before it and therefore under rule fifty six it committed reversible error and we're here to ask this court to burst the district words in true summary judgment in favor of the i have four primary warrants i'd like to touch on briefly this mor and the st is that the plaintiff's evidence as to medical causation in this case is valid as a matter of north carolina law in this diversity case it's interesting to the court this is a nursing home wrongful death case and there's essentially two elements standard of care and causation there's no issue as to the st the standard of care the plaintiff has to experts as the standard of care but if it has not challenge those experts the issue is causation we have a causation expert that is dr carol rupe the defendant has not challenged dr groups qualifications and she had this standard for expert testimony on here be a matter of state law or federal law we believe it should be a matter of state lawyer honor because it's a diversity case following north carolina state law as to medical negligence and the district court treated it as a matter of state law and that yes sure so it is a state law of the state law your honor is that we have to show evidence as to causation on a more likely than not probability standard and there are multiple scase is that that is cited in the record to speak to that standard more likely than not the franklin case and the barbie case that are cited by the defendant the gains case as well as the  certainty when we sell how well i think st of all it's a semantics and nomenclature issue some of the cases talk about reason we have set of medical certainty but there are cases and i just mentioned them they talk about it's probability and when you dig deeper into this issue you look at the day versus bryant case that i will discuss here we're talking about has to be more likely than not probable probability is more likely than not this because i just seen then that this was a reasonable degree of  probability these cases talk about probability is more likely than not that's where they're more likely than not talks about probable is something that's more likely that happens or not enough and that's the standard in the day versus bryant case what happened there that happened at trial versus during the discovery deposition but the plaintiff's causation expert testified and was cross examined by defense counsel and the defense counsel said your testimony is all speculation is in the expert said yes and the defense counsel said wait we got to say speculation speculation a judge when i'm sure you're also aware is invalid and we decided that so they said you said sec thank you ation that's invalid as a matter of law we win and what the court said and davis is right his hold on we can't look at a portion of the testimony we have to look at the entire record they said that their quote can't pull out portions of the of the record and  i believe that the district court applied state law i don't know that there is a federal law of medical negligence your honor it's a diversity case so it comes to us because of diversity of citizenship and it is a state law case where all  parties have cited state law all the defendant is also cited state law all of the seminal decisions talking about the causation issue here come from the north carolina state courts and there hasn't been any sputum about that among the parties so returning to day versus bryant report was an avid ends and the court said you had to look at the totality of the testimony had to look at the entire house their report say more like and they did the that she's speculating which is what the expert in day said that he was doing but then he was asked questions at length and the court talked about that the language they talked about was that they testif page seventy three dollars of the appendix dr ruth testifies more likely than not the negligence of the defendant in giving miss reagan's the wrong fluids was the cause of her wrongful death interestingly and this is moving on in the her report was in evidence and it acknowledges that she testified consistently with that report but unlike dave versus bryant the district court just without explanation focused on the question and of a report by she gives her causation testimony of her or her opinion in that case and she says within a reasonable degree of medical certainty that she also uses the term more likely than not thirty three dollars or so she does use that term more likely than not in a report she uses that term in the deposition and the district court knowledge she testified consistently but then just seems to disregard that evidence as the court is well aware this is the summary judgment stage we need to look at the evidence in the light most favorable to the nonmoving party here being the plaintiff the district court acknowledged that evidence was before it but just seemed to disregard it based upon the soundbite on page one away and another thing to consider your honour's is that our evidence doesn't have to be perfect as long as we have a forecast of that evidence to where we've have shown a possibility that is controlled by a federal rule and in this instance those on the state in terms of likelihood it talks about a reasonable degree of medical certainty that it is more likely that the defend was no and guess what whoever was representing whether it was you who never didn't come back at any time and say that they just closed the deposition and waited for some period of time until  think that under those circumstances it's very hard to say a trial court has abused its discretion where that testimony is there in a deposition and a cancel representing audit time made no effort i don't know what could have been said probably good if it was a confusion but if they are in the record i'll try to respond to all those points your honor st of all i pay seventy three of the appendix there was a question question you can't say to a reasonable degree of medical certainty what she has created can you and dr ruth answer is more likely than not with not having any evidence that her fluids are being thickened it would be a thin liquid would be the more likely than not candidate for aspirating so if she was asked that question multiple times and the st time she even answer it more likely not which we believe under both state and federal law so we have to that is only if we agree with you that it is more likely than not but you worry that she does not say yes to a reasonable degree of medical certainty she later answers no to that one question your honor and even they actually did say it was to a reasonable degree of medical certainty she says more likely than not that's upon this of the evidence more light on the not lower standard and to a reasonable degree of medical certainty your honor i'm not aware our research is not disclosed in the defendant has not argued that there's a different standard under federal law for a reasonable degree of medical certainty as opposed to more likely than not and i would submit that if you look carefully at the case that's why i point you to fisher and to o cult and he just seems to me based on common sense that a reasonable degree of medical certainty is what makes the person an expert if the standard is more likely than not i am an expert in everything  we believe that your honor that that goes the qualification has to be submitted by a qualified medical expert and again there's no there's no challenge a doctor rips qualification here so she can say no we're not talking about a qualifications except she's  the barbie case the talk about probability and more likely than not also the gains case in the day versus right case and lucky for you two to two cases i'm telling you about before circuit cases fitzgerald oh yeah right on point i'm talking about when you're talking about pinion of a medical expert as being evidence and i'm not here to argue with the court i think that those terms do get conflated sometimes in the case law and i believe it can be confusing that when all the parties here to remember bottom but just to finish up right here you asked why don't we come back and ask questions during the deposition well that's a good question roger and that goes to the context of this being a discovery deposition discovery deposition of course is backwards being that it starts with cross examination by the posing counsel but essentially once he introduce her report that's her direct examination her testimony is in that report she affirms it and as the district were found and as we  cited on page seventy three dollars of you she testified consistently with that report that you will report there does seem to be a conflict because the report well and its closing paragraph where she lays out her opinion says it is my opinion  reasonable degree of medical certainty but then when she testifies at least in response to that one question she says her opinion is not to read with respect to that one question her opinion is not to a reasonable degree of medical certainty so what are we to do or the district court to do with that conflict gave it to the jury your honor i would go today versus bryant which which is we had a similar sound bite in that case where the expert testified in direct that he was confident his opinion he testif in cross examination that he's only doing speculation which there's also a case of all the speculation is no good but later the court looked at his entire testimony it also looked at his report which was in evidence like the report is here and found that when you look at all the evidence that the credibility inconsistent answers by an expert are not fatal to their testimony it's credibility because the jury that's right there in dave's right i'd like to reserve the rest of my time for rebuttal thank you very much police court good morning my name is michael philips i represent the aptly in this matter the defendant's motion for summary judgment challenge the sufficiency of the plaintiff's evidence regarding the issue of medical causation in lower federal state law i believe is correct and in doing that plaintiff's causation testimony by dr root was both subjective and she lacked any evidentiary support and her testimony was due to be struck the district court to do to be a far all likely the not a reasonable degree of medical so well for argument's sake there seem to be cases that say you don't have to use magic words that's cited in the district court's opinion jordan case which is a maryland district case magic words of testimony taken as a whole are what counts you don't have to use the word magic roland i believe that it is it says plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was  factor in bringing about the result of the view that's in the larger context of having that opinion offered as a reasonable degree of medical cert but fitzgerald stands for the concept for the holding that there has to be a reasonable basis for the expert to make the conclusion is a reasonable basis for the opinion but it but the word is an attack is magic here i don't disagree with that i think what's important in this case and if we look at the cases cited by the plaintiff the day case and a couple of the others speak to the idea that you have to look to the deposition the testimony as a whole you can't just right ok and looking at it as a whole it it's my understanding that your argument is that somehow her deposition testimony was in conflict with her expert report and with her or with her affidavit how can you point to me the conflict if you are led to say that i learned a little lack of preparing for this and what we have here is a fix it which is probably not the way pronounce that but that is an assertion without proof it is because dr ruth says ok but where is that i thought that year throughout the course of your briefing that you found and the district court found some something at odds between her deposition testimony and her file an affidavit that they were inconsistent how are they inconsistent i'm not sure i understand it start here and again this is looking at the deposition as a whole page thirty four of her deposition ok what is that and then j i all right go ahead ok page thirty i work for deposition she says she could have aspirated only watch them liquids or snacks the allegation is thin liquids that's the only way the defendant liable will pay thirty without having any evidence that or flute fluids were being taken more likely than not it was on and with it right well that i understand her opinion throughout to be on the causation issue that more likely than not and she also says too sometimes to a reasonable degree of medical certainty that ms reagan's aspirated on thin legs the thing that she responded no to that she couldn't say with to within a reasonable degree of medical certainty was she could not say what it was she couldn't say if it was some sort of food or what it was nobody could is absolutely a rat so how is that inconsistent is that a problem kept that in this in these terms on page thirty six dollars of her deposition which with not having any evidence that her fluids were being figured in my opinion is more likely than not it would be thin lipped and full disclosure experts are allowed to draw inferences on low lack of so if the standard of care would be that you document you're doing it it's not there they can draw the inference that the standard of care was breached and then to a reasonable medical certainty going were likely than not that's what caused the outcome but what's important is in this case there is evidence that she chose to disregard and then we're left with nothing more then it is so because i say it on page thirty six she had to admit when confronted with the actual evidence there were months we summaries for july and august of two thousand and fourteen reflecting that they were using thick and liquid she admitted that is true she was injured friday don't page forty two at sixteen through twenty one that there were in fact nurses notes documenting that the facility was using thickened liquids not thin when asked to point to what are you basing your opinion on that this was then liquids she couldn't cite anything other then it's my opinion what may appear where there was it's not charted properly they were given medicine is it correct that the shark they gave her the correct they did not charted every day right were they required to charge every day what they got her nurses documenting on a monthly basis a number of things medications treatments you need so you hold it against the expert that she didn't have documentation to support her opinion when the reason she doesn't have documentation is to support her opinion is because your client did not maintain that documentation is that right that is not right at all my had no basis to offer her opinion that the facility was using them like it's on page forty two she admitted that ms regan's was in fact receiving plain liquids and she doesn't know what caused her to aspir now the fitzgerald cases alluded to earlier is she does she said it was caused by then liquids or food that is correct all right so she did have an opinion as well because this is one of the other men did she make any distinction in this record as to which one of maybe she could not say she did not do it and she didn't mention anything about the status of this patient led her to one versus she could not say your honor other than to say it is simply my opinion more likely than not she asked graded on that liquid did she mention in fact that she was dementia patient that led her to leave that was not you know your eye was not to record the budget what i think you're asking this reagan's was in an state of hammers dementia patients right she developed dysphasia which meant that she could not properly swallow when you put something in her mouth and it's likely to go into her lung right this is the reason they put her on puree page two she does count her turn her opinion in terms of to a reasonable degree of medical certainty however after being confronted with the evidence and admitting that she did not know what  fluid and she said the most likely candidate would be liquids and then you said but you can't say that to a reasonable degree medical center in she said no the question was about what it precisely was that she aspirated on that is correct in her report so she did not say i can't stand by that she did and where they see i ask hurricane you stand by your report where it says it is your opinion within a reasonable  it's not at the actual deposition later on appeal so i j a site would be more helpful listening to you might be right about what you're saying but unfortunately i can't find it well i believe it kind of cut the chase she does say page two top report it is my opinion within a reasonable degree of medical certainty that the care providers at the bride center the standard of care given to mr daly during her stay at the facility and that this breach led to her death september th two thousand and fourteen her breach is ministration of thin liquids when asked can you offer that opinion to a reasonable degree of medical certainty basically changed her opinion and paid our param paragraphs nine and what is our standard of review that well this was not raised own appeal so i don't think it's to be considered  and liquid is further my opinion that this aspiration lead to aspiration pneumonia was reagan's death these opinions are within a reasonable degree of medical causation probability she could not say that in her deposition in her report fourteen resulting in her death in her deposition she admitted that that last sentence written in a report and apologies just backgrounds getting the standard of care to reason with research be confused with this aspect her page seventy to seventy one she admitted that that last sentence more likely than not the breach calls the aspiration was not correct and she could not stand by it may ca she doesn't say she can't stand by it but when she says it's not correct because she is nice now and she does say it's whatever she was taking a man that calls her vast right right evidence here is well it's your client the definitely not it's like she is taking an well or should now they documented that it's in the record there's evidence to support what she was receiving there was further evidence that dr ruth ignored and that is opaque fifty nine of her deposition last sixteen through twenty she was asked what a chest x ray indicating the lungs were free of actors disease means she testified that indicate there is no aspiration pneumonia there was a chest x ray taken the morning of the discharge of the emergency room and the evening that she would arrive at the emergency room both showed that her lungs were free of disease she admitted that would indicate no aspiration among again evidence that she is choosing to ignore because it does not support her opinion and her opinion i want to pick up on the point you discuss judge that heard that dr ruth had no point disavowed her opinion provided previously in the deposition or in a report there was a long question asked her of page one of seven of the  x to which she said it's what it's whatever she was taking in that answer was then interrupted with a new question food or fluid question mark and then a statement you've already said it twice to which she says true true but the most likely candidate will be the liquids and that comes right before the medical certainty question so she never disavowed her testimony nothing like that ever happened and can't defense counsel never asked her to do that i didn't hear it but i think it's a new argument here that that somehow dr group did not have a proper basis to give these and and that's one of the reasons early in the argument i pointed out the foundational basis of her opinions has never been challenged i think until now at oral argument what the district court ruled is that she was not sufficiently competent in her opinions and that goes back to a semantics issue between reason would be a medical certainty that you were talking about judge when and the more likely than not standard th it solid for what it was it liquid that sort of thing so that's how you get into this question of whether or not the facts support it because that opinion of medical certainty must be grounded in facts that will support it state i don't think it matters in terms of the use of those two terms to a reasonable degree of medical certainty which makes them a medical doctor i can state more likely than not i mean based upon the facts which sound to me i probably could state up the on the bench more likely than not she died from it looks like to me but that's not to a reasonable degree of medical certainty your honor i have i respectfully disagree that there is a material difference between those two terms in the case law and i believe we have the concession the well let me let me make sure i don't know if we're disagreeing i'm saying they all go together as one sentence and you and you take in one part of the sentence sort of starts out you as a medical expert state to a reasonable degree of medical certainty that all likely than not this was the cause of the end what you want to do is just say all of that expert because there's an expert ipso facto can then say more likely than not this cause and that's a fish and i don't think that's correct but certainly we will do the research to make sure you're not bound by what i'm saying if you are now you it will be looked at more carefully but i do believe you have to have both of those things connected because this is a medical expert and not just a mechanic that you call up on the stand someone else so someone like me i understand that your honor and out point the court or day versus bryant which i do believe tries to reconcile these issues in these issues of as a defendant conceded that a day was  went to court today versus bryant because that's the only case cited by either of the parties were anything like what happened here happened in that case and it was reconciled to where the entire record had to be looked at and any conflicts between the state and any magic word issues are a factor and you can't be a period but rebuttal is to rebut so you did rebut that the school because maybe she would she when asked a question about the possibility of mencia patients question didn't your experts say it was either liquid or food yes you're right and do you when if is food we don't hear are alright then what is the tipping point to for her to say it will more likely liquids that's what i thought maybe i'm wrong i thought she was she answered questions is less likely because i did mention but now you said she didn't i'm going to check the record because i don't have the your expert brings it down aspiration their cause of death you've got all the connectors but she comes up with she's somewhat ek will pose from a clinical stamp walk on the expert was remarkably candid i thought and she said it's food or liquid but she said it is more likely liquid so what i'm saying in the old theory the case what made her tip that way versus the other way that thought the records it she said because in dementia patient is less likely that food would be the source of the aspiration but i'm wrong about that i suppose because you said not your honor but i'm saying but if i'm wrong about that what is it in the record that tips i don't care  reasonable medical certainty likelihood that's the point is what tempted in this record here are i'm just being clear that i don't believe it was the singular issue for you mention its ratings was great on what she had alzheimer's dementia a number of serious medical issues  honor if i can just finish answering that question she was asked and she was remarkably candid she was asked a number of times if she knows if the issue is in my six foot two she probably could know that if she looked at my medical records of she looked at photographs of the of some things like that