a ruling pursuant to their rule civil procedure fifty two c on the issue of partial findings a judgment on the partial findings of a to address to fifty two c argument first simply put plaintiff was not fully heard on the issue that rendered the decision on the fifty two c decision at the time of the decision was made by magistrate judge fox the only evidence in the record regarding causation was the testimony of the to the to  causally related plaintiff's incident plaintiff's injuries and her surgery judy october twenty eighth two thousand and twelve car accident the issue that arose during the trial and is spelled out in the oral argument that was took place at the trial that is part of the record we it would be a one seventy two your honor the court in the end asked if the plaintiff wanted to be heard on the application i myself was going to answer it and i said i think both applications by the governor premature there was a reference by mr dietz regarding the testimony with the cause as towards what may have been plaintiff's injuries here at the point of this there was not in evidence so my argument is either in the hospital records the records were in a run that's correct tile incident as the cool records but if he has reviewed that record and he maintains his causality argument to the core x and i think he did he was not aware of that record at the time he treated the  two separate sections it's his quote the two questions that occurred towards the end of his cross examination when we i'm sorry on redirect when he indicated that the quote he found these herniated disks to be causally related to the accident movement any evidence that it was not attributable to the alternative cause and what the basis for his opinion that it was not related well i think that goes hand in hand with why the hypothetical  that's the he was asking was were it attempt was made to ask question to the doctor that we think was within the area of his training that was objected to and that would have separated the symptomology the most brutal had for her needed this from the ceiling tile and from the you had like an infinite number of opportunities at trial well before trial to make an offer of proof that just a minute to respond not to look to get out of that in the course of history meant he our argument was that for magistrate judge fox not to hear from the plaintiff too is part of the not being fully heard on the issue to explain this was an inconsequential thing she had no radiological testing she was not admitted to the hospital she no procedures were done she had no further treatment and in fact the discharge papers from the hospital from the ceiling tile incident say follow up in one week's time of pain persist which she obviously did not i think that credo knew of the pain persisted do we because if the pain that used complaining of following the taxi accident is the pain that's associated with the with the fall in time and you your turn and your evidence did not rule that out as was your burden to do then we don't know whether the  judge fox made an error by relying on dr more the overs testimony even though that affidavit was not yet in evidence but the part of the record the part of the trial transcript that plaintiff points to with some plaintiff's appendix when eighty six  it's true that judge fox did acknowledge that this was a potential problem but the entire record reveals that he was aware of this problem and then avoided the potential error because his actual ruling on the government's motions that  appendix one eighty eight through excuse me one hundred two does not actually rely at all on dr moldova's testimony so i don't it might have been an error if he had relied on testimony that was not in evidence but that's not fox actually did also on the point of whether the plaintiffs could be put to their burden without first having any expert testimony from the government if you take a look at the and the court found that the plaintiffs evidence on its own without any evidence from the defendant already failed to meet the plaintiff's burden so there is precedent in new york for more on not relying on any defend evidence at all  nine those records demonstrate that the point to for self when she first reported to the st luke's emergency room immediately after the car accident she was asked the question of when did her pain begin and she reported when a ceiling fell on her head several weeks before so i think it the court did not make any kind of clear error when it found that the plaintiff's testimony on this point was not additional probative evidence that is if a question about  whether or not the plaintiff had been fully heard is reviewed only for abuse of discretion there's a fourth circuit case that we cited in our brief that makes that point and so i don't think it could be held to be an abuse of discretion for the court to to have  am i suppose that that would be a grant to resolve the case on my i think that the plaintiff may not have made such a clear objection on that precise ground but the plaintiffs did at least attempt to  reliance on valentine is misplaced valentini when there was no possible alternative cause that was based on medical evidence by the defendant's doctor in that case if that was not included in the record at the time that this decision was made so accordingly the presumption is not been