it's particularly timely that we are looking at the application of the time provisions of the vaccine neck now given what's going on from a public policy standpoint in the in the united states it's our position that the time deadlines and supplied by the courts below to dr course claim were inappropriate the court below improperly followed the directions set forth in the markovitch decision and also failed to take what was known or recognized by the medical community at large ask constituting a vaccine injury that is expressed holding of the markovitch decision the courts below rather went on a subjective analysis of what the petitioner knew applying that and or retrospectively of hindsight time frame and in looking at and you're referring to dr meier the neurologist who was a specialist in the mass that testified at hearing i think more specifically his testimony was he was asked specifically in hindsight in retrospect at what point would their first symptom have occurred and he says he stated that that would have been a sign or symptom back in the one nine hundred ninety s however it's our position yeah you're right and we're not relying on it we're not relying on when a diagnosis of m s was made we're relying on when there were a confluence of medical injuries or advance to constitute multiple for that's one of the arguments your honor but not the sole argument that we are making there it wasn't until two thousand and four or two thousand and five depending on how you read the evidence that was any recognition by the medical community at large the test that set forth and markovitch that dr clore had sustained a vaccine injury at best  problem with the analysis that was done by the lower courts i think so addresses your concern is that when she dr clore had isolated problems or events in the past they were nonspecific they were limited in time and duration they went away and at that point would not by themselves have been multiple sclerosis they could have been and if you look at the medical records that's  earlier on i wondered if she had lyme's disease wonder all sorts of things i would like to find a way to to to provide the relief you see because it's i think you we when when we look at both the case law on the statute in terms of what constitutes a vaccine injury in that respect i think it's instructive to also look at section eleven which is subject of some of the briefing in this case section eleven when you read the statute as a whole indicates that one does not have a vaccine injury until certain things happen one of those being that you have the complications or residual disability of a period of six months or more prior to that you do not have a vaccine injury that can be brought under the vaccine program it's my position that when you look markovitch and it's language about recognition by the medical community at large and you take into account what  that's that's one of the arguments your honor and we did have i'm contradicting me i'm trying to that now we had contradicted evidence both from dr meyer the neurologist and an expert in s that it would not have been in his his opinion the medical community at large would not have recognized a vaccine injury in dr clore situation until or the link between an ass and the hepatitis b immunisation she received until two thousand and five he's a member of the medical community a large d because if i understand it was a point that he reviewed the literature was contacted by myself to address the relationship between m large recognition of a vaccine injury wives in your case why do you need to use equitable tolling or section eleven why is your case right on the face of section sixteen it's not a vaccine related injury unless and until the medical community finds some linkage between this vaccine and this disease well that is one of my arguments your honor and the evidence is under that theory it wouldn't matter how many symptoms there were or how continuous or how severe or help prevent for how unambiguous even if it was absolutely clear that she had m s unless and until the doctors saw a linkage between m s and hepatitis b vaccine for three years limitations wouldn't even begin to run right you're right your hon but i think there's something special about m s and i think that the evidence is clear in terms of the medical community at large not recognizing a vaccine injury and dr clore until late two thousand and three two thousand and four the only contemporaneous medical record that directly addresses this issue is when she went to the doctor and he indicates when he signed a form in depend on trial testimony the running has to be triggered by some the vent in the real world not something that happens in a court and that event is the symptom of injury well that's what judge  trying to get you to talk about and he was saying you had a symptom that might relate to a disease but no way to connect it to the vaccine was the supreme court said in white cotton it's the focus is on evidence of injury evidence of vaccine injury it's  sections of a statute with similar language you have to treat that language identically and that's exactly what this quote did in markovitch and see the evidence is on injury i'll give you an example we have a phrase as a result of the administration of the vaccine if that were so it seems to me it's not an injury for purposes of this section unless it's known to be related to the vaccine within that begin to run for that particular claim following congress that we're now written the government can't say you can't read the statute the way you're reading it because if you did that we'd have some people coming in later than three years after the shot well y year period begin what triggers the start of that three year clark so that you use you in this case and you're saying it's any symptom of a disease and the opposite argument is no it's the first symptom of  vaccine related injury you have to show us your something wrong with reading i just i can't imagine that congress intended a statue of limitations to run after a claim is filed show at the time of symptom the first symptom but your honor the medical literature made no connection at all between a disease that might be a symptom of the vaccine then the statute hasn't started yet if the medical community a year later does more research and come to the conclusion that the disease of which that first symptom to which that first symptom really might come from the vaccine the three year clock starts then one year after the shot or two years or whenever the medical community comes to that conclusion what's wrong with reading because you're treating for somebody who there is a recognised connection between mandated that the trigger for the three years that you be when there's a vaccine related injury until the relationship is established the clock should run but your problem is i think ninety percent of our cases it's caused by the vaccine i don't see how that person could satisfy that rule standards wouldn't be any basis for believing that there was a connection between the m s and the vaccine so you have to you can't bring that evidence is brought forward is when they they file an expert report that the argument she makes has nothing to do with what an individual witness in a case thinks is the argument mr bush is making is you look to what the medical community as a whole thought and if in year one they don't see any connection but in year five they see a connection because of further research then the three year clock runs beginning in your  article in france that has since been discredited the institute of medicine draws no causal connection between hepatitis b vaccine in multiple maybe the statute still hasn't started to run i just i cannot believe that congress intended to craft out an exception class when you leave it in as an ally of congress intended to have a statute of limitations which would require a person injured to predict what the medical community five or ten years later might conclude how could that possibly be what congress expected injured people to do well then why have a statute of limitations at all your honor i mean if the door is going to be o and i mean what with all due respect that's a fairly foolish argument i mean the short of the matter is that we have a difficult problem here trying to figure out what a vaccine related injury is and it's in the statute and i haven't heard you to address the concerns of my colleagues or ms bush who is trying to define a vaccine related injury as an angry were in there of some medical profession pursuant to our day shall i draw a connection between the vaccine  there is evidence in the record to show that the medical profession hasn't made this bush would want to be the connection that's correct two thousand and five whatever and you have the statute began around then she would be timely ok so i think the burden on you and i think you should catch it if you haven't from the questioning from the bench is you going to have to tell was why a vaccine related injury has a meaning different from the meaning that mr bush proffered in the panel has question i just only allowed to file a claim for vaccine related injury so technically they'd be prohibited from filing a claim in the first place that's why it is preposterous for you to suggest that the word vaccine related injury means a judgment in order to file a petition for compensation that doesn't get you in trouble for fraud you have to say i have suffered i'm actually related injury correct well you know if you're saying that the only person that can ever assert that i community thought and what the patient thought and we all agree that we don't just look at the subjective understanding of the patient actually what mr bush is arguing anything about the subject of understanding of a patient in a case such as this she's referring to what the medical community as a whole concluded in the market which case the medical community at large in that case didn't get her expert had drawn a connection between the this court said if the evidence of injury well that's because in that context everybody knows that the seizures presage by the rapid eye blinking result from the shot absent knowing you're out of the government never conceded that hold that quote the first symptom or manifestation of that for purposes of section sixteen that's of course the statute of limitations section then continuing the quote is the first event objectively recognizable as a sign of a vaccine injury by the medical profession lord period end quote and why doesn't that sentence sink your ca case was what was the first symptom of injury not the first symptom of the vaccine injury what was what was the first sign that something after it was going on in the child so then you have to implicitly being argued that the sentence i just read from is actually why it's not the holding and why the court called it the hold that is the hold in education or well then why aren't we as a subsequent panel bound by that holding it out here for we must look to the views of the medical community as a whole which is precisely what  bush is asking us to do absolutely i just submit that there is no evidence what the medical community as a whole would consider a vaccine related injury that was not there is no evidence in this case she put on no evidence to that effect she had was a two thousand  restricted to anything that you hadn't previously covered that you feel you want to cover in light of what opposing counsel has just said that is the limit ok yes your honor there was inquiry of opposing counsel about medical community at large and what the evidence was and our experts testimony i would refer the panel to appendix page one five three which is part of  the briefing that was done in the case that cites dr myers sworn testimony and he says quote i have a special interest in the relation between viruses and us and was not aware of how community as a whole made any connection in ninety seven ninety eight ninety nine two thousand etc and she says even in two thousand and four the once french article isn't isn't worth the paper it's written on yet she's conceded that the courts looked at as to what constituted recognition by the medical community at large and i did want to indicate that yes they're the only side that came forward with what recognition that was by the medical community at