time because henri mand of the two issues that that this court sent back to the district court one being the question of the ad then them clause and dr hung hung singer's testimony at the damages trial judge scullin has rejected the expert opinion testimony of dr hunter who is the defendant's employee no bias no prejudice no reason to lie against the defendant that it was not reasonably foreseeable in two thousand and six to know mr mom berg's condition at the time of the damages trial and how he deteriorated statute so that's the actual language of the statute i know that the cases talk about reasonable foreseeability but should they be viewed and is there any daylight between the two well i believe the courts including this court you know roark and certainly courts in the nd circuit in this records and most of the circuits use the reasonably foreseeable test as as being the test for newly discovered evidence or intervening stand that from between discovery foreseeable was just it was a passing thought i guess and here the district court rejected and this court in the st appeal said the record of the damages trial with mr hungers testimony was materially different than the iris case scenario is that the same is reasonably i don't believe it is your honor and that's we say that's one of the legal errors that sort of infected the district court's decision on re man his that the court used this worst case prognosis you circuits of have used that st and failed and we prevent presented the law review article that lays out the fact that yeah the st and the th seem to be using this but every other court including this court from is using reasonably foreseeable and that the standard of worst case prognosis is a stricter more difficult standard for a plaintive yes judge cohen mentioned reasonably foreseeable couple times and his decision to remain he mentioned worst january two thousand and six i guess it was right that's the st i mean that's when he went when the that's when the claims filed claim was filed right and then and obviously there was a the operation before that and we all know about the tragedy of that and then he's now hunting or says six years later that at the time his current condition was not reasonably foreseeable effectively yes you use a slightly different language but that's c everybody seems to agree that that's effectively what he said at the time and he was the only expert who testified right as to that issue as to you know mr mr nichols learn from the st decision the pre game it was trial decision that that was the test and he asked dr huns in or that a trial and defense counsel didn't follow up on that testimony either if if they didn't have when it reverenced they have the government's argument be asking if you're ever sorry well i'll be happy to say what i think their argument is there and their argument is there's only two pieces of evidence that either one of them doesn't there's two pieces of evidence that i think are i would agree are somewhat relevant are relevant and that is the st the discharge summary from february of twenty scuse me of two thousand and five and the government and judge gone look at the fact that it says th incomplete quadriplegia well i don't think i said it in the brief but if you look up any medical dictionary of incomplete quadriplegic it simply means that there are still some nerves and conduit of sensory perceptions and that's exactly mr mom or to prompt he feels the pain in the salad you know case the plaintiffs didn't feel any pain he had a complete loss of any sense or emotion the other thing is that in that same discharge summary that's not hunsaker discharge summary was dictated by someone else it refers to the fact that he can walk with a walker that's not where he is in two thousand and twelve at the damages trial at all so the ultimately it did and in fact it is not until two thousand and eleven when mr mom or goes to the bronx v a thinking he's going there for a plan to get him back to walking that he's told you'll never walk again that's jun developed osteoporosis right i believe that's true two thousand and eleven well it was it was it was there was a decline that led to that at that point the v a told him in the bronx you're never going to walk again right but the  factor i think and i'm sort of giving your adversary preview concerns i have but that certainly wasn't foreseeable that was not something that's that's an independent diagnosis that occurred five years later and nobody was talking about osteoporosis back in two thousand and six now and really because it's a january two thousand and six claim filing it's really twenty it's two thousand and five and there's just nothing the other piece of evidence that the government and just go on reference was the claim itself which said paralysis in all extremities while that's not the status of where he was at the damages trial again it's not not the same status and then and then judge go on and the defendant looks the number of he refers up provided some supplemental authority to the court about a month ago a case from the southern district g c w where the southern district applied the right rule and they followed the rule from the  from the th circuit the michaels case that's in our briefs that you on this issue reasonable foreseeability discoverable you look to expert medical testimony on the issue and in that case the  w case in the michaels case from the th circuit you had the treating physician providing that expert testimony and then you're supposed to look at the other side there's nothing from the other side it's not there what about the arms lighters are here confounding and than the fact that we didn't come to grips with that he the district court army men basically ignored the issue on pain and suffering when all of this evidence all the case law shows the cases we've shown  you know ten dollars to thirty five million dollars for this type and in some cases for less not a quadriplegic but a paraplegic and then my again my supplemental authority i provided the court with  that's thirty two million dollars a younger woman but if you take her annual life expectancy amount we get one thousand money so clearly you know our most important issue is i've heard you ask and i know from other what do you want well what we  for pain and suffering is the ad damnum adjusted appropriate and is yes they add dandan request on the renewed motion that's at issue here was for twenty five million and that's been yeah and we will  gladly stop at twenty five million  as you know and you were an opinion in your view what was was the plaintiff's injuries recently forseeable and dr hans green answer no so the way the question is phrased some seems to suggest that his answer was his own subjective opinion about the reasonable for  incomplete quadriplegia quadriplegia always is going to end up being at quadriplegia there we can point to dr hans cures two thousand and twelve deposition testimony where he was asked isn't it true degree of that and also the fact that he was never diagnosed early on with osteoporosis which popped up in two thousand and eleven dollars and was the determinative as to whether the doctors were going to say he could walk again could stand yeah of the real question i think is whether he was in such a situation that it was reasonably foreseeable that he would be in the situation that he ultimately ended up in six years later  it was certainly are possible worst case scenario there's no question about that but what is the record evidence that and that's where i sort of had a problem i had a problem with the fact that the only expert  contradicted by other evidence that wasn't at the time because if you go back to january you have to look at evidence actual evidence and the letters were all later in two thousand and six right but the july two thousand  ever identified any clear error to overturn that decision by the addition court well i thought he was the whole point of his heart his appeal right but i don't think any of those arguments carry the water here so he pointed to all the medical i think the language of the court's opinion the st time up was because it was not clear whether the district court overlooked dr hans singer's testimony or considered and rejected that testimony we vacate the denial and remained with instructions to consider that th singer with regard to the plaintiff's argument that the district court erred by applying the worst case diagnosis to the worst case scenario and he says thank you worst case scenario test as opposed to  you know there's always a worst case the worst case is he could die you know i mean he could be a parent he might try to walk in his paralysis he would die but that's not not recently foreseeable and so it falls on a spectrum of what what what what could happen and you know some people are risk averse everything is the worst case scenario that's and some people are reasonable and in in reaching those completions so i don't i don't party to agree with rourke which is which explain the reasonably foreseeable test and you know if you look at the district court's opinion he the way he used the worst case scenario language was to ask whether the worst case scenario was recently forseeable and so i court was doing was applying the reasonably foreseeable test and he you know my friend on the other side mentioned that the dish court mentioned the worst case scenario language seven or eight times he said recently forseeable least thirteen times as we pointed out in our brief and so i think you know in spirit you know he may have been using one to sort of equate to the other but we don't know which we don't sure i think you know again i think they're reasonably forseeable language in the worst case near language they're just two different ways of expressing the same correct idea which is whether or not the plaintiff's ultimate condition deterioration was recently forseeable at the time he filed his ministry cl this court asked on remand in so we think the appropriate remedy that was to remain to the district court to explain his answers you know but it is certainly within this court's power if it were to decide that a reasonable range of pain and possible here from the th circuit in frazier that's in our brief in these cases the courts do not hold the plaintiff to knowing what his the doctors could not tell him and that's exactly our case we know that doctors did not tell him he was going to end up like this back before the claim was filed this court knows how to remedy a clear error interestingly enough in this court's st involvement with an ad and i'm in a federal tort claim case all roark this court actually found the district court community clear error in granting the motion to increase the ad then him and you you read me that error by saying that's wrong you can't have the extra money here it's exactly the same except it's flipped here the clear error is denying the motion this court should direct an entry of a judgment that encompasses more than six million dollars as we clearly believe it is objective he was going to ask him some fact questions and some opinion questions and would he agree that in giving an opinion he would base those on a reasonable degree of medical certainty and dr hahn's or said yes so we know his opinion testimony is objective this course decision in connor's you give a treating physician thanks very much thank you reserve the susan and we're grateful to both sides for their argument