memphis court my name is david at the fair representing him at thompson i've been going over the briefs pretty heavily the last weekend especially last night i read the answer brief and i thought oh my god i lose then i read my opening brief and i settled  thompson stablished that he belonged to a protected class and established that he was subjected to an adverse employment decision the difficulty as far as the problem facing comes down to whether he performed his job duties satisfactorily and there is a conflict about that in his own testimony and he said that he did self assessment alone by itself it's just not enough unfortunately but he did recently well in performance improvement plan the other part about that what are we to make of that because if there's a potentially significant here where even after the performance improvement plan is implemented there peer to be different doctors who raised an issue with the performance  should have been renewed we have we have a good a better than two members and in the residency class performance on the right examination the resident in service training examination so we've got and also we've got a very odd sort of negative piece of evidence there's a specific statute in arizona that requires medical practitioners to report someone to before the name of the decision suddenly just professional reputation if that were the case then why even the california medical board asked about him that they reported that he had been terminated that he had been on probation both of those are also these and then when the california medical board asked for more information they got a crashing nothing there is evidence here that was presented about the discriminatory intent so it's so easy after the fact to come back and say well geez you approach you're probably the worst position we've ever seen on the base of the planet but they brought him in from macquarie college which is a very respected medical college in nashville and they put him in the nd level nothing of the opening level of his residency class but the stepmother because they thought highly enough of them to let him try there although quite frankly i think an expression of professional humility dr thompson said no i want to start at the bottom of the class i'm gonna start in the st year not the nd year because we do we seem to do things differently in my hair and make areas more of a nurturing program something out of animal house hazy that they're not really really there to help you to succeed they're there to test you hard and see and see what you're made of i was just fine i suppose you know in some programs that will work dr thompson said well you know i've got some this is a learning disability issues here and i don't want to start right in the middle but that's where they start and so he presented the presented considerable evidence and he was performing for me especially dr thompson because it seems made it there are some real issues about st speculation about conduct and performance when the experts not you can present at these particular moments and they're very fact reported by dr thompson and old all the evidence that was available to her and she did what all the experts do even in an accident reconstruction for a car crash you have to take the bits and pieces and put them together into a theory of what happened and her theory of what happened was from the start he was subjected to an equal and even treatment things that he did supposedly did that were wrong orders of margaret properly tardiness the emergency room a we're still all messed up with discrimination one reason why these cases really require whenever possible for a jury to look at if there's differences of opinion is what these facts lead he looked at the way he was treated in a certain way based on his experience and and saw this premonition social discrimination practical discrimination difference to treatment when he was making a mistake as opposed to other people making mistakes and in provided evidence of that and  are negative and no written disciplinary action he could say he was performing satisfactory based on evidence that he presented of his meeting with certain timing and production standards dr claim why isn't it a jury question as to whether there is a difference between terminations dismissal and expulsion versus renewal of course your honor as an is substantially true and defamation claim cannot proceed and that case is particularly instructive because in that case the statement at issue was that the plaintiffs have been convicted of firing a weapon plaintiff had been convicted of just playing a weapon and despite the differences in those two types of convictions the court held that the sting of this statement was the same doctor thompson complaint in this case alleges and multiple different paragraphs that he was terminated from the program in addition to a form asks whether dr thompson was terminated dismissed or expelled you left a month early he did not finish the three year program and he did not even finish the st year of his residency but within the there is no question for a jury to conclude differently than that terminations is the stanch only true description of what happened to dr thompson and similarly with his probation claim dr thompson has alleged that the phrase probation was false because graduate medical education standards have a specific definition of probation if you look at the form that dr malaya filled out which is part of this record there is no instruction and that the word probation should be defined in accordance with that particular definition and one also asked about not only knew all right what about his situation was another we knew also that if both of them is whether he was on probation one of them is whether he was terminated one of them is whether he was not renewed but your honor to suggest that the presence of the non renewal us in the other items should not have  that those things are mutually exclusive there certainly could be restored i don't i mean i don't take judge when question to be that but that's the case the question is whether or not we should be deciding match or the  entitled to make or put it differently can a rational juror who klute that there is a difference between terminations being on probation versus we knew all and i think you know if the medical were did ask for follow up court actually went through and said that even if the report had been included in its entirety the decision on the on summary judgment would not have been different in part and large part because dr chaperons ultimate conclusion  dr thompson never should or should have been allowed to go on to his rd year the fact that your opinion was that he should have been allowed to repeat even if in the midst of all is just further evidence that he was not performing at actually and defamation claim this notion that they provided the entire public health going to medical boards and that there was a lot of press sponsor going but that's absolute news to me i never heard anything about it and there's nothing about it in the record anywhere that i know what's in the record is that the california medical board asked for the information had a form several places to check that they put down the check that he had been terminated that he was on probation there was also a place a separate box for non r and they did and then when the california medical board came back and wanted information there was nothing they and they said in fact that they didn't have any duty because they refused to respond and they actually pages forty seven to sixty one of the opening brief and i go episode by episode and point by point with the expert talking about different incidents and her understanding as an expert as to what was the appropriate thing to be doing with dr thompson and what he had done there was an incident about the parkinson's stroke or fate of her patient's name on a sign out sheet complaints about logistical issues minor errors that had been made by reviews of patient notes and i could go by i could go by point by point by point but i would bore everybody to tears it's it's there in writing it's it's a pretty good you know for once i wrote something fairly clearly pages four thousand seven hundred and sixty one of the open grave i devoted a lot of time to it because it matters because it's not just his own self assessment and not just specific points about how we did on the exam and how we did on the performance improvement program and what dr five said about dr thompson but the expert matters a lot in a case like this because the experts can crystallize everything to still go through all the different exhibits depositions of the record and say here's the different points where we see that dr thompson is performing well and he's being unfairly criticized for what he has done and that's in a case like this it's very important to have that jury especially in light of what i submit to you was understandable reasonable expert opinion testimony it wasn't perfection i've only had one perfect expert in my entire career lesson but all the others have