much of the facts as i know you've probably read the briefs but basically he received the m m r vaccine within ten days or so he developed severe bacterial pneumonia there are not a whole lot of disagreements in this case or a lot of major which has the ability to recognize pathogens and then the adapt should be shielded by a credibility determination on the experts i believe that's what the respondent is trying to do here they're trying to phrase little ashlyn happens in these i've seen cases you have a bunch of different scientific evidence or a lack of scientific evidence your side comes in with that expert explaining what the facts show their side and then with that expert try what the facts show and the special master looks at all that evidence and makes a factual determination based on that and generally that's the role of the special master it's not our job to read judge that actual determination unless it's completely lacking in support and that's our position it's in my class problem so you're saying that the government's because that's asking us to weigh the evidence it has to be that that the government expert is not entitled to any way whatsoever but isn't the government that's for a pediatric immunologist that practices mice are in support of our theory often one in my logically plausible explanation meaning that the cells play a critical role and then you start heightening the standard and you say well prove it to mean human now you've just created in others level of certainty i present human studies that echo the studies of of mice not only on top of that i give you evidence from the national institute of health supporting my theory i give you a company that is actually trying to develop a get up but these are all arguments that are directed to the special master about the evidence you're presenting have he rejected it and instead relied on the government's expert who explained i think with fairly sufficient detail why he disagreed that this would have cost the specific infection if we accept let me put it another way if we accept the government's x purpose evidence as true then aren't we just in a way situation where you have what you cite as an entitled in no way whatsoever well my response to that is if we look at the case law that's come out on this issue andrew said credibility determinations are not to evaluate evaluate whether an expert witnesses medical theory supported by the w set aside the credibility determinations ok and look at the epidemiological evidence our point is she shielded it he basically said writing on lines of what you're saying shielded from appellate review by looking at credibility determinations of the experts without looking at underlying weight of the epidemiological evidence case after case that has been citing this court says that's the wrong way to approach it but that's accept exactly what he did i don't understand what you're saying he dennett disregard your evidence he weighed it against the government's evidence and determine that the government's evidence was more corrupt and you point to me any in his decision where he excluded your evidence rather than just found it insufficient you can't point now where he actually excluded the evidence what i can say  experiments and that the results from mice and extrapolate that humans and we there is some science to suggest that mice respond to pneumonia bacteria differently than humans do best the the my studies the human studies are modeled in and and so i don't understand given that the government expert appears to be better qualified here than in your expert who is not an immunologist why aren't we just stuck as a review in court to give deference to what seems like a muddled record not something that i think we could regard this as some kind of overwhelming record in your favor that would make any contrary view impossible what is the evidence that the special master relied on to conclude this record isn't conclusive where did the special master go wrong i thought he went wrong in number one taking a company that was said that when you have a bunch of researchers that are actively investigating an idea and they're trying to develop it the vaccine act requires no more in that particular case he wanted a vaccine that was sarah type independent that would and then how do you judge suppose that with the fact that you have human studies that actually echo the very findings of the mouse pens in other words we're we're we're creating a situation where no petitioner can succeed under the standards we have my statements that prove our case that they conceded prove our case we have human studies epidemiological studies and yet we're this expert he comes off better then your expert but you're the government's expert doesn't have an ep any contrary epidemiological evidence doesn't have any contrary concerns just simply voices dissatisfaction and his contrary opinion whereas we have an expert that perhaps isn't as well versed i understand the point what he has the epidemiological evidence then in in but as to how powerful an impact they certainly contributed did they not to the conclusion that there was not causation your honor for the mouse  extrapolate and humans yes he said they didn't apply to humans that's correct or and our point is that what the government's expert also said that these specific studies were automatically attacked it with our human studies and in mc i didn't want to have it all i'm just curious i mean it seems to me that for you to prevail you have to demonstrate that the government experts opinion la the way if that's the case then you should have made a daubert motion to exclude as testimony is not you know either relevant or sufficiently explained or not based upon sufficient evidence for the light but you complain of that all that special master accepting the government's expert but if he wasn't challenge that he would expect x except that as an expert in what he says is evidence supporting the decision as it look i in my briefs i explicitly and in arguments all his literature that he was trying to use was based on fungal infections not one mention of pneumococcus in there and it doesn't square with the human costs you tell me where the special masters opinion the special master said that studies are completely and totally irrelevant when it comes to understand in human biology it's important for someone relying on my studies to explain what the similarity is in biology between humans and mice and in this particular instance dr lost in what did not make that kind of comparison bacteria differently from how humans respond to pneumonia bacteria there's some kind of and that one mammal has it the other doesn't you understand what i'm talking about here i don't quite see anywhere here where the special master's a lie studies are just off the table question asker appears to be considering what each expert said and did not say on this question and i think our response to that was that is an impermissible heightening of the burden of the standard causation every researcher just from a common sense and point uses mice in their experiments and even the government conceded that we wouldn't be doing these experiments on mice if we couldn't extrapolate the that statement certainly leaves the impression that relies was not placed on the mouse studies which i think supports what you are trying to tell us then that is very good there are other difficult today's troops a long time if in fact it was a consequence of the vaccination you are our argument has been from the beginning that raising the standards and got them just two years old did he suffer from any kind of rough sure negative reaction to the first that solution not within a medically acceptable timeframe he had a rash but when we investigated it it good morning ma'am please the court would like to start with just a corrections has something that was just discussed the first m m r vaccine was actually given when r t was one year old and the rash that he allegedly suffered earth any of the case that petitioner said he suffered occurred about one year after that there was absolutely no relationship between the rash that r t d purportedly suffered after the m m r vaccine and the initial vaccine your honour's the critical question presented in this case was one of specifically how the human immune system responds when confronted with the mechanical bacteria after carefully considering the entire record special master determined that petitioners proper theory was not grounded in reliable science in reaching this conclusion th not a table injury and the simple fact that the child developed pneumonia a few days after getting the m m r vaccine does not legally or scientifically show that there is a causal connection between the two there are millions no one cases of pneumonia that occur every year there is not an even a single case study that shows that that even suggests that there could be a causal connection so sometimes things happen within temporal proximity to  i think it's very important in this case that petitioners did not present the testimony of an immunologist nor did they file an expert report from an immunologist because shooters here are trying to overturn about one hundred years of well established romper if you look at the transcript at a pretty good job explaining why you can't extrapolate regarding this particular bacteria and this particular type of  was not just speculative it is unsupported by what is known about human immunology and it isn't supported by medical literature and in fact this theory has been tested this is a rarity in our program we actually have a test that was done bringing that theory into play and that was the vaccine and the vaccine failed they stopped the study because it didn't work so i think when you look at the over it and the scientific reliability that  trying to bring out you can you you have that here it  injury and they must show that the vaccine was not only the but for cause of the injury but a substantial factor in bringing it about on dr location on two occasions when asked whether or not the vaccine was a substantial factor in the development of argues pneumonia said he didn't know and i can give you those sites that's appendix at seventy thousand and the appendix at sixty six there is no treating physician support for petitioners plame there is no challenge reach challenge the simple fact is that d encountered an antigen that he had not before and he was unable to that it it was sad we're very happy to hear that he is pretty much recovered but the vaccine did not have anything to do with it other than the fact that it was given  temporal proximity to to the to his development of this condition this idea that and i brought it up in my evidence and this is what i'm talking about reducing the level of proof to a level of certainty we have a vaccine company putting in millions of dollars into a t selby's accident now we have responded arguing with you didn't achieve it if you achieve a t cell based vaccine at a stereotype independent you would win the nobel prize because now you don't have to have pneumococcal vaccine that depend on any combination of the ninety or so several types that are out there the whole point of bringing up this research was to show that we are actively working on a t cell based vaccine and to show support for our theory just because we haven't come up with the proper cocktail to actually be able to manipulate he improbable the fact that we actually have companies working on a human t cell based vaccine tells us all we need to know do we need them to actually succeed i think not man who has multiple levels of law and i bottoms to many several types but he doesn't get sick that directly contradicts the government's theory that low levels of there's multiple case law that sort of discussing this dichotomy between how we view experts and the underlying medical evidence we may not have had the best messenger for it but we had epidemiological studies we had conclusive medical literature and you're set credibility determination are not to evaluate whether an expert witnesses medical theory is supported by the weight of epidemiological theories and literature that he presented that should stand on its own regardless of the messenger that presents it otherwise as i said the appeals here are a few top it just becomes a subjective belief on which expert sounds better or is more credible position that there should be another review on the more likely or not basis an issue that i think we may very well not be authorized to decide on this appeal i certainly understand the concern but i would say let's look at the camel case the camel case the said that it was error as a matter of logic to find the medical literature we use against causation if the articles reasonably stand for the proposition that the vaccine can cause the particular injury and that's part of what i'm arguing today is that it is an error is matter of logic to take twenty three mice in human studies with the pneumonia i mean i certainly i'm not asking you to try to reweigh everything but i am saying as a matter of logic and as a matter of what the standards of causation are it is said it is an error to apply a standard of scientific certainty to medical literature and that he did me a logical evidence and that's where i go back to the to the company that was developing vaccine based on the very premise that we were arguing today north and want she wanted the vaccine to succeed that boosts it to a level of scientific certainty and i certainly think they're trying to extrapolate to humans is now going well beyond just for a moment think about the implications he would have on the vaccine program now every petitioner would have to bring in a biologist to take animal injuries and do the real problem is when these lines were drawn how do we penetrate the fact that there was not the statutory presumption you saying one should provide a plausible case the government isn't allowed to rebut that at all i mean what happened is you presented a bunch of studies that show what they showed the government came in with its evidence and said it shows something else and under the regular center to prove the special master says i make my factual fighting based upon the government's evidence that's not a hate is standard that just disagreeing with your evidence you know i mean there's you know there are instances in various aspects of the law where if a plane or petitioner makes a prima fashion case then the government either can't respond or house to overcome that response by a higher standard of well i believe that it was error to rule against sense because i believe that the medical articles recently stand for the proposition that the vaccine caused an injury i don't think any leap person looking at the conclusions of these articles would come away with any other conclusion how can lay persons actually read these articles and come away with any conclusion when we're not experienced or have any kind of knowledge in this specific type of immunology that's what expert assume that the government support certified immunologist who has expertise in this area would come to the same conclusion as you but he did that an expert for the government says he's there to attack our conclusions and again if he wasn't credible or reliable or had no expertise to provide an opinion you should have moved to have him exclude it absent that the fact that he's an expert for the government doesn't detract from his overall overall weight of his testimony