is about recklessness well it is our position that the record is replete with incorrect statements and incorrect methodology that's the this is helpful to me so at a minimum you would agree you have to show a triable issue of fact over whether the doctors acted the defendant stated a deliberate falsehood or showed reckless disregard for the truth it's plaintiff's position that the two opinions and conclusions that the defendant doctors repeatedly stated to the police and prosecutors all of which formed the cornerstone for the find of probable cause and is not disputed in this case it just remind me your experts say what they did was reckless they say where they go if they go a step further and say not only was it reckless that it's not with even within the scope of friends science to me and i'm not interested in that one they said did they say reckless or a reckless disregard for the truth or lies they say that they don't want to hear anything else that they say that knows no sir if so why isn't that a real problem now the words if all you have are doctors debating what forensic science requires in a given area that's why they would characterize what you're doing is a fight about the standards of care and negligence it seems to me you've got to get an expert to come forward and say what they did was reckless or respectfully disagree or honor and i've read cases from this court that indicate that it's not the experts position to determine the grade the where that fits in in legal ott and legal terms where were the improper conduct fits was it reckless was it with malice was it intentional the experts in this case medical examiners can only provide an opinion as to their standard of care in their expertise where did this fall within that the experts in this case indicated that the finding that this these injuries had to be inflicted by an adult were outside the scope of medical evidence forensic evidence that these injuries what would have happened there were there to do findings by the doctors that were complaining were if not intentionally erroneous at least a reckless disregard for the truth and those are carol of the deceit and injuries had to be inflicted by an adult that's finding one and finding two that those injuries had to be inflicted within minutes to hours of her death the experts in this case on both sides including now the admissions by the defendant doctors have indicated that it is not within the scope of forensic science and within the scope of a medical and medical examiners expertise to make a determination or render a conclusion on the amount of force necessary to cause these types of injuries it is simply outside of their purview it was improper for defendant the young and later defended schmidt and gastronomy to provide any testimony or any opinions to the police that these injuries must have been inflicted by an adult so you just said the your experts say what they did was improper but just a little bit ago you said it's not fair to require them to say it was reckless i don't understand that distinction the we get cases all the time where the experts come forward and say this was reckless given what forensic investigators do when you just admitted they can say it was improper or beyond the scope but i just don't i'm not getting your point it just seems like all you've done is establish some people disagreed under medical standards of care what the right way to think about this was and that's fair the record does show that but that would normally be a negligence debate not proof of recklessness and that's what you need i guess one way to answer your question would be implicit in a finding that it's outside the scope of any expertise that they can ever you know render a conclusion on is that it is reckless it's rick record the gets right because you can have a doctor say listen i'm i'm uncomfortable with the idea that someone can look at someone's head examine the x rays and be able to say what happened that a fair thing to say but that doesn't prove someone who reaches the opposite conclusion was reckless it proves that someone said no i can look at the x rays i can hear the facts and i can draw that conclusion that's just a disagreement among experts it now says well that's not really what i said that's not what i meant because i can i could never have said that is what she says i got in dr schmidt was also a question and he said no i was medical examiner we could never pontificate on whether it was an don't force we simply don't this to the amount of force required to inflict injury and you move from there to talking about whether the injury could have been inflicted by a doctor but it sounds as though you're saying that a medical expert couldn't look at  statement that they couldn't i don't know why a medical expert couldn't look at in the injury and render an opinion as to the amount of force required to create that injury and if you have a if you  that this is not so perhaps you can explain your argument because i'm not following you i'm not a doctor your honor but i've learned a lot about this field in this case and the testimony from the defendants and i'll  reason with respect to what force is necessary he says such a determination is outside the scope of now knowledge scientifically the forensic pathologist to formulate or to offer any opinions on whether this had to be caused by an adult or adult doctor told him it's testimony i don't know the context of that testimony and even if i did i don't know if i want to rely upon that particular testify earth so i was really from not only our experts but defendants expert dr siena who said that the these injuries can we cannot quite you cannot attribute a quantifiable force to these types of head injury well are you talking about i was asking in general how a such an opinion might you sound as though you're referring specifically to the injuries in this in this particular case which is you know would would pertain to the testimony of about the injuries inflicted on this this victim which which might be a little different thing i would i would assume that much would be taken into account in an autopsy or whatever and the understanding based on the criminal proceedings in this case and there was a dog motion brought on this exact issue that the the prosecutors there determined that the proper proponent of this type of testimony has to amount of force is a biomechanics expert  that a medical professional that's my understanding and that's that's consistent with everything we've learned from all our experts defense expertise experts throughout this litigation that was a mistake not bringing one of those people who know the well that once they brought in that person once that the criminal defense attorneys proffered an expert defendant do young was excluded in stipulated that she would not speak to force at a trial if the case was to go to trial but it would all of the mistakes happened well before that dr young on the day of the autopsy before microscopic slides are created and continuing thereafter sent to the police officer this had to have been caused by an adult and it had to have been caused the injuries within minutes to hours of death all of the testimony to those two points have since been recanted by the defense the defense have now since acknowledged could never have made those opinions or conclusions because we don't have that within our expertise could never have said minutes to hours these injuries could have been there twenty four hours or forty eight hours a picture point maybe for your rebuttal but you know these child abuse is a very serious t disease in the medical community so you've got this serious problem and you have cause for concern all you need is probable cause that perhaps this was not an accident or some preexisting injury and we know the investigators and the attorneys can't figure this out and how are we ever going to get medical professionals to offer advice and opinions about what to do if they're stuck with liability so it's just it's just seems to me that's the thing you have to come to grips with on this case and it's a really serious problem and i think you probably have shown the tribal issue of fact that maybe there were some mistakes but on this record i would say there's still probable cause for what it's worth i still think it's probably because we're on it doesn't prove there's beyond a reasonable doubt it doesn't prove more than fifty percent but it's a pretty funny thing to look at night and i appreciate that i've thought about this case for three three plus years and i've thought of these arguments i was in the defense i listen closely and as a father of three children also i don't i do not condone child abuse nor do i wanted to be rampant i want these doctors to be able to provide their opinions the police the prosecutors the lawyers people like us we don't know madison it's not our job but when they act outside of their complexities completely when they get when they are offering conclusions that of course a police officer is going to rely on that's a police officer should rely on it and they say something that is completely outside of their scope of expertise and then the police and prosecutors in this case admit that those two opinions only those that two opinions formed the cornerstone for probable cause that incorrect negligence perhaps grossly since i'm not negligent and not to be believed or you going further in ewing that the opinions were fabricated or the the opinion for based upon fabricated evidence rather these medical professionals i'm absolutely going for further your honor you think it's a fabrication i think when you state something i think fabrication does not have to rise to the level of taking physical evidence from one autopsy and put it with another some of the other things we've seen and cases i think when you state a in opinion or conclusion that you have no basis to state the you have to know either you know is outside your expertise that that is a deliberate falsehood iraq was disregard for the truth such that it arises to fabrication so you're not arguing that they fabricated physical evidence address what counsel just told you but i think it's important in this case there are two issues in any qualified immunity case was a constitutional right violated and if so was that clearly known at the time of the acts in question the case law tells us we can take them and either or if we take the second argument first in this case i think that as far as this appeal goes there is no one there is no viable argument we come to the conclusion that a negligent or perhaps even reckless offering of opinions is a civil rights violation there's nothing in the case law before today that would have tipped anyone off that that was the case you just said it rises to the level fabrication isn't that pretty well established absolutely if this were in fact fabrication if you look at that take you back to step one that's not a  correct correct if if you determine that this is fabrication but all of the case law that talks about the specific the specific topic of investigators and any definition of fabrication you can find anywhere does say that you manufacture evidence or you misrepresent evidence nothing that i can find anywhere says that fabrication includes offering an opinion that you honestly believe that someone says is beyond the scope of what you should say i may be wrong but if i honestly believe it i'm not fabricating i can't find any definition is another live he's he would say it's a deliberate false because everybody knows you can't you know if you honestly believe it you can't pine on this particular topic then we would have to as liberals and that's false that's his point then we would have to ask the question before this case and even as of today is there anything that would put one on notice that offering an honest opinion is defined as fabrication and i don't think we have that anywhere either i think what we have and i think judge yacc are found very correctly after a review of the evidence and i'm going through this in preparing my outline and realizing i'm quoting page fourteen thousand five hundred twenty one of the record and thinking there has been a mound of evidence here and judge ocker told us he went through it all and he co d that this was nothing more than the honest expression of the beliefs of these three doctors and i believe that's all it was and there is no precedent that i'm aware of that says an honest expression of your belief could be defined as fabrication so we go back to the first prong that was this in fact a violation of the constitutional rights one of the points that mr stupes highlights at length is that the defendants supposedly admitted that they should never do this and that they retracted everything they said earlier he talks about the comment by dr schmidt and judge clay i believe you said you wanted to know the context of the question question so dr you told me there is no way for you to be able to say how much force is necessary to cause these types of injuries whether it's a pound five pounds ten pounds two hundred pounds you can't say that correct correct he agrees he can't tell you foot pounds or biomechanics expert might give that a shot model of the richer says that they can't be terribly accurate but they're going to be probably more accurate than someone who doesn't do biomechanics testing but when dr schmidt was asked to comment he was asked can you say a number of us my analogy if i am sitting in the ballpark and i watch one of my favorite players hit the ball out of the stadium over and out into the street i can't say he did that with x number of foot problems i can say he hit really hard i can say a seven year old couldn't hit it that or i could say i couldn't and probably most of us in this room couldn't i can certainly form a general opinion that took a lot of force if i'm a veteran i'm going to be better equipped to pick an amount to comment on in general in amount of force if i'm a forensic pathologist in the point that your clients opinions were reasonable you making the point that this explains why they retracted them i don't know which point you're making at this point i'm making a well there's two point number one i don't believe there ever retracted them are reasonable that something must be the second time it would be yes it is reasonable and in fact there's even testimony in the record that forensic pathologists are asked to make a comment like this you know in general what do you think is this consistent with the factual explanation we've been given could this have caused these fatal injuries so i believe it is reasonable in a general sense for someone to say this is for a friend sick pathologist to say i don't but i don't buy this explanation this explanation is plausible as far as recanted the only testimony that's ever come in that dr di young or anyone else very specifically said it must be an adult no exceptions is from a detective and from i believe it was a child protective services worker none of the defendants ever admitted to saying anything of that sore they said i don't think it was an adult but right scuse me i don't think a child could have done this but i can't rule out the possibility so there may be a factual dispute as to whether they said it but there's no evidence that they ever recant now as judge ocker pointed out that as part of their opinions they made it relatively clear that there was an element of speculation and got in the one place where  testified under oath the preliminary exam were it's her words and this is been quoted at length she said she was asked could have child have done this i don't believe so that's the closest she came in judge ocker in his opinion emphasizes that point and judge her dr de young explains that she's asked this question or she's answering this question because she's been told the stories of the seven year old girl i'm not going to name her but i'm sure a few you've seen there was a seven year old girl who was with the baby along with the father and initially her first two statements said well dad was playing various games with the kids four months later the seven year old came forward with  statement that said i was holding her and i fell and hit the bed and we're not sure if the bed poster bed frame but she fell with the baby and hit the bed and she shoved the baby off the couch into the coffee table and so what dr de young was being asked was is this plausible does this explain the injuries and she said i don't believe so she never anywhere in this record definitively says it couldn't have happened did you agree that the standard is recklessness no way to look at it what's the no that i don't and there's a couple of cases that i would say are you on your honor in this what you give us the words you think are the right way to formulate a standard negligence is not enough recklessness is not enough deliberate fabrication is required intentional wrongdoing six target case allergists be shy about one eighty eight f thirty three sixty five a successful nine hundred eighty three claimant must establish that the defendant acted knowingly or intentionally to violate his or her constitutional rights such that mere negligence or reckless right if recklessness is the standard you lose does it go to a trial no i don't think so i don't think we can establish recklessness merely by the dixit of two experts coming in and saying i don't think that was appropriate to do because i don't think that was appropriate for foren pathologist to do is i believe nothing more than a professional disagreement on whether someone should offer that opinion and there's at least if the forensic pathologist in this case were comfortable doing so and the experts that were hired to come in said they should note that originally during the criminal proceedings the first two experts on behalf of plaintiffs never said that this was inappropriate all they ever said was this was wrong in fact initially they were saying this wasn't even a homicide it was wrong to ever call it a homicide the child might have been killed seventy two hours earlier and one expert even said it could have been weeks or months earlier they tried to blame the fall down the stairs for months earlier where the m r i or the c t scan admitted lee a obscured by motion but didn't show any significant injury and one point is in the record here they even tried to blame it on the child being hit in the head with a labrador retrievers tail so the initial experts never said this was out of line and it was only when the argument that it was never a homicide fell apart that they then started trying to nitpick and say no forensic pathologist would ever say i think this took a lot of force the child could have done it it probably it must have been an adult i believe that but i can't say that with certainty that we have any opinion in the case ren experts of the klang to that the opinions of the defendant doctors were actually abrogated and i know they say that the  fabricated or represented deliberate false ludes never end if i had time to go through both of the seven hour depositions of their experts one of them actually said no i'm agreeing with all of the findings i disagree with the conclusions they draw from those findings and there's not a single finding in here anywhere that's been identified that is said to be wrong they argue well here's what you're missing yeah there's new blood here but there's also old blood  old injury and that's why you can't conclude that this was child abuse or that this was a recent injury that caused this homicide but they never say no your findings in the autopsy are wrong good morning your honour's doug vandenberg appearing on behalf of defendant aptly dr carl schmidt plaintiff counsel made a number of statements that i disagree with that i think are interact but i'm not going to respond point  point i'm going to rely on the briefs to do that and then a factual clarification dr schmidt did not testify avarice to the amount of force that he that or that might have been necessary for this or that it must have been committed by an adult by the plain of seems to i suggest that a lot or mix mix it in a lot i just clarify that for the record the dr schmidt did not do that and that none of the investigators  ever attributed that statement to dr schmidt there are seven undisputed or uncontroverted facts and circumstances that i believe show that the differences of opinion between the plane of experts and the defendants here do not equal evidence of intent to deceive or fabrication first once a little long in the next one once get a little shorter but the first one is that d smith has a great deal of experience as a forensic pathologist in cases of child abuse or suspected child abuse and he is widely recognized as an expert in this area and he's the chief medical examiner for wayne county and has been since two thousand has consulted out approximately two hundred cases of child abuse or suspected child abuse including this faris case and he has used the same essential methodology to review and analyze evidence and form his cause of death opinions in all of these cases second dr schmidt has testified in approximately thirty cases of child abuse or suspected child abuse and is because udev opinions have never been stricken there ha the reliability of his opinions and both such motions were denied and he was allowed to testify third there were two michigan circuit judges who reviewed and considered the cause of death opinion of found their cause of death opinion to be either highly credible or to be reliable and admissible under m r e seven o two fourth this same essential cause of death opinion it was on the death certificate and information and believe remains there and has not been changed as a result of the opinions offered in this case by the plane as experts or anybody else fifth neither of the plaintiff's experts that the defendants have identified an incorrect cause of death six the defendant's essential cause of death opinions are shared by at least six different forensic as a result of intentionally inflicted trauma seven there is no evidence or allegation that any of the defendants tampered with or concealed evidence made false statements of fact or head any motive or reason to single out or to single out plaintiff or to cause him harm under these undisputed facts and circumstances or uncontroverted facts and circumstances the differences of opinion between the plaintiff's experts and the defendant's expert in the defendants rather do not equal evidence of intent to deceive or fabrication judge oncle wrote a well reasoned and well your honour's defense counsel spends its time talking about issues of resumes and credibility and honest opinions none of which are supposed to be evaluated at the summary judgment stage and expect qualified immunity this case you know sought more information on how they how they opined on the behavior and of the defendants in counts and in characterizing were concluding that these injuries had to be inflicted by an adult hope and it was retained by the point of stated dr de young had no scientific basis to opine on the amount of force necessary to cause the injuries seen and killed fisher and she had no scientific basis to inform the police officer this is this had to be a hit this had to have been committed by an adult or testify that it could not have been done by seven year old she went on to say that rendering those opinions were far afield of anybody in their expertise if in fact dr duncan the young made those statements to the police she would have been acting recklessly if not intentionally distrustful to what she should have been able to say to the police were you know if the they were incorrect i mean what other than the fact that the statements were actually incorrect would work if they were what what would be the basis to conclude that they cast to the will just open pandora's box and everybody will be soon and nobody will ever assist the police and we need them to assist the police i think the line when you don't have a case where you have the smoking gun and you know you took blood from one body and didn't do you know transplant it was some other body i don't you know something like that i think the line needs to be did the forensic expert did the the toxicology expert the medical examiner or whoever it is did they render things that we can say justified had therefore we are just up there speculation and we don't have any expertise whatsoever they did say that did yes dr de young said well that's not what i would have meant they must have misheard me because i would not have told  police officer unequivocally that it would had to be caused by an adult it surprised me when she when i heard her say that also but that's what this case uncovered and if that is in fact out signed the scope of outside the scope of their expertise we've submitted evidence in our brief which i believe stance or no yes i believe they knew it was outside their they knew and the lad was deliberately yes i believe they did sir it's ridiculous it's not in that case i believe dr de young was completely improper in incompetence to say that from the very beginning in every statement by any of these doctors after that was to support her original conclusion all that's what i believe but i went through this case for three years in there was simply no reason for her to state that other than either complete incompetence or for her to be stating what she thought the police wanted to hear all the other statements after that merely tried to support her original statement to the police that this had to be caused by an adult this had to be within minutes to hours of her death in only when challenged by counsel two or three years after the