sure it's about whether the district court correctly applied rule fifty six it's about whether disputed issues of fact with respect to causation and reliance exist it's about whether the learned intermediary doctoring applies on the internal studies she demonstrated could cause permanent alopecia nevertheless sanity ignominiously failed to warn either help healthcare professionals or ultimate consumers about that specific her not to put any weight on dr subtle sex study that one call just her own doctor told her that out of hundreds of patients she had treated only three had ever had permeated hair loss and so in this instance when you say no the question is is what did the plaintiffs know there was that it's sanity wants to make the argument  this particular instance that there was correlation without causation right sanity wants to say all that because she had some anecdotal information she knew of the read well that's not true and by the way that's not the law in colorado long colorado has is the manufacturer is required to provide it warning with respect to specific risks and under the strict liability standard something the hamilton case you can find that reference but house counsel let me ask you what the what do you think the warning should have been it's my understanding that now the f d a record as a required warning that there are known cases of permanent air l and is that what you're saying the warning should have been are you saying the warning should have been even more specific there are more significant than that one i guess from played us perspective in keep in mind or  is whether the district court properly granted summary judgment on these facts now i bet that the reason i asked the question is because it does seem like the plaintiffs on college just knew what is now on the warning which is that there are known cases of pregnant hair loss and that does seem clear from the record she she i think she had three of her own patients who had had permanent hair loss and then there's these studies that you're you know there's the debate about how meaningful the studies were but would you agree that should the oncologist did at least know there were known cases of permanent hair loss i would agree with the cords that the on colleges knew that there were none cases  permanent hair loss what i would not agree with the court is the underlying premises that the oncologists knew that that permanent hair loss was caused by the taxes here well your honor i don't know i'm not a medical expert but the bottom line is is the if under colorado law if a manufacturer is aware of the risk they are required to provide a warning in this case they didn't i mean we could reach we could reach into the ether and look for all kinds of reasons but when your doctor treating  warning was the cause of the enter and here where the each of the the doc to end the asia where aware of the injury that would be caused by the product then under colorado law not even an open and obvious open and obvious danger well it will vitiate the requirement for a warning right that's how expansive colorado law is right and so the question the question that keeps i think hanging us up here is this is what they knew are you saying there's no causation requirement for this claim i mean the district court didn't say that the defendant acted properly and gave a proper warning in all that it just said assuming there was a problem there was no causation because of what the doctor and patient knew which would you may disagree with that i mean isn't that really b s i guess i don't read the district court is saying that the company the defendant acted properly in any way  only come to one interpretation and what i'm seeing here is is that to put it to put any weight on anecdotal knowledge for the purpose of saying well you knew there  this risk of injury and it was caused by this drug right that's the question the jury has to determine it is inappropriate ruling on summary judgment yes it is undisputed that the doctor in this case had some information it is also undisputed that the patient had some information but when you look at it in the eyes of the patient and hears are going to make absolutely clear he learn we're going to say that the limited intermediary doctrine does apply in this on this set of facts that we would respectfully ask that this court certify that question to the colorado supreme court because we will be more than happy to slug it out with sanity in front of the colorado supreme court here in denver now turning back to your question your honor i guess i would say this the clinically significant that she had three patients out of hundreds of patients that it then extended had experienced this permanent hair loss now when you have your own doctor telling you right that look i wouldn't put any weight on does this is a clinically significant what we're going to attach that knowledge to the do the plaintive see this is the problem with applying the learned intermediary doctor who in a case such intermediary if you don't provide a warning the entire learned intermediary doctrine is based on an adequate warning and the o'connell case in colorado says that the numerous other  the problem in this case and by the way it is going to point out serious be in the hours in the response for if never even addressed any of the cases that say look the the learned intermediary doctor does not apply when there hasn't been an adequate warning it as a shield to say look our duty is only to warn i prescribe being position and they want to they do they turn around just like in this case may say look we didn't provide any warning we didn't provide much less than adequate warning and now we're going to use this doctrine as a sword to say well you know the chain of causation is broken if the doctor wouldn't have changed or prescribe indecision luckily for us number one while taxes the tax and your regiment was her preferred regimen she would have personal odd whatever the patient requested right and if you look back at the current case law i think it's i think it's hamilton person's heart and it talks about this idea that then that the decision making process is not solely in the hands of the doctor it is a coordinated effort that is the doctor a from the other side in a moment about whether that's true or not and if that's so and she's me a principle argument is regardless of that it's a collaborative decision is up to your high on to make the ultimate decision and she has a different view about what she would both said yes she could have still prescribed even if she got the warning but she ultimately she would have done her role is the sort of guide to patient and ultimately she would prescribe with the patient requested right and you have to remember the and colorado law is clear and it comes from basic tort ansible that whether it's a warning can't or any other kind of tort causation is an essential element of the claim and here in a warning causation case  very well trod causation can be about in a number of ways and here there are two ways either are sufficient to create the cause a change in your honor society a look at so that in the questions that you've asked my friend on the other side patient of a better study so what you're on i just suggested which is what is a warning versus what is a study a study is not a warning a warning is something that's attached to the product itself it's pharmaceutical contacts at the label and the label after f d a evaluated at these very studies this very studies that i think was pointing to change the way about to say cases a permanent alopecia have been reported at frequency not known so that the incidence rate was not which cause all association is broken which is that dr who are just about he waited all of this information including a potentially stronger label and that even with the stronger label even with the studies that plaintiff has pointed to in her briefing here on a l and has presented in the district court i still would have made the same recommendation i still would have prescribed x that year based regimen because it was the most effective just a few of her parents i think are very inform because it's so effective so keep in mind that the that the risk that is being discussed here which is i don't want to minimize that but you have to keep in mind that we're talking about chemotherapy which itself bears substantial or based on just the mere fact of the warning apparent on the label and stat her testimony was all over the map in terms of whether she would have project at her doctor's recommendation and gone against doctors that buy to use an alternative regiment she said she may is just getting to with this particular doctor is shit the causation of the hair loss since it would have been clear at the time of the treatment what it is it clearly is actually because the patient is so involved in selecting the treatment and what's your response to that i think that the way that the district court looked at that is that informed consent remains important and that the discussion between doctor and patient is an important factor in determining mornings cause a sham but that doesn't change the fact that ultimately the question is whether the prescribing the fission would have changed and whether the parties knew of the relevant breath and so i think when when my when i not counsel suggests that the learned intermediary doctrine doesn't apply what he's really trying to say is this court should ignore the cause ation element that's really what it short for is that he seems to suggest that whether it's strict liability  unclear what would have happened if she'd known what's currently out there i mean that seems to me it's not so much that there's no causation just to defocus should be on his client in terms of causation instead of on on the on call we really know on the label today that she would have refused dr park just as recommendation and in fact here's another factual point on the hands testimony gave him with clear that intermediary says we don't look that far so i my st point to your to this court is you once the doctor says i wouldn't change my prescribe a decision that should be the end of the story under traditional learned intermediary principles which apply here but even if you go further the hands testified repeatedly how she she remembered that dr port just told her that the only patient who ever died was a doctor's wife who didn't listen to her she admitted that she didn't dictate her own care because dr portis cautioned her about being her own doctor and she testified i'm replace regime was her preferred regime especially for the kind of cancer that to have had without her to have been a cancer so here there's the legal issue which is that you look of the focus is on the doctor that's you know my doctor and then when it comes to what would have been the hindsight testimony about what would have been her choices she is all over the map and it's not creating a dispute a fact because these are just wildly inconsistent statements about it what risk consent for example have broken the causal chain because the patient one of refused care and we think that that's the appropriate murther but even subjectively it han't inconsistent testimony on this issue doesn't get to the point where she demonstrates that she would have somehow refused treatment that her doctor thought was the most effective for saving her life and treating her her breast cancer d but it is i think fairly standard law or i mean me or that it must be shown that but for the adequate warning the treating physician would not have used her prescribed product any variation in colorado you  can certainly raise with me but it seems to me that the product is not prescribe until the physician decides actually to prescribe it which would mean chemotherapy and it would be that the nurses patient and ultimately change the prescription why isn't relevant oh let's just talk about i think it it could be relevant but when we talk about a better warning your honor the warning that we're talking about is still an man's the plain tap are all based on unfounded and i'm proven hypotheticals there are about incidence rates that simply are not in the record and i do want to point out one thing that's prevalent and the focal point of the at the studies are quote not comprehensive enough to present her weight there's case reports which you can't derive a rate from what she's talking about there is the present case studies the studies that might if they shut up and just close in should have been part of the conversation important doctrine one that colorado has recognized most importantly and that focuses the effort on the prescribing physician and what the prescribing physician would have recommended and in this case this particular arrest was extensively  can you hea the state would do in this particular case the colorado supreme court has never passed only of learned intermediary doctor while this court can look to the intermediate appellate courts of the fundamental thing th court has to remember about the o'connell decision is it apply the it apply the learned intermediary doctrine in the in the realm of medical devices not a prescription drug it did talk about prescription drugs but here's the key point that case left open the question of what happens when the warning was inadequate as a matter of law if there is no warning about a specific risk there can be no question that the warning is it inadequate now ms eisenstein talked about the law of informed consent which was interesting because in colorado the dea task is objective one it is an objective one for informed consent nevertheless if you look at the the new the miller versus new apologize if you look at the miller versus van newkirk case eight or i'm sorry subjective beliefs is evidence of what a reasonable person would have done and in the holly case it was that it was that situation that caused the holly court to say on that basis the question goes to the jury now ms eisenstein is spoken repeatedly about what the plaintiff knew and she keeps the frustrating thing in this case is that sanity it wants this court to buy into the argument that if there's anecdotal evidence out in the world about some perceived risk been by golly they're off the hook as i talked to earlier in colorado not even in open and obvious danger this year it's a warning open and obvious so in this case we need to state you we need to stay focused on the long colorado it doesn't matter what the law is in any other states and you know we look at the cases even the rays case handed down by this court that was based on texas law and then there were a number of cases cited by the defense bit that cited arkansas law and other and other things like that the bottom line is we have to stay firmly two feet in colorado law not just jolly ask a question earlier talking about you know what else could have caused the permanent yeah i just wanted to point out that there was numerous things that could have caused permanent hair loss the multi drug chemo regimen hormone therapy simple aging female pattern here lost all of the those were potential causes and you know the reality is is give me a sign knowledge when we assign knowledge to the point to say look this breaks the causal chain it defies colorado law because once again that  fact she's saying the facts in this case judge should should be over also overwhelming that there is no dispute and that's simply not the case as pointed out by the facts in our br course the focus is colorado law but generally absent some indication state courts are you know try to be consistent on in areas like torah law i don't understand that question you can you can you rephrase that question sure you are saying all these states texas arkansas might but that might be the law in those states but colorado has a different law when it comes to the learned intermediary doctrine oh thank you we should jest what case suggest that colorado has a different version of this doctrine then than the prevailing view in other states i'm out of time may i answer yes go ahead b if you look at for instance the rig's case right it's my understanding is that they learned intermediary doctor is part of their their product liability statutes it's the same i think of the arkansas cases cited by the says you weigh the issue we're not even going to consider so here are some of the other states of you know a more developed body of law we don't have that and that's why i plan to invite just as court look if you're going to see the learned intermediary doctrine actually applies then like assent we invite you to certify this question to the colorado supreme court you know the or i cal so i think you've answered judge costas question thank you know and some other