room at the time he was a retired physician was for certified in internal medicine and oncology double or it's important both of those are important in this fight internal medicine methody had close understanding of what's involved in primary care and and the role of the primary care physician and i'm having  teacher he teaches it as a member the fact of the of the university of california san francisco and he is a traitor for internists and a hospital in san francisco and i think both of these are important qualifications that indicate how close he is the medicine and contribute to his experience there and contributes to his expertise and qualifications i think the fact that he's a teacher he exploiting the discovery deposition of the current fear that occurred in this case and was that is the sole reason that summary judgment was issued in this case it's clear that no one really explained th inside out to see if they could stand him when he's had instead you can tell from the deposition eschewed what he was doing was treating the attorney that was asking the questions like he was one of the students either in the medical school or a young doctor at the hospital it's like the expert put his arm around him and tried to explain you know what is involved here as though he were in a clinical setting it's it's impossible to predict the result of a medical test was going in the future or something that may have should have occurred in the past there's no one there's no expert anywhere there's no doctor or scientist sick predict what that medical  be the reason is the circumstances that exist at the time of the test actually determine the outcome of the test for example your own area you know hormones have a great impact on the blood flow in the ma and there are a number of things that can influence the a p s a test the important thing is though that it will be consistent for a person you know regardless of age and if there is some with the players experts said was that you know that the test score started out at two point one two point two when it jumped in to three point one based on his age and early fifty's they said at that point then another time this is where the prostate yes he was he was given two different types of exams that occurred before two thousand and three that should have been when p s a tests were given he was he was given a  was was was felt by the doctor and if that's all you know if you would you would want to have both of those occur and it didn't occur and then there's another time step two thousand and two concluded from i guess his either reading or reading the summary of the discovery deposition and and that was the real judge's basis for granted summary judgment in favor of the  you know at a very minor level that might not result in even appearing in subsequent scans of other organs or bones or nose or whatever and so when what if first  urs you know is it particularly relevant you know that's a that's a question of science and you know that detail like that isn't you know is the proper subject matter of  we had that sort of expert in this case it does it when it was when the expert opinion is the be supported by facts that doesn't mean that there needs to be some scientific analysis or you can watch the standard of care that pertains to situations for mature mature males are receiving ordinary primary care from their physicians and that the sophistication of  front of the trial judge and to say that he has to have this expert piece of the figure these things out this is not the state of the law is and it should not be it would look a ridiculous burton our in depth understanding of science and the way cancer metastasizes is certainly not required and it's not required in each answer case or  know i have specialty in this area in this case cancer in this case in our specialists had also expertise and primary kerry was double board certified he has to say i've looked at the facts which occurred in this case and i've studied those in levels that that that was the cause of the injury to the to the patient and that if there had been and as my opinion the reason we've made it so yes and that is consistent with the science with the practice back that was the point i was wanting to reserve for the end of my argument in chief which is i'm sorry it's you know that's fine which is that you know this is an extraordinarily important case and  prostate implications when they become mature males than others and if you know if we say that cost p s a testing is a part of the stair chair and it's unreliable and it doesn't mean anything you know and somebody with to ever take that seriously live with damage i do tremendous damage you know to a great amount of the material male population and those that  ability to successfully treat prostate cancer and to improve though the life of the patient and because there wasn't routine prostate testing in this case  you know that that wasn't what occurred here and it's on that basis that the expert issued his opinion and we believe that time right that's correct plaintiff's testimony of proximate cause and found that was lacking in this particular case namely like ag lera white box that they did not have a factual predicate for some of their conclusions and they were reaching a connection with their testimony point of states one thing i want to point out player states that without support of page eight of his brief that the court ignored the fact that mr mourner was generally cancer free at the beginning it was medical treatment by the defendants that simply isn't accurate dr newman testified in his deposition of page ninety two that mr border most likely than not had this cancer in the mid one nine hundred ninety s ninety eight or before sometimes he indicates one nine hundred ninety five this is a very intimate form of cancer that can sit there for a degree of medical certainty as to women past is a curve but let me say that it was more likely to occur here after he suggested at one point in time that he thought it was more likely after two thousand but that doesn't get him to his in point because he has to establish that it would have passed a size try here to its diagnosis he said i don't know if it metastasized before two thousand or not i don't know when it metastasized so if you don't have evidence regarding metastas been well he says after two thousand is not going to be enough here because the standard of care courtly by doctor said case and dr newman is you're supposed to be doing this follow up testing in march of two thousand and one so if we do the testing in march two thousand and generally cancer free at the beginning of his medical treatment by the defendant that is an accurate according to dr newman ste breach of the standard of care and issue in this case is the purported failure to order a p s a test within one to hear from mr warner's march twenty three two thousand p s a test which was three point one and that's the basis of newman's testimony dr zuhdi cases you see the jump from two to three point one that's the red flag that your honor referred to earlier on that should have prompted test within a year and dr newman testified the standard of care would not require dr kramer to refer going up so at this point in time sometime in two thousand and one it's going to go over the four point zero mark but we explored the basis for this this is nothing more than a graphic it school student could prepare this is not based on any medical science any certainty and i asked him about this crap i said well you know it's this graph isn't it true this crash in the sector and he's indicated yes just graph assumes that there is a constant rate of growth of this cancer than it's conjecture so in other  words he also said this is exactly the paragraph that you read or graphing right that you would expect to see particularly when i have the rapid increase and i know when it's six and i know  goes from two point two to three point one i can graph that because i've got a definitive endpoint and yes there is conjecture involved but he said that's the kind of ri i would expect well that's the kind of what indicated that is conjecture and i asked him i said well if we do this follow up test isn't it isn't it possible it could be below three point one so yes it could people of three point one i said isn't it true that people who have high grade disease high cancer could have very low p s a for yes that's true isn't it true that people who can have high p s a actually have no cancer yes that's true in essence his testimony that this got to four point zero in two our evaluation that it metastasized down to two thousand and then us the question what would happen if it had gone up before and it had been tested in two thousand and one the answer is he would be referred to or year round and question was what's your opinion about with this would have increased the chance for survival increased his chances for a favorable outcome increase his chances for a longer life and the expert testifies sure early diagnosis is always examination we demonstrate there's not a factual predicate for that namely i crossed him and i say really are you telling me he testified a reasonable degree of medical certainty when metastases heard he tells me no one can tell you that but then he says but i think it's far more likely that it occurred after such and such a time because and then it's weight is it i don't think it's weighing you think less and less you can testify to a reasonable degree of medical certain improve the treatment but there wasn't a lessening of the effectiveness of the treatment and your honor we waited out suitors better than later but testimony that we have we've reviewed in agel there was actually the testimony in that case that you know what in their expert sooner is better than if we get over the gap of the four point zero even if he somehow gets past that that's not speculation and we're going to have a four point zero in two thousand and one which dr steady pace testified there are other experts and doctors said he pays for the record as a family practice  he does this kind of testing on a daily basis he says there's no way you can predict what it's going to be in a year there's no way you can come up with that i don't know anybody who could testify that that dr doom is actually on policies he stopped practicing primary we don't have that in this case there's been no testimony from a urologist who said you know what if you had referred him to me with a four point zero i would have done a biopsy and i would have followed if that would have resulted in the surgery so that's the second hurdle on proximate association with items like maybe a tank away injury or cows or something like that but if you love disputing the term statement that in two thousand and two your client  had blood drawn from patient didn't check yet so i don't know if that's true or not you know i don't believe that if there is truth i don't think it's significant it could potentially relate to issues involving standard of care whether you should have done that at that point in time but a blood draw for c b c because you've got an infection that doesn't check to p s a i don't know that she did that or not i can't answer that question then as i understand it's not in the record deal but  thousand and two that was normal and that comes in for dr newman's testimony the final hurdle with respect to proximate cause is this issue of metastasis and it's a critical issue because of survivability according to  newman if you have mets you are a stage four is not a cure for cancer there is no opinion to a reasonable degree of medical certainty as to limit tests as occurred it could have been before two thousand just as likely as happened that there is no showing that  treatment with the same prognosis as the court indicated in agel or a series of better is not sufficient to establish proximate  propositions which they are presented to you in this case the interest them talk of have anything to do it all with a factual predicate or an expert opinion but they have to do with both of them have to do with is having an expert in the field of medicine that's essential to explain what occurred with the patient and why a different course of cream of follow the standard of care was in better in that case has nothing to do with his some underlying factual predicates it has to do with the qualifications of the expert well they were and why there is no discussion there are no reference at all to any underlying facts other than the occasion the expert and it just so happens that in both of those cases there was a big hole and in the sort of experts that were provided in both of those cases you know that the physicians that were there were not experts in the appropriate you know them both and so you know really i don't really know what would happen in that field as i'm not a specialist field and you need to get a point and so i think they do not stand for the propositions of those cases in a sense in two faces are cited in our brief off said listen there are qualified experts in these cases and so their decision will be affirmed in that this is and should not have been touched by the trial court because  but not a p s a ordered in two thousand and two on pages three eighty eight and four fifty five the record actually that my time has expired but let me just finish one thought if i  educate the warrior that was examining him about what was involved in this and this graph that he put together wasn't intended for a publication in a medical journal nor for presentation in a textbook or it and if it doesn't follow a certain pattern there's an explanation for it you know as i indicated there's these external things that can influence so you ask questions to find out what has happened to the patient and you retest and you know you of the p s a test which has been a remarkable improvement in history a remarkable improvement in treatment of mature males and it would be a shame to have this case cited on the basis that it is you know not a reliable test and not dependable enough to create proximate cause in two thousand to one in