requires that in order for an injured player to return to play the team physician must exercise independent medical judgment and determine just say for the player to do so reason is that the case is a recognized that there is a mix that it's relevant highly relevant consideration the safety of the individual who seeks the accommodation that where the where there is a threat to life to self or others that that is disqualifying and that the individual is not otherwise eligible because to participate would place the individual at risk of death or serious bodily harm taken a position whether mr class poses a risk to anyone else to say no your honor it's safety to himself that's it at issue in this case and in this case the team physician exercised independent medical judgment and considered relevant and competent medical information in determining that playing contact with the football would place mr classes well the i think that because you're going to tell me what course and i know and i want to use that as a base i'm not trying to figure out i'm just not asking what is your position to the extent what do you think should we look at the team physicians as the money if it is you know your honor i'm talking in a more in a more general sense about the standard of review for decisions made by colleges and universities with respect to whether a requirement is an essential eligibility requirement and whether an adopted a highly deferential standard of review in fact davis cited knapp with approval in adopting and implementing a deferential standard review and what all of the cases and i think it's telling that in every one of these cases in the district court had determined in favor of the university and and had adopted that unlike the district court here adopted that deferential standard of review and what the courts look at is is it a reason based on competent evidence not could nother team physician have reached a different conclusion or even should the team physician have reached a different conclusion the standard of review is really could no reasonable  doesn't want to be as long as they consider that person's medical history and all the other factors for example that now talks about or are there cases to talk about so it's pretty strict i mean you're pretty much saying that no expert could overcome that if it's the reason judgment of the team physician is not correct issue because it's not the battle the experts think the team physician is that isn't charged with with proving that it's unsafe team physician is charged with is is sort of fine really that it is safe and making terminations that is say what if there had been an independent medical exam by a medical doctor in this case could that have made a difference in the analysis from your physician in your point of view sec record yes trying to specially because her decision was not just based on the heat stroke it was based on know the whole personal harm to her and she was very careful to say i'm talking about the whole person i understand that but you're saying that if there dre of medical doctors from all over the country examine this person and they say the whole person is not likely to be harmed that their opinion could not trump the team physicians ever on this actually your position or if not tell me why no no you're right because it would really depend on whether the circumstances cause the court to be convinced that no reasonable doctor could do well it goes to the question of reasonable yes it does occur if we have that cadre of doctors respected doctors who reach that conclusion then you have to ask the question what caused the physician team physician reach its conclusion his or her and it seems to me deference that the seventh circuit applied had that big skate don't see it and have a davis because it was an economic type cases that's not dealing with the same subject matter that we're dealing with here so in order to get there we're going to have to agree with the seventh circuit that's not the law in this circuit as in from a presidential perspective why i think either even both speak to safety your honor and that doesn't affect about is the net one seems like it might be a reasonable one i i'm not saying you shouldn't go in that direction i'm just saying i don't think we should argue th safety and risk to life issue the risk was very low it was the risk of transmitting h i v s surgeon transmitting it to a patient it was you know less than one percent risk as i recall and yet the you know if it were transmitted death could result in so because the actual the magnitude of harm was so high this court a doctor a highly deferential standard to review said that the doctors that made that decision were entitled to err on the side of patient safety to make that judgment call and i notice even coaches and players want to get back on the field but despite the fact they feel quite good and they feel comfortable and i want to continue playing the policy is governed by the opinion of the physician and i saw sume that if there were a challenge to that and we could hear the question is how do we get involved in these discretionary judgments  where the school is providing a sport and wants to provide it safely and sets its own rules for determining that safety in advance unless has a judge when suggest unless those rules position has made a statement but when you go and look at the underlying basis for there's no literature that supports what she's saying she's not a leave liver specialist she's not a stroke specialist and so when you look at what she's doing  surely want to give a deference but even deference must have a proper foundation other then it certainly looks bad because i think any lay person could do the same thing when i look at this case actually the same thing that physician said because i don't know anything it just sounds like to me it's not a good idea but to get the opinion you've got to have something that supports oh she's gone is just given a statement which makes sense to me because she's the team physician but just that alone doesn't do it and then n f well your honor the first my first response to that is that the record does not support mr classes assertion that this was just based on feelings or gut reaction on the part of the team physician fellow well first of all the literature that she cited and which is cited in the appleby's briefing page fifty three does support much of what she said for example it supports that fifteen to twenty percent of heat stroke victims have increased heat tolerance and it can last up to five years that's in the brain here they get fifteen to twenty percent as well have decreased ten impaired feet tolerance following heat stroke and that that impaired tolerance can last up to five years and that he illness you know which is a which is a precursor to heat stroke she testified that that could be stratus traffic for him given his constellation of complex problems statement where as you have this heat stroke expert says this individual that when you put this equipment on him put him in this position is actually in a better position than the other folks out there on the field because he's actually peeing monitored and they that the doctor cost valuate just a very small part of mr class this complex medical issue and he's not a medical doctor and that's the first you know problem with with just relying on him but he's clearly an expert on heat stroke is all he's done it for all kinds of folks that you really cannot tell of his qualifications or he is qualified your honor and he says because he's a co author of that article i just cited that there's a fifteen percent twenty percent risk of another heat stroke and that there's decreased heat tolerance and that there's a risk here in his own his own article say that so she you know anyone who's ever had a stroke that would in and of itself would be a basis to  them if a physician says i'm not like you know because you've had a stroke once that good if under the deferential standard review your honor that applies in this case considering all the thing that there's been no general medical clearance by any doctor of mr class there's a heat stroke expert and there's a liver doctor but the problem with you know him live a doctor i'm sorry it isn't that the  point is that all of his internal organs in that area are risk because he has a hole in his abdominal wall and dr hudson is he's you know qualified to talk about the liver and the risk to the liver from playing football but he's not that he could he might tolerate it didn't fully simulate football and needed them accommodation yes your honor that was one of the reasons she gave other reasons as well the june testing i think the primary and from her point of view with the june twenty fifteen testing was it didn't mimic football it didn't clear him to play you know to for full play for football practice and play it you know it cleared him to resume in july with you know a t shirt and shorts and you know conditions that didn't mimic football but you know she had to look at the whole picture and and assess whether he could rejoin the team and you know with all that entails before the full gear with the extra padding may please the court at the outset before i start getting interrupted by questions i'd like to make three points about an overview of where i hope to go in my short time the first one is that dr king she's testimony was the sort of testimony that if the defendant jury trial this court would have easily said it could have been kept from the jury under dauber and certainly the trial judges finder of fact was able to find that dr king she's evidence was not her opinion was not based on competent medical evidence the second point i hope to get to is this conversation would have an entirely different tone i feel if gavin class were if there were evidence that he were in on the bubble n f l prospect where this were keeping him away from his procedural grounds narrow i don't know what my last word will rule technical rules is that the i didn't mean to say technical rules but what do you mean what that what i mean by this is is that dr king she for instance an international reputation it's hired independently by the university she consulted her colleagues as experts do and she had had experience with heatstroke cases before taking pop shots at that doctor i think it's not a fair thing to qualify an expert witness there is no welts it's the proponent of the experts duty to qualify but the court has done the qualification and this this person is a medical doctor five years experience in sports medicine and demonstrated background in the subject matter i just to me it's a nonstarter to to make the argument that she should have been allowed to testify she's a medical doctor if you know your title to give her opinion you're on or what i mean are saying that it's entitle to less but what i'm trying to say is that the inference from this is that judge bennett was perfectly within his rights to find that her testimony as was presented not her qualifications her testimony whacked competent medical basis and here let me tell you watch what she made and you're saying then that a doctor giving her considered medical judgment has to have other people agree with her you know in order to have a competent and base level for her opinion your honor let me explain here for a moment bigger problem is the doctor is hired by the university to serve a function for qualifications yes and if the university acted on reasonably or had a discriminatory intent in doing that that's one problem but at the university in good faith has a policy that says we want to qualify our sports by having an independent doctor tell us who we predetermine in advance they didn't pick her for this case who who tells us in advance whether this person can play that sport and we're going to rely on that then it seems to me that if the courts aren't going to be getting involved in university decisions intermural university decisions we have to basically assess something to the effect that was the doctor at all to have any support for a where she just had discriminatory animus or something like that but in this case the doctor recognizes life and death  issue recognize that there's an increased level of heatstroke for persons experience that knew that this guy almost died was in a coma for nine days he's now coming back heroically coming back wanting to play  on or it takes forty five to sixty minutes for the temperature to get to rise to heat stroke on that so you don't go from one one hundred one here you are in the third quarter and you're pressing on a quick quick and often you're going down the field and it's hot and everybody's dripping wet and they're all may if i may for a moment matter whether it works the question is whether the university has to be put up to that up there are not a discriminatory policy may i please make and i would like to just get my points for why i do not believe again bothers be only disrupt i'm not sure that's the issue if you deal with the disability aspect of the a d f it would well there's the disability and then all the accommodations and do you have the support to say accommodations can be made went well let me tell you a b a what it requires is an interactive process and what we know that dr kim she did not do was she did not pick up the phone and talk to k s i at any time she never did and what happened here was that happens a sports medicine specialist works with populations there are necessary necessarily experts in every condition that affects that population so what did they do what did tell us and to you know they retain know what you're doing is the very same thing that we caution you about you want to attack the good faith of the doctor who gave house in the advice and the question is this doctor is an established reputable doctor who has been handling this along with her colleagues and that's pretty well known sports medicine clinic and tauzin didn't go higher its own doctor in the house they went outside for an independent person and so the question i think is the very first question judge when rais his they have this qualification you have to be cleared by the doctor the team physician the n c double a has suggested don't rely on outside physician stick with your team physician but regulated now the question is what's wrong with that ok your hon policy that policy i do not have a problem with that policy or on the problem is when the policy here when the doctor turns into a veto in this next question if you don't have trouble with a policy what is the problem with the carrying out the policy those two thousand didn't dictate how to come make this come out to house and basically asked its team doctor that it hired does this guy clear and the doctor says no so thompson says we follow that get what's wrong doing here is i'm trying to explain why this june twenty fifth report this address to the issues she didn't have the june twenty fifteen for port in front of her which had these recommendations and it said he passed with flying colors now i personally don't think those conditions that were simulated in the study were what i experience as football conditions and not for the duration not for the humanity not for the intensity of all it's going on the pads the helmets and all this but set that aside let's assume that could be satisfied that's an opinion that disagrees with the doctors and you want us to get into the battle of the experts and solve a problem as to whether the policy was followed it was followed  has followed him perfectly but it was followed perfectly so now the only question is what's wrong with the policy and you have to argue that the policy is irrational because it relies on a doctor without us having to second guess the docket if there is a problem the policy is that it want to dead man on the field because some a doctor outside doctor the doctor of the player said he can play up your honor in all circumstances this is a veto it's final and there is nothing there's discretion and direct observation of in that accord professional yes and with signs to follow out that recommendation and you're saying they have to find a physician who agrees with you that he is qualified to play they can't select the medical professional who's going to make judgment calls regarding the ability of players to play and they have to find someone who agrees with you because she can't exercise discretion to monitor this person after ethically after she said that he can't play it's too dangerous she can't do it so it seems to me that it's a little bit of a tricky situation here because the university would be administer a program which gives another doctor discretion against the university's doctor and that with during the course of the game it's under the supervision discretion of a doctor how do you select the doctor and what powers do you give the doctor and when do you give the team physician discretion or that doctor discretion how's that work now i'm not asking for another doctor to be on the field you're on so you're asking a doctor can she be just fired against her ethical judgment to have this person play and to decide when it's too dangerous when she's already said it's dangerous even for him to go out well let me give you a hypothetical but the doctor in that situation that's my issue she has the ethical obligation to care for any for any player that's within her care i mean let's say you tell us it had a different system where it did not but where if there were some outside panel and there were a team doctor who didn't feel comfortable with but it was somebody else's determination to play the team doctor would still care for the player now one thing that might happen you go to the report quote from the report you would have the team decision that thompson has in place be at every game right and monitor his performance at the game and make judgment calls about whether he should play and i don't think that's how that's proposed to work your honor that the every if you get on a piece of exercise equipment it says to consult a doctor before you regulate but the kansai recommendation is quite specific it says at the discretion and direct observation of a medical professional so how are they going to do it except being there are well i think over that then why is there a lawsuit over this because what is happening here is that she has said under no circumstances would she have cleared him to play let me give you an example so k s i says you should normally start monitoring very heavily on somebody gets to one hundred three degrees with a core temp monitoring system the doctor might be able to say if she wants to you know i'm more comfortable if he said that that he's absolutely taken out of the game one hundred three degrees which is still eight degrees away from his knees are open right guard and you're going to pull him out of the game to let him cool down or what then minutes well just like a concussed player gets pulled out during the game he gets pulled out permanently well it depends on the protocol your honor but what i'm saying is he can't why are well let's say that this is something where it's somebody who suffered an ankle injury attacks on calling her basically incompetent and then argue that she should be the one exercising the discretion and again she already exercise discretion in the broader picture to reach qualifications and she concluded he could should not compete the risk is to marry we're talking about life yes and now there's a court order that says you have to let him play but it's under your supervision dr what he she posts i think she is supposed to be the team physician that i think she's supposed to care for a player as she would normally and monitor danger signs let's remember the university that the head of sports medicine for the team went out there he said this would not present a problem for us we monitor players all the time this would not impose any additional strain on our staffing requires that every five ten minutes right get gets to the player with a monitor yet which can be done in the huddle you're on who's going to go out to the hot but the training staff it huddle risers coming back and forth against all the rules of the game your honor you have what twenty four seconds on the game clock to run another play that is time there are players exchanging running back and forth during that time for they can't say they can't run and plays without a hope i guess that circumstance you're on or huddles do not last forty five to sixty minutes a lot of plays on have hoddle yes you're on an ice i see that and i realize i am not convincing you and that's fine i'm to play in it is another setting outside of a university and because and keep in mind as the council of assad said this position operates for the university in an academic setting too so it's not just oh it's is you going to be a doctor or you're going to be owners staff or whatever is the university physician is given a special party is there another city that fits this and i'm thinking what if a person head benteke condition dealing with that isn't working with machines and a d a s says oh you can make accommodation to deal with it but this company doctor says oh no you can't do it do we give deference there no your honor i see any of the setting i'm just trying to think what is this unique this with the university universe there is no other situation and why i think where the eighty eight comes in i need to keep coming back to the interactive process and let me tell you what more i believe dr kim she could have done i do not mean to attack her as a doctor i really don't what i mean to do here your honour's is to say that the opinion in the particular opinion she gave on the facts in this case she did not find your honor you cited research the he said supporter position she didn't cite that a trial she said she had no research to support her position has only after the fact they've come up with more research to support a position they could have done a better job presenting this case if she contradicted herself i would really like the court to look at joint appendix twenty three to twenty four inclusion you want to reach the conclusion i want you to with respect to looking at that i would like you to reach the conclusion that in when gavin was initially disqualified not all alot with respect to dr with respect it can limit the weight to hundred fifty pounds football of princeton did or on the if they still do it can impose various types of restrictions you can probably have to run so fast you can't a guy with a limp may not qualify the they have qualifications have academic qualifications they can be arbitrary we want everybody to have a three five that's unreasonable that discriminates against people who are not as smart and the answer is is this something we get involved with in the internal affairs of the program being offered by university and the question a legitimate question is well sure we're going to get involved if there evidence of untoward conduct and other words if it's not reasonable not for you this is pretty a stopper so this wasn't focused on mr class it was focused on an overall judgement they made about how to organize the rules qualification and and so they decide that we don't want the risk of these he was close to death last time and he's more susceptible everybody agrees on that he's more susceptible to heat stroke the commentating factors don't limit heat stroke all it does is give you a warning maybe to pull him out of the game but it doesn't minimize the heat stroke so the question then becomes are they wrong and excluded for the safety of him in the university  i believe they are wrong because dr kim she had no good answer to the question of why is gavin not the safest person on the field with respect to heat stroke which was the only concern outlined first exclusion from the team that is what i feel now i'm i'm out of time yeah i would you do are out of time and i did hold your colleague to her yes if i may something say something very quickly i again apologize for getting excited and we all do this in the court and you don't need an apology and what i would also find job what i would also say with eight court that is express opinions i will say that if any member of this panel were it were to draw in our favor and be the only one dissents in our favor it is interesting to be that last question tonight as and i'm just asking it you know it seems to me that you could proceed on this case and simply go with the ak and not try to rely upon say and we'll give this position deference and you could simply deal with the situation academic situation got a position there and they got a position here and the questions from us and what seem to be coming from you is deference goes to that position is another setting and i think of all of the dangerous occupation football is dangerous is a terrible sport to have a terrible in terms of get injured but you could be in a chemical plant you could be a whole lot of places out there where it can be really dangerous if you can't walk questions properly or if you can't see if you can't hear the not differentiate that for me why university not just in sports now but university period has a physician neck and give university this privilege against the eighty eight but no one else in all these major companies and as around the world and all these other things that's going on but university gets or is that the case not the case since body else get other than university well the employees have been given some deference in situations where there's a life threatening injury want to know is there anybody else that gets what the university yes with regard to a physician this hour by that entity for the purpose of protecting that interest well that's not anybody else that gets th cherry versus city of league cities for example that was a employment situation where the doctors that the employer hired determined that it was not safe that there was no accommodation that could make the employee them up and say that i'm not sure but you need an independent medical judgment cause there's so much pressure on on coaches and players from parents from from the ministration from everyone to get these players back on the field  policy is necessary to protect the student athlete what with regard to the deference are you saying that the same order of deference is accorded to the decision of whether he's otherwise qualified as it's the same level of deference with regard to the reasonable safety because they both they both involve the same issue is you know can he play safely without risk to his life you know can the team physicians certify that he can play safety and i like to answer speak to another thing your honor commented on and that is the scope of this injunction which interferes with the team doctor going forward the injunction actually prohibits any consideration or or preventing him from playing over concerns about his status as a heat stroke victim or you know live recipient of a liver transplant that's adjacent sitting not in six ninety one and so how this team doctor going forward is supposed to keep him safe during a football game when she can't consider very important parts his medical history under the district court's injunction is this you know a separate independent problem with this injunction you know in this case there's really a severe impediment now you know if he were to play again on the team doctors ability to keep him safe and then the other comment i'd like to make his again to point out that she did much more than reach a gut reaction that she couldn't say was safe she gave him a physical examination the results of that examination are in the record one of two she reviewed his medical history she can see she looked around like with other consulted other colleagues who had she determined that no one like him had ever safely returned to play football and under all these circumstances she very recently concluded that she could not certify you know in the exercise of independent medical judgment that he could safely return play football thank you