the court i am joe joe's and represent council however you may think your voice carries very well but the coup sticks are really terrible here i'll try to if you could just speak up like there's no microphone then we'll get all of your arguments down a part of it because i understand you only get paid for that part we hear not the park you know that may be determined by the outcome to your right the court please i think there are two issues before this body one is the issue of negligence the second the third party beneficiary status i want to talk about negligence first because otherwise the court might assume that i'm over defensive about that  feel that the respectfully that the district court heard in holding for summary judgment on that issue of negligence as you know the district court said that there was a duty and there was a breach but had trouble with the problem of  causation we have cited the robertson case from arizona this this incident happened in arizona you actually know missions happen in arizona for the proposition that the defendants act or omission does not have think that was sufficient to take the case to a jury on the question of of negligence well before you pass over that is that is that the law as you understand it no matter what they say even though though they're terribly impeached and even confessed that they've been telling a lie if you graph something in the record you get to go that's seems to be what your statement was i don't think you meant that isn't there some test that a journey that the evidence has to be such th jury would accept it for the position that it's given and the argument is that when she says i don't know under oath i don't know i can't tell you that there isn't enough to go to the jury i think that's the argument but i certainly don't think she said i lied i mean no no no no no i was extreme there in saying that that there is some areas it seems to me where it doesn't go to the jury but to your case it's mainly she backed down substantially when she says excerpt there was a small window once the original trauma healed to try to provide help through stimulation i think that there would be enough logically a jury having heard both witness s the doctor who i don't think examined mr miller and mr miller himself could determine that there was a relationship between the delay in treatment and his speech impediment his permanent speech  a and from my perspective that case stands for the proposition that under alaska law which should be the law governing this issue mr miller is a third party beneficiary of the contract between the state of alaska and c c and there's any question about that it did occur to me that someone might say yeah but that decision came down in february after the united states district judge ruled but i thought i remembered from my law school days  proof contract claims their party well frankly you know at least i think there is a difference your honor in that at the minimum under restatement of contracts section three forty six where the but i think there is what i said i think still pertains that if the court if the findings were that there was little contribution there would be relief but the relief would be nominal or small under contract law perhaps nothing under tort law well they were considered by the district court i know yeah and i don't know letters i'm sworn and under our rules they don't count for just for determining summary judgment i was just wondering what your position was on that well i think they have been treated as part of the record by everybody and by the i know very little of when we look at it we have to decide whether they're right or wrong in treating it that way are you suggestin or stipulation that there was no there was no stipulation but the jury instruction you know i don't i don't think so no i think the district court referred to both materials i think all the briefing room for it to both materials and one part of one part of the goss letter where she says we are looking at nerve damage that was disregarded by the trial court i think that was a mistake contract which is the question that the court asked us to address in rafiki what the court held was that the prisoners were third party beneficiaries of those portions of the contract that came directly from the clearly clearly f s a the final settlement agreement and in this case we have no evidence at all that the portion of the contract upon which mr miller relies was taken from the cleary f s a or that it has any relationship to the cleary f s a at all the contract does say in general when it talks about prison operations that generally c c a should follow cleary but it doesn't this case is not the cause the action under the negligence claim which is under arizona law you have the same in greenwich the contract breach you still have to have the same conversation  earlier intervention could have made a difference and then she was asked on deposition well what do you mean by that and she said well sometimes there's a window where speech there could make a difference but in this case i really don't know i just don't know whether it would have and this gone through said well i don't know given the time length how much improvement he's going to make in the future need to know if those can be read or even understood to mean that if you had gotten speech therapy again which is on sworn so well i don't know but given thing the length of time that has gone by i don't know how much more improvement he can make in the future neither of those can be read to say that speech therapy was necessary early so that he could avoid the damages he's suffering now and i dr are no longer just testified in his affidavit he said early speech therapy doesn't make a difference because when we're talking about ne claim the the district court now that the district court knows by the light of the evidence the district court has to apply that the district court was wrong the district court is going to take a new look would take a new look could take a he did not have that opportunity of applying the contract law of causation etc under alaska because he didn't need to correct the way he decided it why doesn't judge noonan make a good point that we've never allowed the district judge to look at it under alaska law why you wouldn't we let the judge have the first crack at it to determine what alaska law applies now with causation  well because i think under any law the causation just isn't there you have to have strong evidence that says if speech therapy had been given earlier he would have improved and i just have one common and if there are other questions it's interesting that when one reads the cost letter and the doctor's affidavit both speak of  need to have healing of the injury before therapy begins but there isn't anything in the record and i don't think the doctor speaks to that as to how long in mr miller's case that healing period would have appropriate i believe that the matter should go back to the court for consideration of causation under alaska law which has not been done and for correction of the determination that there is no third party benefi