started five days after her second and them are vaccination all those facts are significant unlike the cone case which some of the members of this court have heard before this case does not involve any issue of time as a matter of fact evidence that this was an immunity to injury there is no evidence in this case presented by anyone that there was any ultimate cause treating doctors in this case even discussed the fact that they felt they could actually action was the cause well did they discuss the fact that they thought the vaccination was the cause or in three places in three different medical records in the background section and did they discuss that they had been told that the vaccination was the cause i didn't see i those records an independent determination by those doctors in the form of an opinion that that that there was actual causation but rather a recognition that someone had told them in the background when they were taking the medical information that they had been caused by that what the government says of al of it being in the background section that it was reported to them and not an independent opinion the problem you have in this case is you have a very high hurdle to overcome because as sympathetic as i might be to this young girl and her family's plight i don't get to review this case to know though i have to look for substantial evidence in arbitrary capricious miss of the decision below and if you're admitting to me that the evidence could possibly be construed exactly the way the government says it should be and the way the special master already found it then it's really hard for me on appeal to do anything but affirm that and let me go to an issue that's not a fact issue the issue of law in this case the special knowledge there just the special master joke with the disease in the case because that was important to his opinion that's this logical sequence of cause and effect it was very important to his opinion because it demonstrated what you would expect to see with an immunity didn't suffer a lot of the from and in our docs anation anothe special master not only said that plausible medical theory or possible medical theory is not adequate he said you'd have to have a probable medical theory probability establish these cases by satisfying the three prongs of  it's not each one has to be probable it's that they that the medical theory has to be plausible granted the government's expert said it was possible and maybe possible possible we're not going to get and that's medics argument but i think it's at a two would be a direct viral invasion and three would be an immune needed of add or but we call a lot of you know that many if not most of the cases in the vaccine program involve our own unity that is where the body's immune system becomes mis directed attack self instead of the evidence in the vaccine they're supposed to attack these reactions are very very rare fortunately they're very rare we know that for instance measles and mumps and rubella can cause post vaccinations to post viral encephalitis and before we had the m m r vaccine there were many many cases of children coming down with and suffer a lot of the after the natural infection we also know that it's very rare but it can occur  card the study cited in his report there's a question in my mind about whether they're worse i know there are some reports and some studies attached to his expert report but then he may not have a pint on those reports when he actually gave his testimony yet it seems to me that the special master was obligated to look at all of the evidence presented and it is one of your arguments that the special master erred by not taking into account those report reports in his own report disapprove discussed the medical articles the significance of those articles in the report he not only talked about direct examination of the special master also implied that talking about it on cross run retract was not as actual testimony yes i don't recall your either but i know he talked about it in his expert report which is a part of the record that the special master has to consider it's a part of the record as a whole it's just how this report got into the record yes right ok by requiring this degree in specificity but the degree of specificity seems to me to be mandated by our precious and he's regarded by the oppression and the examiner didn't misstate the law and if he failed to spend enough time looking at that literature it was the you haven't shown in your brief why there is harm but of the special master was requiring basically prong two of the stevens analysis is requiring medical literature or proof in the right nobody comes after i don't know that makes a difference i think if you look at all of it and rail together and look at pollack and look at the phone and look at the cases that are coming down today we're looking at a situation where he clearly by the wrong law he clearly tr impose a probable requirement a medical theory which is not the requirement that's putting the stevens problems back into the requirement it is is his refrigerating use of the word probable with respect it's important because rather you're saying that we have to have medical literature that i data files identically everything in this case that's not true that's never been required should never be required to require us to have a medical article that fits every single aspect of the case is illogical we're allowed to use circumstantial evidence we're allowed to infer from other articles and from other evidence in the literature that's always been a loud and should not be denied the petitioner in these cases or we can't win any cases if we had to have a medical article in every case that showed identical reactions most of the cases in this program would not win serio understand opinion of mind i understand so what you're saying is that if we don't submit any medical literature which is not required at all then we're better off than if we submit medical literature which we think supports it through through inference and circumstance even though it's not directly on point if you found an article directly on point for every one of these places not so much directly on point right now i know i don't read on to say that there are some hint occasion in the reference that you're talking that how can you have a medical theory how can you say the temporal relationship is appropriate for this type of reaction but the medical theory isn't there how can you say that the medical theory of causation we know that m m r vaccine whether or not she suffered an odd of you brain damage secondary to her second measles mumps and rubella or m m r vaccination in january two thousand and one special master in this case inherited the case from another special testimony of the medical literature and the opinions both written and oral and based upon his evaluation of the tail of the of the evidence concluded that the petitioner had not persuade presented a persuasive reliable medical theory determination as between the two experts but according to the history that you just related is it true that he did not actually come first the testimony your experts but rather only had the same written record that i have in front of me because he was not in fact the special master who heard these two experts testify to points in response to correct the special master in this case did not observe the experts testified why the testimony however and that's why i point out he did give that tell me what is the substantial evidence that supports because this is unusual usually i have to give so much deference to the credibility determinations because maybe as the guy sat there he was flinching or had a tick every time he said a certain word that made you think he wasn't telling the truth or something you just don't know you're not physically present watching the person in the courtroom and so you really just can't replace your judgment for that of the special masters judgment but here he wasn't physically present watching the people in the courtroom so actually i can write i can step right into issues because i can read the written record exactly as he can read the written record although this is one of the situations where we usually give the same level of deference because we weren't physically present and he may have witnessed things that we can step into issues and say although with all due respect your honor his decision in this case was not based on that was not the crux of this is that he did not make a credibility terminations did he know he weighed the opinions of the two separate experts in conjunct the facts of the case and that's very important is whether the logical sequence of cause and effect based on the facts of the record evidence not so much credibility of the opinions of the experts but whether the logical sequence of cause and effect matches reliably persuasively with honor because i'm saying if you assume that the petitioner had a persuasive medical theory that medical theory was tied to a very specific injury autumn you need injury we've heard me refer earlier to to this particular complication of muscles in the station the government's expert in this case when asked about whether measles vaccine can cause and stuff a lot of the said it is a possibility which is consistent with this but the crux of this case matches the type of injury alleged not the type of injury but the approach that this court dealt with in the hibbard case it was cited by the special master his decision and that is that if you assume the accuracy of the petitioners medical theory it must fit the facts of the case and yet in this case there is absolutely no credible evidence of an army and mediated process in this trial that is a problem to flush i've never been diagnosed with that condition not only has she not been diagnosed with an and the m r i would be grossly of normal the gene would show total disorganization and seizure stemming from an autoimmune process would not be sporadic elisa's seizures were sporadic in the beginning he g was not consistent with that disorder because it treats it it goes to the metabolism metabolism metabolizing of of energy of glucose or in this case ketone bodies and so he indicated that that was actually circumstantial evidence of a metabolic u epilepsy is a generalized conditions not specifically many different causes for epilepsy not all epilepsy has even uncontrolled seizures obviously so i guess i guess that i'm not particularly following you because i see i do see a lot of evidence that goes both ways which in a case where i have to give a lot of deference of course facing appellee but i guess i'm not i'm not completely understanding some of these distinctions you draw and why is it important to me why it's important to me is because unlike your response to train us question when he asked about fourteen fifty nine and the relevance of that medical literature that depending on some of these facts and i don't think it is clear to me how the special master w the experts report that he doesn't have to read the lease because in court when an expert does not explain the role of the article a special master is not required to interpret it and so it seems to me that he  didn't just not talk about the studies that were attached in the expert's report it i read his opinion as indicating that he is in fact not even going to use them all to restructure runner when i read that paragraph it seems to the i believe that what he's saying is when an expert lists medical literature on this clearly indicates doesn't indicate that the special master didn't consider it is trying to understand the relevance of the article to the theory proposed  expert a special master is not required to interpret what is the specific relevance for example in that particular article is very general and is based upon  attention in his opinion to that article wouldn't that be a reversible letter if the court if the special yet if the articles relevance to the facts and circumstances of the case rise to the level that in the literature when you're trying to look through the literature to see whether or not there is a theory of causation that passes muster and are prone to ok and i hear you to be saying that literature doesn't persuasiveness of the medical literature if the medical literature has no let's assume for the sake of argument your point that the medical literature specific lease talks about the injury at issue and that's very relevant and if a special master completely ignores that element of evidence  that would be a question for the court to determine whether that was ever however if it's a question of weighing the literature on its relevance to the theory proposed propounded if the if the medical literature has concerned you can actually request thank you it would be helpful if a special minister did so but it's not required in his opinion to go through every piece of evidence that was presented he cited the murphy case in our brief for that proposition on page suspect why because we don't quite know what he means by credibility because it clearly couldn't observe the witnesses so you couple that what i'll call questionable credibility calling which is is auto immune your author is speaking vaccines are designed to create an immune reaction in most cases that's a good reaction in a few very rare misdirected cases the immune system becomes exactly what dr shapiro said the theories are of how this happens are done with viruses virus infecting the brain but the most likely one is this auto immune which is described in this article we know that we know at the tim the special master in this case recognized that five days was a little soon for a typical m m r and psychologically but he pointed out correctly that this was a second m m r vaccine so you would expect to see the reaction because when you get the first vaccine you have a reaction within a certain period of time when you get the second vaccine you have a booster of response which is quicker so that's why he said the five days was an appropriate temper relationship he based the appropriate temper relationship on auto immunity principles of auto immunity tests were not done to prove that we can't blame my lease for the doctors not performing the exact medical tests that would have confirmed and we wouldn't be here today the fact those tests were done doesn't mean the evidence doesn't point to it completely there's a record here time and that they can move on to our next case this case