is a major procedure irregularity which was that the motion to dismiss that was filed and ultimately granted was based almost entirely on facts that were not in the pleadings and were not in the record in any manner there were a lot of statements made by defense counsel about what the true facts were in his view and they were not supported by affidavit they were not supported by medical records and they were certainly not supported by the complaint and the course there was a notion this was a motion to dismiss that was ruled upon by the district court is that correct that is correct it put forth facts or at least allegations in the complaint that that more aligned with some of the facts that came out in the medical records as we received them but as the case stands currently the amended complaint the st amended complaint contains the only facts the court was to consider and instead the court consider the statements of counsel and adopted them essentially as facts in it and those statements were of course just not supported by the record regardless of the procedural irregularity there is the underlying issue here which is a matter of st impression in any as far as we can tell you united states court which is does a genetic mutation can that constitute a disability as defined by statute and the district court's decision did not directly apply the standard set forth in the statute it also did not focus on the commandments and the americans with disabilities amendments act in two thousand and eight that congress or about law or tonight can i kind of skip to the chase so what evidence is there that any impairment that miss darby had was substantially limiting her normal self sure well it's in the complaint the allegation is that she was suffering from breast cancer so sure but that the district court allowed your amendment which removed that right you remember it was you had eight things i think you listed if i remember correctly and it removed that because she actually wasn't suffering cancer and we know that because you're amended out so skip that one and just tell me ok go ahead sure well the the abnormal cell growth was evident st by a pap smear that showed allowed as it said allowed an amendment but we did not put forth an amended complaint what was put forth was essentially a summary of a request to amend in the basis to amend so they're going to be what you call forty eight points you haven't is there anything that you didn't put forth that you intended to you proport a point in their reply brief below they said it's ok and then the district court said i'll just accept it as functionally amended which happens all the time purposes of a motion to dismiss as far as what points would have been an amended complaint it would have been a little more developed as far as the argument but you know i don't know that there's any way any person could say directly and without equivocation that these abnormal cells in her body were specifically caused by or because of the gene mutation but medical science and that as we alleged is that the gene mutation prevents the body from correcting these abnormal cells so it is likely impossible for anyone to say without any you know with directly that these particular cells exist solely because of and would not exist absent the b r c a one mutation but we know that the b r c a one mutation allows these cells to propagate without being able to correct them or or destroy them and that is the physical impairment so your argument just to boil it down to a nutshell is that these b r c a one b c r e one  to grow abnormally ok well that's actually that's it's mission number five of your proposed mission is it not it is that the b u r c i a gene is an impairment that substantially limits normal cell growth that's which you alleged i guess maybe the issue is under trombley whether there's facts to support that allegation but i mean the procedural posture here so odd that we don't actually have the complaint that would might might have or the factual basis to support the conclusions in the admissions and the judge was abnormal cells that were already detected and the gene mutation is to infer draw inferences of against the point so that in this case you know at the motion to dismiss stage before discovery before any medical testimony to mr boller can i interrupt you again i'm sorry but what mitt what judge griffin saying is this this could be considered under twamley a conclusory allegation and if it's a there has to be evidence underlie and so back to my original question is there evidence in your complaint or would there a band had you been allowed to file more fulsome why showing that  causes us that it that it i guess judge i want to make sure i understand your question is that that is your question whether or not b r c a one can and generally does or that it specifically caused the abnormal cells discovered this isn't a theoretical exercise it's not that it could we know there was abnormal cell group but i guess i would add that it really doesn't matter if there had already been abnormal cells growing we know that the condition that's that's what his testimony would be yes that that was that the burka one gene prohibits the body from addressing abnormal cells and you know the medical literature that we've examined and you know of course we cited to the national institute of health that is with the national institute of health says and i know you know we would present more at trial but that is that is the that is what the national institute of health says it  but again the you know there was the one case we cited on hiv and the court said that from the moment of infection hiv is a disability and that was under the more stringent standard and what what the court said was that you know you don't have to wait for the hiv to develop into a just don't have to wait for the common symptoms to come if it's  actual effect that the virus has at the cellular level from the beginning not once the symptoms start to manifest similarly with the ralph case when this court held that  you know the underlying interstitial system cystitis was a disability irrespective of the frequency or duration of the bladder infections cost so the fact that the condition does cause these symptoms manifests in certain ways the fact that a brick a one gene will or could manifest into cancerous cells or abnormal cell growth is enough because we know that the gene prohibits the body from handling abnormal cells now whether or not the ultimately develops cancerous tumors in the future is really  irrelevant it's almost as if you know you have to wait any employer would have to wait to a certain point to a tipping point of it of a disease before being entitled to an accommodation to receive treatment and then what is that tipping point when does a disease reach the point that it is severe enough that an employee be can receive treatment i submit that it's when a doctor says treatment is is medically indicated and that's what happened  usual issue is the basis for your claim the termination or is there more are there are there more grievances you have with the way they treat your client it's the terminations primarily i mean there were  a result of taking time off to go undergo treatment therefore she was denied the time off and what your complaint at paragraph sixteen says that the company approved for use of vacation and sick leave for her surgery yes and initially it did but then it essentially removed that a combination took it away when it terminated her for taking the very leave that it initially approved mr butler i think the genesis of the procedural problem in this case rd question to answer because we're dealing with a young woman she was twenty seven years old and she was a single mother and she she went to a doctor who told her she had these conditions and told her she needed to have a hysterectomy a hysterectomy and a double mastectomy you know in that circumstance i think it's hard to fault ms darby for perhaps misunderstanding her condition but i also don't think it's fair to exactly say she did not have cancer we know she had already normal cells growing in her body and that cancer at the end of the day is abnormal cell growth now when we often think of cancer we think of tumors that is as it advances as these abnormal cells come together and form tumors but you know cancer is a very general term that is used to describe a series of conditions that end of the day are abnormal growing cells so ok so i mean if you do not reveal her medical records before you drafted and filed a complaint we did not have her medical records of the time the complaint was filed no she she came in and you know it was you know admittedly when someone tells me she has breast cancer and has had a double mastectomy there wasn't a whole lot of question in my samantha see and i will make you the i think the court has a good grasp of the real two issues of this case the st being that the original complaint was misleading to the core alleging she to dismiss based on her new theory of recovery which she admitted at that hearing the defendants or the appellant basically functionally amended her complaint i mean she listed out bullet one bullet points what the amendments going to be i just don't see where they weren't functionally allowed to bed wife and i think that the court relying on those taking those allegations as fact was allowed to those actually conclusions i guess well what we would we take those allegations as being put forth by the court however we don't get the fact that this  though i think i think the literature is pretty clear well st of all with the b r c a mule wait wait mr todd judge griffin just asked you to me a perfect question if you're referring to the literature that seems like summary judgment material why would a court considering a complaint in a motion to dismiss look to the literature well well st of all the appellant provided the literature that the court was relying on as part of her the main thing with the complaint is and as counsel has admitted there's no way to tell that this has manifested into the disease of cancer or will ever manifest f or someone has a benign cyst has nothing you know in there of a still illegal cells that really has no function and does not hurt any bodily functions is just a rose that is benign that's abnormal so gro allegation that there was a pretense or or a pre cancerous probe there was just an abnormality in an apathy ileo cell and the doctor meant recommended based on fat and she give the genetic test and have a double has because of the substantial risks that b r c a one will result in cancer by the time that she's eighty there is a substantial risk that that she will that she  sometime during her lifetime develop cancer but the question is though she have cancer now will this ever lead to cancer there's no way of telling there's there's there's there's probability and but there's also a significant number of women who have this who never develop cancer and live healthy lives but let me ask you let me ask you let me go back to the question i asked which is you'll agree that congress in has defined a major life activity as normal self and the plaintiff alleged that b r c a one limits substantially limits normal cell growth why isn't that sufficient promotion dismissed purposes you might be right it summary judgment you might be right about  true but what i want to understand the the the normal so the it's not that in some cases the b r c a limits normal so it just has nothing to do with normal the right now we're looking at the science and that's that isn't in front of us what's in front of us is the allegation you know that the if the allegation is so far gantz the assume that everyone would be r c a why mutation has abnormal so to the extent that their d n a doesn't get repaired properly do you concede that if that if we accept that she qualifies as disabled so let me repeat your question just so i make sure i want you to assume the science you're discounting or a date you're saying doesn't exist so you have to assume for the purposes of my question that b r c a one mutation abnormal cells or doesn't repair substantially limits normal so however you want to say does it qualify does she then qualifies being to see if that  transitioned into some type of cancer or eliminate of a major bodily function then yes i would agree but that's just not the case you agree that there are no published circuit cases that are take this issues if this issue and squarely oak rafters you know i've searched all fifty states state and federal cases trying to find anything that anything close to this and it's a matter of complete st impression nobody has no litigant has argued that a potential disease in the future is reason that they nobody's numbers brought the argument and so you know some of the questions pro you're asking us to throw it out too at the pleading stage where at least there's a least a few wants the parties want the medical evidence  shows we have a pretty invasive procedure prescribed here as a result of this condition and it does seem like perhaps you would pretty easily prevent summary judgment if you're right about the medical evidence but  good candidate for further development told she had cancer and then immediately when we discover and by you bring up hey she doesn't have an answer she switches to the right on the very guns of discovery i mean is there a way to work with judge barrett to streamline the discovery take out this sort of she spent the st part of her life with it without any incident and a lot of ladies do not have any incidents either and there's nothing there's no allegation in the pledge complaint that she was suffering from any manifestation of this substantially limited that's the same case here there's nothing to suggest that there's that the plaintiff appellant will ever have any more issues with this there's nothing to suggest there's nothing to suggest that she absolutely will she has an abnormal d n a six structure in one of the affected areas namely the bras that they might one day not be corrected and that's that that's that would just open up the floodgates i mean people who have d n a markers for all numbers of diseases that have very high probabilities of developing in the future could then say that they're disabled even though they not do not yet have the manifestation of thank you mr butler you go for about a rebuttal thank you i'd like to address this issue of manifestation it's simply not part of the statute the statute and the regulations say a physical impairment substantially limits a major bodily function whether or not that that that impairment ultimately affects the person's day to day life is just not part of the calculus so let me out let me ask a question that came that abnormal so is it substantially limiting a major life activity well i think the answer to that is if so if your question is the b r c gene may or may not cause emmel cell growth correct it just creates a great disposition to d it doesn't actually cost then are you is there any substantial limit to a major life activity just from having the gene itself from having that the gene itself no but the question the problem here is it's a gene mutation that of cording to the medical literature as we would submit in the complaint and as i believe the evidence would come for the trial it is a mutation that prevents your body from doing something it is it is the absence your body at that lacks the ability to curb to correct damage genes now that may or may not function because if you feed it cannot serve function this this problem with this is concern over people with any manner of genetic predispositions you know flooding employers with eighty eight claims is really unfounded because at the end of the day the eighty eight only provides protection into circumstance the condition rises to a level that a medically there is medically necessary accommodation in which case we know it has reached a level that it's there there's a problem this isn't just someone with a predisposition who's otherwise healthy only the person with the predisposition who has a medical problem would would be eligible for protection under the law or if a person is fired because of having a genetic predisposition which would be covered under the a p a but would also probably be covered under recent a whole host of other laws so there is no actual danger created by the thought that someone with a genetic condition or predisposition would would would cause problems  globally and i guess i would also again submit this isn't a predisposition this is an actual genetic mutation that according to the medical evidence is as we would allege in the complaint and we anticipate we can prove it you know through litigation would does inevitably cause these problems and you know she had a medical manifestation we know that because she had the  led the doctor to recommend the genetic testing and the genic testing came back showing she had this mutation so obviously the doctor saw a connection between the abnormal cells and the