to me like you had enough to get to the jury maybe but i can't see why well no i misspoke i think i don't exactly see my client can show they were contaminated to the hospital they cannot show they removed single suture thursday cannot rely on the recall notice there there's the problem of the signature on the compliance with the recall notice yes at but it might be the ideal thing from a plaintiff's standpoint if there were something fraudulent about that to deal with the litigation but it could also be just somebody signing for somebody else and i so well they haven't established anything other than that your honor they don't really have though they say they go through an enormous amount of sutures so even if they never complied with the recall notice at all it looks like they could well have gone through all the  sutures that could have been contaminated that's more we don't know that any of the ones that they had were contaminated that sutures that were used on this man there there was evidence and and even though there may be a possibility in the in the the information we understand is that the recall went on for some time even beyond that claimed in the lotuses that we you've got a genuine issue of fact on whether some of the recalled sutures were made at the hospital and still have to show that there's a chain even if you were fact on whether contaminated sutures caused the ethicon in the medical industry i'm thinking we don't even know if the infection came from to truce it although we know if it's this odd bacteria this morgan ally but as i understand it you find that in keeping count past sins which are not use for the sutures and it's also in human feces sometimes corrector are bit and that means some pork contamination by somebody involved or in cleaning the surgery room or one of the doctors or nurses or any number of people i understand your honor but what the trial court said is you can't show by direct evidence he receives in effect future we can tend to circumstantial evidence in this case or that even got it medical community or supply better is also where the instruments to so sutures into the tissue were used granted your are but i think the circumstantial evidence in this case is enough to get through a jury let them isn't for a court to decide whether this man was infected by something other than these infected sutures that were out there in the medical community at this time it's also where the logs of the doctors who were sewing would have or so it's not just the hospital your honor i think that we understand nobody keeps these records once they go out they go out now when they went to recall them you know they can identify a lot numbers but they can identify what hospital i don't think that was ever admitted and we don't know how many was sold were sold to the hospital or and they don't actually see how you know how many were left in the hospital need just say that you know here we have these recall kno out she was wrong with that and that was someone that was helping us and was wrong in her determination that the nurse who was in charge of the supplying for the hospital testified that that the trial court recognized you know that the current cannot show they recalled a single suture from that hospital so we have to presume it's possible that there was contaminated sutures and that hospital circumstantial evidence is substantial that my client suffered an injury of the type at the time i mean from this type of an incident and i think this is really a question for a jury i think it was improper and properly granted motion summary judgment thank you in mr young surgery were within the recall population number two even if there had been sufficient evidence to show that the suture was within the recall population the fact the matter is merely being within that population does not raise any inference that the suture itself was contaminated given the fact that this was a precautionary public health recall which was premised on the function at sarm of the sutures within that population might be contaminated third there are other causes of infection as was alluded to during the argument i'm going to back here first point there was evidence that i think that's right that's right as i said the third the third point is that there were other possible causes and one of the traditional ways of proving causation in a products liability case including a medical causation case is to rule out the other support an inference of causation his opinion if accepted that the infection occurred in the area of the sutures for the reasons that were stated just that just a minute ago  was not within the recall population there was an eight month gap between when the sort of the recall was issued and is fully complied with by the hospital and surgery there was evidence that mercy actually did comply and that being the  recall documents that were questioned by the how and and then finally there was a high turnover rate that we just discussed judge pryor took a conservative approach and assumed that it was possible that the month the high turn over a long period of time there was a good wind doing possibility the further away you get from the recall the less likely it was that any suture that might have been on the shelf remained of the elbow for use at the time of the surgery now i mean the quote that even within the recall population there were a lot of sutures obviously which would not be contaminated we don't know the numbers on that we do know however that the reason for the recall and the one that was supported by population if it was does not mean that it was a contaminated suture and certainly doesn't mean that it was the cause of this infection and we cited the voc each case which i think makes the point very well that you need more than just the fact of the recall to make the transition from the general proposition that some of these had the problem to the particular proposition that the one involved in this case had a problem and that's just  that some machine that's supposed to test or some person that was first to test wasn't doing what they're supposed to so it just doesn't know or you couldn't spot testing and contamination turns up in  ery dish or however they test these the second thing that was on my mind was you could discover some sort of contamination but it's not morgan alah or you could discover some sort of contamination and it is mor unable to find any of that is any of that in there there is none of that in the record i mean there is no underlying evidence concerning what led to the recall but you're right those are two different scenarios that could have been there or other scenarios but there are different types of recalls and i can just tell you that from general experience that in some cases you do find that there's an actual problem and you know the population of units that it's within and you recall those units and that would generate in some circumstances an inference that every store realty then as a result of being more cautious and abundance of caution you would go ahead and recall them so that there was not even a potential problem in the health of the health field and that may have been the circumstance of the language of the recall actually lends itself to that proposition and i think did not actually find that there was population and three percent that they did bring back were actually problematic but i don't have anything in the record that i can really bring all of that and then finally i just want to talk very briefly about dr well as we made clear in the brief i think the record very happily supports he had very severe foundational methodology problems with the way he want to balance reaching  that the infection is then the area where the sutures were quite frankly no i mean i don't think that gets you more needs to go i think judge pryor was absolutely right that that just doesn't meet the standard and doesn't get you to a tribal issue a fact but  a half of one percent or whatever number you gave some small number like that and that the infection was indeed in this area and and that was about it was well that was about it and i think i would grant you the first point that  perhaps he has the experience for it's nice to talk about how rare the infection is called though he is not a disease specialist and he's not a cardiac surgeon and he really didn't state any substantial basis for that opinion but the given what he had been relying on previously and still your state any other foundation for the opinion i think it's even questionable whether he had the foundation to opine with such that is a substantial evidence matter that the infection was in the area of the