yet a long history of engaging assault army behavior he was taken to the jail and on september th he was a value added by nurse the salient issue before the district court and before the court today is whether or not nurse appreciated the obvious suicide or risk and suicidal tendencies that attended jason she murder well he was incarcerated and the question that we need to ask is whether or not the court in fact just the court  absence so the question really is did she appreciate it suicidal nature such that take appropriate steps to ameliorate that risk and not require conveying the risk of suicide because she is the mental health provider and they all depend on her to recognize that wrist and we depend on her oh no that's accurate he did deny it to the extent that it's somebody who has just been just a lethal dose of prescription drugs can deny it yes he did deny it but it did no it's very clear that she characterize it as an accidental and suicidal ideation and that's not the case here and any jeopardy johnson's clerk testimonial he said that nurse brand that man was concerned about withdrawing fever chills and vomiting and that because he didn't feel suicidal ideation she didn't feel that safety self placement was appropriate and that it was a medical issue only that she appreciated that was his clerk testimony and that was three months after six months after  case i think what i'd like to do and start with is based on my reading of the case law on the record in this case this would be you if we see the st decision that the appellate advocates for where an expert opinion is undisputed that the nurse practitioner met the standard of care at all times and yet somehow leads to a constitutional violation statement in particular where he was expressing remorse about the fact that nurse brennan's recommendation was not brought up by the counsel did the district court credit the expert testimony and graham's summary judgment on all  counts because the district court found that it was an undisputed issue of fact that nurse brafman made the recommendation that's disputed on appeal is that every single part of the district court's ruling based on his finding that it was i do believe from a matter of expert opinion that is correct that she met the standard of care all that's what the question the judge bennett was asking the question the judge bennett was asking was whether or not it was undisputed then she communicated this  but what you're asking i think what judge bennett and jasim used in fear in the record a genuine issue of material back it has to be material that goes to the question the judge cooper was asking earlier about what's the constitutional court here conversation why isn't an inference that is reasonably drawn in favor of the nonmoving party at the reason she didn't write it in this three page note was because it didn't have someone testifies i didn't hear a conversation that that is excluded because they may not have been paying attention i mean how is that on summary judgment excludable it may be a perfectly permissible inference for a jury to draw that if a person wasn't paying attention we shouldn't pay a lot of attention to them saying they did hear something but how in summary judgment can you exclude it as a matter of law when he specifically says i didn't hear that defendant and apple e correctional physicians medical group unless there's any questions i'll probably just spin one minute on the other orders at issue and if i can yield the remaining time back to mr weiss aki on the issue of the motion for s judgment i'd like to st address and only address on the if there's any questions the reply brief filed by the appellant where she raised the issue that there are potentially appealable issues with regard to a voluntary  missal i'd like to point out to this court that the issue that appellant has raised in our opening brief is not whether or not the order denying the motion for reconsideration that order is not on appeal reconsideration the cases which opponents raised in the reply brief don't address the actual issue that was rate the cases that are authority on this issue are the cases that apple e raised in the answering brief we have not been able to find any cases discussing the issue of essentially an interlocutory dismissal on just a couple of claims however when you look at the dict of say ackerman the supreme court case where free and deliberate decisions should not be disturbed on a motion for reconsideration or name eyes or that the legal consequences of a stipulation should not be undone as a result of hindsight those are the types of opinions and decisions that this court can rely on to affirm the lower court's decision with regard to the motion which was probably for it which was brought under rule sixty rule motion was made under rule sixty b two of newly discovered evidence and this must be evidence which must be newly discovered must be made within due diligence of discovery and must not change the disposition of the underlying order in this case the order dismissing going in reverse order to about the change of disposition we cited to the case the shores we followed are a th circuit case that when the court takes into consideration whether to undo an order for voluntary dismissal on a stipulated basis they must look to see if there's any prejudice to the defendant and the reason is because the following tory vaunted very dismissal especially on a stipulation with prejudice and doing that is the prejudice to the defendant according to that fits their case now with regard to the dude diligence element the court found and it would that there was no due diligence because plaintiffs acquiesced with regard to discovery the nd amended complaint is what brought in fee p and g which was filed in january of two thousand and eighteen it was not until june of two thousand and eighteen that appellant filed or excuse me served her st written discovery to be actually in this case it was only to request for production which are within the record and then there was only one that position of newsprint during that time the appellant could have taken the deposition of anybody else within c p m g to test the training or to get additional discovery with regard to the training at c p m g but the appellant did not do so there was no to  medical officer and the e mails were produced through discovery propounded onto the county that discovery was not present propounded on to see p m g secondly the deposition of dr joshua took place after a requested the voluntary dismissal it again goes to due diligence if appellant had decided to take the deposition of dr joshua timely then we would be having potentially a different discussion but because dr joshua was not opposed until after that goes to show the appellate was not diligent in pursuing discovery on this issue or any others with regard to dr joshua dismissal of some of the counts but that all there is a final judgment now in this case and that came after the motion for summary judgment was decided right that was on the basis of the summary judgment treatment  of the county based on their settlement and it was also based on the dismissal of the one thousand nine hundred and eighty three causes of action again c p m all of those together have led to the final judgement but it doesn't depend upon  your activities not hers that's my understanding as well because p p m g s only was only left in the case after the dismissals as a result of vicarious liability for the negligence causes of action  bradman and thank you for your time unless there's any other questions frank you have a couple of thank you i just want to follow up on two very important points following up with two o'clock on the that suicide and his counsel didn't counsel didn't the defendant's expert report say that the reason that nurse brennan met the standard of care was because she did convey this information right and that becomes a question that the whole thing turns on because so that i mean the hope one of the basis of their expert report is the reason she didn't violate the standard of care is because we're going to assume what she says she said she actually said read and  expert right you know so i think it was it was based on that set of facts rather not interning was it that was my understanding of the expert report is based solely on the fact that she