the order of the court we clearly presented evidence of our client a genuine issue of material fact the court glow clearly weighed evidence and i would point you to page ten of the summary judgment order on page ten of the summary judgment order of the court specifically states that miss bergen and miss reached a conclusion that their injuries were caused to be related to the obviate at the time that they had their removal surgeries in addition to that the court below said that my client could not quote seriously dispute that she causally connected her injuries to the at the time that her physician dr keith grisham told her that her body was rejecting the object your is we seriously dispute those facts and we believe that the evidence of record from our pliant miss bergen shows that number one she had no reason to suspect until she saw a television advertisement that her injuries were called connected to the obfuscate and that appears in her deposition testimony a document forty one dash for the record on appeal in addition our client clearly testified in her deposition that no doctor ever told her that her symptoms which included knowledge knowledge to pass along to miss bergen that her injuries were related to the couldn't you have been just look fundamental fact i should know but i doubt what is the underlying basis of your suit against the maker of this product what are you saying was wrong with the pores in the particular mash product your own are and were alleging that the company is strictly liable for that we've also alleged that would be sort of be notice when these problems are happening and who knows what the reason is but one thing that happened was that her testimony just because your body is rejecting the tape and on what she thinks sometime at what the reasonable person would think you don't know you've had a procedure something's foreign objects been inserted into you would one not reasonably think you know you rejected maybe the surgery was done improperly or maybe there's something wrong with a foreign object well your honor what she has to appreciate in that situation is under the texas discovery rules she's got to determine what impact is causal connection and so your honor we look to the supreme court of texas for that they decided when the child's first hosack or case what a causal connection was this court also had the opportunity to term and what a cause no connection is in the rogers consolidated appeal and this court specifically held that where a patient's own physician does not recognize that there is a causal connection between a product and the injuries that that person is complaining of that there can be no causal connection and what is her testimony that that the possibilities if she never ever thought there was something wrong with a foreign object what she thought had gone amiss what was the evidence on that she thought that her body was rejecting the tape it was the host response from her body your honor she did not believe that there was anything wrong with the tape just because her body was rejecting it doesn't mean that the tape itself was the origin of the problem there could have been any number of other problems as dr grisham testified in his deposition the problems with the tape could have been related to early intercourse to trauma to poor wound healing or infection so miss bergen testified very clearly in her deposition but it should have also been the tape could not see a lot of causes couldn't it also  recently think that he's the type he inserted something's wrong with you but your honor the fundamental question is did the court below weigh the evidence and determine that my client should have known that there was a causal connection between the tape and her injury or actually the actual body of the tape can be removed the arms are placed in a space in a woman's body that actually the physicians normally cannot reach so in this particular case it turned out that it wasn't the she just had a bad doctor and the doctor master but she never considered that the doctor made a mistake because she thought you know her body was rejecting the take so would she also be able five six years later to see the doctor because later on she decided i think the doctor's the one that messed up w an individual knows the nature of their injury and in this particular case your honor she let me back consider your question again should have yes your honor the standard is whether the individual either knew or should have known at the time of the injury and in this particular case you look back at the child's versus hasa her case this court looks to the texas supreme court to determine what the cause of connection is in that case to individual employees filed a lawsuit alleging that they had sustained silicosis as a result result of an occupational exposure and what the texas supreme court did was they specifically looked at what those employees knew and when they knew it based on what their doctors told them and the court specifically found that with regard to mr haas occur he went to his doctors and told his doctors i believe i may have silicosis and two of his physicians rejected that and told him that they did not and so what the texas supreme court said in that case is that reasonable minds could differ as to when this particular individual came to the conclusion that there was a cause of connection and so we submit that that should be the same standard that applies in this case and furthermore it's not necessary for this court to reach a conclusion as to whether texas requires a wrongful conduct element in their causal connection discovery rule and the reason that we say that your honour's this because of the fact that in this case this court can the texas are under the matters appeal to this case the defense has brought a hold on let me interrupt you for a second on that same train of thought mentor argues that least in court that there are some fifth circuit cases applying texas law that sort of either cut back on child's or apply child in a way that is contrary to your interpretation your honor one of the cases i believe the court is talking about is the porterfield case and the porterfield case that was the western district of texas that had to make a determination as to when an individual's cause of action work accrued as a result of the implant of hernia mash and in that particular case miss porterfield actually went to her primary care physician and talked to her doctor about her suspicions that her hernia mash could be causing her problem and in that case she also did some of her very own research and the fifth circuit in the court below held that she had knowledge of an association between her hernia mash and her problems the day she sat down and wrote a letter to her search and who implanted the hernia mash that is not the case here your honor we do not have any ladder that our client has written to her physician expressing concern about it had no knowledge of any problems with the r tape until the time that she saw the television advertisement in january of two thousand and eleven or scuse me in november two thousand and eleven we're also here before the court today your honor to argue the standard of review and the standard ever be you in this case whether this court looks at the decision under rule fifty nine a motion to alter or men or under on denote the overview of that summary judgment we submit that we satisfy the requirements under both of those specifically with regard to abuse of discretion that is the standard that the court might she use in order to determine whether the motion to alter or amend was wrongfully denied and according to this court  alexander versus fulton county in two thousand case under an abuse of discretion standard a clear error of judgment requires reversal and your honor it's we submit that there is a clear error of judgment in this case the court below said that my client should have known about her revich and at the time that it occurred and she should have known there was a costal connection at that point my client clearly testified that she thought there were vision was to treat her symptoms not a defect in the op take the court below clearly said that my client couldn't seriously dispute there her injuries were related to the object when she knew that her body was rejecting it misspoke and specifically testified at document forty one dash four in the record on appeal that she believed her body was rejecting the op tape and not that there was anything wrong with the sling we submit your honor is that under texas law a cause of connection cannot exist where a patient's own doctor does not realize that their product is cost connected to the injuries that they sustained and we also allege on it that at a minimum this court should find that the court below improperly weigh the evidence and reasonable minds can differ about when miss bergen reached a conclusion that her injuries we've also alleged your honour's under the matter is appealed that there is a clear intent to appeal the summary judgment order based on our underlying complaint we essentially would ask the court to look at the public policy reasons for our motion to reconsider and why we specifically appealed that your honors in this particular case if you look at the district court's ruling it's clear that the court in april two thousand  different from the facts of our case her doctor her doctor actually told her that her op tape was cosily related to the injuries that she'd sustained and we submit your honour's that the appropriate ruling from the court in this case would be a revers the apple we mentor worldwide fellow c your honors this court should affirm the district court's the nile the plaintiffs motion to reconsider there was no abuse of discretion by the district court there was no new evidence brought forward in that motion to reconsider and there was no manifest error of law in that what it says doesn't that notice of appeal like every notice of appeal from a final judgment bring up everything that preceded it it does not your honor why not because the law is very clear that this court's jurisdiction is limited to the description within the notice of appeal that's not a flat out rule in the ost or net case this courting the eleventh circuit said that this court may only review the scope of what's identified in the notice of appeal in the white versus state farm and that's not but that can't be completely descriptive because if you appeal a final judgment that says final judgment in favor of x nothing else that brings up everything that preceded the final judgment in favor of x now is it not necessarily or are you telling me that if if you have a verdict against you after a full blown jury trial and the district judge enters a judgment on that verdict and you appeal the verdict you can't appeal the district judges evidentiary rulings a trial even though you didn't mention them in your notice of appeal for sure you can get out of you can't appeal the jury instructions absolutely that's all that's all tied in with the final judgment those are errors that are that are and in in connection with the trial that led to the final judgment sure did not appeal the court's denial of a summary judgment motion well that but that's not for that reason that's because the supreme court has said that you don't get to appeal summary judgment denial suppose verdict it's not for the notice of appeal reason sure but i think it's consistent with the same policy that we have this a bit but and a motion to alter amend the judgement on the rule fifty nine told if it's timely filed tolls are to time for appeal does it not it tolls the time but the notice of appeal still has to identify the order upon what david just david just says we appeal would that have been enough to bring everything up possibly but here in this case they were very descriptive about what they were appealing in the north of appeal and we have the white versus state farm case that is exactly on point in that case the notice of appeal said we are appealing the order on the motion to reconsider not and there was a prompt there was a prior summary judgment order and this court found white versus state farm page eight sixty four there is no jurisdiction to look at that summary judgment order we're limited to the scope of the notice of appeal they are going to bed and have to i'm sorry your honor your head go ahead they didn't have to formulate the notice of appeal the way they did they could have said we appeal generally they could have said we appeal both orders but when they chose in the notice of appeal to appeal only the order of the nine motion to reconsider that limited this quarter's isn't that the isn't that the order that makes a final judgment no they could have appealed to the no one to file a rule fifty nine motion you have to wait for a ruling on that rule fifty nine motion to have a final judgment do you not correct to have a final judgment yes so i think  was granted but the room but the motion told the finality of that judgment does it not i believe it i'm not sure if it tolls a finality of the judgment or told the time for an appeal for an appeal and i think that's a distinction that but but the important point is that the notice it doesn't matter what the motion itself did it's what the notice of appeal said in this case the notice of appeal in this case said he does not treat him from the nichols case an exception to all this applies if it's readily apparent on the face of the notice the over riding intent to appeal where the roof fifty nine motion was in or twined with the summary judgment argues arguments where there was no reason appeal only the motion to reconsider not really fifty nine which was that case and where you're not misled or prejudice she weren't misled or prejudice this were you that when they follow their brief you know what their arguments are well i know what their arguments are but i don't know that they're i think when when the notice of appeal says we're appealing the order on the motion to reconsider that's what we thought they were appealing that you're spending so much time on this makes me wonder if you're concerned about the merits of your are not happy to talk about the matter that might from my point of view that like  my colleagues that might be a good idea want to make sure i answered the court's questions first your honor there were four point cases interpreted texas law on including one by this very same judge granting or affirming summary judgment in virtually identical circumstances involving its product liability claim for a medical device in this case and miss bergen's case in both march and september of two thousand and six seven years before she filed her lawsuit she went to the doctor who implanted a medical device and that doctor had several discussions with her about the nature of what she was experiencing and said we dr gresham testified that he would have told her and in fact believes he did tell her that he had a conversation with her that the exposure of the mash required surgery and she needed to be treated and have the mesh removed i know isn't a summary judgment posture so what the doctor says he related to her is not really all that important what really matters is what she said he told her what actually matters is what he had knowledge of at the time and know and have told her and not let me explain yet one runner and man oh let me let me get a word in edgewise and then you can respond i'm not disputing legality with you or the a political legal principle i'm saying the facts that matter at summary judgment are what she says the doctor told her not what the doctor says he told her right now your honor may explain sure of course because the standard in texas is what you knew or reasonably should know or have known to trigger the statue of limitations and dr grossman says indisputably fun challenge testimony that whether he told her not he would have told her who the manufacture of the device was that her injuries were connected to the yob tape mash and that she had to have the mash removed because of th complications that she was suffering and what did she say he told her she says two different facts that's what matters it doesn't matter what she says it's what she really know ok i understand that it's a no or should have known standard i got that i understand that's what texas law is but at summary judgment the facts that we have to apply that legal standard to are the facts the underlying historical facts and inferences in the light most favorable to the nonmoving party and that's your opponent in this case right correct so you have to take at face value a less there's a document that completely contradicts her testimony that she signed or something you've got to take her version of that conversation with her doctor do you not not in this case your honor and your lawyer you are you really you really lost me in a summary judgment posture and if he's if she says if she says the doctor told me listen you have a problem but it might be that your body just rejected the tape nothing else so we've got to remove it says nothing about whether or not the product is problematic whether there are issues with it or anything like that just says it looks like your body just rejected it that happens in two percent of the time it looks like you're one of those unfortunate two percent we have to remove it according to her that's all the doctor told her nothing else the doctor says i told her that doctors around the country have been having problems that there have been complaints against this manufacturer that the literature was starting to show that there was some product defect in all of that one who's version do we take for summary judgment here's a difference ron or the doctor in this particular case dr grisham did not affirmatively mislead the plaintiff i'm not asking you that question with all respect but i want to know in my hypothetical because if not you and i are at very different points at the summary judgment stage understood who's whose version of events then you have to apply the texas standard to that set of facts god but whose set of facts do you accept that summary judgment hers or the doctors i think the plaintiffs version of events are more favorable to her so you accept them in that instance of course so here what matters is what she said the doctor told her now there may be other things that show that she should have known but in terms of i guess what i'm trying to get you to agree maybe you won't agree is that in so far as that conversation between doctor and patient is concerned what controls is what she says transpired not what he says transpired if it's more favorable to her yes and here it was she i'm not sure it is she told me what she said she just says that she doesn't recall anyone telling her that it was connected to the match that is that in the light most favorable to her that means that she wasn't told because you would think that a human being undergoing those sorts of problems would remember that sort of statement now it's a self interested statement understood  happens all the time in summary judgment she wasn't told by the doctor but she also testified that she knew the mash was being removed because it was causing her injuries but how do you know but how do you know the reason for the problem because child says that you have to know not only the injury but that it was likely caused by the wrong for act of another what if her body rejected the obtuse or if the doctor had committed malpractise in placing the opti that's not the wrongful act of mentor is the wrongful act in a product liability lawsuit is that the product caused the injury and f there is a reason for removing the op tape that is different from a product defect she's not on notice or there's an argument that she's not on notice that it's a product defect that caused the problem right she is on notice if they tell her your body rejected it there's nothing if they told her you're there's nothing wrong with the tape itself it's a great product but your body just rejected it some people reject medications and devices would she have been on notice she's on notice once she learns that the product was causing her injury under texas law that's the law the cootie even if they tell her that it's not the product itself but it's her body that's causing the problem that is rejecting it if they tell if they tell her that it's something else you are severely bodies rejecting it that's my hypothetics that's the same thing no logic to scoffing the injury that is occurring route and that's that's why the district court was correct here the plaintiff it mended that her body she understood that the mash was being removed because it was causing the problem her body was rejecting it that's a link between the product in the injury that's all that's required under texas law tell me lecture but to me this case is going to come down to what is texas law which is confusing correct so you have the kind of environmental  work issues from child then you have some other language suggesting well you don't have to know that what caused it was done caused by wrongdoing you just have to know the phenomena that caused it tell me what your best couple of texas cases are there are three cases that plaintiff met with her physician was understood that that the d was causing her injury and it was removed seven years later she saw a newspaper ad in then use argued that that should be the trigger for the statue of limitations the appellate court said no it's when you sat down with your doctor and it was the i u d was connected to your injuries that's number one and number two is the porterfield case that involved a medical device a mash the plaintiff had an actual knowledge that the problems are related to her mash yes she did independent research on her own but that wasn't the critical point in the decision the critical point was that she sat down with her doctors the very same ones who implanted the device and understood that there was a connection between the mash and her injuries number three is that pavlovitch zimmer case from the fifth circuit and by the way all of these cases affirmed summary judgment that was granted by the trial court in the zimmer case the plaintiff had a rod and i believe a leg or an arm had some pain during the time that the plaintiff had the pain that did not trigger the statue of limitations what triggered the statute of limitations was when that patient went to the person implanting the rod and sat down and looked at an x ray and the doctor sat that brides are causing your pain and need to be removed summary judgment affirmed him importantly in none of those three decisions your honour's and none of them did the court say we need to look and see if there was some wrongful conduct by the defendant did they know of something related to their product did they know of literature or science or internal communications showing that their product was defective or anything along those lines that was not part of any of this analysis and any of these three cases were summary judgment was affirmed why did why do you think the on the other side of the ledger because those cases do support your position that the district court in jenny is getting these cases wrong i don't think the district court got i'm wrong your honor now lesage and in west virginia and west virginia i think it's a it was a close call they didn't have the facts in those cases they didn't necessarily have the facts in those cases that we have here there's an argument that the court didn't get it wrong because the plaintiff didn't exhibit that lack of understanding ethic here's one of those west virginia cases ethicon argues and this is the argument th aware that her mesh products may have caused her alleged injuries no later than july of two thousand and eight the date of her surgery during which her roaded measure was removed when doctors informed her multiple times that the ocean was a potential complication of the june two thousand and seven surgery and miss durham also believe that the mess caused pain and discomfort during intercourse on multiple occasions in two thousand and eight so despite all of that that this record denies summary judgment i would think whether you think that is right or wrong that it it goes against your position there must be a case of there are two decisions from judge goodwin and west virginia and there's there's one where it's a closer call you know there's a case called hubby and then there's a case called durham and then in the case that your honor just cited i think those facts suggest a summary judgment should have been granted and judge would goodwin got that decision wrong ok i just didn't follow texas law i'm not sure the different than a medical device case where you have a very specific doctor who implanted a medical device and you go back to that same doctor and that doctor says that thing is being caused by the very thing that i implanted that triggers the statue  limitations versus what i would call an amorphous workplace injury situation where over time you may have worked somewhere for ten fifteen twenty years and you're not sure if silicosis could be caused by some other environmental concern or your workplace in the district court below went through in distinguish those cases and said in texas product liability cases particular medical device product liability cases have analyzed the statute of limitations  very uniform way when you go to your doctor and get a diagnosis connecting the product to the injury that triggers the statue limitations however in other cases that don't involve product liability claims it's it's murkier because  trigger could be different it's not going to a doctor with knowledge that's a device has been implanted in your body and asking if that complication or trying to determine whether that complication was connected to the product all right thank you very much it please the court with regard to all of the cases cited by the court below in the summary judgment order of the texas cases every single one of those cases your honour's found that there was a genuine issue of material fact that have been presented and the reversal was warranted your honor so i would like to address what really you're saying that the cases he's citing citing summary judgment was granted right now i'm talking about in judge land's order every single texas case that he side decided to go through and and articulate what the rule of law is in texas the gaddis case and the other cases in those cases summary judgment the court found that there was a genuine issue  material fact in those cases that let me go and that's a tell us anything though about rule of law i don't know what that means well let me let me refine my argument your honor and the child sources hasa her case we submit that that case does stand for what tekhelet about the closer factual case is tell us one of the cases he cited three he gave us why those should could draw this decision the passage decision your honor in that case the doctor had brought same planet as in his back and he was specifically told by his suspicion who did a diagnostic study that the rods had broken we submit to you that under texas law the apostle connection was made between the injuries suffered by this individual and the product that had been implanted and we  and she wrote a letter to her physician to the physician who implanted the hernia bash and told that doctor that she and her primary care physician suspected that the hernia mesh may be causing her problem she also did a lot of her own research your honor and she determined that her body's inflammatory response could be responsible for her condition we don't have any of those facts that are saying is your rule should no favors the incurious in the person but you ask enough questions then you get the benefit of a very generous statute of limitations dependent totally on whether you watch t v or not well your honor these are patients going to see medical doctors and i think what's important is what the medical doctors tell these individuals and as this court decided in the rogers case if a patient's own board certified physician cannot reach the conclusion that there is a relationship between the injury and the device that has been implanted then we shouldn't hold the patient to a higher standard then we're going to hold their board certified doctor who went to medical school and that's the issue your honor what is a causal connection in this case and we submit to your honor that the causal connection standard in texas cannot be met in this situation where the plate have testified that the doctor never informed her that there was a problem with the device in your honour's i just like to point out that the testimony sided by counsel for the defense with regard to well i see that i'm over my time you're on you can  by the defense with regard to what dr christian allegedly told my client is based on a question that was asked by counsel dr grisham and the question at the bottom of page forty one dash five of the brief is does it appear that on three separate occasions prior to your march twenty second surgery with ms bergen you would have discussed with her that she was having a problem with her match sleeping and the recommendation was to operate on hard to remove that piece of that was exposed and here's the answer again i discussed with her her options one of the options was extension of the mast mesh so yes on several occasions we would have had that discussion that does not stand for the proposition that dr grisham ever told this patient that there was a problem with her mash as a matter of fact in his testimony which is very clear he testified that he never told her that there was a problem with the match let me ask you one more question again this case comes down to may texas laws and i agree it's somewhat confusing different signals are given should we certify this question to the texas supreme court well your honor we take the position that it's not necessary for this court to do that in order to decide this case under simply a causal connection standard you don't even have to address whether texas has decided three cases that are favorable to its position i think a couple of our courts of appeal cases we've had different signals from the texas supreme court should we try to get your honor in order to reverse the judgment of the trial court in this case it's not necessary to delve into texas law to determine whether they have a wrongful conduct element this court can make the decision simply based on what is or is not a causal connection under texas law yes your honor you could certify the question if that was something that the court wanted to do but i submit to you that you don't have to make the determination as to whether there is a wrongful conduct element what this court has held in the rogers case regarding causal connection which was a determination of the minnesota statue limitations which is very similar to the texas statute of limitations thank you all right thank you very much we're in recess until tomorrow morning