not at issue today what is it sure is whether mr owens expert doctor about whether his opinion stating the testing did cause those particular d b change should be excluded in that question boils down owens say about mr owens it was unclear during his own testimony he had talked about the two years prior to that one week timeframe and there's no doubt that in those two years he used less than the true bevere day so used a third to a half then much later in his deposition when the subject matter got to that final week before the d v team he was asked if he continued to use it like he did before as in the one third to one half and at one moment he said he wasn't sure he could remember a different moment i believe before that he had said he guessed that he used probably that one third to one ha testimony from mr owens to the effect that he guessed he continued as before didn't really remember very clearly but to infer that because he trusted his doctor he must have changed his practices in be worried about what his physical condition was near the end of the day given that he had that opportunity but is such a central part of the deposition bronson's i'm not sure that we should worry that that that the deposition itself led to him saying something incorrect because he was exhausted i think though that factors into what the jury can consider you know when mr owens is on the stand a trial no doubt he will be presented with a prior inconsistent statement for this argument well rob i believe that we raise the argument which is we just don't use the word therapeutic dose bedau he did and that's not in my head that is not the point i'm making i'm not worried about whether you use that word i'm worried about whether you whether you alerted the district judge to the course of dr abbas's deposition testimony that you're relying more on one appeal well who i believe we did where we said to the district neither he took one third to one half the dose and put it on parts of its body that are not affected to get it into one system now it was not manifestly away and that's the standard this court uses for the district court to exclude this expert into a system below what the directed amount would have been and without expert testimony i think plaintiff agrees that under the applicable kentucky law governing causation you need scientific expert testimony to establish general causation taking a fair answer yes he said the same thing with respect to the parts of the body issue so page one fifteen out of his deposition and again this is also in the record he says my opinion is a bass clearer surgeon is a  tell you what troubles me about about the case most from your side it is perfectly routine given the flow of civil litigation for one side to be able to show that an expert on the other side was relying on information that may have been you know you know one respect or another or one case that comes to mind is of those sorts of mistakes and debates for cross examination trial what is it about this case that you think makes it justifiable to say you know this is this is too much in order is going to true he simply doesn't have any scientifically reliable opinions about causation the author so page one fifty eight and again this is exhibit for c c f forty six question is it your opinion that test him when applied to improper parts of the body investigating is what experts are supposed to do before they render their opinions and if we turn to the plaintiff's own testimony that the testimony is clear that he had a consistent practice that he for armed when he first started using the product in tw so he on average was using one third to one half of the amount he never testified that he changed his practice at any price that counsel referred to testimony that is that i believe to forty eight of his deposition different but interconnected ways it was never presented to the district court which strikes at a fundamental fairness to the district judge that the judge was never alerted to this argument later today because it wasn't presented to the district court the material is chat of it is in the record none of that was presented to the district court except for one thing and that one thing is there's some testimony from dr oz quoted at page sixteen with their brief and this is that the deposition of one sixty one where the question is do focusing on what was introduced in the defendant's opening brief in the opposition story judgment and that's do you have an answer to that question no your honor i took a look just in the last ten minutes but i was not able to find