that there was least in part of the area a layer of the asphalt was missing the main issue at trial and also on appeal was whether or not this defect defect of condition is considered to be trivial or actionable and i would just like to focus in particular on one piece of testimony that this district completely passed over in her opinion but i think it's quite significant the government's  expert witness engineer karl abraham was being questioned by united states attorney and he was in big question in particular about a photograph that he had taken that was marked as plaintiff's exhibit twelve and it's reproduced at page five eighty the appendix question about this and he was questioned for a couple of couple of pages of testimony and he's looking at observing the photograph and he says the issue is the size defect and the depression here that required a complete cut out and repair of the area that it did indicate that this was a hazard in the asphalt parking lot now later when the judge was obviously surprised and asked him about it and then he said backtrack is what i was talking about a completely different photograph i actually don't think it was credible in the context because you have to roll the photograph was was was on a monitor he was looking at it and this question he's gone on for some district court in that it clear error in not essentially at that point throwing out everything he said and saying this is a de facto i mean we usually the district court is saying here is a fact finder and say what are you asking us to do because of this this testimony i think it was in light of this because i think this was a this was a momentary candor on the part of the witness but he must puzzle the district what didn't even mention it in her opinion and i think it was important and from the attorneys the tried it i think it was important i think that for that reason i think it was the only other issue i'd like to touch on is the is the question of constructive notice whether or not the  and it was determined at one point two to apply new asphalt back in two thousand and nine into the entire parking lot because of its condition and the plans that are reproduced in the records indicate that the entire parking lot just parking lot through supposed to be patched and sealed the holes are supposed to be covered in new asphalt applied throughout and meanwhile fast forward a couple years later it had never been done there was some and mr bliss you also pointed out that when you're looking at this from a from an angle it really pops out of you so we think this is something that should have been seen by the by the v a particularly since the v a is police officer parked his car that it's the kind of argument that you have already made to the district court and with some force no doubt but we dealing here as judge livingston suggested earlier with a bench trial is this is a very tough judgment to try to overcome i mean this is the district judge sitting as the trier of fact and so you have to submit have to you have to persuade us that trying i'm trying to be to be fair and i guess i'm not sold first of all that what i considered and in the trial lawyers considered to be a pretty astounding admission was it was plus passed over entirely and secondly went well but to go in the past or the fact that the judge didn't that very to everett didn't refer to every peculiar that you find important and they may in fact be important doesn't mean that the district judge didn't consider me the district judge making findings of fact in a case like this like it or not is basing to the system making findings of fact on the basis of the full record before her so she's not required to refer to every single item of your case and discredited issue you know that i think that this is one that she should have and that's why i'm bringing it to the court's attention and also the fact that when she when she characterized the police's testimony she left out really was a pretty important part of his testimony which you said if you look at it from an angle and in clear daylight remember this was a dusk accident and even though there was artificial  reserve two minutes factual findings there are two points we like to address this morning first of all as cancer council noted they rely almost exclusively in their reply on dr abrahams confused me during that testimony dot abraham was clearly confused and he thought the picture he was referring to was a picture he used in a seminar that he teaches to his students that the district court rightly pointed out the confusion and immediately question abraham about his confusion and dr abraham rightly noted that he was confused and mistaken and through that testimony and if the court looked at the totality of dr abraham and his testimony is clear that there was that the district court rightly doesn't have to address every single point that is raised at trial the district court prepared a thorough decision where she address firstly all the relevant points at trial and with respect to dr abraham's testimony the judge immediately discounted his testimony at trial and addressed it on the record now finally with respect to their expert testimony that you could observe this defect from the far left or from the far right at it angle with respect to notice that doesn't that doesn't fray constructive notice on behalf of the v a hospital for the v a hospital to go to such extremes regularly with the engineer walked and so on you know isn't that a plausible argument while at the same time there are experts also testified that the depression in the roadway was hard to see as you're walking toward it as any other protests from would have done or if you're looking straight down at it that it was hard to observe and this testimony about a tow truck there was no towed frappe at the v a hospital parking lot  rightly noted it was a gradual incline over two and a half inch area of adopt of at most seven a seven inch which is at best a trivial the fact so there was no abrupt change in the road that could have caused spot there was there was plenty of testimony by officer rodriguez who had worked at the hospital for at least thirteen years at that point in time where he walked out area on an almost daily basis and there were no complaints no prior incidents or complaints of anyone trip and fall in that area he walked in that area himself and never observed anything either sam faiers the chief engineer of the v a hospital also inspected the area and reviewed the record did not notice any prior incidents either you had theories pointed out that the v a had planned to resurface the whole area and fact is kind of difficult to tell from the record what condition it was in at the time that the accident occurred but what should we take from the fact that there were plans poor conditions a parking lot is not enough they need to establish which they feel to do that they have v a had knows of a particular condition in the area where this rolling stones fell and so there was no such notice of that type of defect in that area specific area where