prior to receiving the m m r vaccine the record shows that he was perfectly healthy there is absolutely nothing in the contemporaneous pediatric record showing otherwise this special master raised this issue when it was a little football for one but is there really is this one disease mechanisms that that the doctors are referring to in other words are the physical and mental components tied together because it's one brain misspent misfiring i don't think the record clarifies that i'm not sure medical science clarifies that what we know is that there was a diagnosis  motor disorder today he's in a wheelchair he speaks and understands both polish and english today and that's in the record of what he can't do is take care of himself and walk and do the things people would do there are some not well defined cognitive problems that he had that those cognitive problems did not appear prior to the supreme court case started vs marshall which discussed the consideration of claims that were traditionally brought a common wall like a products liability claim or a vaccine injury cla now being adjudicated through an alternative courts under the vaccine act as we have in the next scene and recompensation program under the original understanding of the act there was an opportunity claims were largely preempted then at that point you argued before that the vaccine court yes and and even prior to that prior to that decision we would paddy opportunity to reject the so i'm a little confused so prior to this preemption decision you think the vaccine court system was constitutional because you could go you could elect to go to state or  us you think that the supreme court when it decided this preemption thing made the entire system unconstitutional i mean the supreme court was clearly aware of the whole doxy compensation system wasn't the issue of the constitutionality on the grounds that where argument was not before the court no i understand that wasn't the issue it's a preemption issue but certainly they were aware of the vaccine court system that's discussed it in the corner since i couldn't find anything i don't i don't believe well there is a claims court decision because the issue was raised right discuss that but i don't believe it was raised before the circuit i mean what about  context i mean there are many instances in which the supreme court has said that that tort claims are preempted by federal regulatory systems area in those instances such as the failure to warn claims with respect to preemption under section sections twenty two of twenty three of them assuming the f d a approved the label we're talking more about design defect claims and the type of claims that you have here said we simply do not see how i fact based a fact intensive type of claim that is decided by a special master is entitle to the extreme deference that's being accorded when as in this case you see interpretations of facts that are just not supportable and in fact the claims court said they were not supportable the key interpretation by the respondents expert specific protections in state or for courts or common law i think the best way to put that appreciate the question the best way to put that is if arthur miller went before a state or federal jury with this evidence first of all we are saying right to trial by jury right to trial by jury but also write to them over review article three judge reviewing that evidence and determining whether it's sufficient or argument it's a bit which is apparently based upon article three it seems to me to a lot of your argument is you have to have to know the review by article three court and the only article three court in the chain of this compensation system is not so we're certainly dot are you affect by so i agree with revising my prior statement i think our position to be consistent would be claims court should have been over what we should have an opportunity in a real sense to go for district court which we don't have at all we don't have an opportunity to go before district court under any standard i think that's what it is breathtaking in the scope of your argument it would seem if we accepted your constitutional our argument that it would it would render almost any scheme in which the federal  government acted some kind of remedial system if not under oath reports and have preemption unconstitutional but that's pretty good we've had these kind of remedial schemes around for decades if not more years don't you think the supreme court would have found that by now i think and stern versus marshall did to a large extent find the i don't think the argument has been made with respect to the vaccine or not since the supreme court took away any meaningful avenue to an article three court or a common world court but i also would like to emphasize that even if the constitutional argument  was accepted by the court this record under even an arbitrary capricious or abuse of discretion review does not pass muster all right let's let's turn to that and i'll give you have few extra minutes to that we can do that thank you opened with a pretty broad statement that said there was no evidence of any problems at all before the vaccine now there's i c to you that there is very little on the record of evidence of any motor problems before the vaccine but that the special master said that your claim as well as all your experts are treated to the developmental that's a pretty clear statement that he said one was longstanding one was running a computer brand new and there's a couple other places where where some of the doctors that divided the two the problem is is that you filed a claim is articulate why there is nothing in the record to show pre vaccine development took away in any form so that's the first the second thing is he gave he felt the appropriate diagnosis and a proper way to look at arthur's condition was festa type leader which is primarily which is as a motor problem i think the issue of weather a language problem relates to that is something that was injected in case by the respondents expert because he read into the record in a very strange way in which the claims court criticized a very severely set was poorly supported not supported by the record  medical theory so the issue is a logical sequence of cause and effect and the temporal proximity and it's probably the temporal issue that probably poses the most concern and the port said  incidence of developmental problems from the m m r adverse events from the m m r fifteen to thirty five days out so it is possible for it to happen the question it's most likely within five to eleven days but it's not unlikely or possible after that so i would argue based on this court's analysis of that kind of issue in power that we've met that temporal temporality issue there's nothing else in the record that explains  the responded talks about a sore throat there's no verification that there's a sore throat there's no explanation how a sore throat caught this caused this devastating injury there is an explanation of how the m i more would cause that kind of devastating injury and while we're talking this idea long standing but he himself clarified that said he can't say when that happened it was just there and the court dismissed that as being litigation driven away and we have a paid expert for th respondent who is not being characterized as litigation privet drive not to make tells been a treating doctor for eighteen years the second thing that the special master pointed to and also the claims court is a psychological evaluation six months after the more than six months after the injury by a psychologist named alan asking the court the special master read into that a finding that there was previous action asian developmental delay when there's nothing that can be gleaned from that analysis except that there is development of the way at the time of the evaluation so i would years of age right at four years and nine months of age right four years and nine months that's why he did her evaluations of seven months after the accident vaccination and you're saying you don't see anything in dr marilyn ask as findings osgood could not say that when that story without it started before the m m r all she can say is that there is the development of the late that time and maybe he was functioning six months behind or whatever but she doesn't say when that happened that's time of her evaluation i would respectfully disagree looking back at the at the three year report and then to report right i don't believe so because you look back a three year into your report there's nothing there to support a conclusion she's looking at arthur miller at four years and nine months and making determination how far behind he was she cannot say that he was behind at the age of four years as a matter of fact the pediatric record on the day of vaccination said arthur miller was doing well speaking well three months before there's also a pediatric of you saying he was doing well they responded simply says pediatricians get it wrong all the time i don't think that's a fair inference you can draw from the records of which said the pediatricians are wrong i'm right even the doctor may tell says i can't say when that started i know it's here now and also he doesn't necessarily connect the two so how does that relate to the primary problem or thrill cut it has is the motor problem so is your best argument that these are two different diseases that perhaps he was ok validating slowly on a cognitive level but that the motor skill issue was not a problem or was not identified at all before or is your best argument that that there was no evidence of either problem before that i think the second argument is argument i don't think medical science or the treating doctors or anyone else can say how the whether these two things were separate or not or whether the language problem that appeared later was a result of a motor problem that has not been clarified respectfully sure it can be clarified and we didn't attempt to do that i don't think i don't think that's something that doctors can do within the limits there was extensive testing of alternative causes and none of the doctors at the institute for basic research in new york scuse me  found anything prior they never refer to anything prior to the vaccination and they primarily looked at the motor problem so my argument is that there was no problem prevention ation that is supportable in the record or other  just didn't exist and it was read into the record it was invented it was created by the response expert use and you know of course here the special master of first disappeared productions you can't decide these issues just based on credentials alone we had a competent neurologist he sees nothing and the evidently record does it's not their credentials due to the question of credibility and that we have said special masters have the right to make credibility  pediatric record team terpenes at fifteen months he says because there was no i think the responder or his doesn't have the word assessment that it's not a developmental system because through six words were checked and not some other things that somehow shows his credentials i think the phrase i don't speak what and it would be that he just said it that doesn't make it so it's not in the record and that would be the heart of our arbitrary and capricious argument which is of course separate from the constitutional argument i believe let's start with the standard overview issue i mean we do have a situation in which there is a huge amount of power invested in these special masters most of whom do not have medical backgrounds and they are making medical  determinations shouldn't there be some mechanism for a overview of those factual determination i don't believe so i believe it was the intent of congress in creating this particular forum to bring these vaccine cases to these special masters to work exclusively on these particular cases and to develop an expertise dealing with them routinely and seeing these cases and dealing with if not the same issue time and similar issues similar causation issues and i believe this court is recognized that that expertise is worthy of deference great deference particularly in a case like this where only factual and according to this case thought clearly considered the relevant facts drew plausible inferences and provided a rational basis to justify those decisions do you agree that before it was understood that there was the ability to resort to an article three or if petitioners from all possible avenues of bringing on an article three claim by pretty much a design defect claim is precluded it seems by the resort it's cork although  front of the sternum marshal court it's its own clear i don't think it has been flushed out whether those design defect claims are really for the stuff of litigation brought before the courts of westminster so that it would constitute  gravity it would implicate not only just the vaccine program but also other similar programs that benefit place for years and years so the implications of that argument are great and simply on the bare bones arguments with the special master's determination like for why i'm calling dr matal zz position litigation driven even though he wasn't being paid for it and yet not considering the fact that that the government's expert was in fact a paid expert who by definition is it is coming up with a litigation driven result why is one person's litigation expert litigation driven despite not being hired for the litigation the other one is not a first and foremost i would i would indicate that in reviewing our case an arbitrary and capricious grounds for simply looking for any rational basis provided by the special master to of that justification there are other distinct justifications that satisfy the arbitrary standard but to get to get to your point you get your point i believe that what he was referring to as far as litigation driven is that document was alleged clarification letter was issued some sixteen years after his initial consultation that he was referring to in this clear fission letter that amount of remember the children this was not a healthy child absolutely however if you take the definition offered by dr mattel in this clarification letter that longstanding simp it means that it existed pretty examination that firstly that does not contradict dr corman respondents experts there is the case he simply says i don't know when the symptoms started not the symptoms only started after the vaccine is just saying i don't know therefore the other records can stand on their own but additionally if you take that definition of longstanding to mean simply existing prior to examination then the sent the acute symptoms of limping that he noticed or noted would also be and is another point that weighs against i've had to respond at a federal claims view that if there was really no support for this notion that these problems existed before them i think that  one of the distinct points made by the chief judge was was that very point but i think that that weighs against petitioners claim because respondent is not primarily relying on those pre vaccination records those prove actual vaccination records are very short very vague and do not demonstrate that any developmental assessment was thoroughly undertaken that is the point the chief judge made in fact there was one small rather ancillary point so in other words the question that we have is should the burden have shifted to the government to disprove and in it and if in fact as you can see perhaps that the chief judge was chief judge neither found that the burden had shifted because the initial burden is on the petitioners to demonstrate by a preponderance of the evidence that m m r vaccine caused chaos condition the petitioners did not meet that burden without meeting that a special masters conclusion in this i see all the time a special master say well you know this is not a good diagnosis because it was partially based on the fact that nobody could figure out what caused this isn't that what differential diagnoses is all about that you go in and one of the first things you do is see ok you've got these conditions let's see if we can figure out the cause and if you can't then if you've got a mechanism there is no clear evidence that a marvet scene played a role at all so there were differential diagnoses but those diagnoses those doctors did not actually get into what was the cause they were looking at the diagnosis of the problem but all they can get into is the most likely cause i mean there's a lot of illnesses out there we don't know what they are particularly an infection that suffered here which was closer temporarily in relation to the onset of and the motor problem it is possible although the rental article that was submitted by petitioner show that there is actually no causation there and the special master did find the elephant problem one was satisfied but basically because dr foreman said i think it is possible that there could be in some circumstance that m m r vaccine causing a neurological problem but health and probably won't really shouldn't be satisfied if the only theory is that there's a possibility  but in any event there was that infection was also a potential cause here as well and the burden is really on the petitioner here to prove by opponents of the evidence that it is the and that just simply hasn't been the case the reason why that's not the case is because that's just not borne out by the evidence because there's a seven day gap or something between when you think it should have been kicked in and when it did no categories are significantly delayed yet that the parents did not know any cognitive regression therefore you couldn't have dr more nonspecific without a delay predicted in the vaccine  parent with the first child should know exactly how much they can speak at age four and not realize that maybe they're really only at a three year old level not exactly but i don't think that's what was asked by the doctors either these doctors who routinely treat patients three different doctors noted both before and after dr moore and i suppose examination that the parents expressing noted that they did not notice any cognitive regression the cognitive regression that would be necessary here in order to if am was normal on the day of vaccine but only ten months later he had regressed to the two and a half year old lovelle in certain developmental categories there would be a assuming that they would have understood where he was supposed to be i mean every child different true that's very true but again but i had two children one was speaking you know four hundred word vocabulary at fourteen months but didn't walk to she was two and the other did the opposite walk seven and didn't talk to there were two but here we're talking about russia and so being at a certain point and then going backward so it's not just developing a different rate it's going backward that's why regression is but again i will remind you that that's just one of the justifications offered by the special master here he had a thirty eight page opinion those very thorough they considered all the relevant drew possible inference is and provided a rational basis and therefore the chief judge below found she had to affirm and shifted we the opposition is we clearly had provider of evidence showing the meeting with three prongs of alternate should have shifted and that's when the consideration of the sore throat etc should have been evaluated and there was clearly insufficient evidence and we believe responder has a higher burden at that point to prove that that's the sole course we met our burden to show that the vaccine was a substantial course and that but that's the best you could hope for from u outcome would certainly be consistent with our view of the evidence and we would then proceed from there and believe we could prove our case based on that kind of agreement with respect to  sixteen reference to sixteen years later we're talking about treating doctors so we're talking about three pretty backs a nation treating doctors who found no developmental problems but retrospectively many years later an expert comes in and says they don't know what months in fact as i cited in the brief the chief special master in another case cited nelson speedy actrix for the proposition that four to six words would be sufficient in fifteen months so clearly it meets the definitions  support for the inference that the response experts drew and that was accepted by the special master whether it's not enough you know there are other issues that we raised that we can't answer the dual language issue polish is being spoken soley at home i could have entered into that we can't resolve those issues but we do know and this goes to the issue of regression is that there was a post that seeing onset for the first time of limping which was the motor problem and we also know that that got progressively worse after that to the point where arthur miller is in a wheelchair and today and deletes only with help in a wheelchair and can't do basic self care tasks so to say there's no regression and focus on language and say that explains the issue it doesn't we we have to be reminded by the teaching of this court and often that medical science has not fully explained how vaccines affect the human body and that's why we do have a lower burden of proof for petitioners notwithstanding the reviews theater of arbitrary capricious petitioner strongly urge a court to consider that we've met that bur that all no matter how many pages the special master wrote the matter how much and with all due respect to the special master i have absolute respect for all of them but no matter how tortured the analysis that cannot replace the evidence which is the contemporaneous paediatric record that's what we must rely on and here it was disregarded here it was we took a retrospective analysis we took post onset six months post onset analyses by a psychologist the other treating doctors what pediatric neurologist didn't do it that way in fact one of them said to the special master that he believed credentials low and i also would say to the individual with those credentials in bed do a retrospective analysis that just not there and we based on that respectfully ask the court to remand this and that the court will determine on the crease that's an every day and d l c versus facebook inc and with that the cases will be