required petition had did all that evidence and it dition they filed two expert reports actually three expert reports which supported their position and once that happened we forced c indicates that the respondent must i'll report setting forth a all incomplete statement of his position as to why and what should not be granted but right above that it says that the special less f the petitioner has satisfied all the required documentary submissions then it goes on of states the language that that you just read to the court isn't the problem here that the determination for several years is better that you have not filed all of the required d and when i looked at the hearing transcript it was cited by the claims court chairs there was a colloquy between the claims court and myself regarding what evidence needs to be submitted to whether any evidence need to be submitted before our summary judgment a proceeding could take place and i believe the confusion need be here in that i was referring to the fact that a roku or c report had not been proud yet show by the rules and its opposition also that the special master doesn't have the ability to suspend the rules because the rules there are very few rules in this program and what few rules in the program  came forward with the petition and totally failed to allege an element i'm going back to the same kind of typo i started with totally failed to allege one of the required elements clearly not making a promise case are you suggesting that the special master would have no authority include the petitioner has not met its burden until after the government has filed this or see response a report normally your honor once the documentary evidence is proud of what the report just issue that's normally how the procedure has worked in the past and if this is a unusual situation and tellingly these kind of the special master in this case is now indicated  ition but there's significant reservations expressed i think it's fair to say in her opinion i would agree that the claim is quite judged and expressed discomfort with the length of the proceedings and i would agree that that is not a situation which either poddy much to occur actually i was talking about that the procedure employed by the special master but that there was also concern about the length of the p sufficient or was there any type of factual determinations are made with respect to the sufficien opinions of the that the expert that was submitted in this case i would say that it was the special master who challenged the sufficiency however he challenged so if we were to reverse what is it that we would reverse and court we mean back to the special master solely for the determination of damages if you want to decide she's entitled not just to say an improper procedure was used to go back and properly you want us to decide she's entitled in the first and yes china the only evidence is doing this as a sanction against the government for not filing of course the response in your view are we doing this  because the record clearly as a matter of law demonstrates her entitlement both turner as a sanction but the only evidence in this case has been filed by petitioner we have asked national issue and water we quire in the the only evidence in this case the expert testimony the special master repeatedly found deficient and failing to establish her necessary level of causation so how would we as a matter of law come in and say not all that he's completely incorrect it does entirely without what they should that's what you would have us till yesterday and because there is no evidence to the contrary that i think the special master's decision below summarizes very well what you have before us that special math masters are authorized to require the production of evidence this petition  given so many opportunities to present that evidence and as you can see from the orders and the responses they simply refused and then the case had to be dismissed based on petitioners absolute refusal to and the special master did an extremely thorough analysis of the merits of the case in that show cause order indicating my if they didn't provide a supplemental opinion from their expert wh from the applicant and at one point they said we're not going to give you all this is too costly we can't afford it we can't afford to go out and get the medical expert that you want us to  we can go on with this make a decision why wait why can't you make a decision on the match at that point i think the problem with that argument is that that the order that issued from the special master nationally after they found the report schonfeld was very specific indicating here is why the expert reporters insufficient you need to answer these questions so it when they provided a response from dr sherman fell they ignored almost all of the questions posed by the special master so to the extent there's any argument that it would be too expensive to go back to the expert that's either a failure of communication from the attorneys to their expert on what needed to be addressed or a simple failure of the experts to address the question so in terms of unreasonable expense that's not a legitimate argument because the special master stated specifically the questions that he had in the responses that were necessary and those questions were dismissal under rule twenty one b or whether their appeal is actually on the merits of their claim the lower because it's not very clear what the special master did but i certainly don't fault them for for raising all of those issues because  you think the special master did the process used in this case was a bit unusual the process used was not the process we would typically see in a vaccine a case i think in this case the refusal to respond his questions there seemed to be very little little he could do and in fact with experience with this particular expert that if he had done this on summary judgment this wouldn't be nearly as difficult a case for the government what the court or permissible and that would have still been in the context of a summary judgment motion as opposed to the sky and of process which has been you know a summary judgment without some of the it could i think of the vaccine act is fairly unique in in what is special master supposed to do it in section twelve of the vaccine acted indicates what a special master may do under a proceeding the information that's required in this case specialist moran was trying to get that information the information that the act gives him the authority to request petitioners time and again they had multiple opportunities there were at least three possibly four opportunities to give him that information that he is authorized to get under under section twelve and petitioners just outright refused to give that information i think his sport to show cause was a roadmap for them of how they could satisfy or how they could satisfy the information he wanted under section twelve to meet their claim and then letting them know if they didn't provide that information it would dismissed and then the dismissal came after a fourth opportunity for them to provide the information that they rejected and without that i think that the failure to comply were after order he had  direct they were given multiple opportunities and they were provided a written order with what was needed and it was ignored i guess i'm i'm still struggling procedurally because if i were to consider this like a twelve b six which it seems more like given the early stage of the process before you even filed your response of four c b six what joe would be before the answer is file but there is no absence of an allegation which they would need in order to secure a claim there might be a failure of proof of evidence but there is not an insufficient they didn't feel to allege all of the elements of their claim their expert says therefore with great confidence insert the i can say that the vaccines with all their immunological aspects were the cause of the g report from an adventure extend point out you know if the guy had to if the special should operate this expert then we'd be in a different situation we didn't he didn't do any of those things instead he makes this hybrid ruling which i'm very uncomfortable with especially in these vaccine cases especially on these points of causation so i'm just not sure what to do with it i don't necessarily think the government has to always follow horsy i think you could just stand there and say they didn't prove it but but i'm not comfortable with him doing it in this hybrid fashion's i'm not really sure if that's where i wanted to come out what would your recommendation be as to how i should resolve this don't tell me i'm wrong tell me how to resolve it if that's where about i think it should be firmed i think  wonder do you think it's a foregone conclusion that you would disagree with every single proposition of medical causation in dr shawn fields report i don't know that every single proposition there may have been some very general things like that certain of the vaccines that this man ski received support such a conclusion i don't know that it would support his conclusion because the majority of papers that he would discuss talked about the flu vaccine which is not one of the majority but i went through all the papers at least by title and there were several of the two that she did receive it could have been but dr shawntel it's report i think is just so inadequate on its face and there were so many attempts to have him explain that hope can you of federal claims have had problems with this specific expert and the vagueness of his reports and his it when he goes to hearing is explained by the special master suddenly changing or providing new theory so i think this was a special masters attempt to effect or one of the other vaccines where there would be an immune lot in an immunological effect most of the literature cited when unix plain are many articles deals with adults and not with an infant who has a completely in mature marine wanted that addressed as well and petitioners just outright refused almost as if in this case they were daring him to dismiss the case because because i mean that if they established you know it closes it potentially with adults isn't it the government's job to say ah but there's a reason to think with infants that might be different i mean why is that their burden to establish that would also happen to me it seems reasonable that if someone asserts it happens with adults mean there are no studies with children ok maybe maybe that's good enough i mean why is that something to be thrown out at this early stage with the absence of any country eviden at this stage it's always petitioners burton respondent doesn't have any burden to prove otherwise until petitioners have established a prima facia case but if they came for with evidence showing in adults it could there are some evidence that it has caused that cases the special masters may rely on their past experience explains that he had an entirely different explanation in another case involving an infant where he had testimony from a pediatric immunologist indicating this wouldn't happen in an infant and so he propounded a question to petition or say i want to talk to shawn how to explain when based on my experience why do they have to respond to the special masters claim about evidence that he heard in unrelated case which they may have no knowledge of which wasn't presented to them no article was given respond to this why why why yes i don't understand why they're required to respond to those things at vaccines so he goes through many many different vaccines and explains their relationships with g b s i mean it's kind of like a three cars hit my car simultaneously and i was injured but which one really caused my injury not sure why isn't what he pointed out enough at least to get through this part of the procedure to make the government come up with something responsive and it we did not report but it was so clear from all of the conference calls response position that it wasn't sufficient that he indicated that it was a problem and that that brought about one some more of the questions that he wanted to avoid i think believe he cited the quota for claims decision in shaad that came up here on an unrelated issue  saying i don't think that's the basis though of the case being dismissed then he cites to the hennessey case in his order to show cause the petitioners had before them again at which point they decided not to provide any additional evidence that did indicate others have had a problem with dr schoenfeld in the past with the vagueness of his reports just see my time's just about up here i just want to emphasize that petitioner below seem to completely abandon the procedural argument and focused on the merits of the claim when a bend in the procedural argument below the focus in front of judge miller had been it started off as the respondent and force you reported that as judge miller said her decision you seemed to back away from that in mobile because let me ask you about that because i read that portion of judge miller's opinion and then looked at the transcript and i don't see any place where there was an explicit about and i don't think that is listen abandonment i think it's more appropriate to say that t focus of the argument was on the substance is the focus of the argument is a very it seems to me slender reed on which to predicate a waiver or argu mean you're are you saying that they've waived the rule for argument i don't like the way the rule for cars and the focus of their argument below is not simply on something else or no i don't there's a waiver point me to where the waiver occurred i don't believe there was an explicit waiver well but you say there wasn't there was a way for you you argue but not an explicit waiver where's the implicit waiver to a little hard to come by but tell me where the implicit waiver occurred well let me just point your first for starters to j three seventy eight through three seventy nine which is their brief i believe the court which miller  again in this court that doesn't seem right to me they make a two page argument there now unless they later waive it i don't see why that isn't enough to preserve are you with me three seventy s oh that's in their motion for review i'm actually looking at ever so but that's the document that they present to just millar to say here are our complaints  is not required to submit any rebuttal evidence to challenge the sufficiency of the petition to judge miller in response to her questions respondent is not required to submit rebuttal of that evidence to challenge the sufficiency of the petition where where are you reading from this is fair i'm i'm afraid this may not have been in read and if you know if we are drawing a distinction between a report and evidence it's urana so you're saying they aren't they do have an absolute obligation to follow port but they don't have an absolute obligation evidence in conjunction