proof of any particular element of petitioners case they need to look at the proof put on virus on and petition simultaneously you don't have to divide those up however the court made clear in the basin as the court  the holding and walther that if the evidence deals with fact or unrelated evidence or the government's case itself that that is dealt with separately i don't believe that that legally is i believe that that's been established in this court legally i don't believe that there is any serious question about that however the court below the special master below did combine that analysis legal error and this is an important issue the respondent argued exist goal all the special master accepted it the claims court except it and we believe it is absolutely clear legal air an order to do that this court would need to overturn walther that was the express holding in walther not that it makes any difference but i was here standing in one of your courtrooms and walther that was my case it has been maybe saying it's not but i understood walther to be saying that you could consider the other evidence including evidence dealing with potential other causes alternative course where the other evidence has ation is sufficient to establish a provocation case so that distinguishing halford in that respect well and obviously walther was i mean that is the function of walther was to explain sids for instance which was respondants case had nothing to do with my case it's response factor related case those are two separate analyses under the statute that was what that's what walther hell that's how we practice in this program since believe that's clear and i don't believe that that's what this court said and the basic basan was very explicit in me i think you know that there has been this this kind of progression over the years when you start with password and walther and a's and they're all kind of evidence is that there was a vaccination of the child and then on the way home from the pediatrician's office there was an automobile accident that had traumatic effect on the child that resulted in  severe brain trauma is what's your view as to how the evidence we should play out in that setting on the crime of fish a case of showing actual causation absolutely and that would that is in fact intellectually the example that i use because i've been thinking through because it's very plain it's clearly a factor in related defense i mean the a traumatic brain injury would have nothing to do with her gets a d t traumatic brain injury that that provokes a seizure so that what you have is a condition that is the same condition that could have been caused by the but by the action absolutely that is it that is clearly understand how what defenses work and what defenses don't work in this program i've been in the program for so long so i would analyze it before ever filed the thing but for the purposes of your question candy if the three steps actually cause right yes i can establish given no set of facts my three prongs under often and i will absolutely flat lose the case as soon as respond to raises really want to get your answer to this and then we can go on our do you think prone to requires a showing of actual causation on did it actually happen is what it what it i don't know what what what what you're saying to the short answer to your question your honor is i i do not agree with what you're saying why is obviously the more important reason the welfare case itself was it is a good  we established that it could because if it was going to be cause it would be cause within that period of time and that's the third step of al thing so we're coming back to focus on the second step here we ended up after this court overturned the special mouth and reminded it back i mean in walther in remanded it back we ended up losing walter and the reason was because we didn't establish the second step and the second step was did she have the condition addition being a d m he said you establish that it could cause it you establish that it could cause it in this period of time but you did not establish that you actually have the condition that you are complaining of a d m you fail under the second very familiar with this one just it's is a logical sequence of cause and effect showing that the vaccination was the reason for the injury that doesn't stop at showing that the injury to be pretty clearly to do just that we've said we've used those very words on several occasions at once from to bust right and do you think that's an incorrect formulation of what we ought to be doing well on the short answer again it will the short answer is yes but the fact is so you really are a thing with that language well not not in this case i mean what we're talking about here is  the niceties the intricacies of how this has been applied it's not consistent i mean i just put that out for you it's not consistent in this program but my job is to show nothing more sequence of cause and effect showing that the action nation was the reason for the injury you're equating that with your perceived requirement which is simply to show that the child had the condition one would have in one sense is largely window dressing which is a problem that if you if you read it as it reads it seems that what i'm saying is it seems hard to get from that language to your construction of the language so help me ok you have to show by you know law causing fat a heavy lifting a blob of law that they've always been sort of scientific proof in that which this court has consistently struck down but the second that it seems to me that when you if you are right about that and what you've come you've done comes very close to turning off table injury cases into table a new set of people and that's because all what you're saying yes as long as you show that there's some medical theory that would account for this injury and that there's both temporal and any particular injury you're done for your prime fish a case and then the government if it can't manifest itself within a temporally significant period of time time periods are in on the first part to say ah i want to understand this is not some little easy thing showing prong one   however if you in this particular case if you would take way this is what this academic discussion that we've been having use your example your honor let a traumatic brain injury is part of my case that's somebody else's case that's respondants case walter says you can't combine there are two separate analyses and if you do what you what you said well you know it can't be the vaccine causing it if it was you you know law it some disease process that they caught from the dog or they got in an auto accident or you know pick your poison if you say i have to eliminate those in my case in chief then that violates the leader statement by this court in waltham but mr gage a i'm still puzzled somewhat by the fact that you're saying that in your attempt to establish cause and effect which  we get if there's any opportunity for them to race as they do which is another legal issue that i would i'm going to ask this court to to address just the in the path it absolutely violates a statute we hear it all the time there is the do you know the coroner says i don't know what it is in my burden then to establish my prima facie case is to disprove that he didn't know what it was i mean i mean that's a for like can never get over because that's assuming away from the moment the the evidence and the discussion of the knowing of this concept of sids to something which is more closely associated with incident on the route yeah i mean that that's not in the path that point yet but what what what response expert is really saying there is she didn't agree with the corner is an assessment of that you couldn't figure it out after looking and you saw i provided the definitions for hours in response you couldn't figure it out after your mean or close examination of the scene and blah blah blah she disagrees with that she thinks that she could figure it out now we don't know what it was she figured out because she said it was either overlaying or wedging were were possibilities and are statistically morse likely when there's an adult next to a child but still to get back to your question your honor  we anticipated their defense of says of course we would they raise it in every case what i mean and that any time there's a death case if there's any possibility for them to ray said they were he said we talked about that that's not the question that's not the reason we're here the reason we're here is because in altham prong to that analysis the special master combine her analysis of their defense their factor related defense with my case in chief she can and this quote and made it absolutely clear that when that special master combines respondants case that's absolutely fine as long as its respondents case that deals with my proof in this case it was brain weight in the weight of the other organs that's the pathological evidence that we were relying on she can and should analyze those at the same time but when it comes to response factor related defense the basin also made understand when one more question on this since matter is it your interpretation of the special masters decision that it was predicated on the finding that sids was in fact the about how they're consistent then makes a statement that the response acts were thought it might have been overlaying or wedge and never actually comes to a conclusion as to which one of those she was fi and clearly didn't cite anything in the record to support that so it's anybody's guess i couldn't figure it out by reading this thank you master below was charged with the an enviable task of sifting through all the evidence the factual evidence the medical literature and the expert testimony to try to determine whether in fact the hepatitis b vaccination caused petitioners presented a medical theory under oath and step one namely whether hepatitis b vaccinations can cause immunological reactions and they cause cytokine storm event and they presented the plausibility of the theory in this case however as the government prevailed ultimately the case we we did not appeal the special masters ultimate finding concerning often however the special master concluded based on evidence in this case the petitioners failed to demonstrate their prime of facia case as to often step two and often step three well you understand the prime aphasia requirement of all  step case the other isn't shy face in which this court held that mordor to receive compensation a petitioner much demonstrate that the vaccination is not only the but for cause of the injury but also a substantial factor in causing the injury at that's another concept and finally the third one is a more broad concept which was talked about in the past for decision which is whether the vaccination can cause are reading of step two is as you read from the test itself that the maxim that there has to be a logical sequence of cause and effect showing that the vaccination was the reason for the injury and that is an actual causation concept brown why does that why why don't we just stop there what's what's the sense of saying often has two other requirements by the way if you've already got to show causation  well it goes to the nature of the evidence to prove actual causation there's direct evidence and circumstantial evidence direct evidence of causation i agree with you if petitioner is able to prove direct evidence of causation then there's no there's no other steps that they need to take it depends on the nature of the evidence that they have there is no evidence of direct vaccine causation in this case what kind of evidence my talking about some type of biological testing that actually demonstrates the vaccine virus we have that in oral oral polio vaccinations where you can actually get anterior horn cells in autopsy that match to the vaccine type there is direct evidence of action causation they don't have to demonstrate problem one or prone three there's actual proof the vaccine caused but in the vast majority of vaccine cases including this one there is no direct evidence and they and the petitioners have got to rely on circumstantial evidence and that's where the all the tests come in to attempt to weigh the persuasiveness of the circumstantial evidence well but the all that sounds like you're leading up to saying that mr gage is characterization of all that is actually more accurate than the one that i that that it isn't proof of actual causation is proof of several different circumstances only which give rise to an inference that there was the causation which inference is sufficient if unrebutt to satisfy the bird well the problem problem we face your honor is we do have binding case law from the circuit and and the binding case law gives us that the petitioners have to establish all three steps of all things it's difficult for me to argue thin supports prong two i mean problem three of often talks about the proximate relationship between the injury and and the claimed injury and the vaccination well there's both literal temporal association that is what happened afterwards and then there's medical one that is it happened within an accepted medical timeframe from which you can infer that the vaccination was the cause of that injury but in order to  two needs to address the evidence that's in the case and if there is evidence in the case which glaringly shows that there is an alternative cause for the injury as part of the waiting of whether or not from the special masters perspective that the petitioner as presented sufficient prime of facia evidence of that but for the vaccination this injury wouldn't have occurred and yes your honor any any any clear evidence of a of  alternative cause it's in the record i should say petitioner doesn't have to rule out but if they fail to rule it out depending on what the nature of the evidence is it can undermine their ability to prove but for causation  the special master says well i've heard all the evidence and i am persuaded that there is not been a prime aphasia showing of causation under alf and because i think that you haven't shown by a preponderance that the vaccine caused the condition instead i think the evidence that the government has pointed to of some other cause  statutory what is the what's left to happen at the second stage that will author talks about i think in that scenario nothing right nobody or nothing i mean if you think if a but then  what if when are we ever going to have a situation in which the author scenario is actually going to play out if if you're right that in looking at causation the special master has to consider the entire range of of events including other things that may have precipitated the injury even if if you have a series of events and yet you don't have another explanation for the reason that something happens it makes the one explanation you've got seem a lot more likely that it would be if you got three other really good explanations agreed agreed doesn't that go to and the question of whether there's actual causation so if that's necessary to establish actual causation if that's required under oath and step two what's the statutory role what's the rule in that the statute assigns to the government's r case with respect to other costs well the petitioners burden isn't to rule out every other possible cause that there may be that that would go too far as far as their ability to demonstrate a logical sequence of cause and effect this court has pointed to the kinds of evidence the burden of production if you will that that a petitioner has to present to meet their evidence one of it is the testimony of treating physicians that link the vaccination to the injury even if there's other evidence that might cause of the cause of treating physicians are linking vaccination in the interest but if they do in an unequivocal way  that is a sufficient level of proof for the petitioner to satisfy the second prong of all of it's a type of evidence it's circumstantial evidence that that the petitioner can rely on even if there are other causes in the record that the government may be able to point to so that you know that might be an example where granted there's another cause in the record but the of the balance of the evidence rules in petitioners favor in the burden would shift to the government to prove that that other legally legally i'd have to agree that that the petitioner does not have to rule it out but as a practical matter as in this case they may have to in waltham don't quite understand that because causes and there is no relationship between the injury and the causes that are raised by the government at that point i would have to additional information evidence  and eliminate all of the other causes the government does bring in the particular evidence as a petition to have the opportunity to rebut or the point to allow for mere temporal association after vaccination it creates the presumption that the vaccine caused it and so factor unrelated was a construct in the act that allowed the government to  got to demonstrate based on the record as a whole which includes evidence that may indicate an alternate cause that more likely than not the vaccination was the reason for the injury i don't have to rule it out but as in this case their expert attempted to rule it out sids evidence because there was no other evidence of vaccine association of the temporality and so in order to bolster their case the petitioners attempted to rule out another cause that was already in the medical records the autopsy report itself expect of his own report he was the one that he didn't really know we hadn't put on our defense he put that as part of his his testimony and that of course the special master in attempting to test the subjective beliefs of the experts looked at all the evidence i think what you're saying is the the the question is don't have the burden to rule out other causes islam is this other causes are unconvincing it doesn't make a lot of sense to me that it's a difficult construct or are i mean i we would you're saying is if those are the constants would lead one to conclude that they rather than the vaccine caused the injury then they better work very hard at the prime official cage before they get to the prime that they should determination to eliminate those other causes they they may say they don't have a burden but the consequences of their not persuading the special master those other causes did not cause the injury is that there will be found to be no spine the fish you case under oath and step to my wrong well i believe this court kind of knowledge that in walther when they said as a practical matter look at this the petitioners may have to address other known causes that are in the record when there are the when the rest of their evidence does not raise to a level of crime a facia and title so does this all go to the weight of what the other evidence is i mean is that does it just is it just case pacific in terms of what burden you placing on the petitioner with respect to alternative process is that merely a factor based on the strength of the nature of the other evidence of causation i think in this case pacific and it's based on the patella the evidence in the particular case i think a special master with the straight so just carry that one step further with the straight of their other evidence proving causation in a particular case necessarily decrease the the because the more that would that be the case i think the more hypothetical the more the nothing in the record to support an alternative cause the the less likely a petitioners have to attempt to bolster their case dispositive but it's part of the evidence in the case petitioners recognized that if there was no other cause for a sudden death of this infant four and a half hours after vaccination and that would help bolster their argument on spurious circumstantial evidence that the vaccine more likely than not was the cause because again there was no evidence in this case linking the vaccination in any way to the other than temples  a practical matter the petitioners needed to address what the autopsy report concluded was the reason for the injury or one of the reasons for the death necessarily because the special master was required under the act to consider the autopsy report she wasn't bound to find obviously that the vaccine caused the death she needed to weigh the circumstantial evidence the petitioner put forward test its reliability  trustworthiness and then conclude whether the tell of the evidence showed that and it didn't in this case as the court or federal claims below found going through each of the petitioners theories and the evidence the special master found that the subjective beliefs of petitioners and experts simply didn't comport with the facts of this case what is your interpretation of the government's interpretation of section thirteen a t position that the back scene act also requires a special master consider any diagnosis or conclusion contained in the record are supposed suppose the conclusion is that this was a child died from idio c seizure in that situation that would not be factor unrelated evidence because it's idiopathic however it would be some evidence that there's no in a case like that the petitioners are arguing that we know the cause of the seizures it was vaccine related that medical records say there is no known cause for the seizures it's idiopathic that has some relevance and whether the petitioner has has is meeting their master in waiting and probing the trustworthiness of petitioners expert the conclusions that are already in the record even though it's sids even though the definition of but that doesn't mean that to the vaccination there's nothing in the vaccine would under your analysis when would factor unrelated ever be pertinent as a matter of the excluding evidence of sids seems to me you just described a regime in which the diagnosis of sids comes freely n and at the end of that determination special master makes it binding as to causation and if the special my semester finds no cause causation or for that matter finds that there was  pathological evidence that you see in suits but it can explain the nature of the pathological evidence petitioner saying oh this is indicative of a vaccine injury if and that's what the special master do in this case she took a look at the pathological evidence in determining whether the wrist rebuilt bhima for example a key part of the petitioners case the autopsy report found no cerebral of the month it's perfectly legitimate for the special master to look at that conclusion of an independent coroner and use that to probe the trustworthiness of the subjective finding of the petitioner's expert even though that was part and parcel of the suit is open at least since diagnosis and the government and what bite would section thirteen a two a half win with the government have to say us we can't introduce this evidence because of thirteen a if the special master found that the child didn't die because of the vaccine in light of the evidence introduced of sids and that the ok in not the diagnosis of sids per se the evidence that is when the when the petitioners are saying this pathological piece of evidence is more consistent with a vaccine injury it opens the door for the response of the say it is not consistent with a vaccine injury and moral and that it's consistent with this kind of injury even though we might not be able to prove a factor unrelated we're analyzing the elements of the bath a logical evidence by saying petitioners position is not trustworthy if we weren't able to say that then it would be more trustworthy if we if we were unable to present any evidence that there's another explanation for that and em or for that heavy brain or for that that that pathological thing then that wouldn't hants the petitioner's case but we were able to do that and we didn't rely on the sids diagnosis to defeat the claim we have related on the pathological interpretation of the expert this case went down affect it because we're not as i understood the record tell me if i'm wrong we're not just dealing with the blanket assertion of sit or even that diagnosis i mean we're dealing with the fact situation that included certain of that  specificity of the kind of evidence here might not be your typical throwing in just that which is a cause that nobody completely puppy hath not right about that you're correct if you're on it as the special masters decision did in this forty three pages analysis she was focusing on the facts of the case where the facts of the case pathological implement really meshed with the petitioner's medical theory of causation and whether there was a logical sequence of cause and effect between the vaccination and the injury she was looking at the pathological evidence the expert testimony not just sits it was the situation where she said well you know i have all your all your evidence but i have evidence of sids here and therefore i find that's most likely sit as opposed to no she was using the evidence for a limited purpose and that was to examine the nature of the fact she applied a sensual rule of reason if you will looking at all the evidence and concluded that she simply was not you you're on our site actually don't have any particular i'll say one thing i guess if you have any questions for me that certainly you feel them but you are anticipated to most of my comments with your questions i would just say that reviewing walther there is no talk that walther anticipates that the analysis of titian's prima facie case in response factor in related cases or th brief of course in the specific citations they're in but there is no time when those are to be combined those are separate analyses and that's the error here are they i mean there are several errors i pointed out that's the  here that we've been talking about special master admitted she combined that analysis she pointed to this court's holding in debate isn't that this court has authorized that combining of analyses and i believe that that's fair under debate and i