[00:00:00] Speaker 01:
Our next case for today for argument is 20-2064, Kirby versus HHS.

[00:00:08] Speaker 01:
Mr. Gage, please proceed.

[00:00:11] Speaker 03:
Thank you.

[00:00:12] Speaker 03:
May it please the court?

[00:00:15] Speaker 03:
We tried this case in front of Special Master Horner in July of 2019.

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Special Master Horner considered the record evidence as a whole, which means

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the medical records, the expert opinions, and the lay testimony.

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Special Master Horner then issued his ruling finding in petitioner's favor and he thoroughly articulated his reasoning.

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Judge Smith then reweighed the evidence and ruled against Ms.

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Kirby.

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The reasoning given by Judge Smith was a misapplication of subsection 13A1 of the statute, which is what we are here today asking this court to clarify.

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Subsection 13A1 establishes that special masters shall award compensation if they find, on the record as a whole, and by a preponderance of the evidence, the requirements of subsection 11 of the statute, that no factor unrelated to the vaccine was the actual cause, and Congress added that special masters cannot make these findings based on the claims of petitioner alone, unsubstantiated by

[00:01:24] Speaker 03:
medical records or medical opinion.

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How this claims of petitioner alone language is resolved, we believe, is the issue before this Court.

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It is petitioner's contention that once petitioner has submitted her medical records or has filed a medical opinion, the prohibition of finding for a petitioner based on her claims alone is satisfied.

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It does not need to be revisited during the case every time the special master is deciding a fact.

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What respondent appears to be arguing and what we believe Judge Smith accepted is that a petitioner's testimony by itself cannot be used to establish any of the facts that go into the special master's decision when he or she is making that decision on the record as a whole unless there is a corroborating medical record that independently establishes that fact.

[00:02:19] Speaker 03:
It should be noted that in more than 30 years of applying this statute and doing this work, that this court has never, that particular interpretation of this statute has never been adopted by this court.

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Congress made it clear that special masters are required to make their rulings on the record as a whole, and of course petitioner's testimony is part of that record evidence.

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An example of what respond and claims to be legal error is found at page 24 of Special Master Horner's decision, which the court can find at page 38 of the appendix.

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At the bottom of that page, it reads, and I quote, petitioner testified that she continued that home exercise plan for over a year and that she remained symptomatic for the duration.

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I found petitioner's testimony on this point to be credible, end quote.

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This is not the only evidence in the record on the six-month issue, however, to focus the issue before this court, this finding of credibility by the special masters at the heart of this appeal.

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This was important testimony to be sure by Ms.

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Kirby in relation to the establishment of her six-month requirement in her case.

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We produced the home exercise records, however, there are no, we admit there are no records from a medical provider

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where the dates that she did her home exercise program are recorded, and there are no records from a medical provider which record the level of her arm pain during or after her home exercise.

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On this point, Special Master Horner simply relied on Ms.

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Kirby's testimony.

[00:04:08] Speaker 01:
Council, this is Judge Moore.

[00:04:10] Speaker 01:
The special master also credited Dr. Kinsborn's testimony, and Dr. Kinsborn testified, I think at A151 and 156, that Ms.

[00:04:20] Speaker 01:
Kirby's articulation of her intermittent pain extending over a year with her radial neuritis was consistent with his understanding of that injury.

[00:04:30] Speaker 01:
Now, I know he wasn't a treating physician, but can't an expert who testifies that

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the patient's symptoms, as articulated by the patient, are consistent with his understanding of the injury she suffered.

[00:04:44] Speaker 01:
Can't that be corroborating evidence in and of itself?

[00:04:49] Speaker 03:
Yes, Your Honor, it is.

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And in fact, the last page of Special Master Horner's decision, which is appendix page 40,

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Judge or Special Master Horner says, Dr. Kinsborn likewise provided a compelling expert opinion that petitioners' reports of intermittent pain are consistent with a recovery from a nerve injury.

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So he clearly also accepted Dr. Kinsborn's expert testimony about the course of recovery and how that would look for Ms.

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Kirby when you're dealing with a nerve injury.

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However,

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So as far as corroborating evidence for this particular case is concerned, petitioner obviously agrees that there is corroborating evidence, there's more evidence.

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The reason that I point to this particular record on the home exercise program is because I think it focuses the real issue here.

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Petitioner agrees that there are corroborating records and expert testimony to establish a six month rule in this record.

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However, the focus I believe this court needs to take is to clarify the application of this language in subsection 13A about petitioner's testimony not being able to be used.

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And that's why I focused on the home exercise program.

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There are no corroborating medical records for that.

[00:06:28] Speaker 03:
But the law has never been in the program.

[00:06:33] Speaker 02:
Mr. Gage, this is Judge Toronto.

[00:06:35] Speaker 02:
Can I just ask this question?

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Suppose for a minute that putting aside any question about whether the government is arguing or the tribunal that the Court of Federal Claim held

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as a legal matter that each key fact has to have record corroboration.

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Why is it, just as a matter of arbitrary and capriciousness or reasonableness, why is it reasonable in the absence of any medical documentation, basically to say between December of

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what is it, 2013 until the fall of 2015, notwithstanding a number of medical appointments in that period.

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Why is it reasonable to credit Ms.

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Kirby's testimony when one might have expected, and that might not be the proper formulation, some of those medical records to record

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a continuing radial neuritis thumb problem.

[00:07:57] Speaker 03:
Right.

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So, Your Honor, the arbitrary and capricious standard, obviously, we have to be looking at this through that lens.

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Special Master Horner articulated the answer to your question, I believe.

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Ms.

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Kirby testified that she was told, and it's absolutely accurate.

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I mean, Dr. Kinsborne agreed, and I don't believe the government's expert disagreed.

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that a mild radial nerve injury, there was no more treatment for it.

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Ms.

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Kirby was told that.

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It was getting better.

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She was following her home exercise program.

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There is no reason for her to continue to seek treatment for that.

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Her doctor already knew about it.

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It was already in her record.

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What about the January 2014, I guess, Pike Bowling Green Clinic visit

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which might have been for a general physical exam.

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Why would not that record have recorded this problem?

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And yet, I think you agree it doesn't, right?

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This is at 91 and 92 of the appendix.

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I guess it actually continues to 94.

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I believe she was... I think there's testimony to the effect that she was just going to get her FLSA certification paperwork.

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I'm not sure that's a complete answer to the generality of this physical exam and therefore whether it might be significant that there's no mention at that point

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of either the continuing home exercise or continuing pain in the right thumb.

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And the lack of mention, Your Honor, is key to this and was to Special Master Horner's decision that it doesn't say

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The thing that would create a problem and Special Master Horner would have needed to deal with is if it says, I checked her and asked her about her radial nerve injury and she informed me that it was completely healed.

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Then she turns around and testifies that it was not and it continued on for a year.

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That would be problematic, but that's not the facts of this case.

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A record that is silent is just a record that's silent.

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It doesn't portend in one direction or the other.

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She doesn't have to complain about everything that she's ever told her doctor before when she's going in for an FLSA paperwork to be filled out, and I think that was Special Master Horner's decision.

[00:11:06] Speaker 03:
I think he commented, that was certainly the flavor of how he addressed that.

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There are no records here that directly contradict her testimony.

[00:11:16] Speaker 03:
There are records where we would like, if she knew she was going to go into a legal proceeding later on, maybe she would have brought that up every time even though she was there for a different reason.

[00:11:28] Speaker 03:
But she was there for a different reason, and she was told that she couldn't have, that there was no further treatment for this and keep doing your home exercise.

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That's what she did.

[00:11:38] Speaker 03:
I'd like to reserve the rest of my time for rebuttal.

[00:11:41] Speaker 03:
Thank you.

[00:11:41] Speaker 01:
Thank you, Mr. Gage.

[00:11:42] Speaker 01:
Ms.

[00:11:43] Speaker 01:
Oponchowski, please proceed.

[00:11:47] Speaker 00:
May I please the court, my name is Mallory Oponchowski for the Secretary of Health and Human Services.

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The court should affirm the ruling of the Court of Federal Claims

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dismissing petitioners' petition for failure to meet threshold statutory requirements.

[00:12:03] Speaker 00:
This appeal involves two separate statutory requirements under the Vaccine Act.

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First, that petitioners show that the injury persisted for at least six months, and second, that she can meet her burden of proof based on more than her testimony alone, unsubstantiated by medical records or medical opinion.

[00:12:20] Speaker 00:
That provision applies to

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the separately carved out statutory requirement of six months' severity.

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That's how that provision has been interpreted as such by other reviewing courts.

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For instance, the Court of Federal Claims in Jeremy v. HHS 127, Federal Claims 22299, cited in the brief states that petitioners

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word alone, and a letter, including a letter from an expert opinion post-stated after the fact, were not sufficient to show that the symptoms persisted beyond six months when contemporaneous medical records did not bear out that determination.

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That was also the case in the varieties versus HHS from the claims court, 07261 cited in the brief.

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Again, specifically citing Section 300A13A1 in analyzing the six-month severity requirement.

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This requirement, carved out by Congress, requires consistent evidence.

[00:13:31] Speaker 02:
Can I just ask, this is Judge Tranto.

[00:13:32] Speaker 02:
So you cited a couple of Court of Federal Claims decisions, which as you know are not precedential for us.

[00:13:38] Speaker 02:
So putting aside non-precedential decisions, why is your position correct?

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that, and I'm not even, how would you state your position?

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Every significant fact bearing on the medical question has to be corroborated?

[00:13:56] Speaker 02:
As opposed to corroboration of, you know, in general, because in other corroboration contexts with which we are familiar, it is the corroboration idea like for, you know, claiming I really invented something as opposed to the named inventor.

[00:14:17] Speaker 02:
It's a flexible record as a whole kind of corroboration, not every single fact kind of corroboration.

[00:14:27] Speaker 00:
Yes.

[00:14:28] Speaker 00:
So the government's position is that as to a specific, so the Vaccine Act contains, you know, a number of statutory prerequisites.

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Now the core causation questions in Vaccine Act cases are, you know, broken up

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further and that's more articulated by case law.

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The Alton standard sets forth what a petitioner must show on the causation question.

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The six month severity is a separately carved out statutory section and Congress, you know, explained why they did so, that it only intended to compensate injuries that were sufficiently severe and not to compensate those injuries that while

[00:15:09] Speaker 00:
whether they be mild or significant in the short run, we'll see.

[00:15:13] Speaker 02:
To be concrete, at least the way I'm remembering it, and you can correct me if my recollection is wrong, there's certainly corroboration from October through into December of the issue with the thumb and the right arm and the radial neuritis.

[00:15:30] Speaker 02:
And at that point, the paper records go silent, but the expert

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for Ms.

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Kirby said it's actually medically reasonable that the condition would continue past December for basically until April, which I guess is a six-month period.

[00:15:53] Speaker 02:
Why is that insufficient?

[00:15:56] Speaker 02:
Why should that be legally insufficient corroboration under the statutory term provision that you're talking about?

[00:16:05] Speaker 00:
Well, a few problems with Dr. Kinsborne's statement.

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Dr. Kinsborne, of course, as a testifying litigation expert, you know, we clearly testified that he did not see or treat Ms.

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Kirby as the knowledge of her case until he stepped in as a litigation expert.

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And as the court of federal claims was concerned about it and cited the Epstein case, which also dealt with a similar problem, a testifying expert can't come in and provide a fact.

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that was not there to speak to contemporaneously.

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He can only accept, under a set of facts, he can provide an opinion as to whether that's medically reasonable.

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Of course, the government disagrees strongly that that opinion was medically reasonable.

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But he tests, Dr. Kinsborne testified, I'm basing my testimony on what Ms.

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Kirby has stated, which is unsupported.

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So bolstering an unsupported fact

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by a litigation expert is not preponderant evidence that a fact actually occurred.

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Because all he can do is say, I am accepting, and he says this very clearly in the record, my testimony as to timing is based on what she said.

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And the contents of Ms.

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Kirby's testimony were incredibly vague, unsupported, and could not

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supplant what we do know from the medical records.

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And I do disagree that we are dealing with a complete, with complete silence after December of 2013.

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The January 2014 record with Ms.

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Kirby's primary care provider does contain, it does contain real information.

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This is not the case.

[00:17:52] Speaker 00:
Now as Mr. Gage stated, if Ms.

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Kirby had stated, I have nothing.

[00:17:58] Speaker 00:
There's no problems with my right arm.

[00:18:00] Speaker 00:
Let's never discuss this again.

[00:18:02] Speaker 00:
It's gone.

[00:18:03] Speaker 00:
We wouldn't be here.

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But this is also not the case where we have a complete omission and a drop off of records and a petitioner that moves to another state, loses insurance.

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We have nothing to go on.

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She's before her primary care provider, the same person that she first reported her injury to that diagnosed it and treated it.

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And she's there.

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There's a general physical examination.

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The appendix at page 91 shows that the FMLA paperwork was part of it.

[00:18:31] Speaker 00:
There is a physical examination.

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There is a review of systems where specifically neurological symptoms were inquired about, and that's the source of pain that she had.

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It was neurological.

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There were negatives for numbness.

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There was no numbness or tingling mentioned when just a month prior those symptoms were discussed.

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And she was actually examined.

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She was actually seen and touched by her primary care physician that day.

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And there were no symptoms reproducible on examination.

[00:19:01] Speaker 00:
That's real information, real objective information.

[00:19:07] Speaker 01:
You're talking about the document on 91 and 92.

[00:19:10] Speaker 01:
Is that right of the appendix?

[00:19:13] Speaker 00:
Yes.

[00:19:14] Speaker 01:
Okay.

[00:19:14] Speaker 01:
And so you said neurological

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systems were tested and that she didn't indicate that she had any neurological problems with her hand.

[00:19:24] Speaker 01:
Is that right?

[00:19:25] Speaker 00:
Yes, and specifically the review of systems, that's on page 92 of the appendix.

[00:19:35] Speaker 01:
What precisely does it say?

[00:19:37] Speaker 01:
It says under neurological not present dizziness.

[00:19:45] Speaker 01:
So does that mean she does not have dizziness or there are no neurological symptoms except for dizziness?

[00:19:53] Speaker 01:
How am I to understand that language?

[00:19:58] Speaker 00:
While the record, we don't have testimony from Ms.

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Chandler as exactly what, if there was a concern about dizziness.

[00:20:09] Speaker 00:
But the battery of neurological symptoms that you do inquire about,

[00:20:15] Speaker 01:
But Council, look at all the others.

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Cardiovascular not present dash chest pain.

[00:20:23] Speaker 01:
I bet that doesn't mean that cardiovascular issues are not present except she does have chest pain, right?

[00:20:30] Speaker 01:
That would be really strange if she was complaining about chest pain and there was no other development or testing ordered.

[00:20:39] Speaker 01:
Where it also says gastrointestinal not present dash abdominal pain and change in bowel habits.

[00:20:45] Speaker 01:
If she's got chest pain and abdominal habits and a cough and difficulty breathing on exertion and eye pain, ear pain, runny nose, nasal congestion, you see the point I'm making where it says not present dash.

[00:20:58] Speaker 01:
I don't think it means not present except these things are present.

[00:21:04] Speaker 01:
I think it means these are the things I've asked her about and they're not present.

[00:21:08] Speaker 01:
Isn't that a completely reasonable reading of this?

[00:21:15] Speaker 00:
It's reasonable to assume that those were key questions that were highlighted, but under the standard... Why do you think it was more than that?

[00:21:26] Speaker 01:
What about this record tells you she was asked about any neurological symptoms in particular as opposed to only inquired about whether she has any dizziness?

[00:21:37] Speaker 00:
The assumption would just be based on the standard of care and what is done in a review of systems

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and what points on each of those categories are inquired about and as an under standard practice.

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And that would be a reasonable assumption.

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Now, she further goes on.

[00:21:59] Speaker 01:
Wait, wait, time out.

[00:22:00] Speaker 01:
You're telling me that would be a reasonable presumption of how I should interpret what was done here and what this medical record actually means.

[00:22:07] Speaker 01:
Did you put any evidence into that effect?

[00:22:09] Speaker 01:
Because you want me to read this document and to understand its silence and in particular your argument in this case was that the fact that they reviewed neurological symptoms and she didn't point to any continuing issues in her hand ought to be construed as her affirmatively denying that they existed or affirmatively not in response to basically what feels like a direct question not responding.

[00:22:35] Speaker 01:
But that just seems quite inconsistent with the document itself.

[00:22:42] Speaker 00:
certainly can see that the document does not, you know, spell out the key questions of numbness and tingling, but by providing, by having an actual examination in which these questions recently could have been asked, or there is an actual examination questioning, followed by a physical exam, you can see on the next page of the record,

[00:23:10] Speaker 00:
at page 93, an actual physical examination of Ms.

[00:23:15] Speaker 00:
Kirby, provided an opportunity for Ms.

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Kirby to both affirmatively state, explain, discuss pain, and an opportunity for the practitioner to identify and source out any lingering deficits that may have remained at this point.

[00:23:33] Speaker 01:
Counsel, I think that your argument now gets to the case called Robi versus HHS.

[00:23:39] Speaker 01:
Now, it's a non-precedential case by a single special master.

[00:23:43] Speaker 01:
It's not even a CFC case.

[00:23:44] Speaker 01:
However, Judge Smith cites it positively.

[00:23:48] Speaker 01:
You cite it in your brief affirmatively.

[00:23:51] Speaker 01:
And the portion of Roe v. Secretary of Health and Human Services cited by each of you is the following.

[00:23:56] Speaker 01:
Let me read it to you.

[00:23:58] Speaker 01:
Not only are medical records presumed to be accurate, they also are presumed to be complete.

[00:24:04] Speaker 01:
Is everybody still on?

[00:24:06] Speaker 01:
Okay.

[00:24:07] Speaker 01:
Yes.

[00:24:08] Speaker 01:
They are presumed to be complete in the sense that the medical records present all the problems of the patient.

[00:24:14] Speaker 01:
Completeness is presumed due to a series of propositions.

[00:24:18] Speaker 01:
First, when people are ill, they see a medical professional.

[00:24:21] Speaker 01:
Second, when ill people see a doctor, they report all of their problems to the doctor.

[00:24:25] Speaker 01:
Third, having heard about the symptoms, the doctor records what he or she was told.

[00:24:31] Speaker 01:
So is it the government's position, and based on what you're explaining it seems to be, that if she had met with a doctor,

[00:24:38] Speaker 01:
and she had any continuing some related or other neurological issues.

[00:24:45] Speaker 01:
The fact is, since the record is silent as to them, we should presume they don't exist.

[00:24:50] Speaker 01:
I mean, that's what Roby says.

[00:24:52] Speaker 01:
So is it the government's view that this court should adopt the Roby presumption, which seems to be cited affirmatively by Judge Smith and again cited in your brief?

[00:25:04] Speaker 00:
Yes, Your Honor.

[00:25:08] Speaker 00:
does contend that the Roe v. Presumption, which stems from this court's long-standing precedent in Kikuris, is a presumption.

[00:25:16] Speaker 00:
It's rebuttable.

[00:25:17] Speaker 00:
And that's what's key in this case.

[00:25:20] Speaker 00:
Medical records are not infallible.

[00:25:22] Speaker 00:
There are typographical errors.

[00:25:25] Speaker 00:
There are lacking notations.

[00:25:28] Speaker 00:
And so the presumption is that late witness testimony can

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supply useful information, and it can even overcome what a medical record says when it's clear, cogent, and compelling.

[00:25:42] Speaker 00:
That is not the case here.

[00:25:45] Speaker 00:
Ms.

[00:25:45] Speaker 00:
Kirby was not, as the Special Master acknowledged, her testimony made it difficult, if not impossible, to affix an endpoint to her pain.

[00:25:56] Speaker 00:
She, under questioning from her own counsel, asked, when did this resolve, Petitioner?

[00:26:03] Speaker 00:
appendix at 136, I can't remember exactly.

[00:26:06] Speaker 00:
I just continue to do home exercises because she affixes no endpoint, no orienting information when a fact finder could come in and say, was it, do you remember still doing?

[00:26:21] Speaker 01:
Counsel, if you have an injury and that injury persists for, say, a year or more, isn't it possible that you don't remember precisely what it ended but you certainly remember it lasted longer than six months, which was her testimony?

[00:26:34] Speaker 00:
Well, it may be reasonable to assume that, but Ms.

[00:26:39] Speaker 00:
Kirby couldn't give us even when within the six months she believes that the injuries receded, and that's important.

[00:26:48] Speaker 00:
Under questioning from her counsel, again, at page 136 of the appendix, petitioner's counsel, we realized this was a long time ago, but can you give us a month and a year, or can you do that?

[00:26:59] Speaker 00:
Answer, no, I don't remember.

[00:27:01] Speaker 00:
She does say she believes it was more

[00:27:04] Speaker 00:
than a year, but there's nothing to substantiate that.

[00:27:08] Speaker 00:
And what the government is asking of a petitioner is not insurmountable, and it is achieved in other cases in which there is more.

[00:27:18] Speaker 00:
As the CSC cited again in the Epstein decision, corroboration does not have to mean medical record.

[00:27:27] Speaker 00:
It can refer to non-medical record documentary evidence.

[00:27:32] Speaker 00:
calendars, date books, statements from third party disinterested witnesses, received information that could substantiate human memory.

[00:27:46] Speaker 00:
And we don't have that here.

[00:27:48] Speaker 01:
The government's position that what can't substantiate it is an expert who says,

[00:27:55] Speaker 01:
Anyone who has this condition, I would expect for it to last for at least a year or at least six months, or it is completely reasonable that this condition would extend that long based on the nature of the condition.

[00:28:07] Speaker 01:
Is that not, why is that not sufficient for corroboration?

[00:28:12] Speaker 01:
When we have medical records for the first several months, she's saying it went on longer, and there's a medical expert who says her testimony is completely consistent with the trajectory of the injury that he would expect.

[00:28:26] Speaker 01:
Why isn't under these circumstances that sufficient?

[00:28:33] Speaker 00:
Dr. Kinsborn is, well I mean first the government does, critically the government does contend that the Special Master also erred in accepting that testimony and Dr. Kinsborn didn't have the expertise or his opinion wasn't particularly credible on that point because the competing expert from respondent who was

[00:28:53] Speaker 00:
far more credentials per special master, rejected outright the idea that a radial nerve neuritis can wax and wane in that manner.

[00:29:04] Speaker 00:
So whether that was even a competent evidence, but that opinion hinges to, he can have the, Dr. Kinsborn is entitled to make the opinion that that injury can occur like that, but whether it did in Ms.

[00:29:20] Speaker 00:
Kirby is a matter that he can't supply.

[00:29:23] Speaker 00:
based on a litigation review and statement of medical possibility.

[00:29:29] Speaker 00:
Looking at what actually occurred in Ms.

[00:29:32] Speaker 00:
Kirby and the facts of her case becomes a wholly unsupported area, a testimony in which there is nothing but her word that lacks any specificity to explain or substantiate the pain and where the medical records do show

[00:29:52] Speaker 00:
her continuing on seeking medical attention and not treating the problem that she had once treated rather acutely.

[00:30:01] Speaker 00:
The medical records.

[00:30:04] Speaker 02:
Ms.

[00:30:04] Speaker 02:
Openschowski, this is Judge Turner.

[00:30:05] Speaker 02:
Can I just ask you this?

[00:30:08] Speaker 02:
Suppose that we disagree with the Court of Federal Claims decision about the six-month requirement being met.

[00:30:21] Speaker 02:
And as part of that disagreement, suppose we conclude that there was no reversible error under the differential standard or review in the special master's crediting of Dr. Kinsborn's testimony.

[00:30:40] Speaker 02:
Is there anything to remand?

[00:30:44] Speaker 00:
Yes, Your Honor.

[00:30:45] Speaker 00:
The government raised before the Court of Federal Claims and preserved its two separate numbered objections to the special master's decision pertaining to the court's consideration of expert credibility and the actual causation and burden of proof.

[00:31:00] Speaker 00:
This respondent did contest compensation under the Alton Promise in this case as well.

[00:31:06] Speaker 00:
Judge Smith did not reach those questions.

[00:31:10] Speaker 02:
And if we were to remand, Judge Smith would apply exactly the standard that we would apply, right?

[00:31:17] Speaker 02:
There's no deference to the Court of Federal Claims decision.

[00:31:21] Speaker 02:
So why wouldn't we decide that here?

[00:31:25] Speaker 02:
And in part because it seems like it may come down to the very same assessment of whether

[00:31:36] Speaker 02:
Dr. Kinsmore could be credited against what you say is the more highly credentialed Dr. D'Onofrio.

[00:31:45] Speaker 00:
Yes, this court certainly has the authority to consider those arguments and the government renews them.

[00:31:54] Speaker 00:
Before this court, the special master was also arbitrary and compretious in the manner in which he assessed the credibility of these expert witnesses.

[00:32:04] Speaker 00:
And seemed to, without rejecting Dr. Genofrio wholesale, rejected his key conclusions onto the scope of this injury, the feasibility of whether, you know, the underlying allegation in this case is that a flu vaccine was so mal-injected that it was down near the elbow and struck this radial nerve to course down the forearm and into the thumb.

[00:32:30] Speaker 00:
And then Dr. Genoffer, you know, this is expert opinion, this is more likely than not what happened and that the injection was unable to do so.

[00:32:41] Speaker 00:
And.

[00:32:42] Speaker 02:
What would be the basis for his saying that that factual observation about what happened at a particular flu vaccine, in a flu vaccine office was not likely to have happened?

[00:33:02] Speaker 00:
Dr. Ninoffra's opinion was a medical one, speaking as to the difficulty in actually... About a fact about what happened?

[00:33:12] Speaker 02:
Isn't that where you were complaining, insisting it really needed to be distinguished from when you're talking about Dr. Kinsborne's testimony about whether she still had the pain into April as opposed to whether it was medically reasonable that that would occur?

[00:33:34] Speaker 00:
Certainly, and Dr. Dinosaur, it's certainly not fatal to Dr. Dinosaur's opinion that the, whether the injection, whether he could not, as a personal witness to the injection, speak to it.

[00:33:50] Speaker 00:
There are compelling medical facts that made it medically unfeasible.

[00:33:55] Speaker 00:
The testimony in the record, Ms.

[00:33:58] Speaker 00:
Kirby, you know, with significant adipoise tissue,

[00:34:02] Speaker 00:
which is a larger woman, and that the weather is even medically feasible at all for the needle to reach the radial nerve in this highly unusual manner in which it was alleged.

[00:34:16] Speaker 02:
And that has to do with the length of the needle question?

[00:34:21] Speaker 00:
Yes.

[00:34:22] Speaker 00:
And we have testimony on that issue.

[00:34:25] Speaker 00:
And Dr. Genofre was the one, again, who runs the

[00:34:28] Speaker 00:
EMG laboratory at Vanderbilt University sees nerve injuries in the adult population every day of his practice and studies the nerve conduction tests that you test for to look for deficits on neurological test and Ms.

[00:34:44] Speaker 00:
Kirby's testing in this case didn't even register on that method of testing on the EMG study.

[00:34:51] Speaker 00:
And his review of the case was however that injury occurred

[00:34:56] Speaker 00:
it was incredibly mild and an injury of that nature does not wax and wane.

[00:35:02] Speaker 00:
It does resolve without new insults or new source of injury, mild radial nerve injury resolves and that's what the record bears out.

[00:35:14] Speaker 00:
And for the special master to have found for a petitioner against the weight of that medical opinion, the weight of the contemporaneous medical record evidence,

[00:35:24] Speaker 00:
was arbitrary and capricious and clear error.

[00:35:28] Speaker 01:
All right.

[00:35:29] Speaker 01:
Thank you, Counsel.

[00:35:30] Speaker 01:
Mr. Gage, you have rebuttal time.

[00:35:32] Speaker 01:
Please proceed.

[00:35:34] Speaker 03:
Thank you.

[00:35:35] Speaker 03:
The only way that this really works, Your Honors, is if the special masters are given the latitude to look at the record as a whole and consider all of the evidence.

[00:35:49] Speaker 03:
And that includes petitioner's testimony.

[00:35:51] Speaker 03:
We have numerous cases where the medical records are silent on key issues, things weren't recorded, somebody may not have been able to get to a medical provider.

[00:36:04] Speaker 03:
That cannot be a roadblock to a petitioner.

[00:36:09] Speaker 03:
The special master, perhaps it's easier in a case where the medical records establish every relevant point, but we don't have that luxury in this program.

[00:36:21] Speaker 03:
This is the record as a whole by the ponderance of the evidence that has been the rule and that needs to stay the rule.

[00:36:29] Speaker 03:
That is what Special Master Horner did.

[00:36:31] Speaker 02:
Do you have in mind any particular case, best of all a case of ours, where an important fact had to be based on

[00:36:46] Speaker 02:
the claimant's testimony without a contemporaneous medical record?

[00:36:55] Speaker 03:
I don't remember that.

[00:36:57] Speaker 03:
I don't think that's ever been brought up to this court that that couldn't happen.

[00:37:01] Speaker 03:
I believe it happens all the time.

[00:37:06] Speaker 03:
For instance, in this case, was the injury immediate or was it a two-day onset?

[00:37:15] Speaker 03:
Well, there are records that say both things in this case.

[00:37:19] Speaker 03:
And the special master's resolution to that was to take the testimony of petitioner.

[00:37:26] Speaker 03:
There's absolutely nothing inappropriate about that.

[00:37:29] Speaker 03:
But sitting here right now, I know I can get you some if you wanted it, but I didn't come prepared for that, Your Honor, I'm sorry.

[00:37:41] Speaker 03:
My mind is drawing a blank, but it happens all the time.

[00:37:46] Speaker 03:
How long did it last?

[00:37:48] Speaker 03:
How severe was the pain?

[00:37:50] Speaker 03:
Did you suffer pain in this direction or that, making this type of injury or that injury more likely?

[00:37:57] Speaker 03:
We fill in those blanks every day in this program by petitioner's testimony.

[00:38:03] Speaker 03:
And we do it with expert testimony on what's most likely.

[00:38:08] Speaker 03:
And we use the medical records, but you have to, it has to be a mix.

[00:38:12] Speaker 03:
It just, it can't, it would be unworkable if it has to be medical record corroborated in order to establish the facts.

[00:38:21] Speaker 03:
Special masters, that's what they're trained to do, that's what they do, and that's the only way that this is workable, Your Honor.

[00:38:29] Speaker 01:
Council, this is Judge Moore.

[00:38:30] Speaker 01:
Let me ask you one final question, and it's about Roeby.

[00:38:34] Speaker 01:
The government would like us to adopt the Roeby presumption.

[00:38:39] Speaker 01:
That is definitely not what our curacacus decision was about.

[00:38:44] Speaker 01:
The curacacus decision was about when there is actually an articulation in the medical record by the patient that they, in fact, have a particular

[00:38:56] Speaker 01:
illness at a particular time or don't have a particular illness at a particular time.

[00:39:00] Speaker 01:
I believe that case was about when the onset of symptoms occurred and those medical records repeatedly put them outside the window that was deemed appropriate, multiple records reporting in the Caracas case.

[00:39:12] Speaker 01:
And the Roby special master non-precedential decision, which the government would like us to adopt in order to succeed in this case, I think,

[00:39:21] Speaker 01:
goes quite a bit further.

[00:39:22] Speaker 01:
It isn't that medical records are presumed to be accurate.

[00:39:25] Speaker 01:
It is they are also presumed to be complete.

[00:39:27] Speaker 01:
The idea being that if you go to any doctor, no matter what the issue, you would tell them every single ailment that you might otherwise have.

[00:39:38] Speaker 01:
That's the standard the government would like to apply in this case.

[00:39:41] Speaker 01:
Can you speak to the circumstances under which or whether or not you think we ought to adopt such a presumption?

[00:39:48] Speaker 03:
Yes, Your Honor, and the case is Cocurus.

[00:39:52] Speaker 03:
It was a case out of this office back in the 90s.

[00:39:55] Speaker 03:
We represented the Cocurus family.

[00:39:58] Speaker 03:
The Roby morph of the Cocurus doctrine would not be workable, Your Honor, and it's also not accurate.

[00:40:12] Speaker 03:
simply says the extremely unsurprising thing that everybody, first-year law students know, that there's a reason there's an exception to the hearsay rule for medical records, and that's because there is some indicia of reliability there.

[00:40:27] Speaker 03:
But they're not infallible.

[00:40:30] Speaker 03:
They are routinely, in fact, probably most of the times, not complete.

[00:40:36] Speaker 03:
And to say that

[00:40:40] Speaker 03:
we're gonna create a legal presumption in this program that there's a fully articulated presentation about the person's overall health every time they visit a doctor.

[00:40:55] Speaker 03:
Well, that's not how, you know, we have 15 minute medical appointments these days with computer generated records.

[00:41:03] Speaker 03:
It's utterly unrealistic.

[00:41:05] Speaker 03:
Of course, that's not how medicine is practiced.

[00:41:09] Speaker 03:
Unfortunately for us all, I suppose, medical doctors don't know that they're creating records for legal proceedings.

[00:41:18] Speaker 03:
And we, you know, it just wouldn't work, Your Honor.

[00:41:23] Speaker 03:
I think it's unrealistic.

[00:41:24] Speaker 03:
Thank you.

[00:41:25] Speaker 01:
All right.

[00:41:26] Speaker 01:
Thank you, Mr. Gage.

[00:41:27] Speaker 01:
We thank both counsels.

[00:41:28] Speaker 01:
This case is taken under submission.

[00:41:31] Speaker ?:
Thank you.

[00:41:34] Speaker 01:
The comparable court is adjourned until tomorrow morning.