mind if i went to court we're here today seeking reversal of the trial court's grant of summary judgment on the failure to warrant claim in this case it's our position that there are five points that lead the district court to making an error and dismissing the failure warrant claim the first is that the district court seems to have defended accepted the defendant's argument that the ioffe use which are the instructions for use that are given to physicians in these matters with the product that they're going to insert that these are the equivalent to warning it's our position that it's not an adequate warning and we don't believe that the dish a court applied the case law that's an issue which goes to the brown v lake case out of the fourth district court of appeals in florida dresses the concept that a warning may be defective by an adequate wording but also as a result of this location manner in which is conveyed are experts in this case dr  compared to where the implanting dr are both of the opinion that this warning was inadequate although it appears that the district court it's his his opinion that frankly this warning was very and apparently the doctor was informed and my client was so it was informed and therefore there's no case there's no need for it to go forward obviously we disagree the location the manner these are issues  specifically if you want to get to the the crux of it there's there's issues with what this patch doesn't side of an individual does it say fixated judge can say well  physician mr comparative or you were warned that this would have a loss of fixation but the problem for us is that that warning doesn't go far enough warning use the word fixation on loss of fixation that ward is in the instructions for like you know what the warning was inadequate you're only that there was no warning that the ring is these doctors all the experts use these words interchangeably buckling folding in a break is different i'll concede that there's an issue with that well well you fold i think the problem with  your case is that there's no evidence at all that the ring itself buckled in this case dr firs oco suggests that the ring but he talks about the mesh buckling but he never talks about the ring itself buckling your are it's obvious that you've delved into you know these issues and have an understanding of it i would simply submit to you that flaw it's not your are the issue that i'm driving at is that these words fold and buckle are used interchangeably by all the experts they have the same effect the problem is that of a fold you've got the patch it folds over that's not the point is point is a buckle the point that i just made with you is that your only argument is that the running itself within the patch itself buckled and there is no words last experts use the word buckle a lot more than the defense experts as you can imagine use the word fold it is exactly the same thing that's happening with the patch in which injuring these people in these cases i need to clarify something you first traveled on the theory that the ring broke ok the ring broke that's one theory of what happened here the ring cause loss of fixation but it seemed like another theory that she had was that the mesh because it was a bodily movement or different contraction right folded and buckle that's right those are two separate theor and i thought what judge innocent was trying to ask is on your failure to warrant you were saying that your claim was there was no warning about the rin that they could be bodily forces just regular movement that could cause the folding of the mash or different contraction right script called the itself buckling you don't talk about the mesh buckling you said this is a ring brake case on appeal to the district said there's no evidence of a break and you didn't offer any evidence about the there being a louse of fixation notwithstanding that the ring is intact that was the language of the district code you start off with you you have conceded in effect by failing that the warning was inadequate with respect to the loss of fixation because it folded or because of anything other than the ring buckling and then i look at the evidence and i don't see any evidence that the ring itself buckled in this particular case  the trial court judge says look you're expert doesn't hold water my next option which is something that we played as an alternative theory it doesn't mean that look i threw my hands up and said we lose or this was the day there's a whole reason that i  led to alternative theory and i understand you have issues with the way that it was done but i think the issue is the language that's being used to explain these things that happened it's complicated medical terminology and i have to do my best to put forth what i believe happened to this woman and that's the way we see it i look at our complaint and it looks to me as a trial lawyer that this was pled properly and that we advance this theory in the trial court judge just ignored evidence that we poured forth on this and focused entirely on the dow bear hearing and that he didn't like dr drew shany and it's this whole case it just be thrown out the feeling more inclination have been thrown out and that was my sesson at the hearing frankly that i thought that douche a was going to get thrown out and and this is where we'd be  i have a paragraph there in the complaint part what aircraft thirty in the complaint bardot to duty to plaintiff to adequately warn her and her treating physicians of risk of separation tearing in splitting associated with  composite google mash and the resulting harm and risk it would cause patients if this language needed to be amended at some point i think i have the right to do that going to trial as well but i think th the composite google mash and the resulting harm and risk it would cause patients ok i goes to the mess that's a mash paragraph i didn't hear in and for the most you have to do more than summary judgment you have to do more than rely on your complaint and when you look at your brief to the district court  but i doubt that the district even looked at that because the whole brief was about running breaking and about the ring itself he the buckling all breaking and then if it is if they only inadequate warning us that the ring itself  broke which is all lassie in your brief own appeal which you have it seems to me knowledge a minute ago then we look to see whether there is any testimony that tell us about the ring itself buckling that would be helpful to me or so your honor and we agree we could have done better with with the trial court brief and we could go to trial court judge but i think that we you have  reserved three minutes for rebuttal but you might want to zero in on where in the record we can find the evidence from which to say or infer that the the ring buckled in this case thank you good morning good morning your honour's me please the court james martin for the bowl and board picking up on the last point your honour's testimony that has to do with the ring at the time of xplain in this case came was not contradicted as to what he saw and what he knew the second point on this your honor is even taking dr for zocor his testimony in the consideration we don't get past the waiver issue here in the waiver issue has to do with the plaintiffs never having made on summary judgment the argument that dr for zocor defect testimony was master boxing of the ring it could be buckling of either one no buckling theory of defect was argued whether it was folding or the ring in the summary judgment briefing and if you look in through that briefings you won't find that argument if you look at the briefing on appeal you won't find a citation from the summary judgment briefing to that argument and that's why the appeal nothing but the ring itself buckling that this is not relevant to that but as to the mesh buckling i think this sufficient evidence in the  testimony and he does refer to that in these two sentences dr firs oco an expert retained by plaintiffs in this case states that the forces acting on the rain caused the mesh to buckle info sentences are enough at least as well that the mesh buckled but that's not enough if the warning was sufficient to  in two ways the first is to make sure that the coroner understands my waiver or given the waiver or government has nothing to do with causation it has to do with defect the buckle theory was never offered as a defect theory in front of the trial judge it and that is waived for purposes of appeal so there's no defect theory left in this case on the causation point and that would be enough for you to who would be your honor as as our brief points out because the critical defect theory is abandon and not addressed now let me get to this causation point because that's all dr  about in that reference and that brings us to the independent ground that makes the adequacy of the warning or even this defect debate academic and that is there is no evidence in the record that a buckling theory of any kind however framed was a proximate cause of miss almost injuries to start with iran or dr complera tory was never asked that question and never responded to it and that evidence of course is critical from approximate causation standpoint under florida law the second thing is there there testimony that dr complera tory gave was affirmative that he understood the loss of fixation could result in the precise injuries that missile had that he advised her of that she was adequately a warned and that he would use this product again so we not only have no testimony on proximate cause that buckling matters to dr for oco i mean to dr compare a tory but we have affirmative testimony that buckling which results in a loss of  and results in injuries like it he shins or fistula was was known to dr comparer tory it was known to physicians in the field so i thought that he testified that yeah he knew about the loss of fixation as a did but your honor he never said that he wouldn't have used the patch even if he had known that his decision would have been different that's the real of an issue and on that point again he was unequivocal that the injuries dr complera tourists asked the following question the reason for the recall of the c k patch was that certain surgeons were creating too aggressively the short axis weld and the memory ring was breaking do you understand that dr compare it to a no my impression was that was that there was fatigue of the metal because the abdominal wall is the dynamic wall and it moves and when you move the battle your fatigues the metal if you get a clip and you start doing this with the clip you're going to break it and this in the abdominal wall is doing this because the abdominal wall is dynamic so the metal may be for tea and it could break so that that testimony your honor never went the next step and said did your awareness of that matter in your decision here and there is in always are in question in terms of the way that you employ it that you implanted the composite six q go with miss is almost was that a concern of yours answered dr good parent or yes right but the risk of the issue in terms of would it have changed his treat only raise it because it looked to me like compared to adequately understood the loss of fixation risk i saw attributable to the implantation complications i agree with that your honor and but it but my point is just as fundamental that in that suggested that he had sufficient knowledge for the application of intermediary i agree with that too but but apart from that the proximate cause defense that we're making is is just as dispositive as the fact that the learned intermediary defense applies as well the district court cold approximate cause and the testimony that's missing here on that point is that dr complera tory never said if i was armed with information about buckling i would have made a different treating physicians decision now he also had substantial information about the risks which were known to ordinary physicians which he testified to and the precise risks that were involved in this almost surgery which he disclosed as complications and she understood those warnings there isn't even an inference in this record your honour's that counters either the proximate cause argument or if we want to take it the next step to learn and intermediary both issues were relied on by the district court the plaintiffs point to only three pieces of testimony on that the first is that  that his information was only adequate at the time and the plaintiffs take that to mean that had he known about buckling at the time his treating decision would have been different but if you look at that deposition colloquy it doesn't substantiate the point buckling isn't ever mentioned in that discussion in the deposition and what he's referring to that he didn't know at the time or he would have done differently was to do the surgery robotically there is nothing about buckling in that colloquy then they argue that he said he wasn't adequately warned that statement i could say that i was not yes now that statement your honour's which comes up in the depo at fifty one to fifty three is chopped right there and taken out of context and and it creates a misimpression because what dr complera tory then goes on to talk about is warnings to the patient when he answered that question what he meant was i'm not the one who gets warned the patient gets warned and in the colloquy that follows he makes it clear that the thrust of his testimony is back to judge marcus point he knew the risks he knew the complications he told her and she was adequately warn and it page seventy one of his deposition he makes that statement unequivocal and so there is no way to get warnings talked about the mesh eroding into the bowel which is that you don't use the term last known they don't but the loss of fixation that record testimony is undisputed was was a well known risk of every hernia patch implant whether there was a ring product or there wasn't a ring product dr complera tory said that dr weinstein said that d said i don't know that the incidence of loss of fixation is any different with the ring product so there was no reason for doctor compare a tory to do anything other than what he said which was evaluate the risks that he knew and then he stated emphatically this was the best product for this surgery at the time for mis almost very serious medical conditions and that testimony was never qualified so what we have is to start at the top your honour's a waiver on the defect theory we have a physician who was adequately warned of the risks and understood the risks moreover even if the warning was inadequate and finally we have proximate cause and learned intermediary as as defenses underneath that that makes this case fundamentally different from oreo in her rio there were two things that weren't going on in this record the first was the risk that was unknown to the physician was an injury that was far more severe than the injuries that the physician thought could result from the procedure here dr compare atory knew the precise risks that could result from the procedure and the injuries excuse me that could result from the procedure that was in the warning fish dilla in the warning recurrence of the hernia repair in the warning and he also knew that of his independent knowledge finally in terms of didn't he think all of those problems were caused by the fatigue of the mad all and he had no knowledge a movement we got that test my right we have the testimony in the abstract your honor what we don't have is proximate cause ation testimony and we don't have testimony that the physician wasn't fully armed with knowledge and he knew some of the result and loss of he got a fair statement yes he knew exactly what the results would be he was warned of the injuries there's a level playing field there loss of fixation can come about through a about it what he testified to was what he learned about the ring break from the recall but on the buckling theory dr complera tory stated that the end point of it as dr  of fixation everyone knew that loss of fixation could come about from implantation and no one said that a a composite kugel patch with a ring loses fixation any more frequently than any other surgery with a hernia patch so that the playing field on that point your honor is is level equally importantly the record doesn't take the next step through expert testimony or otherwise to fill in the proximate cause ation or learned intermediary a testimony that's what the trial court found that has nothing to do with the attic city of the warning whether buckling was in there or not you still have to take that next step this court's opinion and yank him makes that abundantly clear again a case that's distinguishable because the physician in that case testified that had the information been known the decision would have been different thank you imperatori never said that  why don't we begin in the short period of time that we have are under a bottle with you citing us where in the record we can find evidence that the ring actually buckled in this case yes your honor as you requested in our summary judgment brief and the counter statement of facts i picked out for examples and i'll preface this with saying that i understand that some of these start with the statement the mash and not the ring buckle the mesh had buckled and folded obviously that's a reference to mash dr for zovko or f one sixty four the mesh was no longer plainer at the time or planner at the time of her september eleventh operation which  more breaking or fold and so on page fifty paragraph one seventy three dr for zocor says any loss of fixation was caused by buckling of the patch so now he's referenced the entire patch that's the way i look at it when i explain it as i as i talk about the patch of ok or doc or anywhere else the final one this is sort of a whole his whole statement on causation but it's in there they're paragraph one eighty four page fifty one in short the contracture forces allowed the mash to buckle and fold causing a loss of fixation fixation when resulting with the patch or running into the bell so there it he's referencing mash but this is to me this is a reference to the entire batch and he does say that in one of the statements he's very specific about mash three times and then i think he's looking at this is the whole patch is failing unfolding  is there not evidence yet the doctor group our tour had independent knowledge of the loss of fixation risk you are there is he had knowledge but that's not the test the test is substantially the same knowledge as the defendants and by no means did he have that at all he had no idea of the likelihood of this happening the prevalence of it happening all over the country in the severity of the injuries that could have occurred this is why do we make of his testimony  that based on what you know today would you have changed any decision you made in terms of her care and treatment well based on what i know today this is  robotically but in two thousand and five i wasn't even aware of the existence of a bull robot probably i would have used the same thing i did question you would have done the same open hernia repair surgery with the same product back in two thousand and five answer yeah absolutely i don't make anything of it your honor joe says credibility at best if you can if i go to a jury and i tell them that he answered the question that way and then i show them all of the things that we have in the record here i think i want every time ok thank you very much thank you both will go on to the