specifically noting that essentially affidavits require for almost everything and that there are supposed to be sworn sort of like copies for everything when you compare that to the current american as of december just seventeen those briefing as well as in the district court and council as morning to twenty six and not to look rule fifty six has been changed and that's the relevant rule and or be considering the proper interpretation of the new rule of and i'm you presented this to us but i don't think it has been mentioned before in rule twenty six has been the focus is a correct yes i would say that in the context of this case being that summary judgment you would look to the fifty six but part of the argument was very much that this was an expert report to comply with will twenty six a typical lie upon for those purposes and in so far is it demonstrate all the requirements of qualifications compensation  everything that will twenty six required it being prepared by the expert in scorn it should have been considered copyright evidence for the purpose of summary judgment particularly when the purposes act summary judgment is to consider the evidence that would otherwise be admissible and that's what an expert report that complies with all twenty six essentially does what that is that's supposed to be a summary of the expert testimony at trial yes it's provided to the other side but it says what their opinions will be the basis report because it hasn't been sworn in so far is it again based off of a tree of cases is whether this testimony would be in the civil trial not the purposes summary judgment the second point that i would make is that even if issue the second is when and this is where it sort of interesting is that the defendants of the moving party relies on the nonmoving parties unsworn expert point in their moving papers so if you were to look at the presidents made by defendants and that leads me to my third point which was in this case this issue was raised not by the pardon but by the court in the magistrate judges report recommendations are a no that's where this issue of the expert report being unsworn was first flat so in response to that claim to file their opposition about a week later and defend it filed their very reply to the opposition and asked for an extension of time that was granted and in their response to defend its reply to plaintiff's opposition to be on our that's where while they appreciate a way of the position that it was not required the issue was its opposition and we're also if you were to look at the record excerpts there's not fundamental differences between the declaration that was then submitted in the response to the reply to the opposition  court district court ruling rely on what the state of the record was at the time they are in our board submitted yesterday and the your positions include incorrect in terms of needing a sworn declaration you're saying before the time the district judge ruled you deem the defect had been cured the other response but not cured in the sense of an amended pleading right that's right was that when the district court ruled on discord you know sort of ruled on the status of the matter as it was before the magistrate judge and you know ruled accordingly as opposed to looking and that essentially is while it's difficult to show intent knowledge by the by the defendant we can do that through circumstantial evidence and certainly that would be sort of the cradle issue here defendant should have been aware but at the very least when our expert then said that the third surgery was done correctly this shows that the defendant knew hundred rights and therefore could see that he had done wrong or expert further and said that if it had been done correctly in the first surgeries were something that was natural that these things occurred and he did that in two instances both of the first and second surgeries where are plaintiff was recently reluctant is because he's a federal prisoner he doesn't have access to a second opinion and so it was only sometime thereafter when he was i think after the third surgery thinking this can't be normal and so he then filed suit help that addresses the issue but that's sort of how this only motion and one of the reasons being you know that the ins will report me should middle of the employment that has never been the law of the state of texas that has never been in federal court as a matter of fact i struggle to find any cases in which an unsworn declaration that everything in there was correct the only reason for attaching that particular report to the amended motion for summary judgment was to show that there would be absolutely no controversy on the motion itself that there was any issue with sought leave which i oppose saying i would like to amend my complaint and in the amended complaint what they did was they said oh i also allege now that this november surgery was an issue we therefore proceeded with some discovery and when plaintiff first put forth his what the evidence is going to be in his expert with that unsworn report i need definitively at that point that the november surgery was no longer be an issue and i thought it prudent therefore to argue again in two minutes summary judgment argues that he did not have time to address this issue before the magistrate issued his ruling and that is not correct it was not the burden on the moving for the summ judgment to set forth everything that the appellant needed to do in order to survive a motion for summary judgment initially of the motion i pointed out what element what would the i met my burden and i don't think there's been an argument that i in response to the amended motion for summary judgment in this case your honour's this is somewhat inexcusable because when i had initially sought to file to to seek summary judgment for the complaint was amended i had laid out and the pleadings will spare the south i had laid out everything that appellant needed to do in order to prove his contention of fraudulent concealment and said you have to put in the evidence that there was a you must put into evidence that the defendant knew he committed a tort and you must put forth evidence that the defendant into you know that that the defendant hit that fact and intended to deceive the claimant the takes two surgeries or three surgeries and healing can lead to these problems i don't know if that's concealment or not i also don't know if that's a fair statement as a layman it sounds like you'll be able pin a broken arm more reliably than that but i don't know what happens we would have to support my opinion just what evidence is there along the lines of the concealment is the doctor telling the patient can you just a simple statement made by the doctor did did the plaintiff present evidence to the doctor told me don't be concerned about the need to be a second surgery sometimes these things take that long don't be concerned about a third surgery sometimes these take that long to heal you need additional surgery is that in the record i do believe that is in the record in the form of the declaration by the appellant that the defendant there is no medical evidence to support that your honor and there is no evidence that those statements were misrepresentations of fact because there is absolutely no evidence there's no sworn evidence there's no competent summary judgment evidence that that  that those statements were false even though the late filed or the attempt to follow late declaration of the appellant's expert does not provide that evidence i believe your honour's if you will review the record you will that subsequent to the filing of the decorate the declaration in the response i did reserve the right to object should the court take it up at a later time and to make all of the tension area objections that i would need to make to that declaration a war he went to the shark case elements and basically says there's no compton summary judgment to substantiate concealment at best you show maybe negligence in not using the numbers grows but he went through shot so he read it that his judgment was predicated take in the evidence and the like most favor to the players sworn it still doesn't prove the elements of frozen concealment therefore he granted told the statute of limitations so my question to you is if that's correct under shot and what you got to prove in texas on friday and consume it why do we need to get into the weeds on route twenty six memmott to rue fifty six in all that because that really wasn't the basis of the district court judge so merits all in the report recommendation but he said you know based only on objected to portions of the magistrate report plus where he found his ruling was based on net and i think just me he found it cleaner because even if you took the evidence that way did didn't support ashar so my question is only because they were raised by the appellant in their pleadings but yes the cleanest way to take care of the case is that no matter what the evidence or at least the the evidence that the appellant presented is insufficient under texas law to prove what he needs to prove in a fraudulent concealment case he's got to show that the the doctor my client knew that he did something wrong and to be honest waited out exactly why the the surmise and the conclusions and suppositions that were raised did not meet that standard and he had an at the appellant had to show that the defendant made those statements with the intent to  in the briefing to the fact that did the defendant you know the defendant said he was going to use eight screws and he used six screws instead and i didn't know this until you know the day before i filed my declaration when my expert to me only six matter how you cut it your honour's looking at even the appellant's own statements there just isn't enough there to get him to what he needs to show to avoid limitations far fact if that wasn't the trip there is no evidence and even when you look at the un sworn statements of the opponents expert there is no statement within there that says this is the way you do these surgeries under these circumstances you must use x number of screws i looked at the studies and the studies show that the defendant did not use this number of screws and in addition to that your honor they would there have to be more there would have to be some evidence that the use of six screws you know whatever number of screws it was was inappropriate in this case and not only was it inappropriate but it also calls the harm that was alleged and in texas you've got to go even further you know i think it's briefed within the reports you've got to show breach what the defendant do or not do that should have been done you've got to show injury and you've got to show proximate cause which in texas has two factors for c ability and cause in fact even the most generous reading of the unsworn declarations of from the i think this is actually just three points to make similar to the points i made originally but it was that what we have is we have plaintiff's expert saying first he surgeries were not normal and that flatly contradicts what plato said defend prick she said that there were no cases on points that have shown i did that is abuse of discretion i would say this quite there is a case cap of bianco versus city of new york in the second circuit where they found two exceptions where neither party has relied as a waiver or where the entry of the un sworn statements by the moving party would be another exception that would be for twenty two a