[00:00:00] Speaker 02:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 02:
God save the United States and this honorable court.

[00:00:11] Speaker 04:
Our first case for argument today is 21-1866, Sanchez versus HHS.

[00:00:19] Speaker 04:
Ms.

[00:00:19] Speaker 04:
Rockmore, please proceed.

[00:00:22] Speaker 05:
That's good morning.

[00:00:22] Speaker 05:
Thank you very much.

[00:00:24] Speaker 05:
If it please the court.

[00:00:26] Speaker 05:
By way of history, I was standing here almost two years ago on a field, on a major issue where there was a fact that was unsubstantiated by the evidentiary record, that being that the arm contortions that occurred with the child approximately 11 days after the vaccine was consistent with a cold.

[00:00:52] Speaker 05:
This was one of the issues on remand.

[00:00:56] Speaker 05:
We're here today, petitioners submit yet again that a new unsubstantiated fact that permeates the entirety of the remand decision denying entitlement, that being that the arm contortions were now only a one-time event or an isolated event or words to that effect.

[00:01:19] Speaker 05:
This new finding is definitely not in the medical record as the medical records are contrary

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and indicate that the arm contortions lasted for over a month and several times a day.

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This unsubstantiated fact is not in the expert report, it's not in the testimony of the family, it's not in the fact finding, and it's not in the first decision denying entitlement.

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And even though this was a primary issue of this current appeal,

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As far as I can tell, respondent has failed to show where the evidentiary records indicate that the armed contortions were a one-time event.

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I think there's a good reason.

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I think they cannot.

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So pursuant to this very court in Palick in findings are not based on relevant evidence of record, are not drawn upon reasonable inferences.

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We believe that this decision ought to be reversed.

[00:02:28] Speaker 05:
What the medical records actually indicate, as I already stated, is that after that one night of the arm contortions, the arm contortions continued up ten times a day, one to two minutes at a time.

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for about a month.

[00:02:51] Speaker 01:
Excuse me.

[00:02:53] Speaker 01:
This is Judge Bryson.

[00:02:55] Speaker 01:
Now, when you say the medical records indicated that, are you referring to the records that

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several years later or at least starting I guess some months later in which the physicians were reciting the history of the patient's condition based on the parents' reports to the physicians.

[00:03:22] Speaker 01:
Are you referring to the medical records that occurred during the several month period after the vaccination?

[00:03:33] Speaker 05:
There was a pediatric neurologist, Dr. Friedman, that took a history to which pediatric neurologists are trained to take histories, and yes, it was from the parents.

[00:03:47] Speaker 01:
Right, but those histories, Dr. Haas, Dr. Friedman, and

[00:03:52] Speaker 01:
I guess there were a couple of other doctors.

[00:03:55] Speaker 01:
Those were all based on the parents' report of the events that occurred between February and May of 2009.

[00:04:06] Speaker 01:
Isn't that right?

[00:04:09] Speaker 05:
Yes, it's the history that was provided by the parents.

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There would be no one else to be able to provide that history.

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And these particular doctors are very well trained

[00:04:21] Speaker 05:
to take an accurate history.

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There was also indication six months after the vaccine in August of 2009 where the notes indicate that the child's extremities were soft yet rigid at times.

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And then another indication nine months after the vaccine by Dr. Michaelson that the right arm would be

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behind himself episodically.

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I emphasize the word episodically because to me that means it's happening episodically, more than one time.

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Also, I would point to the testimony of the family, especially Mr. Sanchez, who indicated that from the time

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The child was taken to urgent care in February of 2009 and then the next visit in April of 2009.

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The testimony was that the child continued to have these contortion type behaviors.

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He continued to have them a few times a day, sometimes a couple times a day.

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And so between February and April, the testimony is that he continued to have these contortions.

[00:05:47] Speaker 00:
The special master didn't really address that February to April period after the initial arm movement event in the current decision.

[00:06:03] Speaker 00:
But in his earlier decision, he did address that and made a finding on page 686 of the record that he,

[00:06:17] Speaker 00:
did not exhibit arm contortions in that February to April period except the one event.

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And then on page 683, he gives the reasons for that conclusion.

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And one of them is that there weren't any contemporaneous medical records.

[00:06:36] Speaker 00:
I understand your point about the Kirby case and that connection, but then he also

[00:06:43] Speaker 00:
in the middle of 683 talks about the faultiness of the witnesses recollection.

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And so much of the testimony about the arm movements is by Mr. Sanchez, the father.

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Do you know, I couldn't find in the record what this testimony was at 174 where the special master seems to find that Mr. Sanchez testified inaccurately in other respect.

[00:07:12] Speaker 00:
Can you help me on that?

[00:07:15] Speaker 05:
I don't know where Mr. Sanchez would have specified inaccurately.

[00:07:22] Speaker 00:
Well, he seems to make such a finding, repeated attribution of unrealistic abilities to Tristan and then cite page 174 of the transcript.

[00:07:41] Speaker 05:
Of the fact transcript?

[00:07:44] Speaker 05:
Yeah.

[00:08:04] Speaker 00:
We can't access that page because the record is confidential.

[00:08:10] Speaker 05:
I'm just trying to see if.

[00:08:13] Speaker 05:
I can quickly.

[00:08:17] Speaker 05:
We were talking about what his experience with newborn babies.

[00:08:41] Speaker 00:
He says, the Special Master says, for example, three witnesses said Tristan could hold up his head at birth and then cite Mr. Sanchez at 174.

[00:08:52] Speaker 00:
And this is apparently one of his reasons for rejecting this testimony about the arm movements continuing after the February episode.

[00:09:10] Speaker 05:
Yes, there was.

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testimony about Tristan being very strong and that he could hold his head.

[00:09:23] Speaker 05:
I think part of when we were at the fact hearing and the decision after that is that based on the testimony of all the families

[00:09:38] Speaker 05:
there was a finding that the arm contortions didn't happen at all until I think August of 2009.

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And then that determination changed and it appears that the credibility of Mr. Sanchez was not as much in question.

[00:10:08] Speaker 05:
because there's a number of people relying on his affidavit now.

[00:10:14] Speaker 05:
There was testimony that I believe was relied on.

[00:10:17] Speaker 00:
Your point is that he ultimately believed Mr. Sanchez about February, but not about the period after February, which is inconsistent, right?

[00:10:30] Speaker 05:
He did find that it was correct that the arm contortions occurred.

[00:10:36] Speaker 05:
I'm not sure.

[00:10:38] Speaker 05:
that there's any credibility issue in between the time of February and when he supposedly lost his milestone.

[00:10:50] Speaker 05:
Where this one time event happened, I don't know where that is in the record.

[00:10:57] Speaker 05:
I can't find it.

[00:11:00] Speaker 04:
Council, Ms.

[00:11:02] Speaker 04:
Brockmore, Judge Dyke was referring you to page 686, which is where the special master had these fact findings.

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But then the ultimate opinion, which is where we found the inconsistency, is at 2297.

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And in that opinion, the special master concluded that Tristan did have arm contortions in February.

[00:11:42] Speaker 04:
Is that correct?

[00:11:44] Speaker 04:
Am I remembering this right?

[00:11:46] Speaker 05:
He did find that the arm contortions occurred in February in the first decision.

[00:11:55] Speaker 05:
also found that that was consistent with the cold, which there was nothing in the evidentiary record to support consistent with the cold.

[00:12:04] Speaker 00:
You're not making that finding now.

[00:12:06] Speaker 00:
I didn't see anything in the current decision about being consistent with a cold.

[00:12:12] Speaker 05:
Correct.

[00:12:12] Speaker 05:
So now it has changed in order to make the arm contortions not a neurological event,

[00:12:23] Speaker 05:
It was now found that it was an isolated event and therefore, in special master's opinion, not a neurological event, but petitioner contends the medical records, the testimony, the prior fact finding are not consistent

[00:12:44] Speaker 05:
Ms.

[00:12:46] Speaker 04:
Brockmore, this is Judge Moore again.

[00:12:47] Speaker 04:
Can you look on page 99 of the appendix?

[00:12:51] Speaker 04:
This is where the special master in his present opinion is dealing with the

[00:12:56] Speaker 04:
arm contortions and the inconsistency between his conclusion that they did occur on February 15th of 2009 and whether they constitute neurological abnormality versus part of the common cold.

[00:13:13] Speaker 04:
It's a little bit confusing to me.

[00:13:16] Speaker 04:
He did previously suggest all these symptoms were consistent with the cold, but no expert testified to that, as you said.

[00:13:22] Speaker 04:
But then now we look at page 99, his current opinion,

[00:13:26] Speaker 04:
And it indicates the arm contortions are consistent with an uncomfortably ill child.

[00:13:33] Speaker 04:
So I'm not sure what that means.

[00:13:35] Speaker 04:
What does it mean, an uncomfortably ill child?

[00:13:38] Speaker 04:
What would be the underlying illness that would cause the arm contortions on that time?

[00:13:44] Speaker 04:
This one did have a cold.

[00:13:52] Speaker 04:
Yes, but it seems as though the special master has gone out of his way, in this opinion, not to attribute arm contortions to the common cold, which seems like a smart decision, because I would find that quite odd indeed, as I'm not a medical doctor, but I have had many colds in my life and have witnessed many children with colds, and arm contortions don't seem consistent with a cold.

[00:14:15] Speaker 04:
And so the special master went out of his way not to make that conclusion in this opinion.

[00:14:23] Speaker 04:
What could it be if not the neurological deterioration that Tristan later experienced?

[00:14:28] Speaker 04:
What could it be if not that?

[00:14:31] Speaker 04:
What does this record allow us to conclude?

[00:14:35] Speaker 05:
Well, as you point out, what could it be?

[00:14:41] Speaker 05:
We contend it's a neurological event.

[00:14:45] Speaker 05:
Even the experts, the petitioners said that it's

[00:14:53] Speaker 05:
Certainly not something that, especially how it's described, it's not something that a child does.

[00:15:01] Speaker 05:
It's not necessary.

[00:15:04] Speaker 04:
One difficulty I have on page 99, the only thing that the special master cites

[00:15:12] Speaker 04:
for this concept that armed contortions are consistent with an uncomfortably ill child is Dr. Raymond's testimony.

[00:15:21] Speaker 04:
Any sites trial transcript at 863 and 874.

[00:15:25] Speaker 04:
And again, we don't have those in the appendix.

[00:15:28] Speaker 04:
Those weren't provided to us.

[00:15:29] Speaker 04:
Do you have any knowledge of what those pages do in fact indicate?

[00:15:37] Speaker 04:
I'm sorry?

[00:15:44] Speaker 04:
On page 99, the only thing the special master cites in support of his conclusion that the arm contortions are consistent with an uncomfortably ill child but somehow not a neurological event is Dr. Raymond's testimony, and he cites in particular trial transcript page 863 and 874.

[00:16:06] Speaker 04:
I'm indicating to you that we don't have those pages.

[00:16:09] Speaker 04:
You did not provide them to us in the appendix.

[00:16:11] Speaker 04:
Do you have any idea what's on those pages?

[00:16:14] Speaker 05:
As I'm sitting here, no, but I also know that Dr. Raymond did not feel that the holes or infections, he thought they were less likely to be the cause of belays versus his SDAJ mutation as being the sole cause.

[00:16:40] Speaker 04:
Okay, well let's hear from the government and we'll restore your rebuttal time.

[00:16:45] Speaker 04:
Thank you.

[00:16:47] Speaker 04:
Ms.

[00:16:47] Speaker 04:
Perlman, please proceed.

[00:16:49] Speaker 03:
Thank you, Your Honor.

[00:16:50] Speaker 03:
Unfortunately, there are pages obviously missing from the appendix, but I would ask that you look at appendix 2737, which happens to be Dr. Raymond's expert report that was filed prior to the hearing, where he talks about

[00:17:08] Speaker 03:
the fact that the arms contortions is consistent with an uncomfortably ill child who is tired and does not want to be held.

[00:17:17] Speaker 03:
Dr. Riemann's testimony was, he focused on all of the evidence in the record.

[00:17:24] Speaker 03:
And one of the main things he focused on is that if these contortions were a neurologic condition, whether it's dystonia or seizures or whatever,

[00:17:36] Speaker 03:
that was in fact related to the Lay syndrome.

[00:17:39] Speaker 03:
They would have been ongoing and persistent.

[00:17:42] Speaker 03:
That is how this.

[00:17:43] Speaker 00:
OK.

[00:17:43] Speaker 00:
So the problem that you have is that the father and the family testified that they were persistent.

[00:17:51] Speaker 00:
And it's not clear why that testimony is being rejected.

[00:17:58] Speaker 00:
The special master in the current decision doesn't say anything about that, if I recall correctly.

[00:18:04] Speaker 00:
But the earlier decision does reject that testimony.

[00:18:10] Speaker 00:
At the same time, he rejected their testimony about the February event.

[00:18:16] Speaker 00:
So now he's believing them about the February event, but apparently not about the post-February event.

[00:18:22] Speaker 00:
I don't understand how that's consistent.

[00:18:25] Speaker 03:
Well, we have evidence from three separate providers on three separate occasions.

[00:18:31] Speaker 03:
These are trained professionals who know how to look

[00:18:34] Speaker 03:
take medical histories and look at young children, babies who cannot express themselves.

[00:18:40] Speaker 00:
You're not addressing my question.

[00:18:42] Speaker 00:
How is it that the special master could believe the family about February but disbelieve them about post-February?

[00:18:50] Speaker 03:
That is his right.

[00:18:52] Speaker 03:
He looked at the records as a whole.

[00:18:54] Speaker 00:
There's no explanation as to why their testimony about February is credible but the later testimony isn't.

[00:19:02] Speaker 03:
Well, I will say that this time period we're speaking of, which is after February 16th, was outside the scope of the mandate.

[00:19:12] Speaker 03:
So I don't know why the special master would have focused on that here.

[00:19:16] Speaker 03:
In our view and in the view of the Court of Federal Claims finding that there were no neurologic symptoms in between February 16th and at the earliest May 1st.

[00:19:28] Speaker 03:
cannot be challenged.

[00:19:30] Speaker 03:
The scope, the panel before this carefully listened to it and didn't find any problems with the special master's findings.

[00:19:38] Speaker 00:
So we would submit that the findings... Wasn't addressed in the earlier decision, was it?

[00:19:46] Speaker 03:
The period between February 16th and May?

[00:19:50] Speaker 00:
Right.

[00:19:52] Speaker 03:
It was.

[00:19:52] Speaker 03:
He said in both his 2018.

[00:19:55] Speaker 00:
In our decision.

[00:19:56] Speaker 00:
That wasn't addressed in our decision, right?

[00:20:01] Speaker 03:
Correct.

[00:20:01] Speaker 03:
Well, correct.

[00:20:03] Speaker 03:
But that was because it was beyond the scope of the mandate.

[00:20:05] Speaker 03:
The special master was focusing on what the court had.

[00:20:08] Speaker 00:
Let's assume we don't have a mandate problem.

[00:20:11] Speaker 00:
How is it that he could rely on the family testimony to find that there was an armed contortion in February but reject

[00:20:20] Speaker 00:
their testimony that continued thereafter.

[00:20:23] Speaker 03:
That happens all the time, Your Honor.

[00:20:25] Speaker 03:
Sometimes there are certain facts that the Special Master finds supported and sometimes they find them not supported.

[00:20:31] Speaker 00:
I don't think anyone has ever.

[00:20:33] Speaker 00:
But we count it.

[00:20:34] Speaker 00:
We have no decision by the Special Master telling us why they're credible as to February but not credible thereafter.

[00:20:44] Speaker 03:
Again, the fact ruling, he explains why it was that he does not find that testimony credible.

[00:20:50] Speaker 03:
And a large portion of it is the contemporaneous medical records.

[00:20:54] Speaker 03:
These are doctors who took the histories and no arm contortions were recorded.

[00:20:59] Speaker 00:
The problem is the same thing is true about the February event.

[00:21:03] Speaker 03:
Your Honor, I don't know why this fact changed in the 2018 decision, but that is the only thing that changed.

[00:21:12] Speaker 03:
The fact ruling is very clear that there were no arm contortions after that two to three hour period.

[00:21:19] Speaker 03:
And Dr. Raymond cogently explained that it's perfectly consistent with a child who's uncomfortable, he's ill, he's splashing around, he does not want to be held.

[00:21:28] Speaker 04:
Well, Council, when you said it's consistent with the child who's ill, couldn't the illness be from a neurological event as opposed to just the common cold?

[00:21:40] Speaker 04:
Because I don't see Dr. Raymond testifying that arm contortions are consistent with the common cold.

[00:21:45] Speaker 04:
We have a child who has two conditions, right?

[00:21:49] Speaker 04:
And in February, he's got arm contortions and he's got a common cold.

[00:21:53] Speaker 04:
What I don't see is any testimony that arm contortions are consistent with a common cold.

[00:21:59] Speaker 04:
Is there some that I'm missing?

[00:22:01] Speaker 03:
No, but that was not the special master's finding.

[00:22:04] Speaker 03:
Obviously, the case was remanded to get this evidence because our experts were not permitted to opine on it in the first instance.

[00:22:14] Speaker 03:
And what Dr. Raymond said is viewing the evidence is

[00:22:18] Speaker 03:
that it's consistent with an uncomfortably ill child who is tired and does not want to be held.

[00:22:24] Speaker 03:
That is not directly counsel.

[00:22:25] Speaker 03:
I'm sorry.

[00:22:26] Speaker 04:
So Dr. Raymond did not testify arm contortions are consistent with a common cold.

[00:22:31] Speaker 04:
Correct.

[00:22:32] Speaker 04:
Correct.

[00:22:32] Speaker 04:
So there's no testimony to support that.

[00:22:35] Speaker 04:
So we have a fact finding that there are arm contortions in February quite timely following the vaccination.

[00:22:44] Speaker 04:
What are arm contortions, if not a neurological event?

[00:22:49] Speaker 03:
A child who is thrashing around his parents' arms.

[00:22:52] Speaker 03:
There's no testimony.

[00:22:53] Speaker 03:
There is no evidence given.

[00:22:55] Speaker 04:
No, no.

[00:22:56] Speaker 04:
Counsel, there is testimony.

[00:22:57] Speaker 04:
Dr. Raymond testified that it's a sign of an uncomfortably ill child.

[00:23:03] Speaker 04:
He didn't attribute it to the child's cold.

[00:23:06] Speaker 04:
So the other optional illness that it could be attributed to is Lay's syndrome, correct?

[00:23:11] Speaker 03:
No.

[00:23:12] Speaker 03:
With all due respect, Your Honor, no, because if it were a neurologic condition consistent with Lay's syndrome, it would not have been a one-time event for two to three hours several months before it ever reappeared again.

[00:23:25] Speaker 03:
That is completely not supported by the literature, and Dr. Raymond explained very clearly how it could not be dystonia, how it could not be seizures.

[00:23:35] Speaker 03:
If it were, then it would have been ongoing.

[00:23:38] Speaker 03:
and obvious and it would have been obvious because the petitioners who are clearly loving, caring, attentive parents would have reported it and it would have been obvious because three different medical providers evaluated Tristan during this period and they all said that he had

[00:23:55] Speaker 03:
colds or otitis media or some other viral illness.

[00:23:59] Speaker 04:
Why don't you take me to one of the medical records that didn't report it that you think I should look at and sort of accept that the failure to report it is indicative of it not having happened contrary to the parents claim.

[00:24:14] Speaker 04:
Like how about I take you to one?

[00:24:16] Speaker 04:
Why don't we look at page 216?

[00:24:18] Speaker 04:
Yeah.

[00:24:20] Speaker 04:
So it seems like on February 17th of 2009,

[00:24:26] Speaker 04:
The child's parents took him to an urgent care.

[00:24:29] Speaker 04:
Is that right?

[00:24:31] Speaker 04:
Is that what I'm looking at on page 216 of the record?

[00:24:33] Speaker 03:
It's an urgent care visit.

[00:24:35] Speaker 03:
I'm not sure if that means that it was an urgent care visit with his pediatrician or some other provider.

[00:24:41] Speaker 04:
OK.

[00:24:41] Speaker 04:
Well, in any event, his provider is Jonathan Luna.

[00:24:46] Speaker 04:
So who is Jonathan Luna?

[00:24:48] Speaker 03:
He's a physician's assistant.

[00:24:51] Speaker 04:
OK.

[00:24:51] Speaker 04:
So we've got a PA at an urgent care visit

[00:24:55] Speaker 04:
who, is there any evidence on this record that this PA is reporting or reporting anything at all on this record that the parents relayed to him that day?

[00:25:07] Speaker 03:
The history of present illness comes from the parents.

[00:25:11] Speaker 03:
Wait, and it says fever.

[00:25:12] Speaker 03:
Sorry, this is on 217.

[00:25:13] Speaker 04:
Oh, page 217.

[00:25:15] Speaker 04:
Yeah, that's page 217, okay.

[00:25:18] Speaker 04:
History of present illness.

[00:25:21] Speaker 04:
How do you know that comes from the parents?

[00:25:22] Speaker 04:
I didn't see that.

[00:25:24] Speaker 04:
I'm sorry, I didn't mean to speak up for you, Your Honor.

[00:25:27] Speaker 04:
I didn't see any testimony that came from the parents.

[00:25:29] Speaker 04:
Is there testimony in this record?

[00:25:31] Speaker 04:
Because I saw none and I've read every frigging page that you gave us.

[00:25:35] Speaker 04:
So is there testimony somewhere in this record that the history of present illness is what is reported to this physician by the parent as opposed to what he is observing?

[00:25:45] Speaker 03:
That is always what the history of present illness is.

[00:25:48] Speaker 04:
So I should accept your testimony on this record?

[00:25:50] Speaker 03:
No, and I don't know that we have testimony on it, but I've looked at a lot of records, and I've spoken to a lot of doctors, and the history of present illness, my understanding has always been that is what the child is presenting with.

[00:26:03] Speaker 03:
And if you want to go to the next... Is that a curiosity council?

[00:26:07] Speaker 04:
Yes.

[00:26:07] Speaker 04:
Page 217, you're saying the history of present illness is what the parents report.

[00:26:13] Speaker 04:
Correct.

[00:26:13] Speaker 04:
I'm a pretty sophisticated parent.

[00:26:15] Speaker 04:
What the heck is hemopetestesis?

[00:26:19] Speaker 04:
Do you know?

[00:26:21] Speaker 04:
I do not know.

[00:26:22] Speaker 04:
So what do you think the chances are the Sanchez reported to this physician that their child did not have hemoptesis?

[00:26:28] Speaker 03:
Well, if it's vomiting, which it may be, then he might have just used different words.

[00:26:34] Speaker 03:
Did you just look it up?

[00:26:35] Speaker 03:
No, I did not.

[00:26:37] Speaker 03:
Did someone tell it to you?

[00:26:39] Speaker 03:
No.

[00:26:40] Speaker 03:
I'm not a doctor, though.

[00:26:41] Speaker 03:
I'm not medically trained.

[00:26:43] Speaker 04:
Well, neither are the Sanchez's, right?

[00:26:47] Speaker 03:
Correct.

[00:26:47] Speaker 04:
OK, so what is Pinnea?

[00:26:50] Speaker 04:
That's something else that Sanchez is, according to you, reported, dyspnea.

[00:26:53] Speaker 04:
What do you think that is?

[00:26:58] Speaker 03:
I do not know.

[00:26:59] Speaker 04:
Yeah, me neither.

[00:27:00] Speaker 04:
It seems really unlikely to me that the history of present illness is some sort of account of exactly what the parents relayed.

[00:27:07] Speaker 04:
Because number one, there's nothing in the record that says that.

[00:27:11] Speaker 04:
And number two, you and I are probably both

[00:27:17] Speaker 04:
pretty well-versed in this record and neither of us have any clue what any of those terms mean.

[00:27:21] Speaker 04:
So that seems unlikely to be a recounting of what the parents relayed or at least personal evidence that it is.

[00:27:28] Speaker 04:
So that's my problem.

[00:27:29] Speaker 04:
My problem with these notes where you want us to accept

[00:27:34] Speaker 04:
that the notes are inconsistent with the testimony by virtue of their silence is I don't see anything in the notes that purports to be what the parents reported to the doctors at these urgent care visits, at least not to this PA.

[00:27:50] Speaker 04:
Am I missing something?

[00:27:51] Speaker 03:
It would not, I'm sorry.

[00:27:54] Speaker 03:
Yeah, go ahead.

[00:27:57] Speaker 03:
It would have been obvious on exam anyway because one of these

[00:28:01] Speaker 03:
times, whether it was on February 17th or on April 29th or on, and April 29th, there is a discussion about a two-week history of, let me find it.

[00:28:17] Speaker 04:
You said something would have been obvious on exam.

[00:28:20] Speaker 04:
What?

[00:28:20] Speaker 04:
Aren't the proportions would have been obvious on the exam by the PA on February 17th?

[00:28:25] Speaker 03:
A neurologic problem if it were ongoing, yes.

[00:28:28] Speaker 04:
Wait, so you don't think these can be episodic?

[00:28:31] Speaker 03:
I think they can be episodic, but for to have three months without anyone reporting anything, that does not... No, the parents say they reported it consistently during that period.

[00:28:45] Speaker 04:
So what do you mean without anyone reporting anything?

[00:28:47] Speaker 04:
Who is the anyone in your sentence?

[00:28:49] Speaker 03:
The special master did not credit that testimony, Your Honor.

[00:28:53] Speaker 03:
The special master... I'm sorry.

[00:28:55] Speaker 04:
There was no contrary testimony.

[00:28:59] Speaker 03:
but the testimony was given years later, and he credited the medical records.

[00:29:03] Speaker 03:
He also credited when they presented in August.

[00:29:07] Speaker 04:
Well, Counselor, you said the testimony was given years later, but really as early as, I believe it's August of 2009, isn't there?

[00:29:15] Speaker 04:
When is the earliest medical record that reports the parents

[00:29:20] Speaker 04:
claims about the arm contortions.

[00:29:22] Speaker 04:
Where is the earliest medical record that reports that?

[00:29:24] Speaker 04:
What is it?

[00:29:25] Speaker 03:
I believe it's in the fall.

[00:29:27] Speaker 03:
I believe it's in November with Dr. Michelson and does not report it back to happening back in February.

[00:29:34] Speaker 04:
What is it?

[00:29:35] Speaker 04:
Can you tell me what page of the appendix I could find now?

[00:29:37] Speaker 03:
Sure.

[00:29:38] Speaker 03:
Hang on one second.

[00:29:43] Speaker 03:
Page 308?

[00:29:44] Speaker 03:
Wait, I might be...

[00:29:57] Speaker 04:
On November 12, 2009, he previously held his right arm stiffly behind him episodically.

[00:30:07] Speaker 04:
So that is the parent reporting.

[00:30:10] Speaker 04:
So you said a few minutes ago that it wasn't reported until years later.

[00:30:17] Speaker 04:
That's not correct, right?

[00:30:18] Speaker 04:
Because this report is in 2009.

[00:30:21] Speaker 03:
I misspoke, and I apologize for that.

[00:30:23] Speaker 03:
I meant months later.

[00:30:25] Speaker 03:
And we have no question that the dystonic movements and the hypotonia, which is the usual presenting symptom of dystonia, happened in August.

[00:30:35] Speaker 03:
So saying it happened episodically, just in general, does not mean it happened eight months earlier.

[00:30:43] Speaker 03:
There is evidence.

[00:30:46] Speaker 04:
Well, we actually know it happened eight months earlier, because a special master found so.

[00:30:49] Speaker 04:
It happened at least once eight months earlier, right?

[00:30:52] Speaker 03:
Yes, but again, it was our expert's testimony that the special master credited, as is his job, who said that that was not a symptom of Lay's syndrome, whereas the later... That's right.

[00:31:07] Speaker 04:
It was a symptom of an uncomfortably ill child with an unclosed or undiagnosed illness?

[00:31:13] Speaker 03:
No, he had a cold.

[00:31:14] Speaker 03:
I don't think there's any question that he was ill.

[00:31:16] Speaker 03:
He had a high fever.

[00:31:18] Speaker 01:
Didn't Dr. Raymond in his second report tie the monoclonal jerks or what was asserted to be monoclonal jerks to a viral upper respiratory infection, i.e.

[00:31:38] Speaker 01:
a cold?

[00:31:39] Speaker 01:
I'm looking at page 1101 of the appendix, the last sentence at the bottom.

[00:31:46] Speaker 03:
Yes, I believe that is correct.

[00:31:49] Speaker 01:
It was identified as a cold at one point, at least by Dr. Raymond, that was related to, in Dr. Raymond's view at least, the jerking action.

[00:32:06] Speaker 03:
Yes, cold and upper respiratory infection I think are used interchangeably throughout the record.

[00:32:12] Speaker 03:
I know my time is up, Special Master, Your Honors.

[00:32:17] Speaker 03:
I would just urge you to apply the correct standard of review, which is arbitrary and capricious.

[00:32:23] Speaker 03:
And we firmly believe that the Special Master had a lot of evidence to support his finding that these movements on this particular night for this short period of time were not neurologic in nature.

[00:32:38] Speaker 03:
What is that evidence?

[00:32:39] Speaker 03:
What is the a lot of evidence?

[00:32:42] Speaker 03:
Sure.

[00:32:45] Speaker 03:
The contemporaneous records, which we already discussed.

[00:32:48] Speaker 04:
Does the early silent records or the later ones starting in November that actually report earlier are contortions?

[00:32:56] Speaker 04:
Which ones?

[00:32:56] Speaker 03:
No.

[00:32:56] Speaker 03:
The contemporaneous records that take down what was being reported and what was being viewed by three different medical providers.

[00:33:03] Speaker 04:
But you and I just went through it, and we agreed that there's no record evidence that anything in those records is what was reported by the parents.

[00:33:13] Speaker 04:
We just went through that.

[00:33:13] Speaker 04:
There's no testimony.

[00:33:15] Speaker 04:
Those records contained what was reported to the doctors by the parents, correct?

[00:33:20] Speaker 03:
Yes.

[00:33:21] Speaker 03:
But it also, we believe, and Dr. Raymond testified and Dr. McGady testified as well, these records would have reflected, if these were symptoms of a neurologic condition, they would have been persistent and obvious.

[00:33:36] Speaker 03:
They would have been reported.

[00:33:38] Speaker 03:
Three doctors blowing off

[00:33:41] Speaker 03:
reports of something serious like that could be interpreted as a seizure, it's really hard to fathom that these staff who are trained to take medical histories, all three of them would have missed that.

[00:33:55] Speaker 03:
But again, Dr. Raymond is board certified in pediatrics and neurology and he reviewed the records and he did not believe it was consistent with the neurologic condition.

[00:34:05] Speaker 03:
That in and of itself

[00:34:06] Speaker 03:
is a finding that should be credited under the highly deferential standards of review.

[00:34:14] Speaker 04:
Can I ask something?

[00:34:15] Speaker 04:
Sure.

[00:34:17] Speaker 04:
When do you believe the record supports the idea that the arm contortions became, I should say, or reoccurred?

[00:34:26] Speaker 04:
I mean, they at least occurred in February on one occasion.

[00:34:29] Speaker 04:
When do you believe the record supports the idea that they started reoccurring?

[00:34:35] Speaker 03:
In August.

[00:34:36] Speaker 04:
Okay, and in August, does the government believe that in August those arm contortions were the result of a common cold?

[00:34:45] Speaker 03:
No, that was the result of the Lay's syndrome manifesting itself, which makes sense.

[00:34:52] Speaker 03:
That is perfectly consistent with what we know about Lay's syndrome and perfectly consistent with what we know about Tristan's genetic condition, which of course was the completely independent finding of the special master.

[00:35:05] Speaker 03:
as to why petitioners unfortunately can't prevail.

[00:35:09] Speaker 04:
Just to make sure I understand, what we know about Lay's syndrome is that arm contortions are one thing that's consistent with it.

[00:35:14] Speaker 04:
Is that correct?

[00:35:16] Speaker 03:
I wouldn't say arm contortions in particular.

[00:35:18] Speaker 03:
Dystonia is consistent with it, although it is not usually a presenting symptom, as Dr. Simon, I believe, testified.

[00:35:30] Speaker 03:
It usually comes later.

[00:35:31] Speaker 03:
It's usually hypotonia is the first motor symptom.

[00:35:34] Speaker 03:
And Tristan exhibited that in August.

[00:35:37] Speaker 04:
So these neurological motor-type symptoms are symptoms of Lay's disease?

[00:35:45] Speaker 04:
Is that correct?

[00:35:47] Speaker 03:
They can be, yes.

[00:35:48] Speaker 03:
And that's what it was here.

[00:35:49] Speaker 03:
But again, once they start, they're not absent for months at a time.

[00:35:56] Speaker 03:
And there was testimony the special master did not

[00:35:59] Speaker 03:
decide that the case on it, but there's testimony that Dr. Steinman admitted that the basal ganglia isn't fully developed and demyelination can't occur to form these dystonic movements at age six months.

[00:36:14] Speaker 03:
It would have been happening later on.

[00:36:16] Speaker 03:
So there's a question about that.

[00:36:18] Speaker 00:
But he made a point that it did occur in February and based on the parent's testimony that that happened and then all of a sudden,

[00:36:26] Speaker 00:
when the parents testify that it also occurred after February, he rejects the testimony.

[00:36:33] Speaker 00:
But there's no explanation as to why he accepts it for February but rejects it for later.

[00:36:41] Speaker 03:
He, I think, explained it in his fact ruling back in 2013.

[00:36:47] Speaker 00:
No, he did not.

[00:36:48] Speaker 00:
At that time, he said that it didn't occur at all and rejected that it occurred in February

[00:36:56] Speaker 00:
and rejected that it occurred in March and April.

[00:36:58] Speaker 00:
So it was consistent back then.

[00:37:01] Speaker 00:
But, of course, it was inconsistent with another finding he made elsewhere.

[00:37:06] Speaker 00:
But the, in this earlier ruling, he said it didn't occur in February, it didn't occur in March and April.

[00:37:13] Speaker 00:
And then later on, he says, oh, well, yes, it did occur in February relying on the family testimony, but it didn't occur in March and April.

[00:37:20] Speaker 00:
That's totally inconsistent.

[00:37:22] Speaker 03:
But that is within his right to make a finding that at this particular time, I'm going to credit this fact, but not that fact.

[00:37:29] Speaker 00:
But he has to give a reason for crediting them in February, but rejecting the testimony from April and March.

[00:37:38] Speaker 03:
And again, that's the contemporaneous medical record.

[00:37:42] Speaker 00:
There was no contemporaneous medical record of the February episode either.

[00:37:47] Speaker 03:
No, but he was seen by medical professionals on three occasions between February and May.

[00:37:53] Speaker 03:
And none of them reflect any complaints or observation of a neurologic condition.

[00:38:02] Speaker 00:
OK.

[00:38:02] Speaker 00:
In any event, in our earlier decision, we said there's no expert testimony that found this to be the result of a cult, the arm contortions.

[00:38:11] Speaker 00:
So that's binding on us now, right?

[00:38:16] Speaker 04:
Yes.

[00:38:20] Speaker 04:
Okay, hearing no further questions, I thank the Government Council.

[00:38:23] Speaker 04:
Ms.

[00:38:24] Speaker 04:
Rockmore, I'll restore your rebuttal time.

[00:38:26] Speaker 05:
Thank you.

[00:38:31] Speaker 05:
Are we ready for me to respond?

[00:38:34] Speaker 04:
Yes, please proceed.

[00:38:36] Speaker 05:
Okay, thank you very much.

[00:38:40] Speaker 05:
Addressing the issue of what was sent back to the Special Master,

[00:38:49] Speaker 05:
I believe that after the finding that the arm contortion occurred that it was not consistent with the code, that this court sent it back to have the special master address what the arm contortion meant for the totality of the case.

[00:39:16] Speaker 05:
I agree that the Special Master did not address all of the prior evidence.

[00:39:25] Speaker 05:
I don't think he went back and took a look and tied the testimony and the later medical records by very trained pediatric neurologists who are trained to take these histories from the parents in order to come to his

[00:39:45] Speaker 05:
next unsubstantiated conclusion that this was an isolated event.

[00:39:50] Speaker 05:
I don't think the evidence bears that conclusion out.

[00:39:56] Speaker 05:
And I agree that there is no explanation of why the parents are believed, specifically even Mr. Sanchez, why they are believed for now the February event but not post-February.

[00:40:15] Speaker 05:
And to just say that is his right, it's not an unfettered right.

[00:40:21] Speaker 05:
It needs to be reasonable.

[00:40:23] Speaker 05:
It needs to be based on the totality of the evidentiary record, and I don't see that here.

[00:40:30] Speaker 05:
And is it beyond the mandate for him to take a look at the entirety of the record?

[00:40:38] Speaker 05:
I would have to disagree that I believe this court instructed him

[00:40:44] Speaker 05:
to go back and take a look and address prong two and prong three based on his new finding that the arm contortions actually occurred.

[00:40:54] Speaker 05:
And this whole whether or not it's consistent with an uncomfortable child, although Dr. Raymond did testify to that, there was no literature to support that

[00:41:14] Speaker 05:
testimony, but there is literature to support that the arm contortions are consistent with dystonic posturing, which is consistent with legs.

[00:41:27] Speaker 05:
So we do have medical record evidence that the arm contortions occurred for at least another month and on a number of occasions each day.

[00:41:40] Speaker 05:
We have testimony that specifically

[00:41:43] Speaker 05:
10 years before this new finding.

[00:41:47] Speaker 05:
So it can't be just manufactured.

[00:41:49] Speaker 05:
The testimony occurred back in 2000 and I can't even remember.

[00:41:58] Speaker 05:
It's been 10 years.

[00:42:00] Speaker 05:
So this testimony, I believe, ought to be credited.

[00:42:09] Speaker 05:
And I don't believe the fact ruling, which

[00:42:13] Speaker 05:
you know, we have kind of followed a bouncing ball is, you know, it doesn't deal with this being an isolated event.

[00:42:21] Speaker 05:
So when you look at the totality of the record, these arm contortions occurred for more than a month.

[00:42:30] Speaker 05:
So we believe that this new finding is unreasonable, not supported by the record, and it ought to be reversed.

[00:42:45] Speaker 04:
If you have any further questions, I'm happy to respond.

[00:42:49] Speaker 04:
Thank you.

[00:42:49] Speaker 04:
Counsel, this case is taken under submission.

[00:42:52] Speaker 04:
I thank both lawyers.

[00:42:54] Speaker 04:
Thank you.