next matter is in right diet drugs sure get this on tape it's unfortunate they make these things for unusually tall people and you're doing fine thank you your honor  explained something that i think this is particularly noteworthy we are here the defendants and the district court argue that the plain language of the settlement agreement must be followed to the letter and that only in the words of the just record and echoed again by the defendant that only a pulmonary function test with a result of greater than sixty percent long volume is the determining factor on that criteria or he ph what dr fortan explains and dr fortan as the court has seen in our papers is a board certified cardiologist who is also not she is not a litigation expert she is the patient's treating physician and has been for a number of years she seems to say that the that the p f d test is no longer sufficient technology has changed correct but she also says and this is the thing that i find some notable at paragraph nine she says pulmonary function test is a generic term used to indicate a battery of studies or maneuvers that may be performed using standardized equipment to measure long function they can include simple screenings by rama tree form along volume member measurement diffusing capacity for carbon monoxide and arterial blood gases insight into got if that doctor agrees and you know which is that under the standard that in that settlement agreement your client doesn't threshold house your honor that last point is the linchpin and this doctor does not agree with that point this doctor says you cannot take the cold reading from the machine and accept it as the gospel you have to take that reading later is there is there any other piece of medical evidence other than the doctor's assertion that i believe she's got you mean is there another if past is there some other piece of you know you're operating under under the settlement agreement and why should that not be compatible the doctor suggests and we agree that it has and complied with that if you consider the reading from the machine in the proper context taken with other tests with clinical evaluation by a train physician that you will find that she does in fact meet the criteria that talked about the settlement agreement don't you need to get the agreement reform that is make hard to make to make your claim we suggest your honor that that might be appropriate that we think the district court has already done so the district court has already said that where there is a difference of opinion of that clinical diagnosis the pay or you don't need the gatekeeper in a different p t o and under a different test correct come in and show the comply with this use of the settlement agreement and we argue that dr fortune's declaration taken in conjunction with her other medical records does in fact establish that standard at least to the point of creating a material question of fact as to whether she has a proper diagnosis of p p h there's no question on this record that she has ph and is being treated for it the only question that was before the district court is whether she met that sixty or greater standard now defendant and that's the point i'm i'm open for you to confront directly i've read carefully  very careful not to say that because there isn't such a test right what she is saying well you can go to what she is but in my right and in my reading of her of her affidavit she does not say that there's worst for your client showing greater than six percent on capacity she is saying that there is not a cold reading from the machine that shows sixty percent that you must you cannot take that reading from this machine in a vacuum it is based on an assumption of an average that the clinician must evaluate absolutely understand what she wrote and i understand your position and what i'm trying to get you wrestle with  one would have to say that this section forty six to see does it no longer controls right because if this if this section in the settlement agreement controls no twelve years since this settlement agreement was entered medical diagnostic procedures medical treatment and medical technology has progressed to a point where simply saying  we made the argument that technology has changed to the point i believe we have that that you now must consider these other things that because of the changes and in the machine which now uses a software driven model that is based on an average of the old machines as dr ford explained the old machines as the test was being performed the clinician could change the dial change the setting for the expected long volume so that based on the clinical evaluation and the other medical records they could say well this lady doesn't have a five point three seven expected value she has a five point zero or a five or four point nine and it was done immediately as the test was ongoing this or emotion was or emotion before before the court and the passage of time and the progress of medical technology the old settlement agreement the old language simply could not stand as this and what the court said was that the court w limited by the language of the settlement agreement which says that the court only the p f t can be considered the settlement agreement never said that if that's the case it wasn't before this record how can we consider having you with no the argument was made it was not made in the form of the formal application to reform the contract but it was made in the sense of thing your honor this language must be interpreted based on medical technology and medical expertise which the pork with respect simply does not have and that is why i'm medical experts affidavit is offered in any medical case because it is beyond the ken of the court which changed from a fifteen percent auditor a one hundred percent audit that that was not evidence that the judge could reform the contract because in fact it was made on application of all the parties i would argue that simple simple good sense and  equity and the interests of justice would require that were evidences before this court that their standard is simply not a tenable standard anymore yet standing by itself and that the court is inserting language  it and feels compelled of the only part right well the reason that i used the term earlier in my argument that it was deceptively straightforward as dr foreman has explained it is not a test with a result it's a that must be interpreted to reach a result and that may not have been the case twelve years ago but it is the case now and this client is before the court now and will be deprived of any chance of redre because she has he age she has no redress under the settlement agreement she is not going to be a compensated under the settlement agreement that she's going down to these are the most seriously ill of all of the users of diet drugs these  certainly they could certainly in in in hindsight they should but the question is now has the district court done justice for this client has the district court in what it called its date keeper function properly ignored this evidence that it said was irrelevant to this discussion it's certainly relevant it's crucial to this discussion to the question of whether this plaintiff has created a material question of the act that should have gone through the state court system to be tried before trial or back to resolve whether or not she met that standard once that question of fact was demonstrated which unquestionably it was on this record the district court should have taken its hands off and stepped down it did not do so so at every step it has made what use of the settlement agreement it could to the end it desired it has entered orders in thirty six ninety nine and even that was back in two thousand and four the difference in medical technology in just those years between two thousand and four and now is mind boggling but even then the court said where there is a question between medical criteria and diagnosis where the evidence has been offered it must be tried by a trier of fact it is not amenable  settlement agreement at issue could not be more precise for this particular condition for for lung disease to rule out lung disease it's got to be done by a particular task that shows a particular result the particular was done and that it shows total lung capacity or fifty six percent then there's the her first declaration that she wrote on october twelfth two thousand and eleven and what she says there is the palm of every function t reveals a very modest restriction with total lung capacity of three point zero three meters fifty six percent of predicted and then in her in her just nov sixteenth two thousand and eleven decoration which counsel was reading some of the paragraphs are she not only sas that the p f d showed fifty six percent but she says that it was calculated in her own laboratory based on the predicted function for somebody not fifty six percent she never says that it was greater than sixty she never says anything to suggest that this often actually meets the settlement agreement well she she says in her affidavi back in this court but there might be other opportunities to do that but i think also just patchouli this argument is being made based on an evidentiary record that doesn't exist dr fortan never says that think this person has p p h and i look at a patient i don't look at all an amalgam of individual tests and when i look at this patient as a whole i really think she's got the ph and it doesn't matter what her p doesn't matter what her total lung capacity as and i understand the treating physician saying that but what we're dealing with on this appeal and what the judge bottle dealt with in the district court is a negotiated settlement that provide specific criteria that a patient must meet in order to qualify to bring this lawsuit and there is nothing ambiguous about the criteria and there was no suggestion in the record that that criteria is  take it because it's not referenced i take it no one else is tried to come forward with a claim that also tried to argue that there should be a different b if the test correct your  and it's not in the record but i don't believe the p f d tests changed over the past decade or twelve years i think it's the same test today as it was but really what to whether it is or isn't your answered my question no one else is young for now this class no not not today toronto the part one of the title meant definition which requires a plate of to present also objective evidence that a plaintiff has a particularly mean a particular palm in every artery pressure and a wedge pressure of fifteen fifty six to sixty four then maybe there would be maybe there would be a disputed issue of fact about whether it's greater than sixty or whether it's less than sixty but there just isn't any dispute here about what the actual p have to show honor unless you're under lashley unless the court has any questions there's an arc there's a lot of argument about changing circumstances and change technology and i just made this point a minute before but that's disputing the proposition that that should be the standard under which lung disease that's ruled out she said she wants other things to be taken into account which also by the way she talks about body habitus and she talks about mate my colleague suggests that the doctor never pointed out that there had been a change in technology and i would direct around her to record a eight o nine the end of paragraph ten and paragraph eleven where the court says on average is actually for persons of similar height weight ethnicity etc however these figures are only averages and may vary in actual practice i would argue that that is exactly what the judge was saying there that the newer machines base that they are on a software using an average must be taken into consideration and what the judge says is this is yes this was done at my university but it uses a model there are other models out there this is just the model my particular university uses and in my opinion based on my treatment and its assessment of this patient i am telling you a that the fifty six and difference between fifty six and sixty percent is not lower predicted volume i slightly lower average not the one in this particular machine software she would have necked the standard on the cold reading even without my interpretation so i would see yes that this is medical evidence it is credible it is admissible and should have been considered by the court to determine that there was a material question of fact and we would ask the court appropriately to send it back  to the court of common pleas for a determination on the merits thank you thank you very much case will very well or