good morning rob gas on behalf of robinson in the power side family this case should not be taken in a vacuum why we are here is that in two thousand and one defendants knew that their product was defective it injured people and that they didn't tell surgeons for years later dr lynch implanted his fireside with the exact patch that was recall nine months later defend his defective product cause mrs bower socks death and left four children behind including one dependent who is profoundly autistic and defendants knowingly cup caused public health disaster severely injur thousands of people across the country under the m let's focus on the only issue with regard to d the only issue with regard to dr for zokol under the court's summary judgment order is that his opinions were reached using and i relied on methodology judge mckinney a terrific man and wonderful judge do so judge mckinney failed to take into consideration the totality of the evidence that was in a response to the motion for summary judgment dr opinions were based much more significantly on at least eight other items that it is in the record zocor causation and it was based on the personal inspection of the patch which showed a buckle to mrs bower sox extensive medical records his practical experience with medical monitoring with regard to the patch for peer reviewed medical literature supporting michael perforations  his review of the general medical literature related to this case six through review of extensive internal corporate documents number seven bar literature literature review i'm contractures and buckling injuries number eight the expert reports of all m t l experts over the years and his extensive experience with the m d two four for the district court to simply focus on want to aspect that being only that of the patient history was r because that was simply in response to questions and it confirmed his opinions it wasn't even a roll of his reliance upon those it was his confirmation with regard to the other at least eight factors supporting is the basis of his pinions now what does that doctor for zovko ruled in and ruled out like he does every day like doctors across country do every day what does that mean that it means is a differential diagnosis and under a differential diagnosis that is fully supported by this court and courts across the country as a cocker ro blah about methodology but that that theory by his cousin nation opinion came very late in this litigation that was not the way he described his cousin theory he used this other term night as theory had enough that's how it's pronounced but when the physical evidence from the autopsy did not in fact cause her death he developed this other theory that was never before used not peer reviewed tested not reliable you know word which is the standard and that's what judge mckinney found that his new fangled causation theory was unreliable and therefore inadmissible and it was not characterized as a as a simple commonplace differential diagnosis i fully understand the question and what the defendants came up with the term night is theory this is not a novel approach whatsoever and i'll take the last part your first part last year you this is consistent the mechanism of injury is consistent with the cases in the m t o meaning that there were there was a hole a micro perforation regardless of the size that allows bacteria to go from the bowel to the wound which in turn lead to sepsis and death that is not novel in a way the writ and and the court in smith versus ford motor company this court recognizes that when you're viewing expert testimony under the dollar factors of lack of peer review it rarely if ever be the single dispositive factor that determines the route reliability of an expert testimony and where that goes to and i'll get to the autopsy why is that important because simply because it is a doctor does a differential diagnosis and says that this is somewhat different or that that because we have not seen this exact mechanism of injury like this that doesn't mean that he that the doctor cannot rule and rule out and make a determination these are highly educated excellent doctors the defendants the court of appeal i mean the district court all said these are excellent experts and what the judge and what the doctor for zocor did is he went through  what the court grabbed onto was the fact that defendants came up with this quote night as theory they termed it and all he said was it's not it is a micro perforation so it's a small perforations but thousands these cases had perforations of the bile that is exactly the mechanism of injury with regard to this defective patch and why it was recalled in turnin your last point your honor with regard to the autopsy doctor course very clear he does a cursory review of the ball as he looks at it going down the line he had no idea what was going on at the time and doesn't do a microscopic look and and zokol explains that consistent he says there what had to be here and he rules in the rules out he takes all of these items that the defense throw at him and he says no and here's why what was the mechanism though that caused the micro perforation wasn't that a problem here because there was no evidence that the patch had malfunctioned in the manner in which you know this this problem i mean even for a differential diagnosis you throughout the course of the deal we are we know that the buckles caused shock can cause sharp edges can cause there wasn't a broken rain here there's and there wasn't until where the buckle had the brake buckle and everything is a defamation of the ring that was defective and when it is defective and wanted to forms as opposed to attaching simply by the defamation of the ring is that it can rub up and cause very sharp ands on the on the side i agree with you your honor but that dr hyman explains this very clearly that the defamation can cause sharp edges and that's come from her stool or sit or improper hygiene he says no that's not that's not possible that's not what happened so how do we get it and it didn't come through the skin and it had to come through his her b question how do you rule out that her whole own high gee how did he rule out the other possible causes like her own i gene i mean it wasn't the infection and the bacterial infection that ultimately he relies on after her admission to the hospital and it's there and that is what the most virulent bacteria that causes sepsis and that's why she that's what he opines of why she passed away go back to ruling out how why are her own hygiene especially when she's in the hospital and just as that abscess is not the is not right now can they really know is that first of all could it is it a heist a remote possibility yes but there are remote possibilities every time a doctor's me doesn't really rule it out he just goes that's probably not it he concludes it is more likely than not that it did not occur this way because it would have to come from her rectum all the way up to or stomach he has that that's extremely rare very rare it is what he testified and he's never seen i mean it's a rule it out that there's that chance but it's like anything else he rules it out to get to his opinions just like what does this go to this differential diagnosis this is the defendants can quibble and cross examine all they want to trial they can take out just like your honor just ask me those questions they can get they can get in one stand and ask all these questions what the heck is going on but that goes to this the case of gate is directly on point determinations and admissibility should not supplant the adversarial process shaky expert testimony may be admissible assailable by its opponents through cross examine that's what we're talking here way insufficiency the family should have their day in court these are highly qualified experts they have all of this p that's really not the legal standard here the legal standard correct virus a very vigorous gatekeeping function on the right of the district judge to ensure reliability correct and your honor that is exactly right and that's why we're up here on an abuse of discretion with regard to the district court because the district court focused solely on these patient experiences that the doctor for so you can't go back and get ten thousand records and go through all those that wasn't why he came up or how he came up with this reliable methodology it was differential diagnosis and what he did of the eight things i've already told have explained to you is why he came up with his opinions by ruling in a ruling out that he globally excluded he he was in total excluded we agree with the judge that he is not allowed to give an m d type of opinion but he is allowed to here is the biomedical reason that they z in the case law is clear that they can their facts and opinions mesh to experts use it all the time good morning your honour's me it please the court james martin for the a pelleas the plaintiff's disagreements with the district court's rulings with respect to the experts testimony whether we're talking about any one of the experts  run aground on the standard of review and they run aground on waiver principles as well this court has made it clear in its opinions that arguments that aren't advanced in response to summary judgment motions are forfeited for purposes of appeal and here the two arguments that counsel has advanced this morning in support of the overruling of the judge's decision were not made specifically in response to the summary judgment there was no differential diagnosis argument and there was no argument that somehow the combination of dr hyman with a doctor for soco would get by summary judgment but even if we entertain those organs the notion that there was an abuse of discretion here in the ruling made by the district court cannot be squared with this court precedents the court looks at two things in a downward inquiry first did the district court apply the framework that delbert required he most certainly did it in his opinion he lays out the standard this court has directed courts to apply before he gets in to the expert testimony nowhere there on the decision itself of course he has wide latitude under this court's cases under the supreme court's decision in joyner in performing his gate keeping function and what this court has asked for is for the judge to explain his reasoning on reliability on fit and lay out the analysis of why he or she draws the conclusion that the opinions are inadmissible he most certainly did that as well and it would be hard to explain half a dozen decisions from this court that we have decided if that was determined to be an abuse of discretion even if there is disagreement with how the judge got there now unpacking the testimony a little bit further here a counsel has tried to describe zocor theory to start with as a well accepted differential diagnosis diagnosis methodology that comes straight out of the the patch litigation as district court properly found it is none of those things it was a novel theory offered for the first time in his deposition in the key to it of course was patched causation by perforation it wasn't about ruling in a ruling out infection it was about whether there was any substantiation at all for this mechanism of causation and there not only did dr for zocalo never accuse the term differential diagnosis anywhere in his deposition but he made it clear that his causation theory was just what the judge said it was offered for the first time in this litigation to fit what he saw now what the judge did then was say ok i'm expect a little more corroboration for that since it's a first time in litigation opinion so he looked for it could he find it in the record no doctor for zocor his opinion far from being a differential diagnosis ruled out or dismissed or adopted an opinion contrary to a host of record facts that the district court knew and differential diagnosis is not used for that it's not used for contradicting evidence it's not used for eliminating evidence that's uncomfortable so he said ok there's no record foundation for it well i better look further so he did look further and he looked to the only thing the doctor for soco said he relied on and that was ubiquitous patient experience now that patient experience wasn't described either he could didn't know the details of it and he didn't supply any records to substantiate it and in the chapman and brown case cases this court has made it clear that that sort of personal experience in a vacuum even from a highly credentialed expert is is not sufficient but but let's go territory how about some confirmation and testing nope didn't exist a study no didn't exist literature no didn't exist general acceptance well nobody tried this before he went down the list of daubert factors and there was no substantiation for this opinion in those circumstances your honor it cannot be labeled an abuse of discretion to reject that opinion if dr for soco goes your honor is right they don't have any product theories because they need a specific causation theory to substantiate any of their product liability claims including failure to want moving beyond that to dr hyman we run into exactly the same problem the judge looked at his contracture theory which has now been relabeled as a defect theory and said where is the support for it in the record or in the analysis that dauber would expect and it wasn't there dr hyman admitted this was a first time in litigation opinion for him to ok so let's look at it was it tested no not on ms bower socks patch not on any ring patch at all was there any literature that supported this mechanism of injury no it didn't exist was there any other case that he had participated in where he saw this no it was the same as dr for zocor he didn't see it was there any objective jets of vacation for it in the rest of the buckle litigation or the patch litigation no that wasn't there either so when you run through the list again of corroborating factors under delver you don't get any substantiation for his opinion and again in those circumstances your honour's there is no  abuse of discretion in rejecting an opinion that's that's unreliable and also of course his opinion doesn't fit this litigation he admitted it was a hypothetical theory not tied to causation with respect to and i'm quite had in this respect the idea that he can support dr for soco in some fashion hypothetically dr for soco did not rely on dr hyman's opinion for any reason in his deposition at all so what we have is inadmissible plus inadmissible and that is not a way to resist summary judgment it is the time that summary judgment should be entered plus the court has for the questions w will submit full is the what was the alternative theory of the mechanism for the infection here oh actually there was great record substantiation for that no treater no specialist believe that this infection infection had originated in the bow or had any para to neo natal capacity to it at all what they said was it resulted from the hospitalization skin infection through the wound and as counsel indicated that that is the likely source of that in fact the notion that the bell was involved this is very rare to say the best according to the treaters and specialist long as a matter of fact the fecal bacteria whatever it was entered through the skin it was an abscess on the abdomen no now cavity aspect to it at all and that was the explanation for the infection that they coltart and treat two topics to touch on very quickly the conclusions drawn from a differential diagnosis those eight items that the court did not consider is the reason for the abuse of discretion and it was  but with a differential diagnosis the question is if the conclusions are bade are based upon delbert support it was supported evidence and those eight that i discussed make the difference of why d should not be excluded to touch on just very briefly with regard to counsel's argument the bailey case with regard to whatever i believe is directly employed we made all of the argus and it is my fault that we did not use the exact term in the summary judge motion and that is my fault but when we moved to correct there we did add facts opinions not one thing other than the say to the court under the motion to correct error the term should be used as differential diagnosis so it was raised at the trial court level not first time and the court under bailey had the opportunity to change its mind but did not and that was one of our reasons for the notice of appeal thank you will have to wrap up your time has expired