break in bed it becomes very difficult to remove and suffered ongoing personal injuries as a result of that on these facts you have a situation where the that she can only make her claim through the learned intermediary a doctor that you saw in a clinical setting where a very short period of time according according to  testimony the only conversation was that she shouldn't be going to or if she became pregnant she should inform a medical provider and then basically was referred to the brochure as very these arguments are laid out very well and both works and i want to touch on one thing that i think is not laid out very well in the grease and not discussed with any specificity in the courts or and that is that the court claims that there is no advertisement here that there's that that news is there's no evidence that there was advertising to news items and the only advertisement per se that we put into the records was one from five years later the only one we can find we are claiming however that the brochure is basically an appetite and what i want to touch on that i don't think is well developed is that brochure so it couldn't be preempted the quote below never reach the preemption instead it said we don't have the reach i don't have to read the preemption issue because i'm going to rule  becomes very circular if you demick so and rule that the brochure is not an advertised because if the brochure was not an advertisement and it was given to her and she relied on the out there as it was given to her and i believe maybe that's overstating the case but i believe for the purposes of this appeal the way those issues were were not ruled out that broke through as to be considered an advertised so then we get into the if you want whether or not the brass would absolve not be in a position to reduce the risk of harm in accordance with the instructions or warnings now all admit that there is nothing that indicates specifically that nebraska would adopt that in this case it's never been presented we couldn't talking here about a general failure to warn we're talking about giving a brochure for the young woman who is seeking advice and probably looking specifically for a bat type of warning if warnings are given on any pharmaceutical drugs that are d contrary to the truth or at least i meant the truth that that's another way it could be done but again we're still which is what the information per patient or what he calls the brochure is is advertising its labeling and its labeling that is not this is not promotional at all what it's meant to do is be classified as an advertisement it's certainly not direct to consumer advertisement which there is one case in the united states that is found in exception or that or one state i should say which is new jersey it's been adopted in no other states many other jurisdictions have said that the direct to consumer advertising exception is not recognized will not be recognized in those states all of those cases are and pages eighteen and nineteen of are great but again this isn't even direct to consumer advertising and to the questions about whether or not no brand would recognize  the exception or contraceptives st of all what it doc did six thousand and sixty eight what it focused on was the fact that if there is a health care provider who is in a position to reduce the risk of harm in accordance mention the physician is to review the patient information or brochure with the patient to go over it and talk with nd what they are worn in the path that we know that there are warnings in the purse for i mean information that the district or band to be adequate about in bed and break it those warnings were there or the physician make a decision whether or not to pass them on to miss i d s just as they are every other uterus there are then instructions that the patient is supposed to come back after one month to chat or whether or not there is proper placement and finally in order go ahead i'm sorry but go ahead you can finish offending points thank you and finally there in order for it to be removed it has to be removed by a physician so if you want to talk about a situation where there is position involvement throughout to position that there are certain types of contraceptives and a minimum that requires so much medical intervention and doctor patient discussion that they would fall under that intermediary type of medical treatment you need to get at that particular diagnosis this is something that the woman is coming in and of her own volition to say this is what i would like for my own health care is it a bit that is sort of a different relationship or a different decision making process i i i would disagree your honor there are all kinds of things that we do going to visit for to help maintain and prevent certain things from happening that we don't want to happen that may affect our mis ideas had to unplanned pregnancies so whether she went in to ask or an oral contraceptive or an i the it doesn't matter in terms of the fact that the physician has to make a judgment as to whether an oral contraceptive is appropriate for that patient the patient just can't get it there are all there are many risks associated with oral contraceptives including  looking where else can we look for what nebraska would do are we really relying on basically the majority of the jurisdictions this is is that kind of where we follow how do you respond well i think you can look right to what the of other drugs and every one of those situations the physician is in the position to the reduce the risk are in accordance with the instructions or warnings and part of the way of advertising exception of the direct advertising exception about the situations where it is adopted the law intermediary doctrine and it is talking about the the only time that it would not put it in play is if the physician is not in a position to reduce the risk  there is nothing to suggest that the nebraska spring board would d it drop to direct to consumer advertising particularly when it said we want to be like the majority of the earth jetson that was part of the determination and free going along with the majority well if you're doing that depressed decision has been heavily criticized including recently by the texas supreme court i in the center court case and the only the only exception there really comes up in these circumstances is the vaccine situation which d is the radius case that is that was cited and ill but that has no application here this is not massive it is a sure anything like that the freem the advertisement except that well no i am not admitting that it's a warning because unfortunately we've never had a decision one way or another as to what it is because it kind of would have been decided on the other part of the arguments that w