school personnel a requirement that a player who is suspected of sustaining a concussion or head injury be removed from competition and the prohibits the school from returning allowing the player to returned play until the athlete has been cleared by health care provider after finding that d j anger him sustained a head injury during a football game on september tenth two thousand and eleven and that's the district court's finding of fact forty t the district court misinterpreted the requirements of the law and committed clear error in concluding that the administrators and coaches responsible for the football program at chief flesh i school were not negligent and administering the eligibility requirements or in monitoring the safety and health of d j ingram the government's raise the jurisdictional argument in their brief of the tally i'll address it if the court has any questions but if not i'd like to move directly to the merits of the argument well i mean let me just have you respond just a little bit because it seems to me that the claim i'm really looking at and i sent back in the game despite his complaints he then sustained another head impact which resulted in permanent brain damage all in the game there's nothing in there about a notice of some concussion in the june eleventh two thousand and eleven spring practice there's nothing in there about negligently failing to ensure he got a medical release there's nothing really in there about failing to obtain concussion information or signed athletic book knowledge a month or so then the year leave me if you will to apply our precedent and try to come up to see if there's notice didn't seem to me rooney applied as rooney there was a fall mentioned in the complaint there's no mention here about a problem in a spring football practice or anything about negligently failing to get a medical release or any of that stuff nothing is mentioned so i looked at what we have here and i guess what your best case well the fall was mentioned and therefore one could in large if you will the scope of the notice because the fall was right in the claim that was the big deal in rooney so what's your best case remedial purposes construed not not narrowly that broadly and in goodman i think it was judge gould who wrote that case the court stated the jurisdictional requirement is not extensive but requires only a general description of the time place in nature of the injury this claim says that he sustained by emma is during the football game this place is during the football game is doesn't say anything about anything prior that is where he sustained his injury and prior no at the football game and that's that was the nature of the claim that he sustained a head injury at the football game and he was sent back in the football game  despite complaints about it now the allegation of complaints are not temporal as to at that specific point in time much like rooney i think the mention of the fact that there was injury and complaints what sufficient to put the government on notice and the mention of life state law was a decision to put the government on notice that the entirety of compliance with the law was it issue and that was the proximate cause of his injury here in the newly raised jurisdictional argument i think should be rejected under this court's precedent or stand your answer the district court this regarded not only the spirit but also the letter of the law and the district standards in the chief lesh i handbook which i substantively enforcing that law which provide evidence of the standard of care under washington law it acknowledged that ignored the requirement that the handbook has the mandates an annual certification by physician of the athletes ability to participate in sports the district court concluded the are want to one that there is some ambiguity in the chief flesh i handbook but held that a physical if conducted  within two years of athletic play would still be valid once the season is underway i would submit in going forward in this what is my standard or view for the district court's decision while the district court's interpretation i think of the law and the handbook would be to know because those are legal i guess standards i'm trying to figure out why we're saying that's what we have here and what we have here is what you have to prove and negligence and now we're trying to determine whether in fact you proved it well in terms of whether there's ambiguity in the handbook i would submit that this court is in as good a position to interpret it as the district court in terms of its findings of a star ical fact relating to negligence i would agree with you one hundred percent judgment as to whether another physical needed to be needed to happen that would be in  after that it is in fact of use discretion well it's clear it would be clearer and here's where i think the district court got it wrong there is no ambiguity that it is clear that the athlete must submit a physical exam prior to participation but then the the handbook is clear that prior to each subsequent year of participation a student shall furnish a statement signed by a medical authority licensed to perform a physical exam which provides clearance for continued athletic participation that was quoted in the district court's findings of eight there's a distinction between a physical exam which is good for two years and then clearance signed by the physician and a subsequent year prior to competition this became but really to get to the clearance one's got a notice of an injury right i don't think so i don't think i think this why do you need a clearance if you don't have notice of an injury well they have the they have already on the books the physician release formed with the physical if you will to go ahead and play if there is that on the books and you don't know about any injury prior to this and i'm trying to figure out why you need anything more because the handbook says prior to it doesn't say anything about a notice of injury it says prior to each subsequent year of participation so you don't need just a physical every year every year you've got to get another fit ical released far you just need clearance signed by a physician that's what it says you don't have to submit the physical you just have to have clearance now it is undisputed that d j suffered a injury at football practice in the spring of two thousand and fourteen in the district court so found this requirement of continued clearance and follow up becomes doubly important in this specific case and that's where we get into clear error because it's undisputed the d j suffered a concussion in the spring the district court so found  finding effect the fifteen it's undisputed the coach the vini witnessed helmet to helmet conduct contact at that time the district court so found it's undisputed the d j did not return to practice after that injury suffered in june of two thousand and eleven that's finding a fact twenty two and it's undisputed that he was never cleared to return to football before that first game in which he suffered this devastating injury in september two thousand and eleven that is not a dispute well it's undisputed that he did not have a it is not undisputed in fact adams says i wouldn't have handed the your client a yellow card let him play without sign paperwork  just misplaced what i understand it is the form is not in the file the end of all it's undisputed well it's that the medical records do not refer show that he did not come back his doctor's notes show he did not come back and i think what they were talking about was the signed acknowledgement of the lie said law concussion notification by the athlete and by his mother i think there was a dispute about whether that occurred but in terms of a medical clearance to return to play after suffering the injury in june there is none is there a finding of fact by the district judge with respect to that form the clearance form well what the district court found was all he needed was a medical exam on file that had been conducted within two years and he did have one in october two thousand and nine so the district court interpreted these requirements of the law as not requiring you said there was ambiguity and i and basically found that resolve that ambiguity by saying in contravention of the spirit and letter of the law i think that there was no requirement that he needed to present anything else but that sent back to the district judge because this was a bench trial so we're not stuck with the problem of us that's correct oxer the jury verdict for a fact finding on that question well what happens if the district judge says well if you ask me to find facts on that question and you're telling me as a matter of law that such a form had to have been signed and the district judge says well given the facts here i find that that form never was signed then what happens then now is before the washington supreme court they accept a group view in that division three case just on tuesday about whether the life state law itself creates a cause of action but under washington a law it would be evidence of negligence that could be considered by the trier fact that's that's the problem comes in that that could be evidence of negligence were back in from the trial judge now on clear air and i appreciate this is a tough injury and i'm not trying to get away from that i played football i didn't go there after into via life not having played football i know what the situation is but i'm really looking at the standard  haven't got a form there but you got one who the district court seemed to believe adam saying i got the stuff if i hadn't got the stuff i wouldn't have given your client the card i wouldn't have let him play you've got the coach saying i got the card which says in testimony that they have i've got it and we had it is just not here and then all we have is a lack of paperwork we've got emergency medical authorization form for two thousand and ten two thousand and eleven we've got a concussion information sheet for two thousand and ten we raise up again who signed it but right there on the record mother says and it came to their sports they gave it to me i find it i think i think when every time she says it doesn't matter i sign everything i think that the stink in your honor is between the forms that are signed by the parent player which the district court found they had based on the mother's testimony and the coaches and the district interpretation adopted by the judge and ms adams so testified that all we need is a medical exam that had been conducted within two years that was what they were looking for they were not looking for anything else either clearance after it and so then if i agree with the district court that they don't need any prior physical and two until october two thousand and eleven your case is over if you've find no what you have to find is that the clause in the handbook that says prior departed each  participation a student shall furnish a statement signed by a medical thirty licensed to perform a physical exam which provides clearance for continued athletic participation is simply a nobody and that's what the well district interpreted that's what no the that's what i'm trying to question you about if in fact adams and sabine me both say yeah well sweeney said i would let him play without a card adam said it would give him a card if i didn't have all that stuff it's just not in the record well i think again there's a distinction between the stuff being the concussion information form and the release signed by the parent and the medical clearance required by the license law and that's what they didn't have and that's what they did and i have the problem i have with your problem with your question that's why i'm putting it to you when you're the district court and you're trying this sift through all this information and you're now the prior fa you're and i'm going to jury they're helping you're the trier of fact and you've got to determine who's telling the truth who is and who you believe in knew you don't and you've got some paper that's not there that should have been there then you have to decide who do i believe and at that point i have to give clearer view to that decision seems to me that's what the district court did well i'm low on time but i'd like to respond to that yeah well i would ask it if i didn't clear the neutral folks in this case who did not have a stake in this action the medical providers d j s dr undisputed he did not return after june fourteenth and he did not  not give him any subsequent clearance after that that's in the record and then also if you look at the subsequent medical providers and here we're talking about the two impact he suffered in the game each of them each of them uniformly say that he in the ambulance in the e r and subsequently when he was being treated that he told the coaches he didn't feel well and he wanted out of the game that's that that was the undisputed evidence from the third parties that had no absolutely no incentive to stress the fi one way or the all right if you think and the judge heard all that right and the judge would like there to present your argument just like you present witness if documentary evidence isn't present in the file i'm not aware of one but i i would simply rely on this court and the supreme court's definition of clear air which doesn't require that the evidence be that there is no evidence to support the district court's findings only that if the entire record is reviewed by this court and indefinite in f conviction that a mistake has been made this court has and should reverse that finding and that's what we're relying on here based upon the undisputed documentary record that was before the district court ok why don't we hear from the other side we have taken your time you decided to reserve time we'll give you some time to respond i appreciate it said is that when you have conflicting testimony from two witnesses each of whom has told a plausible story that finding can virtually never be clear error and that's what we have in this case the district court heard testimony from the coaches and from the thought there was a lot of the physical examination had to be completed every two years the district judge doesn't say anything about the authorization that has to be done every year under the handbook the district court about the concussion information  form so what the district court found was and this is funny number ten at your three coach to be received yellow card right by the player before the across the game and the prior part of that paragraph reviews the requirements for a yellow card and they include the question really  just says i'm sized to talk too fast when you say it again i'm looking at finding number ten you know i'm reading the last sentence coach that he received a yellow card for d i before the acosta game right and then the prior sentences of that same finding director for cheap flesh eye for the school years two thousand and ten eleven two thousand and eleven twelve she would truly check the students eligibility requirements every week during the season she checks grades physical exams parental or caregiver authorization see in that paragraph separate separating out of the every two years physical requirement from the every year medical authorization requirement so i'm trying to figure out whether the district judge as he makes his financial effect that the compliant thing is that these are complied with the legal requirements or complied with whether he had in mind that one every year authorization whether you misinterpreted the law or whether it was unaware of the law i was trying to figure out what did he really specifically find and what is maybe ambiguous the district court found that a player in order to have mathematical authorization to play a player had to have a physical within the past two years and that finding with supported by the record right now you know i got that but the argument we're hearing is in addition there had to be a medical authorization every year the district court rejected that argument it found the only medical authorization where did the district judge reject that argument  record with this which is washington's i thought information handbook it makes clear that a physical examination is good for two years and up but that's not the argument about physical examination the argument is that there's a separate requirement signed every year prior to presentation and he's making an argument that there is a physical examination requirement that is the every year requirement not every two year requirement he isn't as i understand it and he can clarify he is not making an argument that there are two separate physical examination requirements and no other question now before the court i may or may not end up agreeing with the argument but here's the argument i heard the argument i heard is that the life that act requires a physical examination every two years and requires medical authorization every year and a question every other year in between the two year of physical examinations all it needs is the doctor to sign a doctor doesn't need to do an examination that's the argument now do you do i understand the argument different do you disagree with that i don't i don't care whether you live breathe that's the argument that was made i want to know do you disagree with the argument that there is an authorization form will card every year signed by a doctor yes i do i disagree that this act rely said law imposes a a requirement that a doctor authorize a player to play every year i don't believe and i do not believe that counsel made that argument below plaintiff's counsel i believe that they argue that the physical examination requirement was an annual requirement and the zachary life federal law required the player and his parent to fine their making an argument separately based on the facts in this case that this player was required to have medical clearance because much will made a trial was reading the transcript correct well and as i understand of judge fletcher was reading there is just prior to paragraph nine of paragraph t handbook also states the student athletes requiring the attention of physical of a physician due to illness and or injury must have was issues written release prior returning practice or competition absolutely that  suggest that if in fact one would have known about his injury and you know eleven june of two thousand and eleven there would have had to have some release but if one doesn't know then there need not be a release correct that is exactly right judgments and i think maybe the source of confusion here is they argue he had to have medical clearance before he played in the fall of two thousand and eleven they based that argument on the life of law and the june of two thousand and eleven concussion not on so so just so i'm clear that's how i understand their argument council can can disagree with me if i'm the reason they're wrong that he had to have medical clearance in the fall of two thousand and eleven is based on the district finding number thirty denies that he witnessed or was told of the effects of the head injury suffered by d i on june thirteenth two thousand and eleven that's the june two thousand and seven head injury which they say trigger the physical clearance requirement and coach to be denies that he knew that d e i had a doctor's appointment concerning a head injury the coaches didn't know he had a head injury the district court accepted that testimony it found that they didn't know he had a head injury and for that reason they didn't need to have medical clearance for him in order for him to have a yellow card to play and the district court made that finding and finding was not clearly erroneous i'd be happy to address the exhaustion argument i think there are two cases which are admittedly out of but there are two cases which show why the plaintiff has not exhausted the claims insofar as they depend on the june two thousand and eleven injury and forms the first is the more a case of the third circuit where the defendant said i was injured by instructions i was given while fighting a fire about how to handle his breathing apparatus and then he went to trial and he tried to show that the united states was contributory negligence in starting the fire and the court said starting the fire is a separate set of facts even it was all one fire the injuries to currently took place took place during the fire this is quite similar to that but but really i appreciate your out of circuit precedent but we have a judge sitting right here present which i'm really trying to address with to determine this if i look at this it seems like to me like ship eric says so long as the agency was on notice of the injury any discussion of the legal theory of liability for that injury of the ministry claim is gratuitous or surplusage and how do i apply that here well the notice requirement is to give the agency the opportunity to investigate and here the claim that was presented alerted the agency that it should investigate what happened at the football game they had notice of the injury in the football game yes why was that limit a claim as to any facts that are pertinent they didn't have notice that he also had a concussion and four months earlier and so they didn't have any reason to for example preserve forms or investigate what might have happened in terms of clearing him to play was there and the joshing requirement is tendered to give the united states or opportunity to investigate and doesn't require that the united states actually investigate to the united states actually investigate i don't think the record reflects that i i suspect they did not because i don't see anything in here that says they investigated well there are there is let me back up a little bit there is some testimony on one of the depositions i believe it's orlando but it might be audrey abrams talks about how they were told at some point go get your files and look at them go get the file for him and look at it so there that was so perhaps the investigation i should have thought that a competent investigation certainly any lawyer lee investigation would not only look at what happened on the football jam but would start looking at authorization forms well that's right and i my response and it's a problem that we're talking about would have turned up mediately possibly but even if it had turned immediately it was still at it was such still months after the fact and i think that no no that's why one would know what i'm after is whether or not the investigate the the notice that the government was given that is to say that there was an injury in the football games that is the least alleged to have caused the stroke in investigating that what would the investigation of turned up because ok they've got an injury alleged to have been a violation of this act and now they're trying to figure out ok what's going on it would have to be a pretty slapdash investigation not to look to see whether there are any invest any authorisation forms in the fox cools files that might be right but i don't think it would be true that an agency or a high school would have been alerted but we should look and see whether this particular player there's any record of his being injured before and that's that's the real thing that wasn't exhausted is the june of two thousand and eleven well i sure thought that in a proper investigation even a minimally out of the investigation would have included  would have been a normally competent best again if the government is on notice that he was i think it would be to look at the events of the football game here they went out and got video of the football game eventually who did an interview with a kid it was injured possibly i so i don't know how common it is to interview a plaintiff plaintiff might well be reluctant to talk to government agencies when they're considering wanting i want to other quick point there is one other point i want to make about that it seems like we get this a little late i mean if in fact the whole reason for this is the notice and the opportunity to investigate we've already had a trial your hon government already had the chance to go in and do all the investigation it wanted but all the elders incent wanted to do everything it wanted at the trial and now it's coming in here and telling me that oh we didn't get enough notice i that's the worst now i understand i mean i've looked at the standard or you know exactly what i'm up against i mean it's jurisdictional and it's it's there and i've got to make that decision but it seems to me in this particular case it's i'm a quick argument because you've already had a trial you had to put on all the evidence you could come up with you can put on all the investigation want to why am i why are you putting this to me now because you're special and because in my view i correct i understand that i haven't satisfied you i will know that we put it in the trial brief before the district court the district court did not reach that i don't know what it was argued a closing i want to point points about the merits and then you don't know what it was or you to close i don't because there's no the entire trial transcript the transcript of closing i believe has not been produced but the entire transcript is actually in the supplemental experts for art yes yes and i have i have read that ok so the two quick points one judge called you asked whether there's any case to the proposition that we can't prove the existence of a form through testimony i'm not aware that we can't and the normal rules of evidence allow us to do what we did here which is to have multiple witnesses testify that they believe that these forms existed and that he the play without them that's the first point i want to make the second point i want to make is if the requirement is that you have a physical every two years physical here was october of two thousand and nine so if the school was faulty as to this requirement that means he had to have a physical as of october two thousand and ten which means they can't show causation because he would have had that he would slipped a cog say that again so that the requirement they're saying was not was that he one of their contentions is that he shouldn't amid allowed to begin to play football in the fall of two thousand and eleven because he had a physical physical from october two thousand and nine which would have expired during the season if they're right that that physical was only good for a year which is one of the arguments they've made that expired you know human anymore ok well it's an argument that doesn't show causation and i'll just end on the district let me be brief the theories of liability relating to the clearance finding effect  the district court quotes the chief less i guidelines on the w i a guidelines from which they emanate and it basically says and he quotes it verbatim part each subsequent your participation the student shall furnish a statement signed by medical authority license form fizzle exam which provides clearance for continued participation so there's two things going on here one is an exam for two years and that's what he finds and the other is clearance on an annual basis the court in finding a fact eleven indicates that there are some ambiguity in the handbook about the requirement but finds that the requirement for clearance is basically super celestion and irrelevant and all that is needed is that two year valid medical exam there is and so that there was no clearance for fall of two thousand eleven there is also requirement that if you suspect a person has been sustaining a head injury and they've been treated they need clearance by a medical physician to return to play this unlike the first basis which involves a straightforward interpretation of the legal standards this argument is based on the clearly erroneous standard because the district court finding th was unaware of the head injury of june two thousand and fourteen cannot be sustained on this record for these reasons the district court found that the j sustained a concussion the district court found in fining effects sixteen that coach vini witness head to head contact the district court found that he did not return to practice in june two thousand and eleven in finding fact twenty two and the district court found the coach had been he was unaware but it's undisputed that d j didn't just magically appear at the doctor's office he was directed to go there isn't by his mother who had got a call and made an appointment and she got a call you know you're reciting the evidence all of which went to the district judge that's true but in terms of the legal standards i think the scorches look at it and say that the discard made a legal error and interpreting the standards they thank you thank you th e case of income versus united states is now submitted and i thank you both for your arguments and the last case on the argument calendar this morning is spoken law enforcement federal credit union against barker