before it leaves the question my name is steve frank from the justice department on behalf of the appellant the united states the district court in this case made three significant errors each one of which would warrant a remained in this case first the court applied the wrong legal standard with regard to preexisting conditions second the court virtually ignored an abundance of evidence about preexisting conditions and third the court unduly of a limited the testimony of the government's expert witness so as really to sit to disregard all of his testimony and all three of those are interrelated and when you're out i'm all up the government really was case is you can't read the record this this plaintiff unfortunately has very serious problems before this accident and in fact there were the same problems as to the i q of a c at the time of the accident i didn't see that in the briefing counsel can probably correct me i'm thinking was it fifty two fifty three somewhere in that range and the  review these factual findings of fire yes sir we can't reverse district court judges like this unless we firmly convinced  there's a mistake there he made it there's that makes it very difficult in this case and if we were trying it ourselves we might not make these f i'm not sure we can just reverse because you find some evidence to the contrary that's that's largely true your honor except that the first error that we argue is an error of law so that kind of deference does not apply we say that the district court applied the wrong legal standard the other to which is that she judges as matter o ignored the great abundance of evidence of a pretty  or she applied to standard which would have allowed you to show that he would have become disabled eventually anyway because of his preexisting conditions and she did not find that you had proven that that's correct and our position is that that was the wrong legal standard the judge or the court applied a legal standard which was which shifted the burden to the government and apply the legal standard which is applied in this market use out of the second circuit and she applied like the second exception in that mark a switch shifted the burden to the government to show that his injury inevitably would have occurred our position is you never get to and we're not really clear why you got to the second exception to the maher case our position is that in the preexisting condition this is what hinders and said in fixing the damage is approximately caused by the negligence where the there is a preexisting disease the recovery is confined to those injuries which are due to it's enhanced much or aggravation and does not include injuries which result from the original condition in other words it was the government's position in this case that we don't have to be looking it's the second exception to a second circuit case we can look at the fifth circuit law and the law is that it's plaintiff doesn't it require you to take the burden on you know if the man was not disabled before the accident and the district judge finds that the accident or not as much and i just count i understand and i think the key in this is where i think that the district court didn't make these fine distinctions and i want to emphasize here there is a difference between where there is a latent preexisting condition and where that preexisting condition is already manifest and this is the key to this case we spelled it out in our briefs in particular  reply brief a page four and in the footnote we cited the law let me just briefly explain this ok when there is a late didn't preexisting condition and this is this is a law the fifth circuit the second circuit and in general maritime law when it's late in other words it it hasn't appeared yet it's a symptomatic is the way they say it well then if something happens later ok then in that case the defendant is can be liable for all of the injuries because under the the old craze that we all learned in law school professor sutton taught me which was that you take the plaintiff as you find ok the problem here is that the district court applied that kind of a late  another word saying he had this a latent preexisting condition and therefore shifted all of the damages over to the government and shifted the burden of proof that was the mistake because in this case plaintiff's preexisting conditions were not late they were not asymptomatic they had already mad a festive grimston and just and that was what the district court of a ditch  court applied the rule that says that if the a preexisting conditions you together with accident cause the part of it it has been his neighbor's car it's complicated i think we've laid it out in our brief that what the district court did would be correct ok which is to shift the burden and to cause the government to be responsible for all of his injuries if he is injury was late and in other words it had not appeared then we take him as a yes if we injured him what is it you take it you break i is there a legal definition for late and i mean i don't know i mean he was still working full time he was going up and down stairs looking at these old ships or whatever it was but needed help so even though he had some problems like to the extent that he was still working full time in i don't think there's any evidence that he was disabled in any way and in doing in performing his job i think that the key is the phrase not so much latent which is a little to but asymptomatic this was a gentleman who for ten years longer than ten years had been going to doctors in terrible pain seeking pain medication every doctor that he saw told him he seriously affected person and you know there are a lot of times when people have m r i serious systemic problems but for whatever reason they tough them out and they don't get the ultimate surgical treatment probably be in part because surgery does not was help so it's although it's definitely a pretty existing condition it may not have been a disabling condition and applying for disability is a different thing from you know getting damages for the causation that resulted from this  i understand what you're saying your honor and my brother bless him lives in upstate new york and the doctor keeps telling him he needs to get his knees replaced and he doesn't want to do it and he's he's entitled not to do it but if somebody runs into our are they going to be liable for all of his problems just because he was too proud to do it and i think the point i want to make your honor and the point that the government is making we're not saying that we might not be liable for it to this gentleman for some damages ok that he was awarded two point eight million one point three and pain and suffering and we might be liable for a certain percentage of that with the district court made an error and why it needs to go back is that the court failed to apportion how much of that damages was due to already manifest he already had these problems conditions before he slipped and fell in the us ship and how much was aggravated afterwards look and that's what the court needed to do well looking at you're looking at judge morgan's finding thing conclusions here isn't too little paragraphs defendant is not liable for injuries the plane it would have suffered even if the second accident had not occurred and he she cites schoenbaum and then there and she quote the defendant bears the burden of proving the damages that would have been evident because she cites maher and in a footnote says both parties cite this case in their trial memoranda you know i mean morrow we cited that obviously because it's it's cited for when there is a what's called an eggshell plaintiff in an eggshell plaintiffs is somebody who has a late night but not manifest injury how come she didn't feel obliged to yet manifest he says that in his brief and that's what's critical here the court also made other errors that's an error of law i think it's clear and all we're asking it is that go back and that there is be some up portion we may be liable for tens of thousands of dollars or hundreds of i don't know what but it needs to be apportioned because this gentleman as as dr wilson said he had been stage bone on bone  osteoarthritis before this accident he says it was as bad as it gets i don't know how to gets any worse than that that's what he had before the accident and you've got to take that into account and that's the problem with think one of his physicians judge on the moran has tried to put in disability for him for him and this is the other point that i want to make is that none of these positions based their testimony on any objective medical evidence his main physician dr thinker said he saw no trauma no physical trauma following the accident they all based their testimony on the subjective opinion of plaintiff who said before this x is it i was great i was doing plumbing after the accident not so much so there is no but if you're not medical evidence and again i'm not saying that we're not liable for something but we've got to know we're not libel for all of it that's what i'm saying and the other thing is there's errors here your honor judged in this there are more than just little court said there is no evidence she said there is no look the only evidence record x on appeal twelve thirty one the only evidence presented by the government of playing this claim ok how did you pronounce it posh first of all what i would like to do is address some of the factual errors that counsel just recited to you number one it wasn't an error because he wasn't sure but doctor missed mr caution never applied for disability prior to this the incident giving rise to this claim counsel indicated that dr moran had put it in for him that's simply not accurate and mr cox was not on narcotic pain medication at the time of this accident but let me address the the legal error issue that the united states brings to this court  indicates and suggests that the district court judge morgan misapplied the legal standard regarding exacerbation or aggravation of a preexisting condition as your honour's i believe indicated mr costin was not disabled at the time of the sacks and he was carrying on all those activities of daily living in beyond doing extremely heavy manual labor at home performing all of his job duties at work did not miss work there's absolutely no evidence to suggest that he was disabled or incapacitated in any way it is true in undeniable testimony is unequivocal and i hate to i hate to spend time with a but citing his testimony but out just point the court to the record at pages nine thirty five through nine thirty eight nine sixty nine nine seventy three and one thousand six through one thousand nine with respect to dr moran and the court will say that it's that dr moran testifies unequivocally that as a result of this accident mister carr sustained a new injury at sea six at sea sick seven being a herniation and he aggravated he aggravated the underlying degenerative condition it's a five six and he relates the aggravation and the new injury to this accident he relates the surgery that he performed the interior cervical diskette to me in fusion at those levels to this accident and unfortunately that surgery failed and he had to undergo which at the time of trial he said he was going to have to undergo a pasta or approach basically redo which occur subsequent to the trial of this matter is why people don't get surgery for this yeah it's it's  i agree and done it's it's a fifty fifty proposition unfortunately in this case mr carson was left with little alternative but to undergo the initial surgery following this accident because he was suffering from extraordinary symptomatology in his upper extremities and in fact the neighbor placement that dr finger saw him for before he saw dr moran had to be postponed because of the urgent nature of having to undergo the cervical surgery dr finger did not want to do the name replacement before the cervical surgery was done similarly dr finger you in the district court's findings do do we have evidence that district court take took into consideration these prior injuries in determining damages but because because the district court talks about in detail all of the things that missed first of all she acknowledges that he had preexisting arthritis but the district court goes to great pains i think because of the more versus u decision and the fact that that case was remanded because the district court was not so explanatory with respect to what occurred in that case to indicate that mr koch was capable of doing all those things that i was cited previously and that one of your honors also indicated he was capable of doing before this accident and after this accident he was basically an invalid and unable to do any of those things well until the surger which is on the pages that i recited to you indicates that the neck condition for which he operated on and and which failed and for which he needed another passed with for which he needed another surgery and the carpal tunnel procedures which which conditions occurred as a result of the first that surgery post accident would disable him more likely than not and that was a doctor's problem but but i guess my question is this  related to what judge problem said though because looking at the findings here one of the judge said this sort of minimally well you had preexisting osteoarthritis and the fact is he had extremely serious preexisting arthritis in his knees such that he probably couldn't have gotten hired by most companies had they been informed about this so there seems to be an intuitive serious factual basis for saying these aggravated a preexisting condition whether he considers himself disabled might be one thing but in fact  he had a condition that was but that for all intents and purposes was was a deterioration of an average human structure and therefore why should they be responsible for the entirety of  the damages they are not responsible for the entirety of the damages two point eight million is seems like the entire grid even but one point three million for his pain and suffering right and what i would submit to your honor is the district court did not find that they were responsible for the house the arthritis the district court found that they were sponsible for the aggravation and exacerbation of that condition of that fine in this opinion because she said they did not bear the burden of proving the extent of the damages at the preexisting condition would have been of legal cause big to correct they didn't prove the exactly we proved so you know it so she did not discount the damages at all based on aggregate augmentation theory no she she did not indicate that she made a disc in other words she didn't come out and say i discount this right for such and such w asking for more than two point a million yes we worked it and this record this trial record does not do justice to the testimony of the plaintiffs and the plaintiffs employer or to the doctors the testimony from the plaintiffs was incredible frankly and it was credible and that in the court looked at all of the witnesses how much are you asking for for pain and suffering as i recall we were asking for one point five million ok and how much are yes king for for medical or the other not the economic damages whatever whatever the amount that adds up beyond not in other words the medicals were pretty much i mean medical expenses are pretty much they are what they are also getting damages for lost earnings right right the economic loss that the discounted any of that now but look but she made what i don't recall is the government's expert on economic loss and the plaintiff's expert on our economic loss were probably within twenty five thousand dollars of that so what i'm saying is she did not discount anything except a very high pain and suffering because of a preexisting condition and what i'm saying is if i believe she did because in this if you or your honor will bear with me and you can you read the mind of the judge on the judges i'm bothered to put it in an opinion it i can't but what what we had to show was that in any any of these cases as the personal injury claim plaintiff we bear the burden of proving that the defendant was negligence and the negligence caused harm in this case the harm is a couple of different things number one a new injury that dr moran testified to at  six seven and aggravation of a condition in the neck at c five six an aggravation of both knees the carpal tunnel procedures as a result of the neck that's what our case was about ok we proved that we were not asking for injury we were not asking for damages because they caused osteoarthritis he already had and so my point is we we put on evidence to show the nature in the extent of the aggravation the new injury in the ne and the aggravation in the knees and what that cause inter in real terms loss of ability to to work and so that's what proof was what do you do in terms of doctor fingers  i've i well well it may be part of testimony but not complete testimony and i would direct your honor's attention to dr simon fingers testimony on pages ten thirty six through ten forty one of the record  and i'll read part of it in your opinion is it more likely than not that the february second fall exacerbated his underlying osteoarthritis he says yes and that that fall caused him to become significantly more symptomatic yes yes and it is it is it your opinion more likely than not based upon your education training is it your opinion there's more likely than not that the february to two thousand and twelve fall necessitated the surgery that you performed yes and also the total knee were left total and then he goes on and he's asked questions about the future replacement of the on the what i understood was that the district court said that the government could if the government could show that he would have reached a same stage of disability because of his breeches conditions without action they would be entitled to a discount but she said you didn't show that you didn't show me the discount i thought that was what she happened in this case she did ultimately say that but that's after we said we have to prove our case otherwise we don't even get get to that point so the government doesn't have to show that unless we prove our part of the case and sheets and she and she says clearly by her findings that we proved that he was able to do all these things before and he can't do these things that now and as a friend a question i thought and i think that's the way i read what happened is that you proved that he was worse off damaged disabled after this accident and the court was willing to listen to the government come in and show that he would have been that disabled anyway or or maybe  eighty percent of that or something but she's eighty they didn't show that there's no question about that and i guess and i appreciate the friendly question but my point is is they don't even have to that's that's an escape hatch for them only if we prove our part of the case and so she says you prove your part and how this impacted him the government has the opportunity to come in and show that he would have ended up at this point anyway and they and she says i don't find that they did that and those are factual determinations those aren't legal determinations and obviously she's entitled to her or factual determination asymptomatic conditions where a plaintiff has an underlying condition that there are no symptoms manifest and then there's an accident that doesn't cause the condition but what causes it to become symptomatic and aggravate or exacerbate their conditions and the the courts that the plaintiffs are entitled if they prove by preponderance of the evidence with medical evidence that that the accident aggravated or exacerbated or disabled them they're entitled to recover for the amount of that aggravation exacerbation or disability and that's i don't think i frankly don't think this is a  this isn't a unique to this case this is what happens in many of these cases where the plaintiffs have i worked for a long time i have some pain which is treated symptomatic but are able to carry on their activities of at home and at work and something happens in their injured more significantly and if the judge in this case would have given the jury instructions like more and so forth and the jury in the jury verdict form what was said was the defendant negligent yes was the defendant's negligence approximately proximate cause of the plaintiff's harm yes and did the and then you know obviously list the harm and the amount that you were toward we wouldn't be here i don't think because this these are the proper legal standards for the court to apply the only gap is question who has the burden of proof on on aggravation or inevitability or whatever in my view based upon the cases in more of spells it out pretty late no more is filtered out that goodness gracious i mean we're talking about what is  nineteen eighty one earlier than that from the second circuit and hardly anything from six hundred sixty eight i have second so that's way back there and nothing specific in hundred sixty people or so and i think and i think the reason for that may be your honor because it's pretty well recognized in in this area practice that the pla bears the brute burden of proving aggravation exacerbates your nature and extent of the harm and disability and if the plaintiff is able to do that then the burden shifts if the plaintiff isn't able to do that then the case is over thing i'd like you to address quickly but and you can do it quickly as was the exclusion i personally think you clearly misinterpreted or put a foot in misinterpreted the rules  wanted he did comment on what the other experts said he said he disagreed with them in effect that right exactly and there's no problem with that and that testimony came in what the issue was is that d hagman wanted to comment on an m r i film that was available to him on august twentieth two thousand and fourteen the defendant in the us in their brief talks about that isn't duly discovered evidence there was no early discovered evidence  certainly would have been able to come in on it was available to him in august of two thousand and fourteen they took his deposition for trial two months before trial and exactly what you're saying and i ask you even if  harmless error of course because he was able to comment on it he was he was able to provide his opinion well but then she said then she interpreted his opinions if he had never seen it so you see he sort of set up a false premise there meron you know well of course you're the treating doctors something which is anyway i don't think i don't think her findings are conclusions suggest that he found that she found him not credible very briefly i think there are three points that can dispose of this case from what i've heard judge judge gets it the first and i won't get into lengthy because i talked about it a lot is this case is not mar mar was and what's called an eggshell plaintiff's case where a person has a latent condition that later exacerbates itself and the burden shifts to the government which i think is the critical point we would not be here today the government does not often come before a court of appeals as judge dennis pointed out and say the court was clearly clearly  you know in that kind of a case but here you've got more than that you've got the court actually saying there was no evidence of preexisting conditions except the testimony of judge hate them and that's i just clearly wrong and that was critical to the judge's opinion because because the judge said there was no evidence she didn't mention any of the plethora of evidence that we pointed up it's in our brief it's in our opening brief it pages one through eight in twelve to fourteen in their reply brief none of that is found in the district court's opinion in her opinion when she wrote the paragraph she said although he frequently experienced painful working particularly in his knees and in a footnote said doc mr karr had to open surgery on his right knee two or three topic procedures on his left knee so it seems like she she was aware of these injuries and mentioned it in the finding earth vault barely aware i mean we presented a great deal of evidence trial exhibits medical test that women to great lengths showing the extent of those injuries dating back ten years before this surgery and all you can find in the opinion is that that's it but more important is judge and i think this case is judge jones point judge jones point is that what is missing from this opinion and as plaintiff's counsel concedes it is their burden before you get to your point judge dennis which is the missing in this case is what joe judge jones pointed out we don't have anywhere in that opinion do we find our ites plate if her claiming a plate of seek ten million dollars ok but let's look at the testimony of judge osteoarthritis and therefore of this ten twelve fourteen million dollars seventy percent of it is got to be attributed to that preexisting condition and i'm not going to give an last question and we've briefed it great length i'm not going to belabor it here but the the the the limiting of the testimony of our expert was more than just harmless  the key point as judge jones pointed out was they asked them the manic hypothetical question they said if you didn't look at these x rays then would you do further to somebody who did look at the x rays and of course the man said yes if i didn't look at him then obviously the person who looked at him is in a better position our trial lawyer got up to try and rehabilitate the man  slight change here you did look at the x rays didn't you right and and that's where she said no i'm not going to let you do that so and she ended up in a good judge brought it in her opinion she said that he conceded that this