program the case has to do primarily with what the special masters in the vaccine program and the court of federal claim should use as the standard for finding reasonable basis for a claim right none of the treating doctors said that this particular vaccination was the cause of this young woman's complaints and we have basically what you're saying is what we should had time to look no that's  think the the problem here is when you look at what evidence is required to be filed with a petition in the st place you have to file evidence of a cover vaccination you have to file show evidence that the symptoms persist of for longer than six months you have to show evidence of injury evidence of injury consistent with what is being claimed in the petition you have to be able to articulate of a rational basis why the two might be connected but you don't have to prove causation there is there should not be any requirement for reasonable basis where a petitioner has to show that a treating physician said that the injuries were caused by the vaccination as this court has held previously and that rarely ever happens it could be true that you don't have to prove causation just but just putting that to the side you have to present some evidence of causation i mean i've been sufficient evidence to prove causation likelihood of prevailing not that as i said a minute ago not that the medical chart reflects vaccine causation in vaccine cases i've been doing this a long time that almost never happens so then i mean that's what discovery expert testimony and all that stuff is for the actual proof of causation right but isn't the real gist of this case is what you have to show in your initial you know claim before the special master on causation and it seems to me your are grey that lay testimony or argument attorney argument is sufficient in that in the st and since and the government is not requiring you to prove it but is saying you have to have at least two to quote my colleagues a scintilla of competent medical evidence so what's wrong with that argument well i think that what you what you have to show again i don't think in order to just establish reasonable basis for bringing a case in the st place i think what you have to show are all of the items that are required to be filed with the petition in the st place the medical record always only reasonable basis when your only argument about causation is a lay person i think your problem is that you're mixing rollout and there's no question counsel reasonably got something right with the causation requirement because just because council recently think something is and i would think well i think you're right i don't think the attorneys argument in of itself and standing alone wouldn't get you there but  all you have here is the parrot right that's the only evidence you have on causation is d the pair well the evidence that in using this specific case as an example which you have here if you have under oath testimony from the parent informatic david supporting the allegations supporting the onset supporting all that well sure look the parent can certainly competently testify to their child that a baxi their parent can  likely copulate testified to certain symptoms and to the timing but can the parrot ever competently testify to actual causation absent expertise r exactly no i don't i don't think they can but i'd also don't think that that is required again for establishing reasonable basis and we don't even three see what us and tell require but that there has to be some indication somewhere in the record at the time absorb reasonable d meaning that's the case there has to be and i think that there's not much authority on defining this term in the vaccine program but what the court has said previously is you're not looking at the likelihood of success you're looking at the feasibility for bringing the case in the st place and that if there's no evidence whatsoever no pop it up that's whatsoever on causation how is it feasible it's feasible for  the following reasons so the claim st of all satisfies all the jurisdictional requirements and what you have is a medical chart filed on this young woman that completely corroborates her under of testimony that's what judge williams found in the in cutting include that type of evidence beyond recognition or that's why your medical testimony of some sort well that's why you have experts yes and what happens in this case is you have evidence of the vaccination evidence of the injury claim you have all of the requirements until we went to retain an expert and in italy i mean europe you seem to be arguing basically that there's a timing test and if it if they can show that a vaccine was given  get you there is a bit of the pure is not qualified and let's just assume this parent is not qualified to make any statement about causation and then how do we have anything but timing here we have so we have a covered vaccine in the program we have specific injuries that are reflected in that vaccinations product monographs during clinical trials and post marketing experience we have and we cited medical literature supporting the connection between the two simply to show that special master that we have done our due diligence and that these types of things have been reported following this specific vaccination as the special master should have done we got to the point where it was time to get experts once an expert wouldn't opine we dismiss the case that case still has reasonable basis for all of the reasons we said and if this court is looking for medical causation to be reflected in treating doctors records that's go be in that case well i think i mean i think you have to look at everything in in our case which is what what i'm saying you have the vaccination timing is important it's not of the only thing but timing is important you have the symptoms that manifest that are reflected as as following this particular vaccination now none of her treating doctors said in her medical chart that they believe the vaccination caused it but you can look at all of that evidence to answer one question not causation feasibility would it be feasible that i as petitioners counsel could go retain an expert in autonomic dysfunction  particular type of condition who would opine it absolutely is feasible based on this record and that's what you're looking at you cannot look for medical causation in the nose but clearly the special master looks solely for that and so did judge williams on the unfortunately the rd time it went up for review because special master moran in the appeal in his decision says the key is causation and then he points out two things we didn't have a treating doctor we didn't have an expert and that that is not the standard for reasonable basis why isn't reasonable the suspect counsel to at least talk to a medical professional and get some kind of input well i think the i think the reason i'm asking for you know formal expert testimony as a mention or why isn't that raised well i think if you if the requirement is then that counsel has to consult with some sort of expert in the field prior the treating physician and and and say do you have any reason to believe that this was causing kind of the well the nd one is easier than the st the nd one as far as the tree physicians you know is they typically will not answer that question risk management won't let them get involved beyond what their medical chart says it could in some instances be reasonable to consult with an expert prior to filing that costs money and frankly i would only do that in a case where it was clear that that we were going to be moving on that was going to be my expert the only reason i would do that would be to answer to that interview question your honor the only reason i would do that would be to glean specific language from my petition as far as what the theory in libya is and that the kind of result basis so that you have to at least undertake some minimal investigation you can file a purely speculative case based on some kind of lay notion that this might have caused this and then seek to shift the cost to the government for that initial exploration i mean you see reference like ninety five percent of the cases but it seems to me that in most of these cases when you file that you do go on and get expert testimony and even if it's not sufficient you want to merely end up getting your attorney's fees because there was a reasonable basis this seems to me to be one of those rare cases where there's no evidence whatsoever linking this vaccine to the the child's condition or the and i think you raise an important point your honor because this i want to contrast this case with this court's pronouncement in simmons simmonds is sort of what started all of this as far as the courts being more strictly were in their review and the difference in simmons is that the petitioner's counsel didn't submit anything no affidavit no medical records reflecting the injury no proof of x and ation nothing and this court said you have to at least submit something you've got some reason and some evidence why you think it could be a feasible case and we've done that here evidence includes the proof of vaccination the witness statements the medical chart that reflect the injuries that are being claimed the only missing piece of the puzzle is vaccine causation if that was in this particular record there never be a question about reasonable basis because i'd have the treating physician say it was a vaccine related morning your honor smith please the court mr downing began with what was required to be filed the petition and i'm going to start there as well because i think it is an appropriate place to start and i believe this is actually where congress provided a road map for what documentation so that is the type of evidence that is supposed to be filed with the petition both an affidavit and supporting documentation and then there are a number of different elements that congress has included that are supposed to be a petitioner supposed to prove in order to be entitled to compensation i believe mr downing represented that section of this does not include proof of causation but that is actually not correct if the court will look at paragraph small that's right but but the argument and it's not clear to me that what is required for a reasonable basis under the attorney's fees statute correct and i think that is that is because the statute doesn't define the term reasonable basis that is what has caused a lot of confusion and with the special masters and with the if you agree that this is not at twelve the six standard or the like this is a pretty minimal standard to encourage people to participate in this pro correct and i think and but i think that what congress isn't visioning in intending is that a petition will include some supporting documentation to address each of the elements that are set forth in section eleven see how do you square your argument with with a similar then percy and this is where we differ on what the term feasibility should relate to mr downing i think characterize that as a is it feasible to allow the counsel to go on and continue investigating the case judges use of the word scintilla i think yes i mean i think that that's where you know the special master has some discretion and you know in determining whether if evidence is submitted does it rise to the level of establishing reasonable to and i i that i overlooked is that he did quite do this this and that or the you know the possible side effects of this vaccine and apparently it's a company literature or pointed out that the side effects match up with at least in part with the record of it that here why isn't competent evidence that the vaccine might have cause these symptoms i think this is again goes to what i think the question you were asking about  does an attorney's interpretation of the medical literature but i'm not asking you about the attorney's representation i mean you're not disputed i assume that the product literature accepting this vaccine they get i overlooked it so i would have to go back on the record to check  whether his representations are accurate but most vaccines call it a list you may have the set of those everybody but you may have them it comes with every vaccine right and so this one has a list of those is the timing of the symptoms based on the facts of this case but that would go through the bird's eye would go to actually proving causation we're talking about time but they do have some evidence in the record that the that the child was suffering from the same symptoms that are noted on the schedule your honor they have there is evidence that the that there were headaches by its petitioners own sworn affidavit for months post vaccination there were two episodes of training eight and ten months after vaccination there are mental problems about a year and a half going to raise my job to the symptoms and that's good or whether it's enough to prove causation that's another issue that's not on the reasonable basis that we're looking at but no one has said that those symptoms were caused by the vaccine as the problem not so your view is that even taking the symptoms and the accompanying product information as true it sufficiently tied to the vaccine there still has to be one further stop it would speech of all in the specific case to connect the vaccine to the the symptoms and that there's just no objective medical evidence here polly investigation with an expert or the doctors absolutely we see cases all the time we are physicians with and within their records say this it is possibly a post vaccination reaction draw some kind of connection and you know typically we would not make a reasonable basis objection in those types of cases because in our view there is at least some scintilla of evidence connecting the vaccination and the injury we don't have that here and and so that is you  know that is where this case is different then the other types of cases where you know you do have some evidence from the treating physician making even if it doesn't lay out you know a full some theory of causation that would be sufficient to satisfy the often requirements at least provide r so unless the court has further questions thank you accept that as i think as a general rule mr johnson is right i think that is true if the treating doctors have said possibly caused by vaccination or whatever in their charke we wouldn't be here probably thank you but as i thought i said in my national argument that doesn't happen very often there it does happen there are cases where the treating doctors will say that it doesn't happen very often  physicians are loathe to attribute causation to vaccination until your friends as these days they see it happen yeah it does happen i'm not i'm not suggesting that but my point is yes there does have to be objectively evidence in the record we have that here we have a lot of objective evidence that the affidavits the vaccination record the medical records the product monograph and so forth and  sub some of the significantly later the backseat that they are your honor so what i would look at in that instance and again i acknowledge i do not i don't have a treat or here that has linked the two costly  instead what you have is you have a healthy young woman the nation receives a vaccination manifests of certain types of injuries and so who were that are again reflected by the media faction or and it wasn't just  marketing experience mr johnson but i mean the political process we did all the facts here we understand i guess the question for me is you're asking us to make at least at this stage allow you to make it and her it's based on the vaccine d and the product sure and it but there's no real proof of timing or whether this is insufficient you want that at the end the government wants you to do at least initial work to provide at least a possibility possible explanation for any qualified medical profession or that and that i mean they do point this out to it it does suggest that that's what's required of the petition and so if the petition requires all of those elements then why don't you have to time the and i think we're speaking about different things whenever they they talk about causation from the petitioner standpoint what we have is the vaccination medical records  documenting the harm the harm to gay and post vaccination now the missing piece of the puzzle is medical testimony whether it be from the treater or from an expert and i think that i mean it's a not just testimony but reflected in the record i mean you don't have anything to show that it was caused by the vaccine which is the language of the statute from from a right from the treaters there is no none of that is is in there and reflected in the medical chart we probably wouldn't be having a reasonable basis discussion i get it but if you don't ringback have causation of like right then why isn't it appropriate under the statute in the resoled basis statute to require you to get at least some opinion and they may not be formal like and i understand it's money but before you file the complaint well i think a perfect example of that your honor is and i make pronounce it correctly it's in both sides briefs i think the pereira case  that case is very similar to this one in the sense that the case proceeded along the court order counsel to get an expert and counsel didn't give very good mom the  expert's opinion wasn't grounded in fact it wasn't based on the records it was just wholly speculative the court there has status conference with them and said that's not going to be sufficient but if you so if you proceed forward and i'm not convinced you're going to not have reasonable bases and that's exactly what happened that the court's going to have a reasonable basis up to that point but at least there they have that expert opinion that was possible even if it was after the fact the turn to be wholly unreliable result basis whatsoever but the court get alerted by the look you're in here you know here's my problem it seems to me and maybe you're not doing this but it seems to me that you're arguing for some variation of a knowledge timing to us that just doesn't appear to be in  congress knows how that act is kind of knowledge timing tests they do it all the kind of time for other programs they do it in veterans benefits where if you you know were in vietnam and you have a list of diseases you don't have to  do it in the whistleblower context if you make a disclosure within a certain amount of causation this person presumed and i just don't see how we read that into the statute but it's not there let me and i know i'm over so let me  describe where i think that to answer your question this place that i think special masters clearly have discretion they have discretion on a case by case basis to decide whether or not reasonable basis  that's well so the problem with how special master moran handled this is he looks only for causation he looked at whether or not the treating doctors connected it and whether or not there was expert testimony instead of the st time it went up to judge williams in cottingham two she said look you need to look at that the whole thing of simmons was still an issue in that opinion and that's sort of what created some more appeals but she looked at that from a medical record requirement that the medical chart corroborate the allegations being made that they corroborate the injuries being claimed to be due to the vaccination certainly the only missing piece is causation but again you don't need that for reasonable basis that cannot possibly be the standard to evaluate a case at the outset as far as whether a treating doctor says or thinks it might be vac related given the history of this case even if we were to agree with assuming that we have agree with them or what would happen we would remain and and so that the special master can look at the case again and not with the causation feet i think the st part of your question is it is your right that i think from the appellant fischer standpoint that is what should happen remember the procedural history here is when judge william for the st time she remained it back to the special master for that exact reason and at that point in time the special master looked at the case and said well if that's what i'm supposed to do i think the affidavit satisfy reasonable basis all by same record the whole time i almost think that that level of a procedural disaster that we've had in this case reflects that there's a question here about whether or not this case has a reasonable bas the not when it talks about the evidence that's required instead of if i remember correctly simmons says as i mentioned earlier there must be some evidence there must be some object of evidence and i think the way simmons phrases it is evidence of injury i don't believe simmons says anything about requiring causation evidence and that is i think partly what has taken us down this path over the last two or three years is one camp wants to look at it it's surely causation if you don't have causation you don't have a reasonable basis and the other camp t petitioner side looking at it as the special master should be able to look at the everything the novelty of the vaccine the medical records the complaints the product monographs all of that is evidence that is filed in this