the question that was presented to the trial court on any fifty emotional things was whether or not we had sufficient grounds to get to a jury as a procedural a footnote i thought the question were whether question judge and that's not what this case is really about here it's not it's not a question of sufficiency of the evidence as far as the i mean the injury occurred i it's i don't know that it's really really that her decision was by analyzing the very fact intensive nature of the testimonies rather than taking them as true as required by state law the  is that needed in the record in new york it is not because in the i think that question is a question of how the federal courts process evidence in a courtroom under the federal rules of evidence rather than on that was larry who brought this case in federal and we did it judge you as you did you brought it in federal we did it was not removed we brought it as an original action because it's certification to the in the your court of appeals and maybe that's in order but at least at the trial level when we have the case on a roof fifty a motion the judge should have sent it to the jury with an instruction that really follows the district court heard in holding that you dish or stop all did not preclude defendant from contesting whether plaintiff suffered serious injury what were also arguing that and here is the reason i think the district point disregarded that i think the fact that the defense exploited before you get to that can you just help me with this you cite a minute entry from the pretrial conference right which references a four day damages only was like contributory to fault that they were talking about yes your honor it is also how does that relate to how does that relate to the damage to the seriousness of the injury part of it is unrelated to the specific or ask you about the statute itself involving serious injury there are a lot there are a lot of different clauses in that in that statute and your brief as i look at it doesn't identify the flaws or specific causes which you're dealing with are you are you focusing on the permanent consequential limitation of use of body organ or member is that is that identify and those two phrases have caused all of the chaos in the state courts can you can you help me with this then can you point to i understand that there are differences in new york state l surgery the on the plaintiff's own experts testified that the knee had full range of motion exhibited negative results on all orthopedic tests and was objectively norm even after the operation there was no for treatment and everything seemed fine but that is serious the case is that we cited in our brief essentially from the first apartment to do you save it that is so even if after reshooting everything is fine we do maintain that because a range of motion test on one day does not define that person's ability in movements only addressing the issue of whether m r i films indicating tears of the ministers by themselves are sufficient to establish the existence of a serious injury this court concludes that said evidence alone is sufficient to establish the existence of a serious vargas versus virtual there's a cluster of cases primarily out of the first department that say if you have torn meniscus plus surgery you get to a jury and all of the questions about range new york for injuries arising from automobile accident unless they can prove a serious injury as the fine under the statute and as magistrate judge lisa smith correctly determined the plaintiffs fail to meet that burden whose talking about there's no doubt in a motion for summary judgment clearly i would have a burden to show there's no serious injury however we are at trial the plaintiff now has the burden of proof they have to and they made extremely mild complaints they asked what's the intensity of your pain is pain one out of ten but that doesn't that doesn't preclude the possibility that  because it causes something then it is of the defendant's burden to show didn't force it in a particular case one of the things with an automobile accident which a negligent defendant does ma meniscus in her left knee would she have done that i wonder now again i'm not saying the plane is claims or falls i'm just saying they failed to do sufficient proof to get to a jury and argument that the torn meniscus was in this case not sufficient to be a serious injury under this law we voted a serious injury you do not get fed to  how do we know what he saw when he put that skull into the plaintiff's needs we have no evidence there was no evidence at all in this trial other than the hospital record and i asked the question about the first m r i which here and tell me why that isn't what the first department perhaps correctly perhaps not said in a new york rahner first i'll tell you i have not read the johnson case however i will is that enough ration which we may have you know what is serious and this is i don't know what it is and i know that the new york uses are all over the place then we don't have clear new york ron or there is clear n is not per se a serious injury you've got to have more and the plaintiffs in this case did not show anything more they clearly made a full recovery according to both medical experts who testified they had full range of motion of their ne they had no restrictions is no ninety one eighty restriction when myspace walk your children to school two days after the accident they both went about their daily lives they had no problems at all until they started getting treatment they supposedly got physical therapy chiropractic acupuncture for many months but again it was no evidence of this other than from plaintiffs themselves we had no treating physicians testifying on behalf of plaintiffs about what their contemporaneous complaints were what the findings were all we know is dr stan's opinion who saw each point of one time to now half years after the accident and is relying upon their subjective complaints and opinions about causation so let me ask you if i could about your your adversary's traditional estoppel argument your brief doesn't address appeal how does that have any bearing at all on judge smith's decision to grant my fifty motion i just the logic eludes me i mean i submit there was a liability dispute the jury needed to resolve and whether i'm to just only a stopped from offering a liability defense is neither here nor there as far as i can perceive how the jury gave me a defense verdict on liability this would certainly need to grapple with that but under these circumstances i defense which i was going to offer with my client had judge smith not granted my rule fifty a motion to dismiss i'll get into that if you're honest mark but it seems like a waste of time under these circumstances  the defense had to reduce enough evidence of that or sufficient evidence that we did not have a basis to go to the jury or judge judge makes a decision based upon the evidence that's there at the time the roof of the motion is made we and that's based on the johnson case that primarily and the cases that are cited in johnson and there's a number of them including ironically a second the partly case but the first apartment cases do say when you have a m than reported cases in the state courts because they're not comfortable with this question and the d the legislative committee the insurance committee who has a bill to amend the statute fifty one zero to make all we're saying is that the legislature has expressed a concern that is very rare and it has not been acted upon but it has created strife in there isn't there really a more fundamental problem you have if you strip everything away that in this case there is no objective evidence that your clients experienced permanent has stated that on that specific date that he examined them the range of motion was it was acceptable your honor but and what you do in an expert is is there any evidence of permanent injury and that question is one on which fear is nothing in the right and which your expert does not say that there was so unless you have you can show to us that there is a holding by sufficient who are due to split question is what evidence of permanence do you have when there is nothing in the record to suggest that your own expert says on a particular day it was ok fact that their knees apparently recovered does not state the whole case the defense expert himself testified that by definition if you have a tear in the misc and it's not in the healing zone it would be considered permanent so even if you have a repaired miniscule as part of it is gone forever and because it's gone forever your functionality is less than it was before the app or before the operation and it will only progressively get whether it is really the case that some words in new york have said it is have said it is in our reading of the cases that we rely upon in our braves are is exactly that that because i use the other factors go to the question of question of fact in question of credibility one should have a tear plus an operation you get to a jury the defense can argue what they want