companies were here from vermont thank you your honor and may please the court south carolina law imposes a duty to warn and manufacturers that have either actual or constructive knowledge of the danger either one is sufficient to trigger a duty to warn mr guitarist offered evidence of both in opposing his motion of the three  the duty to warn claim and thus granting summary judgment on the record was an error that mr and mrs garrett asked this court to correct the standard to set out in livingston versus nowhere a duty to warn is triggered any time a manufacturer has either actual or constructive knowledge of a potential danger and as this court is certainly aware of the standards applied when considering a motion for summary judgment offered actual knowledge three m was also the corporate representative l bender and he answers the question about actual knowledge that the district court was supposed to consider what he says in june of two thousand and ten in responding to a marketing document summarized in a number of different studies he says actually in the standard that the court was supposed to apply actually there is evidence that forced air warming used increases the risk of deep duty to warm claim that counsel is that alone and nothing to say there is it's a very short sentence actually there is evidence that it increases the risk when the burden of  it has to show that there is reason to believe the product is likely to be dangerous is that is that enough yes to your honor under the summary judgment standard that is sufficient that alone and in fact if the facts are undisputed what it what would mr garrett was entitled to at the summary judgment stage was every single inference in his favor as this court is aware and the district court here unfortunately disregarded this key piece of evidence where the director of clinical affairs acknowledges the very evidence that was presented to the district court and he concludes in june of two thousand and ten months prior to mr garcia surgery that actually there is evidence that forced air war or mean use increases the risk of infection the exact kind of problem the mr garratt offered here or suffered here but that wasn't the only piece of evidence that mr garrus offered that evidence to actual knowledge of this particular defect in november of two thousand and six and disappears at app nine hundred and eighty six mr bender and sends out a letter to a number of different customers addressing concerns about contamination inside the blower and the hose of the bear hug or warming systems and talks about the potential risk for contamination the reason that this was important was that any time there's bacteria inside an operating room that increases the risk of infection and mr cicare has previously addressed a number of the different studies and our briefing addresses the studies that show that when there is a reservoir of bacteria in an operating room it increases the risk of a deep joint infection that's particularly true in the case of an orthopedic surgery which is the only thing that we're talking about with respect to this m d l all of these patients are at a much higher risk because they need a smaller dose of bacteria to cause these potentially life threatening infections what we know from a number of the different studies that have been addressed earlier this morning ogu zinda reuss is how we quantify what that kind of risk is when there's a certain number of increased back tyria or particles that's the measure of interest by the way as three am considered the potential risk that their product posed to these patients they too have throughout the course of this not just this litigation but many facts in this product what they looked for was core particles increased in the sterile field and i think that that goes to some questions that your honor judge kelly has asked is it matter if it's just over the sterile field is that sufficient or does it need to be at the surgical wound well the outcome that everybody has measured at three am has considered throughout the course of evaluating its device and the very limited number of studies by the way is whether or not there is an increase external shows that when the bear hunger is turned on to warm there's an increased number of particles over the sterile field what goes in to roost tell us is what does that matter how many over the sterile field make a difference and they talk about essentially if there are in an additional ten particulates over the sterile field that's going to double the risk of infection that any particular patient is exposed to but again turning the court's attention back to the evidence that mr garrus offered in support of his failure to the pros and cons of using convective that's forced air warming blowing warm air on a patient during surgery versus before surgery and importantly this evidence shows that in two thousand and five mr van durant and the company considered that intra operative warming is contra indicated and they provide two examples in that particular pro and con chart one is a or to cross clamp a type of heart surgery the nd one is orthopedic cases and so as as the company is a value in the pros and cons of a warming a patient prior to the surgery starting prior to the incision starting one pro of warming it before the incision is made is that it can't be you can warm patient before that incision is made he goes on to note that pre war mean a patient again warming the patient before that incision is made in the body it reduces the potential for no warming but in those very same documents they have the the opposite sort of why that may that be true or why they the risk may not be so high and so even a time even at the point of summary judgment is there and nuff when it's three unbalancing and looking at the different pros and cons as you describe them is that enough to say it's likely that they knew that it was likely to be dangerous can a jury conclude th absolutely your honor a jury could conclude that and there's a couple of different pieces of evidence i would point to st of all one of three m's competitors that stryker corporation has another forced air warming device product it warms patients in much the same way by blowing air over the patient the striker company puts a warning on their forced air warming product that says beware of airborne contamination and the fact that a competitor is warning about the exact risk that we're talking about in this litigation the exact risk that mr garrison identified and exactly what the district court was supposed to be considering when it was evaluating the duty to warn claim is absolutely relevant evidence that is sufficient to get to a jury even when there's going to be a balancing about what was known and what should have been done the jury is supposed to make that decision not the district court what is sufficient from a legal perspective to survive the summary judgment motion on the duty to warn is for mr garrett to offer testimony or evidence about actual knowledge or constructive the district court properly notes in her in its finding or in its order that mr kerry's did in fact offer evidence on both counts but instead the district court erroneous lee suggests that these needed to be either medical or scientific findings in order to attach a duty to warn that that finds no support in the case law in south carolina the fact that this company knew about what the potential risk was contamination on that device but this company took that product moved it into a more dangerous environment of use the operating room and removed the warning this isn't a obvious risk that everybody would know about perhaps perhaps now a rise and for decades this is not new science and so when mr garrus offered evidence of actual knowledge and when mr everett mr garrus offered evidence of constructive knowledge in the form of the number of studies you cite in our papers at the summary judgment stage on the duty to warrant this court had a duty to view that evidence in the light most favorable mr garrus and allow a deny the motion for summary judgment and let a jury make a decision about a failure to  case we need to reach any of the issues you've raised in this case yes dear on earth you would for a number of reasons st of all mr garrett he had a number of experts that were not excluded for example  david who is the expert that mr garrett offered on issues of alternative design including warning and safer alternatives he has not been touched he has not been excluded in any way by the just records reconsideration of  similarly michael bach was an expert disclosed by playing just at the general causation stage he did a number of tests that show that the bear hug or itself generates and emits particles and that is true whether the blanket is attached to the bear hug or or whether there is no blanket attached to it he also remains completely untouched by the courts order with respect to reconsideration and what we would request is that this court remand for trial and a duty to warn claim and mr garrett would at that point make bring motions to amend his expert reports to include reference to all of the new studies that have come out that link bear hug or to know the full meal hospital acquired infections and airborne transmission of pathogens  reserve the remainder of your time  because the district court hadn't yet excluded the causation experts if the medical causation experts are excluded it moots this case what mr zimmerman just talked about dr drew the is not a medical doctor he's an engineer arise at the time the device was shipped manufactured that's the opinion of south carolina supreme court in their controlling and in on this the said post manufacture evidence is irrelevant a large part of the evidence th later at dence is irrelevant here the evidence there's a chart at the beginning of the plainest reply brief here that lists all the studies they relied on into the studies seven of those eight studies came too late they came after this was gone the only study they cite that was at the relevant time was mr all bricks st one and that was his article study and in that particle study he said the present study did not evaluate the link between forced air warming and surgical site tested without the blanket attached and then it tested with the blanket attached and when the blanket was attached to a phone well when the warmers were set to blow through the perforated blankets no growth occurred in other words there is no bacteria w blankets right there so that's what was known as at ninety seven that's appendix h or seventy five the other two studies that existed as a two thousand and nine and this frame that were relevant are there is a study by  he did a computational fluid dynamics study for the national institutes of health and he found no significant influence on there and then there was them ready study that we talked about it in the last article that affirmative concluded that forster warming didn't pose a risk and that plaintiffs have mishandled here this relates to the the documents mr van buren that were brought up here there are a couple of points about those twenty is is the part where they post summary judgment here they never mention these documents from mr vendor on the documents or elsewhere in the huge of course but they didn't mention them here the other so there waived be unfair to reverse the district court on evidence that wasn't brought in front of or even if they're considered there are relevant judge kelly the st one is a comment in the margin or assigned mr bender and b in the scientists that he is there is a there are marketing who are going to say there's no evidence and he being a scientist said well there is evidence he referred to the doctor mars that does study momar head responded to the fact that some people had speculated that there may be a link between forster warming validate validates bready it alls conclusion the forced error warming technology does not increase the risk of surgical wound infection so that's what the evidence said counsel mentioned the five  k application for the bear hug or here they mention the same thing in their brief they portray it is as three am admitting that there is a risk actually it does exactly the opposite so in the five  and councilmen some cope in the argument this morning it's nowhere in the record and this shows just how important it is for the the district court to be careful because again this isn't the record viruses are an order of magnitude smaller than bacteria and there are one hundred times smaller particles that matter here which is why people talk about things going viral and not bacterial you know this this is outside the record but you can go to the mayo clinic you can go anywhere that wants and there legal standard the legal standard requires here that they show that there is a lot likely to be dangerous it's a forsee ability standard it's not a speculative standard to requires there to be an actual showing in going back to the relevant time two thousand and nine i've just covered the key evidence the rest of it's treated in our proof it doesn't exist that the district court was correct to grant summary just not that council doesn't discus what happened at the trial and and i won't either less your honour's know one thing though that doesn't really jump out of the record it's important if plaintiffs had the two different theories of the dirty machine theory and their disruption theory on raised the point that you believe that some of the argument here today was not were guarding certain documents was not presented to the district court it doesn't matter that the analysis was so brief by the district court in this case in other words we're talking about in a lot more detail than was presented in that order all i don't think so your honor you know your honors review this de novo on the summary judgment and so you can go and look at the same record that the district  doesn't matter then if if if in fact the district court had had those documents highlighted to it well i think waiver is pretty clear here your honor the minus can't rely on appeal if things an ever  present in the district or a summary judgment that that's not what i understood you to be saying is is there any reason to be concerned that the district court didn't spend a lot of time explaining this on that end and as to the maybe i'm getting your no no that's that's exactly right and i think i misunderstood your point on the record evidence here saying that was not put into the record those documents were not put into this record his that you're saying yeah i'm saying that they're in th records of the case as a whole they show up there we cite them in the penates but when it came time to actually fight about summary judgment on duty to warn the plaintiffs never said the judge erickson your honor the reason that we survived this and there  other evidence and it make a difference you know i've explained your honor why it doesn't make a difference anyway it goes exactly this point it it's one thing to spot speculative risks it's another thing to say it's likely to be dangerous law draws a really clear are yes thank you your honors to address the questions specifically about waiver i would point the court to a apt ninety six the summary judgment powerpoint that was offered by plaintiffs  received do in fact contain all of these documents in particular the l v endure and actually there is evidence that forced or warming use increases the risk so it's simply not true to say the plaintiffs have waived this argument or did not present to the district court who is well aware of these documents the decision in five star in south carolina talks about how manufacturers cannot turn a blind eye to the obvious and what counsel for three m is not not able to do is to point to any different studies that have shown that there is not a risk in in use of this particular product a turn the court's attention back again to apple one thousand one hundred and seventy seven which is an e mail from two thousand and twelve again from the corporate representative alvin durant and he talks about how and he says this specifically i'll quote it it dr augustine and others made it clear to me when i started here in one thousand nine hundred and ninety four that some clinicians had concerns about particulates as causes of wound infection as a result of those conversations i submitted invention disclosures or error free warming devices he submitted patent applications in  four in two thousand and two and then again in two thousand and eleven when he was part of three m this was because the company understood and appreciated that particulates were understood to be the cause of wound infection and three m is unable as it sits here today and present argument to this honorable court to explain that this particular product is in fact safe they can't point the court to any studies that the company has done to rule out this particular risk and in fact what the evidence shows is that the internal company employees recognized the risk and that their competitors recognized the risk and when mr van duren and other people inside the company evaluated both the risk utility of this particular product and five it's disingenuous for counsel to argue and say that all of these documents that we've cited to our after the time that the bear hug or was sent to the hospital in two thousand and nine or after the time of mr garrett surgery in two thousand and ten that's not what the facts show when the court will definitely see this as a or examines the record closely but this particular document shows that there were reasonable alternatives that were known to the company that were safe that were effective and the company went through and did a cost benefit analysis and because of that under the law going on thank you mr zimmerman this case likewise will be submitted we appreciate your your arguments and stand by i think your votes on the next case as well