it please the court good morning my name is william her lock from the mueller law firm and i have the pleasure of representing mr carlson and the appellant in this matter before you this morning we come before you and beseech this court to correct what we believe is a procedural wrong which we believe was committed at the district court level by way of a short background as with the numerous other cases from around the country this case involves a personal injury product liability action arising from yes your honor that that is part of the record the record quite frankly is somewhat unclear as to some of these points and the reliance issue which actually gets to proximate cause i was going to address as part of the application of the learned an in testimony regarding your honour's question had to do with the the impact and use whether or not the doctor conelly would have used this particular piece of mesh in issues we're presenting here this morning is that the whether or not the physician would have used the product in question is one question first of all is is more of a question of fact to be decided by a trial or fact but also the reliance were provided i think it's a good summary perhaps i see so this is true ok we're getting we're getting back on track we are yes your honor thank you if i may and i know there's been some inconsistency  said that dr kelly did not read the relevant information to dr judge before he said that he didn't read it but he didn't rely on it so even in the court orders below there is some inconsistency in the relevant that's correct your honor thank you does that answer your question ok and if we could just get and then judge where he sort of if i could just finish that last thought well doctor deposition testimony shows that read which is different than what judge goodwin said there was a question about reliance so contrary to the district court's factual findings dr kelly did in fact testify that he read the whole the a few prior to appellate surgery was familiar with its contents relied on it in making his decision to prescribe the up to mr carlson indeed to deposition transcript the doctor can only take it on july second two thousand and fourteen i'll read you relevant portions question by coun correct question and i'm now on page fifteen of the brief sighting j a two one three six your honor question by counsel as a physician did you reasonably rely on boston scientific corp to advise you of all the risks associated with specifically mentioned to preclude summary judgment where the prescribing physician stated he was independently aware of risks but the courts found material fact because some of the material that was relied on by the doctor were in fact medical anybody ask him if he relied on the material in the context of the question that i just read other than that i don't believe so because reading his whole testimony it struck me that what the doctor was saying was yeah of course i have to consider that that would have an impact but when i read all the medical literature and we had the intra operative decision her gynecologist was there and we made the decision that this was the way to go so believe an adequate warning on the particular issue here that we've looked at where we presented evidence of what the warning was inadequate and under the north carolina statute on the learned to media doctrine which is unclear as well as to  application the statute itself is particularly pertains to pharmaceutical manufacturers there is a requirement that the warning be adequate so there's a there's a couple of different moving parts here and i totally understand you're  suspicion with the record because again it's not a model of clarity and we believe there are several genuine issues of material fact that are present here that haven't been addressed including as i said even a misinterpretation perhaps on some of the testimony that's been offered with regards to impact and how judge can dr kelly forgive me would would have changed his course or what the records showed before the court on summary judgment that if i may read anything else you want us to look at on that issue so i took your argument so far that with regard to what you put in front of judge goodwin at so judgment this is your best me that the testimony was kind of vague on summary judgment and later on it trial was perhaps more precise you were making this argument to judge goodwin on summary judgment and the trial was on the different theories of implied warranty negligence yes your honor and maybe not even so much procedurally the trial itself but the motion for reconsideration perhaps before judge for he is that extra step if you will that we had between judge goodwin in judgment evidence you put before the judge and i want to make sure that what you're relying on today is the evidence on summary judgment presented judge oh yes your honor and you saw that for the clarification if i could when we say summary judgment are we referring to sorry your honor yeah in this particular case we believe that summary judgment was appropriate on the failure of negligent failure to warrant claim under north carolina law because the record before judge when that was cited to judge goodwin for summary judgment did not establish the essential elements of proximate cause under north carolina failure to warn law there was no evidence that was cited to judge goodwin that the prescribing physician d read or where lied on the directions for use for the up old product and because of that any additional warnings that were suggested by the plaintiffs that they claim should have been additionally provided so that the warning would have been adequate  those would not have been conveyed to dr kenneally because he did not read or rely on the directions for use and so therefore that breaks the causal chain and plaintiff has not established a prime facia case and under so texas summary judgment was appropriate and in fact the underspin evidence before the district court before would be m t l court as well as even considering the evidence that was submitted later on of course you know it's our argument that obviously the court should look to the summary judgment record but even if you look at the entire record it is undisputed that the additional warnings that plaintiff proposes should have been given would not have made a difference to dr kenneally in his prescriptive cision  he says that he already knew of these risks and int he even knowing these risks the up or product was the best choice for mis carlson's particular situation to treat a public organ prolapse and so therefore we believe that summary judgment was appropriately granted in this case kingdom press waiver at all i'm still having a little problem with the evidence that's being relied and so that relates to an issue that had there appears to be a circuit split upon and we have not able to find anything that the fourth circuit has actually addressed it it's our position that even if you consider all the evidence summary judgment was appropriate but if you were only looking at for example we cited to a case from the d c circuit and its strict construction of this rule which we believe is appropriate and consistent with the standard for reconsideration that am a standard under rule fifty six and sell a tex case from the united states supreme court that the burden is upon the party opposing summary judgment to cite the evidence at the time of summary judgment and any evidence that is subsequently cited in a motion for reconsideration is inappropriate and less that evidence was not available by due diligence at the time of the original summary judgment response oh you understand the plaintiffs counsel has cited a case from another district another circuit excuse me i believe on the fifth circuit which takes the position that well if the district judge accepts the evidence on reconsideration then the appellate court should consider consider that well your honor we believe that is inconsistent with will fifty six we believe that's inconsistent with cell attacks and we believe that's inconsistent with the appropriate procedure for summary judgment because allowing parties to inject evidence that was available at the time of the summary judgment ruling later on in a motion for reconsideration allows endless motion practice summary judgment where the party bearing the burden of production cites evidence for the first time hearing on a motion for reconsideration unfortunately i'm not familiar with the specific case law that you're talking about i know that the case law that was cited in the reply brief the cook case was not a case that involved a motion for reconsideration that came in after after the fact and i apologize i guess my research wasn't comprehensive enough judge well for all the reasons that i discussed we believe that that obviously the best rule is that the summary judgment record that was created at the time of the summary judgment ruling is is is the best and if we look at that record that existed at the time of the summary judgment ruling it is very clear that dr kenneally would not have or would not have changed his prescription decision in this particular case and this is consistent with the north carolina failure to warn law that we've the learned intermediary doctrine in a medical device we're assuming north carolina doesn't have a certification stacked so we're relying on a fourth circuit district court's assumption of what the north carolina supreme court would do if it were presented exactly not because the north carolina courts have not specifically addressed it but north carolina courts have embraced the learned intermediary doctrine in all different types of case  products liability cases they have codified learned in media doctrine and prescription drug cases and the district courts in north carolina predict that it would be applied in medical device cases as well after reviewing all of the law and there's nothing device year that can only be dispensed by a doctor all of the communications about that go directly to the doctor in fact if you look at the record in this case the plaintiff testified that she had no information directly from the manufacturer all the information flowed through her doctor and so therefore the learned intermediary doctrine applies legally as well as factually in this particular instance and and we would just point the court towards it and i'm well i believe everybody agrees  think that even plaintiff's counsel agreed when he was up here that dr kenneally would still perscribe this device for the plaintiff and it knowing all of the additional information and so in those circumstances there is no proximate cause summary judgment was appropriately entered reconsideration was properly denied because there was no new evidence presented to the trial court judge i mean there was new evidence that was available earlier that was presented to the trial court judge that is not a proper subject for reconsideration but even if the court considers it the trial judge accurately recounted dr kent elise testimony that he did not rely that he would not have relied upon that additional information in changing his to see for uterus her gynecologist was there agreed with that assessment this was the proper situation so therefore there cannot be any proximate cause or relationship beach any allegedly an adequate warning and banned any of the injuries which the plaintiffs allege in this case supplement the record with those if the court so desires there's a couple of different things so that you know i was trying to take notes as i was looking for the citations that the court had asked for so forgive me for jumping around just a little bit but in and there is a provision in here that also says failing to provide a warning or instruction or instruction directly to a consumer if an adequate instruction is provided to the physician adequate warning is  information is now before the court i read some of the excerpts prior when i was up here before that specifically again it's it doesn't change the fact that the reliance and whether or not they were read  misinterpreted misinterpreted by the district court particularly whether or not they were read the case i'm sorry doesn't make it relevant whether they were reared if they were cited to the district court that's the problem i'm happy and again the the transcripts were part of that record for so much but attached the full transcript of the doctor two forty one which is your response to defend its motion for summary judgment that attaches excerpts of the doctor's deposition for what it was you put before judge good one in your argument to him because you did not attach the full deposition which was  same experts that were excerpts that are attached before the court right this morning the same the testimony is there at the summary general level and at the a court of appeals yes ok go ahead i'm sorry you were saying at the summary judgment level ed before you work that's what caused any confusion here because you have conflated what judge good one had before him which was a limited amount with everything else you may just conclude ok thank you your honor and i know i'm over time so forgive me again based on the paper submitted the argument here today reversed the orders regarding summary judgment on the  claim that miss causton be permitted to pursue a claim that this matter be remanded to the district court with instructions regarding the learned to media doctrine thank you your honors