where you have no reason to be but sanjay inserted these products in mr lyle's mack was exercising his independent medical judgment the practice of medicine deficient we know that's not true because dr stanton answers discovery said these devices were used in their ordinary and customary fashion did medtronic provide the warnings to dr stanton that it has been publishing for years if it did not on so we only emphasize the one theory that made sense at that time which was resident so we now know there's probably something else the incompatibilities of these products we asked medtronic to identify assuming that everything you say is true what is it that you want us to do and how do we do it what's the vehicle i've seen you can tell us it's to go back to the trial court or somewhere but what what is the vehicle horse a legal basis in that we can do that either one of those things but because there was no evidence in the summary judgment of anything other than a defective part of the the the moving party contrary to the law was given the benefit of all inferences they were drawn to disfavor and not in favor of the nominating party's law requires the because of some somewhat of the confusion as to what the question was because of the how your case developed do you have any evidence anything that shows it was an intentional miss tatement or rather just they were working off of the third amended complaint as opposed to the first a mini complaint and the iraq tours that were originally found that would not change that wouldn't the focus in july because that's all we knew about at that time when the third amended complaint was filed that was well before the answers to discovery and certainly that that did not in any way suggest that the  discovering was limited to the things that we knew about at that time or subsequently for that matter we asked for production of all documents and this is and i would have sort of missed the point you just raised it doesn't have to be intentional it obviously was intentional in this case but it doesn't have to be because rule sixty three says fraud is representation or other misconduct and this court has as made clear that  not essential to the to the meaning of misconduct with this is what mr hastings of a misconduct or if it's not for our in the sense of deliberately withholding evidence that was asked for and an architect what is the ok i'm sorry to get you back to what is that you so it seems like you answered my question before you started talking again about the misconduct that just because you got res ipsa loquitur it was summary judgment was inappropriate so that's your vehicle to get your summary judgment reversed if indeed we should if if you were correct and we believe res ipsa was ok on this theory but you're actually arguing that you should have been given your rule sixty motion should have been granted because there was misconduct and that that's a basis for overturning that right that's your vehicle that they and that's really the vehicle you're  talking more about that than the res ipsa sure that's the that's the case that you've read it or larger media you know i want to i want to say that we may if if we have the benefit if you let us go back to the district court and we had the benefit of the information that was concealed from us we might end up concluding that it was in fact a defective ploy the problem is we haven't had a chance to explore other possibilities that are quite logical when you consider the the end compatibility of these products you said in erosion of the our system of civil litigation cannot function if parties in violation of court orders suppress information call for a discovery there was no order in this case because we didn't know that they were concealing this this the severs contrary to what medtronic says in its brief the production was not non production was not obvious page seven and a further it was obvious to add intentional ok well i think we act we granted a whirl argument in both of these consolidated cases but but anyway but i have a question about assuming argument that only show that we can infer a defect through res ipsa loquitur doesn't there also have to be some evidence in the record before the district court that the product was defective when it left the manufacturer control and is this evidence in the record i don't believe it is and why don't you have to show that at the time to overcome summary judgment in that even if res ipsa theoretically is an ok theory you don't so it could occur in the it could occur in the surgery room some i mean somebody could drop it or something i mean we don't know then we don't know and you have to exclude all the other possibilities to get don't you well could we focus on sixty ok ok that's fine we relied on the failure to object and the failure to produce in this court this court said an eloquent cloud alexander versus quarrels you must have a valid objection not to produce documents in their brief here they say if they thought that all meant one hundred percent rather than fifty percent they would have objected in the district court they said with respect to each product there are product inserts had he asked for it had i understood he was asking for it he would have gotten  you can you can finish that statement but just finish that quickly it's the attempt to portray a dispute over infuse and atlanta's plate as a dispute over a progenitor and the verse to a certain save some time for a appeal your review is to no vote but i would like to ask your honour's to keep in mind that in ruling on a summary judgment in a bench trial a district court has somewhat greater discretion to consider what weight it will court to the evidence that's the placid oil standard in ruling number two judge james denied the rule sixty b two and sixty three motions and here your review is for an abus discretion i submit that both rulings were correct and should be affirmed as the court knows more than four years ago back in twenty thirteen mr lyles had an anterior cervical fusion surgery and to this very day the device both devices and the graft remain in place during the pendency of the litigation mr lyle's whose counsel had the benefit of a board certified charge that you deliberately and intentionally withheld relevant and indeed from his point of view current crucial information about this device that's what i'm interested in judge that you intentionally or deliberately withheld relevant information in risk and and did and what it looks like on the surface there was a bare brogue there was a very broad and a rather tory but you didn't object to the breath of fighting in the records of ls university hospital shreveport hospital which the twenty five underwent surgery attached is page thirty eight of the hospital records which is the implant record which does also has the atlantis plate so they are there the other contested discovery is the request for production which is mistakenly call intentionally because there was nothing whatsoever to harm we answered only about lanterns through and through the amended complaint through to expert positions and through the positions ok why is that not crucial to his case because it's used in the cervical spine and routinely by every doctor because even though you say it's not to be intended it's not intended for you as we pointed  they never did they may have said it was still there but they never opined as to whether it was properly done and whether it's supportive enough given the size and all of that its surrounding things that the experts could have tried to make hay with well your a board certified expert who is consulting for us attorney thought there was an issue that this was a nonstarter we didn't we didn't say oh there's a problem here let's withhold it we're not even aware of it so ok he says he found something on the internet and in the novice caller told him about it and now he goes on the internet and finds this and he shows it to us and we don't dispute it it's all beyond what was in front of the judge at the time there was no effort at any time by the plaintiff to follow up i gave the plaintive on may twenty fifth an expert report that i had prepared at the very outset of the case and it talks about her to staff over and over again about five or six times it wasn't anything we were hiding it's not involved let me ask you this question and that is to what extent was made of trying to trying to important because the f d a does not regulate use it merely not merely it says whether a product can or cannot be legally on the market and the  which is on page twenty eight of our brief says nothing in this chapter shall be construed to limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within the legitimate health care practitioner patient relationship for all that is in the record that's exactly what happened this doctor used  in you know in light supplied this device for this particular surgery no you are that's not the way it works the way it works is that devices are stocked in the hospital in a store we don't have any information as to when this particular device came we don't know what happened to it in the hospital it has to be sterilized by the hospital someone on the hospital staff it's normally the circulator nurse or the scrub nurse gets it and brings it into the operating room we have nothing to do with the choice or with the transference of the product in ok you say the doctor exercised independent medical judgment to use this product even though he knew that it was not indicated for this use but the doctor i thought he said that he did not exercise as he said that he did not know that  know let me just make this clear every product is cleared or approved by the f d a must be accompanied by a package insert which sets forth indications and contra indications this product when it went to l s e which we've had such a document the record is silent as to whether or not the doctor read it but judging by what he said in another part of the dispute which is not here before you as to whether or not he used infuse he said he had read the package insert and he knew that it wasn't supposed to be used in cervical spine so he didn't use it i am confident that he would say the same thing that he had read the package insert but he made a choice because of it there was a very little no no you're just speculating because we don't know because he ran some are going to pack it in and they don't know either but it doesn't call for going back before the it doesn't call for a week visiting of this by judge james if we look at the summary judgment record before judge james in his be reffed of any support for any defect at the last minute they came up then with race ipsa loquitur but they have failed completely to meet the standard where they have to sufficiently exclude evidence because at the same time not i did ask her to think be brought up before your own and i don't know if they are there from the clerk one i mark that one into one is the complaint of bryant liles to the medical review panel and i've highlighted the last sentence with it is a very that l a s u in dr since treatment of mr laws fell before the standard of care by improperly installing a medical device and b improperly monitoring the patient following the installation of the device this is certainly not a limb an ending other possible causes it's stating other possible causes and in addition in the second document which i've given you which is an excerpt from the deposition of the plaintiffs own expert dr stringer i'm looking at what is page eighty seven or page nine eighty three of the record on appeal lines eleven through sixteen question by mr allows attorney to mr lyles is expert do you have any reason other than the user error why that device could possibly have broken answer no just based on the information the answer is no so rather than on women eight what we see here is they're actually keeping open the case against the doctor for using it incorrectly i don't believe there is any reason to send this back judge james look at the race observer record and found there was nothing there when you move over to the rule sixty two and three i think you'll find there's no due diligence there's no showing whatsoever in the record and this is very important that this oppose it only newly discovered evidence would have changed the outcome and i say that because i'm confident that if you search the record from top to bottom there's never any criticism whatsoever in the medical record by any of the doctors at the two treating doctors deposition and that the two experts know the statement whatsoever that the verdict stacker progenitor had anything to do with either an injury or contributing to the problem with the plane what is your within two hours of the cause of any number of things that are in the record it may have been contoured or not you have to do that to put it in and it may be that he hyperextended his head when they were transferring him you can search the record there are no witnesses presented there's nothing in there that shows where was he from the time he was moved on to the gurney to the time he's taken to the so he bit that he stay said that the  nurse did not make any notations that he stretched in a weird way or something that would have caused his they didn't call in this to say ok i was with him i took him here's the two hours that we're looking at here is what happened to him he looks at one line in the record which if you look at it it just says that he's in stable condition he's breathing his heart's ok it says nothing about the status of the plate i have another question for you from the post in council's reply brief the posting counsel reply brief says that m s d's counsel would have objected had there been any consideration that a request for information about m s d projects used in lyle surgery included products other than the plate and in the us the idea that you would not have been forthcoming with you that you said at some point page thirty two somewhere that you would have objected had they asked for this information which shows that you're in rome which shot why would that be relevant some device used in the surgery why would that be irrelevant well it's no different than things that are used to put it to do with the case they injure the person they didn't cause the place i don't tell him how to put on his case in retrospect i'm sorry we didn't we should have objected on the same basis that enthuse was objected to or we could have given it to him it wouldn't have mattered i don't know how to make it any clearer i believe that it would have been good for them to have materials we could then have gotten into the fact that the f d a does not choose the way products are used we could get into the fact that this is the practice of medicine used thousands and thousands of time to this day all over the country and that there was another product that we made that was specifically it looks the same i have a picture of it you wouldn't even be able to tell it has a slight change in the dimensions which is there which he could have used i don't know why he chose this i i want you i don't want to admit any kind of relevant point that you would make that you haven't made but i think you've made and how don't look for something to say well i also want to call your attention to document three which  which was sent to me by liles counsel and he sets forth and you can look at it some quibbles and complaints about our discovery responses and at the end he says i'll be filing a motion to compel every if complete and good faith responses are not made by nov twenty fourth we had a meet and confer we spent forty five minutes on the phone i started out by saying what do you need what would you like for me i gave him what he needed i never heard from him again not even one word until the rule sixty b was mentioned ok i don't want to ask counsel that question whether either one  feel like you need to feel can need to supply us with a with a lot of that any problems you may perceive have arisen in the course of this argument that you have not ok and then what within within three days how a lot of what the clerk of the court no longer than three pages and then within five not well i mean if you if they are found simultaneous as far as simultaneous and then after you receive the respective letter briefs from each other you would have three days ok i'm ready mr and then mention to this court that withheld documents that were discovered after final judgment would not have battered to this case and i just like to read a few passages from one of the withheld documents not just there was not just one single but the document or multiple documents that were discovered after this case was dismissed a summ off label uses for devices over time he may have used it for that purpose because your guard us of its actual intended use but based on his response to our discovery request we know that he actually thought that this device was objections were made to infuse explanations for the lack of documents about the lot number of the alienist plate were provided in that discovery response nothing was provided at all about the border stat and in addition when we asked well what devices were identified three components called an atomic and you know a long serial number and when we then went to say you know if i said ok well i'm going to see what those are i'll do my due diligence and review what comes up on my own research with those device names and atomic six two four one six two four zero one i put that in their website nothing came up i found literally nothing put it on google i found nothing so my belief was they've objected to the number on your own i wasn't aware that there was any information to be had i looked it up and i thought well if i can't find anything they didn't produce it to me i assume that they were telling me the truth that there was none i you know i was given these numbers they weren't even coming up  h hindsight perhaps they should have asked but when i didn't get any discovery response regarding those devices and i could myself not find any documentation on those device pieces not even devices they were actually components that i thought well maybe there is no literature on them maybe they're just parts like a screw or a nut and that there is no need to draft a lengthy documents about it i do not know that there's three pieces are actually for this information and the fact that one none of the documents were just provided to us and two even if i had found a verge of stats final system on the internet i wouldn't have known that it was in fact the same device that was listed on the implant page which was not even i mean the device wasn't even given us that the name was not provided to us it was described as three separate components but did you make any objection to the to the court that