in five zero five seven i'm overly against the secretary of health and human services controversial there's no direct scientific proof that any vaccine causes any permanent injury is not direct science but circumstantial and so the the federal circuit encourages the use of certain circumstantial evidence here it seems to me on this record you've got with respect to causation you've got three doctors torqued hong and harrison none of which i was i read what the records said they all declined to find a ca solution and you got that expert on your side after kim porn who was discredited by the special master so i'm having a hard time figuring out given our standard of review how we're going to get to the results you want us to how long the seizures would be and how quickly within the one we would have to be thirty minutes or longer in duration all of that and and none of that evidence was presented by the government in iran a first of all the the comparison between i at the right difference between pro and wally thread and i think the author and case and the grant case both have said quite explicitly that the absence of some other cause and the tempora say that that no matter what in individual special master could conclude because in this case the special master concluded that the theory was biologically implausible i think that's the language  testimony but i guess you would say that you can't accept that finding because you would say i take it that andr you establish is to the contrary and that going forward then i guess you would say that henceforth as long in any of these off the table cases anything more typical then the temporal association and lack of another obvious cause and that's going to be true of a lot of these cases the ones i've seen it's frequently the case right how do you when you go from there is just saying who wins and who loses because obviously andrew teach tells us that some people when you're an artist the what's the difference between the winners and the losers in that when you've got those two facts and not much more your honor i would disagree that all we have in this case is the timing and the lack of other causes we had the evidence that was the minute by the petitioners through their concern also submitted a proposed mechanism which he attempted to persuade a special master was reliable and the special master simply wasn't persuaded that there was enough support for dr consorts mechanism but it provided a basis so well that that's the point in which i don't really understand exactly what the governor's position is if you do agree i take it that the d p t the protests is ingredient of d p t can cause  catastrophic brain injury proponents of the evidence that that is the case right now but there will be some such cases there and the question is what is going to be present in one of those cases that isn't present let's say in this case i can't speculate to what might be president and other cases but as to what is present in this case it was the petitioners burden to introduce reliable scientific evidence linking the vaccine to her seizure disorder and she attempted to do that through the medical records which the very early right wasn't that wasn't his a correct me if i'm wrong but i think that was long before the series of seizures that were released serious yes absolutely that at that point he's probably opinion that he ology was unclear meaning that he had more than ample opportunity to conclude later in time that the deep can see that he was the cause ok no but he never says he never been reiterated the notion that this is inconsistent with the that you're correct that the explicit statement where he is addressing the vaccine is only in that one record however it would be reasonable to infer that he was aware of the parent's concern about the p t a and he could have revisited it council some mention we have two cases all right we have one case where there's a doctor who testifies in the doctor says i'm aware of only two things that's it i'm aware of only two facts there's a temporal proximity to of the seizure to the vaccination and i can find no other cause for the seizure therefore i conclude causation exists and we have the next case where you have a doctor different doctor says i'm aware of only two vets guess what were the exact same two facts  ot a single minutes difference in the temporal connection no difference at all no other cause established that doctor says well based on this i can't rule it out but i can't say for sure what caused it because you know i'm a little nervous about how we treat legally those two cases differently because that's what you're asking for here well and the court precedent of this court is that the way this court treats that situation legal use th one well the doctor says based on the same two identical facts i can't conceive not the cause but i can't necessarily say it is the cause what do we do is that really the distinction that is the difference that we hinge all of our precedent on the vaccine  record that that statement that opinion needs to be placed in the context of all of the other evidence in the record the second answer that question is that the doctors and there should apply that that the supreme court has said that that courts that are evaluating scientific evidence should make sure that that evidence is reliable before it's given any weight and so there should be an inquiry as to whether the you know the doctor whether there's some basis for finding that statement that may be president the case judge moore's to hypothetical question is that the proper disposition of those two cases they came up exactly as she described and with no further elaboration the proper disposition by this court would be to affirm in both cases compensation which the treating physician said yes and the other denied compensation then i'm going to ask next about if there was denial of compensation the first case but as to the first affirm both and i would  argue that under this court's precedent that those are back intensive findings by a special master and they're entitled to government so i guess the answer is yes so yes now in both cases the special master says no even here i am sorry could your call in other words well what we've got is the is the problem we're facing here is if we have identical cases in which the only difference between the two cases is that the treating physician in one case it said i think that's the cause and the treating physician another case says i don't i can't make a judgment as to whether it's the cause or not but do we grant compensation regardless of what the special master says in the first case and deny compensation regardless of what the special minister says in the second kids and again in your eyes it's if your answer is no we don't compensation in the first case then i wonder what you do with and great which is that case as far as i can see and the reason i may be having trouble answering your question is because that those aren't the only differences between the two case committed legal heir to the special master had all but the court went to find it and simply saying there was a legal error the court then directed judgment in favor of andray which means not only was there a legal or committed but there was a factual mistake in that the evidence was not only sufficient to get to the special master but compel the conclusion of of judgment in favor of and correct that's correct right so you can't really distinguish that case on the ground that well it was a legal error because the court actually said that evidence not only is sufficient but it compels a conclusion these are what going back to my question which is really judgment question that what  found that there was unequivocal treating physician testimony right that that was the difference that judge moore pointed out right and so and that and the court found that that was sufficient we don't have that and so this case all comes you know like the i think one of them it took three days and one of many to two days that there are some minor factual differences but none of which would compel a different result the other the other difference that i did want to point out that was discussed earlier is the idea of whether  biological possibility of the medical theory was conceded and this court and dre this court found that that was not a problem often that was and disputed based on some language that  interpreted as the government's expert in that case conceding biological possibility but if you go back to the special master's decision and injury to this is that two thousand and seven was brought to seven to six one five seven and start twenty of such an effect from the vaccine as routinely administered to people so there there's a difference between the fact that biological possibility was not conceded an injury it wasn't really conceded in and  case but it's a distinction that we should give credit to in this case no it's but it's a distinction in the sense that the court and drave you set a course in drag and made a mistake and that mistake is the basis on which we should not might not made a mistake in this count or say shut down that that was not was simply trying to make the distinction that it wasn't based on a concession by the government's expert in that case that was it was based on language that was and the special master's decision but and that that conclusion was made oh ok