on yet another appeal from the vaccine program where the special master believes are misapplying the reasonable basis standard for the award of attorney's fees and expenses  and i think this appeal your honor boils down to what is required to support a finding of reasonable basis i can start with what is not required it is not required that a treating doctor opine that injuries are vaccine related nor is it required for reasonable basis to exist to have an expert opine that would somehow satisfy that reasonable basis standard instead of to need only demonstrate that a claim is feasible not that there is even a likelihood of success just feasible so what is needed to have help why don't you why don't you focus on cottingham because i think that's probably the critical question here is the extent to which cottingham would control this case the extent to which there's any distinctions you what you need when you plead a petition you need a covered vaccine you need medical records that reflect the injury being claimed and then you need some basis some feasible basis for why there would be a connection between the two what makes me as a potential counsel or a petition feel as though this injury is vaccine related what objective evidence would there be to demonstrate that i can prove that are i think the feeling part of is problematic because that implies subjective but what you're i was sort of speaking tongue in cheek as far as the feeling i think you're right that word would imply a subjective type of evidence and that is not the standard i agree with you that you have to look at any of these  vaccine cases from the you know the records of the special master had and what object of evidence was there be to indicate that this may be a vaccine  of spells any mistaken belief this young man simply have to monitor but evidence in the form of medical records demonstrating the injury claims that the injury here claimed in the petition was pots and autonomic nervous system dysfunction that injury is well documented in this child's medical chart a special master reference that multiple times in her decision following the administration of gardasil this child began to experience the symptoms claimed again the special master recognize that because she indicated in her opinion that that very fact when she said at best what could show was that all of the symptoms manifested after even stronger than cottingham here after the symptoms were present for an extended period of time the diagnosis of pots had been made already and after clinical examination treating physician contemplated filing a very for a vaccine adverse event reporting system for indicating that at a minimum i mean we don't know what was going on in this doctor's mind but he not c that is far beyond the evidence that was present and cottingham and it may very well be the most important piece of evidence here in addition to the product monograph and and you know counsel for the government pointed out that we didn't file the medical literature below that's true i don't typically file a bunch of medical literature this not sponsored by an expert but the reason i cite to it and cited in the petition is that the special master knows the due diligence the council that you made but simmons says the council's conduct isn't relevant and and we also have the issue that there is a difference between what constitutes bad faith which nobody is questioning here and what constitutes objective evidence so are you saying that you don't think their articles constitute objective evidence no your honor and what i meant by that  was i do think that that journal articles constitute objectively evidence and i don't want to spend a lot of time on the articles because i didn't submit them i didn't try and make special master sanders read seventeen  medical journal articles the reason that they are referenced is by title the at the effort was to demonstrate to the special master that medical literature exist connecting these two there cited is by their titles alone they demonstrate that peer reviewed medical literature is drawing a potential causal connection between gardasil and these very complaints that are referenced in this young man's medical chart ok to consider the gardasil packaging which lists the symptoms that can occur from a vaccination and then we also have to think about what are some of the other things that we want the special master to consider that maybe the special master didn't consider the st go around i guess an additional item would be the very form is that right or the reference to but not the actual inclusion into the record of copies of of those articles are are you saying that if you were to get a reman here that on remand the special master would need to get copies of those medical literature references and then evaluate them in assessing the reasonable basis of the claim made or i  i'm just a little confused given that they're technically not in the record but there are citations to them yeah right what exactly it is you think so i will tell you  both affairs report and the product monographs both reference to special master standards and briefing i think there was a note and the government's read brief that that this  pointed out or or suggested or highlighted to a special master and that is that is not true as to at page three of our original brief on page three of our reply in front of special master sanders so the argument these may be relevant and and it's possible the special master should have considered them but there was nothing in the record right that's what i was going to say your honor i mean i don't i don't think that remand i think we would probably need to have a status conference with special master sanders and and discuss the medical literature it's problematic because argument of counsel is  you know not really not really evidence here and it would be me arguing the weight and merits of medical journal articles not i would ask you would ask that special master to reopen the record for purposes of considering those articles i mean i think so i'm not really wanting to rely a ton on the journal articles before your honor's because you're at your one hundred percent correct in the sense that they are not in the record as i said i think were cited to to provide additional notice to special master standards that these complaints have been related in peer review journal articles and as i said i cited the one specifically that said potts after  they're not in the record and i don't want to get in a situation before your honor's where i'm trying to argue the import of information that is not in the record from the special master but i as as this ha in fact those articles do draw potential causal connection between vaccination and pos then i'd be more than willing to to provide them to her but you know we've got to we would basically have three testimony which certainly is is evidence now the timing and severity as stated by the petitioner is subjective in nature no doubt but under the when when they're talking about the actual facts of what occurred and when it occurred and and the level of occurrence i could see it being subjective if he said i  think the vaccine caused this or i don't think there's any other cause but how is it subjective if one says this happened on this date well yes your honor what my point was  you know any time witness says you know i i i feel like these are you know vaccine related or i feel like this i mean that is in the affidavit but when it becomes objectively is when the victim or a parent testifies that something happened on a particular date and that is corroborated by the medical a reasonable basis not that there was no evidence as was the case in cottingham and which was the basis for the court's finding that the special master there abused to discretion nd there was clear evidence of an alternate cause for petitioners injuries mononucleosis here which the special master relied on when she the evidence and there was no such alternate cause in the record in cottingham but sessional master but the special master and saying there wasn't enough the special master or the need out there standard for assessing reasonable basis that appendix page seventy four dollars and then in applying that standard she reviewed all the evidence that was presented to her through the petition and the people titian both of which are reproduced in the appendix in this case and she determined within her discretion that the medical records were insufficient to show the claim that the lady fishy considered all of the objective evidence as the set forth evidence establishes reasonable basis they factual finding for the special star and that's what's important here and in this case unlike in cutting hand that the special master assessed the totality of the circumstances as she that's faith in her conclusion and her determination was that the level of objective evidence just looking at objective evidence was insufficient to show the claims in the village documentation that is objective evidence so i apologize if i misunderstood your honour's question but the lack of supporting documentation to support what is in brief i do think that i said i discussed the prescribing information of pages seventeen to nineteen if you think i stated that it's not in the record below even if it was filed below and you know constitute some circumstantial objective evidence i would argue to the special master whose job it is to weigh the evidence and her discretion that the package insert here is certainly not  what we'd like guidance on is that there's there needs to be some kind of connection between that circumstantial evidence and the particular facts of the case for example in this case but the here in the adverse reactions section of the but i don't even understand i mean you're saying that you you couldn't hear you're making medical determinations on what you think the insert was was warning about and and so you think based on those determinations that it's not objective evidence i'm not saying that it's not objective evidence i'm say literature without an expert opinion which you don't have left fully interpret medical literature to know that you you have met a very low standard of showing reasonable basis i mean we're talking basically evidence you don't have to determine that the medical literature was correct you only have to determine that there was a reasonable basis because of all this medical literature existed to bring to assert the claim fact right i mean you're not asking your we don't have to they don't have to prove at this stage they're the merits of their client no and i agree but what they have to prove is that there's enough of a connection that warrants spending vaccine program fun to you know address the petition and very rarely do the special masters d basis and when they do so they do so you know to make a point that there's not not enough here are wasting my time and the vaccine active not intend for every single case to be compensated and that's what we're trying to the preponderance standard is require some to prove the act section thirteen a one requires some substantiation by medical records or medical opinion i mean there has to be enough of a connection between for a lay person to understand between a piece of evidence objective evidence like a medical article or of their report and the particular fact of a case  objective evidence which is what the special master considered nd that all objective evidence presented to the special master at the time should be considered which she did and mourn and this is this opportunity to cover that in my opening obviously it's an issue in our briefing and i think it's important in the sense that obviously simmons makes it clear the conduct of counsel is not objective evidence to satisfy the reasonable basis test and yet special master standards devoted a lot of her analysis to going through my time sheets which is judges aren't typically privy to those conversations with clients anyway but in this instance because o system they are and but then she spends a lot of a lot of time discussing counsel's conduct and speculating as to the fact that my conduct in meeting with my client somehow reflects that the case lacked reasonable basis i do think that error again i think this case is very very similar to cottingham i appreciate the court's questions as to whether the government would wish to re man because i i think it's almost identical in the sense of what the special master did and failed to consider that evidence was was in front of her at the time cited to in the c f locations laid out very downing we heard this morning from the other side that the package insert was not in front of the special master is that true or not true  we presented that to special master standard exactly the same way counsel for the government presented it in their read brief at page one with a description a description of the symptoms associated with gardasil in the clinical trials in the post marketing experience and then citing to the product monographs reproduced in the brief and then given the size and page nineteen of the read brief the site is exactly the same it's reference