morning your honors may please the court merck vendor appearing on behalf of plaintiff appellant pamela sutherland this is an appeal from a summary judgment granted to defendant dow in a breast implant case and statute of limitation grounds this case ms ezra it filed it in pro per appeal on the causation case and the summary judgment for her against her was reversed i know it's not presidential running thing else but i want you to be aware of space is that case that in your brief no it was decided it was a pro per one page to page form and you have something before us other than the statue of limitations problem they raised a causation question by either process or apple e brief which i addressed in my reply brief we have that in a forest you do have that be forced and as to that i'll rely on my brief i was just pointing out the potentially related case in this case my client filed her lawsuit in january of one nine hundred ninety three which was one month after the implants were removed because it was determined that they were the source of the auto immune injuries that she had been sustaining in sort of the cascading effect from the time of installation until the time of removal she waited one month after removal nineteen years later down filed its motion for summary judgment after the michigan discovery law has changed and perhaps there are what the michigan discovery rule and statute of limitations had changed at the time this case was filed i'm not sure i understand why that's going to rules that relevant i mean it seems like a hard case no matter what because in eighty eight after the implants and she has a lot of problems she's a healthy person before that she has a lot of problems she's even hospitalized and the discovery even under this government will test that that test doesn't mean you you get to wait until someone says you know this product caused this injury actually under virginia law does but i apologize for interrupting that but it was a form of inquiry notice and you know you and you can actually the jujitsu rely on the virginia law below and choice of law was that in the district court the plaintiffs trial attorney simply said michigan has nothing to do with it but ok did it say for genuine is what happened was and was the sentence michigan law has nothing to do with it supported with any argumentation it has to it why you would say michigan has nothing to do with this it was directed toward statue of limitations bear in mind this was fo cases in which the dow had filed for or different summary judgment motions which rest made it like a thousand pages and so what her trial counsel dead was put together  a variety of terse responses which were not as focused frankly as as they could and should have been the district court said there is a potential choice of law problem whether it's michigan virginia or north carolina sched benefited the three potential for or forums law could be applied and sad it doesn't matter because there was there was discovered prior to the applicable period under any of those the virginia statute specifically says eight point zero one dash two four nine sub s in paddocks liability actions against parties other than the health care providers for injury to the person resulting from arising as a result of the implantation of any prosthetic device for breast augmentation or reconstruction when the fact of the injury and its cause will connection to the implantation is first community to the person by a physician to address you've got those three you've got michigan you've got the virginia one that you discussed and then if you're in north carolina you've got the diagnosis room like right so so what so probably that leads us back to the record as to the court's decision below indicates that the statement  deposition that i went because i was sick with these implants qualifies as discovery what point does the record tell us the medical record tell us about when implants were causing her problems there is nothing in the summary judgment on the medical records themselves in her deposition and miss otherland says on several occasions bearing in mind this is like twenty years after the fact if to look at the medical records for that i'm not sure on dates but i encourage you to look at the medical records will she suggest that that be done but the records themselves were not part of the summary judgment litigation what she testified to was hundred eighty eight shortly after the implantations she began having some of the difficulties which multiplied and became different symptoms in ninety one in the ninety two and initially they told her that it was believed to be a result of the anesthesia which was applied for the implantation process she goes to her doctor and they say give it six mont if that's the problem it should clear up she then goes back and says i'm still having these symptoms they say well sometimes it can take as much as a year she further testifies that during this time they didn't know what it was this is in the early stages of breast implant litigation in the scientific recognition of silicone toxicity in the like she testifies in a fact that she didn't know the doctors didn't know they recognize the symptoms but not the causation finally in  december they are removed because by that time it is determined that that is the source we let me ask you is that we need to determine this we only need to determine what the statute of limitations applies that is you to either we would opt for a uniform rule in bankruptcy uniform federal rule or we would opt for choice of law the statue of limitations for example north carolina if that has the most contacts and so on in that all we have to decide here that's the starting step i believe because that tells you whether there's a discovery rule of the district court just decided at michigan law five right that if the if the different court is wrong about that we would write an opinion saying you're wrong about that we think that x y or z statue of patients would be the governing law and we send it back to you for application in that in that what we would do here that certainly one you know likely and probable outcome i suggest alternatively what you could do is say because everything has been presented on the basis of her deposition you could say the statute which applies is that of north carolina which has a discovery rule and we find that the facts are such that reasonable jurors can reach out the said can i just wish north carolina discovery rule work the north carolina discovery for the for fraud count nine of the complaint alleges fraud the north carolina statute which is one dash five two subsection nine says for relief on the ground of fraud or mistake the cause of action show map be deemed to have a prude until the discovery by the aggrieved party of the facts constituting the fraud or mistake the what how about what's this every rule for problem one of the product liability the general rule absent fraud if you look at the other counts that the for liability the product liability subsection sixteen show because it's in bankruptcy a uniform national stature imitation rule should be applied i'm not aware of that in the prob you know where any such cases know what i've seen is this it here's the background of this particular case to give you some idea of the complexities of the cases initially filed in the federal district of north carolina at the time there's multi just reply to gay sion pending in alabama so it's shifted from north carolina to alabama which has nothing to do with it then dow files for bankruptcy in michigan its home state and because of the bankruptcy stay everything's put on hold there is then the plan for the facility and after that people whose claims are not resolved through the facility now have the opportunity to pursue individual actions so  this thing derive the current action is in effect i would guess a diversity action in michigan which arose from the bankruptcy but may not be governed by the rules that would apply if it were being pursued as a contested claim in bankruptcy if i can simply follow up on the earlier question of judge sutton on whether a discovery rule would help the cases say at least under north carolina and michigan in find anything in virginia that is subject to the traditional summary judgment standard of viewing the facts in the light most favorable to the plaintiff can reasonable jurors disagree in this case what they really have pointed at is an hospitalization that question was never asked in fact she says you know i just want to real quickly go back to the forfeiture point so the statement is not one of these plaintiffs has any connection nexus the state of michigan yet defends try to use michigan law primarily that's it no argument that it's north carolina law an argument that it's for genuine no argument about nuances of which type of michigan law and i mean we have been reading from one case but i mean we have lots of cases saying this very point conclusory allegations support of it i mean if you're judge hood you're saying this is a bait and switch i mean you didn't tell me these other theories now i'm getting reversed for not being all knowing and all seeing as to these other arguments well i think that your your point would have more force if the court had not decided on her opinion but the point is she does say there are three alternative laws that could be applied and she said that they all  that i would put it a little more benign only which is that since the issue was just sat and decided by the court it is proper for this courtroom review that it's a fair point i think rubber goldstein on behalf of the litigation facility and with me is here can you respond to this last point which seems like a good one you know that you might say this was forfeited but district courts as same with us if we decide he's making in the point i'm following up on is who cares let's imagine a situation where no one says anything about choice of law and yet the district court judge decides to address  of law says there are three options says here's why michigan law applies can't you then challenge the decision the michigan law applies as opposed to north carolina for junior i suppose you can even though you  haven't addressed it as that party who had you know who ok but then getting back to what happened with judge what i think we do know maybe maybe that if we can address it so the idea is not forfeited what's the argument about why michigan law still should apply even if you look at all the choice of law that we have available here in north carolina virginia and michigan it's dull you have the same result some courts of apply a uniform national ruins and bankruptcy right i'm not aware and i think there's a conflict as to what type which laws to apply but in this situation because of what the facts we have it doesn't matter which law you you're going to go into an analysis of the choice of law questions as to statute of limitations and if i can briefly go just analyze that aspect of it in other words at me ask you this if she is wrong about michigan law being the well that applies to this and some other north carolina is the state should we send it back to or and i ask you decided under that because there may be you know she hasn't looked into that and we need a record about what i think it is she did look in it she said that there were potentially three other states that were available that she wanted to meet we decided here now rather than remand that question because it's another surgery manik if she did she was aware of those three other states wrong about michigan washington we remained me getting back all i'm assuming now in for the question that she's wrong about well then we're statute that was just read first of all what was cited was a statute that was in acted after her cause of action had already explained that time barred under the virginia statute which account time of the harmless cause which is the date of the which would have been the date of the in implantation that statute was two years and that would have expired in one thousand nine hundred ninety the virginia statute that he's  relying on was an act in one thousand nine hundred two and in the cases that we cited in our brief the the fact that this statue was an accident does not revive cases that are otherwise time barred and that's a thing he did not present to the court but that's  carolina north carolina mining has a diagnosis through for diseases why wouldn't he but that was i believe that that was not a political the time of this we're back to the discovery of should have or ought to have known and we didn't have her testimony which i can read i think the court's aware of what are testing what i understood your answer to the judge grants are you saying the diagnosis rule came in later also that's my understanding yes your honor but it was the discovery rule before that as a discovery rule which was cited the discovery rules that was and declared by opposing counsel and i can read that is what was in effect in the discovery rule  occurs so we're back to her testimony in that meeting that statutory language or you're back to the medical records what what did your examination of the medical records show regarding when she would have discovered that it says didn't know i had well i've done i was sick because of those implants in there several times in the deposition that she evidently says but i don't i didn't know that it was the implants that actually cause my illness go to my medical records so you're the defendant did you look at her medical medical records were not part of this record your honor but she did not as i level tell you they they were probably available but they were abusing it and there was it wasn't just in the fall i mean she was claiming that she had all these problems right afterwards and that's when she and then she says well the question was posed well why were you hospitalized in september of one nine hundred eighty eight and her response was because of those implants and then they have her information at that time is that the end of the show that she took in an operation is what caused her to have all the symptoms do you take the position that that's a discovery that i did and she even said it one other point which was pointed out by posing counsel that she she was a she as to when she finally did learn of the cause in lots of one nine hundred eighty eight quote i didn't know if the doctor told me that the condition was from the implants at the time but she knew that she had she had these symptoms but and she was fairly certain that there was a cause associated in her mind with the implants at that time if we have a discovery rule here then we have a factual issue i don't believe there's a factual issue in light of her custom when she discovered it we can just abstract that out of the sky somewhere no i'm pointing to her deposition we have to base it will when she discovered it is a conclusion that we have to have some facts about because that depends on what was going on in her mind in our brains right and we don't know that until we see what all the facts are isn't that true but she testified as to the facts your honor based on the deposition testimony that was the subject of the motion for summary judgment that's the whole that was her testimony but there are other facts of addition to which she said she wouldn't hear what happened and so on but fact and right i mean there are other facts to be brought to bear on this question aren't there you know not based on that testimony and based at the various points she said she had these she would have these symptoms following the surgery and then she would continue to have symptoms after that and then i don't know that there that would under a discovery standard that would meet the discovery standard of if we're go go that route that she ought to have known or reasonably should have known of a possible cause of action with what she claims she was otherwise healthy before all this and then the implantation and this and none of that is what you're making arguments none of that was cited by counsel in the in the district court in response to the motion what we have is what her testimony is that she was hospitalized and she was in fact because of those implants and there was no qualification in her testimony at that point so what's what's your best argument for why michigan law does apply just what's the best the argument is that where you can look at the four form state or the state's interests is what we're looking at is essentially it and what is the state's interests here this is the form state this is the state where the case is pending that would be the argument that i would suggest that michigan law would apply otherwise you're going to get into an interest and a really useful precedent that either turns on you know a big bankruptcy so we want to have a uniform system where everyone's that was not the same rules or is there something there there was no nothing clear  your honor that we're not asking for this district court decision i'm just saying in general no argument of os there was nothing that we were able to find your honor or i could find  then if there are any other questions on that point but i don't believe it's even under the discovery rule and i think the court had that information in front of it at the time but was based on the deposition testimony and other records including a notice of basic point is on any of the rules for a crew of a cause of action with discovery or without that existed in the late eighty's if someone is in their deposition says i was hospitalized because of these implants that's enough on or any test that's your basic point that's my central point yes your honor and then i just to briefly address the alternative argument we again all rely on the the cases i cited in there was or decision which was referenced by posing counsel was reversed but it's not subject to a motion for on bond harrying the motion has been granted yet but the cases that we have cited in our brief are still the had before and maybe maybe there's a citation that'll allow it but the idea that when a party testifies in a deposition so here the tough testimony is i was hospitalized because of the implants that you're allowed to say oh you know that's that's not what she thought at the time that that's what she's saying later and what she's saying later is that's just characterizing the complaint in th just i've just never seen someone be able to do to do that with deposition testimony by a party a couple things a jury with i would have thought the testimonies about the event at the time it's not that doesn't count because i gave the testimony a lot later you know what i'm saying is this that her testimony if you look at it carefully says nothing about her knowledge in one thousand nine hundred eighty eight which is the critical question we're looking for which she says is in one thousand eighty eight allies because of implants and that doesn't necessarily mean that i know but so your base your essential point is in terms of knowledge the knowledge take off point is the date of the deposition right that's does not what you're saying now the knowledge takeoff deposition the knowledge takeoff position is in one nine hundred eighty eight what she says twenty years later reflects what she knows at that time and out of what she knows exactly the point i'm making ok so your point is that if she testifies twenty years later all that tells you is knowledge twenty years later not what she's reflecting back on and i'm asking for i've just never seen the argument it seems very clever and maybe right but i've just never seen it is i mean  sentence it's a very big deal if you say deposition testimony in terms of knowledge the take off point is the date of the deposition as opposed to the time period the deponent is reflecting on but i think all the discovery rule her deposition if you're looking for that page four of my brief quotes her they didn't know what was wrong with me when i first got sick nobody could tell me what was wrong at that time i couldn't find out what was wrong with me and i was scared i do not know what caused it i'm not a doctor but you know your your position in is this this is a factual question because i'm struggling with whether a comment like that can carry the weight that bit been placed on it which is your argument in light of the entire deposition that statement is not in the admission that she knew of silicone fifty when she went in in one thousand nine hundred exactly to two different aspects of it i guess they're related they didn't know the diagnosis for sure but i was thinking it was pretty clear she knew the implants were causing problems now they they first said that was a reaction to the end of the ship on me she says i was hospitalized because of the employer in mind dow says twenty five years later it has no causal connection to it and yet you expect the lay person to know oh no but that's that is taking too would a diagnosis type of discovery rule i'm assuming as it turns out those rules were not in place at the time right so i'm that's why i'm back at the other discovery rules well again i think that there is case law that says if the witness makes contradictory statements and i don't concede the three hundred three but if that's the case it's still for the jury to decide which of those versions is to be believed that's fair enough thank you for point ok thanks to both of you for your oral arguments and your helpful brace we appreciate it the case will be submitted in the court mccall the next case or set of cases