can argue need to argue today is the court is well aware come on held that failure to warn is not and cannot be an accident under article seventeen and i don't waste court's time trying to distinguish that got around it in any way nonetheless the summary judgment in this case should still be reversed for an independent reason as the u s supreme court made clear and hussein an airline's failure to assist a passenger the makes a reasonable request for medical assistance can the end of that and that is an accident under article seventeen in fact this court noted that distinction in come on the court in order to in the rodriguez case as well the fifth circuit noted that he and the plants in a case nobody disputes that hussein does allow that type of situation which which under notice pleading is all that had to be alleged secondly the history of how that issue developed is important i think the delta first brought a motion for summary judgment that was based on some stipulated facts not as to what was true but as to what the parties were contending that motion was denied and then delta well first of all and this is james the point of putting her declaration about what happened on the flight the failure to the sister delta objected to that declaration but the look at page eighty seven eight of the excerpt of record and by the way there was a typographical error in the grievance at eighty seven but if you look at eighty seven eight it says delta airlines respectfully asserts that this motion may be heard and ruled upon based on the decided this case on the same day that hussein was decided so the court didn't even have the benefit of hussein so to the extent delta tries to duck the issue it seems to me to have two consequences one it reflects they know this is a hissing situation secondly it clearly was before the court they brought it to the court's attention and said consider this declaration and so to say that they didn't have notice of what the theory was simply doesn't seem to wash the only question that seems to be in this case that has any substantive significance is hussein clearly said that failure to assist can be an event what's not entirely clear i acknowledge is whether that failure to assist must be a violation of an interest rate custom or company policy now regardless of which way the court answers that question i don't think it matters in this case although i'd like to address their briefly but here's why i don't think it matters if you can have an unexpected  not cause an unexpected unusual event under the worst off invention which is the touchstone well there was no good here and out already there were no federal regulation in hussein at all and the court held that failure to assist if it's an unusual and unexpected event is an accident no reference at all to federal regulations the only question is they did refer in that case to industry custom in practice because that had been litigated in the lower court but they didn't say that it was required in this court noted  mine saying well they didn't really resolve that there's still a few questions i have about what happened at the summary judgment proceeding here and before you today i just want to go back for a minute you said that in the complaint you alleged that she suffered an injury as a result of an ax correction but when i read your complaint the whole approach of the complaint was the configuration just painting configuration the seating on the plane and what not the whole premise of your failure to assist doesn't surface in the complaint i'm a strong believer notice pleading all you need to put the other side on notice that what you're claiming and discovery should ferret out the specifics but by the time as i understood it by the time you got to the summary judgment proceeding it was pretty clear that you were proceeding on that sort of came in theory a very careful district court judge so i don't really i don't i'm really confused about what your position are taking your day and i was involved the district court level but i don't see in the record a motion for a leave command my understanding of the way it was argue even leave to let him or even leave to ask the district court to brief the issue well it was brave then recall when delta brought the second motion they asked the district court they said look at the complaints allegations and mrs james declaration it was don't consider it now the judge never granted that objection he didn't rule on it but then the next motion around they specifically asked the court to consider that declaration and in fact that was that because although he she's got a failure to assist claim here and so you should look a war and i'm sorry that if they had one cannot be an accident for purposes of article seventeen the assertion in the opening brief that discovery on the subject should have been allowed is also no longer an issue i believe counsel either referred to was about to refer to their request for discovery in the context of the failure to assist claim and industry standards but i would like to note at the outset that the request for discovery that was made in opposition to the summary judgment focused only on the failure to one issue oh the sole remaining issue for the court is whether or not the declaration that ms james submitted had any material of fact on the case such that summary judgment should have been denied and it did not for two reasons first there is no mention in the complaint anywhere of any failure to assist claim counsel says that no this pleading is sufficient however the purpose of notice pleading has always been to provide the defendant their notice of the claim to which he's going to be held responsible to answer in this case there was a stipulation  plane then you get into discovery and you get to ferret out what her what happened that's correct she could have done that but because she did not it's significant for two reasons the factual of her meds that are in the complaint or judicial admissions the factual environments that are in the complaint are as follows on the outbound leg of my trip from the united states to madrid i developed a d v d as a result of the seating configuration to which i was exposed my d v d then court did not know that the supreme court which would come out the same day and say that's a viable claim you are the practical effect of a reversal and remained in this case would be to send the case back to judge water who then pursuant to the m d l water would send it north to judge walker in the northern district judge walker has dismissed every single one of the complaints that contains only a unlimited liability for any passengers injuries injury caused by an accident within the meaning of article seventeen corrector on and under strict notice pleading that might be the case but the recovery act has always been to notice pleading sort of the series of events i mean first the injury then and the elements of whatever occurs and then liability and that article seventeen could also then follow because the airline attendant did not assessed that's what he's saying it says your honor i believe that in this case were the failure to assist claim permitted it would fail based on the declaration of ms changed anyway because in this case according to the allegations in her complaint she had the injury at the time of the alleged unexpected event filing why if we had everything in fact her judge walter to consider we consider and might have hussein which he did not have the benefit of he wouldn't just do that and would automatically send it to more more to the point your honor in this case judge walter did have the failure to assist declaration but he properly just regarded it because the failure to assist case was not summary judgment the other way your honor i believe that based on the order that judge walter did issue he said plaintiff alleges she developed d d t as a result of mistreating configuration at the end of the order where he's making his ruling judge walker states plaintiff has not introduced any evidence that she suffered an injury as a result of any condition or unexpected event external to her he had her declaration in front of him at the time he made that all that order it was part of the record before him and i think that based on this court's previous rulings regarding raising a new claim for the first time in opposition the motion for summary judgment i think he indicated in the papers it was a final judgment that expresses his intention i would say yes you're on the case the case was a summary judgment was granted judgment was entered in from the district court of his decision in the case of the last point i'd like to make and i see that my time is up but just about is that there was a stipulation in this case that said t assist is not an issue then there was a declaration from counsel in january of two thousand and four which said that we just learned that this very  claim instance is how potentially present i think it would probably strain the concept of fair notice to the defendant to say that a complaint could put a defendant on notice of a claim that even  think it's hard to escape the inference that the declaration that was submitted on the eve of opposition the motion for summary judgment should be fairly obviously tailored to book try and replicate within the same plan of having known that also knew that they had an obligation to make a motion to amend and they did not do that if the issue was if the issue was not the plaintiff it was their burden to make the motion to a matter of let you very much as there are no one of questions i  we all seem to be talking about here is noticed and in the normal case maybe you could argue about whether the complaint gave the notice of failure to assess but here that was raised by mr james declaration and they ask the court to rely on it they brief the issue there's no way they can say we didn't know this was an issue it seems to me the proper course is to remain and let judge walter decide what to do and if he deems it appropriate since the judge walker he may do so my count by the way of that is there are thirty three cases in judge walker's last decision that will be coming up and other appeals and i think only one of those and i can't point to evidence because not in this record only one of those deals with the failure to assess these are very rare declaration it's dated january twelfth two thousand and four and thinking down when i believe it was february believe twenty fourth i don't have the exact date but i believe twenty fourth i you're there you're going to recall that the supreme court decision hussein affirmed this court's decision hussein so at least there was at that point some possibility that the supreme court would have firm this court which in fact it did do so it wasn't