yes i can thank you your honor and good fleishman understand you've been allocated ten minutes and that you would like to reserve three minutes for rebuttal is that right yes yes or great so what will happen is maria rodrigo's will alert you orally when you have one minute remaining in your initial seven minutes i am going to be holding people as closely as possible to the allocated time today so you might want to have a timer set next  to this patient and this doctor that which was completely outrageous completely uncalled for and deceptive that that marketing prompter soldiery the intellect of these  be you know johnny joe but it's that and that as a result of that high thing that misrepresentation and that marketing fiasco frankly that was evil core little kids were  inquire of judge lynch because i think we're taking you beyond your initial seven minutes but that's ok let me just ask where the judge when she has any questions i know you'd like to hold some time in rebuttal yes i do and my question is  similar in some respects to judge katzman is only it relates to the c p l a claim it's clear to me i think that connecticut law allows a claim for post purchase failure to warn  is it clear that connecticut law permits a claim for failure to warn a regulatory agency and is there any case you can refer to in which any connecticut court sustained such a claim  unfortunately you know well then that to before you before i am going to give you you know i appreciate that you gave me a straight answer and that you have a qualification and i want to hear the qualification but before i guess what the next question is going to be is why shouldn't we before we decide a preemption question asked the connecticut supreme court whether there is anything here to preempt because mindful of what happened to the th circuit which assumed that arizona law was a certain way and then held no preemption and you rely on that and that may be a correct you may be correct about the preemption but then the arizona supreme court said but there is no such claim under state law and i'm wondering why shouldn't we consult the connecticut authorities who can tell us before we decide that connecticut law is unconstitutional or something why don't we ask them what to make of what actually i thought you weren't urging that the defendant should have notified consumers because that would be tantamount to changing the labeling that would be the efficient way to tell the consumers right i thought you were saying the way the way that you escaped that ruling of the district court was to say no we're not asking that the consumers be notified we're asking that the f d a be notified and we're saying that the doctrine that says you can notify the doctors but some states have said including arizona that there is no duty to warn a regulatory agency under that traditional to may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take a recommend cautions against the potential on this instance the only person that is that  apart from connecticut are you aware of any state supreme court that has held that that is that there is a duty under state law to notify federal regulatory regulators in a situation like this i think we cited to that well there are a couple of federal courts of appeals who assumed or proclaimed that state law provided such a remedy and then said it was not preempted but they conspicuously did not as far as i could see cite specific decisions of the state courts let alone refer questions to the state court with one minute and then we'll turn to questions from panel as i indicated thank you ron i'm a please the court elated shirk from behalf about shalom nothing in connecticut law requires reports to regulatory agencies the statute  relies has no such requirement there is no connecticut case law that imposes such a requirement and the connecticut district court has now ruled twice that there is no such requirement in connecticut law if i might quote from the normand decision absent the specific reporting requirements of the f t c a no connecticut court would have imposed a duty to report adverse events to the f d a the subsequent decision and pratt announces the same holding plate of sight no connecticut law to the contrary that admitted this morning that there is no connecticut law to the contrary which means that they cannot plead a claim for violation of connecticut law in connection with the claim s or in the in the complaint the same is true i might add of a postmark of study basis which is the underlying grab them in of the negligence claim there is no duty under state law there is no connecticut case law or statute adopted the case law is uniform on these principles and with regard to post approval claims the failure to inform the f d a of adverse events is preempted unless there is an independent basis for the claim under state law and the plaintiff is not post approval requirements so the dispositive question is what is what i was addressing is whether there is any state law duty to report to the f d a and there is no state law duty under connecticut law the connecticut district court has now helped twice that there is no such duty under under connecticut law now to answer judge lynch's question there is that the connecticut supreme court does have authority to answer questions certified by this court and we would have no objection of course if the court were inclined to do so but we believe that the connecticut district court's decisions are soundly based and closely reasoned explications of connecticut law and that the court can comfortably rest on those decisions so that's that's the basis for our implied warning provision of the connecticut product liability act a product seller may not be considered to have provided adequate warnings unless they were devised to communicate with the person best able to take or recommend precautions and she suggests that the person best able to take precautions and recommend precautions is none other than the f d a now it didn't seem to me that was a frivolous argument are all kinds of arguments i can think of against it but there are that's what it says and with all due respect to the connecticut federal district judges who know more about connecticut law than i do certainly they're not authoritative on what connecticut law means so what why would we just you said you know we'd be intuiting connecticut law but it seems to me we'd  referring to the court of appeals cases to which your honor made reference in your question of my phone and oh yes exactly exactly but you were saying and correctly so that the the circuits that have held no preemption st made a burden of course is on the pleading party to establish the claim under under duress have a basis for a claim under connecticut law but if i might go to subsection d which was that which was the st part of the of your question i think subsection d has to be read in conformity with connecticut common law which adopts a learned intermediary doctrine as the with with the learned intermediary has the best person best suited to to deal with warnings as to a product's potential potential downfalls or  pitfalls that is connecticut law and there's nothing to the contrary that imposes creates the f d a as some sort of super authority to which to which complaints or or information must be must be must be made so reading subsection decon for me with with connecticut common law if it doesn't provide the basis the counsel the counsel would like to read to read into it but again we're not asking the court to into it and then should the court wish to refer the question certify the question to the connecticut supreme court we would understand that of course is well within the court's power wouldn't have any objection we don't we don't propose that the connecticut district courts were intuiting they were simply saying what i've already said here today which is there is nothing in connecticut law