principle is that all claims there were disposed of in the first case in all claim to be raised in the earlier case he had been decided fin claims so because you you filed an amended complaint in the federal court alleging only a negligence count against resurrection him the government dead when the comment that dr thomas employment with p c c does not necessarily preclude a finding that he also had an employment or agency relationship with the resurrection there was never here it was just it was it was an ad h patient occurred within the scope of his own family in very the court found that the type of vulnerability of intimacy associated with the cycle therapist patient relationship read into it well it w it and you didn't appeal they had it would be your contention that she could refile another claim saying you know what i got an intentional word claim here and i'm seeking a million dollars in damages she would be just it's very difficult for myself to comprehend oh you jump from one to the other without touching both  morning and may please the court my name is in three longo i represent resurrection health care corp the defendant happily we're here today resurrection is here today to ask this court to follow one of two paths this morning the first path would be to dismiss inescapable conclusion is that the appeal is moot plaintiff cannot gain any means info released before this court the second path that resurrection proposed this today would be putting movements aside and on the merits affirming both of judgment against order orders the first order being what i would refer to as a vicarious liability order the one that came earlier in june of two thousand and eight believe and then the second order which declared th the state calendar because there was no reason to have a state court case anymore the only reason to stay and i suppose would be and i think this is what just reagan was thinking is that in case the federal court decides not to exercise  script claims or oily sort of commission that we should have two simultaneous actions pending this was plainest final wrong to prosecutor action in one court and that's why they brought us to federal court did you object to the did the question of supplemental jurisdiction come up in the second filing in the federal court it was done at all so you submitted to the jurisdiction of the were well certainly i mean we were served and we had a limited amount of bringing a later federal action and so that's the reason that that's how we got to federal court in the first instance the removal and that's what was accomplished in federal court the first time was the quick going up to the plaintiff in the first instance that they failed to exhaust their admi should follow the second half that this court can follow would be to look at it on the merits and to from both orders of judge flanagan her first order the vicarious liability what it is absolutely correct it is well settled law that any sexual assault committed by a medical doctor on their patient is not within the scope of their employment and it's not in furtherance of the hospital's business it is instead is this quite correctly stated in hoover solely for the benefit of the doctor or an agent or employee themselves that's just the very nature of saxon that there is no business in only that i can think of where sexual self or there's the business interests of the team of the of the minister and that is certainly could never be the case for the hospital hospitals are in business to treat people just to make them real to make them comfortable here plaintiff's allegations which must be taken as true state that she was sexually assaulted by her o b g y n this in folks the who for will there's no reason to depart from hoover who was absolutely correct in this case now this crowd can comfortably rely on hoover element number two the same carriers we have the same veronica has been in both cases we have the same resurrection health care cooperation in both cases the third element the miss is the only element that plaintiff this speech is doing these two actions has been federal and has one state in forth the same cause of action they absolutely do the only supreme court made a decision long ago in a river park that we are going to follow the transactional test and we are not going to follow the same evidence test when the supreme court general certification as some sort of a suit against resurrection the idea that because the attorney general certify that dr tongue was acting within the scope of his employment and the plaintiff refused to take discovery to attempt to rebut that presumption or that attempt to rebut that the record and the record also demonstrates to this quote that based upon principles of comedy these last two negligence claims that we're talking about have been dismissed by federal judges judge blanche manning i think that back judge in the st eve dismissed both of these negligence claims before with respect to negligence supervision she dismissed it without prejudice that's true but the plaintiff played it over and abandon it she then later dismissed