two one seven six was injured that that had to be determined by expert testimony expert opinions as to whether the test was below the stated here rather than common sense which is the typical jury problem and the second profession that she was is the expectation that regardless of her weight in the regardless of the way the patient is it is an expectation that part of the training is to teach them how to assist people in moving yes sure that was it that was what the purpose of the test our contention is that the part of the test which by the way he reasonable standard of care if you're a bigger person to simply drop your weight down abruptly causing that for a new regime that's a matter of common sense that does not require an expert and one expert would it be we're because they never put her through showed her how to deal with those situations in a test and didn't pay her for would that require an expert i would think it would i think it probably would therefore seem that the converse would apply as they haven't offered what kind of expert that would be we're not talking about the test we're talking not the test we're talking about what he did which he himself says was not something he did he's never done he says their work is not part of this theatre test we don't need highfalutin expert the jury to determine whether in these circumstances if they believe or which is a factual question if what if what he did merrick's what patients do in real life it's are we to understand why you would need expert to say that there was an appropriate trying your honor we were saying that what he did was was or was not something that was something that was part of the normal  it the way she says it is but he bet right but he says it wasn't his assertion that he did not do it as we argue below members of the jury this was not part of the test according to him because he said he didn't  the added you see on necessary element i believe there is because she had control over itself there was carpet on the floor and if they credit her that he probably drop a reasonable juror could draw from that that  thank you edward counseling for the university of maryland professor scott mcneil as this court knows the district court below ruled that expert testimony was required in order to determine the negligence situation for each student who was conducting what is called the patient transfer simulation test and that the test was negligent we devised was the claim and let me stop there for a moment because that's a key difference here in the interpretations in paragraph thirty two of the plaintiff's complaint they didn't allege that scott mcneil abruptly dropped the outside of all of the parameters of test what they said in their complaint was and i quote the university of new england is negligent because he knew or should have known that the past was unreasonably dangerous and likely to cause harm that is a test that is a question about eight s not about the circumstances surrounding that test and it was on that set of facts that the magistrate judge in the district judge issued a summary judgment ruled that the test why can't we read it as saying it was recently dangerous either is design or is implemented we're out of it i think if you want to read as generously as you care for the point if you could however it would not change the result in  situation and while it is because the protest was unreasonably designed it would require that to one side take the other one if the test was unreasonably limited it would require an expert in our view and i believe in the district describe it as i heard the argument we just heard here what they're saying is this is exactly that that your guy has said test does not include this drop away and they're saying that's right it doesn't so we don't need an expert but will is that he had no recollection of doing this that he had no recollection of carrying out this act the and there is no evidence in the record to demonstrate otherwise  of was a slight woman it was new record evidence to differentiate between the point of size and profess an equal size and now it was significant to the district court secondly that holding firmly to the trance for a gait belt there is absolutely no evidence in this case that professor mcneil took any such steps the evidence is the professor mcneil was can test a simulated test in which one of the things that mrs munt needed to do was apply again she was trying before the test as to how to apply again felt she was not instructed at the time of the test in any specifics concerning the use of that people and the district court found that significant the third factor and perhaps the most important one is it the plaintiff was allegedly instructed to hold she described different scenarios when she was allegedly subjected to his weight suggested that he told her to hold on to the baby belt she never suggested that he told her or instructed her to do so while he was dropping his way she did say that he dropped his weight during the course of the test that much she said and i didn't move to take a second and apologize to the quarter for a reference in our brief that was an aside and i want to correct that reference if i might on page thirty one of our brief we cited to the plaintiff's deposition testimony that deposition testimony was in connection with the plane this being knowledgeable university concerning this october twenty seventh a vent and development committee that she relies upon and that the magistrate and district court rejected because it hadn't been raised until the summary judgment proceedings but i did want to make sure that i had missed clarified that for the record if i can move on to another matter for a moment there is this student handbook issue in this case it is an and it's interesting to note that in this case there was absolutely no reference in the complaint about any specific provision of the indeed student handbook which was allegedly british which was allegedly violated there is a general reference to the fact that there was a student handbook but nothing any more specific than that in this regard it's important to keep in mind millen vs colby college case that cited enormity ariel's and actually cited in materials of the power as well in that case the court concluded that to the extent to the extent a party's expectations are or controlled by that handbook that is going to deal with that is going to resolve an issue with regard to whether or not it creates any specific contractual relationships in the money handbook at appendix page three sixty ninety three seventy we specifically state that the handbook is not a contract under express o implied we specifically reserve the right to unilaterally modify the contract in any way that we choose to during the course of the students relationship with the university and in this situation respect the mill in court would conclude that there is no contractual commitment i heard mentioned earlier the situation regarding the october twenty seventh alleged contractual commitment but this report found first of all that it didn't give rise to any particular obligation on the part of the university that it was not a promise to do anything but more importantly in the district court decided that it had never been raised in any of the complaints and could not simply be raised as a basis for contractual argument at the summary judgment stage and so the court rejected that that particular argument in this case and would not allow that to come in a formal alliance in terms of the need in terms there is a very significant distinction between the serious case in maine and this case and the distinction is that in ceo's the individuals involved were specifically aware of the condition of a ball player had issue and they were specifically aware that allowing him to play would cause him further damage and therefore there was no need for an expert to come forward and explain why in a situation that this here of course is where the question was whether or not they had instructed its student properly as to how to insert a needle into a catheter into a vein and then pull out the needle and then put the needle back into cavities and take the right way