[00:00:01] Speaker 02:
Our next case for argument is Hinton v HHS, appeal number 23-2161.

[00:00:09] Speaker 02:
Ms.

[00:00:13] Speaker 02:
Wade, please take your time, but you can proceed when you're ready.

[00:00:32] Speaker 00:
May it please this court, my name is Zoe Wade and I represent the Secretary of Health and Human Services.

[00:00:44] Speaker 00:
As this court knows, this case turned on a single finding of fact that Shankwavius Hinton received a flu vaccination on December 21st of 2015.

[00:00:54] Speaker 00:
And I'm asking this court to set aside that finding under the arbitrary and capricious standard of review because a special master did not explain, did not rationally explain her choice to reject multiple contemporaneous records

[00:01:10] Speaker 00:
created by disinterested persons and instead credit the later in time statements made by an interested party in the context of litigation.

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Medical records and the contemporaneous records have been recognized by this court as generally warranting consideration as trustworthy evidence.

[00:01:32] Speaker 00:
And the records, or excuse me, the evidence that was credited by the special master has been recognized both by this case, excuse me, this court and the United States Supreme Court as being deserving of little weight.

[00:01:44] Speaker 00:
And yet the special master devoted no time to explaining why she found

[00:01:50] Speaker 00:
those contemporaneous records to be unreliable or not credible.

[00:01:55] Speaker 00:
And it is not the government's position.

[00:01:58] Speaker 01:
Yes.

[00:02:05] Speaker 00:
I am not.

[00:02:05] Speaker 00:
I am asking this court to review the record under the arbitrary and capricious standard of review, which requires this court to consider whether or not the special master drew plausible inferences and whether the special master articulated a rational basis for the choice that she made.

[00:02:24] Speaker 02:
If you are asking us to not reweigh the credibility determination, which I read as being based on both the detailed nature of the testimony as well as I guess the demeanor of the witness as well as other explanations provided and I guess the extreme nature of the

[00:02:50] Speaker 02:
attempt she made in order to be able to show that the flu vaccine was actually received.

[00:02:58] Speaker 02:
If we don't reweigh that, where does that leave us?

[00:03:00] Speaker 02:
I mean, we have to accept the testimony as true then, right, of the witness.

[00:03:07] Speaker 00:
No, if the court determines under the arbitrary and capricious standard of review that the special master did not rationally explain her decision or that the inferences that flow from her fact finding are essentially erroneous, then this court is

[00:03:22] Speaker 02:
It's unreasonable, not erroneous.

[00:03:25] Speaker 02:
I'm sorry, what's that?

[00:03:26] Speaker 02:
You said if the fact findings are inferences, don't the inferences have to be unreasonable?

[00:03:32] Speaker 02:
Yes, or implausible, yes.

[00:03:34] Speaker 02:
Okay, that's not quite the same as erroneous.

[00:03:37] Speaker 02:
Well, that is the standard for determining error, though.

[00:03:40] Speaker 02:
I agree.

[00:03:41] Speaker 02:
You said erroneous.

[00:03:42] Speaker 02:
You said erroneous, so I just wanted to make sure we were on the same page.

[00:03:47] Speaker 00:
You've got a very difficult burden.

[00:03:49] Speaker 00:
It is a difficult burden, but I do think here that the record is very clear that she did not explain why she found... She didn't resolve the conflict.

[00:03:56] Speaker 00:
She didn't resolve the conflict at all.

[00:03:58] Speaker 00:
She explained why... Certainly.

[00:03:59] Speaker 00:
Okay.

[00:04:01] Speaker 04:
Didn't resolve the conflicts.

[00:04:02] Speaker 04:
The claims said that you didn't cite any authority to support your proposition.

[00:04:09] Speaker 04:
that she was required to explain how she resolved the conflicts.

[00:04:13] Speaker 04:
I'm reading from page 18 of the opinion at Pennings 20.

[00:04:18] Speaker 00:
And I disagree that... Well, cite me a case.

[00:04:21] Speaker 04:
Well, a case that would suggest that the court has to, that the special master has to explain... You made the argument to the court that claims that there was an error here, arbitrary and capricious, because the special master did not explain how she resolved conflicts in the testimony.

[00:04:36] Speaker 04:
Court of Federal Claims said, you fail to cite any authority supporting that proposition.

[00:04:42] Speaker 00:
Well, I would suggest that probably the most persuasive case on that particular point is going to be Sanchez versus Health and Human Services.

[00:04:49] Speaker 00:
And in that case, the special master credited.

[00:04:51] Speaker 00:
What is the site?

[00:04:52] Speaker 00:
Pardon me?

[00:04:53] Speaker 00:
What is the site?

[00:04:53] Speaker 00:
You have the citation?

[00:04:55] Speaker 00:
I do have the site in the Sanchez versus Health and Human Services.

[00:05:02] Speaker 04:
If you're trying to talk to us, you have

[00:05:06] Speaker 00:
is 34 4th 1350.

[00:05:09] Speaker 00:
It's a federal circuit decision from 2022.

[00:05:11] Speaker 00:
34 4th?

[00:05:11] Speaker 00:
Yes.

[00:05:12] Speaker 04:
And?

[00:05:12] Speaker 04:
1350.

[00:05:21] Speaker 02:
And what is that case saying?

[00:05:23] Speaker 02:
Let me ask you another question.

[00:05:27] Speaker 02:
What is that case?

[00:05:27] Speaker 02:
Do you want to tell us?

[00:05:28] Speaker 00:
Sure.

[00:05:29] Speaker 00:
The special master in that case essentially credited the testimony of family members regarding a minor child symptoms and specifically credited testimony that he exhibited arm contortions close in time to the time of vaccination.

[00:05:44] Speaker 00:
He also credited later in time testimony that was supported by medical record evidence that the child experienced arm contortions several months later in time.

[00:05:53] Speaker 00:
But he rejected the testimony from the family members that during the intervening months that this child continued to experience these arm contortions.

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And this court held that it was arbitrary and capricious

[00:06:04] Speaker 00:
to reject the testimony of the family members because the special master did not provide a sound basis for rejecting that testimony.

[00:06:15] Speaker 00:
And importantly, the court determined that the special master in that case was not obligated to accept the testimony simply because it was unrebutted.

[00:06:23] Speaker 00:
It was specifically the fact that he did not explain his reasoning for rejecting that testimony when he had previously accepted other aspects of that testimony.

[00:06:32] Speaker 04:
Why did the government decide, initially decide, not to defend this case?

[00:06:39] Speaker 00:
The government did not decide not to defend this case.

[00:06:42] Speaker 00:
The government did defend this case on a fact-finding basis.

[00:06:46] Speaker 00:
In a real 4C letter that said we are not going to defend?

[00:06:49] Speaker 00:
I think that's a misconception that once the special master had issued its fact ruling and determined that the child had received the vaccination,

[00:06:57] Speaker 00:
That was the primary point of contention.

[00:06:59] Speaker 00:
So we did dispute that.

[00:07:01] Speaker 00:
Once that finding was issued against the government, then there were no other defenses for the respondent to raise.

[00:07:10] Speaker 00:
That's how we should interpret that?

[00:07:12] Speaker 04:
That is, that's absolutely how you should interpret it.

[00:07:14] Speaker 04:
Just as we did not in a defense.

[00:07:17] Speaker 00:
Prior to that being issued, the procedural history would be that there was a rule for report that contested

[00:07:26] Speaker 00:
entitlement based on the fact that the evidence was insufficient to support that a vaccination had occurred.

[00:07:31] Speaker 00:
Then there was a fact hearing based on that only to decide that one issue, whether or not the vaccination had occurred.

[00:07:38] Speaker 00:
Yes.

[00:07:39] Speaker 00:
So that would be standard practice in our office if there is an adverse determination and there are no other grounds to defend against the claim.

[00:07:46] Speaker 04:
Thank you.

[00:07:46] Speaker 04:
So it was unclear because there's only one reference to the 4C and I thought that was the only one.

[00:07:51] Speaker 04:
Apologies.

[00:07:52] Speaker 04:
Secondly, let's assume for purposes of argument

[00:07:56] Speaker 04:
that there is no question whatsoever about that.

[00:07:59] Speaker 04:
Ms.

[00:07:59] Speaker 04:
Hinton did go on December 21st for a meeting with her child.

[00:08:05] Speaker 04:
Let's assume hypothetically, and I know the government doesn't like hypothetically, let's assume hypothetically that it is agreed that Ms.

[00:08:12] Speaker 04:
Hinton's record absolutely proves that she went to the meeting on the 21st of December with her son.

[00:08:21] Speaker 04:
So she went there with the doctor.

[00:08:25] Speaker 04:
What does that tell us?

[00:08:27] Speaker 04:
Does it tell us anything about the likelihood of whether or not the vaccine was administered?

[00:08:32] Speaker 00:
I think it's a little bit difficult for me to answer that because these are fact-dependent questions and you're asking me to assume a single fact.

[00:08:39] Speaker 00:
I think there's in the record.

[00:08:42] Speaker 04:
evidence that it was typical at this time of year to give a flu vaccine.

[00:08:48] Speaker 04:
Certainly.

[00:08:49] Speaker 04:
So all I'm saying is you have a situation where it's proven, yes indeed she did come.

[00:08:55] Speaker 04:
The doctor said, I remember she came.

[00:08:58] Speaker 00:
Okay.

[00:08:59] Speaker 00:
Are we also am I also to assume that that a vaccination was administered during this?

[00:09:04] Speaker 00:
No, that's the question.

[00:09:06] Speaker 02:
So assuming hypothetically that there is evidence that they went to the doctor appointment.

[00:09:12] Speaker 02:
Sure.

[00:09:14] Speaker 02:
Do you still have an argument?

[00:09:15] Speaker 00:
Yes, I think that there is still contemporaneous evidence from the time of his hospitalization.

[00:09:21] Speaker 00:
Ultimately, in this case, the only evidence that a vaccination occurred is the statements of Ms.

[00:09:28] Speaker 00:
Hinton that were made after she retained an attorney to bring this claim in the vaccine program.

[00:09:34] Speaker 00:
So that's a fact.

[00:09:34] Speaker 04:
Well, that's a medical record.

[00:09:37] Speaker 04:
Your argument is that she made the medical record?

[00:09:40] Speaker 04:
The medical records that were made during the rehab period.

[00:09:44] Speaker 00:
No, if she attended the appointment on the 21st of December, but we still did not have evidence that there was a vaccination administered, you would still have an absence of any record in the billing or insurance documentation that a vaccination was administered.

[00:10:00] Speaker 00:
There's still no testimony other than the statements of Ms.

[00:10:03] Speaker 00:
Hinton.

[00:10:03] Speaker 00:
For example, Dr. Olligan did not recall administering the flu vaccine.

[00:10:07] Speaker 04:
And there is the understanding that medical records are not necessarily

[00:10:10] Speaker 04:
proof positive of things plus or minus.

[00:10:14] Speaker 00:
But I'm not sure that I would agree with that.

[00:10:16] Speaker 00:
There is a general assumption that information that is provided during the course of a medical appointment is going to be accurate.

[00:10:22] Speaker 00:
And even if there was an appointment on the 21st, which obviously we dispute, we have contemporaneous records from his hospitalization that affirmatively demonstrate that he did not receive a flu vaccination.

[00:10:34] Speaker 04:
We're looking at the quality of the documentation for a visit to a doctor on the last day of his day in private practice on the last afternoon just before he's going home.

[00:10:43] Speaker 00:
We are talking about far more than that.

[00:10:45] Speaker 00:
This is not simply a matter.

[00:10:47] Speaker 00:
No, I disagree with your characterization that we're talking about simply the accuracy of medical records that may sort of plus or minus be accurate or not.

[00:11:01] Speaker 00:
I think that we also have to, the issue, the separate issue here is that

[00:11:04] Speaker 00:
the inferences that flow from the special master's decision to credit.

[00:11:09] Speaker 00:
Ms.

[00:11:09] Speaker 00:
Hinton's testimony are simply not, they are objectively unreasonable.

[00:11:14] Speaker 00:
They are implausible.

[00:11:15] Speaker 02:
So you have two arguments as far as I see.

[00:11:17] Speaker 02:
One is that the inferences made are unreasonable.

[00:11:21] Speaker 02:
That's correct.

[00:11:22] Speaker 02:
And the other one

[00:11:23] Speaker 02:
is that there's not a reasoned basis.

[00:11:27] Speaker 02:
Can I ask you something turning first to the reasoned basis?

[00:11:31] Speaker 02:
Is it your position that there's things that the special master could have said?

[00:11:36] Speaker 02:
For example, if the special master would have said something like, the only evidence on the record, the main evidence, is that of the testifying mother, Ms.

[00:11:49] Speaker 02:
Hinton.

[00:11:50] Speaker 02:
And she said that the nurse

[00:11:53] Speaker 02:
when she gave the vaccine took notes by paper and she said that when she came in to the doctor's office that the check-in procedure was

[00:12:03] Speaker 02:
lack a better word, loosey-goosey, and that you didn't have to formally check in.

[00:12:08] Speaker 02:
And so if the special master cited this kind of evidence and said, based on this, I don't think that this is a situation where I have to say that the medical records necessarily would have been kept perfectly, especially where there is absolutely no evidence

[00:12:27] Speaker 02:
from the practitioner or anybody else about the quality of the records that were made by this particular doctor's facility.

[00:12:35] Speaker 02:
Would that be a reasoned basis or is it your position that there's no reasoned basis at all because we should presume as a matter of law that the absence of certain records and the existence of certain records

[00:12:51] Speaker 02:
is absolutely something that the special master has to understand to be accurate.

[00:12:58] Speaker 00:
Certainly we are not suggesting that as a matter of law the court or the special master was required to credit medical records over later in time.

[00:13:06] Speaker 00:
Lack of medical records.

[00:13:08] Speaker 00:
Sure, but I would disagree with your characterization that certainly there are circumstances where the facts

[00:13:14] Speaker 00:
would support a determination that a medical record was not kept in an accurate place.

[00:13:19] Speaker 02:
I'm asking you whether, I understand what you're saying, there's facts.

[00:13:22] Speaker 00:
Okay, go ahead, I don't want to interrupt you, but I want to make sure you answer the question whether you think there's a possible reasoned basis on this record.

[00:13:31] Speaker 00:
First of all, there's no reasoned basis whatsoever, like the record is silent, but if we assumed what you suggested, I think that we still have the inferences that are unreasonable to draw that make

[00:13:43] Speaker 00:
It's hard because there isn't an actual explanation.

[00:13:47] Speaker 00:
So in order to infer, obviously the special master would have had to have inferred that the person at the front desk did not accurately record that Sean Quavius presented for his appointment.

[00:13:57] Speaker 00:
She would have erroneously documented him as a no-show.

[00:14:00] Speaker 00:
But you would also have to infer that Dr. Olligod would have failed to keep

[00:14:05] Speaker 00:
a record of a patient encounter, which he is required to do under North Carolina law, in which he testified there is no situation in which he would not create a medical record.

[00:14:16] Speaker 00:
So you would have to reject that.

[00:14:18] Speaker 00:
He also, you would also have to infer that he did not keep a vaccination record, which is required under section 25 of the Vaccine Act, all healthcare providers.

[00:14:27] Speaker 02:
But Dr. Ihergood said often he does not.

[00:14:29] Speaker 02:
provide the flu shots and that while he would know of it, someone else would be providing that record.

[00:14:37] Speaker 00:
Is that correct?

[00:14:39] Speaker 00:
Any health care provider, a pharmacist, the nurse, whoever administers, so you would have to assume that a vaccination record was not created by a health care provider in contravention of the statute.

[00:14:50] Speaker 00:
The other aspect, as I agree with you, that the special master credited Ms.

[00:14:56] Speaker 00:
Hinton's testimony because she said it was extremely detailed and fact specific, and specifically in terms of the account of the events that occurred on the 21st.

[00:15:05] Speaker 00:
And one of those accounts of what happened, what transpired during that appointment was she claimed that she

[00:15:13] Speaker 00:
refilled her son's trazodone prescription in a face-to-face conversation.

[00:15:18] Speaker 00:
She described a conversation with Dr. Alligood about having only a few pills left, and she explicitly... Is there a medical... Is there any record?

[00:15:27] Speaker 02:
I know there's a record that a call occurred on December 23rd.

[00:15:30] Speaker 02:
That's correct.

[00:15:30] Speaker 02:
But ma'am, is there a record that that call was made not to say, hey, I was just there two days ago.

[00:15:39] Speaker 02:
Indeed there is.

[00:15:39] Speaker 02:
And could you... The record itself.

[00:15:41] Speaker 00:
It reflects an incoming... Please don't interrupt me.

[00:15:44] Speaker 02:
I want to make sure... Your case is very important to me.

[00:15:46] Speaker 02:
I apologize.

[00:15:47] Speaker 02:
So I want to make sure that I'm able to ask you my questions.

[00:15:50] Speaker 02:
Please don't interrupt me.

[00:15:50] Speaker 02:
I apologize.

[00:15:51] Speaker 02:
Because what I want to say is this.

[00:15:53] Speaker 02:
is I think it's not unheard of for somebody to have to call a doctor's office a couple days after a visit to say, hey, I never got that prescription you said you were going to fill for me.

[00:16:06] Speaker 02:
I don't think that that's unheard of.

[00:16:08] Speaker 02:
And so where in the record does it say that there was a call to request a prescription versus a call to?

[00:16:17] Speaker 02:
You understand what I'm concerned about.

[00:16:19] Speaker 02:
I'm not sure the record.

[00:16:20] Speaker 02:
Where does the record clearly say, you know, this call is because, you know, they needed a refill only not to remind us of a refill.

[00:16:29] Speaker 02:
The, I know I looked at the record.

[00:16:31] Speaker 02:
I don't, the page.

[00:16:33] Speaker 00:
The record specifically references an incoming call from Ms.

[00:16:37] Speaker 00:
Hinton to request a medication refill.

[00:16:41] Speaker 00:
And in order.

[00:16:42] Speaker 02:
How do you know that that's not a reminder?

[00:16:44] Speaker 02:
Hey, I was there.

[00:16:45] Speaker 00:
She denied placing a call to request a prescription refill.

[00:16:51] Speaker 00:
She said I don't know.

[00:16:52] Speaker 00:
No.

[00:16:52] Speaker 00:
Her testimony specifically.

[00:16:55] Speaker 00:
On page 141 and 142, question, did you call Dr. Alligood's office on December 23rd, 2015 to request a refill of the trazoderm?

[00:17:03] Speaker 00:
Answer, no.

[00:17:04] Speaker 00:
So you do dispute the medical record.

[00:17:06] Speaker 00:
Answer, yes.

[00:17:07] Speaker 02:
So you're saying you did not call Dr. Alligood's office to request a prescription refill on December 23rd.

[00:17:15] Speaker 02:
Answer, no.

[00:17:16] Speaker 02:
Correct.

[00:17:17] Speaker 02:
She's saying, it says you're saying you did not call and she said no.

[00:17:23] Speaker 02:
Please look at page A142, lines 22 to 25.

[00:17:27] Speaker 02:
I agree that you are correct that at first she said I didn't, but then she changed it and she said, she answered a question that was you did not call and she said no, suggesting she did call.

[00:17:42] Speaker 02:
I don't agree with your- Witnesses are allowed to change their minds every day.

[00:17:45] Speaker 00:
I don't agree with the characterization of this record.

[00:17:50] Speaker 02:
I'm just reading the question.

[00:17:52] Speaker 02:
Maybe I'm wrong.

[00:17:53] Speaker 00:
Tell me- I think, respectfully, I do think you are incorrect.

[00:17:56] Speaker 00:
I do believe so.

[00:17:57] Speaker 02:
Okay, so it's-

[00:17:59] Speaker 01:
I absolutely apologize.

[00:18:07] Speaker 04:
My concern is about running out of time.

[00:18:14] Speaker 04:
I apologize.

[00:18:14] Speaker 04:
I apologize.

[00:18:16] Speaker 02:
If you stop interrupting, you won't have to apologize.

[00:18:18] Speaker 02:
Thank you.

[00:18:19] Speaker 02:
I'll read the testimony to me, and then you tell me if it's accurate or how you're understanding it.

[00:18:24] Speaker 02:
The question, so you're saying you did not call Dr. Ellicott's office to request a prescription refill of, I'm not going to say the medication, on December 23rd, 2015.

[00:18:36] Speaker 02:
And the answer is no.

[00:18:43] Speaker 00:
Now, why isn't that a yes?

[00:18:45] Speaker 00:
Because if we look to the preceding, the beginning.

[00:18:48] Speaker 00:
Was there a follow-up question?

[00:18:49] Speaker 00:
It's a preceding question.

[00:18:52] Speaker 00:
On page 141 by Ms.

[00:18:54] Speaker 00:
Hartley, question, did you call Dr. Olligod's office on December 23rd, 2015 to request a refill of the trazoderm?

[00:19:03] Speaker 00:
Answer, no.

[00:19:05] Speaker 00:
Okay, so you do dispute the medical record.

[00:19:08] Speaker 00:
Answer, yes, I didn't call Dr. Olligod.

[00:19:12] Speaker 00:
This later statement that you're referring to is counsel reaffirming that that is, in fact, her testimony that she did not call Dr. Alligand regarding that trazodone prescription.

[00:19:24] Speaker 02:
But the answer would have been yes, wouldn't it?

[00:19:26] Speaker 00:
I don't think that's how she understood the question.

[00:19:29] Speaker 04:
In deciding these cases, Ms.

[00:19:32] Speaker 04:
Wade, there's always some evidence that points against the petition.

[00:19:37] Speaker 04:
And there's evidence that points the other way.

[00:19:39] Speaker 04:
So it's a balance.

[00:19:40] Speaker 04:
So let's just assume reverse of argument that you're right on this particular issue.

[00:19:44] Speaker 04:
This is one episode that's not helpful to Ms.

[00:19:48] Speaker 04:
Hinton.

[00:19:49] Speaker 04:
Let me just back up to the law we have here.

[00:19:52] Speaker 04:
We generally like to treat medical records as being accurate.

[00:19:58] Speaker 04:
But our Tarsh law over the years has recognized there's no presumption that that's true because mistakes happen.

[00:20:05] Speaker 04:
Right?

[00:20:06] Speaker 04:
No, I would disagree with that.

[00:20:07] Speaker 04:
Mistake.

[00:20:08] Speaker 04:
Some medical records are either inaccurate and incomplete or somebody forgets to put one in.

[00:20:14] Speaker 04:
Otherwise, we would have a rule that says medical records are presumptively correct.

[00:20:19] Speaker 00:
I think that there is a general, the medical records, because statements are provided for purposes of treatment and information is documented with diagnosis and treatment hanging in the balance, there is a presumption that the information contained in medical records, it is not an irrebuttable presumption,

[00:20:41] Speaker 00:
I think in Kirby, this court rejected the presumption that the records that are silent are necessarily indicative that the record contains all of the medical ailments that a person might be experiencing.

[00:20:56] Speaker 00:
And in that case, the court made a specific, I guess, an illustration that

[00:21:04] Speaker 00:
a patient who presents to a doctor for a heart attack is unlikely to mention, for example, that they're experiencing a runny nose, nor is a doctor likely to document that.

[00:21:13] Speaker 00:
So they're not necessarily presumed to be complete.

[00:21:16] Speaker 00:
But I would submit that when Sean Quavius Hinton was being treated for GBS, when he was hospitalized for the inability to walk, that at that point in time,

[00:21:25] Speaker 00:
the information that is contained in those medical records, that would have been at the peak, I guess, of relevance for his diagnosis and treatment.

[00:21:33] Speaker 00:
And there are not one, but two, affirmative representations.

[00:21:37] Speaker 04:
Well, when he first came to the hospital in January, he wasn't being treated for GBS.

[00:21:40] Speaker 04:
That's correct.

[00:21:41] Speaker 04:
They hadn't made the diagnosis.

[00:21:42] Speaker 04:
That's correct.

[00:21:43] Speaker 04:
His first symptom occurred.

[00:21:45] Speaker 04:
Certainly.

[00:21:45] Speaker 04:
The feet at that time, right?

[00:21:48] Speaker 04:
Well, all I'm trying to get at is that I think as a

[00:21:52] Speaker 04:
general proposition, medical records are obviously preferred and probably maybe, are they presumptively correct?

[00:21:58] Speaker 04:
Is that what you're trying to say?

[00:21:59] Speaker 00:
I think that when there is affirmative, this court has recognized that the absence of a reference in a medical record is far less significant than a reference that negates the existence of a condition or circumstance.

[00:22:12] Speaker 00:
And here we have multiple.

[00:22:14] Speaker 00:
We have obviously the original record from December 21 indicating that Sean Cuevas was a no show.

[00:22:20] Speaker 00:
crediting that we would assume there's no vaccination took place.

[00:22:24] Speaker 04:
But then subsequently, let's assume so you can see where I am.

[00:22:29] Speaker 04:
I think the record is sufficient to support the fact that she showed up on the 21st.

[00:22:35] Speaker 04:
And I'm just telling you, I'm telling you a reason why I'm not going to let you argue against him.

[00:22:39] Speaker 04:
I want to start with that proposition.

[00:22:41] Speaker 04:
OK, so the question came up about October 21st.

[00:22:45] Speaker 04:
The doctor said, oh, yeah, I remember at first there was a meeting in August.

[00:22:49] Speaker 04:
There was August and then December, right?

[00:22:52] Speaker 04:
There was an appointment in July?

[00:22:54] Speaker 04:
There was an appointment in August.

[00:22:56] Speaker 04:
Okay, July, August, and then the question is, is there going to be one later, come back and get the pills or whatnot?

[00:23:01] Speaker 04:
So the question is, did it occur on the 21st?

[00:23:05] Speaker 04:
And the doctor says, yeah, I remember about that time.

[00:23:08] Speaker 04:
He remembers meeting after August.

[00:23:12] Speaker 04:
He clearly says, I remember meeting with her when he said around that time.

[00:23:17] Speaker 04:
It has to be after the August meeting.

[00:23:20] Speaker 04:
Okay, so that's where Clevenger is.

[00:23:23] Speaker 04:
Okay, and then I say to myself, there was evidence of the record about, she says, at that meeting on the 21st, he told me about his future plans, told me he's gonna go to a private practice over someplace else in North Carolina, right?

[00:23:38] Speaker 04:
She says that's what he told me.

[00:23:40] Speaker 04:
He testified that he told her at that meeting, whenever it was, after August, that he told her about his future plans.

[00:23:50] Speaker 04:
That's in the record.

[00:23:52] Speaker 04:
So I'm saying there is, to me, since he says, I did have that meeting, and at that meeting we talked about something very specific, and he agrees that they talked about that specific thing at that meeting, whatever happened, she says it was at 21st.

[00:24:07] Speaker 04:
I'm ready to say it happened.

[00:24:12] Speaker 04:
So I'm willing to throw out the no show.

[00:24:16] Speaker 04:
I mean, I put the no show in the balance.

[00:24:18] Speaker 02:
Given our standard of review, we are not the fact finder.

[00:24:21] Speaker 04:
I'm just saying, so in the record, I have clear evidence that he admits that he met with her and he isn't disagreeing it was the 21st.

[00:24:31] Speaker 04:
He didn't say it couldn't possibly have been the 21st.

[00:24:34] Speaker 04:
So I'm saying the meeting happened on the 21st.

[00:24:37] Speaker 04:
So that throws the no show record out.

[00:24:42] Speaker 04:
So then what's left is we have

[00:24:45] Speaker 04:
four medical records, two of which indicate the vaccine was not given, and two of which indicate that it was given, right?

[00:24:54] Speaker 04:
Which records?

[00:24:55] Speaker 04:
We have the medical, I'm talking about real medical records now.

[00:24:58] Speaker 04:
I'm not talking about hospital, but I'm talking about whether or not he got the vaccine, which is the key question.

[00:25:05] Speaker 04:
I'm not sure I appreciate the distinction between the medical records and hospital records.

[00:25:08] Speaker 04:
Well, whether or not she got her prescription refilled is irrelevant to the question of whether or not the vaccine was given.

[00:25:16] Speaker 04:
The question on one of the, the only evidence in the record about when the vaccine was given, documentary evidence about the delivery of the vaccine and the evidence that's in the record is the two statements that happened when they went in at the hospital when right after in January, February, and those two records indicate that there was not a vaccination.

[00:25:38] Speaker 04:
And then later in the rehab in April or whatever, right after she's retained counsel,

[00:25:45] Speaker 04:
She goes in and there are two records that indicate the vaccine was given, based on what she told the person who's writing stuff down.

[00:25:52] Speaker 04:
But that is a medical record.

[00:25:54] Speaker 04:
It was written down.

[00:25:55] Speaker 04:
The person that wrote it down didn't say, well, are you really sure about that?

[00:25:58] Speaker 04:
Here, let me go look at the records.

[00:26:00] Speaker 04:
They accepted it as true.

[00:26:02] Speaker 04:
Her testimony has been validated 100% truthful.

[00:26:06] Speaker 04:
The special master made a demeanor-based credibility determination of this woman

[00:26:13] Speaker 04:
tells the truth, and that this woman has a fantastic memory, yada, yada, yada, okay?

[00:26:19] Speaker 04:
So those two pluses for Ms.

[00:26:21] Speaker 04:
Hinton are really strong.

[00:26:24] Speaker 04:
And really strong, and that's gonna wipe away when he says she's got perfect recollection about what went over.

[00:26:31] Speaker 04:
That's gonna wipe out any other evidence of anybody who's trying to worth that.

[00:26:36] Speaker 00:
If I may, if we assume that that is true, and I agree that the special master did credit her testimony whole cloth.

[00:26:45] Speaker 00:
We also have to credit her testimony that she did not contact Dr. Alligod to request a refill of her son's prescription.

[00:26:53] Speaker 00:
So we have to infer that Dr. Alligod, not just that he just simply didn't create a record of a patient visit, didn't create a vaccination record, didn't bill for services performed, didn't seek reimbursement from insurance for the services that he performed that day.

[00:27:10] Speaker 00:
but also that two days later somebody in his office created a phone record of a phone call.

[00:27:17] Speaker 04:
And you didn't put any evidence, you didn't put any evidence out at all, right?

[00:27:21] Speaker 04:
You had no direct witnesses at the trial.

[00:27:25] Speaker 00:
There was a fact, there was a fact hearing and then there was a deposition of Dr. Olligan.

[00:27:30] Speaker 00:
So it's possible.

[00:27:31] Speaker 04:
You didn't propose a witness coming in on behalf of you.

[00:27:35] Speaker 04:
You basically cross-examined

[00:27:39] Speaker 04:
I'm not sure that I understand the question.

[00:27:41] Speaker 04:
The doctor gave a deposition?

[00:27:42] Speaker 04:
He didn't write?

[00:27:43] Speaker 04:
That's correct.

[00:27:44] Speaker 04:
And who called him for the deposition?

[00:27:46] Speaker 02:
I believe it was the petitioner's attorney.

[00:27:49] Speaker 02:
So one possibility would be that you felt that the evidence was so strong that you made a strategic decision to not bring somebody in, say from, is it Vedant?

[00:28:01] Speaker 02:
Is that the name of the medical provider?

[00:28:03] Speaker 02:
That's the name of the company?

[00:28:05] Speaker 02:
Yeah.

[00:28:06] Speaker 02:
could have brought somebody in to testify, for example, and talk about how that particular facility at that location, I don't know anything about it because there's nothing in the record, but that it was one that had 100% accurate or 99% accurate record keeping or something.

[00:28:24] Speaker 02:
But I think there was a strategic decision, obviously,

[00:28:29] Speaker 02:
legitimately made because I understand you have a strong case below.

[00:28:34] Speaker 02:
You really did.

[00:28:34] Speaker 02:
I totally understand that.

[00:28:37] Speaker 02:
It's a very strong case.

[00:28:40] Speaker 02:
So a decision seems to have been made to just rely on the cross-examination of Ms.

[00:28:45] Speaker 02:
Hinton.

[00:28:46] Speaker 02:
Is that correct?

[00:28:49] Speaker 00:
I'm not sure that I would characterize it that way.

[00:28:54] Speaker 00:
Okay, but was evidence provided?

[00:28:55] Speaker 02:
Did you provide evidence about how VDAN, in that location, there was somebody to talk about the great records that they keep?

[00:29:04] Speaker 00:
There was no custodian of records.

[00:29:06] Speaker 00:
The records, once they are obtained and filed, usually come with a certificate of service that they are essentially maintained in the way that the provider

[00:29:17] Speaker 00:
ordinarily keeps those records, so they're certified.

[00:29:20] Speaker 02:
The lack of records, for example, do we give a presumption of validity to a lack of records?

[00:29:26] Speaker 00:
I guess we don't have a lack of records.

[00:29:29] Speaker 00:
We have an affirmative record that indicates that she did not show for the appointment.

[00:29:34] Speaker 02:
I hear you, but you're also relying on the absence of a bill sent to Medicaid.

[00:29:43] Speaker 02:
You're relying on the absence of a notice sent to the state.

[00:29:49] Speaker 02:
If I'm wrong, you are in fact relying on the absence of documents.

[00:29:53] Speaker 02:
So could you address my question now?

[00:29:55] Speaker 02:
I guess I'm missing a misunderstanding of the question.

[00:29:58] Speaker 02:
I apologize.

[00:29:58] Speaker 02:
I asked if there was a presumption that's provided to the absence of medical records or billing records.

[00:30:07] Speaker 00:
I'm not aware of a presumption that attaches to the absence of any evidence.

[00:30:15] Speaker 00:
But I would submit that it's not simply, not only do we have an affirmative document that Ms.

[00:30:21] Speaker 00:
Hinton did not present for this appointment,

[00:30:24] Speaker 04:
That's the notion.

[00:30:26] Speaker 00:
That's the notion.

[00:30:27] Speaker 00:
When we get to February of 2016, the context of the records in which Ms Hinton is reported to have indicated that her son did not receive the flu vaccination is worthy of consideration.

[00:30:41] Speaker 00:
Those are on pages 227 and 228.

[00:30:45] Speaker 00:
Ms Hinton was present with her son and her son's father in the room

[00:30:51] Speaker 00:
with a team of residents, including Dr. Robin Collins, who took the history from Ms.

[00:30:57] Speaker 00:
Hinton.

[00:30:58] Speaker 00:
She attested to that.

[00:30:59] Speaker 00:
That is demonstrated in the records.

[00:31:01] Speaker 00:
He documented that, according to the responses given by Ms.

[00:31:08] Speaker 00:
Hinton, that her son did not receive a flu vaccination.

[00:31:12] Speaker 00:
This was in January?

[00:31:13] Speaker 00:
This was in February.

[00:31:14] Speaker 00:
February.

[00:31:15] Speaker 00:
Yes.

[00:31:16] Speaker 00:
February 15th.

[00:31:18] Speaker 00:
That assessment

[00:31:20] Speaker 00:
was reviewed in that, say, in the patient's room by the supervising physician in the presence of all of the residents, both of the parents and the child on what are called family-centered rounds.

[00:31:34] Speaker 00:
And while present, that supervising physician reviewed the assessment and examined Sean Quavius Hinton himself

[00:31:43] Speaker 00:
and concurred that the assessment was accurate.

[00:31:47] Speaker 02:
And it's your view that the special master acted arbitrarily and capriciously by not crediting that document over the contrary testimony of Ms.

[00:31:57] Speaker 02:
Hinton as well as the answer she gave later to the physical therapist providers, right?

[00:32:06] Speaker 02:
The specific

[00:32:10] Speaker 02:
I'm just trying to understand your argument.

[00:32:11] Speaker 00:
There are two.

[00:32:12] Speaker 00:
There are two.

[00:32:13] Speaker 00:
One is that she did not explain why she found any of those records to be uncredible.

[00:32:20] Speaker 00:
As in Sanchez versus Health and Human Services, I think that is sufficient to fail to explain why you're rejecting evidence.

[00:32:27] Speaker 02:
But I had asked you earlier if you thought there was anything on this record.

[00:32:31] Speaker 02:
that she would provide that you'd consider a reasoned basis and you said no.

[00:32:36] Speaker 00:
I agree with the reasoning in Sanchez versus Health and Human Services that in that case the special master did not provide a sound basis for their decision to reject the evidence and this court determined that the finding could not be reconciled with the record and I would argue that is true here.

[00:32:57] Speaker 02:
Right, so it's your view that, again, it's your view I understand

[00:33:01] Speaker 02:
as a special master by finding Ms.

[00:33:06] Speaker 02:
Hinton's testimony credible and crediting her account of what happened, was unable to provide a reasoned basis for why those documents

[00:33:18] Speaker 02:
were incorrect.

[00:33:20] Speaker 00:
Correct.

[00:33:21] Speaker 00:
And I agree that while there is essentially a rebuttable presumption, it's not always the case that medical records are going to be accurate.

[00:33:33] Speaker 00:
but given the indicia of reliability that attach to contemporaneous records because of the circumstances under which they are made, that if the court, the special master had an obligation to explain its departure from this court's guidance on that, and we don't have any recognition in the special master's decision that she even considered that the contemporaneous records.

[00:33:56] Speaker 02:
Did you cross-examine Ms.

[00:33:57] Speaker 02:
Hinton on why she gave those answers?

[00:34:00] Speaker 02:
In terms of which answers?

[00:34:02] Speaker 02:
Was Ms.

[00:34:03] Speaker 02:
Hinton-Cross examined on why she gave the answers when she was in the hospital and her son was in the emergency room?

[00:34:10] Speaker 00:
She was.

[00:34:11] Speaker 00:
She denied that she gave that answer.

[00:34:14] Speaker 00:
She testified that she was asked.

[00:34:16] Speaker 00:
She in fact confirmed the circumstances that are described in the medical record that there were teams of residents around and that she

[00:34:23] Speaker 00:
She was specifically asked, did you provide his medical history to the physicians on that day?

[00:34:29] Speaker 00:
And she answered, I answered what they asked me, yes.

[00:34:33] Speaker 00:
But she, according to her testimony, she advised a room full of residents and an overseeing physician that her son did receive the vaccination.

[00:34:43] Speaker 00:
And according to her, Dr. Collins wrote that down incorrectly in the assessment.

[00:34:48] Speaker 02:
So it was arbitrary and capricious for the special master to credit that testimony.

[00:34:53] Speaker 02:
I believe it.

[00:34:54] Speaker 02:
Find it believable.

[00:34:58] Speaker 00:
So there's two parts again.

[00:34:59] Speaker 00:
She didn't rationally explain why she rejected it, but I would also argue.

[00:35:03] Speaker 02:
Wouldn't the reason be the reason why I'm rejecting it is because I find her credible and she said that I gave a different answer.

[00:35:09] Speaker 00:
I don't think that because this is not a situation where the records are silent.

[00:35:14] Speaker 00:
So the fact that she found Ms.

[00:35:16] Speaker 00:
Hinton credible is not

[00:35:18] Speaker 00:
a step does not speak to why she found these records incredible.

[00:35:25] Speaker 00:
And she did not explain given the fact that they are created under these circumstances.

[00:35:29] Speaker 00:
It's just I would and this is obviously the argument that I'm making that I don't believe that the record as a whole really can be rationalized with her decision to credit Miss Hinton

[00:35:41] Speaker 00:
because we have an affirmative record that they did not appear, because the inferences from that include all of these other ordinary steps that it's frankly not plausible to assume that a physician is simply not going to create a record of a medical... Judge Cunningham has a question.

[00:35:55] Speaker 00:
Yes, Judge Cunningham, thank you.

[00:35:56] Speaker 00:
Judge Cunningham, my apologies.

[00:35:59] Speaker 01:
So it sounds like what you're contending is almost by definition you have to believe physicians or medical staff over ordinary lay people because of the steps that you say they go through in terms of how they document things.

[00:36:15] Speaker 01:
Can you tell me if that is your contention, if not why it is not?

[00:36:19] Speaker 00:
It is not my contention that there is an obligation.

[00:36:22] Speaker 00:
There is an expectation that medical records will be accurate.

[00:36:27] Speaker 00:
It is rebuttable.

[00:36:28] Speaker 00:
There are circumstances where a court can consider where the evidence suggests a Scrivener's error.

[00:36:35] Speaker 00:
But my contention here is that this is far more than just a Scrivener's error.

[00:36:39] Speaker 00:
Not only do you have to essentially presume that this doctor just failed to keep a record,

[00:36:45] Speaker 00:
didn't bill for his services, that there's a phone record that was manufactured documenting a phone call that Ms.

[00:36:53] Speaker 00:
Hinton swears she did not place, testimony which the special master credited.

[00:36:58] Speaker 00:
So you have to also infer that that phone record was simply manufactured by a member of Dr. Alligood's staff.

[00:37:05] Speaker 00:
But then you carry over, we have a completely separate medical provider that is not related to Dr. Olligan's office who is evaluating this child for Guillain-Barre syndrome, which I would submit is more like the heart attack than the running nose.

[00:37:21] Speaker 00:
Dr. Collins was very interested in the history of this child, including whether he suffered any pre-existing viral syndrome or viral symptoms that might explain the onset of his polyneuropathy.

[00:37:34] Speaker 00:
They would have been interested in whether or not he received a flu vaccination.

[00:37:40] Speaker 00:
because of the correlation of between flu vaccines and GBS.

[00:37:45] Speaker 00:
So to suggest that they would have in a room full of people received information that he received a flu vaccination but then documented that incorrectly and that that assessment would be reviewed by a supervising physician who attested to its accuracy that he also would have made that mistake

[00:38:02] Speaker 00:
That I think is, those are the unreasonable inferences that I'm referring to.

[00:38:07] Speaker 04:
At what stage in the proceedings did GBS become a table injury?

[00:38:11] Speaker 04:
I believe 2017.

[00:38:12] Speaker 00:
I believe 2017.

[00:38:14] Speaker 00:
I thought it was after the petition had been filed in this case.

[00:38:18] Speaker 00:
It would have been after the petition was filed in this case.

[00:38:21] Speaker 04:
And that would be after the time that the doctors were beginning to examine him for possible GBS.

[00:38:32] Speaker 00:
I think that's fair.

[00:38:32] Speaker 04:
Afterwards.

[00:38:33] Speaker 00:
Sure.

[00:38:36] Speaker 00:
Okay.

[00:38:36] Speaker 00:
Um, but I will say that even prior to the addition of the flu GBS claim to the table, there were claims based on flu, um, causing GBS in the vaccine program.

[00:38:47] Speaker 00:
And there is literature.

[00:38:48] Speaker 00:
Causation in fact cases.

[00:38:49] Speaker 00:
Yes.

[00:38:49] Speaker 00:
And there is also literature that predates the addition to the table.

[00:38:53] Speaker 04:
You have a situation where, I mean, you have this particular patient clearly has what sure looked like a first symptom of GBS.

[00:39:01] Speaker 04:
within the table time for the administration of the flu vaccine.

[00:39:05] Speaker 04:
And you're kind of saying, well, what else caused this GBS?

[00:39:10] Speaker 00:
Well, there are a lot of other causes.

[00:39:12] Speaker 00:
And in fact, most of the times no cause is identified.

[00:39:15] Speaker 00:
But certainly the what's I think important for our purposes is that the staff are interested in investigating his prior medical history, including whether or not he had any flu like symptoms or signs of illness that would potentially explain the causes.

[00:39:30] Speaker 00:
I see the judge.

[00:39:32] Speaker 00:
Yes.

[00:39:32] Speaker 00:
Thank you.

[00:39:33] Speaker 00:
Do you acknowledge that there's a link between the flu vaccine and GBS?

[00:39:39] Speaker 00:
It is not necessary for our purposes because it is a table injury.

[00:39:45] Speaker 00:
So causation is presumed in these circumstances, which is why there was no further attempt to defend against this claim.

[00:39:56] Speaker 02:
OK, thank you.

[00:40:02] Speaker 02:
Let's hear from Miss Maglio.

[00:40:20] Speaker 03:
May it please the court.

[00:40:22] Speaker 03:
Jennifer Malio on behalf of the appellee, Tramella Hinton, who serves as the guardian of her son, Sean.

[00:40:30] Speaker 03:
Appellee agrees with the pound.

[00:40:32] Speaker 04:
I mean your name is not on the brief.

[00:40:35] Speaker 04:
Are you related to the firm that was wrote the brief?

[00:40:40] Speaker 03:
What is your relationship?

[00:40:43] Speaker 03:
Yes, sir.

[00:40:44] Speaker 03:
The Federal Circuit briefs were written by my firm.

[00:40:47] Speaker 03:
I was on sabbatical at the time that the briefs were written, so I am not on the briefing.

[00:40:51] Speaker 03:
However, I returned from sabbatical and assumed the case.

[00:40:55] Speaker 04:
Okay, great.

[00:40:55] Speaker 04:
So you're with Mr. Christian's firm?

[00:40:57] Speaker 03:
Yes, I am.

[00:40:57] Speaker 04:
Oh, thank you very much.

[00:40:58] Speaker 03:
You're welcome, sir.

[00:41:02] Speaker 03:
Appellant objects to a single fact finding made by the special master and affirmed by the court of federal claims.

[00:41:08] Speaker 03:
And that is the finding that we've discussed that the flu vaccine was given on December 21st, 2015.

[00:41:13] Speaker 03:
As this court has pointed out, appellant seeks a reweighing of the evidence presented to the special master and asks this court to find that the absence of a medical record of the actual vaccination outweighs the other evidence that the special master relied upon.

[00:41:29] Speaker 03:
This argument is contrary to the Vaccine Act and to this court's precedent.

[00:41:33] Speaker 03:
in two main respects.

[00:41:35] Speaker 03:
First, this court does not reweigh evidence or redetermine fact issues.

[00:41:39] Speaker 02:
Council, I hear the government's argument as being that there's a multitude of documents or absence of documents that you have to agree happened, like four or five missteps happened in this case, and that

[00:42:02] Speaker 02:
That's just too many missteps.

[00:42:05] Speaker 02:
And so the special master just was unreasonable in thinking that there could be so many, you know, there's the record of the no show has to be correct.

[00:42:15] Speaker 02:
The failure to have a billing record is incorrect.

[00:42:18] Speaker 02:
The failure to have a record reporting the vaccine is incorrect.

[00:42:24] Speaker 02:
The failure to have documentation with a summary of the visit is incorrect.

[00:42:28] Speaker 02:
It's the multitude.

[00:42:30] Speaker 02:
of these errors that had to have occurred for the special master to have made the finding that she made is the problem and what makes it arbitrary capricious.

[00:42:40] Speaker 02:
Could you address that?

[00:42:42] Speaker 03:
Absolutely.

[00:42:43] Speaker 03:
So the Special Master did rely on a lot of evidence in the record.

[00:42:47] Speaker 03:
However, there is the contradictory evidence, which the Special Master acknowledged and discussed.

[00:42:52] Speaker 03:
And what Appellant has pointed out is that there are these implausible inferences.

[00:42:59] Speaker 03:
Appellant argues that these inferences arise from the decision.

[00:43:02] Speaker 03:
But the Pallet case talks about, when it talks about implausible inferences, it talks about things that are in the actual decision, reasoning in the decision.

[00:43:11] Speaker 03:
Here we're talking about items that appellant has found in their briefing, but not actually in the decision.

[00:43:18] Speaker 03:
And those are the things we're talking about, the no-show record.

[00:43:22] Speaker 03:
Again, if you look at Kirby, Kirby talks about how acknowledges that physician's records may be incorrect, that clerical mistakes can be made.

[00:43:32] Speaker 03:
And so it's with the evidence that cooperates that the doctor's office had no formal check-in procedure, there is supportive evidence for the notion that there was a clerical mistake made in the no-show record.

[00:43:45] Speaker 04:
And there's no there's no evidence that a current mistake was made.

[00:43:50] Speaker 03:
No.

[00:43:50] Speaker 04:
And there's an allegation.

[00:43:52] Speaker 04:
That's your point.

[00:43:54] Speaker 03:
I would submit that it's it's a speculation on either side.

[00:43:58] Speaker 03:
But there is corroborating evidence for that to have been a possibility based on the fact that both the doctor testified that he had no formal check in procedure and Miss Hinton testified that there was no formal check in procedure.

[00:44:11] Speaker 03:
And the items that follow from that, those inferences we're discussing that follow from that, the lack of billing records, the lack of vaccine administration record, those also follow from a no-show record.

[00:44:25] Speaker 03:
I mean, if there's no visit in the computer, I'm sorry.

[00:44:29] Speaker 04:
Part of the problem we have here is that there's no evidence in the record about the quality of record keeping in Dr. Alligand's office starting at noon on the last day of his practice in that facility.

[00:44:41] Speaker 04:
Right, so there's nobody, we don't know whether he was.

[00:44:44] Speaker 04:
very, very accurate in the patients that he saw before three o'clock in the afternoon, and then we don't know that.

[00:44:51] Speaker 03:
Exactly.

[00:44:51] Speaker 03:
Exactly.

[00:44:52] Speaker 03:
We have a record that doesn't have a lot of information about any of the procedures, either the procedures of record keeping in Dr. Alligood's office or in the hospital.

[00:45:01] Speaker 03:
And so what Appellant has done in their briefing is filled in the gaps with assumptions of what happened and attributed those assumptions to the special master.

[00:45:12] Speaker 03:
looking at the hospital record, which we've discussed at Lane, Appendix 227 and 228, that February 15th hospital record.

[00:45:24] Speaker 03:
Appellant has given a story of how, has given an explanation of how this occurred in rounds.

[00:45:31] Speaker 03:
There were many residents.

[00:45:32] Speaker 03:
The resident listens carefully.

[00:45:34] Speaker 03:
We don't have any testimony or any record that reflects that.

[00:45:37] Speaker 04:
The only record we have is that... You heard your adversary's speech on this very topic about this February meeting.

[00:45:44] Speaker 04:
Was she making that up?

[00:45:48] Speaker 04:
She was

[00:45:49] Speaker 04:
I mean, that's a little majority, but I mean, you're saying there was no testimony to that?

[00:45:54] Speaker 03:
There's no testimony.

[00:45:55] Speaker 03:
The only thing we have are the pages of the actual note.

[00:45:58] Speaker 04:
We have the written record.

[00:46:00] Speaker 03:
We have the written note.

[00:46:01] Speaker 03:
We don't have any testimony or any other explanation of how that record was created or maintained.

[00:46:08] Speaker 02:
We have Ms.

[00:46:08] Speaker 02:
Hinton's testimony.

[00:46:10] Speaker 03:
We have Ms.

[00:46:10] Speaker 03:
Hinton's testimony.

[00:46:11] Speaker 02:
I think the government might be relying on her testimony describing that there were so many people.

[00:46:15] Speaker 04:
But we don't have, for example, the doctors who were examining the young man on this time.

[00:46:19] Speaker 04:
We don't have them on the stand saying, you know, I specifically, or I looked at the records and I asked her, was he vaccinated?

[00:46:26] Speaker 04:
And she said, no, none of that exists.

[00:46:28] Speaker 04:
Just the cold record, right?

[00:46:30] Speaker 03:
Absolutely.

[00:46:31] Speaker 03:
Yes.

[00:46:32] Speaker 03:
And what we have in Ms.

[00:46:33] Speaker 03:
Hinton's testimony is Ms.

[00:46:34] Speaker 03:
Hinton saying she spoke with the interns.

[00:46:37] Speaker 03:
So Ms.

[00:46:38] Speaker 03:
Hinton simply says she spoke with the interns and they asked her if there was a flu vaccine and she answered yes.

[00:46:43] Speaker 03:
What the medical record that we have in the appendix and the record is that this resident, not an intern, this resident, and it says, face-to-face, I reviewed.

[00:46:57] Speaker 03:
And she lists the items she reviewed with the family.

[00:46:59] Speaker 03:
And they're abbreviations.

[00:47:02] Speaker 03:
So again, I am assuming that the brief.

[00:47:04] Speaker 02:
What page are you looking at?

[00:47:05] Speaker 03:
At 227, appendix 227.

[00:47:08] Speaker 03:
And it's about a third of the way down under the personally examined on 215.

[00:47:13] Speaker ?:
OK.

[00:47:14] Speaker 03:
And it says, face-to-face, I reviewed the CC HPI, and it lists all these abbreviations, which, again, this is, I have to say, my assumption that CC meets, matches, lower down on the page where it says Chief Complaint.

[00:47:29] Speaker 03:
And so you see these abbreviations line up with sort of the section headings of the note.

[00:47:34] Speaker 03:
But there is a section heading that says immunizations, and that's what the key item we're relying on in this note.

[00:47:41] Speaker 03:
And that is immunizations up to date did not receive flu vaccine.

[00:47:46] Speaker 03:
But the resident's note at the beginning does not say that she reviewed the immunizations.

[00:47:53] Speaker 03:
It says all the things she reviewed, but it doesn't say she reviewed immunizations.

[00:47:59] Speaker 03:
And so I would say that there are, we can all speculate as to what the resident did, but the only evidence we have is the testimony of Ms.

[00:48:09] Speaker 03:
Hinton where she said she spoke with interns and told them that the flu vaccine had been given.

[00:48:15] Speaker 03:
And this note that doesn't reflect, at least specifically, that the resident spoke with Ms.

[00:48:21] Speaker 03:
Hinton on the subject of immunizations.

[00:48:24] Speaker 03:
And so,

[00:48:28] Speaker 04:
While there is a general presumption of- So the real question is, was there, from your class perspective, was there a failure in the system to have recorded the vaccine being given?

[00:48:42] Speaker 03:
Correct.

[00:48:43] Speaker 03:
And we have plenty of case law in the history of the program that talks about how

[00:48:51] Speaker 03:
there a special master can find that a vaccine was given even where there's no evidence or no record medical record of the vaccination and what the case law has talked about is that if there's some indication some cooperating evidence that supports testimony that there was a vaccine then there can be a finding that there was a vaccination and here we have

[00:49:15] Speaker 04:
So if I were to tell you that it had been clearly established and the government wasn't even challenging whether or not Ms.

[00:49:22] Speaker 04:
Hinton went with her son on the 21st for that afternoon appointment, what does that tell you about the likelihood of whether the vaccine was given?

[00:49:32] Speaker 03:
Again, we have only the testimony of Ms.

[00:49:35] Speaker 03:
Hinton that she observed the vaccine being given.

[00:49:38] Speaker 02:
Isn't there also circumstantial evidence that

[00:49:43] Speaker 02:
What Dr. Olligan's statement that at that time of year, fall, winter, they would have provided a vaccine commonly?

[00:49:51] Speaker 03:
Yes.

[00:49:51] Speaker 02:
Maybe you were about to say that.

[00:49:53] Speaker 03:
We have that other evidence that is Dr. Olligan talking about how he remembers the visit.

[00:50:00] Speaker 04:
So hypothetically the meeting could have happened and the doctor said we're likely to give those things so then the issue is somebody forgot to record it.

[00:50:09] Speaker 03:
That's correct.

[00:50:10] Speaker 03:
And that is something that Kirby acknowledges can happen.

[00:50:13] Speaker 04:
The government's whole case would turn on, well, of course they recorded it.

[00:50:17] Speaker 04:
Because they always record that because they violate the law if they don't record it.

[00:50:23] Speaker 04:
As if a nurse sits there worrying about whether or not they're going to be indicted for failing to make that record.

[00:50:31] Speaker 03:
Precisely, Your Honor.

[00:50:34] Speaker 03:
as if the nurse doesn't ever make a mistake.

[00:50:37] Speaker 03:
I mean, clerical mistakes are made, human mistakes are made, and that happens in doctor's offices.

[00:50:42] Speaker 03:
It certainly could happen, again, not in the record, but except for Ms.

[00:50:46] Speaker 03:
Hinton's testimony, but it could happen on a day that was the last day of the doctor's practice and as he was getting ready to move to a new job.

[00:50:58] Speaker 03:
And what

[00:51:00] Speaker 04:
Do you make anything of the point I raised when your adversary first stood up, that the court of federal claims seemed to think that the government had failed to cite any authority that requires a special master to explain her decision?

[00:51:18] Speaker 03:
Yes, and I would agree with you on that point, Your Honor.

[00:51:20] Speaker 04:
Well, I mean, the government has cited cases now.

[00:51:22] Speaker 04:
They cited cases in their brief to the contrary to that effect.

[00:51:27] Speaker 03:
But the case law that discusses the arbitrary and capricious standard, that case law talks about having a rational basis for the decision, not a rational basis for each piece of evidence and how it's weighed.

[00:51:47] Speaker 03:
In fact, that case law is very specific that this court defers to the special master on the weighing of evidence and determinations of credibility.

[00:51:56] Speaker 03:
And the Sanchez case, which was cited here today, that case involves circumstances that are a little different than the circumstances we have here.

[00:52:10] Speaker 03:
And those circumstances are that in Sanchez, the family testified

[00:52:15] Speaker 03:
And it was a causation issue.

[00:52:17] Speaker 03:
It was not a vaccine administration issue.

[00:52:19] Speaker 03:
It was a causation issue.

[00:52:20] Speaker 03:
But the family testified, and the special master said that the testimony was credible and credited the testimony.

[00:52:28] Speaker 03:
There was no evidence in the record that contradicted the testimony about arm contusions, which was the fact issue there, whether there were arm contusions,

[00:52:41] Speaker 03:
contortions in a certain period of time.

[00:52:44] Speaker 03:
And so there's no contradictory evidence in the record, and the special master in the Sanchez case credited the testimony of the family.

[00:52:53] Speaker 03:
But then in his finding of fact, found that the arm contortions didn't occur.

[00:52:57] Speaker 03:
And so what the federal circuit found in that case was arbitrary and capricious because it was inconsistent with the only evidence in the record.

[00:53:05] Speaker 03:
It was unfounded and the special master had not explained his decision.

[00:53:10] Speaker 03:
And so that's very different from here where we have the special master who is reviewing all of the evidence.

[00:53:16] Speaker 03:
She has discussed the evidence that she finds supportive.

[00:53:19] Speaker 03:
She's discussed why she's found it supportive.

[00:53:21] Speaker 03:
She's discussed the evidence that contradicts

[00:53:25] Speaker 02:
the administration of the vaccine and talks about that and then she could she have and should she have explained why this litany of documents that are either incorrect or don't exist it was plausible to have that

[00:53:45] Speaker 03:
She could have certainly done anything in her decision and included those kinds of explanations, but was she required to under the case law?

[00:53:54] Speaker 03:
And I would submit that she is not because what the case law requires is a rational basis for her decision.

[00:54:00] Speaker 03:
Her decision was that the vaccine was given on December 21st, 2015.

[00:54:04] Speaker 03:
The case law doesn't require a rational basis for each item that she weighs of evidence.

[00:54:10] Speaker 03:
She talked about each item of evidence.

[00:54:11] Speaker 03:
She made it clear that she had reviewed the entire record

[00:54:15] Speaker 03:
Yes, Judge Cunningham.

[00:54:18] Speaker 01:
What is your best case that you point us to for the level of explanation provided by the special master?

[00:54:25] Speaker 01:
Is there a favorite case you have to point us to in that regard?

[00:54:29] Speaker 03:
Well, certainly, I mean, the Kirby case which talks about both the fact that what the standard of review is in an arbitrary capricious case and how that is a deferential standard, but also it talks about how medical records are not

[00:54:48] Speaker 03:
presumed accurate and complete and it acknowledges that physicians make mistakes and also that physicians don't include much of the information they're given in an appointment in a medical record but also

[00:55:04] Speaker 03:
Looking at the issue of the later records, which appellant has said should hold less weight because they were the later occupational therapy and physical therapy records.

[00:55:15] Speaker 03:
Appellant has argued they should hold less weight because they were created after the time that the petitioner was looking into litigation or had found out about the connection between the flu vaccine and GBS.

[00:55:32] Speaker 03:
What the special master is required to do in those situations is weigh that evidence.

[00:55:36] Speaker 03:
And so there are many, many vaccine administration cases where you have post-injury, later records that indicate the administration of a vaccine where earlier records didn't.

[00:55:48] Speaker 03:
And those are accepted and acceptable as supportive evidence, cooperative evidence of testimony of a vaccine administration.

[00:55:57] Speaker 03:
You know, we have the Riddick case, which is a case where there are five years before any record mentions the vaccine.

[00:56:04] Speaker 03:
And then at seven years, there's one note five years later and seven years, we have two notes which the special master acknowledged war litigation during the litigation time period and that those notes were supportive.

[00:56:21] Speaker 03:
And you have the Millett case, which talks about how

[00:56:24] Speaker 03:
litigation, which is this court's decision, talks about how litigation-driven evidence can still be weighed.

[00:56:33] Speaker 03:
It might be less persuasive, but it's still part of the weighing.

[00:56:37] Speaker 03:
And so here, the special master weighed, and I see I'm over my time, so.

[00:56:42] Speaker 02:
It's okay.

[00:56:44] Speaker 02:
Please continue.

[00:56:44] Speaker 02:
We've asked a lot of questions.

[00:56:47] Speaker 03:
Well, just here the special master weighed the evidence.

[00:56:51] Speaker 03:
It was her job to consider the evidence, to examine the evidence, to consider the credibility of the witnesses.

[00:56:57] Speaker 03:
She had the opportunity to observe and question Ms.

[00:57:01] Speaker 03:
Hinton, and she made it clear in her decision that she had considered all of the record evidence.

[00:57:08] Speaker 03:
Yes, Judge Cunningham.

[00:57:11] Speaker 01:
There's one discrepancy that I don't know we've talked a lot about, but I want to at least get your take on this.

[00:57:16] Speaker 01:
My understanding was Ms.

[00:57:17] Speaker 01:
Hinton alleged that a nurse named Lisa, if I'm not mistaken, administered the flu shots to... Can you hear me?

[00:57:30] Speaker 02:
I hear you now.

[00:57:32] Speaker 02:
Can you repeat your question?

[00:57:35] Speaker 01:
Oh, sure.

[00:57:35] Speaker 01:
Yes.

[00:57:37] Speaker 01:
My understanding is that Ms.

[00:57:39] Speaker 01:
Hinton alleged that a nurse named Lisa administered the flu shots

[00:57:45] Speaker 01:
Yes, that is what the record reflected.

[00:58:06] Speaker 03:
While the Special Master examined the evidence, had the ability to determine that the testimony was credible, that doesn't require her to credit every piece of that, that doesn't require her to weigh every piece of that the same.

[00:58:26] Speaker 03:
Miss Hinton did testify that it was a nurse named Lisa, and she continued to testify that in being questioned.

[00:58:35] Speaker 03:
I'm not sure who the exact nurse was.

[00:58:41] Speaker 03:
takes away from the other co-operative evidence that there was a visit that day that Miss Hinton observed someone give her child a shot and that her testimony of things that happened after that when she went back to pick up her daughters and she testified that they noticed that her son's hoodie was off and his sleeve was rolled up and there was a bandaid on his arm.

[00:59:02] Speaker 03:
All of those things were details that co-operative or that supported the

[00:59:07] Speaker 03:
the credibility of her testimony.

[00:59:11] Speaker 03:
And so the special master may have weighed those issues.

[00:59:15] Speaker 03:
That may have weighed her or caused her weight of the testimony itself to be different.

[00:59:22] Speaker 03:
But the special master wasn't required to discuss what exact items she credited or didn't credit in Ms.

[00:59:27] Speaker 03:
Hinton's testimony.

[00:59:29] Speaker 03:
She did discuss the fact that she found it credible.

[00:59:32] Speaker 03:
She did discuss that there was other corroborating evidence that she felt supported that testimony.

[00:59:38] Speaker 03:
And she stated her rational basis for her decision that more probably than not, that the vaccine was administered.

[00:59:46] Speaker 04:
Which was it?

[00:59:49] Speaker 04:
Fix my recollection.

[00:59:50] Speaker 04:
Either the special master or the claims for both said this is a very thin case.

[00:59:57] Speaker 03:
That was the special master, and she said that there was barely enough evidence to satisfy the preponderance standards.

[01:00:04] Speaker 04:
The special master is recognizing that this is paper thin, right?

[01:00:08] Speaker 03:
She is recognizing.

[01:00:09] Speaker 04:
She is recognizing what the... Doesn't that recollection alone tell me that the special master put into the balance all the evidence the government is arguing favor its case?

[01:00:22] Speaker 03:
I would agree with that, Your Honor.

[01:00:24] Speaker 03:
She definitely notes the contradictory evidence.

[01:00:28] Speaker 04:
She definitely... And you're saying there's no law that says the facial master has to explain why they choose one side over the other.

[01:00:37] Speaker 03:
She explained why she chose one side over the other.

[01:00:39] Speaker 03:
She explained the rationale for her decision, but she didn't have to explain why she chose one piece of evidence to have slightly less weight and one piece to have slightly more.

[01:00:50] Speaker 03:
I don't think there's any case law that says she needs to go through and list every piece of evidence and give it an assignment of a weight in her decision.

[01:01:01] Speaker 04:
Right, but certainly what's missing

[01:01:03] Speaker 04:
that would have been very helpful to your side had it been in the special master's opinion was a sentence that says something like, the real question here in my mind is whether the vaccine was given.

[01:01:13] Speaker 04:
I'm satisfied that she did go to the meeting on the 21st for the reasons I said earlier.

[01:01:19] Speaker 04:
So then the question of was the vaccine given?

[01:01:22] Speaker 04:
And I recognize that sometimes records are imperfect.

[01:01:26] Speaker 04:
So the question is, is this an imperfect case?

[01:01:29] Speaker 04:
Or is this a case where Ms.

[01:01:31] Speaker 04:
Hinton's not telling the truth?

[01:01:33] Speaker 04:
I tend to want to say it's Ms.

[01:01:34] Speaker 04:
Hinton's telling the truth.

[01:01:36] Speaker 04:
If the opinion said that, then we would have the link would be put together, right?

[01:01:41] Speaker 03:
That is correct.

[01:01:42] Speaker 03:
There would be a reason for crediting or the weight of the testimony on those particular pieces of evidence, those particular medical records that were the hospital records or something of that nature.

[01:01:56] Speaker 03:
But the Special Master certainly acknowledged that that evidence was in the record.

[01:02:01] Speaker 03:
And she made it very clear that she acknowledged that there was this contradictory evidence and that she weighed it.

[01:02:07] Speaker 03:
And then she found that

[01:02:09] Speaker 03:
It met the preponderance standard.

[01:02:14] Speaker 04:
And by the time the special master is deciding that case, she knows it's a table injury.

[01:02:19] Speaker 03:
That's correct.

[01:02:22] Speaker 02:
Any further questions?

[01:02:23] Speaker 02:
Any further questions?

[01:02:26] Speaker 02:
No.

[01:02:26] Speaker 02:
Thank you.

[01:02:26] Speaker 02:
Thank you.

[01:02:27] Speaker 02:
Okay.

[01:02:27] Speaker 02:
Thank you very much.

[01:02:30] Speaker 02:
Ms.

[01:02:30] Speaker 02:
Wade.

[01:02:33] Speaker 02:
I will give you your three minutes of rebuttal time.

[01:02:38] Speaker 00:
Thank you.

[01:02:39] Speaker 00:
Briefly, just to begin, I wanted to note, I believe Opposing Council mentioned that the Special Master didn't really place any of her inferences on the record, and that these are simply, or she implied that these are simply assumptions that I am submitting, that she must have inferred X, Y, and Z, this sort of laundry list of unreasonable assumptions.

[01:02:58] Speaker 00:
But the Court of Federal Claims did agree with Respondent in one respect, which is that by accepting

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

[01:03:03] Speaker 00:
Hinton's testimony, she necessarily found, must have found that those other records regarding the office visit on December 21st and the hospital records were inaccurate.

[01:03:15] Speaker 00:
And I would submit that the evidences

[01:03:18] Speaker 00:
the testimony of Ms.

[01:03:19] Speaker 00:
Hinton and the medical record evidence are mutual.

[01:03:23] Speaker 00:
Which ones were inaccurate?

[01:03:24] Speaker 00:
I'm sorry, which side?

[01:03:25] Speaker 00:
Which records were inaccurate?

[01:03:27] Speaker 00:
The records from the no-show, saying that Ms.

[01:03:31] Speaker 00:
Hinton was a no-show, and then the hospital records from February of 2016.

[01:03:35] Speaker 00:
Because they had to be inaccurate?

[01:03:36] Speaker 02:
Yes.

[01:03:37] Speaker 02:
Can I ask you a question?

[01:03:38] Speaker 02:
Sure.

[01:03:39] Speaker 02:
Your argument that you're making right now and relying on the Court of Federal Claims, I hadn't thought about your reliance on the Court of Federal Claims, but are we bound by that?

[01:03:48] Speaker 02:
I mean, I thought that we were reviewing de novo the special master's determination to whether it's arbitrary and capricious.

[01:03:56] Speaker 02:
You are.

[01:03:57] Speaker 00:
You are.

[01:03:57] Speaker 00:
I'm just pointing out that the point that I am making was acceded to by the Court of Federal Claims, not that this court is bound by it.

[01:04:05] Speaker 00:
But just simply, I would suggest that the inferences that I'm suggesting were unreasonable.

[01:04:09] Speaker 00:
that these are corollary inferences, that by crediting the testimony of Ms.

[01:04:13] Speaker 00:
Hinton, you have to make these inferences.

[01:04:16] Speaker 00:
They're not optional.

[01:04:18] Speaker 02:
Couldn't you say this?

[01:04:19] Speaker 02:
My gosh, this is a really hard case.

[01:04:23] Speaker 02:
On the one hand, I've got this.

[01:04:25] Speaker 02:
On the one hand, I got that.

[01:04:27] Speaker 02:
It's really close.

[01:04:29] Speaker 02:
There are a lot of what she calls questionable occurrences in this case.

[01:04:34] Speaker 02:
But ultimately, when I look at the record, given what I have, and I can only review what I have in front of me, I've decided that I'm going to credit Ms.

[01:04:43] Speaker 02:
Hinton because her testimony is detailed, because it's her actions are consistent with someone who thinks they're telling the truth, and why

[01:04:56] Speaker 02:
You know, like sometimes I look at things as a judge and it's hard to decide.

[01:05:00] Speaker 02:
And I say, well, I think the answer that's most consistent with the record is X. And why isn't it good enough to say, look, I think the answer that's most consistent here is the one that's most likely

[01:05:13] Speaker 02:
is that there's there's you know evidence by hundreds of the evidence it's satisfied to me that a vaccine was administered and the record's not perfect this is really hard but why isn't that enough because the court did not explicitly explain why and there's no evidence that would support the inference that the contemporaneous records are incorrect the

[01:05:37] Speaker 00:
That can be the case.

[01:05:40] Speaker 00:
It is not always the case that medical records are credited, but usually it's because there is some basis in the record.

[01:05:46] Speaker 02:
So you would say that in a circumstance where there's medical records, and versus testimony, that the special master has no choice in those cases

[01:06:01] Speaker 02:
but to say that the witness must be lying if it's inconsistent with the medical records.

[01:06:07] Speaker 00:
The special master has no obligation to weigh in on the state of mind of Ms.

[01:06:11] Speaker 00:
Hinton.

[01:06:12] Speaker 00:
Ms.

[01:06:12] Speaker 00:
Hinton might have a firmly held belief that everything happened exactly as she said.

[01:06:17] Speaker 00:
I don't comment on that, and I'm not speculating as to that.

[01:06:20] Speaker 00:
But when we have guidance from this court about the trustworthiness of medical records, and we have guidance from this court and the United States Supreme Court that

[01:06:31] Speaker 00:
testimony, like she credited in this case, is inherently deserving of little weight, then I think in these circumstances, as a factual matter, the court is obligated to provide some explanation, much as the court found that the special master was obligated to, had failed to provide a rational basis for his decision, or his decision to reject the testimony of family members in that case.

[01:06:58] Speaker 00:
In terms of, I think, going back to whether or not Respondent has cited to any authority, the authority that the special master has to articulate a rational basis is in the standard of review itself.

[01:07:09] Speaker 00:
And in Palick, this court has said that this court has a duty to ensure that that has happened.

[01:07:14] Speaker 02:
The difference, I think that both parties agree that under this standard, the special master has to articulate a rational basis.

[01:07:21] Speaker 02:
The difference is

[01:07:22] Speaker 02:
that Ms.

[01:07:25] Speaker 02:
Hinton's lawyer suggests, or I guess it's Mr. Hinton's lawyer, suggests that that is satisfied here, because all that's needed is a rational basis for the fact-finding, not a rational basis for each and every weighing provided.

[01:07:40] Speaker 00:
And I guess I would say that that is not supported by this court's decision in

[01:07:45] Speaker 00:
Sanchez.

[01:07:46] Speaker 00:
I mean, that was a specific.

[01:07:47] Speaker 02:
So your view is that there has to be a discussion of each and every piece of evidence and why and the amount of credit weight given.

[01:07:57] Speaker 02:
No, what is it?

[01:07:58] Speaker 00:
Not each and every piece of evidence, but I think it's a case by case analysis.

[01:08:02] Speaker 00:
In that case, the circumstances

[01:08:03] Speaker 00:
was that required the special master to explain why he was rejecting the evidence wasn't because that evidence was entitled to some presumption of accuracy.

[01:08:12] Speaker 00:
It was because of how he treated the rest of the evidence that in those circumstances he was required to provide an explanation in these circumstances.

[01:08:20] Speaker 02:
What if the explanation was I've looked at all the evidence and I find that Miss Hinton's testimony is more credible?

[01:08:28] Speaker 00:
I think that the court would still... My position would still be the same, that given the guidance from this court, when you're talking about taking, elevating

[01:08:43] Speaker 00:
testimony that the elephant in the room here is that all of the efforts that Ms.

[01:08:48] Speaker 00:
Hinton undertook, all of the statements that she made, were made after she retained an attorney.

[01:08:53] Speaker 00:
She retained an attorney in March of 2016, and according to her testimony, he directed her then to go and gather records.

[01:09:01] Speaker 00:
He signed a retainer agreement on the 21st of March.

[01:09:05] Speaker 00:
On the 5th of April, she requested that her son's medical records be changed to reflect a vaccination had occurred.

[01:09:12] Speaker 00:
And then on the 12th of April, she represented during in a physical therapy, the medical records that we've referred to, where she represented that her son had received a flu vaccination.

[01:09:23] Speaker 00:
There is no case that I'm aware of that has credited the statements that were made with litigation in mind.

[01:09:31] Speaker 00:
And I would direct the court's attention to Grote versus HHS, as well as Riddick versus HHS.

[01:09:37] Speaker 00:
In both of those cases, the special master credited subsequent medical records that referred back to

[01:09:45] Speaker 00:
a vaccination.

[01:09:46] Speaker 00:
So similar in terms of an individual reporting to their doctor that they had received a vaccination earlier in time, not contemporaneous to the vaccination itself and no actual vaccination record was available.

[01:10:00] Speaker 00:
Right, but to the extent that you're asking- Let me just finish my- I'm sorry, the point that I want to make about these two cases is that in both cases- Well, you made it hard for anybody to ask you questions.

[01:10:07] Speaker 04:
You could just run on and on and on.

[01:10:08] Speaker 04:
You made your point

[01:10:09] Speaker 00:
No, I haven't.

[01:10:10] Speaker 00:
The point is that in both cases, the court recognized or the special master recognized that those records were created prior to the initiation of litigation.

[01:10:19] Speaker 04:
And what I'm trying to tell you is that the government's now asking for a presumption that if someone testifies after they've retained counsel, we can

[01:10:27] Speaker 04:
assume that they're not telling the truth.

[01:10:29] Speaker 00:
That's not accurate, but what I would say is that... Well, the hint of what you said is that.

[01:10:34] Speaker 00:
This court has recognized that those records that are made by... statements that are given by interested parties are deserving of little weight.

[01:10:42] Speaker 00:
They deserve little weight.

[01:10:44] Speaker 00:
That's not me saying that.

[01:10:45] Speaker 00:
That is from this court and from the United States Supreme Court saying that.

[01:10:50] Speaker 00:
And that is what the court... that's what the special master credited in this case.

[01:10:55] Speaker 00:
And to not explain that is the fundamental issue in terms of not providing a rational explanation, that we're not talking about just any evidence.

[01:11:05] Speaker 00:
We're talking about evidence that this court has given very specific guidance as to how statements made once you've retained an attorney should be treated compared to contemporaneous medical records.

[01:11:17] Speaker 00:
I don't want to take up too much time.

[01:11:18] Speaker 04:
So the case boils down, after all this argument, to a simple question of whether or not the special master is obligated

[01:11:25] Speaker 04:
to explain why they give more than little weight to testimony from the interested party.

[01:11:32] Speaker 00:
I agree that that is one grounds.

[01:11:35] Speaker 00:
The other is the inference.

[01:11:36] Speaker 00:
The other would be the implausible inferences that flow from crediting that testimony.

[01:11:41] Speaker 00:
So there would be two separate grounds.

[01:11:43] Speaker 00:
Under the arbitrary and capricious standard of review, the issue is whether or not the court can special master considered the relevant evidence.

[01:11:50] Speaker 00:
Drew plausible inferences and articulated a rational basis and I'm arguing that those two the final two factors were not met.

[01:11:57] Speaker 00:
I just want to my final point and I will end here is I think factually the most similar case and the most relevant case is a case from the Court of Federal Claims.

[01:12:07] Speaker 00:
SENT-MAHEI, which is documented in the... Is that cited in your brief?

[01:12:13] Speaker 00:
It is cited in my brief, yes.

[01:12:14] Speaker 00:
It is a very factually similar case to this.

[01:12:17] Speaker 00:
What's it called?

[01:12:18] Speaker 00:
SENT-MAHEI versus Health and Human Services.

[01:12:22] Speaker 00:
And the citation is 32 Fed Claims 612.

[01:12:29] Speaker 00:
32, Fed claim?

[01:12:31] Speaker 00:
Fed claims 612, yeah.

[01:12:34] Speaker 00:
And in this case, the evidence was very similar.

[01:12:36] Speaker 00:
The mother testified she took her child to the doctor, that she witnessed the child receiving a vaccination, that she had engaged in a conversation with her provider, and that subsequently she went to her friend's house.

[01:12:51] Speaker 00:
I apologize, I know I'm running over.

[01:12:52] Speaker 02:
We have the case, and do you have any further questions, Judge Cunningham?

[01:12:56] Speaker 02:
Do you have any questions, Judge Cunningham?

[01:12:59] Speaker 04:
Pardon me?

[01:13:00] Speaker 04:
I'm excited in your reply.

[01:13:01] Speaker 02:
It is.

[01:13:01] Speaker 02:
Okay.

[01:13:03] Speaker 02:
All right.

[01:13:03] Speaker 02:
Thank you for your argument.

[01:13:05] Speaker 02:
We thank both parties and the case is submitted.