st of all mr raymond crochet a sixty five year old gentleman suffers from a permanent neurological condition called tara dive this can the show in two thousand and twelve he began treating with his doctor dr nagaraj for major depressive the time period for filing the suit isn't when the doctor makes the diagnosis isn't wouldn't be before where there's a logical connection between the injuries sustained in the cause of the injury i realize that that may in some cases and maybe even in this case be very imprecise but isn't isn't that the time period that we're searching for where the claimant is on notice of that ff of the claimant and the association between the cause in this case you make you indicated that he was off of the drug or it is so there's an association or at least arguably an association between i was on it and then i had these symptoms this impact and then i stopped taking it and then i stopped having such and such symptoms so there's an association there and i realize we may not yet be to the point where he is knowledgeable about our claim but at least there's an associate cause and effect association that can be made long before we get to the doctor right respectfully your honor in call versus teletext to actually a squarely that issue of the answers unfortunately or fortunately for my case is no there is no sufficient damage and let's go into that this case falls squarely within the weeds and a product liability act for which article three thousand four hundred and ninety two dollars of the civil  and that is why number one it doesn't that indicate some things don't apply because what we do see on record pace for fifty four is that those symptoms actually want to weigh now in coal it's important because those facts are actually relevant time was there any indication that these damages were permanent that these damages were long lasting now he retires in eighty four but he continues on he continues on with them as best as monitor and program it wasn't until nine hundred and eighty five that he was finally diagnosed with a supposed those diagnosis is not the most important fact there but what is important is whether or not he had damage with sufficient certainty and the court held even though you filed suit seven years after you had that's clear but mr crocheted was unaware of that damage with sufficient certainty in fact like i said he testified as shuffling gait symptoms want to weigh and next with regard to knowledge judge on the heart the mouth movements that he had so he had no idea that this was permanent now wasn't there were warning with the abilify that the mouth movement could occur there is actually a warning the judge judge graves in what they call the medication guy not in the actual lab been called the medication guide and the only thing the only thing in the entire almost seven thousand page record that talks about the knowledge that a client had or did not have relative that was testimony elicited that a had read the label months after he started having mouth movements meaning he read the label after he was diagnosed with tardive dyskinesia meaning we filed suit within one year of that diagnosis or just inferring that shuffling gait syndromes are not i repeat are not a symptom of tardive dyskinesia which is important in this particular case additionally those shuffling symptoms one away and it is very clear from the court's decision that it ruled on page nine of their decision that once the plaintiff once mr crocheted had even had those shuffling gait symptoms that he had one year from that day in order to in order to go ahead and file his his lawsuit and that's that's incorrect irrespective of whether or not suit was filed based on that injury or something else then suit must be filed whenever the patient has any adverse reaction to the judge to the drug so judge greatest take for example if you started taking prescription drug a day and you started to develop headaches but those headaches one away let's say in december and then in july you wind up having a sudden being diagnosed with a psychiatric condition related to the drug then under the trial  ruling you would be required even if those symptoms want to weigh the file suit white one year from the date you start having those headaches and we know that ruling is wrong and the critical inquiry in this case should have been when did the damage occur when was there sufficient certainty that he was damaged it's in this case it's very clear while the diagnosis is not the requirement in this case it happens to be clear that he sustained those damage on october th two thousand and fourteen now in the alternative if this court were to find that his symptoms that he had prior to that formal diagnosis somehow constituted damage then under the doct this would also serve to toll prescription and you're out as i read the judgment several times several times and nowhere is there any mention of the term contra nonviolent and its role in the plight of the spite the fact that this was argued in the alternative by us now is this court knows there were three requirements regarding that doctrine number one the defendant must prove that the plaintiff had actual or constructive notice of the tortious act the resulting injury and lastly the causal connection between the two or that the pla damaged before that diagnosis date then the question is does contra nonviolent them apply and the trial court never discussed it next the best authority on the issue of consul nonviolent them is found in the case this court's case of chevron v acre and chevron v a court there was a boat that that failed in two thousand and one in two thousand and two under water dives and a video revealed the problem with the installation and most importantly a problem with the manufacturing of that bolt now suit was filed two years after the bolt failed the court this court when finding that suit was timely filed held that the one year prescripti period did not begin to run until after until after the plaintiffs conducted his investigation to discover the source of the problem the court rejected the defendant's argument the prescription should have began  once that boat failed what the defendants are doing in our case and what the trial court held is that once the plaintiffs started having any adverse affects of abilify even if they want to weigh them prescription begins to run that's simply not the law as clearly demonstrated in chevron and also the trial court failed to acknowledge the plaintiff's own reasonable investigation in carter versus matrix and this court actually cited to the supreme court case of louisiana supreme court case of jordan vs employee transfer corp which held that prescriptions not going to run at the earliest possible indication that a plaintiff suffered a wrong one prescription begins to run depends on the condition this is kind of what we spoke about judging or the awareness of the condition and its cause put him on constructive notice of this claim but on appeal this court vacated and apply the doctrine of contra nonviolent and to look at the pla conduct what did he do that to determine this and you're honest that's the main difference between this case and in the jenkins case the jenkins case for which the judge southwick you were actually on that panel in jenkins suit was filed on and it looks to the plaintiff's action and in the holding it doesn't apply to interrupt prescription on that panel just south of you guys acknowledged that he had cancelled his medical appointments in may of two thousand and thirteen so we look to the reasonable ness of the iming and the substance of that knowledge is very important because st of all they fail to mention that mr crocheted clearly testified that he looked up the drug after months after he had the mouth movements those mouth movements were right before the october two thousand and fourteen appointment so the timing is important now while they suggest that somehow it is research when after october th of two thousand and fourteen after suit was filed we filed within that one year the period of time now most importantly let's look at what the substance was one then when he testified that he looked at the label he testified he looked at the label it was no discussion about the medication guide and the medication guide is the only i repeat it's the tightly thank you prescription period under louisiana law that prescription period begins when two things happen one the planet becomes aware of their injuries and two they know or should know of some connection between those injuries and the defendant's product in this case the undisputed evidence shows including mr coach's own testimony that he had suffered involuntary mouth melting moments of which he was aware in august or september of two thousand and fourteen and that he can see in that he admitted it's own testimony that he became aware of the link between those mouth movements and abilify at the time that they had begun that is the that is the that is the evidence on which the district court relied in finding that mr crochets claim is end before they talk about what we really think is the evidence that decides this case and that is the testimony by mr crochet about his about when he discovered his mouth movements and that testimony we think is critical for the court to understand so that is the question and answer that is testimony that we believe is clear and ambiguous in an m b a give us on this question it is piers that page four hundred and seventy four of the record on appeal and it's a question that is posed by defense at that point you knew it had to be the abilify because that's what happened when you stopped taking it plaintiff's counsel did not object to the question the form of the quest has been beggar in the us in any way and mr crawshay answered the question on equivocal he simply said yes and he did so without seeking clarification and well suggesting he was confusing anyway asked coupled with the undisputed evidences injuries began in august and september of two thor september two thousand and fourteen the only reasonable inference that the district court and this court can draw is that he became aware of aware of his injuries and they're linked to abilify before his nd appointment with dr hauser on october th two thousand and fourteen because he filed his originally interpreted quote the time period referenced close quote in this testimony quote as referring to the period of the period prior to crochet nd appointment with dr hauser in fact citing this very question and answer in their opposition to our summary judgment brief in the district court play discounts of describe the time line is follows and this is a record is three thousand and fifty seven dollars they played a scouse themselves describe the timeline as crocheted developed uncontrollable movements of his mouth and jaw including lip smacking and clawed jock clenching crochet thought that stopping abilify might have caused the problem crochet therefore a mediately made an appointment to see dr hauser and visit him on october th two thousand and fourteen that is a clear admission there that he had had knowledge of the link between his mouth movements and abilify prior to his meeting with d hauser on october th two thousand and four and interestingly the district court itself restated that very sentence that crochet thought that stopping abilify might have caused the problem in in her decision that that granted our motion for summary judgment we submit there is no other reasonable inference that can be drawn from this testimony it is directly on point on the question and there is no other testimony from mr crocheted anywhere else in the record where he testifies contrary to this point for example he never testifies that he didn't learn about this until east he met with dr hauser he never says that that's nowhere in the record he never testified that he thought his involuntary movements were the result of some other condition he always said there was only testify that there was only one variable that it could be this is a case this is not a case where the record is confusing latest claim istead is that mr crochet himself was confused when he answered the question not that the record is confusing the problem with that is that plaintiffs themselves us mail deducing induce any evidences that mr crocheted was confused with the testimony or that that he didn't actually learn of this link before of between his involuntary mails movements and when he other things he didn't clarify this question any answer and when the issue is raised on and presented on or summary judgment motion in the district court they submitted no sworn statement from mr crochet to these facts that would contradict the one test for them to be entitled to judgment as a matter of law the burden shifts and according from all bar the case we cite in our brief the burden shifts to the nonmoving party to come forward come forth with specific facts that show there is no genuine issue for trial and it's and cases we also cite explain that they have to do so by coming up with significant probative evidence of the genuine issue that's the most yet the case they can't do it simply by unsubstantial sustained sheet of surgeons assertions of contra non dualism in the decision secondly appellate counsel describes the basis of the district court's decision as being the reliance on the episode of the prior episode which mr a crochet suffers from parkinson ism and then gets diagnosed and gets told he has parkinson is and told that is related to abilify that is not the basis of the district court's opinion and in fact on a motion f rely on the shuffling gait symptoms for its holding and the court clearly says on page five of their order on the motion for reconsideration that we are correct that they state that that was not the basis of the decision the basis of the court's decision is the testimony from mr crocheted unrebutted testimony from mr crochet himself that he became aware prior to prior to his meeting with he became aware at even if plaintiffs could have raised some genuine doubt about whether mr crocheted was correct in making a statement about having actual knowledge had it's clear that under the law that for she had constructive notice of his claims before october th two thousand and fourteen there's the the undisputed evidence that was available to mr percy at the time was that by august one two thousand and fourteen he already had been told by a doctor that a movement disorder in this case parkinsonism was likely caused abilify and that he should stop taking the medication now whether or not whether or not parkinson ism and tardive dyskinesia are related separate is and is not relevant to the point at a minimum he understood that a movement disorder could be caused by a  brief the label is a document that comes with the medication so is the patient medication guide the medication god is actually called the patient medication guide because it is a some more simplified more colloquial version of the more detailed label that is targeted towards physicians the the label itself for physicians had described tardive dyskinesia in a page long warning the patient medication guide itself similarly told patien to call their doctor if the experience any movements you cannot control in your face tongue or other body parts which may be signs of a serious condition known as tardive dyskinesia and that and the patient medication god also stated also start after you stop taking abilify and the critical component of this is crochet testified that at some point in time and it's in the record is unclear i'm happy to go through it but it's not clear when he actually looked up the label the this is a nuff to establish constructive is more than enough this it is more robust backs and you see in that case in that case plentiful edge injury from medtronic to infuse medical device and the court found that the infused product direct testimony from mr crochet that he knew before october th two thousand and fourteen in which case that is more than a year before he filed suit and secondly even if the court were to disregard that that there is clear constructive notice a robust set of evidence that would have put him on notice of his case under the louisiana law i would like to couple of things that i wanted to respond to the c contra nonviolent and doctrine there are exceptions to there is tolling of the prescription period if there is a question about which defendant or which cause is possibly the responsible for the injury those cases both described that situation and the peterson decision recently of this court described this is what's referred to as the specific defendant doctrine if it's unclear who is responsible then the could then the court may toll it there if they're the evidence around it is reasonable for the plaintiff not to proceed in the court may told in this case there is no claim that there was anything other than abilify that caused this no doctor ever told him it was something else no doctor ever he never suspected or testified that he suspected it was anything else and in these circumstances when he had just recently had another movement disorder that was caused by abilify it's not surprising that he didn't suspect anything else so those cases are not those cases are not on point here and in fact the peterson case describes exactly why they are  before he met with dr hauser on october th two thousand and fourteen our view is that that's an irrelevant fact the question is whether he knew and not whether doctors had told him it is clear when he testified in his deposition he explained why he came to the conclusion that that this may be related to abilify and that is because when he stopped taking the medication these symptoms immediately started and if there is there a question that i'd like to make just a few quick points about about alternative grounds for reform is we don't think that the court need reach these but of course these were also brief before the appellate before the district court and were not reach i think that the simplest thing to do is to talk about plaintiff's design defect claim under it a design defect claim under louisiana law you must prove the existence of a safer alternative side of abilify and that the danger and the damage outweighed the burden on the defendant of adopting that  alternative design in a pharmaceutical product liability cases requires expert testimony plaintiff doesn't have expert testimony in either of these points or the safer alternative design the only thing that plaintiff cites is that affidavit of their  one of mr crochets treating physicians a general practitioner who say i might have i might have prescribed looking back now am i to prescribe him some balta but as the robertson case holds we say simply identifying another drug is not describing a safer alternative design of this drug doesn't make it doesn't meet the requirements secondly on the risk utility problem courts refer to the nd problem often as the risk utility problem this is showing that the that the cost of changing the design is outweighed by the risk that can be avoided of the change but if i see no evidence and none exist on this at all plaintiff brief merely states that the risk it states that the drug manufacturers obligation or duty is only to warn the doctor not toward the patient because the per the point of that is because the doctor themselves is prescribing a drug  did not get evidence during the course of those depositions that any of them would have changed their behavior had they been provided what plaintiffs claim is the missing information there and if there are no other i have six points to make number one with regard to the judgment absolutely the trial court did not apply contra novelette them as a matter of fact counsel mentions that she didn't discuss shuffling gait but she says prescription began the one when mr symptoms went away at record pace for fifty four next they also acquiesce that the medication guide is not a label they try to take great pains to try to suggest to you it's it's well it's not the label but it's part of it it comes in conjunction with that medication guys not the  i use this product and i was injured as a result of the fens product this court held that the filing of a lawsuit four years after that statement was actually sufficient because the plaintiff has reasonable actions were to find out what was going on property and there was testimony by the fence that they have not even been operating in louisiana since one thousand nine hundred and five so no wonder that case was proscribed the noble review any inference that you're trying to suggest that you can conclude out of it has to be in favor of us has to be in favor of the nonmoving party and finally when you apply the law in the case the law is always going to be the law it's kind of like paint that you're applying to a surface you