they start off mentioning something said by the defense at page eight of their brief they said several members of the preliminary exam committee were inclined to pass plaintiff's condition upon heard visor providing additional mentoring in areas identified by their current preliminary exam committee what actually happened the preliminary exam members were not inclined to pass the plate if they all said they were passing the plaintiff it wasn't a majority it was every one of them under loyalist guidelines four out of the five need to vote to pass we had five out of  she had passed dr will one of the defendants had testified that he spoke to four out of the five the others other than dr vedantam and the four of the five all told him that the plaintiff had passed and then dr drapes one of the other plaintiff's testimony it was all five from dr wolfe it was four of the five he spoke to and then from dr trix it was the fifth member at least had positivity towards passing the pla you you take that evidence and compare it to what the members of the steering committee were told and it was the steering committee that decided this matter to prove them committee made a recommendation the steering committee was charged with the responsibility for this that committee was headed by dr d s dr diaz when i took his deposition seven years after the fact was still under the impression that what he was told at the they misled the steering committee a dr frank fader in his telephone conversation in the in accurate critique that was prepared all told the steering committee and then every level of review after that the council if we even if  that we're only asking you to do what the defendants are asking you to do and that's encouraged while those rules the defendants position is the plaintiff fell the second exam therefore they were required to remove her from the the same rules that they're relying on the same rule and i think states if you meet the requirements and pass exam you are entitled to be elevated to the doctoral program intellectual or biology they're making her pass the defendant's admit there was no issues of plagiarism and that she answered their questions says fact early and they said you have a conditional pass that was the conditional one or the preliminary one you have to revise and fix aim before from your paper she provides them for they could have had or present an additional oral argument they didn't feel was necessary and they informed her that she had passed the exam and then dr will admit that this was after everything was done it's a matter of signing the piece of paper from that there was nothing left to do with the that was before it discovered that he and plagiarize and  arguments and with all due respect it is completely unsupported by evidence it's contradicted because the purpose of the oral defense is for the candidate to prove her knowledge not just of the subject matter of the test but of molecular biology in general that is set forth in loyal was guidelines and each of the defendant professors that i deposed four of them all admitted that was the purpose of the oral defen was clear that the degree of plagiarism felt that she did not understand the material brings and that's that's the argument that you're making is that you're saying that as long as she has or shouldn't even they couldn't tell was she understood the subject because of the alleged plagiarism keeping in mind most plagiarism that they claim was she didn't put quotation marks she put citations to authorities she didn't put quotation marks in this all the preliminary portion of her paper but they said we were unable to determine if she understood the subject matter that's there are people of course so they then gave her a second exam but i think that that's the reason that the her second exam a agree and we're not trying to change that your honor the the majority of cases deal with a person who has failed a class or failed an exam and said i did good work their judgment was wrong they should have passed both sections that's what i understand from the record before the me gave her the second exam and she felt that if you're right i don't believe that's how this happened they didn't say ok because of this plagiarism now  we flunked or they said the opposite to doctor d s they said to him even before the plagiarism arose she felt the exam so we haven't touched the issue yet of can you have an intentional plagiarism a let's set that aside let's say she put drives this steering committee that makes this decision was told if she failed they didn't review what it was proper to are making her retake the exam doctor diaz said this is a quote from page thirty two of his deposition we decided there was no grounds for any disciplinary action so they thought they were ruling for the plaintiffs when they said go take the test again when i told them they were actually going to pass or but for this plagiarism issue he had no idea and he admitted that may have made a difference they had the authority to order that she had passed the exam they had the authority to do what frankly should have been done here and in underlying his rules these professors were required to carefully read her draft exam before the  defense and tell her of any issues if one of them had done that just one of them and said you're not citing your thorniest the correct way you need to clean this up putting quotation marks here dr wolfe her mentor specifically approved these citations and you apparently did so without actually reading them you just said ok other fine if one of them had said that to her and she'd put quotation marks around these few  beyond and i'm a lawyer and i've read all these things i don't think this is plagiarism in the first place if she was that required to make that determination and these people were teaching her how to make citations that's that's i think what we have to focus on with her she's a lay person she ma citations the way she was trained to make the citations if you look at the definition of plagiarism it repeatedly mentions dishonesty i've given you case authority dictionary definitions and testimony from the defendant that dishonesty requires intense so to plagiarise under loyalist rules you have to intentionally plagiarize you have to misappropriate the ideas of others failing to put quotations around some sites in the beginning portion of her paper is not intentionally misappropriating somebody else's idea through oh every one said we can't say this was done intentionally i would respectfully submit there is no such thing at  loyola university at least the way these rules are written that is unintentional plagiarism you have to do it intentionally for to be plagiarism this was a learning process she wasn't submitting this to the national institute of health she was supposed to into the judgement of the subject matter that they could give her more difficult subject matter there was evidence she was devastated she was branded a plagiarist and failed at this in front of all of her peers she was devastated when she had to do the second exam it wasn't within the the subject matter of what she was learning in her mentor's lab which was required to be that there's all sorts of other issues but what i try and keep coming back to read are than saying in their judgement i should've given her something different on the second test where i keep coming back to is the rule say if you pass the test the first time you get promoted to canada c n n the doctoral program you don't have to do it again and she did pass that test the plagiarism who had to determine if it in that case it was a payment on an insurance policy was given incorrect information and the court said as a matter of law that's arbitra person has to make a decision he wasn't given the accurate information his decision by definition is arbitrary and capricious this is the same thing here with the steering committee and then all the levels of your review beyond that they never knew what the actual issue was the issue that should have been presented to the steering committee was this site's hartridge past exam it was satisfactory then this plagiarism issue arose we decided the remedy for what we presented to the three tiered review process not one tear got that issue mrs partridge obtained the critique with the misleading information in discovery in the l they refused to give it to her during this process she had no idea that these levels of review were being told that she had actually failed the test before the plagiarism issue arose so what happened in the steering committee where they thought they process they have the record in front of them the record that they had this critique and the information given by dr frank fader to dr diaz was she failed the test anyhow just have her retake the test it's not been a punishment and they didn't intend to punish early on that dr i d s is clear and that he didn't want to give her any punishment he thought he was ruling for her in the in the litigation we got the critique the critique led to the  got in the case kind of late the only new discovery i took was dr diaz's deposition and because he was the one who received the critique and then dr d has his admission not against himself as he didn't do anything wrong in this is in condemning whole university if this group of people but his admission seven years later that he never knew a misc sites cartridges work was of sufficient quality to pass he had been told the opposite that was his assumption of their i that that's not there i get it if i could be very specific that because they didn't do anything fair and square with her they they did something very unfair to her what they told the steering committee back to d s and every level of review was even before plagiarism arose is such partridge's going to flunk this exam there's no question that that's what they told her that this that's what dr d has admitted even before plagiarism before the issue of plagiarism arose they had decided she was failing the exam dr d s specifically told me in the deposition that dr frank fader the head of the prelim committee i told him that in a telephone conversation and he also said from the critique that's what he understood too where they only talked about her deficient work i asked them why they didn't talk about the work she did well and that the answer was i can explain that so there's no question that the steering committee was on operating under the belief she failed the exam they weren't even called upon to decide if that was proper or not it turns out the failure of the exam was a sanction from the preliminary exam committee for the  not plagiarism did i did i prove that so i don't have to prove that she didn't plagiarize it with with all due respect i don't think that's part of this because if the steering committee had been told she plagiarized it and in fact the steering committee reached their own conclusion of this unintentional plagiarism you know if you knew she was going to pass but then you had this plagiarism issue could the outcome of been different dr d s said yeah we could have order that she passed the exam we could have simply order the prelim committee to have her redo the citations teach you how to do it and then correct it so even if we accept that there is such a thing as unintentional plagiarism the steering committee and then all the other levels of review never reviewed the right issue it reviewed she failed should we impose some additional sanction they should have reviewed she passed she was sanctioned for the large plagiarism what's the appropriate sanction if anything she never got the review she was entitled to the steering committee never understood what it was they were reviewing under this test case that is per se arbitrary second i don't think you know even if i had to prove she didn't plagiarize we can do that objectively it's a matter of economic judgement if you give somebody a test they that demi judgement if she passed or didn't university anything like this you know and we actually lived three separate definitions it's the same topic that misstating the facts saying she felt even independent of the plagiarism allegation but it was repeated three times it was in the critique prepared by dr ok well it's as far as it exists but i'm interested in knowing whether or not the university is perfectly in this communication no but they're not they haven't alleged that they are and one of the communications the third one was simply one of the doctors telling a student that this is what it happened and you know even if the others were privileged there's certainly no privilege for just you know like water cooler talk for this professor to tell a fellow were asking that this the summary judgment be reversed because there are numerous questions of fact in this case not only for revenge for trial as to damages but the injunctive part of the case had been dismissed and then i go sit down so i don't want to go through a long argument about why i disagree with that but with all due respect i think the case should go back and upon hearing evidence at trial that the court should be able to determine what  five faculty members who were responsible for evaluating the plaintiff's academic performance in sun i'd like to just start by clarifying a few facts as they relate to the summary judgment r the trial court made on both of the preacha contract counts it is true that a majority of the members of the p c that's the committee that was charged with evaluating the site's partridges academic performance were inclined to pass around the first exam the key point here however is that the only time that they were inclined to pass on the exam is before they had learned of the plagiarism once the plagiarism arose plain herself testified at deposition that her exam was placed on hold the p c carefully evaluated the evidence of plagiarism determined that she had in fact violated loyalist definition of plagiarism  definition simply says there's no reference to intent the definition simply says they use or appropriation of ideas without sufficient public acknowledgement that the idea is not one's own there's no requirement of intent in fact the determination as to whether or not this particular exam violated the institution's plagiarisms of policy was in fact in and of itself an academic judgment under this distress decisions in harris billet and frederick courts are are are precluded from reviewing academic decisions absent some evidence of arbitrary and capricious conduct mr hollander made some points about what information was shared with the steering committee and to be absolutely clear about the information that was shared with the steering committee the steering committee was not told that the plaintiff was going to fail the exam what what the evidence shows and what the documentary record shows is that there was information provided by the p c to the steering committee including all of the information with respect to the plaintiff's first exam including the evidence of the plagiarism so not only did the p t c determine that the plaintiff it committed plagiarism when that information was then independently evaluated by the steering committee and the steering committee also made its own independent judgment that the plaintiff it committed plagiarism so the only time that the p e c was inclined to pass the plaintiff or majority of its members have decided to pass the plaintiff was when they thought they were reviewing the plaintiff's own work once they determined that they were reviewing the pla quality and that they had discovered plagiarism once the issue of plagiarism arose the p e c and the steering committee both agreed they simply couldn't tell how well she understood the material and they gave her a second chance so rather than failing her finally dismissing or from the program they gave her a second chance to take another examination and when there was no plagiarism at issue the plaintiff failed for a second time so the issue that was presented to the steering committee and the reason why this whole the plane if it failed the exam because she had plagiarized so once is plagiarism a rose or exam was placed on hold she failed it went to the steering committee the steering committee weighed and said we agree we can't tell whether she did it intentionally or not but we agreed that this is evidence of plagiarism we agree that having her take a second exam is the appropriate way to proceed and that is in fact what happened here and of course the plaintiff wasn't dismissed until she failed the exam for a second time what what my opponent also does not acknowledge is that there's also undisputed evidence in the record in the deposition testimony of dr directs and dr keating in particular where they make very clear that  yes the committee was prepared to pass or until they realize that that there was this evidence of plagiarism but there were also serious concerns that remained about her performance and in fact with all due respect to my opponent this this notion that dr  plagiarism arose putting a letter in the plaintiff file saying we have these concerns about your performance leaving plagiarism out of it for a moment but we're prepared to pass you but we want to make sure that your your advisor and mentor dr rolf continues to pay close attention to these issues going forward so it's not as though the committee was was prepared to pass for with flying colors by any stretch there were these issues but the bottom line is that once this plagiarism issue arose the p c that the thing to do was to require the plaintiff to take a second exam and it was only after that point that the plaintiff failed again and she was dismissed from the program again under harris frederick bill it at every stage the reason decisions of this district have dismissed these claims harrison volved a motion to dismiss frederick involved a motion for summary judgment billet based on bill and i would submit that had the summary judgment motion been denied and had this case gone to trial it would have been reversible error and bill if there was a trial and the court stepped in and said there simply was not any evidence of arbitrary purchase conduct the only time that there's evidence of a trick critias conduct sufficient to create a fact issue is when a decision is made for some non academic reason here we have been essentially academic judgments from step one all the way through the process cases for example demarco is a is a decision from this district where the court said the institution engaged in arbitrary capricious conduct because they withheld a degree from a student had completed all the degree requirements because that because of that student's ability to make a financial contribution or the johnson case which is a fourth district case that mr hollander cites in his brief another example they withheld a degree from a student who had completed all the degree requirements because they thought the student might be a homosexual that's arbitrary and capricious conduct here the plaintiff has to has to try to create a fact issue showing that there was no discernible rational basis for the decisions that loyal and effect and its faculty members made i would submit that there's simply no evidence of that to the contrary the faculty members continue to exercise their academic judgment throughout this matter and for that reason summary judgment on both of the contract counts should be affirmed as this quote i'm sure is aware that the defamation p should be dismissed with prejudice and that was a decision back in february of two thousand and six that the plaintiff failed to establish that she met one of the established categories for defamation per se i think there is an argument that this communication was privileged the communications from the faculty members who comprise the p e c to the steering committee of the evaluations of the plaintiff's exam performance i think there is a strong argument that that those  we have a reset in our precision and we raise three other arguments and instead all of which would be sufficient to to up hold that dismissal first that the plaintiff did not meet any of the categories of defamation for say second that all of these academic judgments were really statements of opinion not statements of fact in terms of i mean for example decided in in resolving the defamation per se claim that is that the plaintiff was a student working to win boards a degree to become a member of a profession but she was not yet a member of a profession nor was this statement related to the discharge or for employment duties she was not an employee she can't simply label herself as an employee she was a ph d student well that seeking a jury for the court dismissed correct and it appears that alan ward she's well lead the fact is the fact that her she's a scientific profession that but if i understand the trial court's decision correctly it was that as a matter of was a student is not a member of a profession and as a matter of law a student pursuing a d is not engaged in the discharge of her employment duties so it was a legal question as i understand it that the that the trial court was making and finding as a matter of was that she did not fit within one of the established defamation per se brief and we feel that those are also additional grounds that would support the denial of the motion to reconsider and this raises an interesting procedural question there's no argument in the brief about the propriety of the two six one five  decision the issue as i understand it raised in the brief is that the denial of the motion to reconsider was inappropriate which is which is a different issue and i would submit that the denial of the motion on several rises when they came before the court correct and in addition to the regal question of whether the plaintiff falls within any of the recognized categories of definition for say these academic judgments again i would say are statements of opinion not statements of fact and also they were true the evidence of plagiarism well truth exactly and we argue that in our brief and truth truth is a defense here i mean there the evidence of plagiarism was considered not only by the p c it was also considered by the steering committee you have eight faculty members that  unanimously deciding that this was in fact a plagiarism under loyalist definition of plagiarism where there's no requirement of intent they made that academic determination and therefore the statements are true as well so we again i think the main rationale was that it's legal question of whether the plaintiff fell within any of the categories of defamation per se and that that was an issue i w decided at the pleading stage i think in considering at at in ruling on the motion for leave to file the sixth amended complaint i would argue that the trial court properly exercised its discretion given the nature of the evidence on a complete record leaving aside sort of the timeliness of the amendment but that based on the whole record it was an appropriate exercise the discretion to deny leads to a man when you have this this evidence of truth  as well so i think there's the legal issue as to whether or not she fell within any of the categories of defamation per se also the information that was available at the trial court with respect to whether it properly exercised its discretion in deciding to deny the request to file the six and then you complain with that i had at my remarks and request that all of the rulings of the trial court be affirmed in their entirety i'd be happy to address any justice cunningham asked mr warner if the definition of plagiarism included a requirement of intent or dishonesty dancer was definition doesn't mention intense he didn't answer the dishonesty question and they never answered the dishonesty question and i've provided case law definitions and testimony from the defendants and it's on contradicted that dishonesty requires intent the cases say negligence carelessness mistakes those are not dishonest dishonesty requires intense i'm not asking you to overrule anybody's economic judgment academic judgment of everybody loyola who reviewed this was we can't say the pla intentionally if she didn't act intentionally she didn't commit plagiarism under loyalist definition us to the comments dr frank fader made to dr diaz and the response was dr frank faders deposition isn't even in the record and says papers plagiarism is the appropriation of gain of ideas language or word of another without sufficient public acknowledgement that the material is not one's own the following apps are regarded as such violations and then i would need my glasses to read these of any allegation of plagiarism and then dr diaz explained that's why they only reviewed whether she should have some penalty beyond retaking the exam council also told you that the prelim committee decided the punishment that's not correct the prelim committee makes recommendations it's the steering committee that was never given the correct information that made the decision and the defamation issue i do note there's a w two given to her with taxes of social security taken out besides all the other evidence she's working she's under their control that she's a member mere student the two six fifteen treated her like an undergraduate student it didn't take into account whatsoever she was employed however to be that the alleged of this rise from  fact one of the required classes she had to take was her work for dr wolf as his lab assistant they call it a class but it's actually working there and the prng the topic for prelim exam had to come from work that she was performing in dr wolfe lab so it by definition it was tied into that it's it's all part of the same and the people she was defamed to were the people she was