what does that mean it's premised on objectivity independence and specialized knowledge of the to me here that's what you have to have as the foundation for the intermediary to qualify for the defense nd pron are there any cases in florida and i couldn't find any in law are there any cases either in the supreme court of florida or in any of the five different courts of appeals where they have think given to us by the highest court of the state which is the florida supreme court or if there's nothing there perhaps looking to the five district courts of appeals i'm asking specifically whether there is any case in the supreme court of florida or in any of the the ca's that have extended the arbonne doctrine to a circumstance where the intermediary is a physician our position is that robin is broad enough that it covers that because it does not make a distinction between that particular case as an expense that skews in that i think it's much further removed an intermediary because here  for it seems to me it requires a real substantial europe from the body of law we have to to the point you want to make which someday maybe the d c a's will get there someday but the problem i have is it seems to me there's this next pick and difference between a physician who has significant education and training understands the complexities of drugs and medical devices and is arguably in a meaningfully different position than the intermediary manufacturer of construction materials which include a specified i don't find the movement from a that be inevitable in the lockable maybe not even likely and so that's why i'm having some difficulty extending and discarding the longstanding learned in theory doctrine and extending an exception from one context can understand very reluctant to read the arc of florida decision making law as making that leap without someone telling me that there is some reason objective and independent even though he's given dozens of depositions for at the con it's made over two million dollars averages over three hundred and thirty five one thousand dollars a year not retained expert in this particular case and was paid which in essence makes somebody expert at five hundred dollars an hour and thirty five dollars a day to testify this is at deposition so i mean it opinion in in here in the expertise they are really saying it's a very complex question to determine whether the relationship between an independent physician and the manufacturer i sucks that by virtue of some financial relationship if the situation has in fact this started any independence in the making of medical judgments i don't say that can't happen i'm textbook answers i knew the rest i didn't rely on the manufacturer's instructions for use that's what he said and he also i stand by my decision despite the erectus results that reality but here's the kicker he also and informed consent he wasn't defending the case should he have been i would love to have had him in the case but my client's being a doctor has not been the case does i mean he wouldn't have been responsible it would have been a slam dunk going to consent your honor you think that a good doctor would do that role will run informed consent i chose artists who were out telling the patient i didn't tell the patient all the risks i understand he's here to you know to protect what he's there to protect next what he does when he testifies as an i'm not saying that the case might not get there some day where a guy just paid a lot of money by a drug manufacturer but makes his own independent judgment anyway if the bucks are big enough and the circumstances are we statement torts you look at the comments there if you very clearly very clearly says that it's the genesis of the fans this prescription drugs prescription drugs you know mean and that's this is a prescription medical device i mean that two things st they must show that the district court erred in declining to adopt a financial buy if exception to the learned intermediary doctrine which is never been adopted by any ploy to court and which has been rejected by the best majority of courts around the country to have considered it plaintiffs must also show that the district court abused its discretion when it excluded expert dr margolis when plaintiffs did not make any of the arguments below that they now make on appeal about the suppose it's a doctor margolis opinions plaintiffs must prevail on both issues to obtain reversal they cannot prevail on either i'd like to begin by addressing the open decision which plaintiffs now claim here on appeal directly addresses the issue at hand it does not plaintiffs ask this court to discard plaint florida as well settled learned intermediary doctrine by adopting a so called  you didn't turn on your t v and have multiple pharmaceutical ads directly to a consumer correct i have no basis to say one way or the other on that but i'll agree with your honor purpose of this but what you want to stammer and my my my point is is that when this doctoring came into being the doctor and the pharmaceutical companies were the ones that were in communication and now you have pharmaceutical companies who are actively promoting advertising to consumers directly just not in the context of this case your honor this case does not involve any allegation of direct to consumer advertisement that is that the totally different allegation which is made in some other context this case involves a surgically implanted medical device which can only be obtained there's no need even if the concepts may have changed or another case perhaps that this court might consider there's no reason to call it into question in this case which involved its so called financial bites exception and i'd like to address some of those allegations about the open to decision to explain why this doesn't that open did not involve the doctor patient relationship at all but rather it wasn't as best as case the manufacturer made as best as pellets which so were then sold to an intermediary who turned them into a finished product the question them before the florida supreme court there was whether it was reasonable for them a new factor to expect that the intermediary would pass the warnings on to the ultimate consumer if it was not reasonable then the manufacturer should have provided the warnings directly to the consumer or otherwise make sure the consumer was warm that is not what the plaintiffs argue here the plaintiffs do not argue a maniac sure of a surgical implanted medical device should bypass the surge and and provide warnings directly to a layperson patient but that would be the effect of plaintiff's so called lawyer financial bias exception that would be contrary to florida law which has repeatedly indicated that it is reasonable for manufacturers to expect that doctors will pass warnings on to their patients that is the essence of the doctor patient relationship and the informed consent doctrine there's nothing in the end that indicates that it was intended to undermine that relationship and as judge marcus noted it has never been applied in the manner proposed by the pla read doctrine instead they simply rely on a small handful of cases that find and issue a fact on causation council let me ask you a question which is in his deposition dr suppose that explained in detail why he chose the artists and for miss eleanor he walk step by step through the decision making process he explained that given the severity of procedure is done with surgical mesh and then doctors appalled that i explained in detail why he chose the artisan mesh specifically over the other meshes available he said that the artisan was a monofilament mash that had the largest poor science that polypropylene mesh had the best data that he preferred the partially absorbable component of the artists and dr supposed to testify that he had been using the polypropylene mesh  implantation procedures but in addition he received anal consulting fee of two hundred and fifty thousand dollars research and travel budget and twenty five thousand dollars stock shares in the parent company and even there the four circuit held there was no evidence that the consulting interested testimony cannot simply be disregarded at summary judgment on page thirty two of their opening brief the plaintiffs cite the rebase the district court opinion to say that self serving tests may may or may not be disregarded by the district court judgment the same is true here claim just argument if plaintiff's argument is accepted then a court could never grant summary judgment based on plaintiff's testimony because the plaintiff in a civil lawsuit like this one here almost always have something to gain from the outcome in a case such as this potentially millions of dollars in a judgment vote the court does not simply disregard that testimony just because it's maybe self serving so serving testimony is not disregarded unless it's blatantly contradicted by the record plainly inconsistent or incredible as a matter of law there is nothing left in this records to call into question dr treatment of the plaintiffs or his tens of testimony the only thing playing just rely on is his so called financial biased and there's no evidence that he exhibited any such i know your honor it would not i'm sorry i misunderstood your question plaintiffs must have the testimony of dr margolis to establish that a warning it was inadequate the plain just don't contest that on appeal expert testimony doctor independently knew all of the risks that the plaintiffs experienced then the the deficiency in the warning it was not a proximate cause of the plaintiffs make any of the arguments they now make about what the scope of dr margolis his opinions were never before this is the p l o did they argue that he was simply seeking to compare the risk in the label with what he viewed the risk to be in fact in these are the risks associated with this kind of surgical procedure be some of these risks were in the notice in some of them or exactly the facts but couldn't the doctor do that expert testimony will still be required to establish that their warning was inadequate that there was a role i understand here in the state and what you're based on my training background and experience these are the risks that paint with this kind of surgery but this kind of mash with this kind of procedure here are the ten risks and i'm qualified to say that and b i'm just going to read to you what's in the report or the notice and the notice references five of them and not five more i'm not offering an opinion directly about whether the notice is good or bad and i'm simply telling you these are the risks as far as i'm concerned some of them were included and some of them were not included in the notice there's been no way to prevent the doctor from doing that would that a doctor could offer that sort of testimony but it still wouldn't be enough to establish that the to meet the plain just burden to establish that the warning was inadequate because even if you say these are what the risks are it should still be established that the risks were not in the but should have been in the warning label at that that the warning was america without another expert saying anything else about the numbers no your honor i wouldn't agree with that because a bigger would still need an expert to say that these wrist should have been i reviewed medical literature these were no risks that existed at the manufacturer knew or should have known that should have been in the label let me ask you a question because the way i understand the argument that you present to the district procedures and these are the potential risks and this is what should have been on that morning but dr margolis went further than that to say that the warning was quote inadequate that was the the ultimate regulatory expert could talk about the standards for what should be in a warning label an expert like dr mughal of what would a regulatory expert have any knowledge of with regards to a surgical procedure and what kind of problems that occur with that kind of search so a and medical expert like dr margolis could testify about what the risks of the device are but when he goes that next step like dr margolis did here to say that the warning was quote inadequate then he's getting into a regulatory determination of what should or should not be and i have you and that is where he went too far now plaintiffs on appeal say well he wasn't trying to go that far but they never told the district court that the plane just didn't tell the district court we're not going to have dr margolis go that far we're not going to have eight they had planned a regulatory person you can pick up anything from the f d a someone too tired or now is going into consulting they could be an expert and for this there wouldn't they wouldn't be able to find about the medical facts like dr margolis but they could explain what the standard is for a warning label and why something would or would not be included in the warning label but plaintiffs didn't offer anyone like that they just offered dr margolis who was going to do all of it as far as the district court was told now on appeal they've cited these cases that they stop short of the at and they let the doctor talk about just the medical facts which we would agree a doctor could do but that was not with the plaintiffs argued here they didn't cite before the district court any of the i don't believe the court in general is presented which if barry argument but we agree that doctors can provide relevant evidence about the warnings it's just this ultimate issue that dr margolis sought to provide to daubert on that issue of what you know the amount of evidence that would be sufficient or not under florida law would be an issue of substantive law and so we let you go way over your time for your argument and i think you