good morning your honor i'm david miller from the firm of king in christ and with me in court today is mr de williams who was co counsel and nevada counsel i don't intend to go through sixteen years of history but i think the question of how we got to where we are today bears directly on the question of the three issues on appeal if the court will remember during the first six years there were two serial appeals where the court district court granted motions to dismiss which were reversed by this court in missioners one in two i know none of the panel members were on those but nonetheless the case came back when the district court held when the ninth circuit participation but personal participation in this particular circumstance doesn't mean they have to individuals did it wrong act it could be satisfied by the individuals knowing that there is a requirement being subject to the requirement and doing nothing about the requirement yes that would be true and it is true i understand with the question yes because as i read the evidence the evidence knew anything at all about the response made five lowest morally or in fact in writing well i think that raises the central key issue is what's the responsibility of the board members off that's a different federal constitution by failing affirmatively to check up on the person who is responsible for running the show they only need to affirmatively fill his or her constitutional duty to timely and parents accurately as opposed to what we know happened respond to a license verification request what is your best case for saying that a board member has that federal constitutional duty probably case where a board decides to itself ignorant of everything it's just as i don't want to know anything we understand that we've got these requests that are coming in we understand that it's our duty to respond but we don't want to know anything about them under the theory under that hypothetical board and individuals who have affirmative duties under the laws of a particular state to respond as this court  statements and what they said is i didn't know about dr mitchell or i didn't know about its request for a license verification they did not say it's our standard practice to have the the board employee take care of this and we assume she was taking care of it and we never heard that she didn't take care of that none of them say that if you read these affidavits carefully they simply say we didn't know anything about it we've put ourselves in a position of ignorance and are therefor was an issue at all it wasn't the only evidence the fact of their admission in requests for admission number eleven that they had something to do with this is louis his own statements showed their motivation now quite after learning about this which everybody else says they already knew about for fourteen weeks write a response it's too little too late the bottom line is that that response should have been sent back in june of that year not in september of that year when the relationship with the ohio hospital where there was a contract with dr mischler had already been that he took the responsibility to do that shows that it wasn't the obligation of the board employees it was the obligation of one of the board members and the business of the word members i would say the board members don't have anything to do with this process but in fact the board members specifically were involved with that process and it's what this court said in ninety three they were required to do if i mean briefly touch on the issue of the discovery in kathleen its appearance and we immediately tried to try to and again ms lewis at the time and within the time the court had said parties could be joined and it wasn't until discovery started that there was any indication or knowledge that ms lewis would have been a proper defendant now that's bizarre ten years into a case what we argue many times she had many conversations with members of the board i'm not prepared to state that the record says it was only with ms lewis i believe it was with others also with the board what was involved been disclosed that in fact it was the duty of ms lewis to respond the bottom line was that there had been no response and the plan and the attorney at the time picked the individuals who were on the board at that time i argued strongly in the motion to amend that there had been an indemnification issued by the state with respect to ms lewis what we were getting at was to show the court that there was no prejudice by adding her that was the bottom line the question of whether or not she knew about the allegations in the complaint is simply one i think is a track finder would have to decide last thing how to add her meet the requirements are  can i state that i'd have different record to argue to you if the discovery had been allowed perhaps but the bottom line is there was a timely motion filed a month before the end of discovery to extend  had it been ruled on and perhaps all of those depositions could have been fit in but the bottom line was that counsel was only asking the court to extend by a short brief period of time for two depositions to  primarily on answering any questions the court has on the issue of the summary judgment and also on the addition of kathleen those since it was most recently addressed turned at that issue first counsel for the plaintiff admits judge don't know any reason why there should be any inference strong that she does and all the individuals sued or board members as far as board member responsibility to handle the ministerial functions of the board office the court should know that this is the executive mis rated board appointed by the governor consisting of nine people six doctors three lay people they meet quarterly there's nothing in the record to my knowledge and i recall nothing on the record saying how often they meet monthly as was insinuated the fact is they may quarterly that's not in the record either but they don't meet monthly i don't think that's in the record the way they do function is they admission request the some other information i can't remember exactly what the request was requested this information the answer was requested do you admit that you that you admit that the you knew dr mishra was moving i don't know was moving so highly i don't know whether at this time the board under the eleventh amendment had as an old fictional body had been dropped i can't recall but if it had it was right about that time similarly whether the board members in their official capacity i don't know whether they've been dropped officially the at their request for admission was addressing everybody was addressed to the board as well as the individual defendants i just came on the case the case was massive at that responsibility because the knowledge that there was an inquiry does not does not prove that they have as the court said that they have any any knowledge full participation in the content or the timing of the response or and there's nothing nowhere is there any record or law or or anything that imposes upon them and affirmative duty to do that that that that was the holding of that case was that summary judgment was reversed because the issue was probable cause which at the bottom line is always a question of fact it was just an another thing that motivated me and the two things were crosswise that's not the case here at all in any event the only thing that doctors can be held to have admitted  knowledge that the board received the clearance the restraint of the clearance alone can in no way gives rise to any kind of a cause of action they have received the district court utterly devoid of evidence that they knew and failed to prevent what kathleen list did in response these are these are you know  mainstream incredulous but board members are doctors who are practicing and for the most part most of them are in las vegas which is you know eight hours by car and so far i mean it isn't los angeles and and beverly hills are the adjudicators of cases so the procedure in disciplinary matters is the board members are insulated and do not know about what's going on with respect to a doctor because ultimately they're going to be there isn't the daily operation and when the meetings are held what the board members are in what their involvement is they're given all of the information pertinent to that meeting and that's the end of it what and to enforce the standards with respect to the practice of medicine and that's primarily what they do that's primarily what they do what happened in this case this is a staff member as many as received an inquiry from our sister board in another i'd like the court to focus on with respect to dr clift and emotional for summary judgment is his minimal time involvement in this case and that time involvement is and disputed he stated in his motion that september fourth at the most we're talking in his knowledge from the time he learned to the time he responded at the most four days comments to the board and him asking her to call the board discuss the investigation you don't have him having knowledge and acquiescing in doing nothing there's no respondent superior liability you can't have a supervisor li would just like to join into those comments and get right to the discovery issue and again what i want the court to focus on is the due diligence of dr mischler and and conducting discovery this case he didn't speak to that in a deposition while there was limit there was discovery written discovery pursuits month period of time but after two thousand he didn't seek any further written discovery conceded at the hearing and a transcript from the hearing with the magistrate is very informative he conceded it was his responsibility if there was any misunderstanding perhaps maybe he's going to use the misunderstanding as an argument for why he did not conduct any due diligence or try and perform in a discovery but the misunderstanding with all due respect contradicts the clear language of the scheduling order and it contradicts historical facts and the conduct of the parties in this case be prejudiced by the additional discovery thank you thank you  exactly what the state now says he had no obligation to do and why did he do it at all when his louis said that she had been told remember the the no to the file that's part of the record where