herm's may please the court counsel and psychology there's a theory called mass flows hierarchy of needs and what this says of its most basic is that a human being must address their basic survival needs before they're physically lost her ability to walk talk and all two hundred but let's assume that the vaccine act does allow for equitable tolling because of disability and i don't think that there's any issue here that if the vaccine act does provide there her condition was such that she was incapable of acting and that seems to make the issue boil down to whether the somehow in this case we got away from that test but i think that's the test we need to find when you're saying the past what you wanted to the guardian relationship correct i think if we're going to apply that test to someone represented by an attorney in this case we have a caring sister not legally trained not an attorney simply trying to step in two and a half years after the fact after the vaccination after the injuries and help her sister out i think arguably we can apply a lower test but i think assuming for purposes of this appeal i think we can assume that that better test would apply to a not attorney the same weight applies to the tourney play the test is was that relationship paired absolutely apply in the vaccine injury compensation programs they're both remedial statutes and if you look at supreme court precedent i was not able to find a case where we're dealing with a remedial statute with what the supreme court has coined a run of the mill statute limitations where they did not apply at will tolling where they found that the early one presumption was overcome in every case where you're dealing with a remedial statute with this this standard run of the that the relationship between the sister and the claimant prevented the sister as a party and prime retaining attorney in pursuing that what was what was needed by the sister that wasn't available to her because of the end to pass so st of all your honor i think this case would be different if her sister was there from the very beginning with her sister was her guardian and conservator at the time she got shot maybe the case different she wasn't she wasn't appointed guardian conservator until two and a half years after the vaccination and after the symptoms i think that's one factor the nd factor is the last segment the difference what's the what's the evidence that this case and we're the st to admit that this isn't an obvious chain of causation if she got a shot at her arm in her inner shoulder and within you know one day she's feeling pain in the shoulder that last for another six months we might say a lead representative that's a pretty obvious claim that you should drop that's not this case she had a shot and seasonal influenza vaccination and for attorneys that are you know familiar with this program one of the main types of children and that could distinguish that situation for example here the sister wasn't called in to two and a half years later where is in that typical situation involving a parent who's representing a child there there throughout the whole thing taking them to the doctor from the beginning to get absolutely around and yeah i agree that one hundred percent yes so she's not there from the beginning this is not an obvious claim by any means and then we're talking bit maybe this case is that maybe you know she's incapacitated but not to the point where she can't pass on the necessary information to her garden so we're talking about a severe mental  incapacity in this case a guardian conservator that was not there from the very beginning a claim that is not very obvious so all these factors that's the information you're out of that her sister really needed to be able to reasonably be expected to bring this claim the other factor i would touch on is the extent to which that relationship fell apart we have affidavits in the case from her sister saying k g he did me she would not cooperate meet with me for anything she believed i was conspiring against her and she believed i was trying to turn her kids against her she believed i was locking her up in  this in this facility like as if it was a prison but it's not just after the fact that it's contemporaneous medical records we have psychiatry records where k g is complaining to her psychiatry just in every single appointment and that's that's set every single conversation i have with k g she brings up her sister she says her sister is my main problem which the context of her saying my sister is my main problem is her being locked in a nursing home without the use of the legs her arms she can barely speak she's lost her job she barely talks to her kids but yet in the context of all that she said my sister and i mean interrupt you for a minute i hear what you're saying and i know you've made this remained it for a redetermination based on this court's clear for cation on how this doctrine should be applied so that may be correct i don't necessarily disagree with it because i do think if this court clarifies that equitable tolling can apply when a legal representative is appointed i think that completely change this case i think it makes a difference whether it's a guardian or an attorney it mentioned earlier relying on the bare test which talks about having counsel do you think there's a difference in the relationship there i mean practically i do i think we should be holding an attorney to a higher standard than we hold a does and i cited to you and i was statute that says a guardian or conservator that brings and this or that brings a claim but that depletes estate and estates assets or awards assets without good reason they can actually personally want that so obviously i feel like they've got a pretty good case i don't think that's at issue here but for a non for a leap person valuating a claim like this they might say there's no chance on bringing this you asked how it factored in and what counsel said was that the sister was not there at the beginning and she didn't have all of the information that was available in order to understand that there was a claim that sounds to me like the discovery all which this court held in core is not available that basically the reason the claim was not filed by the guardian was because the guardian was not aware that there was a potential claim to be filed so it wasn't that there was something standing in the way i don't c you tried to distinguish that from pieces of parents who were there from the beginning and would have all of the information that this court actually faced another case i'm called carson two thousand and thirteen which was opposed or clean and which the parents of a child to develop found that there was nothing extraordinary standing in the way of the sister filing as you suggested retaining an attorney to investigate whether there was a claim available and also that the nd prong of the tests and  argued barrett today in his briefing argued the pace tests of both extraordinary sort of circumstances and reasonable diligence the special master found that there was a lack of diligence in pursuing the claim both on the part of petitioner and her sister in this case  and you take the position that that was not challenged on appeal right correct will in their reply brief there's that response to your position what do you have to say in response to that they argue in the reply brief that basically their entire brief argued the diligence issue i reviewed the initial brief and i did not find any specific instance where they raised the specific finding by the chief special master and said that it was as applicable in that was not a case that was decided under the vaccine act and the you know we've argued in our brief that there is when the special master is applying the facts tolling that there is an abuse of discretion standard that's applied to that to those findings and here the special master certainly was a reasonable in looking at it is i should ask you here said that automatically when there's a guardian only that it stops the tolling right well that the special master also looked at the fact that there was a period of over a year from the vaccination till k g st began to experience mental capacity that she could have pursuit of late show business that's here it's not relevant well that was that is the st year of the statute of limitations so it has to be relit to be sewn up with jiko does not and then again there was a year and a half after keiji regain mental capacity these some mental capacity under the vaccine act and i do think that question does need to be st reached by the court before we can go out and decide whether the facts of this case is that we're very much aware that if you want you can argue why it shouldn't apply as a substitute for the discovery rule and this court in an unmarked opinion said it's not appropriate to use i quibble tolling as a substitute for a remedy that congress has conveyed a refusal to withhold and we submit that congress fact that often that injury is going to be related or the mental incapacity is going to be related to the very injury for which the veteran a seeking compensation and also i think this is yet the same here no not necessarily i don't know that the record as establishes implemented the congress and the court if i don't please points this out in the legislative history congress knew that a significant number of claimants that would be coming to the program were going to be children who were suffered devastating neurological and congress knowing that could have implemented a statute of limitations that accounted for that accounted for tolling based on the i'm annoying it's not the situation here st of all it's not children right but nd of all it doesn't your argument it both ways or you're rich you're saying but another way to look at it is that congress is silence meant that they say that equitable tolling for mental built disability should apply and that the regular common  go is not consistent what this court said in chlor and which the court said the congress failure to implement a discovery roll in and the statute of limitations conveyed its refusal to adopt  discoverable and so following the same logic congress's refusal to toll the statute of limitations based on mental incapacity conveyed its refusal to tow the limitations period in cases involving neurological andrews that are anything not available as a substitute for the discoverable and so just as here it's the same thing to use equitable tolling based on mental incapacity as a substitute for the fact that congress did not already provide for tolling within the statute of so unless the court has any further questions i believe i've covered everything that i was hoping to cover today we believe the special master as it was reasonable in his fact finding and correctly apply the law and we therefore ask the court to affirm  incapacity context because doing so would be like trying to fit a square peg in a round hole because what we're saying is that this person is not mentally capable of diligence so that's not the test test is did this was that of sufficient that's not the case of the sky overrule that so we're dealing with two very different rules with very different common law legal bases as far as whether the  this statute being inconsistent and with equable tolling that's simply not the case i dress that my brief saying that someone may bring a claim is not the same as saying that they have to and there's presumption not only does that presumption continue continue to apply but it's stronger than ever we need an affirmative indication from congress it can't just be that this is a run of the mill station limitations you can't beat at the stat