to reaffirm the importance of the record in a prior case in a case of collateral estoppel where that is claimed the excuse me the basic law in minnesota and it's the law of the land is that when you have a clatter of a stop or claim and the first case does not make an explicit finding on the issue that's to be a stop you have to look at the record that first case and the language of minnesota law is you need to engage in a painstaking examination of the record of that first case because we need to know is this an identical issue in the second case that's already been litigated decided that was necessary so that first case there are no explicit findings on the record in this case that the minnesota juvenile court decided anything about the accuracy or inaccuracy of the report that the defendant dr swenson created there are no findings on it that puts us in the realm of painstaking examination of that juvenile court record are there any findings on the difference between the report and the doctor's testimony no your honor there are in the chips order in the juvenile court there's really only one mention of the report that dr swanson created and it is strictly as to its place in the chronology of the case the juvenile court made no other findings about the report did not compare it to anything else and so no there were no findings that it was similar or dissimilar to anything that was proven at the trial to anything that was testified to anything at all here and when you don't have that in you take that first step again you need to compare the records and what you see in the defendant's brief here of the report in the chips hearing and this is what i mean when i say that we're weakening collateral estoppel because challenging an issue is not what needs to happen if you read the statement of the stop but that's not the law it's not about whether you read a gated it's about whether you would a gated and the issue was actually decided and the issue was necessary to be decided is then go on to say in this case after repeatedly contesting the issue when the chips proceedings well that's again the wrong word it's not about whether a party contest issue or challenges or attacks an issue which are all different ways the a police have framed the question here the district court did this as well talked about whether or not the issue of the report was added issue in the juvenile court that's not the test the district court here talked about whether mr chang attack the report in the juvenile case but that's not the test the test is if are going to say a finding is implicit in case number one because here it's undisputed there is no explicit finding about the reports truth or falsity if you're going to say it's implied you have to say where in the record it and i think this goes to your question your honor if you look at the chips adjudication water in the minnesota court and the only mention of this report is in the chronology the juvenile court made some pretty detailed findings there and it's an order if you compare that if you want to say it's implicit that the report is subsumed here or approved by proxy you have to actually compare the chips order to the report you can't that is the implication and i think it's incorrect for two reasons and one is the testimony transcript was was not on the record the district court here did not see the testimony could and had to guess to say that this mirrors the report but secondly and furthermore even on the limited record that was presented by the defendants in this case there are excerpts of dr swenson's trial testimony you'll find them in as what was in that report that she initially authored in june twenty fifth was which was where some of the records that i think you're referencing that would help answer the question is whether the report in the testimony with the same or some of those under seal and unavailable can you help me understand what was available to one or both parties i can i can try your honor i don't i can't say for sure what exactly was or wasn't sealed in that case but what you know i can point out are a couple of things one dr swanson is a party in this case and this is her own testimony that we're talking about i don't know if it's sealed by i don't have any reason to think it is but even if it is this is the person who gave the test you know this is somebody who should be able to say somewhere in their motion to dismiss yeah my testimony was the same but that's never actually claimed anywhere in the record here it's again it's a it's an empire there's a lot of dancing around i think the issue to say that it's the same thing but when you don't have it it's hard to say that and i guess of our motion or i should say of our appeal work to succeed even though we're the reverse here i don't think that foreclos the possibility that the defendants could move again potentially for summary judgment if they have you know finally access to a copy of that transcript and they can prove that it's the same thing but as i said already with what we do have you can see some differences and they are important differences between the testimony and the report in a general sense just what's the basis of each the basis of dr swenson's testimony was the large book of the child's medical records which she did not have and had never seen when she wrote the report so the basis of her testimony is different six months later you can't presume you can't guess that it mirrors report i don't know that you can say that either way but one big important thing here is the large book that she described of the records she didn't have were the most recent years worth of records and these are the ones that d did not have when she wrote that report and when the chips court the minnesota juvenile court found that this was a child in need of protection it's reminding on the more recent activity the more recent medical treatment it's not it's not relying on stuff that happened five ten years earlier so there is a definitely a difference in the bases of the testimony in the report there are also specifics that we can see from this record that in the seizures and that doctors never observed those but in her testimony which we have she dr swenson testified that's not that's not a big deal that's not something that would concern me because doctors often don't observe seizures in a hospital there are a lot of questions essentially about what is this testimony include does it actually support the idea that it's the same as the report because what we have on the record does not do that and that's what i mean your honour's when i say this case it's important for a lot of reasons obviously to our client but i think it's also important in the sense of affirming that the you have to look and you have to see it speculation is not allowed and that's why we're asking the court to reverse the decision of the district court and i hope you will and i will save the rest of my time for rebuttal of all thank you case about a boy who was repeatedly subject to medical child abuse a child whose mother according to the state district court findings sought treatment that was invasive and harmful including a tracheotomy a child who again according to the state court was kept in a wheelchair even though he didn't need one a child whose mother in an effort to control him reported myriad other unconfirmed diagnoses including sleep psychosis chronic fatigue a cataract a soft palate and something called sensory integration issues now the state court denied a motion to dismiss which was filed or predicated on the basis that dr swenson's initial report was false we know that now following trial the state tr court found that the child was the victim of medical child abuse and the appellant's here appealed that to the minnesota court of appeals and they lost now in the united states district court  to prosecute claims that the initial report of child abuse was somehow false notwithstanding the trial court record that i just described to you candidly we had a hard time finding any other case analyzing collateral estoppel given such a robust and complex lower court record but i think that this court can affirm judge order for three pretty simple reasons first the appellant's clearly challenge the falsity of dr swenson's report in their pretrial motion to dismiss and we know that because they raise that issue again to the minnesota court of appeals let me point you to the very specific portion of their appellate brief and it states the report brimmed with hyper provably false statements elsewhere it says about the report dr swenson either exaggerated her study of the child's medical records or knowingly misrepresented their contents and again somewhere else it states the of the allegations in the report would have been apparent well are you highlighting the difference that that counsel is making between what she argued and what the court actually resolved and decided absolutely it's just where i'm headed your honor thank you so with those arguments then the court of appeals took a look at this issue and the court said the allegations in the actual petition were based on this report it characterizes them is based on the conclusion of an expert in the field of medical child abuse and her preliminary review and of course that's what she did and that's what dr swenson did to generate the report so the court said that the petition was based on the report and then the court said that the allegations in the petition based on the report were substantiated through a three day trial motion to dismiss denied the court of appeals says we will uphold that finding so not only do we know that the family contested the issue of the falsity of the report in the lower court but we know that the lower court rejected new argument about the district court lacking an appropriate record they say that the district court didn't have an adequate record they didn't have this transcript or they didn't have something else and they say that the district court failed to engage in with the characterize observed in our brief and as we have pointed this court to in our brief the eighth circuit is very clear that appellant's cannot ignore an issue in the lower court and then choose to raise it on appeal so they have waived their argument there and frankly they have failed to respond to that waiver issue in their brief whatsoever and so it is simply not something that this court ought to spend time on analyzing because the appellant's didn't see fit to analyze it before and the third and final reason why this court should affirm has to do with the issue of equity and i recognize that something that counsel did not mention in his argument but it is something that they raised in their brief so i want to discuss it briefly what is your district court failed to do that then that's a basis for reversal that's in a nutshell what they're arguing but the problem with that argument is that it is unsupported by law right there is no case law that they cite that says that it is reversible error for cases the children of s c t and the barrington case there are cases where courts do not explicitly analyze that issue and nevertheless orders based on collateral estoppel are upheld and there's no reason for this court to do differently but even if this court were to look more deeply into the issue of equity right we need to pay particular attention to what is at the heart of this case right which is dr swenson's duty as a mandatory reporter right and it is the public policy of the state of minnesota that we protect children by doing this and so the equity's favor protecting dr swenson who carried out her statutory and mandatory duties the over the here took full advantage of a rob least based on this record there's been no finding that the report is the same as the testimony and in fact there's information that the testimony has expanded from the report it's based on additional medical records and so he with that inference that that's been already concluded that the report independent of the testimony has been found to be accurate and credible certainly your honor and i don't think we need to get to the question of what was the testimony and is it a mirror image if we look at the way that the minnesota court of appeals analyzed this issue they said the allegations in the petition were based on the report and that the allegations in the petition were substantiated at trial it says that the end of the story i mean and in your view your brief could have just said that and we would be done absolutely i think  just to respond to a few points here that were raised by counsel your honour's talking about motions to dismiss that means bushong made in the minnesota chips case i think it completely wrong to be honest when you're talking about early motions to reconsider that there's a prima fascia case us in the petition are true at that point so you can't say that it's unnecessary or even it's even possible option for again the juvenile courts have no mention of this report other than it was created and that means bushong had claimed it was false along with the petition and everything that's going on three months into this case at that point the court of appeals in minnesota talked about allegations being substantiated after a three day trial with a dozen witnesses contrary to what you've just heard it did not say in the court of appeals opinion very different thing than what counsel has just argued to the again the point i think that has been made and it should be undisputed is that there is no finding as to whether this report was true or false at any point in the minnesota juvenile proceedings what appellee is still declined to do is to actually engage in a comparison take the record you do have there are many findings in the juvenile chip's order many findings compare them to what's in the report which has dozens of independent allegations on its own don't do that here they didn't do it in the district court we did it for them here it's on the record it's easy enough to see and you'll see there is less than a one third less than one third overlap between allegations in the report and allegations that supported the finding that the child was a child in need of protection if there's less than a one third overlap between issues can you really call that the identical issue can you really say it's the same in substance and that it has no the difference has no effect on the outcome of the litigation here because it does have an an effect on the outcome of this litigation so you're saying there's things in the report that weren't relied on to say that they allegations were substantiated many your honor many running what we tried to do in our brief it's it's a hard record  cracked it is big we're trying to break it down into here are the allegations that were supporting the chips order here are the allegations in the report that had nothing to do with the chip sorter here are the ones that actually coincide and you see that there is  very little overlap between the two so they are different things going on it's just going to join here are what what would happen if we appealed your view what would you present at the report and asking the question which needs we asked are they true or are they false and defendants pallies here and they're not really claiming that the reports allegations are true there's a saying it's the same as the it what makes it an equitable yes that is a great question and thank you for asking because the collateral stop well you read the cases you see how it's used you see the fact patterns it's been claimed or at least in have the same rights that you have in a civil case or even a criminal case no discovery no possibility for depositions there's no motion for s both sides of the argument thank you very much