interpret and apply the pennsylvania discovery will all i mean the first the first dumb question that everybody is going to have on this case is why wait so close to two years a very good question and one which i don't have a good answer you know so i mean is was fog what the jury ten seventeen yes the other side is saying at the latest come february nine of fifteen they were on an inquiry that her condition was far beyond anything that he expected and that is what he reported to miss adams prior to that time prior to that time the the there was a long course of treatment here most of which involved investigation into interview information or infection and it was only it was only in january that the concept ripened that she might be experiencing what the doctor sometimes spoke of as tissue reaction and other times spoke of as metal o c s the central point for for purposes of the statute of limitations analysis is that is is that while i would agree that by jan i think the record reflects that by january thirtieth two thousand and fifteen that is the date by which it appears based on the record that dr vrba really said to marilyn adams i believe that you have adverse but but what he was expecting was was what was was where in a different part of the of the implant than actually occurred and what he certainly was not expecting was the extent of the of the damage that he actually observed and here's a question that i have yeah it seems to me that we think about january thirtieth  a personal injury to physicians it was her it was it was absolutely her trusted advisor and guiding her and yes he does appear to have said she doesn't remember it but but he there is a record evidence that he told her i think you have adverse tissue reaction i think you have melosa this the question then arises what does that mean what did the doctor think that that meant if so we can we know what we know what the doctor thought that he meant when he said those things and i can around a site that's typically caused by an offending factor that factor can be metal where debris so when a patient has when a patient has a response he describes this in terms of the patient's response likewise when he defines metal osis which he does in the next page of the joint appendix he defines metal oses as it can be it depends on who you're talking to but it's typically it's metal where that then causes a reaction to the surrounding tissues but what he also goes on to say is it all depends medalists all depends on the patient's own reaction to the presence of metal wire so the point that i want to emphasize for your honour's consideration is that in the context of the discovery wall and we know the pennsylvania discovery rule provides that in the context of a latent injury or in this is the scenario here where there's an injury where the cause is not apparent the discovery rule tolls the statute of limitations until the until the plaintive knows or in the exercise of reasonable diligence should know that she has suffered a legal injury caused by the conduct of another and we can talk about the legal injury side of this about whether she even understood that she had an injury as distinct from simply a poor outcome but as to this side that's really getting to the factual cause and this is what judge what the district judge did the district judge concluded that dr vrba always saying to her you have met a loss was evidence of factual cause but what he believed when dr perper really was asked what do you think in any way shape or form and refer as implicating the design of the product as suggesting that there's a defect in the the message that he is the liberating based upon his understanding of metal osis an adverse tissue reaction is simply put you're having a bad  e that can be told no i want to say that i am very respectful of this argument right this is this is not a frivolous argument that zimmer has advanced and there is an argument that has a foundation in the and has a foundation in law it's a solid argument and that's fine but i'm not been bitching conceding that there is a meaningful argument and a credible argument that they are making and in an incredibly conceding that a jury might be persuaded by that argument i am not also conceding that summary judgment was proper there are different perspectives that people can bring to this story a jury could readily conclude that she knew enough such that she was on  notice and the statute of limitations was triggered by that time but when you when you take into account the pennsylvania law when you taking taking as backdrop pennsylvania's law really well established law could conclude and that then she did not understand that that that she did not understand that she had an injury that that her condition was implicated the but i think in my thinking of an you'll help me if i'm not thinking of this the right way there are three things that one could think of my doc this messed up something's wrong with the product or i got an infection and maybe there are other things  was acquittal about whether she knew it was a deeply or or not so my question to you is what other reasonable inference is there but that she understood that it was she had an understanding that her condition implicated implicated the product itself now in the context of a duck is issue and looking back she said i didn't want to zimmer product and there  might be all kinds of reasons why she didn't want is in the product but it doesn't it doesn't follow as a matter of law that that at that time the only that not at that time as a matter of law she now i'm not recognizing that we don't have to get all the way to tortious to knowing the exact nature of a tort point but right but let's just deal with what she said so i'm reading from her next one sixty seven page  but you knew it wasn't going to be a zimmer device objection and the direction is you can answer mine twenty more and yeah i knew it was not going to be as ever question one twenty two yeah would caused you concern if he said he suggested using another zimmer device whether direction but the answer is given line one of page one sixty eight yeah i would have objected to it because if used to get one out i didn't want him to put another one back in and conceptually you know that this was referencing january thirtieth so if she knows that the zimmers coming out and she  conclude that here she is in her deposition years down the road after she's fog a lawsuit against them or and that now she's applying she's using her retrospective scope to to reach an understanding about that product that  and judge if i may if we go back up if we can go back up to page one sixty six ways of her deposition where she says i knew there was a problem with my hip i knew there was a problem with my head and and a fair reading of this record is that she knew that she had a bad outcome she knew that she was having problems this by the way is exactly what happens in the mash in the public mass cases in the car we know cases an example where women have women implanted with mash they have pain at the site of the mash the mash can sometimes understands that she's having that the patient is having a problem with the mash and there are surgeries and there are revisions and their efforts to manage the problem what what doesn't follow and the reason why summary judgment was denied in hammond's the reason why  in carlino is because it doesn't follow that understanding that you have that you're having a problem with an implant that you know that that you know is a matter of law that the implant is the problem this miss adams understood dr beverly understood that she was having a poor outcome and that there were difficulties downstream of her hip implant which were investigated as preciseness as inflammation as infection which ultimately over years of inquiry  understanding was that mental loss and adverse reaction as as he'd as he testifies in his deposition which we have to view in the light favorable to the plaintiff for purposes of this exercise he understands the those concepts as referring to the patient's reaction to the product as a as an essentially an unusual an unfortunate but essentially normal reaction that that the plaintiff may have to the product that has to be managed that's why by the way he wants to do the revision he doesn't want to do the revision because he thinks that there is a a problem with the implant implicating design defect he wants to do the revision because he's because he's thinking to himself and this is what he testifie this patient is having a poor outcome and i need to kind of manage that alchemy and that's why we're going to do this it's only when he does the surgery that he looks at he opens her up and he sees that there is corrosion and th has failed and it's only at that point that there is an expression for her which i think could trigger as a matter of law a conclusion that she had an understanding that yes she had suffered an injury caused by the conduct of another because it's after the surgery that there is an awareness that the her condition implicates the design implicates the design of the device up to that point up to that point she is in the category of the patients in pennsylvania cases such as fein and wilson on managing that outcome but it's not until later that it can be said as a matter of law that the plaintiff understands or should understand that that that her condition is not simply bad luck but implicates in this case the implant itself so reasonable inference is not the way to think about when the clock starts because i'm i'm looking at january thirtieth or i should say one way to look at january thirtieth is that's a reasonable place to start the clock because he had the standing that it's the zimmer device now i understand that on january thirtieth the are there's more than one reasonable inference right but tell me if your understanding of the law is it has to be more definitive than a reasonable understanding you know forgive me but if there's a reasonable and i think i heard you say there might be multiple reasonable understanding well i'm so sorry there there could be more than one reasonable inference that one can draw i see i think what you're saying is on on january thirtieth one reasonable zimmer device and there are other potential reasonable inferences and because of that you really have to look at what did the doctor know and that on january thirtieth the doctor was not definitive in his understanding that it was the zimmer device that didn't come until after the surgery that is that is certainly a reasonable inference and one let me suggest that i think requires the denial of some judgment and what i would say more broadly is that we are not operating we are not operating here in a binary universe it's not this is not you know cross motions for summary judgment and where we're either it's it's us or it's them no one was asking does the district court to determine definitively and you do not have to determine definitively whether the summary excuse me the statute of limitation bars the claim definitively or the discovery rule definitively does not apply so that the claim is not part under pennsylvania law there's a broad middle ground which is which is where there which is the space for a jury because under pennsylvania and indeed pennsylvania law says that the ordinary rule and i'm not going to pound on the podium and say it's for the jury but the supreme court does say multiple times that the ordinary rule in the cont discovery rule analysis certainly in the wilson case among others that fact issues are for the jury and the reason the supreme court says that is because there are all kinds of ambiguity is inherent in the discovery rule analysis like like and this  right out of the supreme court cases like confusion about whether a plaintiff's physical condition reflects a temper is it is a temporary condition or reflects the legal injury there are other circuit there are other considerations for example the physician inability or unwillingness or inability to determine the plaintiff's medical condition or the cause of that medical condition the individual circumstances of the plaintiff in the recent nicolo case the pennsylvania supreme court made point of emphasizing that we should not look at facts in a vacuum so that even if dr perper always said adverse tissue reaction on january thirtieth we should not look at that fact in a vacuum but you consider the entire course of conduct and recognize that this is a treatment process that's been going on for years dr vrba really had gotten it want to say wong for years but had been investigating for years and and while it might be said that on that in january he was advancing a proposition for district court said once adams knew for certain that dr forever really needed to remove the zimmer device and that was january thirty three seed enough facts to make the connection you yes yes absolutely a reasonable person could conclude otherwise based on based on all the considerations described by the court and based in particular on and on dr her always own understanding of adverse tissue reaction and what metal those this was which he defined as as a as a form of unfortunate patient reaction unfortunate bad luck but did not define in terms of something implicating the design of the of the device and while while i'm not going to stand here and say that i'm entitled to a directed verdict on these issues and my i've already said that i think the argument that's been advanced as it is a credible and important and serious argument i would add that arguments like this are routinely advanced in the national league ation and they are denied in cases such as hammons and car we know because because because they don't get quite over the line because there are multiple inferences that can be drawn to  what no age on behalf of your client there's a lot require in order to start to your clock ticking in the fine case the supreme court is going to go in this case what how do you want us to come out of what rule of law do you want us to say applies based from pennsylvania in order that the clock starts ticking not on june thirtieth as the judge said district judge not  a problem that she was having as a reaction to the device she did not know that the product was it anyway defective until february twelfth at the earliest yes and i would soften it just a little bit because i do because i'm in fairness to the defendant that the discovery of on pennsylvania doesn't require the plaintiff to understand that there has been to understand the specific nature of the tort so your doctor go ahead when you go i would i would say that it's not until after the surgery it's not until after february twelve that she understands that her condition is not simply an unfortunate reaction to the product but implicates the based on pennsylvania's two years statute of limitations well let's just pick up where we left off the court that she had a duty at some point to do  inquiry as to what the cause of her pain and her problems were and she was doing that with her doctor do you have any question that she was not proceeding with due diligence in  in trying to find out what the problem was with her pain that was post surgical in twenty meeting through january jane with her neck twenty thirteen through january twenty fifteen she and her doctor were pursuing well it in january whatever it was she was trying to find out what the cause of the problem was as her doctor was as well correct and the question then becomes was the cause was she the cause in effect because her body was reacting negatively to the implant in her the in her hip socket and it doesn't appear that there was anything that was saying that there was it was the product itself that was causing the problem until it doesn't look like it was the product itself until some time after on or africa or twelve well you're on it the product doesn't have to be perceived to be causing a problem  the point there is that how you have to have both components the tissue and the metal which is the implant in order to have that reaction so the connection metal osis is in of itself connecting the  could be i'm having a reaction to this particular i'm having the reaction to the product is not the products well this might be it's my own internal system that maybe it may be idiosyncratic but the fact is you don't have to be able to blame the connection all you need under th its cause are enough to start with but if carlino is correct the case that was given to us yesterday if it's correct this is really a decision for the jury to make no the difference in the carlina case in the carlina case that was conflicting evidence about whether the whether multiple doctors told the plaintiff that her injuries were result of a complication of the surgery or a complication of the product osis and the implant had to come out but it but not necessarily that there was a defective product correct and that's not necessary under pennsylvania law as the case makes clear as the as the  speak of a connection between as you say the injury and the conduct of another but there must be some suggestion at the outset that the others conduct or in this case the others product was the  into it i suggest that to get to complete the quote it says without the necessity of notice of the full extent of the liability the fact of actual negligence or precise cause what is necessary is a suspicion and unrebutted suspicion and in january thirtieth that's what she had she had been told that she had the adverse local tissue reaction she'd been told she had middle so she'd been told that the implant had to be replaced and she had been told that the one other possible cause infection had been ruled out but if the input was fully functional it worked as it was supposed to work and there was no problem with it that's one thing but if the employer it does i don't see anything in the record that indicates that the airplane itself was was the problem until order after february twelfth well she said she knew that you know she was having a problem she was having problems and she knew that they were connect but those problems were connected to the  to her isn't the when you when you talk about actual or constructive knowledge you would agree based on her deposition testimony that you couldn't argue credibly that she had actual knowledge because she said number one i don't remember him telling me there's very little that she remembers and so we're really in the constructive knowledge realm you'd agree with that well recognizing that the burden is on the plaintiff here to establish the applicability of the exception and that's that's an important factor here shit she has the burden of proving that she did not know and could not have known as of february twelfth or february tenth well what if she doesn't remember that there are several places in the in the deposition was she doesn't remember that being told about metal o s i'm pretty sure that when asked if she understood mental osis it was i don't remember i could be wrong and you're correct me if i'm wrong so how do we how do we nothing definitive in the knowledge of dr vrba really until he goes in how do we make the steps of the quote that you've just made from us well i would point out that there is nothing contradicting d she admits that she signed it and she her only dispute is what mr becker said is that metal office is not enough and we submit that many losses is in fact enough whether it's gotten from that consent form around it's obtained from all the conversation she had competing versions of what was going on the debtors kept reassuring them that no no no this is not permanent it will go away and it eventually didn't go away and the trial court relied on the uncertainty introduced by the dentist themselves to longer had any doubt as as mr becker said he was the trusted medical advisor he came in and had gone through spent two years researching and trying to diagnosis he we narrowed it down to two things adverse to shari'a local tissue reaction and infection from the implant and he said it's got to come out and he conveyed all that information to the plaintiff and none of that is the stupid what would look at the wilson in the cases it almost seems like what they're saying is you got to use where the plaintiff is exercising reasonable diligence but remains unaware of the cause of her injury i don't see anything in the record that notes that the cause of the injury was a defective or possibly defective product until the date of the surgery and again that is not the standard in pennsylvania law doesn't have to be related to a defect in the product it just has to be related to the product and the metal osis carlino that the i think the surgery was eight or so or ten but the person two years passed wait and the woman is watching an advertisement on television the says hey you maybe have a public message defective product and then goes to a lawyer and brings the case way after the statute has passed the fourth said television it's not that she didn't know it was a defective product that underlies it's the issue that her doctors were telling her there are two possibilities here one is could be a complication of surgery itself or two it could be a complication related to the product connection needs only be to the product or to the conduct of the defendant not a connection to a defect in the product and kyra we know the fact that there was there were two alternatives that she had been told by her doctors that hadn't been resolved before the statue of limitations began to run was what the car based its addition on here in contrast there is no doubt that her only doctor was telling her one unambiguous thing on january thirtieth twenty fifteen you have metal osis it results from the adverse local tissue reaction and you've got to have the thing taken out and if it also point out that is exactly what the complaint claims is the design defect here if you take a look it's quote adverse local tissue reaction and or the need for early ration surgical intervention those are all things she knew on january thirtieth all three of th mr johns described pennsylvania's discovery rule as narrow and that word is used in the cases but and it's not a word that i think we really know what it means what we know is what the discoverable says and we know how it's been applied pennsylvania supreme court in the fine case which was discussed in the wilson case and others the supreme court says over and over knowledge of a symptom knowledge of your physical condition is not knowledge of injury as a matter of law the supreme court also says in carl you know this it wasn't a supreme court that was the superior court in carlino and hammonds the supreme court certainly in the nicolo case and others says that knowledge that you're having now is that you're having a reaction it wasn't infections that right by january thirtieth the record reflects that dr her ellie had concluded that there was no infection and his representation to her by that point as i understand the record is that herbert really thought avars tissue reaction was and what the way he described it in his deposition which we have to view in the life if you will to the plaintiffs he described that in terms of the plaintiff's response so he does not in any way suggest in his understanding of adverse tissue reaction or of manilow says he doesn't suggest anything intrinsically about the product what he is suggesting is that she is having i'm sorry there's no well because i starts well he does not have to say to her you have you have been implanted with a defective product for which you can sue under pennsylvania law for strict liability he doesn't have to say that but he has to say enough from the standpoint of now from the standpoint of making the jury argument and let me say that this is all i think what's been offered is a beautiful jury argument which a jury might be persuaded by but for purposes of judgment as a matter of law he has to say enough that you can conclude that the district court can conclude as a matter of law that she had a reasonable basis for understanding that she had an injury caused by the conduct of another right stop doctor saying that he had to use another i think he well decided he is not right what she says is i wanted another product he told me it was going to be another product and i wouldn't let it be anything other than another appendix where there's a discussion of the to put i think he did he tell you that he was replacing it with a different product different manufacturer yeah he put in a different manufacture did you know prior to the surgery what the brand of the device that you were being led to yes ok answer but i didn't but i don't again i don't remember what he put in i think it was a  knew beforehand and he told her that it's going to be something different to those in the fact that everybody knows it's going to be something different carry so much weight and th weight yes i think that that makes anything that's a fact that makes that that that observation makes sense to me that that would carry some weight the question in my mind is whether whether the record to a place where we are clearly over the line for summary judgment must be granted or is this like one of the sideline throws in a football game where the wide receiver is close to the line but he still gets two feet down before he goes out and and  actually a good boy it's a catch either way and might my mike's or posture here is one of as i said earlier is one of appreciating that the argument that has been made by zimmer is a meaningful argument just as the arguments that have been made in the carlina case and the hammonds case are meaningful arguments that have a factual foundation but they don't get across the line to justify summary judgment and the poor these cases out of court because because because of the has adverse to your reaction on january thirtieth she's been told that under the nicolo case we have to do the entire course of conduct we have to under under fine and and wilson and many other cases we have to also bear in mind that there is this this process is unfolding her understanding is unfolding within the framework of a patient physician relationship where she cannot be imputed to have any understanding beyond that  really himself and where dr burke really understands only that as he says in this deposition that she is having a reaction she's having a reaction to the to the product which by the way in their instruction for use there's a reference to metal wear and sensitivity in their eye if you so where he where he does not frame for himself let alone frame for her anything other than anything other then this is a poor result this is unfortunate this is something that sometimes happens this is something that we have to work with we are in essentially the landscape of carlino and and all of these pennsylvania supreme court and superior court cases where you have a paper where you have some confusion that's the word that the pennsylvania supreme court uses where you have some degree of confusion as between whether the patient's experience is temporary and  and something that the doctor can get the patient through or it reflects a legal injury caused by the conduct caused by the conduct of another and i you know judge greenaway you asked earlier whether there was a reasonable inference that could be made and i'm not going to stand here and say that there is that that there is no reasonable inference that a jury could not reasonably conclude that she filed her lawsuit too late it jury could reasonably conclude that but i want to suggest to your honor's that based on this record especially in light of dr perspective and dr ferber always total command of that patient physician relationship such that she can only be imputed to know what he understands that there is not enough there is also a reasonable inference that she did not know enough  not understand enough until after the surgery and so after dr who really opened her up and said oh my gosh there's something completely different that's going on here and has that conversation with her that as a matter of law it can be said that summary judgment must be granted i understand if i mean i my perspective five if i can just continue that analogy my for specter here is that the judge is that the district judge who clearly had great intent you know was trying very hard to get to this and looking at this very closely  de two slight errors that guided this case out of bounds when it should have been remained in bounds the judge said that her knowledge of her symptoms was knowledge of injury and for the reasons we've discussed i think that that is just too strong that's not a conclusion that you can reach under pennsylvania law in light of cases like finding wilson and that was one slight mistake and another slight mistake was he said that that her the representation from d that you had doctors to shoot reaction was knowledge of factual cos here and there i get it there's multiple ways to get here but he pushed this a little bit too far to the outside and pushed her out of bounds