as a result of that three bill hemmer if you suffered catastrophic injuries difficultly mentally on the mental side if you was effectively destroyed to the point where he had to start doing rehabilitation beginning at a on the physical side it was very similar after working really hard and really are husband mike miller saying during all this and working where they are and the caring you've shown she can now will stumble forward a few steps with michael helping her along the way all this now comes after taking birth control pills that are at issue in this case and by way of background karen harvard has been taking combined is that there's a combination of estrogen and progestin in the pills as both of the different formula common cumple in this in order to achieve the purpose of the birth control pill only twice the nd time a few years later he gave birth to a son james and that he was twelve years old at this time you know all those years the twenty four years prior to this incident you never read any problem with birth presumption in favor of causation that with a proper label there would have been a different prescription given what is the consequence of that presumption that i can do so and so and twenty t in the deets case our court said that if a warning is inadequate or presumed to be inadequate then the maintenance must demonstrate that the deficient warning proximate cause the injury was unequivocal and understated that there was no other treatment that was available to dr and dietz testified that no matter what i would have known and in a different warning label the warning label here that there was only one option i had for this particular patient was paxil that's what he gave me said no matter what the warning label what about what is done the same thing so when you look at the balance of risk and benefit the doctor says no matter what i would have known about a greater risk i had no choice in this case i want it done the same thing exact absolutely inapplicable factually this case number one there is of course that your honor is right about the diesel but there's also a presumption under georgia law that is if the warning label was deficient and in this case is taken as a given that it was for the purpose of the summary judge motion and on appeal there's a presumption of causation in terms of it making a difference about what drug would have been the th circuit was one that talked about it that was then the doctor said it was approval and that analysis by the hawkins case the puerto case of course is the case from the district court northern district where judge forster went into this issue a great length and talked forester said i think it's going to be it's bottle in georgia that was the basis that that was his decision and that case is affirmed by this court so there's everything is everywhere in the country it's there's a presumption the only question is whether it's a presumption i can find it in the law elsewhere in other jurisdictions but of course i'm erie bound by the law on georgia if georgia has never postulated a were b goes into this in detail on the th circuit already affirmed that ruling and again if you look at the harken case very closely that's in there but again in this case runner we don't even need to get to that because on summary judgment there's got to show that there's no then appropriate whether or not a presumption dr rao he testifies unequivocally that i make my prescription decisions based on balance of risk and reward with this drug there's no question that there's an enhance risk and there's also no question that there's no enhanced benefit by buying as over the earlier contraceptives they had a lesser arrest by a factor of two to three of having a stroke at this sort of clot that can cause a stroke been a different prescription that's the evidence in this case that just the court really ignored that particular feature another thing that dr ali testified to unequivocally is he did in fact change his prescription testimony with regard whether that is by somebody under him that's his legal responsibility since he signed that prescription that there are people that the rd thing is the abt the undisputed objective features in the practice which is as  right after the able to two thousand and twelve warning the by as level prescriptions of the office crashes it goes way down to the point where soon thereafter as he testified his word he only occasionally quote unquote prescribed communications with this patient is collaborative so you got to read all of this testimony together he says it's in joint decision between them and if a patient comes in knowing independently that there's a higher risk that's going to be part of the collaborative process but to say that limited significance of the testimony when he testifies it is collaborative sure the patient also makes a decision on this that the doctor says look here's birth control pill one it has this risk birth control pill a  do what the man says close quote but she didn't say it when she didn't say it wasn't asked by defense counsel if dr rao he had told you that by twice as much risk three times as much risk of stroke as this other pill but had no additional benefit what would you have done well st of all she probably couldn't they testify what she would have done back then because of her mental acuity but she's not going to say gee i would for certain for certain we only have to prove that we only have to show in a record there's insufficient evidence upon which we jury could have found could have found that there is causation and it would have been a different prescription and we only have to show that there's not that sense from which your jury could have inferred and all these areas of testimony we're talking about the risk benefit analysis that dr beller says he always uses the decrease in prescriptions for the chart by as disappearing being only occasional use when a particular patient needs it and is explicit testimony of the changes they're used to patients and that again is advice to patients so she says she does what the man says and he says i order verbatim verbatim that's from a judge an order is closing argument a bear there as some interesting points in the deposition talking about this and that if you take those there can make those pointed a closing argument to a jury kept prescribing it after bear changed label and two thousand and twelve to add additional risk information that evidence breaks the causal chain in an attempt to withstand summary judgment the pla speculate about what dr rally might have said in response to questions that they chose not to ask him they offer no evidence from which a jury could conclude that a different warning from  would have led dr rally to make a different prescribe a decision the plaintiffs therefore cannot show that bears failure to warn with the proximate cause of the plaintiff's injury i'd like to focus a bit on the testimony from dr rally that required summary judgment and then i'd like to address a few of the points raised with the plaintiffs this morning and their argument that the transcript from dr rallies deposition is about his prescribing practices in after the two thousand and twelve label change all of that testimony does undisputed and it's unequivocal st with respect to his actual knowledge of the risks at that time b as dr rally ali knew that b as might have a higher risk he was asked to page ninety seven of his transcript were you aware of the possibility of an increased risk of blood clots from pills like b as in may of tw yes at that point he knew about a variety of studies finding a small increased risk from pills like the as he knew about two studies that were warned about in the twenty two can be as label that has to muddy the pages nine rally testified at the later studies were quote no different from previous studies showing a slight increase in those later study is found a two dollars to three dollars fold higher risk from till's that were similar to be as and those were the same studies that bear added to its label in two thousand and twelve the undisputed had stability about dr rally's knowledge shows that he was aware of the studies and the twelve label change he testified unequivocally that he continued prescribing b s and testimony as it page sixteen he also testified that he continued to believe that the benefits of the as outweigh the risks in patients who had already been taking it for some time with no problems that testimony is that page one hundred and seventeen he did not alert any of his patients when the label changed he said that was because quote the relative risk that was discussed was actually very small and just to put that into a bit of context what he meant when he said the relative risk was very small the risk of getting a blood clot while taking a birth control pill any birth control pill is generally believed to be less than one in a one thousand even if you increase that risk by two or three times that still a very small risk the risk of getting a blood clot during pregnancy is higher that data appears in the b s label which is a document thirty four dollars dash five it was reasonable for dr rall that the risk from b as even higher than other pills was still very small it was also reasonable for him to conclude that the benefits of be as still outweighed their risk particularly in patients who had been taking it for a long time without problems mrs hubbard was just such a patient by the time of her december twenty other prescription she had been taking b as or pills like it for more than a decade now i'd like he was not asked that precise question your honor but it doesn't make a difference because the questions that i asked him elicited the equivalent of an answer in the affirmative that he would have still prescribe ad b as if he had had the twenty one label in hand adam he testified that he was aware that there was a slightly higher risk and he'd have to buy that he continued to prescribe it afterwards particular times and his deposition was that it was for example it was the standard practice in his office that she would have received counseling on the risk information about the as it had come out before her prescription all of the studies that we're talking about were published before december th eleven prescription and he testified repeatedly that he believes she would have been informed about that information suburbs he did not know what nurse come call would have told mrs hubbard he didn't have actual knowledge of that but let me tell you your honor what he did testify about how she would have been counseled he said at page one hundred and fourteen of his transcript he was asked you believe you would have shared with mrs hubbard the information about studies showing a possibility of an increased risk of blood clots from yasmin which is a related kill answer yes at page one hundred and thirteen dollars he testified quote it was something which the f d a had come out with but there had been studies before which had also suggested that increased risk which i think would have been shared with her prior to that event and then at one hundred and twelve dollars he testified that it would have been his quote his offices it would've been that the office is quote standard practice to give mrs hubbard additional information about the risks associated with b as if there had been new information since the last time she'd been given a prescription just with jack and let me follow up on a question you just said that  practice for them to sort of date her on midsummer on on any risk that they became aware of and i noted that the f d a had issued a warning in two thousand  twelve label is the same as the information from prior to that label the reason that matters is because i had that prior information that came out from the f d a trout two thousand and eleven dr rally testify that he knew about that information so it doesn't go to the adequacy of the label it goes to dr rallies actual knowledge of the risks notwithstanding what the label says it's things we know the doctor rally himself didn't do not counsel the patient why everyone to know about all this study and come up with patients in this case and at the to at the time under georgia law dr rally had to read the responsibility and the authority to write the prescription and so he was the one whose knowledge mattered my understanding is that later in georgia after the times after the relevant time period nurse practitioners abt the law changed they were allowed to write prescriptions that that was not the case at the time of mrs hubbard's prescription the counseling is i believe irrelevant in this case your honor but not necessarily for the reason that you're suggesting that the reason that the counseling is a relevant is well there's two reasons  testified on equivocally that his prescribing practices did not change after the label changed and that the label did not change his testament of the risks and benefits from b s but too as i believe you're on  have not done that with respect to mrs has covered has to money nor did they put in a declaration or anything like that from mrs hubbard or from her husband or anybody else that might have created some kind of fact question on creating that would have that would have made the counseling relevant so that you know dr rallies that was part of his prescribing to change practices did not change it was also undisputed that the reason his pursuit religion thank you but the reason his prescription decreased was because the patients themselves decided not to take at the end after the label change we know that mrs hubbard was not that kind of patient based on her testimony that i asked her when you decide to take a prescription medication it's because your doctor has recommended an answer correct the other point on that decrease in the number of prescriptions dr rally wrote after the label change there's nothing in the record about whether prescriptions for when i like the plain test the priest which is to say doctor rally continue to believe that the benefits of b s outweigh the risks even after the label change for women who've been taking it a long time without problems that one hundred and seventeen  deposition transcript and it was very important to him at page seventeen at his transcript he made clear that one of the very st things he does i think he said it was the st thing when he is counseling a patient on birth control birth control is to ask them what they've been taking in the past and whether they're comfortable on it that's very important because if you're you've been taking something without problems it means it's less likely that you're going to have problems going forward i'm going to i'm going to return  case the pastor of the pastor of the defendant's motion for summary judgment your honor was very different axes the defendant in that case had raised as a basis for summary judgment the adequacy of the warning  from reading the opinion i believe that may have been the only issue that the defendant raised in that context it made sense for the court to find that you know in order to resolve summary judgment they had to determine whether the warning and sixteen where the court says in cases where a learned in or near a has actual knowledge of the substance of the alleged warnings and would have taken the same course of action even with the information the plaintiff's contends should have been provided courts typically conclude that the causal link is broken and that the plaintiff cannot recover doesn't say rebuttable presumption but essentially means the same thing that of course and porter the court did say there was  point it's not a it's not a case involving prescription medications but it does address this question about whether you have to think about the adequacy of the label and whether that was where the presumptions are and that's the powe s of this motion we have said you can presume the out of the warning is inadequate we do not as a matter of fact concede that whining is inadequate but in terms of the shifting our yes for or for purposes of the shifting examination he definitely looked at the warning labels that came with the drugs that's what he relied upon if he says also in his deposition we're not experts we need to rely that's why we rely in our practice on what the f warning label is so real interesting conversation about the f d a statements but you never saw them there's no evidence of that when he's asked to opine about their significance what's wrong about that and so you're now are not trying to convert dr rahway not into what he would have done under the circumstances but an expert witness to say that the label had somehow been cured by this which is contrary to all the other reports we have about the intentional mis dollars she said would it be standard practice to give me the additional information about that with and he said if there had been new information the last time she'd been given the prescription yeah and then you  controversy over the safety he's never testified and never says i learned before two thousand and twelve that there was a two to three times and hand risk of clot and stroke you never had that information and he's unequivocal  there is the ongoing benefits of taking the drug regardless well what do you really mean by that st of all if you look at just moneys talking about what he thought in december of two thousand and eleven he did this prescription he's not talking about later when he finds out about n when he said where the benefits outweigh the risk in patients taking it what does it mean when he says if you always consider the risk in the benefit we know it's a matter of fact after the april two thousand and twelve warning labels change that this drug has a significantly higher risk of stroke and clotting than did the previous drugs no benefit in addition at all for care and hubbard by getting by is so using that  there's no loss of danger there's no there's no fertile you get over if you take it for five years without a stroke you're not home you still have the enhanced risk and there's no evidence that would prove or show to the contrary cohort that were study that had a particularly high risk but i don't think that means that i think it was the absence of data for later ones and why they made that same it is my understanding of that study but it doesn't mean in any way shape or form that there's a lot equal risk to the prior generations of birth control pills after six months or after a year there's no statement in a warning label to that effect and there's no evidence to that effect there may be a lack of proof about some of this going on for twenty years and it takes twenty years to do this study so you have a true randomly controlled study you literally have to run it for twenty years you could have that data for that period of we somebody on it and often so no there is no short answer and there is no evidence in the record that would have given a quote safe harbor to giving by as to ms hubbard additional benefit and it just makes no sense why would you give that choice any patient you have an enhanced risk here you have no additional benefit would you like to have the enhanced risk of a clot or stroke no you know that's