though for purposes of summary judgment course we must believe that his allegations were true defended miller also questioned mr milam and honesty by pointing to a class action that he was involved in relative to the brain cancer that he had suffered from years earlier indicating that his honesty was in question for making these allegations when in fact miller made it as deposition that he had no factual basis for making that statement the district court judge said i honestly wasn't an issue but honesty is discussed in dr grow these decisions and the fact is if milliman is viewed as being dishonest importantly miller and nygren had other conversations with dr grody and they both raised the issue of what would happen depending upon dr grotius decision and the message they sent dr growth was very simple if you find him unfit he will be able to retire or go on disability if you find him fit then he'll be terminated so dr grody was set up from the beginning to feel that he might decision as to fitness or unfitness district court judge says yes there was nothing factually untrue about that mike my response is why did they tell dr robi that how does that relate to the decision did he had to make only influence him to go in one direction district court judge also said that telling this to dr grody showed that they were indifferent to whether or not he was found fit or unfit  and we would contend that that is the court impermissibly drawing an inference in favor the defense rather than the inference that we're asking for here the judge went further and said that because the defendant again that's a district court drawing inferences that the district court wanted to draw rather than those favorable to mr milliman they also had an impact the defendants on supplemental report and the supplemental report it showed that the person who called the complain call the police made the complaint was satisfied after the police arrived and realized nothing was going on on toward grody did not have that because it was not given to him by the defendants so he indicated that it was bad judgment militants part to be there and specifically references the reaction of the husband as m was sitting at a kitchen table studying for real estate exam with one of his students who resided there defendant miller prepared a memoir and although he denied that he gave this mammal  while of course milliman was telling dr grody as he testified at his deposition that he worked undercover for a series of years with the f b i and that there in fact was an investigation dr grody specifically in his in his opinion that is opinions might change if he had more information about the f b i or more information about what happened at the prate residence specifically the issues that he had been misled o is our contention that there's a jury question that has to be decided by a jury as to whether or not the defendant succeeded in manipulating dr grody in his findings dr grody indicated although this finding was not supported by any of the other psychological testing testing but brody made a fatal admission it is deposition he indicated first that in fact this find this feeling of being persecuted or being paranoid that that could come either because that's his mental state that's how he is a longstanding situation or it could be his state right now with this testing having taken place weeks after he was placed on administrative leave and was clearly aware that they were greasing the skids to have him terminated when dr grody was asked at his deposition what you're saying is whether or not it's his state how he feels that day or a trade a longstanding thing that's something you can't really determine based on the testing and growth he answered correct now let's remember that this is the same back to growing that examined millman for fitness for duty in two thousand and three when he returned from his straight treatments for brain cancer and he was found fit as dr grody admitted and as dr dawkins well talked about in a moment to also examined his test indicated the testing was almost identical from two thousand and three and two thousand eleven yet there was a different result and there are different result because of the difference in put on administrative leave knows he's going through this fitness for testing duty to determine whether or not he's going to be terminated or do i go and say this is a longstanding trait since there's no other evidence in this at the psych testing that indicates that he was paranoid or any kind of a problem and in fact no issue that he experienced at work that indicate there were problems along those lines you know he received an evaluation after he was out administr leave that covered the prior year it was a meet standards invested evaluation it was many complementary statements made in it and the evidence shows that even the defendant themselves testified that they saw no reason when he worked up to the time he gave that fateful deposition that he had any psychological problems of his any anything even to be looked at dr dawkins was retained by deputy milliman to examine the testing that had been done several years earlier her conclusions were that the psych testing nothing in the psych testing justified she wouldn't give an opinion on fitness for duty she wouldn't judge all she could do is say this is what the testing showed back when it was done she did her work years  later she did not do independent testing because his mental state at that point really wasn't relevant it was at the time he was terminated she did not make a judgement because she did not feel it was appropriate for someone who did not examine him at the time  you know and that she was universally strong on the whole way the testing did not justify his being unfit so it had to be these other things as extraneous matters and that's why it's a jury question judge it's  a question the jury has to look at clearly there was an attempt to influence the outcome of this witness or do testing the question and for the jury did they succeed and i think there's plenty enough evidence here to show that they did the fact that he references dr grody specifically references the prate incident and the lack of an f please the court counsel want to start out by addressing some of the things that counsel put forward that are incorrect there were no discussions with dr robi before this us there were discussions with dr reddy by sure nygren and commander miller after the assessment but those were in addition to other assessments strike that there was where in addition to other conversations the doctor go ahead with also the plants wife and plaintiff friend deputy both these conversations are called collateral sources that psych psychologist that with the truth of any of the allegations came forward would not change what he saw he said infect and they just report quoted that new or different information that may come out in the future would not undo the problems that are super present dr kobi spent a full day with mehlman and found that he suffered from various mental health issues based on the totality of everything he put together a fifteen page report that was important to share nagging and the other defendants what's important to note is that after the health issues that impact his ability to perform his job also does not she also does not the pine on the planet fitness at this time even though she had the benefit of reviewing dr grotius notes his testing results the collateral information which she confirms was appropriate and in addition she performed  tests on the plaintiff yet for some reason she did not score those tests and again at the end of the day she cannot provide an opinion that the plaintiff is fit which is very telling because again even today we are still faced with only one psychologist as a pine about plans fitness and that is so why use it on a reasonable to say ok we've got a constitutionally protected speech arguably that prompts those terminations to review  and the jury might reasonably find the that it was the protected speech then that led to the decision to terminate in this case we have dr findings the plaintiff and fed that breaks the chain of causation between the alleged unconstitutional speech and so the issue then turns on the independence of cronies opinion correct yes it turns on whether dr gray's opinion was a proper opinion of whether she based on the plaintiff's accusations and therefore she concurred that a mental health assessment was appropriate for the plaintiff in this case and there's also no evidence that any deputy was treated any differently than plaintiff was there's no evidence of any other dep being treated doctor opinion was a separate basis that justify terminations that broke any chain of causation between any alleged constitutional speech qualified immunity would apply in suppose suppose though you accept the plaintiff's case right that's what you have to do to decide qualified immunity in the what you've got here is you know essence of pretext tool psychological exam even under the plaintiff's version of the facts the law is not clearly established i would think that's pretty clearly established what judge i think it's more difficult than that because again plaintiffs theory that he somehow influenced dr him to rely on that at that time because he was not there is no conflicting evidence again that was the only report of any even if niagara and himself had influenced that in order to suppress the speech no because doesn't add anything to the case that is if you have played if you can show his version of the facts that violates clearly established constitutional law and i understand you're saying he doesn't have the evidence to support that theory i understand bad but you are arguing for a version of constitutional law that would be very troubling to stretch so again our main arguments the planet does not have the facts to support because  break in causation the qualified immunity again is based predominately on the brake and causation and the one last point plaintiff also argues that there's no contradictory evidence or contradict the expert dr dawkins however this case went to summary judgment prior to defend its disclosure of any expert so any comment that there's no dawkins is disingenuous because at the time of summary judgment we have not had an opportunity again we believe this case is based on plaintiff's rank speculation about what would have happened without point to any specific facts to support that you very quickly and i pile gys have i misspoke about whether the communication between grody and the defendants were before the assessment they were before his report was written clearly because he discusses that in his report no consul references niagra it's reasonable to session we must admit that for purposes of summary judgment plaintiff's testimony was accurate about the corruption if nygren knows that the testimony at that deposition was true how is that a reasonable decision that he goes with dr brody if he knows that he has attempted to and apparently succeeded in influencing the decision on the f b i the trace it wouldn't change his decision well he made that statement right after he made the decision right after he made the statement that some of his opinions could change if he had more information so we've got to apparently contradictory statements back to back in his report i think a jury has to look at that and make that decision by counsel said they grow he was not misled grody was misled his reference to no defense expert it wasn't that they were not given the opportunity they could have identified a psychologist as an expert to respond to dr dawkins they chose not to i think that's because they couldn't find one that would look at the psychological testing and conclude he was unfit the question of qualified immunity in my mind is settled by the crista fact case which reversed a grant of summary judgment and very very similar fact pattern that we find here in milliman argument is stronger than was the plaintiffs in that case and i've also cited cases and i read the quote where defendant fabricates information and falsely testifies quote that is not the type of conduct which qualified immunity flies and i would indicate that here where they have deliberately manipulated the reveal or the doctor is going to do the testing and there's evidence from which you can infer it impacted on his decision but that cannot be an independent basis for the finding here we've asked that all and in addition there are factual attack on dr dawkins in that race was all in violation of fifty six point one citing to the rock record rather than having it part of their fifty six point one statements and i think that's reason enough to reverse or at least two i don't understand that are even i thought they cited dr dawkins testimony they cited to the correct yes i'll just say i usually like to see citations to the actual evidence well and i understand it your honor and but what you do is just cite your fifty six point one statement and from that you can go to the record if you want to look at the specific testimony but if it's not in the fifty six point one statement then i never had a chance to respond to it in the district court when they filed their statement of facts i get a chance to respond to it and rebut certain