it's essentially the same we did but if you were allowed to do that as the militant court suggests these people can just go ahead and file in federal courts to court then essentially what you've done look back at the structural good crop up you have to change gears a little bit perhaps you argue i believe that under whatever standard of review is applied that you should prevail correct that is correct and i just want to ask you a little bit about that i mean i went over the decision of the court of federal claims and the underlying scuse me decision of the special master and the special masters decision which is basically what we're reviewing as i understand it is exhaustive i mean it looks at every point decides says here's why i credit this witness here's why i don't credit this witness examines everything from six different angles  it struck me as difficult to say how whether under an arbitrary or capricious standard which is what you're saying is wrong or a more exacting standard of you we could overturn that could you speak to that  of a red flag i think it is or are good with all due respect and then secondly getting down to the specifics so the special master says and this is complicated and i don't want to spend all of my time on this but i think that just to give you a sense of why this shouldn't mean the arbitrary  dr john shocker who is one of the preeminent physician of physicians in the united states on mitochondrial disorders and he's also a treating physician in this case but she has to ignore essentially what the government own expert dr cohen sets dr mitochondrial disorder is present that's what the government's own expert sets and she has to ignore that essentially to come to the to her own conclusion so that is on that standard arbitrary and capricious and as to the question of the closely related question of predated the flu that you're talking now about the conclusion that autism manifested itself in various ways to the video etc yet before these two vaccinations yes exactly or i should have made that that d used anymore but the special master seems to think it's still useful even though it's been abandoned as a diagnostic criteria well somehow it's still this that seems to be the government's position then we have the question of well we have all these treating physicians  and look at the videotapes from years ago and she says well these videotapes show signs of s t d which no one would have been expected to say because they were developed at that time but now we can see them and then on examination she says well why didn't they see them well and this is her language because the signs of behavior in the child supposedly giving rise to it now the clinicians view of what might be to mean autism spectrum disorder ignore all pediatricians at the top and every other doctor who testified in this and crediting this clinical psychologist who is not a preposition so under these the special master a lot of that testimony she chose to disregard a lot whether testimony and you can rely on that testimony but if the standard of arbitrary and capricious allows thinking out little bits of evidence essentially and not looking at the way that the expert is the centrally allowed herself to be a piece of the stand by that by signs that she says are so close to normal that no reasonable doctor would have been would be expected to look at them and picking out little bits of evidence and painting one tablet you can go exhaustively through almost any complex record and find something that supports such a a aberrational view of the facts and with all due respect i think that's what's happened that covered more than a dozen fact and medical witnesses and concluded that petitioners fail to meet their burden the decision is one hundred sixty one pages long and she meticulously examined and weighed all of the evidence and provide a sound rationale specialist and dr wallace who does play a cadre of biology he just looks at the labs excuse me and they they said it does not the other it does not meet any standard that is true there is not but when she was questioned on why he meets these different criteria her opinion completely crumbled she started backing off from that i believe if you look through the evidence in the twenty two pages that the special master spent going through the experts another piece of evidence that my colleague pointed out is the testimony of dr miller and the issue of whether or not the autism predated the vaccines dr dr miller is one of the so special masters reliance on dr miller to to go through the videotapes and identify and there were videotapes these for hours and hours and she took us through it and showed us exactly where she believe pediatric neurologist who does deal with children with developmental delays and autism corroborated everything that dr miller said so it was certainly not arbitrary capricious and under any standard of review we believe that the special  the one other factual issue that did not come up that the special master decided was that there was no regression in temporal proximity to either vaccine that was given and we believe that the record clearly support special master determination there was nothing in the contemporaneous medical records describing the developmental regression that petitioners were claiming existed there's nothing in the videos there's nothing in the early medical histories for months and scientific research authority and simply more persuasive on nearly every point in contention and that is why the special master found for respondent on all of these issues because our case and our evidence was stronger and that was in public then therefore then you have protection by article three and it goes through a number of factors was this is a substitute for an action that existed at common law and clearly at this case it was when you have a case like this under the vaccine act if there was would be suing in state court or perhaps under diversity jurisdiction and getting in front of the jury so it's clearly a substitute for that you look at other factors such as does the federal scheme give the right to the district court to interject amend or and therefore treat the article one court like a bankruptcy court as just advisory and in this case if you look at the statute not going to the south and that papers it gives the court  claims the power to enter judgment we can appeal to this court but that court has that power and the supreme court has found that to be significant and then it's a question of whether this is a right that is a substitute well it is a substantive the factors we went through well on the public rights exception side where you are the private rights exception site and therefore article three is or isn't invoked but in milliken there is no recognition that this distinction even exists if the it's not mentioned in  millet does is decide a very important article three question without acknowledging referencing knowing that the supreme court has rules for this much less apply them there's no reference given to this and in that even if they ever come to the same conclusion it should do it the right way and apply the factors but i submit respectfully that when the factors are applied because this is the kind of case which would have been a sick against the vaccine manufacturers