[00:00:03] Speaker 02:
May it please the court Ross Moynihan here for.

[00:00:05] Speaker 02:
Could you keep your voice up?

[00:00:07] Speaker 02:
Ross Moynihan here for the appellant Debra Haney Williams.

[00:00:11] Speaker 02:
And I'd like to reserve five minutes at the end.

[00:00:17] Speaker 02:
The main issue that.

[00:00:21] Speaker 02:
I wanted to first address of course subject to the court's questions is the issue of the phrase reasonable degree of certainty or probably more appropriately reasonable degree of probability.

[00:00:38] Speaker 02:
I think certainty is even more confusing when you to a fact finder or to an expert who's called on to give an opinion.

[00:00:46] Speaker 01:
So the Nevada law requires reasonable degree of medical probability?

[00:00:51] Speaker 01:
That's your position?

[00:00:53] Speaker 02:
Oh, well, the Nevada courts usually use reasonable degree of probability.

[00:00:58] Speaker 02:
Yeah, that's what I said.

[00:00:59] Speaker 02:
Yes, but they use both interchangeably in the cases I've seen medical probability used more often.

[00:01:07] Speaker 01:
And that goes to the admissibility of the expert's opinion?

[00:01:10] Speaker 03:
That's correct.

[00:01:12] Speaker 03:
Has Nevada adopted the substantial factor test?

[00:01:16] Speaker 03:
Yes, it has.

[00:01:17] Speaker 03:
Okay, and so Nevada, I assume, has not adopted the abandonment of the substantial factor test that's in the third restatement?

[00:01:26] Speaker 02:
That's correct.

[00:01:27] Speaker 02:
Okay.

[00:01:28] Speaker 02:
Yeah.

[00:01:28] Speaker 02:
So what the reasonable degree of medical probability standard really is a court determination.

[00:01:39] Speaker 02:
Has the expert's testimony and has the expert's opinion rose to the level of reasonable degree of probability, which is a court determination?

[00:01:50] Speaker 02:
Nevada courts do not require

[00:01:53] Speaker 02:
the expert to state those words, reasonable degree of probability.

[00:01:57] Speaker 02:
In fact, in the expert's opinion, stating those words or not stating those words is irrelevant.

[00:02:03] Speaker 02:
What the district court is supposed to do is to look at the substance of the actual opinion itself and not rely on this talismanic phrase.

[00:02:13] Speaker 01:
Right, but there's this deposition transcript, two of them in fact, and it seems to me that the parties talk right past each other and get all bollocksed up.

[00:02:21] Speaker 01:
I'm going to ask opposing counsel the same thing.

[00:02:25] Speaker 01:
It seems to me to be uncontested that a person taking this medication properly, that is the titrated amount, could result one in 1,000 will have this catastrophic consequence, right?

[00:02:39] Speaker 02:
That is correct, according to the pre-approval testing.

[00:02:43] Speaker 01:
That was just a yes or a no.

[00:02:45] Speaker 01:
Currently.

[00:02:45] Speaker 01:
That's not contested, is it?

[00:02:46] Speaker 02:
That is not contested, but currently, yeah.

[00:02:49] Speaker 01:
Right, so here's the point.

[00:02:51] Speaker 01:
So when we read this transcript, I just want to give you every opportunity, both of you, because this seems to me to be the crux of it.

[00:02:58] Speaker 01:
There were repeated questions to plaintiffs' experts about whether they could say, basically adopting a but-for standard

[00:03:10] Speaker 01:
But for this dosage, can you say she wouldn't have had these consequences?

[00:03:14] Speaker 01:
And they said, well, I can't say that.

[00:03:16] Speaker 01:
And it seems to me nobody could say that, because 1 in 1,000 would have this result.

[00:03:21] Speaker 01:
What am I missing there?

[00:03:23] Speaker 02:
So that's absolutely correct and what the evidence in the case and the medical literature proves that when you increase the dosage and you increase the titration, so you move the drug quicker than it's supposed to be titrated

[00:03:44] Speaker 02:
and or you start at a higher dose than the initial recommended dose, you are more likely to suffer rash.

[00:03:52] Speaker 02:
And rash is a collective term that includes all the symptoms.

[00:03:56] Speaker 01:
I appreciate that.

[00:03:57] Speaker 01:
And I think your experts tried valiantly to make that point, that the likelihood of this result was, in their view,

[00:04:04] Speaker 01:
Increased with an increased dosage correct, but I'm just trying to get at the problem here And it seems to me the district court was presented with this conflicting statements that your clients Sorry experts both said I think they said to a reasonable degree of medical certainty in the reports, but be that as it may

[00:04:22] Speaker 01:
They took a position about the likelihood of this happening, and then it seems to me the deposition transcript is what defense counsel was relying on, and the deposition transcript really adopted a but-for test, which is, I think, not the right standard.

[00:04:39] Speaker 01:
That's Judge Bennett's point.

[00:04:41] Speaker 01:
It seems to me that the jury instruction is the 4.5 jury instruction, which is a substantial factor.

[00:04:46] Speaker 02:
Correct.

[00:04:47] Speaker 01:
Well, is that briefed before the district court?

[00:04:51] Speaker 01:
I look back and it seemed to me the district court would have been sort of in the dark about this.

[00:04:55] Speaker 02:
It absolutely was.

[00:04:57] Speaker 01:
Where?

[00:04:58] Speaker 02:
In the plaintiff's opposition summary judgment.

[00:05:03] Speaker 01:
There are, so really what the... I read the plaintiff's opposition to summary judgment and I read the plaintiff's cross motion for summary judgment and I had some sympathy with the district court here.

[00:05:14] Speaker 01:
It seemed to me to be very opaque, maybe because you both understood this and hadn't put it on paper.

[00:05:20] Speaker 01:
But it seems like you're just talking past each other in these pleads.

[00:05:25] Speaker 02:
Quite possibly.

[00:05:26] Speaker 02:
And what the defense or the appellee focused on below was the fact that the plaintiff's experts gave the opinion that the overdose caused the symptoms and the severity of the symptoms.

[00:05:41] Speaker 02:
That was clear.

[00:05:42] Speaker 02:
And the questions that they asked, can you state to a reasonable degree of medical certainty that had she taken the 25-milligram initial dose, she wouldn't have suffered these symptoms, and that's where everything kind of fell apart.

[00:05:56] Speaker 01:
And that's the but-for test.

[00:05:56] Speaker 01:
That's the inapplicable but-for standard, I think.

[00:06:00] Speaker 02:
That's correct.

[00:06:02] Speaker 00:
So as I understand it, Glinsky, he said two things in his declaration on the causation issue.

[00:06:10] Speaker 00:
One, that it was more likely than not that the plaintiff suffered because of the negligence.

[00:06:22] Speaker 00:
And then he went on to say that his opinion was seeded to a reasonable degree of certainty.

[00:06:28] Speaker 00:
On cross-examination of the deposition, he stepped back from certainty, but he didn't step back from probability.

[00:06:36] Speaker 00:
Is that your point?

[00:06:37] Speaker 02:
That's absolutely correct.

[00:06:38] Speaker 02:
And to be more precise, if I may, or if I may, what his opinion was, his opinion to a reasonable degree of certainty or probability or whatever it is,

[00:06:50] Speaker 02:
There's a difference, counsel.

[00:06:53] Speaker 01:
There's a difference.

[00:06:54] Speaker 01:
And the report said certainty.

[00:06:56] Speaker 01:
Both of them said certainty.

[00:06:57] Speaker 01:
So I read the record the way Judge Bea does.

[00:06:59] Speaker 01:
It appeared to be a step back.

[00:07:02] Speaker 01:
But I think your argument and your answer to Judge Bea is all they needed was medical probability.

[00:07:08] Speaker 02:
That's correct.

[00:07:09] Speaker 00:
He was successfully cross-examined out of certainty, but not out of probability.

[00:07:14] Speaker 02:
Well, if you look at the Iglinski testimony... Is that a yes or a no?

[00:07:19] Speaker 01:
That's an important question.

[00:07:20] Speaker 02:
Oh, he absolutely testified to... Well, the phrasing of the questions was certainty.

[00:07:29] Speaker 02:
but he did testify that the probability that it's more likely that when you increase the dose and you increase the titration that you're more likely to suffer symptoms and the severity of symptoms goes up depending upon how big the overdose is.

[00:07:48] Speaker 02:
Probability.

[00:07:50] Speaker 02:
Based upon... The answer is yes.

[00:07:52] Speaker 01:
He asked you whether he was cross-examined out of the probability standard.

[00:07:56] Speaker 01:
And I think your position is yes, but I'm not sure you're really answering that question.

[00:07:59] Speaker 02:
Well, the question itself, a deposition... To debate his question is what I'm calling your attention to.

[00:08:04] Speaker 02:
The question at deposition asked by defense was certainty.

[00:08:09] Speaker 02:
And he then testified that, well, and really the question, specific question was, he did testify that the overdose caused the symptoms.

[00:08:20] Speaker 02:
But then he was asked, the certainty question was, did the, if she had taken the 25 milligrams, would she have suffered the symptoms?

[00:08:29] Speaker 02:
to a reasonable degree of certainty.

[00:08:31] Speaker 00:
And he said, no, I can't.

[00:08:32] Speaker 02:
I can't say that.

[00:08:33] Speaker 02:
You can't say that.

[00:08:34] Speaker 02:
All I can say is that when you... He didn't follow up with saying, all I can say, but he said, no, I can't say that.

[00:08:41] Speaker 00:
Technically, yes, but he said, but.

[00:08:44] Speaker 00:
And he wasn't asked the question, can you also say that it didn't occur with a reasonable amount of probability?

[00:08:52] Speaker 00:
That question was not put him at the deposition.

[00:08:55] Speaker 02:
That question was not asked of either Oglinski or DiCerbo.

[00:08:58] Speaker 01:
And so the answer to Judge Bay's question is yes.

[00:09:01] Speaker 02:
Yes.

[00:09:02] Speaker 01:
He wasn't cross-examined out of the probability standard.

[00:09:05] Speaker 01:
That's all we're trying to get at.

[00:09:06] Speaker 03:
100%.

[00:09:07] Speaker 01:
Okay, Judge Bennett's trying to ask a question.

[00:09:09] Speaker 03:
So I want to switch gears a little bit.

[00:09:11] Speaker 03:
Let us say, hypothetically, we were to agree with you

[00:09:18] Speaker 03:
that you presented in the light most favorable to the plaintiff evidence to survive the summary judgment motion, purely hypothetical.

[00:09:28] Speaker 03:
In that hypothetical, is the plaintiff's view that we would have jurisdiction to consider your argument that the district court abused its discretion in not granting your Daubert motion on Benowitz?

[00:09:44] Speaker 03:
Correct.

[00:09:45] Speaker 03:
Then why would we have jurisdiction?

[00:09:47] Speaker 03:
If we were already hypothetically saying we're sending this case to trial based on ground one that the district court got the standard wrong and that there was sufficient evidence, why would we have jurisdiction to decide whether the district court abused its discretion in not striking Benowitz on Daubert grounds?

[00:10:07] Speaker 02:
Well, the district court's ruling on the Benowitz motion is really tied to the plaintiff's motion for summary judgment.

[00:10:19] Speaker 02:
And if the district court erred or abused its discretion and not striking Benowitz, that has an obvious effect on the plaintiff's motion for summary judgment, which was deemed moot by the district court below.

[00:10:35] Speaker 02:
Okay.

[00:10:35] Speaker 02:
Thank you.

[00:10:57] Speaker 00:
Good morning, Mr. Rosen.

[00:10:58] Speaker 00:
It's good to see you again.

[00:10:59] Speaker 04:
Good morning.

[00:11:00] Speaker 04:
Likewise, Jeremy Rosen, on behalf of the appellees, happy to begin answering the questions that you were asking counsel, unless there's a particular question you'd like me to start with.

[00:11:13] Speaker 01:
Well, I'm just worried that we might be missing something.

[00:11:15] Speaker 01:
Has there been some ruling that we don't know about?

[00:11:19] Speaker 01:
Sometimes that happens on appeal, where the lawyers forget to tell us that you all know something we don't.

[00:11:24] Speaker 01:
Has there been some ruling about the substantial factor test not being the right test in this case?

[00:11:31] Speaker 04:
No, but it was also not argued below.

[00:11:35] Speaker 04:
I think this was not how I read the record as plaintiffs argued it.

[00:11:44] Speaker 04:
It was not how defendants argued the case below, and it's not how plaintiffs argued it.

[00:11:48] Speaker 04:
But it's the test, right?

[00:11:50] Speaker 01:
It's the applicable test, isn't it?

[00:11:52] Speaker 01:
It's the jury instruction.

[00:11:54] Speaker 04:
You know, that is not something, honestly, that I've looked into, because that was not how this case was argued in the district court, and it's not how the district court... Well, it's not how you're arguing it on appeal either, right?

[00:12:05] Speaker 01:
The red brief talks about this standard, reasonable degree of medical probability, and then it says that that's the applicable, her overall causation standard.

[00:12:15] Speaker 01:
It says, a generalized statement that the dosage disparity caused injury does not create causation at the required degree of probability unless to a reasonable degree of medical probability.

[00:12:23] Speaker 01:
the injury would not have happened but for the incorrect dosage.

[00:12:27] Speaker 01:
I mean, you cite this quite expressly.

[00:12:29] Speaker 04:
I mean, I think it is clear that the Nevada law is a bit opaque in terms of causation in this situation.

[00:12:39] Speaker 04:
I think that there isn't a lot of law in these particular situations.

[00:12:45] Speaker 04:
Here, if you look at, you know, there is the testimony as you've talked about already with,

[00:12:51] Speaker 04:
for the appellant, where the two experts on the plaintiff side both testified that had the plaintiff had taken the medication with the proper doses, she may well have come down with the same injury.

[00:13:12] Speaker 04:
And that's consistent, of course, with the black box

[00:13:15] Speaker 04:
warning, which is at the extra record of 363, which indicates that there's only a suggestion right now that if you take the wrong dosage, there might be a higher risk and that it's unproven.

[00:13:35] Speaker 04:
And so I think that's certainly consistent with the testimony from the defense expert who

[00:13:45] Speaker 04:
which was relied upon in granting summary judgment who said that because the SJS is an extraordinarily rare injury and side effect as opposed to other rashes which are very common, there is a different disease mechanism which is at play and therefore you can't generalize

[00:14:07] Speaker 04:
from higher doses causing that, which you might be able to say from other rashes, where you might say that the higher dose is the cause of escalation.

[00:14:19] Speaker 01:
Maybe, and it seems like that is a question that will have to go forward, that plaintiff's experts had a different view of that.

[00:14:26] Speaker 01:
But I'm trying to get at, there seems to be two different problems on causation here.

[00:14:31] Speaker 01:
One is this notion that Nevada law requires a reasonable degree of medical certainty, which I think it does not as far as I can tell.

[00:14:40] Speaker 01:
You cited a case to that point.

[00:14:42] Speaker 01:
But those cases, that goes to the admissibility of the expert opinion according to the case that you found for us.

[00:14:49] Speaker 01:
But what you argued in the red brief is the relevant causation question is whether, to the required degree of probability, she would not have had the same injuries but for taking that improperly elevated dosage.

[00:15:03] Speaker 01:
And it seems to me, and I want to give you every opportunity, it just seems to me that's wrong as a matter of law because of Judge Bennett's point.

[00:15:09] Speaker 01:
This is a substantial factor test.

[00:15:11] Speaker 04:
Well, but they still have to put on evidence to rebut the presumption that the defendant has shown that there is no cause of action here.

[00:15:22] Speaker 03:
I don't understand.

[00:15:24] Speaker 03:
What kind of presumption are you talking about?

[00:15:27] Speaker 03:
The fact that you have an expert who says what he said doesn't create a presumption.

[00:15:32] Speaker 03:
I mean, there is plenty of evidence that you have this titration for a reason because the lack of titration

[00:15:41] Speaker 03:
The reason you have the titration is to exactly avoid the problem that the plaintiff here suffered, right?

[00:15:48] Speaker 03:
Isn't there, regardless of the standard, you would agree that there's evidence of that, right?

[00:15:53] Speaker 04:
Well, actually, the warning itself expressly says that it is not for this particular injury.

[00:16:00] Speaker 04:
As I just read at 363 in the excerpts of record, it specifically excludes the fact that it deals with something like SJS.

[00:16:10] Speaker 04:
It is for other types of side effects because it is not yet known whether it has anything to do with something like SJS.

[00:16:20] Speaker 03:
Well, I think perhaps we read that a little bit differently.

[00:16:24] Speaker 03:
I have a different question I want to ask with regard to the district court striking of the discerbo declaration on the sham affidavit rule.

[00:16:36] Speaker 03:
Certainly.

[00:16:36] Speaker 03:
Would you agree that the sham affidavit rule is a rule that is only germane to summary judgment?

[00:16:47] Speaker 03:
I think it has only been applied in summary judgment context.

[00:16:51] Speaker 03:
You know of no case applying the sham affidavit rule to prevent someone from testifying at trial, right?

[00:17:00] Speaker 03:
I'm not aware of any.

[00:17:01] Speaker 04:
I think it would certainly be a basis for a trial for cross-examination.

[00:17:06] Speaker 03:
Yes.

[00:17:07] Speaker 03:
So if hypothetically we viewed the declaration of Iglinski and the remaining evidence sufficient to take

[00:17:21] Speaker 03:
plaintiff to trial Then the servo would also get to testify at trial Because the sham affidavit rule would not apply and you'd get to cross-examine him, right?

[00:17:35] Speaker 04:
I Believe yes, I believe that that is true.

[00:17:38] Speaker 01:
I'm not aware of any cases What's your strongest argument that the sham affidavit rule does apply here?

[00:17:45] Speaker ?:
I

[00:17:46] Speaker 04:
I think the case cited in our brief, which is the Kennedy case, I think there are... Well, I understand the law.

[00:17:54] Speaker 01:
I didn't ask a good question.

[00:17:55] Speaker 01:
Forgive me.

[00:17:56] Speaker 01:
I mean, factually.

[00:17:57] Speaker 01:
What factual predicate gave rise to this, what I think should have been a finding, that this was not a good faith correction or clarification?

[00:18:07] Speaker 04:
Well, I think the district court was correct to apply it here, because I think in deposition, he clearly indicated that he could only speculate that the dosage had any cause to her injury.

[00:18:27] Speaker 04:
And then he came back with a declaration that said, well, actually, I do think the dosage caused her injury.

[00:18:35] Speaker 04:
And to get back and to, you know, obviously we may end up agreeing to disagree.

[00:18:41] Speaker 00:
Would you agree with me, Mr. Rosen, that DiCerbo's contradiction had to do with the term certainty, not with the term probability?

[00:18:56] Speaker 04:
I think it does to an extent, but I think it also comes into the meaning of what we're going to say to causation.

[00:19:05] Speaker 04:
I think that one either is going to get the SJS or not, and I think here- You're going to get the SJS with certainty or probability or not at all, but probability is the midpoint.

[00:19:23] Speaker 00:
And he's contradicted himself as to certain.

[00:19:25] Speaker 00:
There's no question about that.

[00:19:27] Speaker 00:
And if you were to testify at trial, that would be a flat-out contradiction.

[00:19:33] Speaker 00:
But if he testifies as to probability, there's no flat-out contradiction.

[00:19:37] Speaker 00:
Is that correct?

[00:19:39] Speaker 04:
that there is still the requirement, though, of under for expert testimony, the medical the degree of whether it's probability or certainty.

[00:19:45] Speaker 04:
There still has to be a reasonable degree of medical, which is, I think, the important modifier to both probability and certainty.

[00:19:49] Speaker 04:
And I think that there is still the requirement, though, of under for expert testimony, the medical the degree of whether it's probability or certainty.

[00:19:59] Speaker 04:
There still has to be a reasonable degree of medical, which is, I think, the important modifier to both probability and

[00:20:09] Speaker 04:
But anyway, you slice it here.

[00:20:11] Speaker 00:
He says there's no reasonable belief of certainty.

[00:20:14] Speaker 00:
That means there's no reasonable belief of probability.

[00:20:17] Speaker 04:
I think there still has to be a reasonable medical, reasonable medical probability.

[00:20:23] Speaker 04:
And I think here the district court's order still stands because there's still not a reasonable level of medical probability given

[00:20:34] Speaker 04:
the testimony where he says it's, quote, speculative.

[00:20:39] Speaker 01:
Right, but right there, I think that's right.

[00:20:41] Speaker 01:
There's fertile grounds for cross-examination if this case goes to trial, but here's the deal.

[00:20:48] Speaker 01:
When he says, I would be speculating, or he says, I can't say that, it seems to me that's all in the context of everybody agreeing that at least one in 1,000 will have this awful consequence.

[00:20:59] Speaker 01:
So he would be speculating, I think is what he means,

[00:21:02] Speaker 01:
if you wanted to testify that she wouldn't have been that one.

[00:21:08] Speaker 01:
But that's, I think that's all that is in the context of this transcript.

[00:21:12] Speaker 01:
You read it differently.

[00:21:14] Speaker 04:
Well, but I think that that makes it almost, but to me, I think that makes it impossible to show causation.

[00:21:20] Speaker 01:
Not if the causation standard is substantial factor.

[00:21:24] Speaker 01:
Your questions presuppose the but for test.

[00:21:27] Speaker 01:
That's why Judge Bennett, I think, started with that question.

[00:21:31] Speaker 04:
But I think even with a substantial factor, it still has to be, I think, enlivened with some reasonable degree of medical certainty.

[00:21:42] Speaker 04:
And I don't think that- Yes, I think that's right.

[00:21:44] Speaker 01:
And so let me just play this.

[00:21:45] Speaker 01:
I think that's exactly right, because you gave us the case, which I appreciate it very much.

[00:21:48] Speaker 01:
You're right.

[00:21:49] Speaker 01:
There's not a lot of case law.

[00:21:50] Speaker 01:
The Morsocato case versus Savon drugs, this talks about admissibility.

[00:21:55] Speaker 01:
So their experts are opining that the

[00:21:58] Speaker 01:
dosage, the increased dosage makes it more likely.

[00:22:01] Speaker 01:
I don't know if they're right about that.

[00:22:02] Speaker 01:
But why wouldn't that question get to go to the jury?

[00:22:07] Speaker 04:
Well, but I guess the question is what is the standard?

[00:22:10] Speaker 04:
And I know this is something I will, you know, we haven't briefed in part because this whole substantial factor versus, you know, what is the proper standard hasn't been briefed.

[00:22:20] Speaker 04:
And, you know, I think maybe we all agree this has not

[00:22:25] Speaker 04:
You know, this is not a model of clarity in the law.

[00:22:28] Speaker 04:
And I just throw this out there for your consideration.

[00:22:30] Speaker 04:
Is this something that should be certified to the Nevada Supreme Court?

[00:22:35] Speaker 01:
It was a pattern jury instruction.

[00:22:37] Speaker 01:
And it seems to me that the pattern jury instruction has this commentary that talks about the circumstances under which the 5.4.5 instruction is warranted.

[00:22:53] Speaker 01:
And I think your position is that one in 1,000 patients would experience this so that overdose wasn't necessary for her to, and that's the word used in the commentary, that overdose wasn't necessary in order for her to experience this consequence because one in 1,000 people will.

[00:23:11] Speaker 04:
Right, but even with that, even with the commentary in the pattern during instruction, I'm not sure it covers this situation where they would still have to show that something that was done here with the dosing had some sort of contribution to materially, or at least in some medical, medically significant way, increase

[00:23:37] Speaker 04:
the risk, which I don't think that that testimony does, especially with the way they are caveating it with the speculativeness and the sort of lack of ability to provide any sort of level of certainty.

[00:23:51] Speaker 04:
I mean, I think that's where the district court was struggling.

[00:23:53] Speaker 04:
Even if you take out the but for analysis from it, there still has to be some level of medical, there still has to be some degree of medical certainty to all of this.

[00:24:06] Speaker 00:
Does that require some studies, some medical studies, some medical literature as we used to call it?

[00:24:11] Speaker 04:
Well, I think under 702, and this gets into some Daubert analysis of their experts, they have to rely on something.

[00:24:22] Speaker 03:
What was the basis of your Daubert claims to the district court on their experts?

[00:24:29] Speaker 03:
Well, I think we're now getting, frankly, very far afield from... But wasn't your claim to the district court, I might have this wrong, was that their experience and training didn't qualify them to be an expert?

[00:24:44] Speaker 03:
Yes, I believe so.

[00:24:45] Speaker 03:
It wasn't that they didn't cite the right peer-reviewed studies, et cetera.

[00:24:52] Speaker 03:
It was that their degree, their training wasn't enough for them to even express an opinion in this field, right?

[00:24:58] Speaker 04:
Well, I guess what I'm getting at now is this.

[00:25:01] Speaker 04:
We are now moving into an area that frankly was not argued in the district court on legal issues that were not argued in the district court.

[00:25:12] Speaker 04:
I think different arguments would have made on, if this had been the plaintiff's theory in the district court, there might have been different arguments made on the expert's analysis as well.

[00:25:23] Speaker 01:
And so it's- But Council, I don't think we are presenting new arguments.

[00:25:27] Speaker 01:
This is why I said you seem to both have proceeded from assumptions about the correct standard and then talked right past each other.

[00:25:35] Speaker 01:
That's how I read this record.

[00:25:37] Speaker 01:
It doesn't seem like a new argument.

[00:25:38] Speaker 01:
And in fact, it's the pattern instruction, so I don't know how it could be a new argument.

[00:25:41] Speaker 01:
but you do seem to have talked right past each other.

[00:25:47] Speaker 04:
Well, it happens sometimes.

[00:25:50] Speaker 04:
I'm sort of new to all of this, actually even new in the appellate council coming in for the argument.

[00:25:57] Speaker 04:
But yes, although I think that the way that the case was argued in this court is different, I think, and I don't disagree that there was some talking past each other, but I do think that the

[00:26:13] Speaker 04:
The notion of the but for versus, I don't think the substantial factor argument was articulated by the plaintiff.

[00:26:22] Speaker 00:
Can I ask a question?

[00:26:25] Speaker 00:
You've mentioned that the case was argued a different way in the district court than it's being argued in here.

[00:26:30] Speaker 00:
That indicates to me that you may be relying on some sort of a forfeiture.

[00:26:38] Speaker 00:
And if you are relying on a forfeiture, will you tell me what the forfeiture was?

[00:26:44] Speaker 04:
Well, I think that the forfeiture would be that the, I think to the extent that the plaintiffs are now relying on a sort of a substantial factor theory, that was not articulate.

[00:27:00] Speaker 04:
And I just, as the argument was progressing to counsel before I got up here, I was rereading their opposition to summer judgment

[00:27:12] Speaker 04:
in the expert record, and I don't think they mentioned substantial factor in it.

[00:27:19] Speaker 01:
I think that's right.

[00:27:20] Speaker 04:
And they didn't mention the pattern jury instruction.

[00:27:24] Speaker 01:
Nor did your brief argue that the but-for test should be applied.

[00:27:28] Speaker 01:
It just applied it.

[00:27:30] Speaker 01:
So it seemed to me that there's this overarching burden that the plaintiff has and that the whole argument was dropped down to a different issue, which is the admissibility of the expert report.

[00:27:42] Speaker 00:
Right.

[00:27:43] Speaker 01:
This first step seems to have been skipped.

[00:27:45] Speaker 01:
Excuse me.

[00:27:46] Speaker 00:
So we follow your point.

[00:27:48] Speaker 00:
The plaintiff never argued in the court below that there was any evidence of substantial factor.

[00:27:57] Speaker 04:
or that that is the proper test.

[00:27:59] Speaker 04:
And I think that, you know, the district court obviously did not apply that test in granting the motion.

[00:28:07] Speaker 00:
So he never argued below substantial factor is reasonable probability.

[00:28:11] Speaker 00:
He argued only substantial factor is reasonable certainty.

[00:28:13] Speaker 00:
Yes.

[00:28:14] Speaker 03:
Is that the point?

[00:28:16] Speaker 03:
Yes.

[00:28:16] Speaker ?:
Okay.

[00:28:17] Speaker 03:
Regardless of what was argued below, the test, and again, putting aside how settled it is, the test in Nevada, substantial factor, but for the third restatement, it's purely a matter of law, correct?

[00:28:35] Speaker 03:
Presumably, yes.

[00:28:39] Speaker 01:
Anything further, Judge Bennett?

[00:28:40] Speaker 01:
No.

[00:28:41] Speaker 00:
Judge Baio?

[00:28:44] Speaker 00:
No.

[00:28:47] Speaker 01:
Opposing counsel.

[00:28:51] Speaker 00:
Mr. Moynihan, if I understood Mr. Rosen correctly, he's taking the position that in the court below, you argued only that there was evidence of a substantial factor to a reasonable degree of medical certainty, and you never mentioned the lower and more plaintiff-friendly test of probability.

[00:29:16] Speaker 00:
Is he correct?

[00:29:17] Speaker 02:
You know, that may be a good, that's a good question.

[00:29:21] Speaker 02:
I'd have to review the briefing to determine whether probability or certainty was used.

[00:29:27] Speaker 02:
But certainly the experts in their opinion or their reporting wrote certainty instead of probability.

[00:29:36] Speaker 00:
I think what Mr. Rosen was saying is that you're sort of blindsiding him here because below you argued that reasonable degree of certainty

[00:29:44] Speaker 00:
was the correct standard, and there was testimony as to that.

[00:29:50] Speaker 00:
And here you're arguing, no, all I've got to show is a reasonable degree of probability, but he says you didn't argue that below.

[00:29:57] Speaker 00:
And if you didn't argue that below, shouldn't we find that you forfeit it?

[00:30:04] Speaker 02:
No, because really what we're looking at here is whether the court erred in the law and in application of the law.

[00:30:13] Speaker 02:
And on appeal, we argued both in the opening brief that the court applied the incorrect standard and again in the reply brief that the court used the incorrect standard.

[00:30:25] Speaker 02:
including citing to the jury instruction.

[00:30:30] Speaker 03:
Okay, Council, also I'm looking at your expert reports.

[00:30:34] Speaker 03:
I'm looking at the DiCerbo report, ER-591.

[00:30:38] Speaker 03:
I conclude to a reasonable degree of medical probability that the action of

[00:30:43] Speaker 03:
of dispensing was more likely than not the probable, the proximate causation factor.

[00:30:48] Speaker 03:
So at least it's in his expert report and maybe also in the Yaglinsky one, but those were what everybody was fighting about and he used probability.

[00:30:58] Speaker 02:
Yeah.

[00:30:59] Speaker 02:
Thank you for the correction.

[00:31:00] Speaker 01:
They may have said it both ways.

[00:31:04] Speaker 02:
In response to questioning at deposition, what the lawyer was applying was certainty.

[00:31:08] Speaker 02:
That was specific in the lawyer's questions.

[00:31:11] Speaker 01:
Yes, I agree with that.

[00:31:15] Speaker 02:
Sure.

[00:31:16] Speaker 02:
I'd like to address one issue, and that's the suggested but not proven language in the black box warning.

[00:31:28] Speaker 02:
And what's interesting about that is that it applies to the reasons for why symptoms are suffered.

[00:31:38] Speaker 02:
One factor that is known is the age of the user or the patient, meaning that younger patients are more likely to suffer symptoms.

[00:31:50] Speaker 02:
There are two other factors that are suggested but not yet proven.

[00:31:56] Speaker 02:
that cause an increase in the risk of suffering these symptoms, and that is exceeding the initial dose and escalating the recommended titration.

[00:32:07] Speaker 02:
And what's interesting about that is that is not applying a legal standard.

[00:32:14] Speaker 02:
because in order to actually prove that the injuries are caused by these two factors, you would have to knowingly and unethically overdose patients to get your precise numbers on whether these factors cause an increase in rash.

[00:32:31] Speaker 02:
And that's something that DiCerbo expanded on in his declaration.

[00:32:37] Speaker 03:
Because there's no testimony anywhere, am I correct, that suggests that there's any patient who should start with 300?

[00:32:44] Speaker 02:
That is, no.

[00:32:46] Speaker 02:
It is precisely the opposite.

[00:32:48] Speaker 02:
No patients should start at 300.

[00:32:49] Speaker 03:
Right, no, that's what I'm saying.

[00:32:51] Speaker 03:
There's no evidence that suggests that there's any patient who should start with 300.

[00:32:56] Speaker 03:
Correct.

[00:32:58] Speaker 02:
And in fact, that's specifically said in the literature, do not do that.

[00:33:03] Speaker 02:
Anything further?

[00:33:05] Speaker 01:
It doesn't look like there is.

[00:33:06] Speaker 01:
Thank you both for your advocacy.

[00:33:07] Speaker 01:
Thank you very much.

[00:33:08] Speaker 01:
It was a very important case.

[00:33:09] Speaker 01:
We'll take it under advisement and get you a decision as soon as we can.