after a week long jury trial a jury of six men and women were instructed on the law applicable to the doctor limit patient defense raised by the defendant's medical malpractise case and there's no question that the law that the jury was instructed on was a correct application of the law they were instructed to the one year statute of limitations the plaint the burden of proof and proving by a preponderance of the evidence that they'd exercise diligence to cleared of the judge not because he disagreed with them the judge found that in his view there is no reasonable view with the evidence that supported the jur right look at what the judge said to justify this decision i've read to session he candidly admitted that he had qualms about the credibility of the pla accrue so you cannot have a claim that could succeed without expert evidence in a case like this but everybody seems to agree we don't look at the of cruel data from the moment you got the expert evidence because if we did you could just sit there and wait forever until you got your expert so that wouldn't make any sense that that's true ok so what is the start date for determining the claim of course whose for purposes of the diligence in in which everybody agrees you're going to need the expert in order for to have a valid claim and you don't get the expert for some period of time so you couldn't know until the expert comes back for sure that you have a valid claim couldn't sue until you had the expert what does the law tell us about when we're supposed to start the clock what in your view what is the date the clock starts well judge it depends upon the particular circumstance fifteen and what would be the point well i would say it's a point where they ask the expert you think that there's any foul practice and at what point was that what point what did they know at that point well at that point what they knew was st of all that all of these symptoms that the plaintiff had suffered were both financial complications of the certain very delicate surgery and the  nd so here's here's what i would like you to help me with the other two people date once after the nd surgery when they know they don't trust the doctor to do the rd surgery that's the date you live if that's the date law what am i supposed to look to to help me decide whether as a legal matter the right time to start the clock is after the nd surgery the district court said for after the rd surgery like you said party is that four feet go or that you have invented side incredible diligence to find out about them and your contention would be at the end of the nd surgery they certainly had doubts about that person but the reason they way let me take a look at the medical record saying you've put in have known it was a tort at all you can even been in the realm of knowing it was a tort until the rd surgery ended yet only then would you know that what happened with the st two wasn't sort of but the good that you are contending for is not only after the rd surgery but after the seven or eight months rehabilitation period that follow the rd theory that's correct  so and and that that to me is the toughest part in the in the case of the rd sure jewelry occurrence the plane unfortunately you know gets better you've got the medical records in your in your possession but no one man does anything for another seven or eight months and at that point you approach the doctor and then you've got to get to the records then you're you're out on the on the statute of limitations and i've got another question that you haven't dealt with you say in your brief that that we've got to be mindful let you c when in puerto rico when a medical malpractise case until you have a medical opinion in your field or but how does the doctrine of extra judicial claims figure into this case the fact t puerto rico as i understand it provides a mechanism we without having an expert opinion without actually going to court a plaintiff can notify a potential t couldn't opposition would be your honor that it would be irresponsible to do that because we had no idea our clients had no idea whether or not these complications that had arisen or symptoms had anything to do with something that had been done wrong and if you're going to send an not and they could be sued for defamation for libel if they make a claim that's false it would be irresponsible your honor to do it in this particular case because of the complexity of the issues involved because of the need for a neuro were already on notice after the nd thirty three or was it that you waited too long after the rd or was it vote it seems to be that it would be both under snow clear in my mind but i think that the judge basically sank in his ruling that even if the right date for starting the diligence cloth was after the rd surgery you still were not knowledge and i think the court tried to bolster their reasoning by saying that if i think exactly to reach its ruling and that was error there is a perfectly legitimate positive inference that can be gleaned from all of the evidence that was submitted and that's what the jury considered and that's why the jury's verdict in this case should be respect do diligence context and the due diligence concept your honor i didn't find any cases and that's particular context just point the opposite way on that is there any case law that we could rely on that would support you to suggest that you're allowed to wait for the course of treatment to resolve itself even though you're already on inquiry noticed of a tor before going to the doctor to get the records i don't think there's a case that says that specifically your honor and i would say that in this case it's not that the plaintiffs waited it's just that they simply did not have the notion that they were the victims of a tort until they finally  asked the doctor about it the doctor cannot look at it you can't have it both ways you can't say that the clock for diligence starts after the st thirty three dollars and but the reason why they didn't have to do anything until they heard from the doctor is that they weren't on any duty to act diligently until the doctor came back well this is a fluid concept you're on have to look at it in the particular context of what happened to them in this particular case and what happened to them was that you know i think the rd surgery there was a long period of recovery flare in my judge after the st surgery the plaintiffs felt better and chief for about a couple of weeks she was ok and then she relapsed so even after the rd surgery even have to she felt better there's still no reason for her to necessarily believe she's the victim of a tort and you know if ten years had passed i think it would be a clear case but the passage of time here there's never been a case and my colleague seems to forget during the trial and this is in our grief and in the obviously in the appendix the court specifically asked why it wasn't the appellants were presenting evidence as to  medical records why they were spending so much time on it and his attorneys the plaintiff's attorneys made a representation to the court that i was because that was evidence that was being offered to the can or are affirmative defense a statute of more than merely evidence of the particular moment of the of the records they also had an explanation from the plaintiff's as to why they had  she actually informed him that there was an entry injury that was sustained so she had knowledge of what her injury while she had knowledge of why she had been experiencing pain and that was something that not only to those of the plane  and her other son who was a stacked winningest testify there from the the after the st surgery in february of two thousand and fourteen she spearing us to extreme pain and even got to the point where she couldn't walk i don't think i had to ju that's not enough to say that she that they were on notice of that or the start of the diligence inquiry how can you win because their contention is that there's a later date which is the st date that me if you're not trying to answer my question ok ok and i just want to understand what the answer is if we started this far on the rd surgery for diligence for this what limitation and had a whole other  that he believed in actually he told them after those procedures that they had not had the result that was expected or anticipated this is not a case where there were reassurances on his part where he told them oh no this is just you thank you thank you very much thank you that concludes the arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court got secluded out so i thought i had consummate disconnect from the meeting i t will stop both the recording and the live audio stream p