[00:00:00] Speaker 03:
Okay.

[00:00:03] Speaker 03:
Our only case for argument today is 22 dash one eight five for the Massey versus HHS.

[00:00:14] Speaker 03:
Mr. Day, please proceed.

[00:00:23] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:26] Speaker 04:
It is undisputed that the Special Master applied the wrong legal standards when he denied Mr. Macy's Rule 60 motion.

[00:00:34] Speaker 04:
The Secretary makes no effort to defend many errors in the decision below.

[00:00:40] Speaker 04:
Applying the correct legal standards to the undisputed facts here, Mr. Macy is entitled to relief for two reasons.

[00:00:47] Speaker 04:
First, a mistake of fact infected the Special Master's compensation decision.

[00:00:53] Speaker 04:
This mistake of fact was raised in a timely motion by Ms.

[00:00:57] Speaker 04:
DeMacy, and the equities tip clearly in her favor, so she's entitled to relief under Rule 60B1.

[00:01:04] Speaker 04:
To be clear, it is a judicial mistake that justifies relief here, not an attorney mistake.

[00:01:10] Speaker 04:
The special master adopted an incorrect symptom onset narrative by relying on the Chen and Fisher medical records.

[00:01:18] Speaker 04:
counsel failed to object to those records, and may therefore have led to the mistake entering the record.

[00:01:25] Speaker 05:
Well, that's what I'm a little confused about.

[00:01:27] Speaker 05:
I know what your second point is going to be, so you don't pay it.

[00:01:30] Speaker 05:
But I'm a little confused about that, because you say DOJ didn't recognize, which it did actually.

[00:01:37] Speaker 05:
It's a section in their brief dealing with judicial mistake.

[00:01:41] Speaker 05:
But when the narrative or explanation of judicial mistake all takes us back to what the attorney did,

[00:01:49] Speaker 04:
I don't think that's right.

[00:01:50] Speaker 04:
So ultimately, the special master adopted a symptom onset narrative.

[00:01:54] Speaker 04:
That narrative was based on the Chen and Fisher records, and it was just wrong.

[00:01:59] Speaker 04:
It was a mistake of fact under Kemp versus United States, as the Supreme Court has defined mistake.

[00:02:04] Speaker 04:
It's an error of fact or law, whether by the courts or the party.

[00:02:10] Speaker 05:
Well, can I ask you just to go on to the merits of that question, leaving aside?

[00:02:16] Speaker 05:
I'm sorry, Judge Toronto.

[00:02:17] Speaker 02:
I just, just before you shift the topic, I just want to ask this question.

[00:02:22] Speaker 02:
I'm having trouble imagining what lawyer mistake could actually have produced a non-harmless erroneous outcome unless it turned into a judicial mistake.

[00:02:40] Speaker 02:
So I'm having some trouble seeing the distinction that you're urging.

[00:02:47] Speaker 04:
Yes, Judge Toronto, in many cases a non-harmless attorney mistake will result in a judicial mistake, but it's not clear that's the facts here.

[00:02:56] Speaker 04:
Much of the Secretary's brief is devoted to exactly this question, the fact that there's no attorney mistake or arguably no attorney mistake in the record.

[00:03:04] Speaker 04:
that counsel here took intentional conduct, but ultimately the special master inadvertently adopted a symptom onset narrative that is just wrong.

[00:03:14] Speaker 04:
It is the narrative that had initial onset of the symptom neurological symptoms after the vaccine within minutes, not days of that vaccine, as is the clear records between December 5th and December 8th, as well as Mr. Macy's unequivocal testimony throughout the litigation.

[00:03:33] Speaker 02:
And I don't, maybe you should get back to Judge Post's question, but I do want you to, I'm willing to assume for present purposes that that symptom, that narrative was in fact just wrong, but that would lead me to the question whether it really is the case that it made a material difference to the Special Master's determination or indeed to Dr. Lice's testimony on which the Special Master relied

[00:04:02] Speaker 02:
in concluding that when they looked at the pre-vaccination records, those records really did show the relevant symptoms.

[00:04:12] Speaker 02:
So at that point, it would be a harmlessness question.

[00:04:17] Speaker 02:
On that question, we haven't gotten to significant aggravation yet.

[00:04:22] Speaker 05:
Well, that was the next question I was going to pose as well, about why the onset would, even if there was an error, why it was material.

[00:04:33] Speaker 05:
And your response to that argument is that it, quote, underestimates the impact of the allegedly mistaken records.

[00:04:42] Speaker 05:
They were a key pillar, but I have a hard time seeing

[00:04:45] Speaker 05:
where anything about how quickly symptoms arrive post-vaccine affected the special master's reasoning?

[00:04:53] Speaker 04:
Yes, it did because fundamentally the symptom onset narrative is a cohesive whole.

[00:04:59] Speaker 04:
The finding about the pre-vaccine existence of the conditions rolls up fundamentally the reaction immediately after the vaccine.

[00:05:08] Speaker 04:
The special master here was looking at the entire symptom onset narrative.

[00:05:12] Speaker 04:
And one of the most important facts, if not the most important fact, is how she reacted to that vaccine and what were the symptoms that resulted from that vaccine.

[00:05:21] Speaker 05:
Well, can you point us to anything in the compensation decision or in the reconsideration denial, where the analysis and the result is predicated explicitly on that fact?

[00:05:32] Speaker 05:
Because I know that fact is in there, in the opinion, sort of in the background, but not in the analysis section.

[00:05:40] Speaker 04:
So at appendix 24 in the compensation decision, the special master describes how it was a critical question when Mr. Macy's symptoms first developed.

[00:05:55] Speaker 04:
to function as the critical question that he was looking at when determining whether she was entitled to compensation.

[00:06:02] Speaker 04:
So I think that framing of the critical question provides an overarching framework by which the special master denies compensation.

[00:06:11] Speaker 04:
And then he goes on to recite the Chen and Fisher medical records as a key part of how those symptoms onset.

[00:06:20] Speaker 04:
And ultimately, the narrative of symptom onset is a cohesive whole.

[00:06:24] Speaker 04:
It's a complex determination.

[00:06:26] Speaker 04:
And this is one of the most important facts.

[00:06:28] Speaker 04:
And I think it's important to note that the special master himself

[00:06:32] Speaker 04:
never said that he would have reached the same outcome had Mr. Macy's symptoms onset in the way that she described in her rule 60 motion.

[00:06:43] Speaker 04:
And that's it from 192 to 194 in the appendix in the Rule 60 decision.

[00:06:50] Speaker 04:
He's discussing the pre-vaccination onset of symptoms.

[00:06:54] Speaker 04:
And in those pages, there's no clear indication that the special master would have reached the same conclusion, but for the initial onset, minutes onset.

[00:07:05] Speaker 03:
I guess I still don't fully grasp why it isn't harmless error given

[00:07:10] Speaker 03:
that the special master found that her condition pre-existed the vaccine.

[00:07:14] Speaker 03:
So are you saying the symptom onset post-vaccination somehow dislodges the finding of pre-existing condition?

[00:07:25] Speaker 04:
Yes, I think it's impossible to know whether the special master would have reached the same decision.

[00:07:31] Speaker 04:
So ultimately, the special master was looking at the full symptom onset narrative and it was undisputed that Mr. Macy had conditions and that she had a vaccine and had

[00:07:40] Speaker 04:
an adverse reaction.

[00:07:42] Speaker 04:
So the special master's job was to fit this case into one of three buckets.

[00:07:46] Speaker 04:
Either those conditions were before the vaccine, either those conditions could have been after the vaccine but not caused by the vaccine, or they could have been after the vaccine and caused by the vaccine.

[00:07:56] Speaker 04:
And one of the key facts that would have played into that analysis is

[00:08:02] Speaker 04:
the reaction that she suffered immediately after the vaccine and not onset of neurological symptoms that occurred minutes but days after that administration.

[00:08:14] Speaker 05:
Well if my colleagues are amenable I'll move on to the significant aggravation issue is that OK.

[00:08:21] Speaker 05:
Yes.

[00:08:22] Speaker 05:
OK.

[00:08:23] Speaker 05:
Let me just start off by saying to be clear, you're arguing the significant aggravation issue only as a rule 60B6 and not a B1, correct?

[00:08:33] Speaker 04:
Yes, that's how we framed it, but I think if the court views the rule that the secretary has conceded exists, that counsel cannot settle or otherwise compromise in a comparable way, their client's claims without authority, as a 60B1 issue, there's no difference on whether it applies under 60B1 or 60B6.

[00:08:52] Speaker 05:
Well, 60b6, from my mind, requires extraordinary circumstances, right?

[00:08:58] Speaker 05:
So if you're in the 60b6 bucket, we've got to conclude that the question before us is whether the special master abused his discretion in not finding the requisite extraordinary circumstances here.

[00:09:13] Speaker 05:
That would be our standard.

[00:09:14] Speaker 05:
That's what we're reviewing, right?

[00:09:16] Speaker 04:
Yes, that's right.

[00:09:17] Speaker 04:
And I think the rule, if the rule sounds in 60 v 6, then it counts as an exceptional circumstance when an attorney compromises their claim without authority to do so under this very narrow rule that's intended to protect the authority of individuals to set the objects of their litigation and protect issues specifically reserved to the client's authority.

[00:09:42] Speaker 02:
Mr. Day, just before you go into it, what do you think might be the 60B1 basis for this agreement?

[00:09:55] Speaker 04:
I don't think there is a strong 60B1 basis for this argument.

[00:09:59] Speaker 04:
I don't think that there's really a mistake.

[00:10:01] Speaker 04:
I don't see where there's an error of law or fact or some kind of excusable neglect.

[00:10:08] Speaker 05:
Now, you analogize the decision not to press a significant aggravation theory to a settlement or consent judgment.

[00:10:16] Speaker 05:
Do you have any case law supporting their idea, that idea, where choosing a theory, which theory not to press is an extraordinary circumstance, justify reopening in the sense that it's analogous to counsel and properly settling or consenting to a judgment?

[00:10:33] Speaker 04:
No, we don't have any authority saying that choosing a theory, but I don't think that's the case here.

[00:10:39] Speaker 04:
Ultimately, significant aggravation is a distinct claim from initial onset under the Vaccine Act.

[00:10:46] Speaker 04:
The Vaccine Act focuses on the injuries suffered and the difference between a significant aggravation claim.

[00:10:51] Speaker 05:
So let me ask you, do you have these cases that deal with settlement or consent judgments?

[00:10:58] Speaker 05:
Do any of those cases, because I didn't see any in the analysis the government did on your cases,

[00:11:03] Speaker 05:
that involve a claim, even accepting arguendo.

[00:11:07] Speaker 05:
Your argument, this is not a theory.

[00:11:10] Speaker 05:
This was a separate claim.

[00:11:13] Speaker 05:
Any cases that deal with settling or consenting judgment on one claim of several alternative claims?

[00:11:20] Speaker 04:
No, I don't think I saw any cases on which there was a partial settlement rather than a full settlement.

[00:11:27] Speaker 04:
But I don't think that makes a difference under the rule.

[00:11:30] Speaker 04:
Ultimately, it's still comparable to settling a claim, which

[00:11:33] Speaker 04:
a decision reserved for the client here.

[00:11:37] Speaker 04:
It amounted to a stipulation of judgment against Mr. Macy on the availability of any significant aggravation claim.

[00:11:44] Speaker 04:
And I see I'm into my rebuttal time, Your Honor.

[00:11:47] Speaker 03:
It's okay.

[00:11:47] Speaker 03:
You're our only case for the day, so we'll drag this out a little longer.

[00:11:52] Speaker 03:
I'm still troubled.

[00:11:54] Speaker 03:
The significant aggravation claim, I definitely appreciate your distinction between a claim and

[00:12:00] Speaker 03:
alternative litigation-oriented arguments about a single claim, two separate claims.

[00:12:05] Speaker 03:
But how does her lawyer go forward and argue their significant aggravation when she is adamant that her symptoms didn't exist prior to the vaccination?

[00:12:17] Speaker 03:
So how can a lawyer in good faith argue an aggravation claim contrary to his client's representations?

[00:12:25] Speaker 04:
I think there's actually a clear path in this case where he could have argued these claims in the alternative.

[00:12:31] Speaker 04:
Ms.

[00:12:31] Speaker 04:
DeMacy always recognized that she had cardiac and neurological symptoms that preceded the vaccine.

[00:12:38] Speaker 04:
And she always recognized that medical records could be misunderstood in a way that resulted in the wrong outcome.

[00:12:45] Speaker 04:
So the only argument you'd have to present here is, well, if you disagree with me, I don't think I have any

[00:12:51] Speaker 04:
pre-existing condition but if you disagree with me I clearly got worse and that would be the substance of the significant aggravation claim and it wouldn't require any inconsistent statement across the initial onset claims.

[00:13:03] Speaker 05:
Can I ask you about that just going off a little bit on the side so I apologize to my colleagues but her

[00:13:11] Speaker 05:
argument on appeal, her informal brief, and then before you all got into the act, which we very much appreciate.

[00:13:18] Speaker 05:
She did reference the aggravation issue, but her prominent, besides Chen and Fischer,

[00:13:26] Speaker 05:
was the fact that her counsel didn't let her take the stand or didn't make all the arguments she had with respect to why that pre-existing stuff was wrong, was absolutely incorrect as a factual matter.

[00:13:41] Speaker 05:
And in fact, some of the stuff you cite, one of her emails, which is like four pages, you cite one sentence, just two sentences dealing with significant aggravation.

[00:13:50] Speaker 05:
And there are just paragraphs and paragraphs where she details her complaint.

[00:13:54] Speaker 05:
That's still before us in this case.

[00:13:57] Speaker 05:
You haven't mentioned that argument.

[00:14:00] Speaker 05:
So what are we supposed to do with that?

[00:14:02] Speaker 05:
And if, in fact, we remanded the case, is that still a live issue?

[00:14:07] Speaker 04:
So I think if you remanded and found that a mistake justified reopening, then the issue about initial onset... We're not talking about a mistake.

[00:14:16] Speaker 05:
I'm talking about the aggravation.

[00:14:18] Speaker 05:
on the significant aggravation, is that still an open question?

[00:14:23] Speaker 05:
I'm under the 60B6.

[00:14:28] Speaker 05:
She is arguing

[00:14:30] Speaker 05:
more strenuously than the argument you're making about aggravation, the fact that there was no pre-existing condition.

[00:14:39] Speaker 05:
And she's arguing that the reason the lawyer failed her was because he didn't put her on the witness stand or didn't present all of her arguments with respect to why those pre-existing conditions were not valid.

[00:14:55] Speaker 05:
That's an issue before us.

[00:14:56] Speaker 05:
That was one of her dominant arguments in her informal brief.

[00:15:00] Speaker 05:
What are we supposed to do with that?

[00:15:03] Speaker 04:
Yes, I think it's an argument that's still before the court.

[00:15:07] Speaker 04:
Ultimately, it would be analyzed under the same legal frameworks that we presented for Rule 60B6, or a mistake if the argument is that there's an underlying factual error or legal error that the attorney made that resulted in this conduct.

[00:15:20] Speaker 04:
I think she faces a tougher road in showing that that warrants relief.

[00:15:25] Speaker 04:
Choosing to put her on the stand or not is much closer to the kind of decision reserved for an attorney.

[00:15:31] Speaker 05:
She's not only arguing to put her on the stand.

[00:15:34] Speaker 05:
My recollection of the details is she's saying you should have put these facts on somehow.

[00:15:38] Speaker 05:
She's not just arguing on the stand.

[00:15:40] Speaker 05:
She goes through extraordinary detail for every one of those pre-existing meetings and doctor's appointments and gives an alternative explanation for why those doctors are wrong.

[00:15:52] Speaker 05:
So even leaving aside the question about whether that's still a live claim, because I think we have to do something with that.

[00:15:59] Speaker 05:
But doesn't that, as I think the chief started to allude, doesn't that play

[00:16:04] Speaker 05:
into what's going on here in terms of the attorney making the choice.

[00:16:10] Speaker 05:
Are you envisioning the case would have gone that he would have put her on the stand or put on all of these arguments as to why those pre-existing conditions were wrong?

[00:16:21] Speaker 05:
And then

[00:16:22] Speaker 05:
she would have sat there and listened to all of these arguments about why she had pre-existing, and she would put on a case as to why those pre-existing conditions were valid.

[00:16:35] Speaker 04:
No, I don't think that's the case she would need to present.

[00:16:38] Speaker 04:
I think she would only need to recognize that there were some cardiac and neurological symptoms that pre-existed the vaccine.

[00:16:46] Speaker 05:
Well, she didn't, but she doesn't recognize that.

[00:16:48] Speaker 05:
She hasn't, and she continues to be adamant in all of her filings that that was not the case.

[00:16:54] Speaker 05:
So you say she needs to change her mind?

[00:16:57] Speaker 04:
No, I think I'm not being clear with my phrasing.

[00:17:01] Speaker 04:
So when I say pre-existing cardiac and neurological symptoms, I mean she suffered some cardiac symptoms that were not related to any condition that is the basis for her vaccine.

[00:17:11] Speaker 04:
So she would never have to concede or even affirmatively argue that she had a pre-existing neurologic or cardiac condition.

[00:17:19] Speaker 04:
But she recognized, even in her informal filings and at length, that she had some preventricular contractions and other types of symptoms

[00:17:27] Speaker 05:
But she explains them all the way in excruciating detail in the filings in this record, right?

[00:17:33] Speaker 05:
I mean, like, cocklatano syndrome, and some of the doctor's records were wrong because she was just reacting to a pill she had taken.

[00:17:42] Speaker 05:
So she explains pretty much every one of those.

[00:17:45] Speaker 05:
and that was her strong feeling and she's complaining here under 60 v 6 that she should be able to present that case.

[00:17:53] Speaker 05:
So you're talking about a scenario where she presents that case and then you shift gears and you say never mind that, if she's wrong, if she's not telling the truth,

[00:18:06] Speaker 05:
or whatever, we've got another theory to present to you.

[00:18:09] Speaker 05:
Is that what you're envisioning is the extraordinary circumstance here that would have required the lawyer to consult her about the choice he made?

[00:18:20] Speaker 04:
Not exactly.

[00:18:21] Speaker 04:
So I think the exceptional circumstance here is the fact that the special master issued an order saying, here's the significant aggravation claim.

[00:18:29] Speaker 04:
It looks like you might have one at supplemental appendix 41 to 48.

[00:18:33] Speaker 04:
I think counsel failed to even approach his client.

[00:18:37] Speaker 04:
It's undisputed that he never raised the possibility of a significant aggravation claim with her.

[00:18:43] Speaker 05:
But then the same special master had that before him.

[00:18:48] Speaker 05:
And he said, no, there was no 60B6 problem.

[00:18:53] Speaker 05:
There was no extraordinary circumstance.

[00:18:56] Speaker 05:
And he accepted the lawyer's argument that this was a matter of strategy not to press this.

[00:19:03] Speaker 05:
So you're right.

[00:19:05] Speaker 05:
He called it forward.

[00:19:07] Speaker 05:
But it was that argument undone by the fact that that same special master found that this was not an extraordinary circumstance, a finding which we review for abuse of discretion.

[00:19:17] Speaker 04:
No, because I think there's a legal error that underlies that special master's finding.

[00:19:22] Speaker 04:
The special master never recognized the legal principle that when a counsel settles or takes comparable action against their client without authority, that is a basis for relief under Rule 60.

[00:19:34] Speaker 04:
And that legal principle is undisputed here.

[00:19:37] Speaker 04:
So any fact finding that the special master had that might have otherwise undermined this

[00:19:42] Speaker 04:
suffers from a legal error that prevents this court from affirming.

[00:19:46] Speaker 04:
And I think that's also important here.

[00:19:48] Speaker 04:
Even if the court is uncomfortable with reversing on the facts here, there are numerous legal errors in the record that are uncontested and justify at least a remand.

[00:20:01] Speaker 03:
So under the 60 v 6, only the 60 v 6 significant aggravation claim, what would be the remedy

[00:20:09] Speaker 03:
you are seeking or the range of remedies you think this court has available to it, if that were something with which we agree.

[00:20:16] Speaker 03:
Under 60 v.

[00:20:17] Speaker 03:
6, there's a problem in that her counsel basically settled the aggravation claim against her will and knowledge.

[00:20:28] Speaker 04:
I think this court should reverse, remand, and instruct the special master to reopen the case such that she has the opportunity to bring the significant aggravation claim.

[00:20:38] Speaker 04:
And even if there are some disputed fact issues that underlie the legal question, a remand would be necessary in that circumstance.

[00:20:45] Speaker 04:
But there are no undisputed facts here.

[00:20:48] Speaker 04:
It's clear that counsel lacked authority, either expressed or implied, to concede her significant aggravation claim.

[00:20:57] Speaker 04:
And the equities tip clearly in her favor to reopening on the basis.

[00:21:01] Speaker 03:
Does that reopening require a hearing?

[00:21:05] Speaker 04:
No, I think it wouldn't require a hearing to rule on the exceptional circumstance.

[00:21:10] Speaker 04:
If it's the case that the court remands, and there's some fact issue about attorney authority that needs to be resolved below, that would require a hearing.

[00:21:19] Speaker 04:
But the ultimate claim for exceptional circumstances under the Vaccinex system, if it's reopened, that doesn't necessitate a hearing.

[00:21:27] Speaker 04:
The special master has general discretion if he needs a hearing.

[00:21:31] Speaker 04:
And maybe it would be appropriate in this circumstance, but not necessary.

[00:21:35] Speaker 02:
But if the underlying significant aggravation claim were reopened, there might indeed be a need for a hearing to decide that claim for the first time.

[00:21:50] Speaker 04:
Yes, that's right, Judge Toronto.

[00:21:51] Speaker 04:
And I think it would be the special master's decision in the first instance, because he has discretion about whether a hearing is necessary.

[00:21:57] Speaker 04:
But there very may well be a need for a hearing on remand in that circumstance.

[00:22:03] Speaker 03:
Okay thank you Mr. Day we'll restore your rebuttal time.

[00:22:08] Speaker 03:
Let's hear from Council for the Government.

[00:22:16] Speaker 00:
May it please the court, Carolyn Lopez, on behalf of the government.

[00:22:20] Speaker 00:
If I might, I thought it might be helpful to sort of, we've been talking about this today, to sort of talk about first principles of what would, of what should govern any rule that's adopted here.

[00:22:30] Speaker 00:
So as the court has been discussing, one really key, one really key limitation on reopening, which undoes the importance of finality of judgment,

[00:22:39] Speaker 00:
is whether or not the error asserted is material and for the reasons that were discussed today we don't think that the error being asserted was material to either of the special masters decisions in the original entitlement decision which were that she had pre-existing conditions before the vaccination and because there can only be one onset she couldn't show that the vaccine was the cause and fact of that of that

[00:23:06] Speaker 02:
I think I understand your point with respect to the, you know, precision of the onset date that is a 60B1 issue as to materiality.

[00:23:22] Speaker 02:
I don't understand it as to significant aggravation.

[00:23:26] Speaker 02:
That is, there's a whole separate question here about whether if the condition originated pre-vaccination, it got worse.

[00:23:34] Speaker 02:
And I don't see that having been litigated.

[00:23:37] Speaker 00:
Yes, Your Honor.

[00:23:38] Speaker 00:
And so there, as Amicus has now phrased it, the question before the court is whether or not the special master made a judicial error.

[00:23:48] Speaker 00:
And so there, under this case... I'm sorry.

[00:23:52] Speaker 02:
I don't think that's the question on the 60B6.

[00:23:57] Speaker 02:
So for... I want to make sure that... For significant aggravation, I don't think that the argument is that that was a 60B1 mistake, a judicial error.

[00:24:07] Speaker 02:
I understand the mistake and judicial error argument to be entirely about the Chen Fisher records and what they do, how accurate they were in indicating that the relevant symptoms occurred within hours as opposed to within days.

[00:24:29] Speaker 02:
So I guess I want to put that completely to one side and focus entirely on the significant

[00:24:36] Speaker 02:
I don't think that's a judicial error claim.

[00:24:39] Speaker 02:
I think it's a claim about how what even the special master said was a separate cause of action that is obviously distinct and obviously pleadable in the alternatives.

[00:24:49] Speaker 02:
Okay, I may have had it, according to Dr. Lice, but sure, it sure did get worse.

[00:24:57] Speaker 02:
And that's never been litigated, and that was given away.

[00:24:59] Speaker 00:
Yes, Your Honor.

[00:25:01] Speaker 00:
So that we don't think, as we described in our brief, we don't think that's a 60B6 question.

[00:25:08] Speaker 00:
In our review of the case law, 60B6 has been sharply limited to the attorney abandonment situation.

[00:25:14] Speaker 00:
And this isn't really an attorney abandonment situation.

[00:25:17] Speaker 00:
So then we're back.

[00:25:18] Speaker 00:
The cases we could find, to the degree that they identified which prong of 60B it was, were 60B1 cases, which are the question about

[00:25:25] Speaker 00:
when it sort of crosses the line from attorneys deciding as a matter of tactical advantage, which theory to press, which we think this is a which theory to press, and I can get to that in one second, versus... I'm sorry, so you want to make it, I don't understand, which provision of 60B do you think would be the

[00:25:55] Speaker 02:
right provision under which to analyze, either to accept or reject, but under which to analyze an assertion that a cause of action had been irresponsibly, let's say even grossly irresponsibly, waived, given away without the lawyer

[00:26:18] Speaker 02:
provide getting informed consent from the client.

[00:26:21] Speaker 02:
Which 60B provision do you want that litigated under?

[00:26:24] Speaker 00:
Yes, Your Honor.

[00:26:24] Speaker 00:
So our reading of the case law across the courts of appeals is that it's always treated, I mean, which actually is sort of a harder standard for us, because then extraordinary circumstances do sometimes do drive away.

[00:26:36] Speaker 00:
Though, of course, the attorney neglect still has to be excusable, and it's still a difficult standard.

[00:26:43] Speaker 00:
In our understanding, those cases have been 60B1 cases that have to do with when an attorney has acted outside of the scope of their authority to settle or stipulate an independent claim.

[00:26:55] Speaker 02:
We don't think that it's a sort of... And I'm sorry, which word under 60B1, please?

[00:27:00] Speaker 00:
So we cite this case in our brief.

[00:27:04] Speaker 00:
Most of the courts sort of don't provide a textual hook.

[00:27:07] Speaker 00:
They say either 60B generally, or they'll say 60B1 generally.

[00:27:11] Speaker 00:
The Sheng case, which is out of the Eighth Circuit, describes it as sort of the judge made a mistake in thinking that the case was properly settled when it, in fact, was not, because the attorney will actually... But that's not what, that's not this case.

[00:27:27] Speaker 02:
The significant aggravation claim is a claim about the agent having acted outside his actual authority from the principle without even getting informed consent about a claim that could, again, by assumption, we're not talking about the merits of this claim, just the nature of the claim, that could well have given away the only real possibility for relief.

[00:27:55] Speaker 00:
Yes, Your Honor, I understand.

[00:27:58] Speaker 00:
I believe I understand what Your Honor is saying.

[00:28:00] Speaker 00:
I will say that on the facts of this case, given that that petitioner had vehemently told her client over and over again that she did not have a... Well, we'll get to the merits.

[00:28:11] Speaker 02:
We'll get to the merits.

[00:28:12] Speaker 02:
Please don't switch on the merits.

[00:28:13] Speaker 02:
I'm trying to understand how a claim of abandonment of an obviously available claim

[00:28:20] Speaker 02:
or of a claim that could be a 60B1 as opposed to a 60B6.

[00:28:28] Speaker 02:
I understand it might be easier for the plaintiff to proceed under 60B1 if there's no extraordinary circumstances required for 60B1, which I think there isn't.

[00:28:45] Speaker 02:
But I don't understand what

[00:28:48] Speaker 02:
of language under 60B1 would cover that.

[00:28:52] Speaker 00:
Yes, I mean all I can say with apologies is that I looked quite exhaustively at the case law at this and all of the cases that I could find either said 60 be generally or 60 be one and the case law on 60 be six including this court's recent decision and more is that 60 be six the type of gross negligence that's talked about there really is this total abandonment of representation often miscoupled by affirmative misleading

[00:29:22] Speaker 00:
of the clients.

[00:29:23] Speaker 00:
And so, for example, the Ninth Circuit in Latchaw distinguished that type of attorney abandonment for other types of attorney misconduct.

[00:29:31] Speaker 03:
But why don't we kind of have that here?

[00:29:34] Speaker 03:
You have the special master suggesting that she may have a significant aggravation claim.

[00:29:40] Speaker 03:
You have counsel not litigating that claim.

[00:29:43] Speaker 03:
But moreover, on page 151 of the supplemental appendix, you have an email from counsel to his client

[00:29:50] Speaker 03:
saying expressly that the special master rule against her on the aggravation claim which had not happened.

[00:29:57] Speaker 03:
So why don't you have exactly that kind of really substantial misleading

[00:30:02] Speaker 03:
about an entire possible claim that she had.

[00:30:05] Speaker 00:
Yes, Your Honor.

[00:30:06] Speaker 00:
I'm understanding that the timing of that email correctly, that's after the decision came down.

[00:30:14] Speaker 00:
And so I don't think that that particular instance of misleading is relevant to the question of whether at the time the attorney was making the

[00:30:26] Speaker 00:
the tactical determination of whether or not to press the significant aggravation theory to just touch on the merits of that quickly.

[00:30:35] Speaker 00:
When the attorney was making the decision as to whether or not to pursue significant aggravation, the fact that his client was quite clearly one of her clearest goals, as has continued before this court, as we were discussing earlier this afternoon, was to not concede that she had any pre-existing conditions.

[00:30:53] Speaker 00:
and in light.

[00:30:54] Speaker 03:
Yeah, look, I get that tension.

[00:30:56] Speaker 03:
For sure, I get that tension.

[00:30:58] Speaker 03:
This is the hardest issue for me in this case, is the tension between her over and over again sticking to the I had no pre-existing conditions concept.

[00:31:08] Speaker 03:
So how does her attorney say, well, even if you think that, let's argue in the alternative, a good attorney probably would have.

[00:31:16] Speaker 03:
Here, not only do we have this attorney not doing it, we have the special master inviting this attorney to do it.

[00:31:22] Speaker 03:
They still didn't do it.

[00:31:23] Speaker 03:
And then we have an email, even if it was after the decision, where the attorney claims the special master hold against them on the aggregation theory that he actually never presented.

[00:31:32] Speaker 03:
So why isn't that off?

[00:31:34] Speaker 03:
That feels to me awfully close to this abandonment slash misleading concept that is the genesis of the 60 v 6 decisions you pointed to.

[00:31:43] Speaker 03:
And it doesn't feel like it fits to me within the 60 v 1 rubric.

[00:31:49] Speaker 00:
If your honors think that this is something in this particular instance in which it's not just sort of that an attorney, you know, accidentally without being asked specifically by the special master to brief a particular issue and then didn't talk to his client about it before.

[00:32:05] Speaker 00:
deciding not to proceed with that.

[00:32:07] Speaker 00:
If your honors think that that is the type of thing that would suffice for a narrow remand to ask the special master to take a look at it in his discretion to determine whether or not that was something that could potentially justify reopening in that type of narrow circumstance, that could be an appropriate remedy.

[00:32:26] Speaker 00:
But any such ruling or

[00:32:30] Speaker 00:
we have real concerns that it not be written in a broad way that would broadly reopen things, because all the time again... I mean, you can argue it.

[00:32:40] Speaker 03:
It's your time.

[00:32:41] Speaker 03:
But you don't have to.

[00:32:41] Speaker 03:
I get that litigation choices are made day by day, and these attorneys have to follow their clients, respectfully follow their clients' desires.

[00:32:50] Speaker 03:
And here, she said pre-existing.

[00:32:52] Speaker 03:
The two facts that are killing me in this whole case are never going to replicate themselves again.

[00:32:57] Speaker 03:
So you don't have to worry, at least from my perspective, if there were a decision against the government about it being broad.

[00:33:03] Speaker 03:
because the two facts that are driving me crazy are the fact that the special master expressly told him to make an aggravation claim and he didn't and he didn't tell his client that or consult with his client about it and then that he later told his client that the special master voted against him.

[00:33:17] Speaker 03:
That is a very unique set of facts that I don't see.

[00:33:21] Speaker 03:
I don't think that opens the door to the mischief that you're worried about if an opinion was narrowly tailored in that way.

[00:33:26] Speaker 03:
Do you agree that an opinion narrowly tailored in that way would not create the mischief that you're concerned about?

[00:33:32] Speaker 00:
We, although we... I know you don't agree with that outcome.

[00:33:36] Speaker 00:
Yes, Your Honor.

[00:33:37] Speaker 00:
Thank you, Your Honor.

[00:33:37] Speaker 03:
But what I'm worried about is the mischief.

[00:33:39] Speaker 03:
I don't want to close the mischief that you're concerned about because I have the same concerns you do.

[00:33:43] Speaker 03:
But if an opinion were written that narrowly, is that something that you believe would not open the door wide to a lot of problems?

[00:33:49] Speaker 00:
Yes, Your Honor.

[00:33:50] Speaker 00:
So I want to make sure that I absolutely understand sort of the limitations that Your Honor is proposing on such a remand.

[00:33:56] Speaker 00:
So that would be in the context of where the special master specifically asked for briefing on one of the two alternate theories of causation under the Vaccine Act and the attorney

[00:34:07] Speaker 00:
decides not to do that without consulting the client, and later erroneously tells the client, actually, the special master ruled against you.

[00:34:13] Speaker 00:
I didn't choose to bring that.

[00:34:15] Speaker 00:
Do we think that that could be limited in a way that doesn't do mischief?

[00:34:18] Speaker 00:
And the answer to that is yes, Your Honor.

[00:34:20] Speaker 00:
So why are we settling this case?

[00:34:24] Speaker 00:
Because, Your Honor, we don't think so here.

[00:34:27] Speaker 03:
Well, because she says for a lot more than just that, right?

[00:34:31] Speaker 00:
So she and Amicus have asked for sort of a lot of broader rules here.

[00:34:38] Speaker 00:
And to be clear, we don't think on the merits that she has a... Well, let me ask you that.

[00:34:43] Speaker 05:
What is it the Special Master would be looking at that he hasn't seen before?

[00:34:49] Speaker 05:
I mean, when he reviewed this case,

[00:34:52] Speaker 05:
before him for reopening.

[00:34:54] Speaker 05:
Did he not have the exact facts you've just been talking to the chief about before him and reject those?

[00:35:03] Speaker 05:
So what are we talking about?

[00:35:05] Speaker 00:
Yes, Your Honor.

[00:35:05] Speaker 00:
My apologies, Your Honor.

[00:35:06] Speaker 00:
So the government's position is that the special master did not abuse his discretion in light of everything that was in front of him, including

[00:35:14] Speaker 00:
that petitioner continued to argue strenuously that she did not have any pre-existing conditions.

[00:35:19] Speaker 05:
So what would be new and different about what we're talking about doing here?

[00:35:24] Speaker 05:
What is going to be presented?

[00:35:26] Speaker 05:
I mean, he understood that the attorney did not consult his client on this.

[00:35:33] Speaker 05:
Yes, Your Honor.

[00:35:36] Speaker 05:
What would be different about what he already looked at?

[00:35:40] Speaker 05:
And I guess I'm just not understanding.

[00:35:45] Speaker 00:
Yes, Your Honor.

[00:35:45] Speaker 00:
And I apologize for any confusion that I may have caused by trying to make sure that I was answering all the questions before me.

[00:35:51] Speaker 00:
So it is the government's frontline position, continued frontline position, that the special master did not abuse his discretion here.

[00:35:58] Speaker 00:
And the special master reasonably concluded that in the context of the specific record where the client had

[00:36:05] Speaker 00:
said you know one thing that was incredibly important to her over and over again to her attorney was that the attorney made clear she did not have pre-existing conditions that in that context the special master was correct that it was a tactical decision that the attorney couldn't go forward with and that that actually isn't the type of problem that Chief Judge Moore has raised a concern about but if the court were instead to

[00:36:28] Speaker 00:
agree that there might be a. To go along the lines of the reason that you judge more has suggested we would urge that it be written incredibly narrowly but again our understanding of what what.

[00:36:41] Speaker 05:
Would be near what would be done that would be near.

[00:36:46] Speaker 00:
So.

[00:36:47] Speaker 00:
we so first of all it would be a remand and not a reversal ordering reopening of course because this would be for the special master to determine in the first instance or I guess the second or third instance here yeah what do you agree what are you saying the special master would be doing that he hasn't done before if if your honors construed his original decision as as

[00:37:16] Speaker 00:
as incorrect in terms of whether or not the attorney had acted so far outside of the bounds of his authority to try to achieve his client's goals, which from the government's perspective is to get Vaccine Act compensation without conceding that she had pre-existing conditions.

[00:37:32] Speaker 00:
If the court were to disagree with that, which again, the government agrees that the special master were correct with that, then it would be for the special master in the first instance to determine in these highly specialized circumstances

[00:37:43] Speaker 00:
in which the Special Master had specifically asked for a briefing on this issue and the attorney had declined under the allegation that the attorney actively misled his client as to the potential availability of that theory.

[00:37:56] Speaker 00:
That might not do

[00:37:57] Speaker 00:
We don't think I would necessarily be the right outcome on the out on the right thing that we should.

[00:38:02] Speaker 05:
He would change his mind.

[00:38:04] Speaker 05:
We'd be telling him to change his mind right because he already knew you know the all these arguments in the circumstances here.

[00:38:13] Speaker 05:
Yes and he decided it was not.

[00:38:16] Speaker 05:
a 12b6, not an extraordinary circumstance.

[00:38:20] Speaker 05:
So we'd be telling him you were wrong, right?

[00:38:24] Speaker 05:
We wouldn't be asking him to just take another look, would we?

[00:38:29] Speaker 05:
I mean, I guess I'm a little confused.

[00:38:32] Speaker 00:
Yes, Your Honor.

[00:38:33] Speaker 00:
And so again, I want to be really crystal clear here that the government's position is that the special master did appropriately evaluate these.

[00:38:40] Speaker 02:
Right.

[00:38:40] Speaker 02:
So Ms.

[00:38:40] Speaker 02:
Lopez, can I just ask, I thought that, among other things, the special master

[00:38:45] Speaker 02:
rejected the idea that gross negligence would be sufficient.

[00:38:50] Speaker 02:
So that would be one legal error.

[00:38:52] Speaker 02:
Did the special master recognize that it might well be a form of a basis to find extraordinary circumstances that the lawyer, when prompted by him,

[00:39:15] Speaker 02:
gave up a claim, this claim in particular, without consulting his client?

[00:39:22] Speaker 02:
Did he actually say, okay, I appreciate that he didn't consult his client, but that's okay with me because I think this was still a reasonable tactical decision?

[00:39:38] Speaker 00:
So my reading of the special master's decision on reconsideration is that the special master grouped this type of idea, particularly where the client is saying, I don't have pre-existing conditions as a type of thing that is generally an attorney's tactical decision.

[00:39:56] Speaker 00:
So it's sort of irrelevant whether the court specifically asks the person to brief it or not.

[00:40:00] Speaker 00:
It still falls within sort of the types of tactical decisions that attorneys can make as to how to best carry out their client's instructions.

[00:40:08] Speaker 00:
and overall objections, which we agree that the special master didn't abuse his, or it's the government's frontline position that the special master did not abuse his discretion and so concluding on the record before him, particularly as the person who had made the original entitlement decision.

[00:40:26] Speaker 02:
and had issued that order.

[00:40:29] Speaker 02:
This is going, I think, sort of beyond the confines that we've been discussing the last 10 minutes or so.

[00:40:37] Speaker 02:
But explain to me how, in the circumstances that we have here, it was within the range of responsible attorney client not to present in the alternative significant aggravation claim

[00:40:54] Speaker 02:
he had a client who says uh... my personal experience is that i didn't have the he already has uh... from the government the government expert saying uh... actually where the experts you're not this is doctor like uh... i think you did have pertinent so he knows and you believe that you submitted that uh... that uh...

[00:41:25] Speaker 02:
And there will be expert testimony disagreeing with her own view of the significance of the particular symptoms, which is a expert diagnostic matter, not a matter of kind of percipient witness personal testimony.

[00:41:43] Speaker 02:
And now, in the face of that real possibility, real because the government expert has already said it, that her

[00:41:55] Speaker 02:
view of the matter about pre-vaccination onset will be rejected.

[00:42:00] Speaker 02:
How is it that a responsible attorney doesn't sit down and say it is absolutely legitimate and may well be the only way you can actually get relief to put on a claim that this got worse readily available in the alternatives for

[00:42:20] Speaker 02:
The judge, I forget the exact timing, but at some point the special master recognizes this and says, please address this.

[00:42:30] Speaker 02:
This kind of maybe feels like a significant aggravation claim.

[00:42:39] Speaker 02:
What would be the downside?

[00:42:45] Speaker 00:
Well, we think the broader downside is that pretty much any time somebody is unhappy with whether theories have been pressed or not, they could come back in and ask for reopening.

[00:42:56] Speaker 00:
And that would really wreak havoc on this system, particularly in this context where my understanding is there's something like 4,000 pending open cases.

[00:43:06] Speaker 03:
OK, but wait.

[00:43:06] Speaker 03:
That's theories pressed.

[00:43:07] Speaker 03:
This is a separate claim, one the special master specifically called out and believed

[00:43:13] Speaker 03:
she may have a case for, told her attorney to brief it, and she didn't.

[00:43:18] Speaker 03:
That's not the litigation choice of separate theories.

[00:43:21] Speaker 03:
That feels very different to me.

[00:43:22] Speaker 00:
Yes, Your Honor.

[00:43:23] Speaker 00:
So we think that in the context of the Vaccine Act, although they're labeled as claims, the significant aggravation claim and the causation and fact claim, they are actually alternate theories of causation.

[00:43:34] Speaker 00:
And that's because, unlike other types of independent claims that are sometimes

[00:43:38] Speaker 00:
um, settled or stipulated in cases in which there's sort of a different type of relief at the end of the road.

[00:43:44] Speaker 00:
Under the Vaccine Act, there's sort of one pot of potential damages, which you can prove either by saying the vaccine was a but for cause of the condition or I had pre-existing, a pre-existing condition in the vaccine.

[00:43:57] Speaker 00:
Aggravated that and so it's really two alternative theories of causation It's not truly sort of independent claims in the way that we would think about it ordinarily so for example in the Pueblo case that the amicus sites there the original theory was that the United States was trespassing on the tribal land and then what was that was bargaining a way to and of course One of the forms of relief with that would be to order the United States to stop trespassing and then so that was sort of bargained away to

[00:44:27] Speaker 00:
we will say that the United States did a taking and therefore all we get is sort of money damages for that taking.

[00:44:34] Speaker 00:
So those are two, that's an example of something where you're really talking about two independent claims and the government views significant aggravation and causation in fact actually work as alternate theories of causation and not independent claims in the way that that developed case law has talked about settling or stipulating out cases.

[00:44:52] Speaker 02:
And so it really falls more... Okay, can you get back to my question though?

[00:44:56] Speaker 02:
I'm sitting here and have been for a while trying to fathom how this conversation does not take place between a lawyer and the client.

[00:45:08] Speaker 02:
And maybe it goes in such a way that the client says, what I care most of all is trying to have people believe me even though the experts disagree.

[00:45:22] Speaker 02:
That sounds pretty unlikely.

[00:45:25] Speaker 02:
when the lawyer says what you really care about is getting relief for harm.

[00:45:33] Speaker 02:
And there's a theory of harm in which you get relief even if the bench disagrees with your view about the initial onset.

[00:45:46] Speaker 02:
You want to give that up?

[00:45:47] Speaker 02:
Okay, now you understand the choice and maybe she says yes, but

[00:45:52] Speaker 02:
I don't understand how that conversation doesn't take place.

[00:45:55] Speaker 00:
Yes, we're not arguing that, you know, ideally, of course we're not arguing that.

[00:45:59] Speaker 02:
I don't mean ideally.

[00:46:00] Speaker 02:
We're not talking about ideally.

[00:46:02] Speaker 02:
I'm talking about a standard of minimal responsible securing of informed consent for a plainly available, indeed, invited theory of causation.

[00:46:16] Speaker 00:
Yes, Your Honor.

[00:46:17] Speaker 00:
So, yes, Your Honor, we think that from prior conversations that the council had had with petitioners, so this one example of this is in Supplemental Appendix 140, which is petitioners affidavit describing sort of the course of events from her recollection.

[00:46:33] Speaker 00:
And there, so after the very first HHS report that said that she did have pre-existing conditions,

[00:46:41] Speaker 00:
Her primary concern, as she explained to her lawyer and when her lawyer followed up again before the supplemental expert reports, was to show that she didn't have pre-existing conditions.

[00:46:56] Speaker 00:
And as Amicus has phrased it, she was very concerned with what, from her view, was the true version of medical facts.

[00:47:04] Speaker 00:
You know, again, the question is, does this particular case rise if it's under 60B6, under extraordinary circumstances that it's 60B1, excusable neglect?

[00:47:13] Speaker 00:
And we think here it doesn't quite cross that threshold for the reasons I've been discussing today.

[00:47:21] Speaker 02:
So, I mean, it does sound like you think that the conversations or communications that the attorney had with her

[00:47:33] Speaker 02:
made it reasonable for him to think she understood that there might well be a choice between a paper of vindication and actually recovering money for what she says she's been suffering real harm for, and that she was perfectly fine with standing on principle even if it meant getting no relief for long-term harm.

[00:47:58] Speaker 00:
We don't think that the special master abused his discretion in determining that in the context of this record, that that was a reasonable, that that was, that that fell within the tactical determinations that attorneys can make.

[00:48:15] Speaker 03:
Judge Tronto, I think you've gotten the answer you're going to get.

[00:48:18] Speaker 03:
Do you mind if we move on to Mr. Day's rebuttal time?

[00:48:20] Speaker 03:
Very good.

[00:48:32] Speaker 04:
Thank you, Your Honor.

[00:48:33] Speaker 04:
I just have three quick points on rebuttal.

[00:48:36] Speaker 04:
I think something Judge Prost said is why a reversal is required here for significant aggravation rather than any vacatur and remand.

[00:48:46] Speaker 04:
The special master had all the facts before him.

[00:48:49] Speaker 04:
Where he messed up is he got the law wrong.

[00:48:52] Speaker 04:
He failed to recognize that there is a legal principle where an attorney

[00:48:58] Speaker 04:
settles or takes comparable action without authority, justifies relief under Rule 60B6.

[00:49:05] Speaker 04:
And fundamentally, Rule 60B6 is the kind of well of equitable discretion that is broad enough to encompass the circumstances that don't, as Judge Tronto noted, fit well into the text of Rule 60B1.

[00:49:19] Speaker 05:
Can you give us any, what are your best cases for that proposition?

[00:49:24] Speaker 04:
Thomas, out of the Tenth Circuit, is one case where the lack of authority settling a claim counts.

[00:49:32] Speaker 04:
Pueblo.

[00:49:33] Speaker 05:
And it settled the entire, that was a case where the entire claim was settled?

[00:49:36] Speaker 04:
Yes.

[00:49:37] Speaker 04:
Pueblo, from this court, or this court's predecessor, the US Court of Claims, involved also a stipulation.

[00:49:45] Speaker 04:
And the court was clear that counsel cannot stipulate to compromise their.

[00:49:50] Speaker 05:
In both those cases, it ended the case.

[00:49:53] Speaker 05:
a dispositive action taken by counsel and terminate to include the entire proceeding.

[00:50:00] Speaker 05:
Am I right?

[00:50:02] Speaker 04:
Yes, but I don't think that that is a meaningful distinction here.

[00:50:06] Speaker 05:
I don't want to distract you from your three points.

[00:50:09] Speaker 04:
No, I welcome the question, Your Honor.

[00:50:11] Speaker 04:
And I think here, that's not a meaningful distinction because it did in the case with respect to significant aggravation.

[00:50:19] Speaker 04:
And I think as Judge Toronto phrased it, it made it such that possibly the only way she could have gotten relief was foreclosed to her without even asking her permission.

[00:50:30] Speaker 05:
Well, we're talking about two things.

[00:50:33] Speaker 05:
She's complaining about two things.

[00:50:35] Speaker 05:
One, primarily that she should have been allowed to take the stand or that the lawyer had to put forth all of these facts that refuted what happened pre-vaccine.

[00:50:47] Speaker 05:
And then on the other side of that,

[00:50:50] Speaker 05:
Well, forget that, pretend I'm wrong, or conclude I'm wrong, and do the other way.

[00:50:56] Speaker 05:
So there's kind of two things that go different ways, right?

[00:50:59] Speaker 04:
Yes, there are two things here, but I don't think they necessarily go different ways.

[00:51:05] Speaker 04:
It would only require pleading in the alternative, which is expressly contemplated by the claims court's rules.

[00:51:11] Speaker 04:
You can plead claims in the alternative and recognize that the special master may have disagreed on whether there were pre-existing conditions such that significant aggregation was the best avenue.

[00:51:23] Speaker 04:
And I think as a second point, fundamentally,

[00:51:28] Speaker 04:
These are alternative claims.

[00:51:29] Speaker 04:
The secretary's counsel argued that because you are getting the same relief out of a significant aggravation claim or an initial onset claim, they must be different theories of causation.

[00:51:41] Speaker 04:
But just because they're alternative claims doesn't mean that they're not still distinct claims to which the rule about counsel being unable to compromise those claims applies.

[00:51:53] Speaker 04:
And I think the last point is that the secretary's counsel's bottom line position is that the decision should be affirmed.

[00:52:01] Speaker 04:
But the secretary also does not contest the fact that there were numerous legal errors in the decision below.

[00:52:07] Speaker 04:
I think there were at least five.

[00:52:09] Speaker 04:
The special master didn't apply the right standard for a mistake, the three-step inquiry.

[00:52:14] Speaker 04:
The special master required exceptional circumstances for fact findings.

[00:52:18] Speaker 04:
The special master failed to recognize the import of attorney conduct.

[00:52:22] Speaker 04:
and how that bears in multiple ways on the mistake analysis.

[00:52:27] Speaker 04:
The special master didn't recognize the significant aggravation legal principle, and they also, the special master applied a presumption of accuracy that this court has clearly rejected.

[00:52:36] Speaker 04:
If there are no further questions, thank you, Your Honors.

[00:52:39] Speaker 03:
I thank Hope Council for their argument.

[00:52:40] Speaker 03:
This case has taken another submission.