may please the court my name is jay breakstone i represent the plaintiffs appellants in this and deal proceeding i'd like to address with the court what is i believe the pivotal question in the decisions below which is whether or not the at missions where the party admissions are sufficient to get to a jury on the question of general causation without being the next to expert testimony district court below said that no that's not the case because these weren't really admissions this was a medical device case and the admissions of general causation required expert testimony to explain them to the jury so what the district court did is it way i thought the district judge thought that if you killed the admission or what you were calling an admission it was too ambiguous to supporting jury finding of causation favorable to plaintiffs now if you'd had an expert that might have got you over the line but without an expert the statement just couldn't bear the weight of the finding in your favor why is that error well because an analysis of those admissions showed just the opposite but they're not the same as an expert opinion and mission which is elaborate and takes into account the scientific facts these were these were statements some of them are have to be read by implication that they were made and nobody knows what what these people were thinking at the time they made them or why they made them and you know what the circumstances were well i know that's what it appears in defendant's brief and that's what the district court said but that's not the case and i have no expert opinion on the part of those of those admissions those admissions do not report to be expert opinions the key factor your honor and this is from the time that's the general causation issue now we turn to the experts and the experts say as follows this is from the record they're not my experts next year's me these are admissions from the record your honor they are party admissions they would otherwise be as we all know since evidence in law school they are admissible against the party to prove any fact here are the admissions maybe they may be admissible but are they sufficient and that's the kind i will get to that but first i want to take a look at the admissions cos i think they really control how we look at this and i'll just mention just just some of those admissions first we have the admission of d cole and jock doc that your caller says quote of course is words of course property inserted properly properly inserted all u s can migrate by itself project manager and i'll read this quote completely quote in some cases the perforation occurs late and not associated with insertion procedure harkening back to the decision below that is precisely the general causation question and i'll pick a third one your honor truck will she's the defendant's global product expert quote migration into the abdomen parents that equally spontaneous perforation unrelated to insertion and of parents that ago can occur now those three admissions are rather straightforward and they don't require a doctor or a medical expert for a jury to understand that because what they say is that this membrane a device when it's inserted can end up somewhere else that is complex as the admission is let me ask you about the well first of all the complexity is not so much in you know can the device migrate outside the uterus that's one way of looking at it but the other thing is the question of whether there's an impact with the with a chemical that's released by marina whether the marina sharp enough to to to to do this whether or not marine is constructed in such a way that it could migrate these are all these these are much more complex questions it seems to me and i don't know it seems to me that every state in this country requires experts in an area like this i i mean you know the research that we've done and that's been pointed out to us is that expert testimony is required to prove causation in a medical case of this sort but again you're on to the kid you're on his statements at the end of this sort remember the court below and the defendants have said that the question right whether marina can migrate this is general question general causation can it migrate on its own tenuously now these three admission say it can and the jury was and i'll give you an example you're going to in a case called salem the united states supreme court justice brennan writing and talking about when experts are needed was dealing with eight and individual only seven seconds left john was dealing with an individual who was a look at on the u s lines and salem is cited by any number of courts and the question was when he climbed the crow's nest and fell out of the the question for justice brennan in the court was did the jury need an expert you need an architectural mavra time expert to understand that when he climbed up the crow's nest me took a foot there was no place to put the foot but he would fall and honor the defendants say that the general causation question that the plaintiffs failed to carry the day on below and the court below says was whether or not you could have spontaneous migration and the defendants  you can a jury doesn't need any expert to know that if you put it here and it ends up here and now and it has moved well that's it worse but what you don't know is whether it was done it on  causation that's not the question we have here and the fact of the matter is that these admissions are so are so completely direct and the defense of said these are snippets you know i can think of really t two examples of snippets that mean an awful lot three words i love you or in a criminal case i did it this is these are snippets but they are direct they say it can occur and i and i and i submit iran is that that's precisely all that to defend that plaintiff needed here and he was given it to he was given to it by the best source in the world the defendant thank you and may it please the court my name is lisa black and i represent the bear defendants i could go straight to the admissions but i would like to start with the ruling because i think it frames the case in terms of what exactly the theory of causation was and i think when you look through sort of all the analytical flaws of the experts and when you take it as a given that that decision was not manifestly irania it becomes increasingly incredulous and hard to believe that there was a treasure trove of company documents that could possibly reflect scientific reality yet a single expert in the world could not reliably explain the basis so the plaintiffs this involves which judge walker indicated familiarity with  a where in this case the label quite clearly warns of the rare risk of perforation so the plaintiffs were really backed into a corner here and had to thread a needle to come up with the causation theory or risk that the label didn't cover and so that's why they came up with this theory of spontaneous uterine penates only a three year window as i understand it from the various labels the history of the labels because there was some warning apparently  labels and no you know no medical literature and no peer reviewed study mentions their theory which is that a marina without any injury whether before during after insertion can by its force through all the layers of a woman's uterus and that is their theory we don't have a theory of cause asian it is their burden to show it and their theory was to try to get something the label didn't mention and the problem they had was that you know the two medical treatises rejected it and said it wasn't possible there was no peer reviewed study and there was no published journal and so it wasn't surprising that the experts failed all or almost all of the traditional dobber factors and then the court went on to sort of list let me after a litany of analytical gaps between their methodology and sources and data they relied on and so when you get to the notion of these purported missions  the two of which he relied on heavily were in a an unbelievably dense email of you know bazillions of employees talking about case reports and which is so ironic that you know case reports are unreliable for an expert so an expert himself can't rely on a case report which was those e mails so it would be the height of all irony and just perversion to say that ok well my experts got excluded but can i still rely on something else that's unreliable the other thing i just want to talk to about the admissions that hasn't come up here and and that is sort of the federalism concerns you know this is an eerie case and you have a case where it's undisputed that all fifty states require expert testimony in medical devices and drug cases are the way you're certainly in for states and the rules are somewhat different in each state the they all require expert testimony but but there are there are nuances yes and so so what is the rule that we would upon so i mean it's a federal court sitting in diversity so you're purporting to try to we're just ridge's dealing with the test cases that are before us and so no because these are experts that cover all twelve hundred or thirteen hundred cases so but let me just be clear where we're this why this is easy so they don't have a single case where an admission has ever substituted for expert testimony in no state no no even you know jurisdiction much less a case where the experts were held to be unreliable and so this court would have to sort of expand state law in any one of the number of fifty states and because it m t l if you reverse your expanding state law in all fifty states in one swoop so it would be an extraordinary thing which is what i think motivated the district court is the judge was looking at fifty states had had already come to a decision where the case was following the dobber ruling where the experts were excluded and i think there was a lot of common sense to the judge's sort of reasoning is i'm having a hard time thinking how a company this is not some you know smoking gun document where hidden data and research into research was found these this is the f d a label it's not like this was hiding in you know it was hiding it was hiding in plain sight so it's hard to see how this could be admitting to something that there's not a single expert that could explain and i think you know when you go through all the analytical gaps and how each stage the expert was either had strange methodology in one case was relying on pig hearts and taping a marina to a metal  block and then relying on studies that all of the experts suffered from the flaw of their notion is that the uterus contracts and that kind of pushed it through it and then they all ignored that the hormone that the marina releases decreases contraction of your position would be that appeals court would say expertise is required and there was insufficient expertise shown here is flunked and that's that's that's enough as opposed to what the actual i guess my problem was figuring out how to synthesize the state law in a way in a in a room yes so i would do it this way it's a state subsidy of law requirement that expert testimony is required you would los is just not disputed and the question is is this court can this court sort of go beyond that where it's clear the case is over and say well there might be an exception in one of off fifty states for an admission and if so under what circumstances of causation they had a novel theory of getting around that they had no expert proof i mean product liability cases from you know as long as i've been practicing law have all been about experts and again the notion that if there had been some sort of admission and an expert could have looked at it and said you know i can't i still can't come up with a reliable theory they are misstating you know their theory of causation their theory is that marina without any injury whatsoever to the uterus just all on its own when it sits in the in a woman's uterus it spontaneously moves and all the admissions they point to are talking about a sip to ation where you could have perforation that comes much after insertion but at least there's some injury whether that's a neck or some kind of thing either from the sounding inserter or the marina itself who don't have to decide really in this case whether there's any mission that could possibly get them to a jury we just have to decide that the district court correctly concluded that the admissions were not sufficiently clear to them that's absolutely correct the court said well i'm not going to fork the the court said i'm not foreclosing that there might be an admission that could substitute and so the court didn't go as far as i think i'm arguing here and said but i'm not going to let something ambiguous because i would at least exacerbate some of the concerns i'm having with the state law and so it would at least have to be clear concrete and detailed proof of causation because the jury would be speculating not  only about what the scientific basis was but whether the party even believed it if your adversaries going to get up you know at least with respect to the emails that rely on report reports the district court didn't think it was clear enough that those were admissions by the authors of the emails as opposed to just references to the fact that there are reports out there saying is that your position or do you have something beyond that it is consistent with the notion that you could have an injury at insertion but a perforation doesn't happen until later now the power point one which is you know they want they want to read it in snippets sorry about the word snippet but it's even more kind crazy ambiguous because it says migration into the abdomen parent that a call spontaneous perf aeration unrelated to insertion close parent article can occur and that's not i love you that's just not i love you there's a lot i'd as i don't think i don't think so i can't tell what that means it's kind of it mixes up the parent that a call but whatever it is it's not their theory of causation which is that you can't there's no injury whatsoever that it's just there to spontaneously motion their number questions we and this court i think we have to say this at this point that this court when it views it miss ability of something mission since it's i think it's a do i don't think it's discretionary i think it's been over so i think the court has the right to take a fresh and stand you in the walsh email what the district judge said was that they reference the reports whether or not they should put mention of it on the label with the ca that they may have involved injury at the time of insertion that suggests that the author is not convinced that these kind of incidents can happen without any injury on insertion or my misunderstanding something here well the coiffed think for me to say your honor is that i don't know i'm not a trite mission if the if the author is is commenting that an author who says these are the reports should we reference them along with the kaviak how does anyone say that's an admission that there's injury that there's spontaneous migration took the position the court agreed that there was no proof of general causation this statement says precisely that now its credibility which is there are reports it doesn't it mid anything itself it acknowledges that there are reports if you if you couldn't get the reports in i don't know how you get the party opponents acknowledgement that there are reports that's not of per the mission your honor is is what the defendants are trying to do is something they can easily do a trial a motion for summary judgment what they're trying to do is turn around and put in all the material that led into that admission now to to deflect the admission and there was a time for that on a motion for summary judgment this is not the time  but what is the pacific what what is the status of the case iran or i'll speak a bit about it and my colleagues just want to know do you expect to get to the court in two weeks in three weeks with whatever resolution you've got what  kind of a timetable it was working on here i think the the timetable is one that involves the two situations there are twelve hundred plaintiffs in this empty house but the situation is such that it will also take care of  case were put over for a period of six months we'd have everybody signed on and wrapped up i mean the the the agreements have been signed obviously there's a mechanics to this and it sure we're going to put it over for six months but i'm glad to know that that's what we're talking about we're not talking about a few weeks ok we will we'll take the matter under advisement thank you very much