may please the court my name is daniel osborne on behalf of the appellant michael hendricks i'd like to reserve three minutes for rebuttal please defendant novartis contends that as of september eighteenth two thousand and three nobody knew that cement a prescription drug manufactured by novartis caused a condition known as osteo necrosis of the job or dead job  iris contends that the food and drug administration didn't know the medical community didn't know no scientists or researchers knew and as we know from their deposition testimony none of mr hendricks's doctors apparently knew of in its in its position here in what the district court accepted was that a handful of either references to a doctor's note or a chart or a letter from one doctor to another and there were only three or four of them between september of two thousand and three and december of two thousand and three the sort of cobble those things together to sort of create either an actual notice or a constructive notice argument which the district court accepted all dr  noticed i don't believe he did express an opinion or that that none of these doctors expressed an opinion that the drug caused the disease and the clear evidence of that is let's go back to the the first motion for summary judgment that novartis filed in two thousand and eleven the objective of that motion for summary judgment was to get out of this case on a proximate cause ground argument and so what  they deposed doctors bars this berenson and saliva and of course because they were seeking to establish lack of proximate cause the questioning elicited answers from these three doctors that they didn't know what was causing mr hendrix's job problems in fact if you go back to their state from their original summary judgment motion they put in their papers and i'm quoting doctors order to give notice no it doesn't it has there could be something less than a definitive diagnosis my point is that back in two thousand and eleven they got these three doctors to say we don't know very much about owen j we don't know very much about this condition and certainly didn't know that this drug's a matter could cause this condition then what they do well in october two thousand and three i think the orthopedist that saw  orthopedist didn't conduct any sort of examination all the orthopedist was doing was conveying information that they had been conveyed to him in a report and there's also no evidence that there was a p just had any conversation with mr hendricks about potential causal association between the drug and the disease while his wife remembered certain things i guess right the wife really remembered what her husband had told her at least there's a there's a real disconnect with what was discussed among the doctors and what may have been conveyed to mr hendricks by those doctors and in fact when we look at again the doctor's testimony what they shared with mr with mr hendricks dr beren thousand and six january two thousand and six well that would've been about two and a half years later following this consultation with dr fallon and filled his his he actually suffered a fractured jaw in june of two and that's in september of two thousand and three about eight or nine months later the jaw fractures he's continued to have problems but you have to remember as far as the medical and scientific community was concerned in two thousand and three this condition nobody knew about it nobody knew it existed nobody knew what was what what the problem was and what is the record i don't know you are but i can tell you that by january two thousand and six some lawsuits had been filed two thousand and five was when the first lawsuits were filed in the country relating to this condition  cases before this state in january of zero six would have been the beginning of the time we started filing cases we didn't get involved in these cases until late two thousand  file would have been come to us and we would have found out that i didn't get this we had a referral counsel based in los angeles who sent us most of these cases down to tennessee for the multi district litigation yes your honor well the district litigation and then it went where well then it was it was kind of parked in the multi district litigation for a number of years because certain cases were selected for trial work up a certain number of trials occurred and eventually the case got remanded in two thousand and thirteen to the central district of california and judge fitzgerald these cases are tried separately yes each one correct conflicting evidence well yes you're on to that question yes and in fact when you when you focus on the doctor's testimony versus what's in the doctor's charts what novartis has tried to do is together some notice argument based on information in the charts of the records and there's only a couple little references in all those four doctors between september and december of two thousand and three if you look at the testimony these people were deposed again because novartis wanted to get them to say there is no causal association the testimony is quite quite concise and it definitely creates a tribal issue or at least you know the issue of knowledge of the statu thought well there's there's actually been to a global resolution of all but forty four of the cases and this is one of the follow on the statute i suspect that during the course of the multi district litigation we had a small number of cases dismissed for statute problems i just argued a statute issue in front of judge keenan on one of these cases a couple of weeks ago because keenan in southern district but if you if you just look at what the two other doctors said in their deposition testimony they also confirmed that they didn't know anything about this drug in this disease back in two thousand and three one of them says i thought might have been printed zone or this drug but frankly my educated guess is that it was the prince's own not the not this is a matter so if you look at the testimony the deposition testimony of the physicians you can compare it to the to the records of these physicians you have competing inferences and it's inconceivable to me that judge fitzgerald could conclude as a matter of law that the only conclusion t jury could reach or that the judge could reach when considering all of the facts and all the evidence was that mr mr hendricks was on notice as of september eighteenth i don't see how you could reach only that one conclusion what i would add to that is even if you assume he's on inquiry notice we argue in our brief i think fairly comprehensively that a reasonable investigation would not have uncovered grounds that would have led you know we would have given mr a factual basis to file a complaint we said that if he'd gone to the company itself back in september two thousand and three the company issued a statement in the journal of oral and maxillofacial surgery because there'd been some noise about the case reports the company came out with a public statement that said we're not aware of any connection between the drugs the matter and this condition osteonecrosis so if he called the company mr hendrix would have run into a brick wall there  well if you if you go to the september october november two thousand and three timeframe if mr hendricks had made that inquiry around that time after the consultation with there was still the company's position pardon as it was at that time was still the company's position that they had no knowledge of anything to causal relationship yes and that was before any cases were filed once the litigation of course was filed they obviously took the same position they had an expert that they flew in from england who testified still not on ukraine out as that's i mean a lot of defendants deny what they do tell their dying day correct that's only one of the factors we put in it doesn't mean it's not an inquiry notice it means as if you'd conducted a reasonable vest a geisha and what would he have found nothing from the company directly the label there was nothing on the cement a label until really actively march two thousand and four you filed cases before the company said medicals they're still not admitting it right frex and that's why i'm saying we had four facts that we pointed to in our brief that that support our can position that a reasonable investigation would not have yielded a factual basis for filing a complaint that's only one of them the other two or the other three are the label contacting the company itself and i'm forgetting but there were the companies denial even through litigation we knowledge that that's not you know certainly company doesn't have to admit responsibility before the clock can start to run so again even if it even testimony you know the dispute as to when the doctors knew what they shared with mr hendricks again we point out in our brief that there's really no evidence that much of this if any was shared with mr hendricks by all of the doctors so maybe they were talking amongst testimony or evidence supporting that information was shared with mr hendricks that would put him on notice please the court fill bussmann on behalf of defendant appellee novartis pharmaceuticals corporation if i may i'd like to start out by setting forth that it is the plaintiff's burden on the issue of the discovery rule and even today at this hearing not to mention through two rounds of briefing the plaintiff has never indicated what put them on notice when he actually did file the lawsuit and in fact there are at least three pieces if not more of uncontroverted evidence the plaintiffs have not addressed that proves he was on actual notice even as of september of zero three starting with the record of peach want to eleven so when i said why did you find what's in the record that shows why did  lost it what you're saying is they've never said what when they actually were on notice never not once never there's no evidence at all and in fact if you turn to the x or the record at page one eleven there is a letter from dr phil's unseld to mr hendricks entire medical team that includes a doctor so late a doctor barks this doctor berenson and it states and quote on the second line you don't this is from june eighteenth two makes a lot of the fact that dr felson feld wasn't deposed but he wrote a letter indicating that he told mr hendricks what his diagnosis was as of that date mr hendricks also doesn't account for the test a phony testimony of his own wife he makes the proposition that perhaps mrs hendricks had a conversation with dr bartha this regarding stopping there's a metaphor being october two thousand and three and perhaps mr hendricks wasn't even part of that conversation well if you look at the record it document number one zero six three page three sixty one of three sixty eight that's mrs hendrix's testimony they've never addressed this dispositive portion question w how they interact you know you know whether you've got to have somebody look at all these different medications that don't interact with one another and cause adverse problems  context was not a pill this was an indispensable just talking generally well what did he say to this patient he told this patient that he had had three or four other patients with the same condition that he had just come back from a meeting of the american association of oral maxillofacial surgeons where there was an entire presentation on this issue and he sat in because he knew the speakers on that issue he then wrote a letter in september of two thousand and three when he already had the condition right so yes it's not a situation where you're warning someone this could happen oh yes i had the condition correct as a matter of fact there's no dispute that the condition occurred in two thousand and two and that mr hendricks had gone to two other treating doctors to hendricks was informed that dr felson felt put his entire medical team into a different course of action dr felson felt instructed mr hendricks was other oral surgeon not for perform any other invasive therapies on mr he also had conversations with the oncology team about withholding this a metaphor this was not something that was cavalierly discussed mr hendricks's entire medical team was on notice and in full discussion on this issue in the fall of two thousand and three and the fact of matter is that mr kendricks was fully aware of this it's undisputed in the record when you referenced your honor dr blows that the communication in the record of dr blows was based on mr hendricks own statement to dr blows if you turn to the record document one twenty six page forty of forty eight you'll find plaintiff's response to novartis is statements of uncontroverted fact it is undisputed by the plaintiff that quote based upon her discussion with mr hendricks dr blows noted he was treated for us unit osteoporosis with the med a which was apparently discontinued apparently it is believed that this is caused o for you to disregard the record testimony of his own plaintiff which would put an end to this issue but even if you do they have yet to account for dr felson felt letter saying he informed him his own wife's testimony that he was present in a discussion or a difference in the hypothetical though if let's just say he was taken to mete they didn't have this condition right but then the condition happened after  two thousand and four two thousand and five then he would be within the statue i mean he would be ok right that's correct but he had the condition back then and so it wasn't a question of warning about what could happen in the future and  like talking about what you're going to write then that's precisely the point he was given an actual diagnosis that he was suffering from an adverse event at that time in september of two thousand and three and repeated continuously throughout the medical records of his entire cancer an oral treatment team well what about this situation and i think that accounts for the appellant was talking about you know a lot of times there's a situation of he can suspect something you know you just but it's not really been scientifically established is it and it was it's you know the science has gotten clear on things like  i don't know fosamax a matter you know all of that the things at this point but does it is sir a point where even when someone says ok i'm looking at everything that you're doing and i think it's that it's a jolly case at pages one a way through one eleven where the jolly court aptly noted that a defendant's denial even to the present that there d s could have caused any adverse effect as your honor aptly noted it doesn't affect the question of notice now with respect to specific evidence in the record that would bear on the issue of notice in addition to his doctor's diagnosis and action plan you have a no vargus label change discussing this issue that occurred in diagnosis that said that this drug was causing this problem and it was recorded in a september two thousand and three letter with operative language reads offered by dr phelps unseld doctor the doctor communicated still no evidence to indicate when if at all plaintiff's claim actually accrued according to the plaintiff and discovery is is over this is the summary judgment evidence to this day mr hendricks has not indicated when it was that he nothing changed they could have filed the complaint back then and in fact there was a class action complaint filed in this litigation as plaintiff admits in two thousand and five which would have been within the limitations period for find well as the jelly court also notes there are public policy considerations in a statute of limitations and that a decision to allow a case to be tried by a jury does not trump you know at this juncture all we have to do is can i just ask you a chance i get have a position when when the planes discovered and nothing was going to discovery i'll go with june of two thousand and four when his jaw conversation was that took place between those two i don't know where that or that is in the record remember we have no idea you have his deposition on you yes and it is deposition dr bars to said here four minutes out for al thank you question ok do you remember having any discussions with mr hendricks about this potential correlation between the drug and the disease answer i don't have an independent recollection of that so what he said it is deposition furthermore this condition that novartis is counsel says that mr hendricks had in two thousand and three he had some condition it didn't have an identity at that point in time it wasn't until two thousand six or into two thousand and seven the american association of all in mexico facial surgeons identified this thing they felt that there had been enough information collected that they could sort of put a label on it but even in the position paper that they issued in two thousand and six they hedged a little bit so we think this is what this is so in two thousand and three mr hendricks had exposed bone that he had for about eighteen months in his jaw that he could not clear up and that none of his doctors could clear up the idea that these guys diagnosed him definitively diagnosed him with this condition in two thousand and three in the fall of two thousand and three when the medical team was dispatched is not found anywhere in the record i would disquiet you the testimony from in saliva about what they said in two thousand and three to mr hendri such discussion and testified only that i think i did have some discussion with him to that effect that's it there's no further explanation about what they might have discussed so clearly you've got competing inferences that could be drawn from that with respect to the october fourteenth visit with dr saliva dr barse this i just read that were dr parse this says he doesn't recall haven't an independent he doesn't have an independent recollection of a conversation that is he saying i don't have an independent recollection but it's in my notes again it's like a police officers it says this you know this is by police report i did it after the incident happened it was true and correct at the time i don't remember it now is that what he was saying he didn't have an independent recollection of something that he wrote down that he did on or about the time that it occurred i can't answer your question judge but what's what i think is interesting is this question wasn't from me or my from my colleagues on  this was the defendant's questioning of the doctor because they wanted the doctor at this point in time back in two thousand and eleven to testify that they didn't know about a causal connection between the drug and the disease so i don't know i imagine that if there was something else in the record that was better for them they were of use that what they wanted to these guys to admit hey we didn't know anything and that's that that's the deposition testimony they got now today all of a sudden in the second motion for summary judgment  have definitive diagnoses the reason they want that testimony now or they want the record to read that way is so they can make the statue of limitations argument that wasn't in their first motion for summary judgment and one of these guys to be portrayed as ignorant on the subject of drug and disease until they decide to make the motion for summary judgment on special potations and i would just also just so the record clear we did appeal also the denial of our motion to amend at punitive damages we don't believe there was any