get a motion to strike but i know that there is no just solution by judge burgess ruling on any motion to strike or making any determination as to the sanctions under c r third so do we consider them or not i believe that they are in the record and therefore there could be considered rather well let's let's assume from that but the court also doesn't address those and its decision so how do we let you know let's let's just assume for argument's sake that i thought that if those were considered that you lose but if they are considered that you might have a triable issue in in a certain area but in order to consider them because they're late declarations the court you know is response to bill of the when you submit something supplemental to show that it doesn't prejudice the other side in all of that so well we were never given an opportunity by the court to address that issue your honor is that they made the objection there was no additional briefing requested by the court in terms of that issue i've put i would either side can ask the court if there's obviously something the court doesn't rule on either side after a decision can say hey you don't rule on this particular motion so we don't know what you is that since there is no order striking the death for ration that there is no sanctions against the plaintiff is that they should be at issue and be considered by this court declarations which to me independently of whether or not dr mr freeman the pharmacist toxicologist whether or not he could testify against the clinic i think regard this there is that there is was a motion by the clinic for summary judgment principally on cause ation in the informed consent issue and then that was granted we did not even get we did not even get close to trial in fact the depositions of d respect to the issue of whether there was a proximate cause between the conduct of the clinic and listen sleuths moment liver disease and the need for of the answer of use is that there would have been on a more likely than not basis abnormal liver function studies in tree salut dr hollenbeck was slightly further and says within ten days and we are the reasonable standard of care of this clinic was to take baseline liver function studies to repeat them within two to four weeks and in this situation has they done that and the have normal results recently prove character that circumstances with then discontinue the anti views and there'd be no injury further injury or damage now in this case is and they're saying that one out of four patients who are administered and prescribed and to be used have abnormal liver functions and the abnormal liver function is because of injury and death to the liver cell the difference between going from a one out of four likelihood of liver injury to death of the liver and need for transplants or is there any testimony in their depositions or elsewhere  that detail your honor but to me and said i think and to a reasonable person if they're told that there is that there is damage to the liver ongoing and the presumption is that it is from a toxic here to see whether or not there is material issue of fact on that on that question and i submit the various from the record when you talk when you look at the declaration of dr  and they think is that is that that's a big difference and you're looking at an average patient and a reasonable patient and not very you can then automatically say is that as a matter of law one out of twenty five thousand that the focus must be on the actual in result because it would be our argument of trial is that if there is reason recruiting medical care given you're going to avoid that one out of twenty five thousand and so if you if you find the problem when it's one out of four and discontinue the drug it's not going to persist over twelve weeks to where there then is irreversible liver failure yourself or attack the standard of care it would have to be that you have when you treat someone for a tax you've got to also review every medication for any other possible i'm not saying every medication from immediate previous history is there for interviews and again if the standard as we presented it is is that you do baseline of blood studies and then followed up by studies two to four weeks later as the defendant suggests we believe that it does not and and that we are in a different situation then the key with the exception of is there an issue of fact on the p this and that because he does not cover this situation and hence we believe is that given the it's traditionally the responsibility of the state of washington to in the way the rule reads it's quite clear that they were supposed to have been excluded under the rule i do believe it's an automatic exclusion sometimes and are just crash mary because if they can show that it wouldn't prejudice she is then they would be able to have was properly considered summary judgment through going tonight i think that's correct if those are properly because it does raise an issue of fact to new material i think yes i think it does on the first issue with regard to i think it's called i think case which is in one circuit case and in that case the parties were attempting as again it just kind of situation which the court did not rule on objections to materials in rule fifty six support of a summary judgment and the court said that a party must either move to strike an affidavit or otherwise lodge an objection in the district court so either one and in this case we did bring the objection to the trial court's attention and this court did consider why the newly disclosed materials are important in the underlying case in the materials in the disclosures the experts stated that you should do baseline testing to see if there's elevated liver function and probably those would not have been elevated the experts said but then you follow up and you test within two to four weeks after that and if there's nothing within those tests within two to four weeks you don't do anything for six months by that time the horse was out of the barn they to perform a liver function studies initially and again within two to four weeks so in the two to four week window our argument was if the start of the first two or three weeks it could well have been within the standard of care showed nothing and until the fourth week it when the shown up according to their experts and therefore defendants went on causation what they brought in at the last minute after the disclosure time and for the first time on summary judgment was the ten data and now the experts come in and and shift their position entirely and said that if the liver function test had been done any time beginning ten days after the prescription of an abuse it would have shown elevated more probably not elevated liver function tests so clearly we were harmed by their shift in position clearly there's a distinction here they claim they would have clarified it's just a plain old change in position it's a contradiction of the prior testimony and i submit that the original p first they said it would have shown elevated within two to four weeks that's a likely time that's why two to four weeks is the standard of care then they come back on the new stuff and in the new and the declarations in opposition to summary judgment they said it would have shown up at ten day that elevation would show within thirty within thirty days because if the standard of care is within two weeks to four weeks and he sees them within two to three weeks then you can still comply with the standard of care and any time between that time and the thirty days it might not show up and she still would have had the same injury so that that was the point of all that so i believe that th clear contradiction the underlying materials in the first instance clearly demonstrated there was no causation and they really haven't argued otherwise and if those are excluded then somebody just was correctly granted on the informed consent issue second of all that's not the risk that they're alleging that's not the risk that we're here to talk about in this lawsuit the risk that they have been alleging is the fact that it was hepatitis and fulminant complete liver failure requiring a liver transplant they're not here to talk about liver elevated liver function tests that's not the injury that they're claiming damages for and hence we think the risk to be focused on and clearly that has been focused on previously was the one  we're going with plaintiffs expert he's the one who said it's a one in twenty five thousand rest and we think the rougher case applies and as a matter of law this is not a material risk of which needed to be advised another part of the test the plane of didn't address who might need to go citation to at change it to counseling from explain that if the court will look at the language of those two sections you'll find that there is no material change the pharmacist on his head and the tea court points out for interveners injection that doesn't raise any material issues because there was no evidence not even any contention that there was anything wrong with how it was next what happened in fact the evidence is that it was not our evidence for or i think your argument m she drank it there is not a scintilla of evidence that that had anything to do with the injury in this case if there were an allegation or evidence that there was something wrong with the administration that didn't exist and she'd been given hollenbeck but there's no foundation for that opinion it's a bare bones type of the union that he should have done something different it was below the standard of care there's no foundation there's no reference to the standard of care to which she's referring there's no basis for it there was no literature for it and it's simply of their bones personal opinion about what she thought should be done and under washington mark and that's that diversity case under washington law i asked that and all the other ones be of permit one other quick thing about the motion whether we ought to have done a motion with regard to rule thirty seven if you look at rule thirty seven the first part of rule thirty seven c one that we're relying on says that you take that if there's new material they shall not be permitted to be relied upon at a motion at its hearing or at a trial at a hearing or on a motion but the next sentence is important it says in addition to or in lieu of the sanction the court on motion after affording an opportunity to be heard may impose an other appropriate sanctions so they put those words in there on a hearing and with a motion for an alternate sanctions so i think we can assume they don't need a motion for a special hearing with regard to the first sanction it's an automatic sanction so i would ask you to look at the wording of rule thirty five f r c p thirty seven c one because i think tho what are the limitations of the duties of a pharmacist and in fact i submit that they were expanded so paragraph three of whack to forty six eight sixty nine to twenty so as for each patient the pharmacist shall determine the amount of towns clean that is reasonable and necessary under the circumstances to promote safe and effective administration of the medication and to facilitate an appropriate therapeutic outcome for that patient from th briefing your honor that they do have that authority is rarely used but in this situation they could at least call up the doctor and say hey can you order a test you know is that there are they that there  art so if they are going to do it they should be in contact with the pharmacist now i went back to the clinic you know is that we did not waive at the evidence of whether there was one in the four incidence of liver injury and altered liver function studies whether there was a one in twenty five chance of the ultimate progression of the disease that is in filed their objecting really to the content in trying to find some procedural grounds for the court as they concede with established material issues a vacuum the issue that the masters question absolutely are and again is that if there's remounted i cannot see any prejudice because we don't have a trial date and when we're talking about remembering your honor is that i believe is that you know is  that the court can defer to the supreme court on the key issue for certification it does not have to you have the authority to remain archery man with a reversal in our favor if you wish with clear