a lot of things going to happen in twenty four years but you were talking about ten years my client had a hip implant ten years later she started experiencing some pain she went to the doctor the doctor told her that her implant had worn out and that the amount of damage to her bone was on normal wear and tear and the only question before the court today is whether as a matter of law that much information  patient on notice that the product was defective not that it was merely worn out but that it was defective i submit that it is not under california tort law before the statute of limitations in a medical malpractise case is to run disappear well they moved somewhere in her body i don't know if the thing was dissolved or it was moved on to the record tells us exactly where that went except that it was loosened but what we don't know is why that happened and there is no reserves nothing in this device itself was the type of device that that would deteriorate in that manner and the reason it deteriorated was because of the nature of the plastics it was made of but also that the only thing i think the record director directly shows telling the doctor told her page forty nine and fifty of the execute records you'll find that the damage was beyond normal wear and tear now kelly has said the doctor told her that what happened was beyond normal wear and tear i think we read the record differently about that and i believe the record literally says what the client understood and what she was told was that the damage to her bone was beyond normal wear and tear at the very least a reasonable juror could draw a reasonable person to drive different inferences from that particular evidence what she would she understand that beyond normal wear and tear damage to her bone resulted from a defective product or simply from deterioration over a period of time once the product is removed and it can be inspected then one can draw lots of conclusion that it was a time frame why did she end up out front limitations period i cannot under i cannot answer the question of that's why they said you knew to get to this new surgeon get surgery so what's the i'm not trying to say that there's anything about this record and that happened that would bring her outside the statute of limitations on as in my judgment she could have sued it but it isn't true that the operation was more than a year after the the average right now is a few weeks but the point is if we say that discovery happens at the time of the operation she's allowed that entire year regardless of when she had the in her body presumably as a result of normal wear and tear because it had worn out enough to put someone on notice and that is the only question in this case it is to the remarkable  we generally don't do trial work normal wear and tear of something different point i don't think the doctor said this doesn't usually happen with this type of hip implant i don't think you'll find that in the record he did say this degree of damage was beyond normal wear and tear to the bone but that does not answer the question page one thirty nine of the excerpt that the radiographic evidence was incomplete and without the inspection of the hits device itself any claim of failure due to defect would have been speculative that the device itself could not be examined ultimate i believe the ultimate defect that will be claimed when this case goes to trial is that the nature of the plastic liner that was being used in product was that time was a type that could crumble the crumbs of it would come off doctors made that apparent to my client if they knew i was whom they knew that i don't know that they knew that this product this is a sleep subject to that because of a defect in manufacture the surgeon who removed it was not the surgeon well let me answer that and then i have three answers to the previous question i think the answer to that one is i think all of those lay people are very familiar with the operation of cars in the millions of miles cars drive and all of us know intuitively or because of our experience with wheels and you do not fly off without something being wrong i don't think there is any reason to think that the general public or even a person with a hip implant has any general day to day knowledge that the reason hip implant would deteriorate or wear out after ten years because i think patients are told these things have a shelf life they don't they are permanent they don't think there's any reason to think that's a reasonable patient would know without being informed that the reason that a product would wear out after ten years is that it was effective so i think i hope that answers your honour's last question i want to go back to the what did she know after surgery that she didn't know before  hypothetical pose that she went to the doctor in march the x reader and he said the cup has fallen off look you're on the x ray and she filed a lawsuit the next day or at least within the next year from then but she didn't have the surgery having surgery as part of the discovery process i find that it's chilling and that there's a little peculiar but that let's look at i want to remind the court that we submitted a citation apparently submitted it twice by the way to a case called har homa first alan which happened to  throat and she suspected and i think she'd been told by her doctors the trouble was because when she was in debated as part of the surgery her throat was irritated that she continued having trouble with the throat and eventually she it was due to the in today she was not enough to put her on notice that the causeless cracked bone till she had the subsequent procedure to discover it and i submit that that case states rule in this case helpful brought up tali a number of times but the reason jolly i find out more about the yes and see if there's a problem with it she didn't file suit until one thousand nine hundred one and that's why the california supreme court said she had plenty of time i mean already she started wondering about the problem in the teen years before she had so i suppose he has he sued immediately without the surgery defendant would have been in this courtroom saying well we don't know if that happened in this case or not so i so i suspect that when you have the device and you can clean it you can step can you can  particles were off this device indeed and that's what you can discover will and that's why counsel's declaration i think insufficient overcomes someone who just knew we could not have this device examined we couldn't determine anything until we got the device out of her body and inspecting it then people would be filing medical malpractise suits based on speculation all the time because they would feel compelled to because of the way the statute of limitations operates at now granted a jury ma client delayed too long to file suit but this is a summary judgment case and that's a question of what constitutes reasonable inquiry under these circumstances when there are to be made by jury not by the district