may please the court this is an appeal from a lower court decision whereby the trial court dismissed our medical malpractise action based on the six one nine motion finding that  contention that not i mean some of course but i think that when you look at the case law on there is a lot of vision throughout the case off the know the elements from an out the two main issues that i'd like to any consistencies an expert testimony opinion testimony is the same thing as factual discrepancies or testimony is an abuse of discretion or the crux of this case and the kind of hell i'm glad you put it in those terms because here's here's how i see the crux of the case let's say you had continued with your two thousand and one laws in which it was ready for get you think under rule two thirteen f three you could've changed horses at that point or would that rule have prevented at a different opinions from coming out and to support your and i think your type that different theories of your cause of action but at that point could you brought in trial of the two thousand and one lawsuit you could have brought in testimony of dr sam no i'm not suggesting that is a separate entire expert but there is no case th because he seemed to be tied up on you know facts first opinion and i understand that there are times when opinions are really opinions and other times when facts when opinions are close to facts because that's the way you have that said i would literal sense that you're trying to distinguish from opinion absolutely better in medical malpractise cases better try absolutely i've tried many out this message that's exactly my point here what didn't change this case was the malpractise case a lawyer prepares against all of the defendants and has this case ready and when he takes a voluntary that suits especially in prior years and in answer to justice garcia's question as who could you have got these new opinions in evidence in the first case if the judge gave you the opportunity in the first case to streamline your case and you had a new witness and you presented the new with this in gave the other side the after to need to take their deposition and be a price of those opinions in a plane another expert then all that could have been something that can be rectified when you change opinions in the standard is the interest of justice between the parties and to some extent that's the very same standard that seems to apply it usually stop inconsistent testimony in two thirteen disclosures one of the issues was when the plaintiff developed choir practice and all the other one is one was the last date on which she could have had surgery to avoid permanent neurological stern and instead presented witnesses to testify that the collar on a syndrome didn't develop until after she left the hospital when she was already in the nurse let me ask you this question what what was what was the crux of the allegation in the two thousand the lawsuit against dr lith is that his corporation given his testimony that he performed a full exam on the fourteenth of august and found nothing indicate that she had suffered any kind that she developed it all she was in the hospital in the surgery head to reform paul she was in the hospital they see her in the two hundred two thousand seven face and everything is shifted all of that expert testimony has shifted from him in the hospital to the that what we're dealing with here opinions by these individuals and therefore judicial stoppel shouldn't be used to throw out a case where it's simply the opinions that have changed and giving a distinguished that opinion testimony in serious criminal versus this opinion testimony in this case how do we do that how do we say this is different opinion testimony and that opinion testimon the several years later you have a reexamination of the claimant and an expert may find based on the facts if they change a different opinion letter and we talk about failure to diagnose or is out is that what we're talking about exist and the thing is changed as to when vet failure to diagnose occurred isn't that we're talking about in other words in the first case they said that the failure to diagnose occurred in the in presenting the witnesses she can't disown the testimony of her own expert witnesses and medical malpractise case their words are her words so it's it's  thirteen years now british another party so that's the link with she dishes stoppel this is her statement under two thirteen this is what the my theory of a says this is what you have it so what you're saying is that in the medical malpractise  case somebody can't change their theories is that what you're telling them i'm saying that they can't change their theories when they've already made a recovery and on the basis that one set of facts it's obvious that the recovery was and fair opportunity to litigate her claim against dr gupta's in the two thousand and one day she chose not to hudson is pretty good for us it's even better here because this is better than normal let's face because have everything about it is much more unique than other cases in fact a medical bill can't go forward without at least some indication it would be or issue but the bottom line is no matter no stipulation no after david no submission to the court no evidentiary hearing has ever determined the basis of let me let me ask you this question regarding what would proceed if we sent it back out for a trial on this and do you think the jury would it because i still woke a lot of this two thousand one lawsuit would come in and i think it became some of the state experts absolute  think the jury would perceive a lawsuit of this type that the plaintiff is now claiming that the injury really happened later than then she first claimed  and your experts say it occurred it was so that and the they work up their case they get their experts based on what the medical records show at the hospital city now in the new case you're saying that this failure to diagnose occurred in the nursing home see and it's almost a very similar to having waken to cause of action at a new place so so