when one reads the record and reviews the transcript it becomes clear that the court was of the opinion that it had no disk to grant them their statements made in the transcript where his honor actually states while he may gree help when a district court fails to exercise discretion that it has but that itself constitutes abuse of discretion as a matter of if you better get a failure to exercise discretion it's simply a conclusion by the judge that there is no change in the law that would justify revisit and your whole argument was based on the notion that the albert somehow radically changed the legal landscape you object in that he's saying there was no persuaded by the fact that the supreme court did nicira your e and this court as well as the supreme court's the clearest evidence of that in the record i mean i see judge heard me asking you a number of questions  and saying if i recall correctly that i should not do this not that i cannot what's the clearest evidence that he did not think he had discretion i think at this statement which appears on page eleven of the appendix i might have disagreed with the th circuit but after they have spoken i have to follow the sentence so here he's essentially implying that he has no discretion to act when this court in friedel a the supreme court and standard oil specifically held that when there is a legal change of wall when the law changes or if there's a material change in the manner in which the supreme court approaches a legal doctrine that the rules  this is not one of those cases were i think it district george should grant a rule sixty p motion should ship however i me feel about the merits one way or another but what he's doing there this is i mean in many ways said judger the jury going to be making these decisions and then reminiscent of what i think it's a concern of some of the new were justices the supreme court ghosted just some trouble to say they're only certain ways the f not like bailey you know where it used to be that you could convict somebody for possessing a firearm under your mattress and tomorrow you can't anymore that was a total flip flop is these are the where the cour it was a change in the supreme court's approach and that was the word that was used in her mirrors a change in the supreme court's approach and what the supreme court did in alberich was it changed its approach on how preemption has to be decide dramatic a departure from wired do you think it would have the court might have been a little more explicit even i think the court was explicit because it specifically said you have to have evidence of the f d a prohibiting you from warning so you no longer and that is why   just sikes when when i was arguing mason in front of you in her honor asked me specifically that you know when i open that that was not your belief under white that you could use the word that doesn't have that extreme record right record requirement that one has to propose a label and have that be rejected and that was your terms and that's how a lot of judges were reading life that you do not need to present a label that simply you can look at surrounding circumstances and say that the f d a would have  rejected this label i'm not sure how that distinction helps you here because in this case there was a label change that was formally rejected there was a multiple time known the late st of all the roots requires that you have to present a label that is required under state law it has been our position from day one that if the g s a never did that the label even the two thousand and sixty or dr letter and this proposed label did not satisfy state so that even but even the narrower additional warning was rejected it was not your honor it was if this is the one where you were invited we don't want to mess up the classified warning with this information but you may if medications and they had the data from all of the other manufacturers and concluded that there is a risk extending up to age twenty four our position is that the end she asking never gave the f d a all the information that it had that would have supported the f d a said we're looking at this types of clinical trial data give us that data which just couldn't even give them all the data that the f d a requested but g s k itself knows that not only does it have that data but it has a wealth of other  information your honor it were to look at g it's k and we presented it through five weeks of trial had a whole host of additional information that would have trigger ed and labeling change under to f d a regulations i want to close with this one point your  of regulations are far lower at the standard of went to trigger a laden change its far lower than what state law provides state law provides an actual causation to prove our case at the negligence and and harm a court under the regulations you don't even need to have a causal association and levine your honor that the f didn't have a super cassette a warning was required based on what twenty adverse event reports that we're just  should've had that land the court will come in and say well under those circumstances it's too late in the day to bring a rule sixty b because the parties have relied on the judgment and forward when you don't have that here but when is it too late it's certainly not too late in this posture on a week when i when is it too late i don't know is no time limit under sixty p so there is no time limit under the sixty eventually though if enough time goes by your honor i understand that that would be too late but it will case after case what the supreme court looks at  required to reverse i just records denial of rule sixty b six motion under the exceedingly deferential standard or review this court applies and nd even if this court warrants rule thirty eight dollars fees and costs i couldn't disagree if you more about that i think that reading alberich there are ours certainly changes in emphasis at the supreme court is made on the other hand of course there's the rule sixty p standard in every tweak doesn't trigger the right to rule a right to read be relief is opposed to possibility of it or we would never be finished with any litigation i be ever so they're like a whole like column in the opinion where they say the reason we're taking this is because the courts of appeals of been all over the block about whether it's legal or you know of question for the court question for the jury and then they go on to have a very interesting discussion and least from my perspective about exactly how formally the f t a house to articulate its position and through what vehicles and so i say i see this part of maybe a bigger of pattern of the supreme court  sixty argument would be for it was the st of which is under nash and this court's other cases john we need to show that those changes that albrecht rot were in fact outcome determinative to this court's decision and don't and i don't think there's any way of doing that because the f d a rejected something but did the f d a reject exactly this again if we're if we're just talking about whether this is a frivolous motion under the rule or not forget about who wins on the merits district court cannot be this court's opinions well if a district court wouldn't do that but there's actually a whole procedure in place where is a district court can give an indicative ruling the district court can follow the law of the case but if the supreme court has intervening authority or let's take a difference in suppose congress passes the statute in the meantime and both this court in the district court had been relying on the previous law that might be an area where you would say well that there's a new statute you know or a new supreme court decision in the district court could indicate its willingness to reconsider this court thought that was the right thing to do and we have these indicative rulings but i think the problem is and underachievers this court seems to have been quite clear if your problem is with the order that the th circuit issued which is the case here that is the dispositive order of the dawn is asking the district court to vacate the proper procedure is absolutely not to go through it is to ask this court to recall but this case throughout has been a closely balanced case i mean i think the other important factor to consider is if you talk about the diligence aspect and bypassing remedies i think it is significant that the way this case came up session for counsel whether to ask that something be held at this level or whether to just say things are over and done with in the th circuit let's let the hold happen at the supreme court level which is what they did here was held the it should have been clear that there is no reasonable prospect of success on this appeal again you don't have to necessarily create fees and costs but we do think that the outcome of this appeal quite clear this hurts you how does the record show about how complete ski's disclosure of  arguments on appeal this last time and it is clear this court said f d a was aware of the nature of the data it received from j f k but that but see what does that mean is that the same as a sentence that says drugs we wanted certain categories of studies tell us what you're including tell us what you're not including you know why is that correct yes that is correct and i think again this show understanding is that it did no i don't have a record site to point to right now but i do think this shows that again this is a really a redo of what is happening on appeal before and that that is not something appropriate for all sixty especially given all the other factors that are not s d and so again i mean there are many many pieces of this court that indicate rule sixty is not an opportunity even if you thought there was something wrong with the school vision which again well that's a set of cases you need to look at there that i can think of and so we decided in accordance with our prediction we were flat wrong the indiana supreme court took a case about seven months or a year later they said no we don't agree with the th circuit they were wrong so somebody came back with a rule sixty b motion which  years about you need much more than that otherwise the floodgates would be open any time there were any sort of debatable changelog job and final judgments and that really under norgaard at this court is very clear that would be extremely destabilizing for the path of the law and not