whether that eighteen millions of morphine was inadvertently did minister to mr miller while he was in the hospital or kaiser and while the creek because of some malfunction of the piece of machinery manufactured by the defendant or whether the morphine the missing morphine was removed from the syringe after mr miller's death for testing and whatever and for the record support your position rather than are there two witnesses who came forward a man by the name of bradley lewis and that's his deposition that exhibit ten in the appendix and another witness by the name of cynthia like her deposition excerpts are that exhibit eleven in the appendix these witnesses allegedly were involved in removing the morphine from the syringe after mr miller's death this eighteen milligrams of morphine just to go back for a second well in the in the court in the court's order it states that the declarations of plaintiff's experts to create a genuine dispute as to the cause of mr miller's death they do not however create a dispute as to whether the p c is a pump malfunction the court went on to say that the depositions of several kaiser employees established that kaiser took two samples of fluid from the syringe for testing and each of these samples contained approximately nine to ten milligrams of fluid plaintiffs would dispute that and believe that the evidence does dispute that finding and this is why the one document what happened is i sent a subpoena to kaiser and i said produce the person who removed this fluid from the syringe and i asked them to produce also all writings in connection with the removal of the fluid from the syringe the laboratories in virginia there were there was a computer link between the laboratory in virginia and the laboratory at kaiser want to create the samples have to be removed based on a requisition not only is the requisition created but there is a log when  labels that were barcode and then would be entered into the computer using a laser scanner the courier then would take this package list check all the specimens against the list then take that whole big package of specimens to was no log from the laboratory there was no package list they claim that the first sample was lost and therefore they had to do another sample there was no record of any contact with his laboratory virginia that there was a  there was none of the ordinary business records that they say that they create when they do this activity not a single one now here's the testimony for example mr mr bradley lewis fifty three from three through four exhibit ten quote i don't know whether it was removed from mr miller or not i can't remember that he says about the requisition he says this is again page one thousand the only writing would be the original requisition that we are trying to locate so they couldn't find a requisition on page twenty one he says no i didn't bring any writings of the deposition on page thirty four he says specimens are logged into the laboratory but we have nothing in the log relating to the specimen if you look at the actual document that they presented which is exhibit six to the appendix there is nothing on that document not a single thing that links that particular test to mr miller there's no patient id and that was a little confusing because first he said when i asked him that he gave the sample of patient id that was on page forty six but then what he said later in the deposition was the number on the test report is not a unique number for the patient the number on a test hornbook textbook law that's exactly correct and not only absence of ordinary business records but here's what he said about that you cite a case for that proposition i do in my brief i don't have one of the top of my that is in your greatest right now let me finish the one thing you know he also said about this particular document he said he said i was asking him about the contact that his that the hospital lab would have produced one for steady wary of two thousand and one before mr miller died and they produced one that has the same date as the date of mr miller's death that's true they're claiming that because it happened on the same day that it must be for mr miller properly then if you push the button other times in that fifteen minutes you can't get any more pain medication in the machine keeps track of the number of attempts it is of injections the number of injections per hour medication that is not within the prescription they argue well the prescription was for fifty millimeters it's not fifty millimeters it's eight millimeters per hour or two millimeters every fifteen minutes i don't think you're answering  my expert said it was an overdose and i can tell you this there's eighteen more leaders that are unaccounted for if any of us received eighteen million liters of morphine even over a ten minute interval we would probably all die we don't know actually only do we know how many times that i mean it's what shown on the scene well there's a dispute because you see the mission the custody the nurse did not record on the medical record it's in here that information it was never recorded in his medical records subsequently a person who was specially asked to investigate what happened took custody of the pump himself and privately kept the pump all the day of the man's death so only he knew really what was on that machine and then it was a race so but we finally got it down to one agreements that there should have been as thirty left in that syringe and there was only twelve so eighteen are missing and what kaiser says is we withdrew it after his death and these two witnesses came forward and said we did it but they provided none of the ordinary business records to support that not a requisition for the test not any shipping documents not any logs nothing they couldn't remember and he admits he doesn't even know if it's from mr miller and th test report that they provided is not connected to mr miller by a patient id it's an environmental number there is no connection established and that raises a reasonable inference that the test did not occur and that mr miller died from morphine overdose we presented that evidence they didn't that they didn't dispute that what we dispute is there is there is the lack of any this records in the inconsistency is in this testimony creates a triable issue of fact as to the fact of the matter is that there is no evidence about this test cases and here is what makes it a tribal issue and not speculation is because we don't have the records to support my case that we have the man who had symptoms of morphine intoxication he had he was unconscious he wasn't breathing and he had pinpoint pupils there's only two things in the world that cause human beings have pinpoint pupils and one of them is upon infarct of the brain stem which he didn't have in more things so he had classic symptoms of morphine intoxication when he was found in the medical records is that a factor in that the autopsy that he doesn't have those levels the issue is the time of death because when you if you continue to process morphine more thing as a half life of two hours so if you if you remain alive and your kidneys and liver are functioning which they are then the levels will drop and to to near normal levels will not these were normal but i think we have your argument and mine do you want  morning may please the court my name is michelle good men and i represent the independent and happily that's the health care corporation ok why don't we just jump right to it from this standpoint because i think i think we're familiar with with the evidence presented and what i struggle with any time on a summary judgment when i have to you know i mean obviously we're not supposed to be resolving factual disputes and so any time i have to work to get over too many things i'm telling them myself what does that mean if there's a triable issue so tell me why in this situation i thought my inner argument my understanding of his argument is there's obviously nurses drew it out he's saying there are no records to support that and that it enough itself creates a tribal issue why it's not true that's not yours because it ignores a very critical piece of evidence that that are submitted and that one seventy one through one seventy four nurse hopkins was asked on june twenty fourth two thousand and one the day that mr miller died to conduct a peer review investigation he took the pump and rand and inspected both the pump and the syringe he wrote down in that document the pump has a history function which you must be aware of from the very thing he wrote down the date and what information was this is june twenty fourth two thousand and one right and that record exists that record exists and it is in our supplemental excerpted record at page that particular pages that page one seventy four i believe that that particular to do is make an inference that that twelve millimeters is really what was in the syringe on the day of mr miller's death in june twenty fourth two thousand and one but because of the hopkins report which specifically says there were thirty millimeters left that is not a reasonable justifiable or permissible inference to me so all of the discussion about whether whether liquid which will move how much was removed when it was removed is really irrelevant it is not material because you cannot simply by discrediting existing evidence that is the testimony of these lab technicians you cannot from that draw a conclusion is the opposite and now actually let's say you didn't have that happens report as it were all right let's say no one and all that we have is what is at the end of the day we're missing a certain amount the hopkins report and if that were arson area would that be closer to creating a tribal issue i need to clarify your question when you say we don't have the hopkins report are you referring to the entire report including the pump history tribal issue as opposed to speculation it does not create a tribal issue and this is why the policy history stated specifically what was given to mr miller at one time there is no evidence that that was in accurately body someone could have spilled it on the floor you cannot infer that even if it did go into mr miller's body it was the result of some problem with the pump but i see some point there would have to be something someone could do by circumstantial evidence that reasonable inference would be but there are cases that you'll find that says the facts and reasonable inferences from those facts are the problems of the trial correct and i don't mean that this court is not native to draw reasonable inferences but i'm trying to define what the courts have said reasonable means and a reasonable inference you have to take the existing evidence and to why the morphine was missing because it was sent for testing and he disputes that there are a lot of things in there and i want to try to make sure that i address all of them the first issue is just as a matter of see evidence that they don't exist for example in that case he cites the question was whether someone had rented a car from hertz and hertz checked its records and they had no record that someone had rented a car so the that testimony and credibility alone is not sufficient to raise a material i genuine but what's more important is whether that dispute is material and in this case i think we need to step back for a minute because when plaintiff first started this argument well i think you're exactly right about now but i think it becomes more material party but you can not preclude summary judgment based on speculation credibility determinations and unjustifiable inference that there will always be a case where someone could come into colleague and that is is there any evidence that the if mr miller was given the amount he was prescribed by the doctor he still could have died from a morphine overdo and i was quite surprised to hear mr kemp easyjet say no and i would too that and direct the court to the expert opinions that mr camp he has submitted there are three doctors who have submitted records none of those doctors have opined that respiratory depression could occur only if mr miller got more than he was prescribed and in fact two of them say precisely the correct in criticizing the coroner said and i quote the issue is just sas what is the lowest morphine concentration that can depress ventilation profoundly in a subject without prior  and then he goes on to state i am not aware that such a value is available in the clinical literature staying there is no lowest level of morphine  record tab sixteen of page three says and i quote i conclude that mr miller died of a respiratory arrest probably related to the administration of morphine respiratory depressants during an exacerbation of his bronchial asthma the occurrence of respiratory failure induced find morphine during acute asthmatic attacks is a well known complication of that drug eighteen if you had a record saying showing that nine were removed business records and that man removed then there'd be there little question i in your opinion as we review this case because that's what we're going to have to look at all of that wreckage you're reading that certainly would be something you'd introduce trial there's no doubt about that but now we're looking at summary judgment on them we are going to measure those things we're going to look at just i think the things that i've just been eliminated and if that's what we're going to look at then don't you have to tell us how we get over the both he and this look aska state that when a sample is spent down there is a carbon copy form and they fill it out they put it in a binder and they have no idea what happens to that no evidence that it still exists there is no evidence that they could have should have and do keep that finder which merely says i sent out this information there is it and they have raised other documents that they speculate might exist you sent your best argument that on the day that was relevant the evidence is not just beautiful that there was thirty there and that the other then becomes a red herring numbers one of those numbers which should have been in the column this is how much more king is left with twenty eight and she has testified that and i can find a cite for you but she has testified that when you read  depending on whether you read it at the top or the bottom there can be about a two milliliter difference so there is ample testimony not just the hopkins report ample testimony that on the day of mr miller's death there were thirty millimeters left in the syringe there's also on just a few good evidence from the pump history itself that the pump functioned precisely as it was intended claim to have presented no evidence their expert inspected the p has stated in other cases i have been able to determine that a pump according to him for me and accurately for administered medication without recording it but he does not state that that happened in record of what morphine is delivered to a patient must be in the patient record and here it is this is what was prepared by sally hill and it's called patient control trying to make it work out you know the way that you can out all you do is look at the digital readout on the machine see what it says was given look at the syringe which you can see through a plastic door and write it down here we what what we have in evidence are her calculations that's right whatever and prices are appropriate from that but her report is completely different from the hopkins report so a jury would could easily infer that the hopkins report is twenty if we took fifteen we'd probably die if it goes directly into your bloodstream immediately i don't want to go outside now well the rates what's important it's the rate and the machine has to count the rate so you have of a malfunction is the amount of morphine in the tube on the date of death and that is the most significant the only thing you have correct it's a race if there is evidence in this record that there were thirty there's evidence in this record that there weren't any official record doesn't support the hopkins report no throughout the hopkins you know well then you know about the half and then you get then you get back to the issue of removal and and there you were those depositions there would be no question that those most witnesses were not being truthful and there is no documents to support that contention not a single one so the most important thing with these machines is how much morphine they deliver if they if they deliver the morphine without counting it there's a problem it will kill people i think at times express my german question just how to curiosity have you sat with everybody else involved in this incident yet still this