[00:00:00] Speaker 04:
We have one case this morning, number 23, 1746, Scheller versus HHS.

[00:00:07] Speaker 04:
This is Tole.

[00:00:10] Speaker 04:
Is that the way you pronounce it?

[00:00:12] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
May it please the court?

[00:00:13] Speaker 01:
I'm Anne Tole from NCT Law on behalf of Appellate Petitioning.

[00:00:18] Speaker 01:
I want to thank the panel initially for rescheduling this oral argument due to my illness, and I appreciate that very much.

[00:00:25] Speaker 01:
In Sebelius v. Cloer, the Supreme Court observed that fees and costs are available in unsuccessful Vaccine Act cases that are not frivolous.

[00:00:34] Speaker 01:
Remedial legislation like the Vaccine Act should be construed in a manner that effectuates its underlying spirit and purpose to provide a competent bar to vaccine individuals free of charge.

[00:00:45] Speaker 01:
Typically, in cases that lack reasonable basis, the court and or HHS point this out early on in the case.

[00:00:52] Speaker 01:
That did not happen here.

[00:00:53] Speaker 01:
In fact, HHS initially agreed that good faith and reasonable basis existed and only changed course later at the special master's prompting.

[00:01:02] Speaker 01:
The special master and the claims court judge both failed to apply the proper analytical framework for reasonable basis and consider the totality of circumstances, and that was legal error.

[00:01:12] Speaker 01:
In Cottingham, this court said, we see no reason basis for abandoning the claim court's objective totality of the circumstances inquiry.

[00:01:20] Speaker 00:
What is your primary argument?

[00:01:23] Speaker 00:
Is it that the special master erred in making a finding that your triple risk theory was unreasonable, or is it more that there was a legal error in the framework that was used?

[00:01:42] Speaker 01:
The primary argument is a legal error in applying the wrong framework.

[00:01:47] Speaker 01:
The totality of circumstances is the correct analytical framework.

[00:01:51] Speaker 01:
And here, the special master crafted a brand new legal test utilizing the Alphen prongs and weighing up and understanding.

[00:01:59] Speaker 00:
How we understand how the Alphen factors are different than the totality of circumstances.

[00:02:04] Speaker 01:
OK, thank you for that question.

[00:02:07] Speaker 01:
Well, Alfven did not exist at the time the Vaccine Act was enacted, for one thing.

[00:02:13] Speaker 01:
The totality of circumstances analysis is much broader than Alfven prongs.

[00:02:18] Speaker 01:
The Alfven prongs are evidence of causation that would be tantamount to requiring expert report to have evidence on each of the Alfven prongs.

[00:02:28] Speaker 01:
A totality of circumstances analysis considers other things outside of the evidentiary record, such as feasibility of a claim and novelty.

[00:02:38] Speaker 01:
This court spoke of the factor novelty in Cottingham.

[00:02:42] Speaker 01:
And so novelty of a claim would not be something that would be part of the Alphenprongs, per se, but it's still a relevant consideration.

[00:02:50] Speaker 03:
Can the totality of circumstances include something that's not evidentiary in nature, like literature

[00:02:59] Speaker 03:
and things of that nature.

[00:03:01] Speaker 01:
Yes.

[00:03:01] Speaker 01:
So the totality of circumstances test is very broad.

[00:03:05] Speaker 01:
And the Special Master, I mean, I'm sorry, the Claims Court in describing the totality of circumstances test specifically criticized Special Master Moran's application of a strict evidentiary test as early as the Trithano case, which was decided by the then Chief Judge Campbell Smith.

[00:03:24] Speaker 01:
And she stated that she declined

[00:03:27] Speaker 01:
his invitation to supplant the current reasonable basis test that's informed by a totality of the circumstances with a reasonable basis test that turned solely on evidentiary standards because such a rigid position was at variance with the flexible structure of the Vaccine Act.

[00:03:43] Speaker 01:
So yes, the flexible evidentiary rules that apply or don't apply, as the case may be, in the vaccine program, the totality analysis encompasses looking at medical literature like you noted, package inserts,

[00:04:00] Speaker 01:
informal consults with an expert, like what happened here.

[00:04:04] Speaker 01:
Two different experts were consulted about this claim.

[00:04:07] Speaker 01:
The first was Dr. Akbari, an immunologist, who did research and then indicated that this vaccine was associated with infant deaths and that Dutch authorities had pulled the vaccine to further investigate that.

[00:04:20] Speaker 01:
And then Dr. Miller, who, as you noted, was the proponent of the triple risk model in the Boatman case, had also been consulted and as much as gave a supportive expert opinion via email to

[00:04:36] Speaker 04:
I want to take you into the weeds on that.

[00:04:42] Speaker 04:
Let's talk about the elephant test.

[00:04:44] Speaker 04:
I know you think that shouldn't be the exclusive test, but certainly if you have a reasonable basis for each of the elephant prongs, then there's a reasonable basis for the claim.

[00:04:58] Speaker 04:
So on the first ultimate prong, which is a triple risk model, the special master is a bit equivocal about whether that was satisfied ultimately, I guess, concluding that it wasn't.

[00:05:15] Speaker 04:
But you have something here, it seems to me, that is a bit stronger than Boatman in that you have the testimony by

[00:05:26] Speaker 04:
Dr. Agbari that Scheller was found to be animistic, which is enhanced reaction to vaccines, which supports the notion that the vaccine could be the kind of stressor that fits within the triple risk model.

[00:05:45] Speaker 04:
So it seems to me maybe you have a pretty reasonable case about prong one, okay?

[00:05:51] Speaker 04:
But let's talk about prong...

[00:05:54] Speaker 04:
and Special Master found you'd satisfied Prong 3.

[00:05:57] Speaker 04:
So let's just talk for a moment about Prong 2.

[00:06:01] Speaker 04:
What happened in Boatman, similar to perhaps this case, is that there was a reliance on a statistical model to show brain abnormality, that 50 to 70 percent of the SIDS victims have this brain abnormality.

[00:06:19] Speaker 04:
And of course, importantly, we found that that was not sufficient.

[00:06:23] Speaker 04:
But here, Dr. Miller suggested right before the adverse decision

[00:06:31] Speaker 04:
in Boatman that there be further investigation into brain samples to see if there was a brain abnormality.

[00:06:39] Speaker 04:
Do you rely on the possibility of identifying a brain abnormality coming within the triple risk factor as supporting a reasonable basis here?

[00:06:50] Speaker 01:
So I agree with everything that you said.

[00:06:55] Speaker 01:
And so Dr. Miller did want, as he would in any case, to examine all available brain tissue in the hopes of finding evidence that would support other than the statistical inference that the brain stem abnormality was present, like what was required in Boatman.

[00:07:15] Speaker 01:
Unfortunately, in this case,

[00:07:17] Speaker 01:
as often is the case, that part of the brain tissue was never available for further testing.

[00:07:24] Speaker 01:
So he did look at brain tissue.

[00:07:26] Speaker 04:
What do you mean not available?

[00:07:28] Speaker 04:
I'm confused about that, because there was a subpoena to get the brain tissue, which was granted.

[00:07:33] Speaker 04:
You had difficulty getting the authorities to comply with the subpoena.

[00:07:38] Speaker 04:
But wasn't that a possibility that the subpoena could be enforced to get the sample?

[00:07:46] Speaker 01:
Ultimately, the law enforcement agency in California and even the county attorney's office and the state attorney's or whichever it was, I can't recall exactly, but I was the one that was dealing with those entities.

[00:08:03] Speaker 01:
In the end, after expressing a lot of unwillingness to go in the cooler and take out the things, they essentially said there is no other brain tissue besides what we've already cut new samples from and given to previously.

[00:08:19] Speaker 04:
When did that happen?

[00:08:22] Speaker 01:
I don't know exactly.

[00:08:25] Speaker 01:
I'm sorry about that.

[00:08:27] Speaker 01:
But that was always part of the idea was to obviously strengthen the triple risk theory, but also to look for potential other brain abnormalities that could have evidenced in encephalopathy or some other type of issue.

[00:08:44] Speaker 01:
So to answer your question about PROMPT-2, the evidence in this case

[00:08:49] Speaker 01:
regarding the brain stem abnormality is not present.

[00:08:53] Speaker 01:
And so the statistical analysis would be this is the argument on Promptile, the same as in Boatman.

[00:09:00] Speaker 01:
And although that was ultimately not successful at the merits level in Boatman,

[00:09:06] Speaker 01:
That same statistical argument regarding the brainstem abnormality, which must have been there essentially for the child to die in this way, does give rise to a reasonable basis on Prompt 2, because this is a much lower burden than the merits decision on Prompt 2.

[00:09:23] Speaker 04:
Yeah, and in Boatman, the council got attorney's fees.

[00:09:28] Speaker 01:
That's true.

[00:09:29] Speaker 01:
And not only that, but other cases that were also in the pipeline following Boatman

[00:09:34] Speaker 01:
which is similar to all the cases in the autism omnibus hearing.

[00:09:38] Speaker 01:
5,000 cases got attorney's fees after those test cases were decided.

[00:09:45] Speaker 01:
And even now, people once in a while still bring an autism case.

[00:09:49] Speaker 01:
And then they're warned, like, hey, we've already been down this road.

[00:09:52] Speaker 01:
We're not going to pay you in these cases.

[00:09:55] Speaker 01:
And that's fair.

[00:09:56] Speaker 01:
But it's not fair in a case like this, which has a vulnerable case and the same expert supporting the case

[00:10:04] Speaker 01:
that had succeeded in front of Special Master Gowan.

[00:10:07] Speaker 01:
Certainly, you wouldn't bring a case like this now without a new expert or a new medical theory.

[00:10:13] Speaker 01:
But this case was still pending when this case was filed.

[00:10:18] Speaker 01:
And counsel appropriately dismissed this case as soon as this court decided both.

[00:10:23] Speaker 01:
So this is like Pereira, essentially, where the case had a reasonable basis at the outset

[00:10:29] Speaker 01:
and only lost a reasonable basis when the expert opinion was no longer viable or wasn't going to carry the day.

[00:10:37] Speaker 01:
And that's why the case was dismissed at that point.

[00:10:43] Speaker 01:
I might also add that seven of the eight special masters are applying the Totality of Circumstances test.

[00:10:49] Speaker 01:
And Judge Schwartz's concerns in this case that that will lead to rampant abuses and attorney's fees is simply unfounded.

[00:10:56] Speaker 03:
The special master

[00:10:58] Speaker 03:
The special master in this case requested additional arguments and briefing, right?

[00:11:04] Speaker 03:
Yes.

[00:11:05] Speaker 03:
And was that on the reasonable basis issue?

[00:11:09] Speaker 03:
Did that focus on the offense test?

[00:11:17] Speaker 01:
No, I don't think so.

[00:11:19] Speaker 01:
For a couple of years, we litigated reasonable basis at the trial court level, and we had a three-hour oral argument.

[00:11:26] Speaker 01:
But I don't think that procedurally, I think that Cottingham, the claims court decision in Cottingham, I believe happened a little bit after that.

[00:11:37] Speaker 03:
I guess I'm intrigued as if there's no reasonable basis, then why have additional argument and why have additional briefing?

[00:11:47] Speaker 03:
On the other hand, it seems that if you're going to have original argument, I mean oral argument and additional briefing,

[00:11:53] Speaker 03:
And at least there's a reasonable reason for that.

[00:11:57] Speaker 03:
And to what extent does that go to showing a reasonable basis?

[00:12:02] Speaker 01:
Well, as I said earlier, Respondent did not challenge reasonable basis in this case.

[00:12:08] Speaker 01:
In many cases, they do.

[00:12:10] Speaker 01:
Or they sometimes defer to the Special Master if they don't want to.

[00:12:14] Speaker 03:
The Secretary didn't challenge originally.

[00:12:16] Speaker 01:
No, they didn't.

[00:12:17] Speaker 01:
They were prompted, perhaps even goaded, into doing so.

[00:12:21] Speaker 01:
To be fair, I see that my time.

[00:12:24] Speaker 03:
Let me ask you one last question.

[00:12:26] Speaker 03:
In your view, what is it that changed the secretary's mind to oppose?

[00:12:33] Speaker 01:
The special master's insistence that they take a position, and also he's been somewhat of a... I'm sorry, the special master's what?

[00:12:40] Speaker 01:
The special master's insistence that they take a position.

[00:12:43] Speaker 01:
He required that they take a position one way or the other.

[00:12:48] Speaker 04:
Okay.

[00:12:48] Speaker 04:
Thank you.

[00:12:49] Speaker 04:
Thank you.

[00:12:50] Speaker 04:
Ms.

[00:12:50] Speaker 04:
Bishop?

[00:12:58] Speaker 02:
Good morning.

[00:12:58] Speaker 02:
May it please the court?

[00:13:00] Speaker 02:
The U.S.

[00:13:00] Speaker 02:
Court of Claims opinion and order sustaining the special master's decision denying attorneys fees and costs should be affirmed.

[00:13:08] Speaker 04:
So why is this case, why should attorney's fees be denied here when they were granted at Boatman and other Boatman-like cases?

[00:13:18] Speaker 02:
I think that each case needs to stand on its own.

[00:13:21] Speaker 02:
And here, there was no expert evidence.

[00:13:24] Speaker 02:
There was no medical evidence.

[00:13:26] Speaker 04:
Well, it's the same as Boatman, isn't it?

[00:13:28] Speaker 04:
In fact, perhaps a little stronger because of the Akhmari testimony.

[00:13:34] Speaker 04:
I mean, this is not a weaker case than Boatman, is it?

[00:13:37] Speaker 02:
I was just saying that it is.

[00:13:38] Speaker 02:
Dr. Miller actually did provide a report opining on the merits there.

[00:13:44] Speaker 02:
Here, he merely offered to write a report, and he admitted.

[00:13:47] Speaker 00:
Can I ask you, does it make a difference that he wrote an email versus a report?

[00:13:51] Speaker 00:
You would have had them continue on with the case and have all the expense of the report.

[00:13:57] Speaker 00:
I mean, obviously, if he was going to write a report, he said in these emails he can write a report based on the very theory that was in Boatman.

[00:14:04] Speaker 00:
So why should it matter that he hadn't written it yet at the time that it was determined that the theory was no longer viable?

[00:14:11] Speaker 00:
And then they quickly abandoned the case.

[00:14:14] Speaker 02:
I think what's key here is that he admitted in his email that this was a classic SIDS case.

[00:14:20] Speaker 02:
And at best, he could offer the same theory as in Boatman.

[00:14:23] Speaker 02:
But he also admitted, there is no physical evidence.

[00:14:27] Speaker 02:
I cannot apply the theory, because there's no evidence of a structural abnormality, which is necessary.

[00:14:32] Speaker 04:
No, no, no.

[00:14:33] Speaker 04:
In Boatman, the theory was the statistical model, which would exist here just as in Boatman.

[00:14:41] Speaker 04:
There's no difference, right?

[00:14:45] Speaker 02:
It is the same theory, but each special master would be entitled to decide that.

[00:14:50] Speaker 02:
And at the time this case was filed, Special Master Gowin's decision in Boatman was one outlier case.

[00:14:58] Speaker 02:
Four other decisions rejected Dr. Miller's theory.

[00:15:02] Speaker 04:
OK, but what I'm trying to figure out is why is this case weaker than Boatman?

[00:15:06] Speaker 04:
I'm not seeing that.

[00:15:08] Speaker 04:
You said, well, he didn't actually write a report.

[00:15:10] Speaker 04:
It's just Stolas pointed out that shouldn't make a difference.

[00:15:13] Speaker 04:
Is this case in any way weaker than Boatman?

[00:15:18] Speaker 02:
I'm not familiar with all of the litigation in Boatman and all of the evidence presented.

[00:15:24] Speaker 02:
But what I would maintain is that the evidence presented here was ultimately a complete dearth of medical records that insinuated vaccine causation.

[00:15:31] Speaker 04:
But then we're turning to rely on the statistical model, which is exactly what happened in Boatman.

[00:15:40] Speaker 02:
I think what's ultimately important, though, is that this court found the Syrian boatman, as a matter of law, unsound, unreputable, unreliable.

[00:15:52] Speaker 00:
That was after they filed their case, right?

[00:15:55] Speaker 00:
That's after they're filing.

[00:15:57] Speaker 00:
When do we look at whether a party had a reasonable basis?

[00:16:01] Speaker 00:
Is it at the end of the case?

[00:16:03] Speaker 00:
Is it at the beginning of the case?

[00:16:06] Speaker 02:
I think it's a consistent query.

[00:16:08] Speaker 02:
But what I would say is that, as the CFC had said, it's not necessarily reasonable to rely on an erroneous decision merely because it hasn't been reversed yet.

[00:16:17] Speaker 02:
And here.

[00:16:18] Speaker 00:
But how were they to know that it was an erroneous decision if it hadn't been reversed yet?

[00:16:23] Speaker 00:
I mean, there's a sentence in the opinion that also says a petitioner cannot justify an unreasonable causation theory in one case

[00:16:30] Speaker 00:
with the theory's acceptance in another case.

[00:16:33] Speaker 00:
And that really goes to Judge Dyke's question, which I have the same one.

[00:16:37] Speaker 00:
How is this any different than Boatman?

[00:16:39] Speaker 00:
So maybe in a situation where the facts are the same, or maybe the facts here are even better, this sentence doesn't make a lot of sense to me.

[00:16:48] Speaker 02:
What do you think of that sentence?

[00:16:52] Speaker 02:
Boatman is still one case outweighed by these other cases that counsel had an independent duty to evaluate.

[00:16:59] Speaker 02:
And there were readily apparent flaws, even at the special master level in Boatman.

[00:17:03] Speaker 04:
But in Boatman itself, we criticized the Court of Federal Claims for relying on other cases as somehow taking a vote as to what the result should be.

[00:17:15] Speaker 02:
But I think that if we're considering Boatman to be evidence that we can consider under a reasonable basis standard, then

[00:17:23] Speaker 02:
The other judicial evidence out there, those circumstances matter, too.

[00:17:29] Speaker 02:
And I think it's only validating that this court didn't find that Boatman had a viable theory.

[00:17:34] Speaker 02:
And I think that one thing about the CFC's decision is that came two months after the petition filed in this case.

[00:17:40] Speaker 02:
It wasn't until another.

[00:17:41] Speaker 03:
Let's look at the time frame here.

[00:17:43] Speaker 03:
Isn't it the case that the case was dismissed once the Boatman opinion came out?

[00:17:52] Speaker 02:
once the Federal Circuit decision came out, but not the CFC decision two months after the petition was filed.

[00:17:59] Speaker 03:
So once the Federal Circuit opinion came out, then they dismissed.

[00:18:05] Speaker 03:
So are we looking at reasonable basis from the time that the lawsuit was filed up to the point of dismissal and no further than that?

[00:18:14] Speaker 03:
And up until that point, wasn't it reasonable for them to rely on

[00:18:20] Speaker 03:
evidence that was also being presented in her involvement.

[00:18:25] Speaker 02:
But I think that that is still a subjective consideration.

[00:18:29] Speaker 02:
And if we look at Simmons, Cottingham, and James Cornelius as the triumvirate of reasonable basis case law.

[00:18:34] Speaker 03:
But we're looking at a totality of circumstances.

[00:18:37] Speaker 03:
Why do you think that we would not be able to consider reliance on expert testimony in another case as reasonable basis?

[00:18:49] Speaker 02:
I think perhaps considering the theory itself.

[00:18:53] Speaker 03:
Because we have held in our other cases that the absence of a medical opinion is not dispositive on a reasonable basis.

[00:19:02] Speaker 02:
Right.

[00:19:02] Speaker 02:
But here, Scheller dismissed because Dr. Akbar could not provide an opinion.

[00:19:09] Speaker 02:
Right.

[00:19:10] Speaker 03:
So we're looking at attorney's fees from the time that the lawsuit was filed up until dismissal.

[00:19:16] Speaker 03:
You want to hang the

[00:19:18] Speaker 03:
the appellant on things that occurred after they dismissed.

[00:19:23] Speaker 02:
But I think that Scheller always had a duty to investigate the claims here and 11 other SIDS cases, independent of Dr. Miller's theory, which was rejected in four decisions.

[00:19:34] Speaker 03:
But that can't be the standard of review for us.

[00:19:37] Speaker 03:
I don't think- It's a numerical game that, you know, how many went this way and how many went that way.

[00:19:43] Speaker 04:
Is it true that in the other 11 cases, even though they rejected the SIDS theory, they granted attorney's fees?

[00:19:50] Speaker 02:
I'm not sure the status.

[00:19:52] Speaker 02:
Attorney's fees is something the government rarely goes after.

[00:19:56] Speaker 02:
I mean, it's really not a sword.

[00:19:58] Speaker 02:
It's a shield that we try not to use federal dollars for unreasonable claims.

[00:20:04] Speaker 02:
And it's something we take very seriously.

[00:20:06] Speaker 02:
We don't challenge it often.

[00:20:08] Speaker 02:
As Ms.

[00:20:09] Speaker 02:
Toll has explained, we didn't originally challenge it in this case.

[00:20:12] Speaker 02:
And when probed by the special master to consider everything available, we did change our position with fair notice.

[00:20:18] Speaker 02:
And that particular idea about this fairness is not, whether that's fair, was addressed by the CFC and is not an objection before this court today.

[00:20:27] Speaker 03:
So what's the legal substantive difference between the totality of circumstances framework and the Alton's test?

[00:20:40] Speaker 02:
I think that often is merely one way to construe it.

[00:20:43] Speaker 02:
I think it comports.

[00:20:44] Speaker 02:
It's a reasonable way to go about it, but not required.

[00:20:46] Speaker 03:
No, I'm asking the difference.

[00:20:48] Speaker 03:
What's the legal, substantive difference between oftens and totality of circumstances?

[00:20:55] Speaker 02:
The burden of proof.

[00:20:56] Speaker 02:
Often requires preponderance.

[00:20:58] Speaker 02:
But what often does, it's synonymous with causation in our program.

[00:21:02] Speaker 02:
It has been for 20 years.

[00:21:03] Speaker 03:
So would you agree that the oftens test is an evidentiary framework?

[00:21:07] Speaker 02:
It is.

[00:21:08] Speaker 02:
And I think that comports.

[00:21:09] Speaker 03:
And then reasonable basis is not.

[00:21:11] Speaker 03:
It could be.

[00:21:12] Speaker 03:
It could include the law, but it includes other things other than evidence and law, correct?

[00:21:18] Speaker 02:
I think consistent with Simmons, Cottingham, and James Cornelius, it's an objective inquiry based on objective evidence.

[00:21:25] Speaker 03:
Yes, but it's not a pure evidentiary test.

[00:21:32] Speaker 02:
I think that it is.

[00:21:32] Speaker 02:
A reasonable basis is.

[00:21:33] Speaker 03:
You think it's pure evidentiary?

[00:21:36] Speaker 02:
I think that there could be circumstances like Boatman, like considering things that are extraneous to the record.

[00:21:45] Speaker 03:
If that's the case, why do we have the totality of circumstances, which this court has upheld?

[00:21:51] Speaker 02:
I think that totality of the circumstances can be confusing.

[00:21:55] Speaker 02:
And this case is a good example of why, because we start looking at these things that are extraneous to the record.

[00:22:00] Speaker 02:
But really, I think a better, more aptly termed would be the totality of the objective evidence, because it's not rigid.

[00:22:07] Speaker 02:
It's not that each problem must be met.

[00:22:09] Speaker 03:
So if you had a magic wand, would you do away with the totality of circumstances framework?

[00:22:15] Speaker 02:
I would rename it the totality of the objective evidence to comport with the case law.

[00:22:19] Speaker 02:
And I think that that is consistent with the act, because Congress separated good faith, which is understood as subjective, from a reasonable basis for the claim.

[00:22:29] Speaker 03:
And how would you weigh that evidence then by the Alton's test?

[00:22:34] Speaker 02:
I think that it makes good sense to do it that way, but it's not required.

[00:22:38] Speaker 04:
So you said a moment ago that not every prong of Alton must be met to have a reasonable basis, correct?

[00:22:46] Speaker 02:
I don't understand that to necessarily be true, but I would struggle to see that, you know, for example, if you don't have even more than a mere centella to support a theory,

[00:22:57] Speaker 02:
I don't know what the significance of the clinical records might be then, if there's no theory to connect to events.

[00:23:02] Speaker 04:
I don't think you're quite answering my question.

[00:23:04] Speaker 04:
You said a moment ago, if I understood you correctly, that not every prong of often must be met for a reasonable basis.

[00:23:11] Speaker 04:
Is that correct?

[00:23:14] Speaker 02:
I think it would again depend on the circumstances of the case.

[00:23:18] Speaker 02:
And we would have to look at maybe there's very strong treater statements or very strong medical, the medical records show something.

[00:23:25] Speaker 02:
And maybe there's weaker evidence on the case.

[00:23:27] Speaker 00:
So your answer is yes in some circumstances.

[00:23:30] Speaker 00:
Is that your answer?

[00:23:31] Speaker 00:
I mean, you know, I mean, it seemed like a reasonable statement.

[00:23:34] Speaker 00:
You did just make it.

[00:23:36] Speaker 00:
And you said not all prongs have to be met for a reasonable basis.

[00:23:41] Speaker 00:
So why are you backtracking?

[00:23:44] Speaker 02:
I still think it really depends on each case, a case by case determination.

[00:23:48] Speaker 00:
We understand maybe you have a different view in this case, but is it a yes or a no?

[00:23:54] Speaker 00:
For a reasonable basis, under the totality of circumstances test, in your view, do all prongs of all then have to be met?

[00:24:02] Speaker 02:
I think they should be.

[00:24:04] Speaker 02:
But I don't think that it's necessarily required.

[00:24:11] Speaker 03:
Can a special master consider material outside the record?

[00:24:18] Speaker 03:
Like medical literature?

[00:24:20] Speaker 02:
Medical literature can.

[00:24:21] Speaker 02:
I think that that is objective evidence.

[00:24:24] Speaker 03:
Again, I think it would be- It doesn't have to be medical literature introduced by a claimant, right?

[00:24:30] Speaker 03:
A petitioner.

[00:24:31] Speaker 03:
It can be medical literature that the special masters are aware of.

[00:24:37] Speaker 03:
Maybe they get us a squinch into, you know,

[00:24:42] Speaker 03:
I don't know, it's just a magazine, and can they consider that?

[00:24:48] Speaker 02:
I would try to caution the special master to limit it to the record.

[00:24:52] Speaker 02:
Evidence in Section 13 specifies that the record is what's created by the special master.

[00:24:56] Speaker 02:
And I think the special master's discretion to ask a certain literature to, and it is a specialized vaccine proceeding, the special master has immense discretion and has acquired specialized knowledge.

[00:25:08] Speaker 03:
It's the special master that creates the record.

[00:25:10] Speaker 02:
Correct.

[00:25:13] Speaker 02:
I mean, with input from the parties, of course.

[00:25:15] Speaker 02:
But we have suspended normal discovery rules and evidence rules.

[00:25:20] Speaker 03:
In your view, the special master can consider information or materials outside of the record.

[00:25:26] Speaker 03:
He can go out and gather things.

[00:25:30] Speaker 02:
I'm not sure that he could do that before or after rendering.

[00:25:34] Speaker 02:
In conjunction with rendering opinion, it would need to be part of the record he's considering.

[00:25:38] Speaker 02:
Otherwise, I mean, I think that might be a due process issue.

[00:25:42] Speaker 02:
I think considering case law makes sense, because that's public and available to everyone.

[00:25:49] Speaker 02:
I think that it might be a better course for the special master to invite medical literature on a topic.

[00:25:57] Speaker 03:
Maybe it would be a due process, but it certainly would be an abuse of discretion.

[00:26:02] Speaker 02:
Perhaps.

[00:26:07] Speaker 04:
that this case is exactly like Boatman, or perhaps a little stronger.

[00:26:12] Speaker 04:
Would it be error to deny attorney's fees?

[00:26:18] Speaker 02:
I think that Boatman came at a different time.

[00:26:22] Speaker 02:
And again, I'm not familiar with every piece of evidence in the Boatman record.

[00:26:27] Speaker 02:
But I think that we need to individually look at this case.

[00:26:31] Speaker 02:
And this case had almost no evidence in support of it.

[00:26:35] Speaker 04:
No, but you're not answering my question.

[00:26:37] Speaker 04:
If we conclude that this is just like Boatman, should attorney's fees have been awarded the way they were in Boatman itself?

[00:26:49] Speaker 02:
I think that that begs the question, should attorney's fees have been raised in Boatman?

[00:26:53] Speaker 04:
What's the answer?

[00:26:54] Speaker 04:
You may not agree that the hypothetical is relevant.

[00:26:59] Speaker 04:
But assume my hypothetical.

[00:27:02] Speaker 04:
What's the answer?

[00:27:07] Speaker 02:
I still don't think that another case can dictate this case.

[00:27:13] Speaker 00:
Just assuming hypothetically that this case is the exact same as Boehner.

[00:27:19] Speaker 00:
Assume that, because your answer seems to take away that assumption every time you answer.

[00:27:23] Speaker 00:
So assume for a minute that it's the exact same case.

[00:27:27] Speaker 00:
Would it be error to not allow attorney fees, grant attorney fees?

[00:27:40] Speaker 02:
I'm not sure.

[00:27:41] Speaker 02:
I'm sorry, Your Honor.

[00:27:47] Speaker 02:
I do think it, you know.

[00:27:51] Speaker 02:
I don't know whether attorney's fees were reasonably awarded in Boatman.

[00:27:54] Speaker 02:
And I think that's a fair question.

[00:27:56] Speaker 02:
They were awarded.

[00:27:56] Speaker 02:
They were.

[00:27:57] Speaker 02:
But I don't know.

[00:27:58] Speaker 02:
If I had been counseled, perhaps I'd have challenged fees there.

[00:28:01] Speaker 02:
Or perhaps I do think it was a much earlier filed case.

[00:28:07] Speaker 02:
And the current landscape matters.

[00:28:10] Speaker 04:
OK.

[00:28:11] Speaker 04:
Thank you.

[00:28:12] Speaker 04:
We're out of time.

[00:28:14] Speaker 02:
Thank you.

[00:28:18] Speaker 04:
This totally am I butchering your name again?

[00:28:20] Speaker 01:
It's toll.

[00:28:21] Speaker 01:
T-o-a-l-e toll.

[00:28:23] Speaker 01:
It's a lot of vowels.

[00:28:25] Speaker 04:
We're changing our forms so we get phonetic spelling.

[00:28:30] Speaker 01:
So I just wanted to touch on just a brief point that I didn't address earlier.

[00:28:36] Speaker 01:
And that is the which evidence should be analyzed in a reasonable basis analysis.

[00:28:43] Speaker 01:
There's a case from the claims court called Goodgame.

[00:28:46] Speaker 01:
And that case is procedurally different than our case, because in that case, that was tried on the merits.

[00:28:52] Speaker 01:
So naturally, the record was complete.

[00:28:55] Speaker 01:
In this case, additional evidence was submitted in support of reasonable basis after the dismissal.

[00:29:02] Speaker 01:
And I would submit to the court that there is nothing in the Vaccine Act that limits the evidence.

[00:29:09] Speaker 04:
I'm not sure that I understand how that evidence that the special master declined to consider helped you.

[00:29:16] Speaker 04:
I don't really see in your brief any description of what's in that literature which is helpful to you.

[00:29:23] Speaker 01:
So that's a fair point.

[00:29:24] Speaker 01:
The literature that was introduced in this case in the Fee's litigation is all of the literature from the Beaumont case.

[00:29:32] Speaker 01:
It's hard to maybe contextualize or understand without the expert report, but it lines up with the evidence from that case.

[00:29:40] Speaker 01:
But I do think it's important just to point out, though, because there is the good game decision, and that's influencing special master's rulings, that there's not a prohibition in the Vaccine Act to introduce additional evidence in the attorney's fees phase.

[00:29:58] Speaker 01:
And that's in contrast to a statute like AJA,

[00:30:01] Speaker 01:
which does have a specific provision.

[00:30:04] Speaker 01:
It's 28 USC 2412 D. And that provides that whether a party is entitled to attorney's fees under IJA is determined by examining, quote, the record which is made in the civil action.

[00:30:18] Speaker 01:
the government cannot introduce additional evidence of substantial justification.

[00:30:23] Speaker 01:
And so the argument then is without Congress specifying something like that in the Vaccine Act, then you can presume that there's no such prohibition in vaccine litigation.

[00:30:35] Speaker 01:
Unless there's any other questions.

[00:30:38] Speaker 01:
I did want to say that regarding Simmons and the subjective versus objective dichotomy, certainly the existence of Boatman and the theory that was advanced there, and the ruling of Boatman, those are all objectively verifiable facts, like we noted.

[00:30:54] Speaker 03:
I think the argument that I often hear, and I think that was made here, is that while that may be objective,

[00:31:01] Speaker 03:
The attorney's interpretation of that is somehow subjective.

[00:31:05] Speaker 03:
And that kind of overpowers any objective nature of the matter.

[00:31:11] Speaker 01:
Well, certainly, whatever an attorney thinks or does will necessarily be subjective.

[00:31:16] Speaker 01:
But in the same way as in rule 11 sanction case law exists, that case law looks at the actions of the attorney through an objective lens, so of the reasonable attorney.

[00:31:28] Speaker 01:
And so you can do the same here.

[00:31:30] Speaker 01:
I see my time's up.

[00:31:32] Speaker 04:
Thank you.