she distracting you there gathering up are we ok to go all right very well you may proceed mr mclean thank your honor i'm here on behalf of whose case was dismissed in the western district by judge whipple  based on a motion to dismiss brought by merck claiming that the statue of limitations had run the district ruled that the statute limitations had run even though during the time period that he said she should have filed her case her doctors were prescribing the drug in question vioxx to her this was before the time that a warning label was in fact on the drug and almost three years before merck took vioxx off the market the court ignored this evidence in the case and we're going to get to the fact that no evidence should have been considered in this case since it was a r twelve motion to dismiss a stand simply but the court ruled that her statute was triggered because the defendant submitted some newspaper articles one in two thousand from a newspaper in new jersey which at the time she had no internet access if you may we know take your minds back to the year two thousand very few people in the country did but this was and newark star ledger newspaper article that he said triggered her statue of limitations as well as a subsequent wall street journal article that was published in two thousand august of two thousand and one which is essentially one month before  statute would have begun running since she filed in september of two thousand and six missouri law doesn't presume knowledge on the part of individuals but rather a standard of when the wrong is done but when the damage resulting therefrom is sustained and capable of ascertainment and the cases have have fleshed out what these phrases mean but it's a essentially a two part test that is to the law in missouri it's the supreme court case in which the issue was not whether or not there was knowledge about as best osis that existed in the world somewhere but rather what did mr elmore know from an objective standpoint it's not a subjective test it's an objective test focussed on what someone in his position should know and that's why in most instances it's a jury issue to be decided in not generally decided on the pleading or certainly not like this case where there's no notice given that a summary judgment standard essentially is being applied to evidence submitted by the case but they characterize the test as when the character of the condition and its cause first came together for the plaintiff and recently there was a case that i fortunately had the opportunity to argue in the western district court of appeals gyal versus flavor's involving a situation that that may have come to the court's attention through newspaper reports regarding butterfly over and its ability to cause lung disease among microwave popcorn workers and in giles he actually went to his doctors with a lung condition and raised the issue with his doctors do i have this condition because he worked in a flavoring plant that manufactured butter flavor and he was a welder on the equipment that actually made the butter flavor and so he raised the issue knowing that he had a lung disease knowing that that butter flavor cause lung disease do i have this his doctors after considering it said no we don't think you do he came back again and asked the question does in fact my lung disease have anything to do with my work several years later and again his doctors didn't think so even though they were pul what's that got to do with this case the giles case is important in that what the court recognized was that at least in terms of reasonableness of discovery one has to consider the state of the scientific knowledge and one article that was published which raised  possibility was not enough to trigger the statute of limitations on mr giles part there had to be at least some consideration of the context in which the information came forward and so like the star ledger report which he never saw mr  saw the report the star ledger report which raised the possibility that heart attack could be caused by by by ox not the condition that she had she had clotting of her artery which required stenting so the condition that was even identified in the article is different than what she was she experienced an initially in this case so the issue was it's at least relevant judge as to what the state of the medical knowledge is in deciding whether or not she had enough information that her statute from an objective standpoint should be triggered and so this idea that is put saks specifically rejects that test and says that the mere possibility is not enough it may be it may be an issue that could be raised in front of a jury and the jury could consider that along other things but the fact that somebody in the medical community has some knowledge is certainly not enough remember the doctors that she was seeing did not connect her heart condition with taking vioxx after her surgeries they still continued to prescribe it to her she had seen the articles involved and in this case as as i said the medical community was only beginning to piece together this  says the statue imitation begins to run when the evidence was such to place a reasonably prudent person on notice of a potentially actionable injury again it is focused on the facts and circumstance surrounding this person's recovery and rather it was reasonable or not for them to file when they did or whether in someone's judgment whether they should have filed earlier judge whipple bases that slowly he says on these two articles that were published in papers that she did not see and and can't be sustained based on the precedent that exists the only authority that he cites to support himself are his own two cases buttress and and also a case that we were involved in lou whelan and i'll tell you that in the well it's case we didn't appeal it to you because she admitted in her deposition she knew of her injury five years before the case so i don't know why he cited well and i think because he use being injected into the patient it was so commonly known that it was all in all medical textbooks at the time that she was diagnosed so it's not a case like the one we have here where you have one report of a potential other disease heart attack and stroke triggering her statue limitations when she didn't see it so i just don't see that what all the articles in the science refer to as a study yes they do so it's more than just one news article on study that was it paralleled done by providing work bigger is was the name of the study a kind of bigger study raises the possibility of whether or not biopsy was associated with heart attack and stroke she didn't have a heart attack or stroke all right well i understand she had to stents put in before she had a key day but it definitely did but her doctors didn't see any connection her doctors didn't didn't make that connection and continued to prescribe or this drug even though those conditions existed which ought to be relevant i would think in terms of a reasonable a standard as the courts indicate the paul case that i was going to tell you is that another the most recent i think it's in all seven  the statue of limitations begins to run when the evidence was sucks to place a reasonably prudent person on notice of a potentially actionable injury again and in this case i mean think of the context of that you're saying are you saying that the person's doctor has to make that conclusion before no not necessarily in some cases they the courts have found that to be significant but we're saying that it's at least relevant to the question of reasonableness if in fact her doctor couldn't make the connection i think and i would argue to a jury where i'd have the opportunity that it's unreasonable to place that burden on her now the those cases the missouri cases where that is a relevant inquiry like the probably in mill stead case where they were the architects did not know that they had placed the stakes in the wrong place but the trial court said that the plaintiff homeowner should have known that court said it's not relevant it's not reasonable to presume that she would know more than the experts in that case well i think that it's at least relevant judge on a on a question of fact like this is as to what the doctors believe in terms of reasonable is to place that burden on her it's certainly a complaint say about what the doctor told her what is our complaint say about that that she was not told anything about her her disease at that point in time being associated with vioxx because they didn't associate the two and in fact it wasn't a plane the complaint says the doctors told her that they did not associate the two no no that there was no such evidence one way or the other it's just relevant that they continued to prescribe buyouts in the face of these studies at the time there was not a communication while we need to stick with the complaint all right what you gonna complain that venue been talking about what the doctors told her and so forth but if that's not in the complaint well it is in the complaint that the doctors continue to prescribe box during this time period after she had the procedure so yes that's that's evidence that in fact the doctors didn't associate the biopsy as causing her south using the product will search it doesn't start to run well no i'm saying i'm saying it's at least relevant the doctor didn't associate the drug with her disease nor the doctor didn't take her off until in fact it was withdrawn from the market even the warning label to the doctor did not alert him to this problem and so it continued to be an issue for her and i think it's relevant when you think about when do you think the statue started to run then if she continued to take the drug even after the warning labels on you're saying the statute didn't even run then i think i think that the statute and what judge fallon down in the n b a all held was that when the drug was withdrawn from the market clearly the statute is triggered anything else is a question of fact you could say when the warning label came on it could be triggered but then she's within her statute limitations because the warning label comes on within the five years so that it's only these two things that are outside the record  outside her time with the judge this newspaper article which she never saw and also the the wall street journal article which is one month before her statute runs which she also never saw discussing a study wh specific problem i think that at least raises the factual issue but remember remember this and i'm running out of my time here really think it's relevant whether she saw the information yes i said as at a reasonable inquiry standard well i think that the  reasonable inquiry standard talks about an rejects that as its standard and states that as i did but your i understand your i don't understand the issue i think the issue is whether or not a person in her position her birth a person  position would have known about this issue and in missouri in missouri in independence missouri i mean in kansas city missouri where she was from without the internet how would she have known about what was published in a newark newspaper i don't understand the court's logic in that regard today maybe you could make that argument because everybody is on the internet everybody has access she did not at that time so how does she get knowledge and i at least it's a question of fact i believe and i think that the court decision to convert this this motion which we raise without notice to us deprive the court of having information about that issue or at least flushing that out so i we think that for that reason alone the court office on this court back as well as the fraudulent concealment articles arguments that which we made in our brief which i'll leave leave for for that method of conveying that information to you all right very well you may save thirty five seconds for a bottle and we'll hear from the court you just heard argument trying to give content to a one hundred year old statute that establishes capable of ascertainment as the legal standard for when missouri's statute of limitations begins to run but in this case no matter how you slice it we don't have to wonder whether the cause of theory that underlies appellants claims here were capable of ascertainment because indeed it is undisputed that they were in fact ascertain discussed contemplated in each forum or one reasonably would expect a subject such of this as this to have been entertained in the medical community appellants own complaint a paragraph twenty one discusses an article in the journal of the american medical association that in their words revealed the association between vioxx and the potential association with cardiovascular events so as of the it's not an issue of whether the medical community knows objective test it's not whether reasonable person would know it's an objectively defined test that asks whether or not that measures the question of whether or not a reasonably prudent person would be able to ascertain the potential cause of theory and courts defining maries missouri's standard of limitations law have asked what's the appropriate measure how do we how do we answer a question when it is objective lee defined as to whether or not something is objectively capable of ascertainment and our position here is and we'll all talk in a moment about what we think the minimal showing must be in order to establish that based on misery case law but given that the scientific community the medical community the news media including not just the articles that appellant's council referenced but i was the medical community even that certain didn't they say there was a possible association to finish out the question how how does that make it clear to a reasonable n it's not required under missouri's law that there be a scientific consensus that there be agreement in the scientific community or medical community that something is absolutely associated with another thing indeed if that were the standard we would sit here today in two thousand and eighteen without the statute of limitations having run as this cause a theory continues to be a matter of controversy and more continues to disagree with the parents cause of terri but that's not the question that we are charged with in determining whether or not the statute of limitations runs which put somebody on inquiry notice giving the men five years to bring a lawsuit it's undisputed here that more than five years before this lawsuit was brought in we had awareness in the medical community publication in the journal of the american medical association which is not the first report about this vigor study this is a randomized controlled study that talks about this association that was revealed in that study now as well how do we know it's not the first report  refers this article this jama publication refers to a publication in the new england journal of medicine which is the initial report of the bigger results from the early months of two thousand so this is now in two thousand and one august two thousand and one a different group of researchers is is is assessing the data that previously had been reported and as appellant puts it in her in her complaint it's their allegation is that this is what this is showing what merck had concealed that the relative risk of allegation here that this study this publication more than five years before she found her lawsuit is what revealed the association that now underlies her theory of the case i don't think it's reasonably disputed that there's awareness in the medical community this isn't a a blog post from some of these mothers basement this is a random comment on a message board this is the journal of the american medical association repeating a discussion that resigns not just in the medical community but well outside of it again the wall street journal the washington post the st louis dispatch the c b s is nationally syndicated early morning show are those in there are the washington post is in the record yes those are in the record i would direct the court to the opposition brief but it proper for the district court to consider that evidence on a motion to dismiss the suit your honor in this case it is if the court below had considered it for the truth of the matter is  sort of there in that might be an issue would have to discuss but as the court clarified when appellant brought a motion for reconsideration below the court was taking notice of the fact that they existed and for purposes of the discerning whether or not there was a notice not as to the  actual substance or whether they were correct or not so so that's not a matter of i think real controversy here well i think it is a matter of controversy they've argued that it was improper for the court to rely on things that were outside the complaint and they in the judge didn't say the washington post or the st louis post dispatch so i don't know if we can say the court did judicial notice of them at all anyway well i think you're right the court i think below as i understand the order below didn't cite every piece of evidence to establish that there was awareness not just the medical community but resoundingly well beyond it but that's part of the record and we cite to those as we did below that extensive record in our opposition brief of pages twelve to fourteen we provided a chart for the court that kind of ticks through all the places where there is awareness demonstrated what the court found below i'm sorry judge her didn't the giles case reject the theory that the case it fits with elmore they're both delayed diagnosis cases in other words the giles case as it fits with a long line of cases that simply say under missouri law you have to have been diagnosed with the disease that would then underlie your claim for the statute of showing that giles condition was capable of ascertainment so the question there was whether or not she had been informed of a diagnosis that's not an issue in this case so at the second thing i've said much as there it is true dicta that talks about how based on whatever facts are play there the scientific community was only beginning right only beginning to piece together a connection we know from mr mclean's brief you indicated that he was counsel for the opponent in that case their brief and i can provide the was also taken if you'd like indicate that in that case there was no publications that would indicate awareness of the medical community accounts would you agree that the relevant facts are at least in dispute now i would not agree with that the the facts that are material here for resolving this question are entirely undisputed it is under skewed that there is awareness in the medical community plain appellants one complaint paragraph twenty want talks about that it's undisputed that these articles in the news media excess both print media and television it's undisputed that actual plaintiff lawyers on behalf of actual individual claimants were already filing lawsuits not that there's actual limitations or that they were filing lawsuit all more than five years before this appellant brought hers this is not a case that requires the court to explore the boundaries or to define the outer limits of missouri's limitations law how did the other the fact of other lawsuits get into the record again that's something that was cited below and again in our opposition brief and i believe that's mentioned at the court billows order that there that other individuals that are already brought lawsuits more than five the the court of appeals could it's not a matter of dispute it's a matter of public record of the appellant here has argued that certain i think the appellant has incorrectly characterized the record here to be something about just one article from new jersey that's not a fair characterization i think this is again something that doesn't ask this court to define the outer limits of this law the court below indicated that it reached its determination with quote little difficulty and it didn't cite every last piece of the record in order to reach that determination because under any reasonable application of even objective lead to find a capable of ascertainment standard  theory was capable of ascertainment more than five years before she filed this lawsuit indeed it was ascertained not just in the medical community now we have we have contended that the rule that has been applied by courts apply missouri limitations law about what is minimally required under misery law is a demonstration but there is awareness in the medical community you have obviously argued that the awareness here goes well beyond that but  in my recollection of nine hundred eighty seven is that there was no internet now in that case the individual plaintive was diagnosed with  understand to involve inflammation of the central nervous system not and if you have to do a spider's and in that case the individual plaintiff knew that she had a diagnosis but she did not know the cause and in fact there's some indication that record that she had been misled in some way about what the cause was and the statute of limitations ran at the time of the diagnosis the court determined because the medical community had a where in us notwithstanding  lack of knowledge and that's because it's an objective test that's what palin exclude but this ought not be applied in a subjective way and the rule frankly that the appellant is i think advancing here is one that inevitably would careen missouri's law away from an objective standard and toward a subjective one that would ask this court to fact find and to account for opponents personal and subjective experience knowledge and understanding the courts that have to trust that have applied this question of how do you measure from an objective perspective whether something is capable of ascertainment have quite reasonably looked to the awareness of the medical community in cases involving complicated medical science and product liability matters or that's the form one would expect for a discussion to be taking place and again here if this goes well beyond that it got popular press attention and actual individual bring in actual lawsuits no mr mclean has talked about the miller case miller of the mo that is not a missouri court case it's a federal district court case from almost thirty years ago that case is problematic for at least two reasons first miller predicts and in fact pins its its ruling on its prediction that the eight hundred case the missouri appellate court case would not last  prediction has proven to be untrue and a home continues to be the case that courts look to all miller miller has not been adopted by any case any court asking this question under missouri law the second thing i would say about miller problem about whether the cause ation link is capable of ascertainment it's a question about whether or not the person was diagnosed like oh more like giles but in addition to that the customer case doesn't even apply missouri statute of limitations law the customer case is about the federal employer's liability act feeling which applies a non objective standard that's i think why courts apply missouri law and under strain to understand what how you can object to the measure what's capable of ascertainment and what's not have not relied on miller but instead have relied on a heard and the other cases that have adopted the standard i think there's been some with a condition which gave rise to a cause of action  this back injury after itis more than five years before she filed her suit and the condition between akron itis and the die had been known in the scientific community for decades so it's not our case and in fact giles rejects it as being controlling and says that's a much different situation than when you have the scientific community in it's a it's own case was only beginning to piece together a connection i think that's at least relevant in terms of what was reasonable for this woman and i think that we at least should have this decided as a factual issue not on a motion to dismiss thank you very well thank you to both counsel for your arguments the case is submitted and the court file an opinion in d course you may be excuse please call the next case for argument