residency program there in the andrea case this court said of the special master could not reinject requirements that had been rejected in the all things case by talking about the credibility of experts credibility problems in this case the case of what future isaac the special master tried to bring back requirements rejected also by talking about the reliability but reliability tory's medical theory let's be very clear and let's compare this case with the often case both cases involve tetanus vaccination both cases involve auto immune neurological injury both cases involve petitioners experts who proposed molecular mimicry as a medical theory in alton the case involved a possible link between tetanus vaccine and central nervous system injury a sequence here there are two unproven in medicine in the locution isaac case we are dealing with a possible link between tetanus vaccine and peripheral nervous system injury also a sequence hitherto unproven in medicine well actually that's not quite true there has never been a report like pollard selfie and there has never been an admission by the institute of medicine that te vaccine could cause the injury in the in the open case that has never happened with regard to tetanus vaccine causing harm or a syndrome the institute of medicine did find that the evidence favored a causal relationship that was there that was a lot that was their statement for many many years it was based on a single medical article that article has not changed the facts of that article have not changed but the institute medicines interpretation of that are article has changed they now say that it's no longer evidence that supports a causal relationship but now that there's not enough evidence to say one way or the other most of the cases in the vaccine injury compensation program fall into that category if you have an injury where the institute of medicine says the evidence supports a causal connection that injury should be or usually is moved to a tape and becomes a table entry today ninety percent of the cases in the vaccine program are not table entries when the program first started many years ago and i've been involved since the beginning ninety percent of cases were table in three cases the table was changed one thousand ninety five by the secretary today only over ninety percent of the cases are not table entries there causation in fact cases that ninety percent of the claims are ninety percent of the cases table cases people might much less likely to go to litigation we rarely find civil cases or are there just they are most of the new vaccines are added to the to the table for instance are added with no injuries so yeah gardasil vaccine or influenza vaccine or any of these vaccines are exceptionally at the table less no injuries they may last at a flax is within a few hours of vaccination but no other injuries are less of it so most of what we do in this program involves non table cases proving causation in fact and the court and also made it very clear what's required what is required is a medical theory of causation a logical sequence of cause and effect and the appropriate temple relationship those three things you can you just help me explain to me the difference between one and two i have a hard time understanding it myself but i think what i can say is that a number is one of that generality in the eye there is the specific facts i think that's right rather i think that number one has a medical theory stating how the vaccine could cause an injury so that's the theory number two a logical sequence of cause and effect means that the facts of the case have to fit that theory and the court has some said that you can combine one and three to get to another if you have a medical theory and you have a striking temple relationship which we do in this case the court has said i believe in capital r mainly other cases we cited that you can combine one and three to point that it shorts out and when it shorts out the need to be motor nerves which causes weakness or sensory nerves which cause tingling numbness that type of thing the government had expert witness in this case right yes dr lies and the special master specifically when you're talking about highly qualified experts and both of these general highly qualified experts there's no issue of credibility credibility as a fact witness as you believe what they say about the facts well then persuasive i think the word is reliability in this case th court is not using credibility they're using the word reliability and the reliability is not directed toward dr toward a tory or toward dr leifer the reliability has to be directed toward the medical theory so let's talk about the medical theory is memory one of those cases was he said in the case of camp le back to junee which is a gastrointestinal virus they have actually sinuses actually identified what it is and that virus that may weeks after the vaccination nine of those were caused by the vaccine one may have occurred by chance alone that's overwhelming scientific certainty to this day we do not know what the specific antigen is in the swine flu peripheral nervous system island we still don't know that we don't know that for most of the auto immune cases that we deal with if we have to prove them ology which is what the special master was really required if we have case is that you need to reverse here because the special master committed legal heir x x li requiring you to prove a molecule requiring us to show evidence she  and scientific evidence of scientific proof scientific proof is different than legal proof we all know that where did she say that she was she talked a lot about science based his science based opinions or what she did was she said that history the doctor noticed that ten years previously when the guy had gotten his tetanus vaccine at that point he developed the embrace syndrome after it too well they didn't learn because ten years later the guy got another  hasn't changed is that what they said what the doctor said is that what we didn't do every possible test really rule out every possible virus but let me point out that the government but we quick to say that many viruses illnesses can cause the embrace syndrome but they don't please the court the decision fill our grits with citation to and correct application of this court's precedents it's clear from petitioners case here today that our true complaint lies with the special masters evaluation and weighing of the evidence matters uniquely within the purview of the fact finder however because the special master considers the relevant evidence stated and applied the correct legal standard and articulated a rational basis for her fine day we ask you to argument about what the relevant legal standard is for causation and their argument as i understand it putting aside the high credentials of their expert which is not a substitute for the of the of the theory that the theory is sufficiently sound in this regime because there was the pollard article and even though the institute of medicine has walked away from making enough firm it is inference based on that article there really isn't anything to put on the other side and that's enough something like that none of which question was what the special master found i think if indeed that is enough so why is that not legally anough in this  to the vaccine at issue or the injury latch are insufficient and here it's not just that the institute of medicine i went back in two thousand and eleven and re examined that clinical as an entity within the report they separate that out i understand that so my question is how are those things actually different or or how different are they either here question required not required been allowed to investigate the soundness of the reason supporting his appeal let me ask you a hypothetical what if let's rewind back and say we were all here in this room in two thousand and eight and so the two thousand and four i o m study was still out there in the government's view would that be enough of a causal connection that establish a causal connection not at all in fact to be defined in this ca had the institute of medicine proclaiming that yes in their estimation on the strength of that study there is causation between the syndrome and the vaccine what more do you will every case is adjudicated on its merits and the reliability of an expert's opinion in any given case is going to vary depending on the facts of the case the expert witness there but you have the institute of medicine is report in two thousand master might have taken a look at this case and that evidence in consideration of all the evidence the records and they might have she might have found that that was sufficient to me prong one but we won't know that there might be other factors in the case that would allow a fact finder to consider that as events but not find it preponderate not find that the totality of the circumstances and facts of the case on rose to a preponderance level more likely than not that the back being at issue in that case actually cost the person's condition that's worth noting that in this simply well seated maybe this is a guess a version of the same question i asked your friend on the other side what what is the additional over the alteration of focus when you move from one to two and that's why that i'd say i find this whatever this logical sequence language and often to do not transparently clear i think you hit apply it earlier and the difference between the two factors as it were is the distinction between can a vaccine caused the injury a and what is a part the size of the tissues expert is too large to constitute a reliable theory was all this as it does so by asserting a possible analogy between the vaccine and an unrelated bacterium that actually has not it misses the point why isn't the pollard study a lot one too to give support to a reliable theory well in large part because the pollards all the article no longer stands for the proposition that challenge re challenge applied to tennis vaccine and g p s a specific injury at issue and number two because they were going to spirit in this case that the petitioner here had to form a g p s a i d p as a port opposed to the  through analogy she didn't require medical literature per se but i think when you look at what was offered in this case it's dr up this it isn't always a reliable medical theory we have doesn't that in for an to some point or or making incremental steps of logic to get to a certain result say because without the evidence being there it's hard to imagine what it would be a good beach case reports it could be a number of things all relating to the experts testimony and put no thirty three in a special master to since she left three totality of the evidence including the expert's opinion in that case how they supported that opinion it's of how i mean it gives some details what's the claim to support that was provided there that is missing here some that molecular mema create could have been at work and that position was case based on things like clinical signs and and things that he brought in from the articles on so i mean what did i know were at the level of  where special masters have found that there is and like the special master here said there is some balance between the evidence she had here and the higher standards of scientific certainty knew understood the difference between the scientific standard and the preponderance more likely not the not standard in the vaccine program but that she wasn't requiring scientific evidence that she needed something more she was entitled to reliability of the scientific experts testimony is the same as different for seven  and the daughter factors obviously have been approved by use of a special master to determine the reliability of an expert's opinion whereas it differs from dobber generally is that evidence in the vaccine program is almost always a minute and the dog or factors are used to assess the reliability of the opinion offered by experts including the foundation of their opinion you know if an expert gives a conclusion wh to be brief one of the things that counsel talked about was the fact that you might be able to have evidence from case reports one of the things the vaccine compensation program has done is to basically eliminate this report from medical literature because what happens with a case like this for instance the doctor no longer writes a case report he sends a thing into the vaccine adverse event reporting system there are plenty of cases in the vaccine adverse event reporting system of  vaccination they just don't get written up in the literature anymore but you actually didn't write them no it doesn't have to because we're not required to use medical articles or epidemiology those are not required the the daubert that you talk about is very important because the the issue is whether his methodology was sound his methodology was clearly sound because even dr weiss did minute that the molecular mimicry theory is a valid medical theory there's nothing wrong with the theory the often court accepted molecular mimicry protect this vaccine causing a central nervous system disorder and wrong in disorder without any literature without any epidemiology without the institute of medicine saying anything it's not required the fact that the institute of medicine redefined simply tells us that there's a redefinition and then it gets to the point you're raising about c i d p is not the same thing it was the same thing  address i guess what was in the preliminary two thousand and eleven institute of medicine report and you did not submit anything that said i love their things for example that reclassification of the syndrome in the pollard article motion for review that went up i don't know what evidence was presented that i don't think there are i don't recall seeing evidence and i haven't so that fact but to get back to what you are saying about a i d c c n c i think those terms came up back during the swine flu program when then secretary california decided that anybody who could show they had d m or a syndrome ever swine flu vaccine would have to prove a theory of liability many of those cases were chronic relapse in cases at that time  vaccine i don't care what the institute of medicine says about that that is dynamite proof and the fact that he went on subsequently to have chronic relapse in course can hardly be surprising we know that from the animal model the same management injected into one animal can produce the acute disease whereas another animal the different genetic makeup will have a chronic relapser of course so whether you have an acute reaction or a chronic reaction is dependent on your genes it's dependent upon the status of your immune system the time you are vaccinated and let me be clear we're not saying that actions and what causes g p s there are rare kinds of g p s g b s can be triggered by all kinds viruses by surgery by vaccinations all kinds of action ations and the only one i pointed out where we have this from allah gee this exact evidence this biological marker to be able to say there's something in this