WEBVTT 2 00:00:05.551 --> 00:02:40.367 ENTERED) LET'S PAUSE. LET'S PAUSE FOR A MOMENT. WE'LL PICK UP WITH YOU. DEN. 3 00:02:40.367 --> 00:02:48.791 DANIEL B. ROGERS: VARU CHILAKAMARRI: (APPEARANCE ENTERED). JUSTICE 4 00:02:48.791 --> 00:03:01.839 PATTERSON: THANK YOU. MR. DUFFY? JUSTICE PATTERSON: THANK YOU. MR. DONNELLY? 5 00:03:01.839 --> 00:03:07.399 DENNIS M. DONNELLY: THANK YOU. I'D LIKE TO RESERVE TWO MINUTES FOR REBUTTAL. 6 00:03:07.399 --> 00:03:10.444 JUSTICE PATTERSON: THAT'S FINE. DENNIS M. DONNELLY: LAST TIME 7 00:03:10.444 --> 00:03:16.516 I HAD THE -- WITHIN THE LAST YEAR OF APPEARING BEFORE MOST OF YOU. JUSTICE PATTERSON 8 00:03:16.516 --> 00:03:23.633 CORRECTLY CAUTIONED ME THAT IN THE SUPREME COURT IT'S NOT JUST ABOUT YOUR CASE AND THE 9 00:03:23.633 --> 00:03:30.003 JUSTICE WITH WHICH YOU THINK YOUR CASE INVOLVES BUT IT'S HOW THAT CASE FITS WITHIN OTHER 10 00:03:30.003 --> 00:03:34.197 CASES BECAUSE THIS COURT IS GOING TO MAKE DECISIONS THAT APPLY JUST BEYOND YOUR CASE. 11 00:03:34.197 --> 00:03:41.960 SUBSEQUENTLY I WAS ABLE TO HEAR JUSTICE NORIEGA /PE SPEAK TO A GROUP OF LAWYERS AND CAUTION 12 00:03:41.960 --> 00:03:47.573 US THAT WE'RE NOT JUST ADVOCATE IN FRONT OF THE /SPRAO*EPL SUPREME COURT, BUT WE'RE /ARG 13 00:03:47.573 --> 00:03:55.819 TEXTS. SO LET ME START WITH ARCHITECTS BECAUSE I THINK THAT IF WE LOOK AT THE TIME OF 14 00:03:55.819 --> 00:04:05.798 CASE THAT YOU'RE /K-FRG TODAY, BEAVAN, IT FITS WITH ONE /ARBGS /TRAL PATTERN. SO DOES 15 00:04:05.798 --> 00:04:11.834 /KRAOE ANSWER A, THE /TK*EUFRGS DIAGNOSIS CASE. SO DOES MOR ACCOUNT AN AND SCAN HOSPITAL, 16 00:04:11.834 --> 00:04:16.210 THE-IN /STPREPBS CASES FROM WHEN AN ACCIDENT OH COORDINATORS. ALL FOUR OF THOSE CASES 17 00:04:16.210 --> 00:04:24.460 INVOLVE A SINGLE INCIDENT OR EVENT CAUSING AN INJURY, WHETHER IT'S A DRUG OR A CAR. ALL 18 00:04:24.460 --> 00:04:36.945 FOUR OF THOSE CASES DO NOT, DO NOT, TRY TO COVER THE SCOPE OF ALL USES. UNLESS, MOR ACCOUNT 19 00:04:36.945 --> 00:04:46.513 A WASN'T SAY THAT ALTHOUGH CARS WERE DEFECTIVE. /KRAOE ANG A WASN'T SAYING THAT IN ANY 20 00:04:46.513 --> 00:04:53.990 OTHER CONTEXT THE DOCTOR DID ANYTHING WRONG. IN ONE CONTEXT, ACTUALLY THE CAR ACCIDENT 21 00:04:53.990 --> 00:05:01.665 THE DOCTOR'S OPINION WAS CAUSED THE MISCARRIAGE. SO IT'S single EVENT AND IT WAS A LIMITED 22 00:05:01.665 --> 00:05:08.508 EVENT. IN CONTRAST, THIS IS THE OTHER PIECE OF architect TEXTURE WHICH REALLY DOESN'T APPLY 23 00:05:08.508 --> 00:05:13.772 TO THIS CASE. AND THEY ARE TOXIC TORT CASES WITH LONG PERIODS OF EXPOSURE, WITH COMPLEX 24 00:05:13.772 --> 00:05:19.587 MULTIPLE EXPOSURES, THAT DO NOT EXIST IN THIS CASE AND FOR WHICH THIS COURT TENTATIVELY 25 00:05:19.587 --> 00:05:28.517 STARTED TO MOVE IN TO DOUBT DAUBERT. BUT THAT'S NOT THIS CASE. AND I THINK WHERE THE 26 00:05:28.517 --> 00:05:34.867 APPELLATE DIVISION WENT WRONG, AFTER DOING MARVELLOUSLY FOR THE FIRST 32 PAGES, AND 27 00:05:34.867 --> 00:05:43.369 DISMISSING ANY ISSUES OF PRE/EPLS, DISMISSING ANY ISSUES OF NET OPINION, AND IT ALL LOOKED 28 00:05:43.369 --> 00:05:48.468 GOOD UNTIL THE LAST TWO PAGES WHEN THE APPELLATE DIVISION SAID WE DON'T BELIEVE -- WE 29 00:05:48.468 --> 00:05:54.888 DON'T THINK YOU HAVE ENOUGH PROOF OF CAUSATION. AND APPLIED DAUBERT PRINCIPLES WHICH 30 00:05:54.888 --> 00:06:03.350 DON'T APPLY TO THIS CASE. ALL RIGHT. SO THAT'S WHERE WE START. AND WHERE WE GO FROM 31 00:06:03.350 --> 00:06:10.241 THERE IS INTO THE SPECIFICS OF THIS CASE AS THEY APPLY TO THAT ARCHITECTURE. I MEAN, 32 00:06:10.241 --> 00:06:19.868 JUST LET ME ADD THIS, THE BEAVAN PLAINTIFF DOESN'T SAY THAT ALL OWES OWES, THE PRODUCT 33 00:06:19.868 --> 00:06:28.526 IS DEFECTIVE PRESIDENT THAT WOULD BE A BROAD CASE. THE BEAVAN PLAINTIFF SAYS YOU HAD 34 00:06:28.526 --> 00:06:33.230 BAD BATCHES, YOU KNEW ABOUT THE BAD BATCH /ERBLGS YOU DIDN'T TELL PEOPLE ABOUT THE BAD 35 00:06:33.230 --> 00:06:40.318 BATCHES, IN PARTICULARLY DOCTORS, AND SO A DOCTOR IN CALIFORNIA INJECTED THIS IN TO THIS 36 00:06:40.318 --> 00:06:47.823 WOMAN'S EYE AND SHE WENT BLIND THEREAFTER. SO THERE'S ANOTHER ISSUE HERE, ANOTHER CONCEPT, 37 00:06:47.823 --> 00:06:59.517 architectural CONCEPT. THE IDEA OF LEARNED INTERMEDIARY. SOMETIMES THEY CAN HELP A DRUG 38 00:06:59.517 --> 00:07:03.462 MANUFACTURER. IN THIS CASE THERE WERE THREE PHYSICIANS INVOLVED IN ANALYZING WHAT 39 00:07:03.462 --> 00:07:15.055 HAPPENED TO MRS. BEAVAN AND WHY. DR. PHILLIPS, DR. AT THE TIME RA VERN A -- -- I MESSED 40 00:07:15.055 --> 00:07:20.836 UP THAT NAME, AND DR. SOLOMON. ALL THREE OF THEM SAID, WELL, THE ONLY EXPLANATION WE 41 00:07:20.836 --> 00:07:28.101 CAN GIVE FOR THIS OCCURRING IN THIS PATIENT WAS WE NOW KNOW, WE DIDN'T KNOW THEN, THAT 42 00:07:28.101 --> 00:07:34.088 THERE'S A BAD BATCH OF OWES YOU ARE DECKS AND THE ONE THAT WAS INJECTED INTO THIS WOMAN'S 43 00:07:34.088 --> 00:07:39.196 EYE WAS PART OF THIS BAD BATCH. WE DIDN'T KNOW THAT THEN. THEY GO FURTHER. 44 00:07:39.196 --> 00:07:42.592 JUSTICE PATTERSON: BEFORE YOU GET TOO DEEP INTO THE DETAILS OF THE CASE WITH WHICH ARE 45 00:07:42.592 --> 00:07:46.722 FAMILIAR, I WANT TO TALK TO YOU ABOUT FUNDAMENTALS HERE WITH RESPECT TO THE 46 00:07:46.722 --> 00:07:48.999 STANDARD THAT APPLIES. DENNIS M. DONNELLY: OKAY. JUSTICE 47 00:07:48.999 --> 00:07:55.405 PATTERSON: YOU INDICATED THAT YOU DON'T BELIEVE THAT DAUBERT APPLIES. AND I WANT -- THIS 48 00:07:55.405 --> 00:08:03.364 CASE SEEMS TO HAVE BEEN DRIVEN BY THE DETERMINATION WITH RESPECT TO YOUR EXPERTS. 49 00:08:03.364 --> 00:08:05.604 DENNIS M. DONNELLY: YES AND NO. JUSTICE PATTERSON: I THINK IT'S 50 00:08:05.604 --> 00:08:10.462 FAIR TO SAY THAT THE APPELLATE DIVISION, HAVING DETERMINED THAT THE EXPERTS WERE EXCLUDED, 51 00:08:10.462 --> 00:08:15.500 THEN -- THEN REVERSED THE TRIAL COURT'S DENIAL OF SUMMARY JUDGMENT. DENNIS M. 52 00:08:15.500 --> 00:08:19.596 DONNELLY: I DON'T READ THE APPELLATE DIVISION AS FINDING THAT THE EXPERTS WERE BARRED 53 00:08:19.596 --> 00:08:23.008 OR GAVE NET OPINIONS. IN FACT, IT QUALIFIES THAT. JUSTICE PATTERSON: LET 54 00:08:23.008 --> 00:08:28.532 ME JUST finish. OKAY. THERE WERE TWO ISSUES RAISED WITH RESPECT TO THE EXPERT WITNESSES. 55 00:08:28.532 --> 00:08:34.150 ONE IS THAT THE QUESTION WHETHER THEY WERE -- THERE WERE NET OPINIONS GIVEN BY THE EXPERTS. 56 00:08:34.150 --> 00:08:35.490 DENNIS M. DONNELLY: RIGHT. JUSTICE PATTERSON: AND THE OTHER IS 57 00:08:35.490 --> 00:08:41.781 THE QUESTION WHETHER THE EXPERT WITNESSES' OPINIONS WERE SUFFICIENTLY RELIABLE UNDER 58 00:08:41.781 --> 00:08:48.080 RULES -- NEW JERSEY RULES OF EVIDENCE, 702 AND 703. WOULD YOU AGREE WITH ME THAT THOSE 59 00:08:48.080 --> 00:08:51.939 ARE SEPARATE AND DISTINCT QUESTIONS? DENNIS M. DONNELLY: YES. JUSTICE 60 00:08:51.939 --> 00:08:57.955 PATTERSON: OKAY. SO WITH RESPECT TO THE QUESTION WHETHER YOUR EXPERTS WERE SUFFICIENTLY 61 00:08:57.955 --> 00:09:08.455 RELIABLE UNDER RULES 702 AND 703, SINCE THIS COURT DECIDED ACCOUNT U TAIN IN 2018, THAT 62 00:09:08.455 --> 00:09:14.979 DETERMINATION FOR PURPOSES OF THIS CASE AND MANY OTHERS, HAS BEEN GOVERNED BY THE PRINCIPLES 63 00:09:14.979 --> 00:09:21.713 THAT WERE STATED IN THE ACCOUNT TAIN CASE, WHICH -- WHICH I -- IS NOT EXACTLY DAUBERT, 64 00:09:21.713 --> 00:09:26.791 BUT IS -- ADOPTS DAUBERT PRINCIPLES AS WELL. DENNIS M. DONNELLY: RIGHT. 65 00:09:26.791 --> 00:09:32.448 JUSTICE PATTERSON: AND IT STRIKES ME THAT THE TRIAL COURT NEVER CONDUCTED AN 66 00:09:32.448 --> 00:09:41.403 ACCOUNT U TAIN ANALYSIS. THE APPELLATE DIVISION MENTIONED DAUBERT, MENTIONED OLENOWSKI, 67 00:09:41.403 --> 00:09:47.695 WHICH IS THE CRIMINAL CASE, BUT DID NOT GO INTO THE DETAILS ABOUT ACCOUNT TAIN. 68 00:09:47.695 --> 00:09:50.086 DENNIS M. DONNELLY: RIGHT. JUSTICE PATTERSON: WHY SHOULDN'T THIS CASE BE 69 00:09:50.086 --> 00:09:56.345 SUBJECT TO AN ACCOUNT TAIN ANALYSIS AS THE COURT DISCUSSED THE /TKPWAEUP COOPER ROLE OF 70 00:09:56.345 --> 00:10:05.154 A TRIAL COURT AND POTENTIALLY A HEARING AT WHICH THE RELIABILITY OF THE METHODOLOGY OF THE 71 00:10:05.154 --> 00:10:09.566 EXPERTS WOULD BE ANALYZED? DENNIS M. DONNELLY: MAY I REPLY? JUSTICE 72 00:10:09.566 --> 00:10:13.947 PATTERSON: YES, PLEASE. I EXPECT A LONGER ANSWER BUT I WANTED TO EXPLAIN THAT QUESTION. 73 00:10:13.947 --> 00:10:19.532 DENNIS M. DONNELLY: YOUR ANSWER MIGHT BE BETTER. SO BECAUSE IN THIS PARTICULAR 74 00:10:19.532 --> 00:10:24.896 CASE, AND BY THE WAY, THERE WERE EXPERTS AND THERE WERE EXPERTS. WHAT I WOULD LIKE TO 75 00:10:24.896 --> 00:10:30.715 EMPHASIZE, HAVING DONE THIS 45 YEARS, IS THAT WE HAD THREE, QUOTE, EXPERTS, WHO WERE ACTUALLY 76 00:10:30.715 --> 00:10:37.321 TREATING PHYSICIANS, WHICH IS NOT THE NORM, AND MANY TIMES YOU CAN'T GET TREATING PHYSICIANS 77 00:10:37.321 --> 00:10:45.088 TO SAY, WELL, IN MY OPINION, YOU KNOW, THE OWES U DECKS BAD BATCH CAUSED THIS. BUT MORE 78 00:10:45.088 --> 00:10:51.126 IMPORTANTLY WE HAD DR. PHILLIPS WHO ESSENTIALLY GAVE US CAUSATION IN THE CASE. HE SAID, 79 00:10:51.126 --> 00:10:57.439 LOOK, IF THERE HAD BEEN A WARNING OF A BAD BATCH, POTENTIAL OH SUR DECKS, I NEVER WOULD 80 00:10:57.439 --> 00:11:03.526 HAVE INJECTED THIS IN TO THIS PATIENT'S EYE. SO ISN'T THAT ESSENTIALLY ADEQUATE PROOF 81 00:11:03.526 --> 00:11:09.918 OF CAUSATION? SHE WOULDN'T HAVE HAD THE INJECTION, I DON'T THINK ANYBODY DISPUTES 82 00:11:09.918 --> 00:11:17.167 THAT SOMETHING ABOUT THIS SURGERY OR THIS SERIES OF EVENTS LED TO HER BLINDNESS AND SHE 83 00:11:17.167 --> 00:11:21.324 WOULDN'T HAVE HAD THEM. JUSTICE PATTERSON: ARE YOU SUGGESTING THAT WITH 84 00:11:21.324 --> 00:11:27.313 RESPECT TO YOUR EXPERT WITNESSES THERE IS NO NECESSITY TO PROVE THE RELIABILITY OF THEIR 85 00:11:27.313 --> 00:11:32.147 METHODOLOGY? DENNIS M. DONNELLY: WELL, ACTUALLY, THE METHODOLOGY IMPLIED 86 00:11:32.147 --> 00:11:38.758 BY ALL OF THEM HAS ALREADY ESSENTIALLY BEEN ACCEPTED AND PROVED IN /KRAOE ANG AN AND THAT 87 00:11:38.758 --> 00:11:42.192 IS DIFFERENTIAL DIAGNOSIS. JUSTICE PATTERSON: SO ARE YOU SAYING THAT AFTER 88 00:11:42.192 --> 00:11:49.585 ACCOUNT U TAIN, ALL A PROPONENT OF EXPERT TESTIMONY HAS DO IS FIND A CASE WHERE SIMILAR 89 00:11:49.585 --> 00:11:55.092 METHODOLOGY MAY HAVE BEEN USED IN AN ENTIRELY DIFFERENT SETTING? MY FUNDAMENTAL QUESTION 90 00:11:55.092 --> 00:12:00.703 TO YOU SIR IS WHETHER OR NOT YOU HAD THE OBLIGATION TO DEMONSTRATE THE RELIABILITY OF 91 00:12:00.703 --> 00:12:08.042 YOUR EXPERT WITNESSES UNDER ACCOUNT TAIN SINCE THAT CASE WAS DECIDED 7 YEARS AGO. 92 00:12:08.042 --> 00:12:21.829 DENNIS M. DONNELLY: LOOK, THE REASON WHY I STARTED WITH THE architect IS THAT THIS CASE 93 00:12:21.829 --> 00:12:21.832 IS NOT ACCOUNT TAIN AND THIS IS CASE IS NOT A CASE WHERE YOU'RE TALKING ABOUT BROAD EXPOSURE. 94 00:12:21.832 --> 00:12:21.839 JUSTICE WAINER APTER: I THINK THE REASON THAT WE'RE HAVING A DISAGREEMENT IS 95 00:12:21.839 --> 00:12:26.377 THE COURT HAS PREVIOUSLY APPLIED DAUBERT IN THE CONTEXT OF ACCOUNT TAIN IN CIVIL CASES 96 00:12:26.377 --> 00:12:33.259 AND THEN RECENTLY IN CRIMINAL CASES ALSO DECIDED THAT DAUBERT IN THE CONTEXT OF OLENOWSKI 97 00:12:33.259 --> 00:12:39.711 NOW APPLIES INSTEAD OF THE FRIDAY STANDARD. BUT YOU SEEM TO BE ARGUING THAT THIS CASE 98 00:12:39.711 --> 00:12:46.575 FALLS SOMEHOW OUTSIDE OF ANY EXPERT STANDARD AND THAT'S WHAT WE'RE CONFUSED ABOUT. 99 00:12:46.575 --> 00:12:52.887 DENNIS M. DONNELLY: WELL, NOT OUTSIDE OF ANY EXPERT STANDARD. IT FALLS SQUARELY WITHIN. 100 00:12:52.887 --> 00:12:57.044 JUSTICE WAINER APTER: I UNDERSTAND. AND IF WE AGREE WITH YOU THAT DIFFERS 101 00:12:57.044 --> 00:13:04.949 AL DIAGNOSIS IS A METHODOLOGY THAT WE HAVE PREVIOUSLY ACCEPTED, FOR PURPOSES OF DAUBERT 102 00:13:04.949 --> 00:13:10.181 AND ACCOUNT TAIN, DON'T YOU STILL HAVE TO SHOW THAT IT'S RELIABLY APPLIED IN THE 103 00:13:10.181 --> 00:13:16.438 CIRCUMSTANCES OF THIS CASE? DENNIS M. DONNELLY: THE ANSWER IS, YES BUT NOT 104 00:13:16.438 --> 00:13:22.150 TO THE EXTENT THAT YOU WOULD HAVE TO IN A CASE DEALING WITH MUCH BROADER ISSUES. 105 00:13:22.150 --> 00:13:26.107 JUSTICE WAINER APTER: SO THEN IF WE AGREED WITH THAT, THEN WOULDN'T THAT STILL REQUIRE 106 00:13:26.107 --> 00:13:30.352 SOME ANALYSIS ON ACCOUNT TAIN. DENNIS M. DONNELLY: WELL, I DON'T -- I DON'T 107 00:13:30.352 --> 00:13:36.219 BELIEVE THAT THE TRIAL JUDGE, THE MOTION JUDGE, DIDN'T MAKE THE NECESSARY ANALYSIS. HE 108 00:13:36.219 --> 00:13:43.729 ANALYZED THE EXPERT WITNESSES, HE SAID THAT THEY -- THEY -- THEY HAD DIRECT KNOWLEDGE, 109 00:13:43.729 --> 00:13:51.649 AND BY THE WAY, THIS ISN'T LASER LAY AS A PAID EXPERTS. WE'VE GOT THREE WHO WERE EXPERT 110 00:13:51.649 --> 00:13:55.607 WITNESSES. IT SHOULD BE POWERFUL BECAUSE IT'S TOTALLY DISTINGUISHABLE FROM MOST CASES 111 00:13:55.607 --> 00:14:01.831 WHERE THAT DOESN'T HAPPEN. AND I BELIEVE THE TRIAL COURT BELOW SAID, LOOK, THEY MADE 112 00:14:01.831 --> 00:14:09.119 A /TK*EUFRPBS DIFFERS AL DIAGNOSIS ESSENTIALLY. THEY RULED OUT -- BY THE WAY, WHEN YOU 113 00:14:09.119 --> 00:14:14.331 THINK ABOUT IT THIS IS A VERY UN/UFRB CASE BECAUSE IN SOME SENSE YOU COULDN'T ALLOW THE 114 00:14:14.331 --> 00:14:19.943 NORMAL DAUBERT STANDARDS, WAS THERE TESTING DONE. THIS COMES UP IN MALPRACTICE CASES 115 00:14:19.943 --> 00:14:24.003 ALL THE TIME. YOU CAN'T DO DOUBLE BLIND TESTING BECAUSE YOU WOULDN'T SUBJECT 50 PEOPLE 116 00:14:24.003 --> 00:14:28.309 TO BEING INJURED. JUSTICE PATTERSON: SIR, THAT IS THE -- THAT IS THE KIND 117 00:14:28.309 --> 00:14:34.171 OF INQUIRY FOR EXAMPLE THAT A TRIAL COURT WOULD UNDERTAKE IN EVALUATING THE ADMISSIBILITY 118 00:14:34.171 --> 00:14:39.229 OF THE EXPERTS AND THE RELIABILITY OF THE EXPERTS. YOU'RE ARGUING THAT RELIABILITY TO 119 00:14:39.229 --> 00:14:46.606 US, BASED UPON CASE LAW THAT PRECEDED THE ACCOUNT TAIN STANDARD, WHEN WHAT ACCOUNT TAIN 120 00:14:46.606 --> 00:14:53.758 SAID IS THAT AN EXPERT WITNESS WHO GIVES AN OPINION IS SUBJECT TO THE RELIABILITY 121 00:14:53.758 --> 00:15:00.300 STANDARDS OF 702 AND 703 AND THE WAY IN WHICH THAT IS DONE IN NEW JERSEY, POST ACCOUNT 122 00:15:00.300 --> 00:15:06.190 TAIN, IS TO -- FOR THE TRIAL COURT TO ACT AS A GAIT KEEPER WITH RESPECT TO THE RELIABILITY 123 00:15:06.190 --> 00:15:10.567 OF THE EVIDENCE. DENNIS M. DONNELLY: IN ADDITION TO TRIAL COURTS ACTING AS 124 00:15:10.567 --> 00:15:17.255 GAIT KEEPERS, SUPREME COURTS ACT AS GAIT KEEPERS TO WHEN TRIAL JUDGES SHOULD OR SHOULD 125 00:15:17.255 --> 00:15:23.019 NOT BECOME SCIENTIST THE AND FEEL THAT THEY NEED DAUBERT EVIDENCE WHERE FRANKLY IN THIS 126 00:15:23.019 --> 00:15:29.044 CASE THEY DON'T. BUT SINCE YOU FOCUS ON DAUBERT, IF YOU WANT TO LOOK AT THE PARTICULAR 127 00:15:29.044 --> 00:15:37.005 REQUIREMENTS IN THE ACCOUNT TAIN CASE, THIS IS NOT THE KIND OF SITUATION WHERE YOU'RE 128 00:15:37.005 --> 00:15:46.309 GOING TO HAVE PUBLISHED ARTICLES ABOUT DOES THIS ONE SMALL BAD LOT CAUSE BLINDNESS. NOBODY'S 129 00:15:46.309 --> 00:15:49.766 GOING TO WRITE AN ARTICLE ABOUT THAT. JUSTICE WAINER APTER: HERE ARE YOU 130 00:15:49.766 --> 00:15:57.407 SAYING THAT THE scientific THEORY IS DIFFERENTIAL DIAGNOSIS. DENNIS M. DONNELLY: 131 00:15:57.407 --> 00:15:58.778 YES. JUSTICE WAINER APTER: OKAY. SO IT WOULDN'T BE AN ARTICLE ABOUT ONE LOT 132 00:15:58.778 --> 00:16:02.457 AND WHETHER OR NOT THE LOT WAS DEFECTIVE. YOU'RE GETTING YOUR INFORMATION ABOUT THE LOT 133 00:16:02.457 --> 00:16:07.736 BEING DEFECTIVE FROM THE DEFENDANTS' OWN COMMENTS IN LOTS OF DIFFERENT THINGS THAT THEY 134 00:16:07.736 --> 00:16:13.032 SUBMITTED TO THE FDA AND THE WAY YOUR THEIR CORPORATE REPRESENTATIVE TESTIFIED, ET 135 00:16:13.032 --> 00:16:18.087 CETERA. WOULDN'T YOU JUST BE ARGUING THAT THE SCIENTIFIC THEORY IS DIFFERS AL DIAGNOSIS 136 00:16:18.087 --> 00:16:23.067 AND YOU WOULD CERTAINLY RELY ON /KRAOE ANG A BUT YOU WOULD ALSO EXPLAIN THAT IT HAS BEEN 137 00:16:23.067 --> 00:16:28.181 TESTED AND IT'S BEEN SUBJECT TO PEER REVIEW AND /WHO* WHETHER -- I DON'T KNOW IF THERE 138 00:16:28.181 --> 00:16:34.388 IS AN ERROR RATE BUT YOU WOULD DISCUSS THAT AND WHETHER IT'S GENERALLY ACCEPTED, YOU 139 00:16:34.388 --> 00:16:38.335 WOULD SAY YES, AND WHETHER THIS COURT HAS PREVIOUSLY ACCEPTED IT. DENNIS M. 140 00:16:38.335 --> 00:16:44.091 DONNELLY: THE PROBLEM WITH THIS CASE IS YOU WOULD EXPECT ALL THOSE THINGS IN A WIDER 141 00:16:44.091 --> 00:16:50.643 ISSUE. IS OWES OWES A DANGEROUS -- JUSTICE PATTERSON: THERE'S THREE TYPES 142 00:16:50.643 --> 00:16:59.937 OF DEFECTS. FAILURE TO WARN, DESIGN, AND MANUFACTURING defect. IN THIS CASE YOU 143 00:16:59.937 --> 00:17:02.814 CONTEND AND HAVE MAINTAINED THROUGHOUT THAT THE PRIMARY ISSUE IS THE MANUFACTURING DEFECT. 144 00:17:02.814 --> 00:17:07.437 YOU ALSO HAVE A FAILURE TO WARN CLAIM AS WELL, AND I UNDERSTAND THAT. DENNIS M. 145 00:17:07.437 --> 00:17:11.250 DONNELLY: ABSOLUTELY. JUSTICE PATTERSON: BUT THE FACT THAT YOUR CLAIM IS 146 00:17:11.250 --> 00:17:17.568 NOT EXACTLY THE SAME AS A CLAIM THAT WAS IN A DIFFERENT CASE DOES NOT EXEMPT YOU OR YOUR 147 00:17:17.568 --> 00:17:25.060 CLIENT FROM DEMONSTRATING THE RELIABILITY OF THE EXPERT TESTIMONY AS A PREREQUISITE FOR THE 148 00:17:25.060 --> 00:17:30.886 ADMISSION OF THAT TESTIMONY. THIS IS NOT A TREATER'S REPORT THAT SIMPLY SAYS I TREATED 149 00:17:30.886 --> 00:17:36.592 THE PERSON ON THIS AND THAT DATE. THERE'S OPINIONS IN THESE REPORTS. AND IN THE CASE 150 00:17:36.592 --> 00:17:42.551 OF ONE OF YOUR EXPERTS -- BY THE WAY, YOU MENTIONED THREE EXPERTS. ONLY TWO SEEM TO 151 00:17:42.551 --> 00:17:47.228 HAVE BEEN AT ISSUE. IS THERE -- THERE WAS A THIRD WHO WAS MENTIONED BUT SEEMS TO HAVE 152 00:17:47.228 --> 00:17:50.388 DISAPPEARED FROM THE RECORD. DENNIS M. DONNELLY: IT WAS NECESSARILY -- THE 153 00:17:50.388 --> 00:17:57.362 POINT IS THAT THREE DIFFERENT PEOPLE OUT IN CALIFORNIA ALL /PHOPBLGS OF VARIOUS TYPES 154 00:17:57.362 --> 00:18:00.348 TREATED THIS PATIENT AND ALL THREE OF THEM WERE OF THE OPINION. JUSTICE PATTERSON: 155 00:18:00.348 --> 00:18:03.638 WE'RE DEALING WITH TWO EXPERTS ARE WE NOT. DENNIS M. DONNELLY: THEN LASER 156 00:18:03.638 --> 00:18:07.930 LAY IS THE EXPERT THAT DIDN'T TREAT. JUSTICE WAINER APTER: /WHARB THE NAMES 157 00:18:07.930 --> 00:18:12.842 OF THE THREE TREATING PHYSICIANS THAT YOU'RE REFERRING TO? TO MAKE SURE WE'RE ALL ON 158 00:18:12.842 --> 00:18:16.172 THE SAME PAGE. JUSTICE PATTERSON: PHILLIPS IS ONE OBVIOUSLY /STKEPB DEN 159 00:18:16.172 --> 00:18:25.515 PHILLIPS IS ONE, SOLOMON IS A SECOND. DR. /TAUFR IS THE THIRD. THE FACT IS. 160 00:18:25.515 --> 00:18:29.421 JUSTICE PATTERSON: LASER LAY IS AN EXPERT WITNESS WHO WAS NOT A TREATING PHYSICIAN. 161 00:18:29.421 --> 00:18:32.654 DENNIS M. DONNELLY: EXACTLY. JUSTICE PATTERSON: AND THE ADMISSIBILITY OF 162 00:18:32.654 --> 00:18:38.736 LASER LAY'S OPINION SEEMS TO ME RATHER CRUCIAL TO THIS CASE. DENNIS M. DONNELLY: 163 00:18:38.736 --> 00:18:41.132 WELL /WHRARBGS ABOUT THE THREE OPINIONS OF THE. JUSTICE PATTERSON: I'M NOT 164 00:18:41.132 --> 00:18:45.864 DISCOUNTING THOSE. BUT LAST LETTER LAY -- YOU SAID YOUR EXPERTS WERE ALL TREATERS BUT 165 00:18:45.864 --> 00:18:48.926 JUST TO BE CLEAR, HE IS NOT A TREATER, CORRECT. DENNIS M. DONNELLY: WHAT I 166 00:18:48.926 --> 00:18:54.706 SAID WAS SINCE I WAS SO SURPRISED THAT IT'S SO UNUSUAL THAT YOU GET THREE TREATERS THAT 167 00:18:54.706 --> 00:18:59.921 ALL AGREE THAT THE LIKELY CAUSATION IS THIS. JUSTICE PATTERSON: UNDERSTAND. 168 00:18:59.921 --> 00:19:02.506 DENNIS M. DONNELLY: ONE EXPERT, NONE TREATER, THREE DIFFERENT TREATERS ALL 169 00:19:02.506 --> 00:19:05.100 BELIEVED THIS WAS FROM THE OWES OWES BAD BATCH. JUSTICE PATTERSON: AND YOU 170 00:19:05.100 --> 00:19:10.280 HAVE CAUSATION OPINIONS FROM ALL OF THEM. SO WHY IS IT THAT YOU CONTEND THAT YOU NEED 171 00:19:10.280 --> 00:19:18.208 NOT DEMONSTRATE THE RELIABILITY OF THEIR METHODOLOGY IN THIS CASE GIVEN ACCOUNT 172 00:19:18.208 --> 00:19:22.696 TAKEN'S BROAD APPLICATION TO CIVIL CASES GENERALLY AND GIVEN THE FACT THAT YOU HAVE A PRODUCT 173 00:19:22.696 --> 00:19:26.156 LIABILITY CLAIM HERE. DENNIS M. DONNELLY: I DON'T MAINTAIN THAT WE DON'T 174 00:19:26.156 --> 00:19:38.515 NEED TO PROVE IT. I DO MAINTAIN THAT YOU -- THEY ALL USE differential DIAGNOSIS AND THAT IS AN 175 00:19:38.515 --> 00:19:39.210 APPROPRIATE METHOD AND NOTHING IN ACCOUNT TAIN WENT BACK AND SAID, NO IT'S NOT. 176 00:19:39.210 --> 00:19:44.265 JUSTICE PATTERSON: ACCOUNT TAIN REQUIRES THAT THERE BE A COURT PROCEEDING AT -- DURING 177 00:19:44.265 --> 00:19:50.785 WHICH THE TRIAL COURT MAKE A DETERMINATION AS TO RELIABILITY. TYPICALLY DONE WITH A 1 178 00:19:50.785 --> 00:19:57.720 04 HEARING. ESPECIALLY WHEN THERE ARE COMPLEXITIES. LET'S BACK TO BASICS, THAT WAS 179 00:19:57.720 --> 00:19:59.673 NOT DONE. DENNIS M. DONNELLY: ABSOLUTELY NOT. JUSTICE PATTERSON: 180 00:19:59.673 --> 00:20:03.193 AND THE TRIAL COURT, AGAIN, I LOOKED AT THE TRANS, WE DON'T HAVE THE BRIEFS TO THE TRIAL 181 00:20:03.193 --> 00:20:09.659 COURT OBVIOUSLY, THAT'S NOT GENERALLY A PARTY OF THE REPORT. BUT I READ THE TRANSCRIPTS, 182 00:20:09.659 --> 00:20:14.098 I READ THE COURT'S OPINION AND THE COURT ANSWERED ONE QUESTION ALONE WITH RESPECT TO EXPERTS 183 00:20:14.098 --> 00:20:18.556 AND THAT'S NET OPINION. DENNIS M. DONNELLY: BUT WITHIN THE ANALYSIS OF THE 184 00:20:18.556 --> 00:20:29.049 COURT OF NET OPINION AND WHICH YOU CAN SEE IS RELIANCE PARTICULARLY ON DR. Phillips. AND 185 00:20:29.049 --> 00:20:34.142 AS I STARTED TO SAY, HE ESSENTIALLY HAD A CONTROL HERE, A SCIENTIFIC CONTROL. THE CONTROL 186 00:20:34.142 --> 00:20:41.288 WAS I'VE USED THIS PRODUCT ON THIS PATIENT -- MR. LET ME ASK YOU A SIMPLE QUESTION. WHERE 187 00:20:41.288 --> 00:20:45.290 IN THE TRIAL COURT OPINION IS THERE AN ACCOUNT TAIN ANALYSIS. DENNIS M. DONNELLY: 188 00:20:45.290 --> 00:20:50.430 THERE IS NOT. JUSTICE WAINER APTER: THE DEFENDANTS UNDER NOT RELIABLE. 189 00:20:50.430 --> 00:20:51.798 DENNIS M. DONNELLY: OF /KOURBS THEY DO. JUSTICE WAINER APTER: JUSTICE 190 00:20:51.798 --> 00:20:54.751 WAINER APTER: DID THEY FOR THE TRIAL COURT? DENNIS M. DONNELLY: DID THEY? 191 00:20:54.751 --> 00:20:59.569 WELL, THAT'S KIND OF -- WHAT'S INTERESTING ABOUT THE TRIAL COURT BELOW, AND EVEN THE 192 00:20:59.569 --> 00:21:04.349 APPELLATE DIVISION, IS THIS KIND OF SURPRISE AT THE END OF THE APPELLATE DIVISION. SO 193 00:21:04.349 --> 00:21:09.772 I DON'T KNOW THAT THEY -- I ASSUME THEY DID. EVERY DEFENDANT I'VE EVER BEEN AGAINST ARGUES 194 00:21:09.772 --> 00:21:14.871 ONE OF THOSE POINTS. JUSTICE PATTERSON: THERE'S DISCUSSION OF ACCOUNT 195 00:21:14.871 --> 00:21:19.996 TAIN IN THE MOTION FOR RECONSIDERATION. THERE IS -- AGAIN, WE DON'T HAVE THE BRIEFS SO 196 00:21:19.996 --> 00:21:25.675 WE DON'T EXACTLY KNOW BUT THERE'S CERTAINLY THE QUESTION OF RELIABILITY UNDER 702 AND 197 00:21:25.675 --> 00:21:29.433 703 WAS RAISED. DENNIS M. DONNELLY: SO WHAT I'VE BEEN TRYING TO ARGUE, PERHAPS 198 00:21:29.433 --> 00:21:36.260 NOT EFFECTIVELY, IS THAT THE RELIABILITY HERE, SELL, EVEN IN FRONT OF THE TRIAL JUDGE, 199 00:21:36.260 --> 00:21:41.702 SPEAKS FOR ITSELF. JUSTICE PATTERSON: MR. DONNELLY, DOES ACCOUNT TAIN PERMIT 200 00:21:41.702 --> 00:21:50.814 TRIAL JUDGES TO SAY THE RELIABILITY SPEAKS FOR ITSELF? THIS IS A NEW -- DENNIS 201 00:21:50.814 --> 00:21:59.205 M. DONNELLY: I DIDN'T READ ACCOUNT TAIN TO SAY THAT NECESSARILY IN A CASE WHICH IS VASTLY 202 00:21:59.205 --> 00:22:05.569 DIFFICULTIES TISH WISHABLE FROM ACCOUNT TAIN, BECAUSE IT'S NOT A LONG-TERM TOXIC TORT 203 00:22:05.569 --> 00:22:10.272 AND IT'S NOT ONE WITH THE COMPLEXITIES OF TOXIC TORT THAT IN SUCH A CASE WHERE YOU HAVE 204 00:22:10.272 --> 00:22:15.390 A TREATING EXPERT WHO ESSENTIALLY GIVES YOU CAUSATION WRAPPED UP IN A /PWO*ER. I 205 00:22:15.390 --> 00:22:19.895 WOULDN'T HAVE GIVEN THIS IF THEY JUST TOLD ME. YOU HAVE ENOUGH. NOW, WE DIDN'T -- AND 206 00:22:19.895 --> 00:22:25.113 THIS CAME UP IN THE BRIEFING. WE DIDN'T ASK FOR A HEARING BECAUSE WE WON, YOU KNOW. 207 00:22:25.113 --> 00:22:29.273 THE DEFENSE DIDN'T ASK FOR A HEARING. JUSTICE PATTERSON: GOOD STRATEGY. 208 00:22:29.273 --> 00:22:32.888 DENNIS M. DONNELLY: SO ONE WAY I THINK IT WOULD BE A MULTITUDE OF CAUSE THAT 209 00:22:32.888 --> 00:22:37.906 MAY NOT BE -- MAY NOT BE NECESSARY BUT ONE COULD SAY, ALL RIGHT, WE'LL GO BACK TO THE TRIAL 210 00:22:37.906 --> 00:22:42.574 JUDGE. I WILL SAY THIS, I'VE BEEN IN FRONT OF A LOT OF TRIAL JUDGE AND THIS WAS A THOUGHTFUL 211 00:22:42.574 --> 00:22:47.958 TRIAL JUDGE. THIS WAS A TRIAL JUDGE WHO LOOKED AT THE RECORD CAREFULLY. JUSTICE 212 00:22:47.958 --> 00:22:52.563 PATTERSON: I'M NOT INFERRING ANY CRITICISM WHATSOEVER OF THE TRIAL JUDGE. 213 00:22:52.563 --> 00:22:56.362 DENNIS M. DONNELLY: OKAY. JUSTICE PATTERSON: AND ACCOUNT PAIN -- POST ACCOUNT 214 00:22:56.362 --> 00:23:00.907 TAIN THERE IS SUPPOSED TO BE A PROCESS HERE AND I THINK THAT YOU AGREE THAT IT DIDN'T 215 00:23:00.907 --> 00:23:04.377 HAPPEN. DENNIS M. DONNELLY: I AGREE THAT IT DIDN'T HAPPEN. I'M TRYING TO ARGUE 216 00:23:04.377 --> 00:23:09.364 TO YOU THAT THIS IS A CASE WHERE IN THE SUPREME COURT YOU COULD FIND THAT IT DIDN'T HAVE 217 00:23:09.364 --> 00:23:14.818 TO HAPPEN BECAUSE OF THE DISTINCTION BETWEEN THIS TYPE OF CASE, SINGLE CONTACT, LIMITED 218 00:23:14.818 --> 00:23:19.705 ISSUE, VERSUS THE OTHER CASES WITH BROAD ISSUES, BUT THAT WOULD REQUIRE YOU TO FIND THAT 219 00:23:19.705 --> 00:23:24.163 WAY. JUSTICE PIERRE-LOUIS: SO YOU ARE EE LYING A LOT ON /KRAOE ANG A. AND 220 00:23:24.163 --> 00:23:28.706 IT SOUNDS LIKE WHAT YOU'RE SAYING IS EXACTLY WHAT /KRAOE ANG YA SAID CAN'T HAPPEN WITH 221 00:23:28.706 --> 00:23:35.238 DIFFERENTIAL DIAGNOSIS. SO THE COURT UPHELD OF DIFFERENTIAL DIAGNOSIS CAN BE ADMITTED 222 00:23:35.238 --> 00:23:40.254 INTO EVIDENCE, HOWEVER, THAT DOES NOT MEAN THAT SIMPLY UTTERING THE PHRASE, DIFFERENTIAL 223 00:23:40.254 --> 00:23:46.255 DIAGNOSIS, AN EXPERT CAN MAKE HIS OR HER OPINION ADMISSIBLE, RIGHT, BECAUSE THE EXPERT 224 00:23:46.255 --> 00:23:51.013 MUST DEMONSTRATE THAT WHAT HE OR SHE DID WAS A PROPER DIAGNOSTIC PROCEDURE AND THAT -- 225 00:23:51.013 --> 00:23:55.721 IT WAS BASED ON SCIENTIFIC METHODS AND PROCEDURES. SO I THINK THAT'S WHAT WE'VE ALL 226 00:23:55.721 --> 00:24:00.323 BEEN SAYING, THAT DIDN'T HAPPEN AND IT CAN'T JUST BE -- I THINK YOU WOULD AGREE, THAT'S 227 00:24:00.323 --> 00:24:04.775 WHAT /KRAOE ANG A SAYS, YOU CAN'T JUST UTTER THIS IS DIFFERENTIAL DIAGNOSIS, IT COMES 228 00:24:04.775 --> 00:24:10.951 IN. DENNIS M. DONNELLY: I TOTALLY AGREE THAT /KRAOE ANG A DISCUSSES DIFFERS 229 00:24:10.951 --> 00:24:17.705 AL DIAGNOSIS AT LENGTH. BUT /KRAOE ANG AN IS A CAR ACCIDENT WHERE AN OBSTETRICIAN CONCLUDES 230 00:24:17.705 --> 00:24:24.846 MOSTLY ON TEMPORAL BASIS AND SOME OTHER arguments, IT'S MOST LIKELY THAT AND I DON'T 231 00:24:24.846 --> 00:24:28.613 BELIEVE IT'S THAT. ISN'T THAT WHAT DR. PHILLIPS DID HERE? HE SAID, I TREATED HER BEFORE, 232 00:24:28.613 --> 00:24:34.299 IT DIDN'T HAPPEN, I TREATED HER WITH THIS, SHE HAD A SUDDEN INCREDIBLY INTENSE, YOU KNOW, 233 00:24:34.299 --> 00:24:41.335 REACTION, NOT -- NOT RESPONSIVE TO TREATMENT, SO THAT'S WHAT DIFFICULTIES TISH HE IS. 234 00:24:41.335 --> 00:24:46.642 WHAT MORE COULD YOU DO THAN THAT? BECAUSE ALL THESE OTHER DAUBERT STANDARDS, NOBODY'S 235 00:24:46.642 --> 00:24:52.025 GOING TO DO A PUBLISHED ARTICLE ABOUT THIS CASE. NO ONE'S -- NO ONE HAS -- JUSTICE 236 00:24:52.025 --> 00:24:57.655 PATTERSON: I'M NOT ASKING YOU TO PRESENT THAT TODAY. ACCOUNT TAIN, WITH GREAT CLARITY, 237 00:24:57.655 --> 00:25:05.636 I WAS NOT ON THE COURT FOR THAT CASE, AND SO I'M COMPLIMENTING MY FORMER COLLEAGUES IN 238 00:25:05.636 --> 00:25:11.686 THAT REGARD. BUT ACCOUNT TAIN WITH GREAT CLARITY TO GENERAL LANGUAGE TO WHAT IT APPLIED 239 00:25:11.686 --> 00:25:17.037 TO SAID THERE MUST BE A GAIT KEEPING RULE BY TRIAL COURT THAT IS PARTLY BASED ON DAUBERT 240 00:25:17.037 --> 00:25:21.792 PRINCIPLES BUT THERE'S GREAT PRECISION AS TO WHAT IT IS AND IT'S THE PROPONENT OF THE 241 00:25:21.792 --> 00:25:27.378 EXPERT, BE THAT THE DEFENDANT, BE THAT THE PLAINTIFF, WHO MUST SATISFY THAT REQUIREMENT. 242 00:25:27.378 --> 00:25:33.407 AND IF WHAT YOU'RE SUGGESTING HERE IS THAT WE SHOULD SOMEHOW LIMIT THE ACCOUNT TAIN CASE, 243 00:25:33.407 --> 00:25:38.656 THAT'S NOT THE ISSUE BEFORE THIS -- THAT'S NOT -- THAT'S NOT A -- IN THIS PETITION, THAT'S 244 00:25:38.656 --> 00:25:44.575 NOT IN THIS CASE. YOU SHOULD ASSUME THAT ACCOUNT TAIN APPLIES UNDER THE LANGUAGE OF THE 245 00:25:44.575 --> 00:25:49.289 CURRENT ACCOUNT TAIN CASE. DENNIS M. DONNELLY: THE PROBLEM WITH SAYING THAT 246 00:25:49.289 --> 00:25:54.363 -- MAKING ACCOUNT TAIN, LET'S SAY CRUSTY AND BAD HERE. JUSTICE WAINER APTER: 247 00:25:54.363 --> 00:25:57.966 CAN YOU SAY THAT ONE /HOER TIME? DENNIS M. DONNELLY: I'M SORRY. 248 00:25:57.966 --> 00:26:01.067 JUSTICE WAINER APTER: I JUST DIDN'T HEAR WHAT YOU SAID. I WAS ASKING YOU TO REPEAT IT. 249 00:26:01.067 --> 00:26:05.466 DENNIS M. DONNELLY: THE PROBLEM WITH MAKING ACCOUNT TAIN A PRECRUSTIAN BED 250 00:26:05.466 --> 00:26:11.375 WHERE IT FITS EVERYTHING IS THAT IT REALLY DOESN'T FIT THESE FACTS, BUT THAT'S THE CASE, 251 00:26:11.375 --> 00:26:15.519 THEN THE COURT SHOULD REMAND AND HAVE THE TRIAL JUDGE DO. JUSTICE WAINER APTER: 252 00:26:15.519 --> 00:26:20.049 BUT AGAIN, THAT SEEMS TO BE BECAUSE YOU SEEM TO BE SAYING THAT THE METHODOLOGY IS WHETHER OR 253 00:26:20.049 --> 00:26:27.330 NOT THE PRODUCT WAS DEFECTIVE OR -- I'M NOT /#K35BG9LY SURE. IF YOU'RE SAYING THE METH 254 00:26:27.330 --> 00:26:31.190 ODOLOGY IS THE DIFFERENTIAL DIAGNOSIS, THEN THAT IS THE KIND OF THING THAT IS GENERALLY 255 00:26:31.190 --> 00:26:36.939 SUBJECTED TO A DAUBERT ACCOUNT TAIN TYPE ANALYSIS AND YOU'RE RIGHT THAT WE HAVE PREVIOUSLY 256 00:26:36.939 --> 00:26:41.669 HELD THAT IT'S ADMISSIBLE AND SO IT'S GENERALLY THE QUESTION IS HOW DID THE DOCTOR GO 257 00:26:41.669 --> 00:26:46.917 ABOUT IT IN THIS PARTICULAR CIRCUMSTANCE. AND WAS IT IN AN ORDINARY CANS WITH THE PUBLISHED 258 00:26:46.917 --> 00:26:52.282 LITERATURE ON HOW FIRST YOU RULE IN EVERY POSSIBLE CAUSE. THEN YOU GO THROUGH EVERY 259 00:26:52.282 --> 00:26:56.534 POSSIBLE CAUSE AND YOU RULE OUT WHY IT WOULD NOT HAVE BEEN THOSE CAUSES. THERE IS A LOT 260 00:26:56.534 --> 00:27:03.004 THAT IS PUBLISHED ON THIS ALREADY AND WOULDN'T YOUR CASE JUST BE PART OF THAT? 261 00:27:03.004 --> 00:27:07.879 DENNIS M. DONNELLY: WELL, THE ANSWER IS GENERALLY, YES, SPECIFICALLY, NO. BUT 262 00:27:07.879 --> 00:27:14.951 GENERALLY, YES. AND WHAT I'M SAYING IS I THINK THE RECORD IS CLEAR, ALTHOUGH THE JUDGE 263 00:27:14.951 --> 00:27:22.314 MIGHT NOT HAVE DONE IT IN RETROSPECT. THAT WHAT HE HAD BEFORE HIM AND WHAT HE WORKED 264 00:27:22.314 --> 00:27:25.856 WITH WAS A PROPER DIVISION AL DIAGNOSIS. JUSTICE PATTERSON: BUT HE DID NOT 265 00:27:25.856 --> 00:27:30.710 UNDERTAKE THE GAIT KEEPING RULE. I THINK YOU MUST CONCEDE HE DID NOT UNDER /STA*PB TAKE 266 00:27:30.710 --> 00:27:35.729 THE GAIT KEEPING RULE THAT ACCOUNT TAIN REQUIRES. THE ACCOUNT TAIN FACTORS ARE MENTIONED 267 00:27:35.729 --> 00:27:43.048 NO WHERE IN THE COURT'S OPINION. THE TWO TRANSCRIPTS ARE DEVOID OF ANY SUGGESTION THAT 268 00:27:43.048 --> 00:27:51.461 -- THE ACCOUNT TAIN FACTORS WERE APPLIED. SO MY QUESTION TO YOU, AND IT'S -- AND I THINK 269 00:27:51.461 --> 00:27:57.732 MY COLLEAGUES ARE ASKING AS WELL IS, GIVEN THAT SOMETHING WAS MISSING HERE, AN IMPORTANT 270 00:27:57.732 --> 00:28:04.670 STEP THAT THE COURT HAS IDENTIFIED FOR CIVIL CASES, HOW CAN WE, BASED UPON OTHER CASE 271 00:28:04.670 --> 00:28:11.852 LAW IN A CASE THAT'S VERY DIFFERENT FROM THOSE OTHER CASES, HOW CAN WE, WITH NO RECORD, 272 00:28:11.852 --> 00:28:16.776 WITH NO TESTIMONY WITH RESPECT TO THE RELIABILITY OF THE METHODOLOGY OR ANY OF THE ACCOUNT 273 00:28:16.776 --> 00:28:22.731 TAIN FACTORS SIMPLY DECIDE, WELL WE'RE LOOKING AT SOME CASE LAW WHERE THIS -- WHERE SOMETHING 274 00:28:22.731 --> 00:28:30.722 WAS USED IN A CASE THAT YOU CONCEDE AND ARGUE WAS A DIFFER CASE, /KRAOE ANG AN AND SIMPLY 275 00:28:30.722 --> 00:28:43.173 SAY THAT THAT THIS IS RELIABLE. THERE'S BEEN NO DETERMINATION FOR reliability OF THIS EXPERT 276 00:28:43.173 --> 00:28:43.178 TESTIMONY. DENNIS M. DONNELLY: SO WHAT I WAS TRYING TO DO UNSUCCESSFULLY -- AND IF 277 00:28:43.178 --> 00:28:45.391 THAT IS THE CASE, THEN WE HAVE A SITUATION WHERE A FACTUAL HEARING WAS REQUIRED, IT WASN'T 278 00:28:45.391 --> 00:28:50.753 GIVEN AND THE COURT SHOULD REMAND FOR THE SAME TRIAL JUDGE WHO READ THERE RECORD TO GO 279 00:28:50.753 --> 00:28:55.472 BACK AND APPLY THESE FACTORS. WHAT I'M TRYING TO SUGGEST TO YOU, NOT VERY SUCCESSFULLY, 280 00:28:55.472 --> 00:29:05.686 IS THAT -- THAT EVERYTHING THAT WAS IN /KRAOE ANG AN I CAN SAY THIS, IT MOST LIKELY WASN'T 281 00:29:05.686 --> 00:29:13.535 IN -- BECAUSE SHE DIDN'T GO IN TO IMMEDIATE, IT CAME RIGHT AFTER THE CAR ACCIDENT. 282 00:29:13.535 --> 00:29:17.889 THE COURT: WAS IN SEVEN MONTHS, NOT TWO MONTHS. SO THAT KIND OF PROCEDURE WAS EXACTLY 283 00:29:17.889 --> 00:29:24.790 WHAT PHILLIPS AND THE THREE TREATING DOCTORS DID. ALTHOUGH THEY'RE NOT -- THEY'RE NOT, 284 00:29:24.790 --> 00:29:29.478 YOU KNOW, PAID EXPERTS AND THEY DON'T KNOW ALL THE NECESSARY TRAPPINGS AND LANGUAGE, BUT 285 00:29:29.478 --> 00:29:35.065 THEY DID IT. JUSTICE NORIEGA: IT SEEMS AS THOUGH YOU'RE MAYBE BLURRING TWO 286 00:29:35.065 --> 00:29:44.269 ISSUES. EVEN IF THAT METHODOLOGY THAT WAS USED IN /KRAOE ANG AN IS IDENTICAL TO THE WAY 287 00:29:44.269 --> 00:29:49.625 IT WAS DONE HERE, AND IT SEEMS AS THOUGH YOU'RE SUGGESTING THAT IT IS SO CLEAR ON ITS 288 00:29:49.625 --> 00:29:54.266 FACE THAT THE TRIAL JUDGE IDENTIFIED THAT AND SIMPLY RULED ON THAT BASIS. 289 00:29:54.266 --> 00:29:56.613 DENNIS M. DONNELLY: RIGHT. JUSTICE NORIEGA: ISN'T IT STILL THE QUESTION THAT 290 00:29:56.613 --> 00:30:01.861 WE NEED THE TRIAL COURTS TO GO THROUGH THE ACCOUNT TAIN FACTORS, EVEN IF ON ITS FACE 291 00:30:01.861 --> 00:30:06.446 THEY BELIEVE IN THEIR HEART OF HEARTS THIS IS CLEAR OF DAY AND THEY AGREE WITH PLAINTIFF 292 00:30:06.446 --> 00:30:10.397 'S COUNSEL AND THEY'RE GOING TO FIND THAT WAY THEY STILL NEED TO GO THROUGH THE FACTORS 293 00:30:10.397 --> 00:30:15.253 TO CREATE A RECORD AND BECAUSE THE POINT EVERY IT IS TO DETERMINE IT'S RELIABILITY IMPORTANT 294 00:30:15.253 --> 00:30:28.738 purposes OF PROVIDING IT TO THE JURY. SO THAT RECORD NEEDS TO BE ESTABLISHED AND AS TO THE 295 00:30:28.738 --> 00:30:28.743 RELIABILITY OF THE METHODOLOGY, NOT THE RESULTS. DENNIS M. DONNELLY: WELL, AGAIN, I 296 00:30:28.743 --> 00:30:33.797 THINK THAT METHOD WAS FOLLOWED BY THESE DOCTORS, ALTHOUGH THE JUDGE DIDN'T USE THE TERM 297 00:30:33.797 --> 00:30:39.604 INOLOGY. HE RELIED ON WHAT THEY DID AND THAT WAS ENOUGH, BUT -- LOOK. JUSTICE 298 00:30:39.604 --> 00:30:44.347 WAINER APTER: AND JUST TO CLARIFY, I THINK -- THERE WAS A CASE WHERE AN EXPERT WAS TRYING 299 00:30:44.347 --> 00:30:48.253 TO TESTIFY FOR EXAMPLE THAT THEY PRESCRIBED TYLENOL FOR A FEVER AND THEN IT BROUGHT THE 300 00:30:48.253 --> 00:30:54.996 FEVER DOWN, WHO KNOWS, AND THE OTHER OPPOSING PARTY DID NOT CHALLENGE THAT TESTIMONY AS 301 00:30:54.996 --> 00:31:00.255 NOT RELIABLE, THEN YOU'D BE IN A SEPARATE AREA. BUT YOU'VE SAID NOW THAT THE DEFENDANT 302 00:31:00.255 --> 00:31:07.005 DID CHALLENGE THE EXPERT TESTIMONY AS UNRELIABLE. AND SO WHEN THERE IS A QUESTION AS 303 00:31:07.005 --> 00:31:13.128 TO WHETHER OR NOT EXPERT TESTIMONY IS RELIABLE, THERE IS AN ESTABLISHED FRAMEWORK FOR 304 00:31:13.128 --> 00:31:17.670 HOW THE TRIAL COURT CONSIDERS THAT DISPUTED QUESTION, CORRECT? DENNIS M. 305 00:31:17.670 --> 00:31:25.530 DONNELLY: CORRECT. BUT WHEN -- IF YOU'RE GOING TO SAY THAT ACCOUNT TAIN MEANS THAT UNLESS 306 00:31:25.530 --> 00:31:36.184 A JUDGE USES THE TERMINOLOGY OF THESE FOUR FANG TORS, SCIENTIFIC THEORY /-RS CAN IT BE 307 00:31:36.184 --> 00:31:41.883 TESTED, SUBJECTIVE, UNLESS THEY USE IT, EVEN IF -- IF IT HAD BEEN APPLIED, THE ONLY ONES 308 00:31:41.883 --> 00:31:48.314 THAT WOULD APPLY WOULD SHOW CAUSATION, IT'S STILL REVERSIBLE AND YOU HAVE TO GO BACK AND 309 00:31:48.314 --> 00:31:53.360 DO IT ALL OVER AGAIN. JUSTICE PATTERSON: ACCOUNT TAIN SAYS AT 396, 310 00:31:53.360 --> 00:32:12.575 (READING). JUSTICE PATTERSON: AND THINKS A DETAILED DESCRIPTION OF HOW THAT 311 00:32:12.575 --> 00:32:19.763 IS TO BE DONE. AND THAT IS NOT LIMITED TO SOME SUBSET OF EXPERTS. DENNIS M. 312 00:32:19.763 --> 00:32:25.895 DONNELLY: OKAY. BUT, AGAIN, NOT VERY SUCCESSFULLY, ISN'T THAT -- WITHOUT USING 313 00:32:25.895 --> 00:32:28.793 THAT TERMINOLOGY, ISN'T THAT WHAT THIS JUDGE DID? JUSTICE PATTERSON: NO. 314 00:32:28.793 --> 00:32:33.572 RESPECTFULLY. I THINK IF YOU LOOK AT HIS OPINION, YOU'LL SEE A NET OPINION 315 00:32:33.572 --> 00:32:38.429 DETERMINATION. AND I -- MR. DONNELLY, I HAVE GREAT RESPECT FOR YOUR LONG EXPERIENCE, YOU 316 00:32:38.429 --> 00:32:44.866 AND I BOTH KNOW THAT A NET OPINION IS ABOUT WHETHER THE REPORT PROVIDES A SUBSTANTIATION 317 00:32:44.866 --> 00:32:51.391 FOR THE CONCLUSIONS OF THE EXPERT. THAT IS FOCUSED ON THE FOUR CORNERS OF THE REPORT 318 00:32:51.391 --> 00:32:57.455 AND THE OPINION, RIGHT? AND SO THAT IS AN IMPORTANT INQUIRY AS WELL AND THAT WAS A 319 00:32:57.455 --> 00:33:06.086 SEPARATE INQUIRY, BUT THAT IS NOT SOME SORT OF SUBSTITUTE FOR A DETERMINATION ABOUT THE 320 00:33:06.086 --> 00:33:12.261 ADMISSIBILITY OF THE EXPERT TESTIMONY UNDER 702, IS IT? DENNIS M. DONNELLY: 321 00:33:12.261 --> 00:33:17.112 WELL, I WOULD LIKE TO SAY THAT IN THIS CASE IT IS BUT I'M NOT BEING SUCCESSFUL IN THAT 322 00:33:17.112 --> 00:33:23.933 SO IF IT'S NOT, WHAT I WOULD SAY IS THIS, UNDER THESE CIRCUMSTANCES, IF THE COURT IS 323 00:33:23.933 --> 00:33:30.122 MISSING A FACT-FINDING HEARING BY THAT JUDGE, THEN THIS COURT SHOULD REMAND THE CASE TO 324 00:33:30.122 --> 00:33:37.055 THAT JUDGE FOR THAT HEARING BECAUSE THIS -- NO ONE TRIED -- THE LAW ANYWAY, WITH THE TRIAL 325 00:33:37.055 --> 00:33:42.289 JUDGE. THIS WAS NOT A DAUBERT, ACCOUNT TAIN FIGHT. IT WAS A FIGHT ABOUT A LOT OF OTHER 326 00:33:42.289 --> 00:33:49.501 THINGS, PREEMPT YON, ET CETERA. BUT IN DECIDEDING CAUSATION, IN DECIDEDING 327 00:33:49.501 --> 00:33:55.431 CAUSATION, WHAT THIS JUDGE REALLY DID IS CONSISTENT WITH ACCOUNT TAIN. HE SAID THAT 328 00:33:55.431 --> 00:34:02.044 WE HAD A -- AN OPINION FROM AN EXPERT. THAT EXPERT GAVE REASONS WHY IT WASN'T OTHER 329 00:34:02.044 --> 00:34:08.290 THINGS. THEY WERE COMPANY GENT REASONS, YOU DON'T HAVE TO AGREE WITH THEM. AND THIS WHOLE 330 00:34:08.290 --> 00:34:12.830 ISSUE OF CAUSATION, BY THE WAY, AND THIS GAIT KEEPING FUNCTION, I THINK I'VE ASKED YOU 331 00:34:12.830 --> 00:34:17.990 AND IT'S ANOTHER PART OF THE BRIEF, YOU BUT I SHOULD GO THERE NOW, IN ALL OF OUR PRODUCTS 332 00:34:17.990 --> 00:34:28.695 CASES, IF MY LONG EXPERIENCE, WE'VE HAD A -- A SORT OF PRESUMPTION BY THE COURT THAT WHEN 333 00:34:28.695 --> 00:34:34.078 THERE IS -- AND BY THE WAY, WHAT'S CRITICAL HERE IS SEQUENCING. NOBODY EVER /TKOEUDZ 334 00:34:34.078 --> 00:34:39.900 CAUSATION ON A JURY UNTIL THEY DECIDED THAT IT WAS A DEFECTIVE PRODUCT FOR NOT HAVING 335 00:34:39.900 --> 00:34:45.518 THE RIGHT WANG OR FOR HAVING A MANUFACTURING DEFECT. SO WHAT YOU'RE REALLY TALKING ABOUT 336 00:34:45.518 --> 00:34:49.789 IN THIS CASE, THE BIG FIGHT HAS ALWAYS BEEN ABOUT CAUSATION. ONCE YOU GET THERE, THEN 337 00:34:49.789 --> 00:34:56.736 WE HAD CASES LIKE COUGH MAN V KEEN, WHERE THE DEFENSE SAID HOW DID WE KNOW THAT PEOPLE 338 00:34:56.736 --> 00:35:02.081 WOULD FOLLOW THE WARNING. JUSTICE PATTERSON: THIS IS -- THIS IS A 339 00:35:02.081 --> 00:35:08.753 PHARMACEUTICAL PRODUCT. SO COUGH MAN REALLY HAS VERY LIMITED RELEVANCE? I MEAN, REALLY. 340 00:35:08.753 --> 00:35:14.376 HEEDING PRESUMPTION IS VERY IMPORTANT IN A MACHINE CASE, BUT. DENNIS M. 341 00:35:14.376 --> 00:35:19.320 DONNELLY: WHERE I THINK COUGH MAN HAS SOME APPLICABILITY AS WELL AS MOR ACCOUNT AN AND 342 00:35:19.320 --> 00:35:25.197 SCAN HOSPITAL, IS THAT IT SHOWS YOU AN INCENTIVE, A TRADITION BY THE WAY OF THE COURT, 343 00:35:25.197 --> 00:35:33.542 YOU HAVE ON YOUR WEB PAGE THAT LBI RARIAN THAT IN YOUR LIBRARY A STATEMENT BY JUDGE BILL 344 00:35:33.542 --> 00:35:38.028 DWYER. I SPOKE WITH HIM AND LECTURED WITH HIM, WHERE HE SAYS NEW JERSEY WAS THE LEADING 345 00:35:38.028 --> 00:35:44.885 STATE, YOU KNOW, IN DOING THIS AND HAD ASSISTANCE WHERE THERE WAS DIFFICULTY IN IMPROVING 346 00:35:44.885 --> 00:35:52.359 CAUSATION. WHY THERE WAS DIFFICULTY? BECAUSE ALLERGAN DIDN'T TELL ABOUT THE BAD BATCH 347 00:35:52.359 --> 00:35:56.300 AND THAT'S WHY DR. PHILLIPS WASN'T GOING AND LOOKING FOR IT. JUSTICE PATTERSON: 348 00:35:56.300 --> 00:35:59.734 YOU ARE YOU RELYING ON THE HEEDING PRESUMPTION? DENNIS M. DONNELLY: NO. 349 00:35:59.734 --> 00:36:05.259 JUSTICE PATTERSON: BECAUSE MR. DONNELLY, YOU KNOW THAT'S NOT THE TEST IN A 350 00:36:05.259 --> 00:36:09.499 PHARMACEUTICAL CASE. DENNIS M. DONNELLY: I'M USING THE HEEDING PRESUMPTION 351 00:36:09.499 --> 00:36:16.946 OF HOW THIS COURT HAS BEEN LIBERAL IN ALLOWING JURIES TO DECIDE CAUSATION RATHER THAN 352 00:36:16.946 --> 00:36:21.638 JUDGES ON THE TRIAL LEVELING AND ELSEWHERE. AND I THINK IN THIS PARTICULAR /KAEURBGS 353 00:36:21.638 --> 00:36:26.541 THOSE PRINCIPLES, IF YOU LOOK AT THE GARDENER CASE IN THE MALPRACTICE CASE. IN GARDENER 354 00:36:26.541 --> 00:36:30.395 BECAUSE THE DEFENDANTS DIDN'T WANT TO TEST AND THERE WAS UNCERTAINTY ABOUT WHAT THE TEST 355 00:36:30.395 --> 00:36:36.792 WOULD SHOW OR NOT, THE COURT SAID, WE'RE GOING TO SHIFT THE BURDEN OF PROOF. IN CONTACT 356 00:36:36.792 --> 00:36:47.571 KNEES I VERSUS WILSON, THE COURT SAID, EVEN IF Provera, THE DRUG, DID NOT CAUSE THIS 357 00:36:47.571 --> 00:36:49.615 DEFECT, AS LONG AS THE CASE IS BASED ON THE FACT, WELL, IF WE HAD BEEN ADVISED THAT IT 358 00:36:49.615 --> 00:36:54.356 COULD HAVE CAUSED THIS DEFECT, WE HAVE TERMINATED THE PREGNANCY. JUSTICE PATTERSON: 359 00:36:54.356 --> 00:36:58.070 THE SIMPLE QUESTION, IS WHAT'S THE CAUSATION STANDARD THAT APPLIES IN YOUR CASE WHICH IS 360 00:36:58.070 --> 00:37:03.653 A PHARMACEUTICAL PRODUCT WHICH HAS BEEN APPROVED BY THE FDA? DENNIS M. DONNELLY: 361 00:37:03.653 --> 00:37:07.960 EXCEPT THAT IT'S A PHARMACEUTICAL PRODUCT THAT THE DEFENDANT HAD FOUND THE MANUFACTURING 362 00:37:07.960 --> 00:37:12.248 DEFECT IN, WHICH MAKES IT VERY DIFFERENT. JUSTICE PATTERSON: JUST -- WHY 363 00:37:12.248 --> 00:37:15.467 DON'T YOU EXPLAIN WHAT THE STANDARD IS? DENNIS M. DONNELLY: STANDARD ON CAUSATION. 364 00:37:15.467 --> 00:37:17.428 JUSTICE PATTERSON: STANDARD OF CAUSATION. CHIEF JUSTICE RABNER: 365 00:37:17.428 --> 00:37:20.516 DENNIS M. DONNELLY: THE STANDARD OF CARE ON CAUSATION OR THE STANDARD FOR 366 00:37:20.516 --> 00:37:26.426 PROOF OF CAUSATION IS -- COULD BE AN INFERENCE, AS IN MOR ACCOUNT AN AND SCAN HOSPITAL. 367 00:37:26.426 --> 00:37:31.125 COULD BE BASED ON EXPERT TESTIMONY. JUSTICE WAINER APTER: IT'S A STANDARD 368 00:37:31.125 --> 00:37:39.830 THAT (READING). DENNIS M. DONNELLY: I'M SORRY, I DIDN'T HEAR THE FIRST PART. 369 00:37:39.830 --> 00:37:40.627 JUSTICE WAINER APTER: JUSTICE WAINER APTER: WOULDN'T THAT BE THE 370 00:37:40.627 --> 00:37:44.699 STANDARD? DENNIS M. DONNELLY: YES. BUT THIS EXPOSURE TO THE PRODUCT IS IN 371 00:37:44.699 --> 00:37:50.568 A SPECIAL CONTEXT, IT'S EXPOSURE TO A PRODUCT THAT IT'S AN ACKNOWLEDGED BAD BATCH. RICH 372 00:37:50.568 --> 00:37:54.228 I UNDERSTAND THAT. THAT MIGHT HELP YOU WITH FOR EXAMPLE. DENNIS M. DONNELLY: 373 00:37:54.228 --> 00:37:58.653 I NEED ALL THE HELP I CAN GET. JUSTICE WAINER APTER: THAT MIGHT HELP YOU 374 00:37:58.653 --> 00:38:03.711 WITH THE OTHER PARTS OF THE TEST THAT SHOWS THAT IT FOR EXAMPLE WAS DEFECTIVE. OR THAT 375 00:38:03.711 --> 00:38:08.277 IT NEEDED THESE WARNINGS BECAUSE OTHERWISE IT WAS CREATING A DANGEROUS USE. BUT NO MATTER 376 00:38:08.277 --> 00:38:14.014 WHAT YOU THEN STILL HAVE TO SHOW THAT IT CAUSED THE INJURY, CORRECT? OR AT LEAST THAT 377 00:38:14.014 --> 00:38:20.318 IT WAS A SUBSTANTIAL /TPA*BL FACTOR IN CAUSING THE INJURY CONCERN. DENNIS M. 378 00:38:20.318 --> 00:38:23.961 DONNELLY: CERTAINLY. AND THAT WAS ALL THE TREATING PHYSICIAN'S OPINION, THAT IT CAUSED 379 00:38:23.961 --> 00:38:29.218 THIS BLINDNESS FOR THIS PATIENT WHO HAD TOLERATED THE PRODUCT PREVIOUSLY, BUT THIS WAS 380 00:38:29.218 --> 00:38:34.793 A BAD BATCH. WHERE I THOUGHT WAS MOST SURPRISING IN THE APPELLATE DIVISION /TKOEUGS IS 381 00:38:34.793 --> 00:38:40.491 SEE /HREPBGS ESSENTIALLY THIS AND IT WOULDN'T BE THE FIRST TIME I'M SURPRISED OR THE LAST. 382 00:38:40.491 --> 00:38:49.746 IT SEEMED THAT COURT SAID THAT BECAUSE ONLY 2.2 PERCENT OF SAMPLES TESTED HAD THE EXTRA 383 00:38:49.746 --> 00:38:55.255 PIECE OF PLASTIC WHICH WASN'T SUPPOSED TO GO IN SOMEONE'S EYE, THAT WE JUST DON'T THINK 384 00:38:55.255 --> 00:39:01.192 2.2 PERCENT IS ENOUGH. BUT WE'VE DONE IN OTHER CASES 3 PERCENT, 4 PERCENT, ET CETERA. 385 00:39:01.192 --> 00:39:05.740 JUSTICE FASCIALE: I'M SORRY TO INTERRUPT. FINISH YOUR STATEMENT. 386 00:39:05.740 --> 00:39:09.367 DENNIS M. DONNELLY: I WAS PROBABLY FINISHED 60 SECONDS AGO. JUSTICE FASCIALE: 387 00:39:09.367 --> 00:39:13.795 I NEED YOU TO HELP ME UNDERSTAND MORE ABOUT THE METHODOLOGY THAT YOUR EXPERTS USED. 388 00:39:13.795 --> 00:39:22.987 AS I UNDERSTAND IT, IT WAS BASED ON A TEMPORAL ASSOCIATION BETWEEN THE INJECTIONS BEFORE 389 00:39:22.987 --> 00:39:27.530 NOVEMBER 6 AND THE ONE THAT CAME AFTER NOVEMBER 6; IS THAT RIGHT. DENNIS M. 390 00:39:27.530 --> 00:39:31.378 DONNELLY: ACTUALLY SEVERAL. 6 OR 10. JUSTICE FASCIALE: 10 BEFORE AND THEY 391 00:39:31.378 --> 00:39:38.216 WERE ALL GOOD. THEN COMES THIS ONE WITH A BAD RESULT. THAT'S THE METHODOLOGY THAT YOUR 392 00:39:38.216 --> 00:39:43.157 EXPERTS UTILIZED TO REACH THEIR EXPERT OPINIONS, AM I RIGHT ABOUT THAT? DENNIS M. 393 00:39:43.157 --> 00:39:47.390 DONNELLY: YOU'RE RIGHT ABOUT IT WITH SOME ADDITIONS. THEY NOT ONLY USED THE OKAY, WE 394 00:39:47.390 --> 00:39:52.500 GAVE IT BEFORE AND SHE NEVER HAD A REACTION SO SHE'S NOT ALLERGIC TO IT. OKAY, WHEN THIS 395 00:39:52.500 --> 00:40:00.902 ONE SHE HAD AN EXTRAORDINARY RAPID INFLAMMATION THAT WAS OUT OF ANYTHING NORMALLY YOU 396 00:40:00.902 --> 00:40:06.423 WOULD SAY, OKAY, AND NOT ONLY THAT, WE TRIED TO TREAT THE INFLAMMATION BUT IT WAS REFRACTORY 397 00:40:06.423 --> 00:40:11.279 AND DIDN'T WORK. ALL OF THOSE FACTORS WERE THE TWO PARTS OF THE DIFFERENTIAL DIAGNOSIS. 398 00:40:11.279 --> 00:40:16.078 WE BELIEVE IT WAS THIS AND WE BELIEVE WE CAN RULE OUT THE OTHER THINGS THAT YOU MIGHT 399 00:40:16.078 --> 00:40:22.686 THINK AS BEING UNLIKELY, THAT WAS THEIR METHODOLOGY. PRETTY GOOD ONE, I WOULD 400 00:40:22.686 --> 00:40:26.571 SUBMIT. JUSTICE HOFFMAN: WELL, YOU'VE TALKED ABOUT THIS RULING NOW. AND WE 401 00:40:26.571 --> 00:40:33.041 KNOW THAT THE DIFFERENTIAL DIAGNOSIS TEST, RULING IN, RULING OUT. AND YOU TALKED ABOUT 402 00:40:33.041 --> 00:40:37.773 THE FOUR EXPERTS, RIGHT, THE TWO THAT ARE TESTIFYING, THERE ARE TWO THAT ARE THE 403 00:40:37.773 --> 00:40:43.745 PROVIDERS, AND AS I READ THIS TO THE PROVIDERS SEEM TO ATTRIBUTE THE PROBLEM TO THE 404 00:40:43.745 --> 00:40:49.987 MIGRATION OF THE OWES OWES /PEL ET INTO THE INTERIOR CHAMBER, AND NOT THE PART BUT THE 405 00:40:49.987 --> 00:40:56.918 PELT AND THE MIGRATION OF THE PELT AND THE EXCESSIVE TOXIC LEVELS THAT SEEPED OUT OF THE 406 00:40:56.918 --> 00:41:02.783 PELT ARE WHAT CAUSED THE NECROSIS. NOW, OTHER DOCTORS HAVE SAID NO NO, IT'S ACTUALLY THE 407 00:41:02.783 --> 00:41:12.006 PART THAT'S CAUSING THE CORNEAL DEGRAD INVESTIGATION AND /TPHO*S SEEPING, THAT'S 408 00:41:12.006 --> 00:41:17.175 CAUSING IT. SO HOW EXACTLY, AND THIS GOES BACK TO THE BASIS OF THE QUESTIONS THAT JUSTICE 409 00:41:17.175 --> 00:41:25.553 PATTERSON -- THAT EVERYBODY HAS BEEN ASKING. IF THE DIFFERENTIAL DIAGNOSIS REQUIRES A 410 00:41:25.553 --> 00:41:33.320 RELIABLE AND TESTABLE AND DEPENDABLE RULING IN AND RULING OUT, AND WE HAVE A SITUATION 411 00:41:33.320 --> 00:41:37.673 IN WHICH YOURSELF HAVE CREDITED ALL OF THESE PROVIDERS BUT SOME OF THESE PROVIDERS 412 00:41:37.673 --> 00:41:43.955 ATTRIBUTE IT TO -- ATTRIBUTE THE CORN NAL DEGRADATION TO THE SEEPAGE OF THE PELT, SOME 413 00:41:43.955 --> 00:41:50.279 OF THEM ATTRIBUTE IT TO THE PARTICULATE, HOW EXACTLY HAS THERE BEEN AN EFFECTIVE OR TESTED 414 00:41:50.279 --> 00:41:53.151 RULING OUT THAT WOULD SATISFY THE ACCOUNT TAIN STANDARD. DENNIS M. DONNELLY: 415 00:41:53.151 --> 00:42:02.081 BECAUSE BOTH THOSE ALTERNATIVES WERE ONLY CREATED BECAUSE ALLERGAN FAILED TO GIVE A WARNING 416 00:42:02.081 --> 00:42:08.562 OF THE BAD BATCHES BECAUSE IF THEY HAD GIVEN THAT WARNING, THE IMPLANTATION OF THIS DEVICE, 417 00:42:08.562 --> 00:42:12.467 WHETHER THERE WAS PLASTIC IN IT OR WHETHER THERE WAS SEEPAGE WHEN IT WENT TO THE ANTERIOR 418 00:42:12.467 --> 00:42:16.350 CAVITY WOULDN'T HAVE HAPPENED. JUSTICE HOFFMAN: SO YOU'RE SAYING THE OWES 419 00:42:16.350 --> 00:42:24.212 OWES /PEL ET -- YOUR CLAIM IS NOT NECESSARILY BASED UPON THE SILL CONNECTICUT PART BUT 420 00:42:24.212 --> 00:42:29.069 IT'S ALSO BASED ON THE MIGRATION OF THE OWES OWES /PEL ET. DENNIS M. DONNELLY: 421 00:42:29.069 --> 00:42:33.927 NEW YORK CITY THEY'RE BOTH RELATED AND HERE'S WHY. THE PARTICULATE THEN CAUSES THE NEED 422 00:42:33.927 --> 00:42:41.214 FOR SURGERY DURING WHICH TIME IT MIGRATES INTO THE ANTERIOR CHAMBER. ALL OF THAT IS 423 00:42:41.214 --> 00:42:46.606 FORESEEABLE BECAUSE OF THE SILICONE IMPERFECTION WHICH IS THE MANUFACTURING DEFECT. 424 00:42:46.606 --> 00:42:51.420 JUSTICE FASCIALE: HAS THE METHODOLOGY THAT YOU REVIEWED WITH ME EVER BEEN TESTED AS BEING 425 00:42:51.420 --> 00:42:57.783 SOUND? DENNIS M. DONNELLY: IT'S -- IT'S A PRETTY UNIQUE, I MEAN, IT WAS A 426 00:42:57.783 --> 00:43:02.104 UNIQUE SITUATION. LIKE I SAID, WHO'S GOING TO WRITE AN ARTICLE ABOUT A SINGLE CASE LIKE 427 00:43:02.104 --> 00:43:05.894 THIS WHERE YOU HAVE THE MEANING OF A BAD BATCH AND. JUSTICE WAINER APTER: 428 00:43:05.894 --> 00:43:10.391 BUT AGAIN, IF THE METHODOLOGY IS A DIFFERENTIAL DIAGNOSIS, THEN WOULDN'T YOUR ANSWER BE 429 00:43:10.391 --> 00:43:16.408 YES, A DIFFERENTIAL DIAGNOSIS HAS BEEN SHOWN TO BE SOUND AND YOU RULE IN ALL THE POSSIBLE 430 00:43:16.408 --> 00:43:20.834 THINGS AND THEN YOU EXPLAIN WHY IT COT NOT HAVE BEEN THIS AND IT COULD NOT HAVE BEEN THAT 431 00:43:20.834 --> 00:43:24.810 AND THE ONLY THING WE'RE LEFT WITH IS THIS DEFENSIVE PRODUCT. DENNIS M. 432 00:43:24.810 --> 00:43:31.048 DONNELLY: AND ISN'T THAT SELL WHAT WAS IN THE RECORD FROM THESE TREATERS EVEN IF IT WASN'T 433 00:43:31.048 --> 00:43:36.794 BLESSED WITH THE LANGUAGE OF DAUBERT? ISN'T IT THERE? JUSTICE NORIEGA: IT'S 434 00:43:36.794 --> 00:43:41.505 NOT THE LANGUAGE, IT'S THE SUPPORT THAT'S MISSING. THERE WAS NO TESTIMONY, THERE WAS 435 00:43:41.505 --> 00:43:47.452 NO FACTS PROVIDED, NO EVIDENCE THAT THIS IS SUPPORTED ANYWHERE BUT BY THESE PROVIDERS, 436 00:43:47.452 --> 00:43:50.250 THESE TREATERS. DENNIS M. DONNELLY: WHAT KIND OF SUPPORT COULD YOU POSSIBLY 437 00:43:50.250 --> 00:43:55.395 GIVE? YOU'RE GOING TO SUBJECT ANOTHER PATIENT TO A BAD BATCH THAT GOES IN THEIR ANTERIOR 438 00:43:55.395 --> 00:43:59.214 CHAMBER /STPHUR NEVER GOING TO DO THAT. JUSTICE WAINER APTER: BUT YOU ALSO 439 00:43:59.214 --> 00:44:03.484 HAVE EVIDENCE FROM THE DEFENDANTS THEMSELVES ABOUT THE POSSIBLE HARM THEY COULD HAVE 440 00:44:03.484 --> 00:44:08.017 CAUSED AND LOTS OF THAT IS WHAT THESE EXPERTS WERE TESTIFYING TO, CORRECT. DENNIS M. 441 00:44:08.017 --> 00:44:14.322 DONNELLY: INDEED, CORRECT. AND THAT WAS ANOTHER UNUSUAL SITUATION HERE AND FOR THE /TPHA*LT 442 00:44:14.322 --> 00:44:19.502 NAITLY THE APPELLATE DIVISION WAS RIGHT. EVEN THOSE THE DEFENDANTS WANTED TO COMPLAIN, 443 00:44:19.502 --> 00:44:28.830 THEY WERE RIGHT TO SAY THAT WAS ADMISSIBLE EVIDENCE, WHICH YOUR EXPERTS RELIED ON AND 444 00:44:28.830 --> 00:44:32.845 YOU RELIED ON. JUSTICE PATTERSON: YOU WON IN THAT ASPECT OF THE APPELLATE 445 00:44:32.845 --> 00:44:36.851 DIVISION DECISION. I'M GOING TO ASK YOU ABOUT NET OPINION. BECAUSE ONE OF THE THINGS 446 00:44:36.851 --> 00:44:44.360 THAT STRIKES ME ABOUT THIS RECORD IS THIS BLURRING OF TWO DISTINCT ISSUES. SO IF YOU 447 00:44:44.360 --> 00:44:51.850 COULD ARGUE -- PROVIDE YOUR ARGUMENT WITH RESPECT TO WHY THE TRIAL COURT WAS CORRECT THAT 448 00:44:51.850 --> 00:44:58.483 YOUR EXPERTS, THE TWO EXPERTS, JUST -- NOT. DENNIS M. DONNELLY: PHILLIPS AND 449 00:44:58.483 --> 00:45:03.792 LASER LAY. JUSTICE PATTERSON: ONE AN OUTSIDE EXPERT WHO DID A RATHER EXTENSIVE 450 00:45:03.792 --> 00:45:09.087 ANALYSIS, THE OTHER, PHILLIPS, WERE NOT NET OPINIONS. AND TAKE THEM ONE BY ONE BECAUSE 451 00:45:09.087 --> 00:45:13.530 THEY ARE VERY DIFFERENT, ONE IS A TREATING, AS YOU POINTED OUT, A TREATING PHYSICIAN'S 452 00:45:13.530 --> 00:45:18.641 REPORT AND ONE IS FROM A NON-TREATING EXPERT IN. DENNIS M. DONNELLY: SO EVERY 453 00:45:18.641 --> 00:45:22.840 WEEK IN THE STATE OF NEW JERSEY THERE'S A MEDICAL MALPRACTICE CASE WHERE DOCTORS GET ON 454 00:45:22.840 --> 00:45:27.192 THE STAND AND GIVE A DIFFERENTIAL DIAGNOSIS THAT'S NO DIFFERENT THAN WHAT THESE EXPERTS 455 00:45:27.192 --> 00:45:30.645 DID HERE. JUSTICE PATTERSON: I'M ASKING YOU TO EXPLAIN WITH RESPECT TO THE 456 00:45:30.645 --> 00:45:37.929 INDIVIDUAL EXPERT REPORTS THAT WERE SUBMITTED, WHY ARE THESE NOT NET OPINIONS? NET OPINION 457 00:45:37.929 --> 00:45:41.669 IS A LOT STIMULANT /PHR-R THAN THE OTHER INQUIRY. JUSTICE WAINER APTER: NET 458 00:45:41.669 --> 00:45:46.034 OPINION IS JUST WHETHER THEY PROVIDED FACTS AND DATA VERSUS WHETHER THEY JUST SAID, HERE'S 459 00:45:46.034 --> 00:45:49.476 MY CONCLUSION. DENNIS M. DONNELLY: I UNDERSTAND. WISE AND WHERE FORCE. 460 00:45:49.476 --> 00:45:56.569 AND WHY I'VE BEEN TRYING TO EMPHASIZE /TP* IS THEY DID GIVE WHYS AND WHERE FOR IS. THE 461 00:45:56.569 --> 00:46:01.911 WHYS AND WHERE FOR IS WERE WE KNOW THIS PATIENT. THIS PATIENT WAS IN ESSENCE THE CLOSEST 462 00:46:01.911 --> 00:46:06.378 THING YOU COULD GET TO A SCIENTIFIC CONTROL. WE KNOW THAT SHE WASN'T ALLERGIC TO THIS. 463 00:46:06.378 --> 00:46:11.019 WE KNOW THAT SHE TOLERATED THIS MEDICATION. WHAT WAS DIFFERENT HERE? IT WAS THE BAD 464 00:46:11.019 --> 00:46:17.492 BATCH. SO THAT WAS /TKAEUFP. JUSTICE HOFFMAN: SHE HAD A HISTORY OF MASSIVE 465 00:46:17.492 --> 00:46:21.920 EYE PROBLEMS. HOW WOULD YOU CONSIDER THIS PATIENT TO BE A SCIENTIFIC CONTROL? SHE HAD 466 00:46:21.920 --> 00:46:26.945 A HISTORY OF -- SHE HAD HAD EIGHT OWES OWES INJECTIONS. DENNIS M. DONNELLY: 467 00:46:26.945 --> 00:46:32.596 AND NONE OF THEM PRODUCED THIS REACTION SO THAT'S WHY SHE WAS A SCIENTIFIC CONTROL FOR 468 00:46:32.596 --> 00:46:38.259 HER. I UNDERSTAND, SHE'S NOT A SCIENTIFIC CONTROL FOR THE UNIVERSE BUT THE REASON WHY 469 00:46:38.259 --> 00:46:43.327 THIS WARNING NEEDED TO BE GIVEN, AMONG THE LABORATORY INFORMATION THAT WAS SUPPLIED, WAS 470 00:46:43.327 --> 00:46:49.929 THAT SOME PEOPLE LIKE HER ALREADY HAVE VISION PROBLEMS ARE GOING TO REACT MORE SENSITIVE 471 00:46:49.929 --> 00:46:55.419 LY TO SILL CONNECTICUT THAT'S NOT SUPPOSED TO BE IN THEIR EYE. JUSTICE HOFFMAN: 472 00:46:55.419 --> 00:47:02.571 AS HER EYE CONTINUES TO DEGRADE, FOR OTHER PROBLEMS, IT'S NOT THE STATUS QUO. SOMETHING 473 00:47:02.571 --> 00:47:08.286 CAN IMPACT -- THERE CAN BE THE STRAW THAT BROKE THE CAMEL'S BACK. SOMETHING CAN IMPACT 474 00:47:08.286 --> 00:47:15.036 YOU WHERE YOUR EYE HAS SUFFERED SOME DEGRADATION THAT WOULD NOT HAVE PREVIOUSLY DONE SO 475 00:47:15.036 --> 00:47:20.081 AND YOU'RE SAYING THAT AT ANY POINT IF THERE'S AN IMPACT IT MUST BE ATTRIBUTABLE. 476 00:47:20.081 --> 00:47:23.281 DENNIS M. DONNELLY: BUT IF THE STRAW SHOULDN'T HAVE BEEN RELEASED AND YOU SHOULDN'T HAVE 477 00:47:23.281 --> 00:47:29.219 BEEN SUBJECTED TO THE STRAW, THE CAMEL'S BACK WOULD STILL BE INTACT. JUSTICE 478 00:47:29.219 --> 00:47:34.361 WAINER APTER: I KNOW THAT THERE WERE MANY OWES OWES INJECTIONS IN THE PAST THAT DIDN'T 479 00:47:34.361 --> 00:47:39.157 HAVE ANY NEGATIVE CONSEQUENCE IS. WHEN WAS THE MOST RECENT BEFORE NOVEMBER OF 2018? 480 00:47:39.157 --> 00:47:43.264 DENNIS M. DONNELLY: A WHILE. I THINK IT COULD HAVE BEEN FOUR, FIVE, 6 YEARS. 481 00:47:43.264 --> 00:47:48.134 IT WASN'T LIKE JUST A FEW MONTHS BEFORE OR SOMETHING LIKE THAT. BUT BY THE WAY, IN 482 00:47:48.134 --> 00:47:55.490 REACTION TO THE DEGRADATION OF HER VISION, THE RECORD DIDN'T REALLY SHOW, YOU KNOW -- IT 483 00:47:55.490 --> 00:47:59.599 WAS -- IT WAS BAD ALL ALONG. A IT WASN'T LIKE IT WAS GOOD AND THEN IT WAS GETTING 484 00:47:59.599 --> 00:48:04.755 BAD. AND THE PEOPLE WHO ARE GOING TO USE THE MEDICATION THAT ALLERGAN SHOWS ARE NOT PEOPLE 485 00:48:04.755 --> 00:48:10.668 WITH PERFECT VISION, THEY'RE PEOPLE LIKE HER WHO HAS A PROBLEM BUT ALL OF HER PHYSICIANS 486 00:48:10.668 --> 00:48:17.317 WERE SAYING, WE MANAGED HER. SO WHAT DID DR. PHILLIPS SAY? WE WERE MANAGING THE PROBLEMS 487 00:48:17.317 --> 00:48:23.021 SHE HAD. SHE WASN'T DEGRADING FURTHER. SHE TOLERATED THIS DRUG BEFORE. WE GAVE THIS 488 00:48:23.021 --> 00:48:29.731 DRUG, WHICH UNBEKNOWNST TO US, WE NEVER WOULD HAVE GIVEN TO HER IF WE KNEW, WHICH 489 00:48:29.731 --> 00:48:35.084 UNBEKNOWNST TO US, HAD THIS FOREIGN BODY IN IT. JUSTICE HOFFMAN: AND A 2 PERCENT 490 00:48:35.084 --> 00:48:41.061 CHANCE OF HAVING THIS FOREIGN BODY? NOT HAD THIS FOREIGN BODY, HAD A 2 PERCENT CHANCE OF 491 00:48:41.061 --> 00:48:49.399 HAVING THIS FOREIGN BODY. DENNIS M. DONNELLY: INDEED. BUT I STILL REMEMBER 492 00:48:49.399 --> 00:48:56.223 HALF THE LOAN STAR HOTEL AND ALL THESE CASES. ALL THE HEEDING PRESUMPTION IS NOT DIRECTLY 493 00:48:56.223 --> 00:49:03.396 APPLICABLE HERE, WHAT IS APPLICABLE IS WHEN THERE'S A PROBLEM WITH CAUSATION WHICH WAS 494 00:49:03.396 --> 00:49:12.718 CREATED BY THE DEFENDANT THAT THERE IS THEN MORE LIB REALITY IN THE LEVEL OF PROOF THAT YOU 495 00:49:12.718 --> 00:49:18.431 CAN GIVE. AND KEEP IN MIND HERE, AS I SAID, AND IF THIS WARNING HAD BEEN GIVEN, THERE 496 00:49:18.431 --> 00:49:22.596 NEVER WOULD HAVE BEEN THE INJECTION. IF THE WARNING HAD BEEN GIVEN IN BETWEEN THE TIME 497 00:49:22.596 --> 00:49:28.528 OF THE INJECTION, IT WAS ONLY A WEEK OR SO, I'LL ADMIT, AND THE LATER SURGERY, THEN DR. 498 00:49:28.528 --> 00:49:35.619 PHILLIPS OR THE SURGE ON WOULD HAVE KNOWN TO FIND THE PIECE OF -- OR TO LOOK FOR IT. 499 00:49:35.619 --> 00:49:40.850 AND THERE WAS -- THERE WAS CONSISTENT OPINION BY BOTH SIDES OF THE CASE BY EXPERTS THAT 500 00:49:40.850 --> 00:49:45.331 THEY'RE NOT SURPRISED THAT YOU CAN'T FIND IT BECAUSE IT'S IN THE /TPHAOBGS AND /KRAPB 501 00:49:45.331 --> 00:49:49.662 IS IN THE EYE OR IT COULD HAVE GOT WASHED OUT WHEN THEY WERE DOING THESE PROCEDURES. 502 00:49:49.662 --> 00:49:58.257 SO IT SEEMS UNFAIR AND INCONSISTENT WITH PRIOR NEW JERSEY LIB REALITY ON CAUSATION BEING 503 00:49:58.257 --> 00:50:02.865 AN ISSUE DECIDED BY THE JURY IN THIS CASE WITH THESE SPECIFICS. JUSTICE 504 00:50:02.865 --> 00:50:09.467 PATTERSON: MR. DONNELLY, ARE YOU RELYING IN THIS CASE IN WHICH THERE WAS -- THE DEFENDANTS PUT 505 00:50:09.467 --> 00:50:15.731 IN ISSUE THE RELIABILITY OF YOUR EXPERT'S REPORTS ON NEW JERSEY'S HISTORY IN CONTEXT 506 00:50:15.731 --> 00:50:23.852 SUCH AS THE HEAT HEEDING PRESUMPTION OF PROVIDING CASE LAW THAT LOOSENED THE STANDARDS 507 00:50:23.852 --> 00:50:30.497 IN SOME CONTEXT? DOES -- IT SEEMS -- FRANKLY THAT SEEMS TO BE A DISCONNECT. 508 00:50:30.497 --> 00:50:35.106 DENNIS M. DONNELLY: SEE, IT'S NOT JUST THE COUGH MAN HEEDING PRESUMPTION. MALPRACTICE 509 00:50:35.106 --> 00:50:41.490 CASES ARE FULL EVERY SCIENCE AND FULL OF COMPLICATED ISSUES AND IN THOSE CASES THE 510 00:50:41.490 --> 00:50:45.145 SAME APPROACH HAS BEEN TAKEN. IF YOU CREATED A SITUATION WHERE IT'S HARD TO KNOW AND 511 00:50:45.145 --> 00:50:51.401 HARD TO PROVE, THEN THE STANDARD OF PROOF IS DECREASED. THAT'S GARDENER. THAT'S CONTACT 512 00:50:51.401 --> 00:50:56.186 KNEES I. CONTACT KNEES I IS A STARTLING CASE. JUSTICE PATTERSON: THE 513 00:50:56.186 --> 00:50:59.947 MANUFACTURING DEFECT IS A STATUTORY CAUSE OF ACTION. DENNIS M. DONNELLY: YES. 514 00:50:59.947 --> 00:51:03.171 CHIEF JUSTICE RABNER: I WAS ON THE JURY CHARGE COMMITTEE THAT WROTE THE 515 00:51:03.171 --> 00:51:06.399 MANUFACTURING. JUSTICE PATTERSON: I REMEMBER YOUR MANY CONTRIBUTIONS TO PRODUCT 516 00:51:06.399 --> 00:51:11.779 LIABILITY LAW AND I APPRECIATE THAT, BUT -- BUT THESE ARE STATUTORY CAUSES OF ACTION. 517 00:51:11.779 --> 00:51:18.961 THERE IS A STANDARD THAT HAS TO BE MET AND THERE IS AN ADMISSIBILITY ISSUE IN THIS CASE 518 00:51:18.961 --> 00:51:28.289 THAT IS DEEPLYentwined WITH THE QUESTION OF WHETHER OR NOT YOU'VE PRESENTED A PRIMA 519 00:51:28.289 --> 00:51:34.917 FASCIA CASE ON EITHER THE FAILURE TO WARN OR MANUFACTURING DEFECT. SO MY -- WE WERE -- 520 00:51:34.917 --> 00:51:39.063 WE STARTED WITH NET OPINION. IS THERE ANYTHING YOU WANT TO ADD REGARDING NET OPINION? 521 00:51:39.063 --> 00:51:44.822 DENNIS M. DONNELLY: I DON'T THINK THAT THESE OPINIONS WOULD BY ANY MEANS COULD 522 00:51:44.822 --> 00:51:50.676 BE FOUND A NET OPINION. AND IT WAS PROPER TO NOT FIND THEM SO. THEY WEREN'T A NET OPINION 523 00:51:50.676 --> 00:51:56.571 BECAUSE THEY WERE BASED ON DIRECT OBSERVATION FROM THE PHYSICIANS ONE OF THEIR NOTES 524 00:51:56.571 --> 00:52:02.786 TALKS ABOUT, YOU KNOW, A TREMENDOUS AMOUNT EVERY INFLAMMATION FINDING. THEY LOOKED, THEY 525 00:52:02.786 --> 00:52:08.625 SAW, THEY WERE QUALIFIED TO GIVE THE OPINION, THEY SAID, SHE WASN'T -- WE WERE MANAGING 526 00:52:08.625 --> 00:52:15.341 HER PROBLEMS AND ALL OF A SUDDEN NOW SHE'S BLIND IN HER EYE AND THE ONLY REASON WE CAN 527 00:52:15.341 --> 00:52:20.805 FIND TO EXPLAIN IS THAT WE GAVE LETTER A BATCH WHICH NO ONE CAN PROVE NOW WAS AMONG THE 528 00:52:20.805 --> 00:52:24.949 2 PERCENT. HOWEVER, IF THEY HAD TOLD US, WE WOULD HAVE LOOKED HARDER. JUSTICE 529 00:52:24.949 --> 00:52:31.139 PATTERSON: JUST FOR THE SAKE OF BEING COMPREHENSIVE IN THIS ARGUMENT, WITH RESPECT 530 00:52:31.139 --> 00:52:35.155 TO DR. LASER LAY WHO WAS NOT A TREATING PHYSICIAN. DENNIS M. DONNELLY: CORRECT. 531 00:52:35.155 --> 00:52:38.310 JUSTICE PATTERSON: IS IT ALSO YOUR CONTENTION THAT HIS OPINION WAS KNOTS A 532 00:52:38.310 --> 00:52:42.610 NET OPINION. DENNIS M. DONNELLY: INDEED IT IS. AGAIN IN MALPRACTICE CASES 533 00:52:42.610 --> 00:52:49.466 EVERY DAY OF THE WEEK, I USED TO DO A LOT OF PRODUCT LIABILITIES WORK WHEN THEY MADE 534 00:52:49.466 --> 00:52:54.185 MACHINES IN NEW JERSEY. JUSTICE PATTERSON: /HEPBLS THE HEEDING INSTRUCTION. 535 00:52:54.185 --> 00:53:01.473 I'M NOT ASKING YOU ABOUT HIS REPORT, I'M ASKING YOU WHY WAS HIS REPORT NOT A NET OPINION? 536 00:53:01.473 --> 00:53:07.748 DENNIS M. DONNELLY: HIS REPORT USED THE FACTS-ISH THE TEMPORAL RELATIONSHIP. 537 00:53:07.748 --> 00:53:13.879 HIS REPORT DISCUSSED THAT IT WAS UNLIKELY THAT OTHER EVENTS CAUSED THIS, THAT THE MOST 538 00:53:13.879 --> 00:53:20.301 LIKELY REASON FOR IT WAS THE RECENT INSERT. HIS REPORT PRETTY MUCH DID THE SAME THING 539 00:53:20.301 --> 00:53:26.835 THE TREATING PHYSICIANS DID WHICH IS WHAT WE -- WE TRY CASES EVERY DAY OF THE WEEK WITH 540 00:53:26.835 --> 00:53:29.139 DOCTORS TESTIFYING TO AND NO ONE QUESTIONS IT. JUSTICE WAINER APTER: BUT HE 541 00:53:29.139 --> 00:53:40.554 PUT A LOT MORE FACT OR HE ADDED FACTS IN HIS DEPOSITION TESTIMONY, CORRECT? 542 00:53:40.554 --> 00:53:44.572 DENNIS M. DONNELLY: THAT'S PERMISSIBLE -- IT'S NOT A NET OPINION IF THEY TAKE HIS DEPOSITION 543 00:53:44.572 --> 00:53:49.184 AND THEN THEY MAKE THE MOTION AND -- SO ALL OF IT WAS IN FRONT OF THE TRIAL JUDGE. BUT 544 00:53:49.184 --> 00:53:56.498 USUAL'S RIGHT. IT'S ALL A conglomeration. JUSTICE WAINER APTER: THEY WEREN'T 545 00:53:56.498 --> 00:54:01.503 TRYING TO EXCLUDE FOR EXAMPLE. AND HIS DEPOSITION TESTIMONY HE WENT INTO DETAIL ABOUT 546 00:54:01.503 --> 00:54:09.894 HER CATARACT SURGERY IN 2009 AND HER /TRAB INCLUDE /EBGT MY SURGERY AND HER RECEIPT I 547 00:54:09.894 --> 00:54:15.451 CERTIFICATE IMPLANT, I'M SORRY THAT I DON'T KNOW HOW TO PRONOUNCE SOME OF THESE WORDS. 548 00:54:15.451 --> 00:54:20.501 SO HE DID DISCUSS WHY HE DID NOT THINK IT COULD HAVE BEEN MANY OTHER THINGS AS PART OF 549 00:54:20.501 --> 00:54:23.494 HIS DEPOSITION TESTIMONY, CORRECT. DENNIS M. DONNELLY: INDEED. AND THAT'S 550 00:54:23.494 --> 00:54:30.449 NOT A NET OPINION. I'VE SEEN NET OPINIONS OCCASIONALLY IT SAYS BECAUSE I SAY IT IS. 551 00:54:30.449 --> 00:54:36.010 BUT HE GAVE REASONS AND ALL OF THE REASONS WERE DIFFERENTIAL DIAGNOSIS TYPE REASONS. 552 00:54:36.010 --> 00:54:44.031 SO -- AND AGAIN, I UNDERSTAND THAT ON THE ONE HAND JUDGES ACT AS GATEKEEPERS, BUT ON THE 553 00:54:44.031 --> 00:54:48.951 OTHER HAND YOU'RE ALSO A GATE KEEPER ON THOSE JUDGES AND I DON'T THINK YOU WANT TO MAKE 554 00:54:48.951 --> 00:54:55.258 THOSE JUDGES MECHANICALLY APPLY OR USE THIS TERMINOLOGY WHEN THEY'VE ACTUALLY DONE THE 555 00:54:55.258 --> 00:55:00.214 WORK THAT WOULD SATISFY IT EVEN IF THEY DIDN'T USE THE RIGHT NAME. BUT IF I'M TOTALLY 556 00:55:00.214 --> 00:55:07.478 WRONG AND MY WIFE WOULD BE HAPPY TO HEAR I ADMIT THAT I AM SOMETIMES WRONG. JUSTICE 557 00:55:07.478 --> 00:55:10.332 PATTERSON: IT'S BEING LIFE STREAMED. DENNIS M. DONNELLY: AT A MINIMUM IT SHOULD 558 00:55:10.332 --> 00:55:14.500 BE REMANDED FOR A COMPLETE FACTUAL HEARING WITH TESTIMONY. BUT NO ONE ASKED FOR THAT 559 00:55:14.500 --> 00:55:17.512 ON EITHER SIDE. JUSTICE WAINER APTER: AND OF COURSE YOU WOULDN'T HAVE ASKED 560 00:55:17.512 --> 00:55:20.947 FOR A HEARING AFTER HE WON, PRESUMABLY. DENNIS M. DONNELLY: THAT WOULD NOT 561 00:55:20.947 --> 00:55:24.799 BE A GOOD THING. HOPEFULLY. JUSTICE PATTERSON: ANY QUESTIONS? ANYTHING 562 00:55:24.799 --> 00:55:29.162 YOU HAD A HE LIKE TO ADD? WE'LL HAVE YOU BACK ON REBUTTAL. DENNIS M. DONNELLY: 563 00:55:29.162 --> 00:55:35.899 I'VE PROBABLY SAID WHAT I HAD TO SAY. THANK YOU. JUSTICE PATTERSON: THANK YOU. 564 00:55:35.899 --> 00:55:42.800 MS. HARVEY. CHRISTINA VASSILIOU HARVEY: THANK YOU, YOUR HONORS. ON BEHALF 565 00:55:42.800 --> 00:55:56.033 OF N J A J. THERE'S CONCERNS WE RAISED IN /OURB BRIEF BUT TO FOCUS ON WHAT THE COURT 566 00:55:56.033 --> 00:55:56.722 HAS BEEN ASKING ABOUT, ACCOUNT TAIN PROVIDES THE FRAMEWORK FOR THIS CASE. HOWEVER, THE 567 00:55:56.722 --> 00:56:04.142 ISSUE IS THAT THE METHODOLOGY IN ACCOUNT TAIN IS DIFFERENT THAN WOULD APPLY IN THIS CASE. 568 00:56:04.142 --> 00:56:10.271 AND I THINK WHAT WE REALLY NEED TO DO AND WHAT WE TRIED TO ARGUE IN OUR BRIEF IS THAT 569 00:56:10.271 --> 00:56:19.126 THE /KRAOE ANG A CASE PROVIDES THAT FRAMEWORK FOR WHAT IS A RELIABLE DIFFERS AL DIAGNOSIS. 570 00:56:19.126 --> 00:56:22.471 JUSTICE PATTERSON: JUST TO BE CLEAR MS. HARVEY. WE'RE NOT SUGGESTING THAT 571 00:56:22.471 --> 00:56:28.210 THE METHODOLOGY MUST BE THE SAME AS WHAT THE METHODOLOGY OF THE EXPERTS WERE WHO WERE 572 00:56:28.210 --> 00:56:33.607 REJECTED ON ACCOUNT TAIN BY THE WAY. OBVIOUSLY, LIKE ACCOUNT TAIN, LIKE DAUBERT IN THE 573 00:56:33.607 --> 00:56:41.129 FEDERAL COURTS, LIKE OLENOWSKI IN OUR CRIMINAL CASES HERE, APPLY TO A BROAD VARIETY EVERY 574 00:56:41.129 --> 00:56:47.232 METHODOLOGIES AND THEY -- AND THE INTENTION IS THAT THE COURT CONDUCTS A RIGOROUS GATE 575 00:56:47.232 --> 00:56:53.796 KEEPING ANALYSIS TO EVALUATE WHATEVER THE METHODOLOGY MUST BE. SO BY REFERRING TO 576 00:56:53.796 --> 00:57:00.226 ACCOUNT TAIN, I'M NOT AT ALL SUGGESTING THAT -- THAT THE ACCOUNT TAIN PRODUCT IS THE SAME 577 00:57:00.226 --> 00:57:05.144 OR THERE'S ANY SIMILARITY WHATSOEVER. CHRISTINA VASSILIOU HARVEY: I UNDERSTAND 578 00:57:05.144 --> 00:57:12.269 THAT YOUR HONOR. JUST IN FRAMING THE ISSUE, IN ACCOUNT TAIN THE COURT BEGAN BY STATING 579 00:57:12.269 --> 00:57:20.033 THAT THIS -- THAT -- THAT ITS REVIEW OF WHAT THE TRIAL COURT DID WAS SUBJECT TO THE ABUSE 580 00:57:20.033 --> 00:57:25.269 OF DISCRETION STANDARD, BUT ONLY AFTER THE HEARING. WHICH IS WHAT WE HAD TALKED ABOUT. 581 00:57:25.269 --> 00:57:31.218 AND IN OUR BRIEF WE ARGUED THAT BEFORE YOU CAN HAVE A DISMISSAL WITH PREJUDICE OF THE 582 00:57:31.218 --> 00:57:37.050 CLAIM, YOU WOULD NEED THAT HEARING. BECAUSE THAT WAY YOU CAN FLUSH OUT AND THE TRIAL 583 00:57:37.050 --> 00:57:40.367 COURT AN HEAR WHY THE METHOD IS RELIABLE. JUSTICE PATTERSON: WOULD YOU AGREE 584 00:57:40.367 --> 00:57:47.816 WITH ME THAT THERE HAD TO BE AN ACCOUNT TAIN PROCEEDING, IN WAS NO ACCOUNT TAIN PROCEEDING 585 00:57:47.816 --> 00:57:54.667 AND THAT THE COURTS -- THE TRIAL COURT'S COMMENTS ON NET OPINION ARE NEITHER EQUIVALENT 586 00:57:54.667 --> 00:57:59.820 TO NOR A SUBSTITUTE FOR THE APPLICATION OF ACCOUNT TAIN TO THIS CASE? 587 00:57:59.820 --> 00:58:01.820 CHRISTINA VASSILIOU HARVEY: IT'S VERY LONG QUESTION. JUSTICE PATTERSON: I 588 00:58:01.820 --> 00:58:04.539 APOLOGIZE FOR THAT. CHRISTINA VASSILIOU HARVEY: LET ME BREAK IT DOWN. SO 589 00:58:04.539 --> 00:58:11.622 YES, IF -- ASSUMING THAT DEFENDANT HAS OBJECTED TO THE EXPERT UPON A RELIABILITY BASIS, 590 00:58:11.622 --> 00:58:17.921 THEN THE COURT CAN'T JUST DISMISS IT WITHOUT HAVING THAT HEARING. YOU WOULD. 591 00:58:17.921 --> 00:58:19.604 JUSTICE WAINER APTER: DID THAT HAPPEN HERE? CHRISTINA VASSILIOU HARVEY: THAT 592 00:58:19.604 --> 00:58:22.533 DID NOT. AND THAT'S WHY. JUSTICE WAINER APTER: I DON'T MEAN THE HEARING, 593 00:58:22.533 --> 00:58:27.822 I MEAN THE OBJECTION ON THE RELIABILITY BASIS. IT SOUNDED LIKE THERE WAS A LACK OF CLARITY. 594 00:58:27.822 --> 00:58:30.463 CHRISTINA VASSILIOU HARVEY: SO. JUSTICE WAINER APTER: FROM YOUR 595 00:58:30.463 --> 00:58:34.814 REVIEW OF THE RECORD. CHRISTINA VASSILIOU HARVEY: I WASN'T BUT I DID PULL 596 00:58:34.814 --> 00:58:38.377 DEFENDANT'S FIRST BRIEF ON SUMMARY JUDGMENT AND IT DOES REFERENCE ACCOUNT TAIN SO I'M 597 00:58:38.377 --> 00:58:44.805 ASSUMING THAT THAT WAS THE FOCUS. AND SO THERE SHOULD HAVE BEEN A HEARING TO DETERMINE 598 00:58:44.805 --> 00:58:51.148 THAT. THE. JUSTICE PATTERSON: YOU SAY THAT THE COURT SHOULDN'T DISMISS A 599 00:58:51.148 --> 00:58:57.275 CASE OR REJECT EXPERTS BUT REALLY THE COURT SHOULD NOT MAKE ANY DETERMINATION, EITHER 600 00:58:57.275 --> 00:59:01.484 THE EXPERTS ARE IN OR THE EXPERTS ARE OUT WITHOUT GOING THROUGH THAT ACCOUNT TAIN PROCEEDING, 601 00:59:01.484 --> 00:59:03.152 CORRECT? CHRISTINA VASSILIOU HARVEY: CORRECT. JUSTICE PATTERSON: 602 00:59:03.152 --> 00:59:08.340 SO IT'S NOT JUST THE COURT MIGHT SAY WELL I MIGHT DIE SIDE THIS WAY SO I BETTER HAVE A 603 00:59:08.340 --> 00:59:13.388 HEARING. THE COURT IS SUPPOSED TO APPROACH THIS AND DOES APPROACH IT WITH AN OPEN MIND 604 00:59:13.388 --> 00:59:18.779 AND HAS THE HEARING NO MATTER HOW IT ENDS UP, THAT HEARING IS NECESSARY, RIGHT. 605 00:59:18.779 --> 00:59:21.548 CHRISTINA VASSILIOU HARVEY: YES. THE HEARING IN THAT ANALYSIS IS NECESSARY. SO IN TERMS 606 00:59:21.548 --> 00:59:34.917 OF THE FRAMEWORK TO BE APPLIED THOUGH IN A CASE LIKE THIS, I THINK IT'S IMPORTANT TO LOOK AT 607 00:59:34.917 --> 00:59:35.260 WHAT Cree ANG A SAYS IS THE DIFFERENTIAL DIAGNOSIS. SO IN THAT CASE THE -- WHEN 608 00:59:35.260 --> 00:59:42.047 DEFENDANT COMES FORWARD AND IDENTIFIES AN ALTERNATIVE THEORY, AN ALTERNATIVE CAUSE, 609 00:59:42.047 --> 00:59:49.528 THEN AS LONG AS THE EXPERT HAS PROVIDED A RATIONAL BASIS TO EXCLUDE THAT BASIS, THEN IT'S 610 00:59:49.528 --> 00:59:53.967 A QUESTION FOR THE JURY. JUSTICE PATTERSON: BUT IT'S NOT FOR THIS COURT TO 611 00:59:53.967 --> 01:00:01.168 FRAME WHAT THE -- WHAT THE METHODOLOGY IS, IS IT? IT'S FOR THE -- ISN'T IT FOR THE PRO 612 01:00:01.168 --> 01:00:06.840 PONENT OF THE EXPERT TO DEMONSTRATE THE RELIABILITY OF THE METHODOLOGY? LAR HEART SO 613 01:00:06.840 --> 01:00:14.210 IN ACCOUNT TAIN IT -- VERY IMPORTANTLY SPOKE ABOUT HOW YOU LOOK AT WHAT THE OTHER EXPERTS 614 01:00:14.210 --> 01:00:20.852 OF THE SAME TYPE IN THAT FIELD LOOK TO FOR RELIABILITY. SO THAT IS IMPORTANT. SO IT'S 615 01:00:20.852 --> 01:00:24.493 NOT NECESSARILY. JUSTICE PATTERSON: THAT IS FOR THE TRIAL COURT. 616 01:00:24.493 --> 01:00:28.617 CHRISTINA VASSILIOU HARVEY: CORRECT. SO IN TERMS OF WHAT CREE ANG A HAS ALREADY DONE, 617 01:00:28.617 --> 01:00:34.420 BECAUSE THESE ARE BOTH DOCTORS, SO WE'RE TALKING ABOUT WHAT -- HOW A DOCTOR CAN RELIABLY 618 01:00:34.420 --> 01:00:40.567 USE THE DIFFERENTIAL DIAGNOSIS, THAT'S WHY I THINK THAT CREE ANG APPROVED THE FRAMEWORK 619 01:00:40.567 --> 01:00:46.715 FOR THIS PARTICULAR CASE. HOWEVER IN fleshing OUT I THINK THAT THE COURT SHOULD CONSIDER 620 01:00:46.715 --> 01:00:53.351 SPECIFIC FACTORS THAT A DOCTOR IN USING THE DIFFERENTIAL DIAGNOSIS CAN USE IN ORDER TO 621 01:00:53.351 --> 01:00:58.764 DO THAT RULING OUT RULING IT. JUSTICE PATTERSON: RESPECTFULLY, THE TRIAL 622 01:00:58.764 --> 01:01:06.062 COURT EVALUATES METHODOLOGY PRESENTED BY THE PROPONENT OF THE EXPERT. SO IF YOU'RE ASKING 623 01:01:06.062 --> 01:01:15.298 FOR THIS COURT TO ANALYZE AND ESPECIALLY ARTICULATE WITH THE METHODOLOGY IS, I THINK 624 01:01:15.298 --> 01:01:19.109 THAT'S SOMETHING THAT REALLY NEEDS TO HAPPEN, BUT NOT FROM A COURT, NOT FROM A PELT COURT, 625 01:01:19.109 --> 01:01:25.226 BUT BEFORE THE TRIAL COURT, BY THE PROPONENT OF THE EXPERT OBVIOUSLY WITH THE OTHER SIDE 626 01:01:25.226 --> 01:01:28.583 COUNT ERRING THAT. CHRISTINA VASSILIOU HARVEY: SO MY POSITION, AND WHAT N 627 01:01:28.583 --> 01:01:34.334 J A J WOULD URGE, IS THAT THERE SHOULDN'T BE A LIMITATION. SO I AGREE WITH HOW YOUR HONOR'S 628 01:01:34.334 --> 01:01:45.628 FRAMING THE ISSUE. IT IS THE proponent WHO PROVIDES WHAT IS THE RELIABILITY SO THAT 629 01:01:45.628 --> 01:01:48.875 EAR'S NOT LIMITED. SO -- IN TERMS OF THE WAY THAT THE DEFENDANTS AND THE AMICUS CURIAE 630 01:01:48.875 --> 01:01:55.402 HAVE FRAMED THE ISSUE, THEY SEEMED TO BE LIMITING WHAT WE NEED TO SHOW. THAT WE WOULD 631 01:01:55.402 --> 01:02:00.626 NEED TO SHOW THAT THERE WERE TESTS AND STUDIES BUT I DON'T BELIEVE WE DO BECAUSE YOU HAVE 632 01:02:00.626 --> 01:02:05.544 TO ASK THAT EXPERT IN THE FIELD, WELL WHAT, DO YOU RELY UPON. AND THAT DETERMINES THE 633 01:02:05.544 --> 01:02:10.992 RELIABILITY. SO THE EXPERT CAN CITE TWO THINGS LIKE THE PATIENT'S SYMPTOMS, THEIR TESTING 634 01:02:10.992 --> 01:02:17.112 AND THE INFORMATION THAT COMES FROM THE DRUG MANUFACTURER THEMSELVES. ALL OF THOSE ISSUES 635 01:02:17.112 --> 01:02:24.022 ARE THINGS THAT THAT EXPERT IN THE FIELD RELIES UPON. SO YES, YOUR HONOR IS CORRECT THAT 636 01:02:24.022 --> 01:02:30.470 IT COMES FROM THE PROPONENT AND IT'S THEIR OBLIGATION TO PUT THAT FORWARD WHEN THERE IS 637 01:02:30.470 --> 01:02:38.995 A CHALLENGE TO THE RELIABILITY OF THEIR EXPERT'S OPINION. SO MY CONCERN IS THAT WE DON'T 638 01:02:38.995 --> 01:02:46.301 UNDULY MAKE THAT ANALYSIS TOO SMALL. IT SHOULD BE WHATEVER THE EXPERT IN THE FIELD WOULD 639 01:02:46.301 --> 01:02:53.394 RELY UPON. AND THAT'S WHAT ACCOUNT TAIN ALREADY SAYS BUT I THINK IMPARTING IT TO THIS 640 01:02:53.394 --> 01:02:57.525 CASE WHAT YOU NEED TO DO IS LOOK WHAT A DOCTOR WOULD RELY UPON AND THAT'S WHY I BELIEVE 641 01:02:57.525 --> 01:03:04.747 THAT WITH FLESHING OUT DOCTORS PHILLIPS AND DR. LASER LAY DO MEET THAT STANDARD. 642 01:03:04.747 --> 01:03:08.330 JUSTICE PATTERSON: ARE YOU SUGGESTING THE COURT SHOULD GET INVOLVED IN HOW THE ACCOUNT 643 01:03:08.330 --> 01:03:13.740 TAIN STANDARD SHOULD BE APPLIED SPECIFICALLY TO THIS CASE WHEN THERE'S BEEN NO TRIAL COURT 644 01:03:13.740 --> 01:03:16.879 DETERMINATION ON THAT? CHRISTINA VASSILIOU HARVEY: I DON'T BELIEVER THE COURT 645 01:03:16.879 --> 01:03:22.886 LAST TO DO THAT. IT CAN REMAND FOR THE HEARING BECAUSE THE BIGGEST CONCERN IS THAT THERE 646 01:03:22.886 --> 01:03:29.352 SHOULDN'T BE A DISMISSAL WITH PREJUDICE WHEN THAT ANALYSIS HAS NOT TAKEN PLACE. 647 01:03:29.352 --> 01:03:33.849 JUSTICE HOFFMAN: WHAT ABOUT IF A DOCTOR RELIES UPON SOMETHING BUT THE DOCTOR COUNSEL CAN'T 648 01:03:33.849 --> 01:03:38.709 SUBSTANTIATE ITS RELIABILITY. ARE YOU JUST SAYING JUST BECAUSE THE DOCTOR RELIED UPON 649 01:03:38.709 --> 01:03:43.402 IT WE HAVE TO AN ACCEPT AND RESUME ITS RELIABILITY? THAT'S THE PURPOSE OF THE TEST 650 01:03:43.402 --> 01:03:50.612 IS TO TEST WHETHER IT IS RELIABLE OR NOT. YOU ARE SEEM TO BE SAYING AS LONG AS THE DOCTOR 651 01:03:50.612 --> 01:03:55.060 RELIED ON IT, REIMMEDIATE TO ASSUME IT'S RELIABILITY. CHRISTINA VASSILIOU 652 01:03:55.060 --> 01:03:59.147 HARVEY: NO, WHAT I'M SAYING IS THAT WHAT INFORMATION THAT THE DOCTOR RELY UPON, IF THE 653 01:03:59.147 --> 01:04:05.318 DOCTOR CAN SHOW THAT THAT IS SOMETHING THAT AN EXPERT IN THE FIELD, IN THE COMPARABLE 654 01:04:05.318 --> 01:04:11.192 FIELD DOES IN FACT RELY UPON. SO WHEN THE DOCTOR COMES FORWARD AND SAYS, WELL, WHENEVER 655 01:04:11.192 --> 01:04:16.135 I TREAT A PATIENT AND COME UP WITH MY DIAGNOSIS I'M GOING TO LOOK AT THE CHART, I'M GOING 656 01:04:16.135 --> 01:04:25.115 TO LOOK AT MY OBSERVATIONS AND LIST ALL OF THE THINGS AS LONG AS THEY'RE -- THERE'S 657 01:04:25.115 --> 01:04:30.952 INFORMATION TO SHOW THAT THAT IS WHAT THEY ACTUALLY RELY UPON, THEN THE COURT SHOULD 658 01:04:30.952 --> 01:04:35.388 ACCEPT IT. OFFICIALLY DEFENDANT CAN CROSS-EXAMINE AND PUT FORTH PROOFS THAT THEY WOULDN'T 659 01:04:35.388 --> 01:04:39.039 RELY UPON THAT, BUT THOSE ARE THE FACTORS. JUSTICE HOFFMAN: SO IN THE CONTEXT 660 01:04:39.039 --> 01:04:44.495 OF A DIFFERENTIAL DIAGNOSIS YOU WOULD EXPECT THEN THE TESTIMONY TO BE HERE IS -- HERE'S 661 01:04:44.495 --> 01:04:49.599 WHAT'S BEEN -- HERE'S WHAT THE DOCTOR RELIED UPON TO RULE SOMETHING OUT AND HERE IS WHY 662 01:04:49.599 --> 01:04:54.808 THAT'S RELIABLE TO RULE THAT OUT? CHRISTINA VASSILIOU HARVEY: SO I -- I THINK 663 01:04:54.808 --> 01:05:07.107 THAT IN TERMS OF -- I THINK THAT -- THAT IS ACCURATE. SO YOU RULE IT IN, WHATEVER THEY 664 01:05:07.107 --> 01:05:11.511 COME UP WITH OR WHAT ARE ALL THE POSSIBILITIES. THEY PUT IT ALL TOGETHER. AND THEN THEY 665 01:05:11.511 --> 01:05:17.150 GO THROUGH AND THEY SAY, WELL, NO, I DON'T THINK THAT'S REASONABLE AND HERE'S WHY. AND 666 01:05:17.150 --> 01:05:23.109 THE PROCESS OF HERE'S WHY IS WHERE THE RELIABILITY COMINGS FROM. JUSTICE 667 01:05:23.109 --> 01:05:28.532 HOFFMAN: AND THAT NEEDS TO BE INDEPENDENTLY VERIFIABLE. IT CAN'T JUST BE BECAUSE THE 668 01:05:28.532 --> 01:05:34.358 DOCTOR SAYS. CHRISTINA VASSILIOU HARVEY: WELL -- JUSTICE HOFFMAN: 669 01:05:34.358 --> 01:05:40.535 THERE MUST BE A TEST OF THE RELIABILITY OF THE METHODOLOGY AND A TEST OF THE RELIABILITY 670 01:05:40.535 --> 01:05:44.723 OF THE DECISION MAKING. CHRISTINA VASSILIOU HARVEY: SO IF THE -- I THINK -- 671 01:05:44.723 --> 01:05:51.396 I NEED TO -- IF WE CAN GIVE A MORE CONCRETE EXAMPLE, JUST SO I MAKE SURE I'M ON THE SAME 672 01:05:51.396 --> 01:06:01.020 PAGE. SO IN -- IF WE -- IF I GO TO THE DOCTOR THINKING I -- I HAVE A VIRUS THAT COULD BE 673 01:06:01.020 --> 01:06:06.333 COLD, COULD BE FLEW, COULD BE ALL THESE SORTS OF THINGS. THEY RUN A FLEW TEST ON ME. 674 01:06:06.333 --> 01:06:12.373 THEY RUN OTHER TEST THE. THEY LISTEN TO MY SYMPTOMS. THEY PUT THEM ALL DOWN AND SAY, 675 01:06:12.373 --> 01:06:18.854 WELL, NO, YOU HAVE A RASH SO IT'S PROBABLY NOT THE FLU, IT COULD BE STREP /THROEFPLT SO 676 01:06:18.854 --> 01:06:23.523 THEY'RE RULING ALL THESE IN AND THOSE ARE BASED UPON THEIR KNOWLEDGE, TRAINING AND 677 01:06:23.523 --> 01:06:30.154 EXPERIENCE. SO YOU DON'T NEED TO ACTUALLY POINT TO A TEST THAT SAYS, WELL, NO, FLU DOESN'T 678 01:06:30.154 --> 01:06:33.996 CAUSE A RASH, THAT'S THEIR KNOWLEDGE, TRAINING AND EXPERIENCE. JUSTICE WAINER 679 01:06:33.996 --> 01:06:37.321 APTER: FOR EXAMPLE, IF THEY, YOU KNOW, TEST YOU FOR THE FLU AND IT COMES BACK NEGATIVE 680 01:06:37.321 --> 01:06:42.261 AND THEY SAY, YOU DON'T HAVE THE FLU, PRESUMABLY THE FLU TEST HAS BEEN SLOANE TO BE RELIABLE 681 01:06:42.261 --> 01:06:47.491 AT SOME POINT AND THEY'RE NOT JUST TESTING YOU FOR THE FLU BY SAYING, IT LOOKS LIKE YOU 682 01:06:47.491 --> 01:06:50.587 DON'T HAVE THE FLU. CHRISTINA VASSILIOU HARVEY: CORRECT. AND I BELIEVE -- 683 01:06:50.587 --> 01:06:56.607 JUST, I THINK, TO DRIVE THAT POINT HOME, IF FOR WHATEVER REASON THAT WAS THE ISSUE AT 684 01:06:56.607 --> 01:07:02.182 TRIAL WAS WHETHER OR NOT THE FLU TEST WAS RELIABLE, I DON'T THINK THAT THE DOCTOR WOULD 685 01:07:02.182 --> 01:07:07.274 NEED TO COME IN WITH STUDIES TO SAY, WELL, NO, I CAN RELY UPON THE /TPHRAO*EU TEST BECAUSE 686 01:07:07.274 --> 01:07:11.561 THERE'S A STUDY THAT SAYS IT. NEW YORK CITY HE CAN TESTIFY, I KNOW I CAN RELY UPON THE 687 01:07:11.561 --> 01:07:15.568 FLU TEST BECAUSE I DO IT EVERY DAY IN MY PRACTICE. JUSTICE FASCIALE: CAN 688 01:07:15.568 --> 01:07:21.767 I JUST UNDERSTAND A LITTLE BIT MORE ABOUT WHAT YOU'RE URGING US TO DO? YOU WANT US TO 689 01:07:21.767 --> 01:07:27.173 REMAND AND YOU WANT ON REMAND FOR THERE TO BE AN ACCOUNT TAIN HEARING? CHRISTINA 690 01:07:27.173 --> 01:07:35.164 VASSILIOU HARVEY: SO IN TERMS OF N J A J'S POSITION, IT'S THAT YOU CAN'T JUST HAVE A 691 01:07:35.164 --> 01:07:39.347 DISMISSAL WITH PREJUDICE WITHOUT HAVING GONE THROUGH THAT HEARING PROCESS. THAT'S OUR 692 01:07:39.347 --> 01:07:43.630 POSITION. JUSTICE PATTERSON: AND I THINK YOU EXPLAINED THAT YOUR POSITION 693 01:07:43.630 --> 01:07:48.462 IS THAT YOU CAN'T HAVE ANY DECISION. YOU CONCEDE THAT IT'S NO DECISION IN EITHER DIRECTION 694 01:07:48.462 --> 01:07:56.711 AS TO RELIABILITY OF EXPERTS WITHOUT A HEARING OR AT LEAST WITHOUT A PROCEEDING. 695 01:07:56.711 --> 01:07:58.556 CHRISTINA VASSILIOU HARVEY: RIGHT, THERE HAS TO BE A PROCEEDING. JUSTICE FASCIALE: 696 01:07:58.556 --> 01:08:03.853 SO I AM CORRECT, REMAND AND DIRECT AN ACCOUNT TAIN HEARING BE CONDUCTED? 697 01:08:03.853 --> 01:08:05.493 CHRISTINA VASSILIOU HARVEY: YES. JUSTICE WAINER APTER: AND THAT WOULD ALSO 698 01:08:05.493 --> 01:08:10.950 INVOLVE A VACATE TOWARD OF THE SUMMARY JUDGMENT GRANT BECAUSE THAT WAS PURELY BASED ON 699 01:08:10.950 --> 01:08:14.005 THE FACT THAT THERE WERE NO EXPERTS WHO COULD TESTIFY TO CAUSATION? CHRISTINA 700 01:08:14.005 --> 01:08:18.482 VASSILIOU HARVEY: CORRECT. JUSTICE PATTERSON: ANYTHING ELSE YOU WOULD LIKE 701 01:08:18.482 --> 01:08:31.316 TO ARGUE MS. HARVEY? CHRISTINA VASSILIOU HARVEY: JUST THE TEMPORAL ISSUE 702 01:08:31.316 --> 01:08:39.457 BECAUSE AMICI ARGUED THAT THE /TEPBL PRACTICAL ISSUE IS NOT APPROPRIATE. THAT -- IF YOU 703 01:08:39.457 --> 01:08:46.157 ACTUALLY LOOK AT ACCOUNT TAIN, IT SPECIFICALLY LISTS THE -- I BELIEVE THEY'RE THE HILL 704 01:08:46.157 --> 01:08:52.675 FACTORS. IT'S BEFORE THE COURT'S ANALYSIS. BUT THE NUMBER ONE FACTOR IS TEMPORAL 705 01:08:52.675 --> 01:08:59.432 RELATIONSHIP. I ALSO BELIEVE IN CREE ANG A THE COURT WAS VERY CLEAR THAT THAT CAN BE 706 01:08:59.432 --> 01:09:17.998 EXTREMELY SO DEFENDANTS ARE URGING -- OR AMICI ARE URGING YOU TO EXCLUDE THE POSSIBILITY OF A 707 01:09:17.998 --> 01:09:18.003 TEMPORAL RELATIONSHIP AND SAYING THAT'S UN -- THAT'S NOT RELIABLE AT ALL, BUT DOCTORS USE 708 01:09:18.003 --> 01:09:21.365 THE TEMPORAL RELATIONSHIP ALL THE TIME AND THAT'S WHAT DR. PHILLIPSED TESTIFIED TO, DR. 709 01:09:21.365 --> 01:09:26.213 SOLOMON HAD TESTIFIED TO AND DR. LASERLY. JUSTICE PATTERSON: BUT AT THIS STAGE, 710 01:09:26.213 --> 01:09:32.713 MS. HARVEY, WE DON'T HAVE THE PROPONENT OF THE EXPERT MAKING /THAOE ARGUMENTS. AND I 711 01:09:32.713 --> 01:09:36.747 UNDERSTAND YOU VERY ABE WHICH MADE /ARBGS /AOUPLGTS AS A FRIEND OF THE COURT, AND WE 712 01:09:36.747 --> 01:09:43.130 APPRECIATE THAT, BUT IT IS THE BURDEN ON THE PROPONENT OF THE EXPERT TO MAKE WHATEVER 713 01:09:43.130 --> 01:09:48.890 ARGUMENTS THEY MAY CHOOSE TO MAKE WHEN THEY ARE TRYING TO ADMIT EXPERT TESTIMONY. AM I 714 01:09:48.890 --> 01:09:51.897 RIGHT ABOUT THAT? CHRISTINA VASSILIOU HARVEY: YES. AND SO IN TERMS OF N 715 01:09:51.897 --> 01:09:58.796 J A J'S POSITION, WE JUST WANT TO MAKE SURE THAT THERE ARE NOT FACTORS EXCLUDED, THAT IT'S 716 01:09:58.796 --> 01:10:04.749 UP TO THE PROPONENT TO PUT FORTH WHATEVER FACTORS AND THAT THEY THEN SHOW WHY THOSE FACTORS 717 01:10:04.749 --> 01:10:12.681 ARE RELIABLE. AND SO THAT'S WHY I'M ASKING THIS COURT NOT TO PLAY ANY SORT OF BLANKET 718 01:10:12.681 --> 01:10:17.179 RULE THAT WOULD EXCLUDE THE ABILITY TO ARGUE A TEMPORAL RELATIONSHIP. THANK YOU, YOUR HONOR 719 01:10:17.179 --> 01:10:38.423 S ( JUSTICE PATTERSON: MR. ROGERS. EDWARD D. ROGERS: GOOD AFTERNOON. 720 01:10:38.423 --> 01:10:45.222 MAYBE IT PLEASE THE COURT DANIELLE DODGE ROGERS ON RESPONDENT ALLERGAN. IT SEEMS LIKE 721 01:10:45.222 --> 01:10:50.280 THE COURT UNDERSTANDS THAT THERE WAS ERROR IN THE TRIAL COURT. /RAOUGT. I DON'T THINK 722 01:10:50.280 --> 01:10:55.125 AFTER THE ARGUMENT THAT JUST OCCURRED, ANYBODY WOULD BELIEVE THAT THE TRIAL COURT GOT 723 01:10:55.125 --> 01:11:01.179 THIS ONE /RAOUGT. AND IT SEEMS LIKE THE ONLY QUESTION THIS THIS PRODUCTS LIABILITY CASE 724 01:11:01.179 --> 01:11:07.257 NOT MEDICAL MAL CASE. PRODUCTS LIABILITY CASES WHETHER OR NOT THE APPELATE DIVISION 725 01:11:07.257 --> 01:11:13.913 CORRECTLY HELD THAT THESE EXPERTS SHOULD HAVE BEEN EXCLUDED IN SUMMARY JUDGMENT OR WHETHER OR 726 01:11:13.913 --> 01:11:19.028 NOT THERE NEEDS TO BE REMAND BACK TO THE TRIAL COURT TO HAVE EVIDENTIARY REFERRING TO 727 01:11:19.028 --> 01:11:25.183 FURTHER /EBGS APPLICANT THE CASES FOR THESE OPINIONS THAT ARE BEING OFFERED BECAUSE PRO 728 01:11:25.183 --> 01:11:29.913 PONENT OF THE EVIDENCE DID NOT SUBMIT IN THE TRIAL COURT THEREFORE THERE SHOULD BE EVIDENTIARY 729 01:11:29.913 --> 01:11:34.626 HEARING TO GIVE THEM THAT OPPORTUNITY THAT THEY- OPPORTUNITY BEFORE BUT AT ANY TIME TALK. 730 01:11:34.626 --> 01:11:39.826 RESPECTFULLY OR POSITION IS /AEPDZ GOT THIS ONE RIGHT /WEUFPLT /WUFPLT I DIDN'T UNDERSTAND 731 01:11:39.826 --> 01:11:48.018 THAT. WHY COULD IT NOT /WUFPLT /WUFPLT WHY COULD THE HEARING NOT CONSIDER WHAT EXPERT'S 732 01:11:48.018 --> 01:11:54.406 TESTIFIED TO DURING THEIR DEPOSITIONS. EDWARD D. ROGERS: IF I SHADE ANYTHING 733 01:11:54.406 --> 01:11:59.797 /TKUFRPBT. /TKPWRAOE TRIAL COURT LOOKED AT DEPOSITIONS. RIGHT TRIAL COURT LOOKED AT 734 01:11:59.797 --> 01:12:05.594 REPORT OF DID AS LARRY. AND IT LOOKED THE DEPOSITION TESTIMONY OF DR. PHILLIPS. THERE 735 01:12:05.594 --> 01:12:11.171 WAS NO REPORT FOR DR. PHILLIPS, RIGHT. THAT WAS BEFORE THE COURT. A PRO PEN EVENT OF THE 736 01:12:11.171 --> 01:12:15.934 EVIDENCE SUBMITTED WHAT THEY BELIEVED WAS BECAUSE IS FOR THE OPINIONS. NOBODY RESTRICTED 737 01:12:15.934 --> 01:12:21.650 THEIR OPPORTUNITY. NOBODY TOLD THEM THAT THEY SHOULDN'T SUBMIT ANY ADDITIONAL EVIDENCE, 738 01:12:21.650 --> 01:12:29.160 RIGHT. SO AS /KEPL /-P SAYS -- GET THIS CRITERIA FOR 104 HEARING AND WHAT /KEPL /-P SAY. 739 01:12:29.160 --> 01:12:34.636 IT SAID YOU SHOULD HAVE A 104 HEARING WHEN BASE FOR THE ^ OPINION ^ PIN HAS NOT BEEN ADD 740 01:12:34.636 --> 01:12:41.733 /KWAUTLY EXPLAINED OR HAS BEEN CONFUSINGLY EXPLAINED. JUSTICE PATTERSON: 741 01:12:41.733 --> 01:12:46.731 /KEPL /-P IS NO LONGER AUTHORITY ON THAT ISSUE. WE AC TAKEN ^ AN ^ AND AC TAKEN FACTORS 742 01:12:46.731 --> 01:12:53.590 AND I AM SURE YOU HAVE DONE MANY DAUBERT HEARINGS. I AM SURE THEY SOUND FAMILIAR TO 743 01:12:53.590 --> 01:13:01.292 YOU BECAUSE THEY ARE IN AC /TAUPB. BUT WE DO NOT HAVE FINDINGS WITH RESPECT TO THOSE FACTORS. 744 01:13:01.292 --> 01:13:04.873 EDWARD D. ROGERS: LET'S TALK ABOUT RECORD ACTUALLY SHOWS YOU FINDING AS TO THOSE 745 01:13:04.873 --> 01:13:10.522 FACT OR. IS THERE A STUDY THAT SUPPORTS THEM. NO. THEY HAD THE OPPORTUNITY TO DO THAT. 746 01:13:10.522 --> 01:13:15.624 THEY WERE ASKED THAT QUESTION AND IN FACT DID PHILLIPS TESTIFIED IN HIS DEPOSITION I 747 01:13:15.624 --> 01:13:22.189 AM NOT AWARE THAT ANY SHOWS THAT CAN CAUSE THIS /WEUFPLT /WUFPLT THIS IS WHAT WE WERE TALKING 748 01:13:22.189 --> 01:13:29.329 ABOUT BEFORE. THE DEFENDANT IN A LOT OF THEIR /SPHEUSS TO THEMENT FDA ^ AN ^ AND LETTER 749 01:13:29.329 --> 01:13:35.991 THAT WENT ALONG WITH THE RECALL EXPLAINED THAT THIS WAS A DEFECT AND SO I THOUGHT THE 750 01:13:35.991 --> 01:13:41.967 METHODOLOGY THAT WE WERE FIGHT /P-G ABOUT WAS A DIFFERENTIAL DIAGNOSIS AND WHETHER CAUSATION 751 01:13:41.967 --> 01:13:53.399 COULD BE PROVEN THROUGH THE METHOD THAT THE PLAINTIFF'S EXPERTS CHOOSE TO USE IN THIS 752 01:13:53.399 --> 01:13:59.730 CASE. EDWARD D. ROGERS: YOU HAVE TO RELIABLY RULE THINGS IN. YOU HAVE TO HAVE 753 01:13:59.730 --> 01:14:06.958 A SCIENTIFIC BASIS TO SAY A SILICONE PART CAN CAUSE EYE I AM FLAMES AND CAN CAUSE A RETINAL 754 01:14:06.958 --> 01:14:13.166 DETACHMENT /WUFPLT WITH /WUFPLT HERE THE DEFENDANT THEMSELVES SAID THAT. 755 01:14:13.166 --> 01:14:17.920 EDWARD D. ROGERS: NO /PEUFPLT /PUFPLT YOU HAVE NOT CONCEDED MANUFACTURING DEFECT AM I CORRECT 756 01:14:17.920 --> 01:14:23.628 BECAUSE YOUR POSITION IS THAT THERE IS NO PROOF THAT THIS PARTICULAR -- THAT THE PARTICULAR 757 01:14:23.628 --> 01:14:29.397 UNIT THAT SHE GOT WAS DEFECTIVE. EDWARD D. ROGERS: CORRECT 27 POINT TWO PER 758 01:14:29.397 --> 01:14:35.753 CHANCE THAT THIS UNIT WAS DEFECTIVE. THAT IS ONLY RECORD EVIDENCE ON THAT /TPHUFPLT 759 01:14:35.753 --> 01:14:42.724 /TPHEUFPLT WAS IT PART THE RECALL THAT ONE THE HEALTH HAZARD A/SEPLTS COULD CAUSE INTRA 760 01:14:42.724 --> 01:14:47.658 OKAY /HRAL UN/TPHRAUPBLS IN PATIENTS. EDWARD D. ROGERS: LET'S TALK ABOUT WHAT 761 01:14:47.658 --> 01:14:54.065 THAT MEANS RIGHT. IT MEANS POTENTIAL RISK IN SENSITIVE PATIENTS. WHAT DOES THAT MEAN? 762 01:14:54.065 --> 01:15:01.351 IS POTENTIAL RISK PROBABILITY OR POSSIBILITY. UNDER THIS COURTS RESIDENCE YOU NEED 763 01:15:01.351 --> 01:15:08.361 PROBABILITY. THEN SAYS PRO TENSION RISK. POTENTIAL RISK IN SENSITIVE PATIENTS. RECORD 764 01:15:08.361 --> 01:15:14.407 UNDISPUTELY SAID THAT MEANS SENSITIVE TO SILICONE /TPHUFPLT /TPHEUFPLT ARE FACTUAL DISPUTES 765 01:15:14.407 --> 01:15:20.168 WOULD BE BETTER SUITED FOR THE JURY RATHER THAN DECIDING THEM IN AC TAKEN HEARING OR WITH 766 01:15:20.168 --> 01:15:24.537 REGARD TO THE SPEAKERS'S ANALYSIS. EDWARD D. ROGERS: YOUR HONOR NO FACTUAL 767 01:15:24.537 --> 01:15:28.938 DISPUTE ON THAT POINT. THERE IS NO EVIDENCE THAT WAS SUBMITTED BY PROPONENT OF THE EVIDENCE 768 01:15:28.938 --> 01:15:33.664 TO SAY THAT THERE IS FACTUAL DISPUTE ABOUT ^ WHETHER ^ WEATHER THAT COULD HAPPEN /WUFPLT 769 01:15:33.664 --> 01:15:37.792 /WEUFPLT YOU ARE SAYING WHAT COULD NEVER POSSIBLY HAPPEN IS THAT IT COULD CAUSE INFLAMMATION 770 01:15:37.792 --> 01:15:44.028 EVEN THOUGH HEALTH HAZARD ASSESSMENT SAYS THAT IT COULD CAUSE INFLAMMATION. EDWARD D. 771 01:15:44.028 --> 01:15:48.402 ROGERS: YES LOOK THE RECORDS YOUR HONOR. THAT WAS LETTER THAT WAS ULTIMATELY SENT OUT. 772 01:15:48.402 --> 01:15:55.734 RIGHT /WEUFPLT /WUFPLT TALKING ABOUT DECEMBER 282018 /URPBL EVENT DRUG RECALL CORRECT. 773 01:15:55.734 --> 01:15:58.841 EDWARD D. ROGERS: YES CAN I EXPLAIN. JUSTICE WAINER APTER: SURE. 774 01:15:58.841 --> 01:16:02.868 EDWARD D. ROGERS: SO WE HAD SUBMITTED FIRST DRAFT OF THAT LETTER TO THE FDA 775 01:16:02.868 --> 01:16:08.627 BEFORE THE PLAINTIFF GOT HER INJECTS /WUFPLT /WUFPLT THAT DEAR HEALTHCARE PROVIDER 776 01:16:08.627 --> 01:16:14.284 /SPHUTED ON OCTOBER THIRD. EDWARD D. ROGERS: ONE THE RECORD 649. JUSTICE 777 01:16:14.284 --> 01:16:20.709 WAINER APTER: YES, I AM FOLLOWING. EDWARD D. ROGERS: SO LOOK CLINICAL. INTRA 778 01:16:20.709 --> 01:16:25.981 OBJECTION LAR INFLAMMATION. IN SENSITIVE PATIENTS THIS POTENTIAL CANNOT BE RULED OUT 779 01:16:25.981 --> 01:16:31.740 AND IT IS DIFFICULT TO PREDICT WHICH PATIENT MAY SENSITIVE TO SILICONE PARTICLES. WHAT 780 01:16:31.740 --> 01:16:37.950 ALLERGAN IS TELLING THE FDA IS WE CANNOT RULE OUT THAT INFLAMMATION MAY OCCUR IN THOSE 781 01:16:37.950 --> 01:16:43.798 THAT ARE SENSITIVE TO SILICONE. THAT IS EXACTLY IT. WE COULD NOT RULE THIS OUT BECAUSE 782 01:16:43.798 --> 01:16:49.270 NO STUDIES WE ARE AWARE OF ABOUT THAT. THEN WE SENT IT OUT. THERE IS POTENTIAL RISK 783 01:16:49.270 --> 01:16:53.669 BECAUSE WE DON'T KNOW. HAVEN'T BEEN ABLE TO RULE IT OUT. JUSTICE WAINER APTER: 784 01:16:53.669 --> 01:17:05.215 CORNEAL ADVERSE REACTION. (READING) CORRECT. EDWARD D. ROGERS: YES THAT IS A 785 01:17:05.215 --> 01:17:09.008 POSSIBILITY BUT THAT IS THE MECHANISM OF CAUSATION THAT THE PLAINTIFFS HAVE SAID HERE. 786 01:17:09.008 --> 01:17:14.774 THEY SAID IT IS PELLET AS JUSTICE HOFFMAN WAS SAYING THEY SAY PELLET THAT ACTUALLY MIGRATE 787 01:17:14.774 --> 01:17:20.296 THAN CONTACT STEROID IN THE BACK IS WHAT CAUSED THOSE ISSUES. NOT MIGRATION OF PART WHICH 788 01:17:20.296 --> 01:17:25.947 IS WHAT THEY ARE TALKING ABOUT. THAT DOES NOT CAUSE THAT /WUFPLT /WUFPLT I THOUGHT DOCTORS 789 01:17:25.947 --> 01:17:32.062 SAY PART THAT MY /TKPWRAUT AND OTHER SAYS PELLET THAT MIGRATED. EDWARD D. ROGERS: 790 01:17:32.062 --> 01:17:38.908 NOT -- WE HAVE DR. PHILLIPS AND HE TESTIFIES THAT SILICONE ARTICULATE CAUSED INFLAMMATION, 791 01:17:38.908 --> 01:17:45.003 RIGHT. WHAT IS HIS BASIS FOR SAYING THAT. HE SAYS NO STUDIES THAT SAYS SILL ZONE 792 01:17:45.003 --> 01:17:52.051 ARTICULATE CAN CAUSE INFLAMMATION. HE SAYS I USE SILICONE IN THE EYE ALL TIME TO HELP 793 01:17:52.051 --> 01:17:57.001 MY PATIENTS. WHY DO YOU THINK THAT?? BECAUSE OF THE RECALL LETTER RIGHT THERE. I SAID 794 01:17:57.001 --> 01:18:02.276 SINCE RECALL LETTER SAID IT IT MUST HAVE BEEN THAT. THAT RECALL LETTER SAYS IT IS 795 01:18:02.276 --> 01:18:07.968 POTENTIAL. WHAT DID ALLERGAN DO. IN 2019 THEY ACTUALLY STUDIED THIS BECAUSE COULDN'T 796 01:18:07.968 --> 01:18:15.004 RULE IT OUT IN 2018. IN ABUNDANCE OF CAUTION LIKE WE TALKED ABOUT WE WANT TO GET 797 01:18:15.004 --> 01:18:19.768 INFORMATION OUT FOR PUBLIC HEALTH. WE DON'T KNOW IN THIS COULD OR COULD NOT BE A PROBLEM 798 01:18:19.768 --> 01:18:25.483 SO IT COULD BE A POTENTIAL RISK UNTIL WE RULE IT OUT. WHAT DID IT DO IT DID A LONG-TERM 799 01:18:25.483 --> 01:18:31.572 STUDY THAT THIS SILICONE COULD NOT CAUSE I KNOW /TPHRAEUPBLS. WHAT PLAINTIFF EXPERT WHEN 800 01:18:31.572 --> 01:18:37.035 CONFRONTED ABOUT THAT STUDY SAY? WE DON'T LIKE IT. IT IS INCONSISTENT WITH OUR ^ OPINION ^ PIN. 801 01:18:37.035 --> 01:18:42.266 DIDN'T CRITICIZE IT. DIDN'T GIVE RISE ON WHY IT WAS IMPROPER OR DIDN'T PROOF WHAT WE 802 01:18:42.266 --> 01:18:47.559 CLAIMED /WUFPLT /WEUFPLT SO IS THE ACTUAL YOUR HONOR LYING ARGUMENT NOT ABOUT A DIFFERENTIAL 803 01:18:47.559 --> 01:18:52.393 DIAGNOSIS BUT ONLY ABOUT ^ WHETHER ^ WEATHER PART CAN CAUSE INFLAMMATION. EDWARD D. 804 01:18:52.393 --> 01:18:56.575 ROGERS: RIGHT SO THERE IS 3 THINGS HERE YOUR HONOR. NUMBER ONE WE DO NOT BELIEVE THAT 805 01:18:56.575 --> 01:19:03.123 THEY PROVED THAT THIS PARTICULAR /SAO*UR THAT SHE WAS INEJECTED WITH WAS ONE OF THE PERCENT 806 01:19:03.123 --> 01:19:08.937 THAT HAD THE MANUFACTURING ISSUE. RIGHT THAT IS NUMBER ONE. NUMBER TWO IS /PEUFPLT U. 807 01:19:08.937 --> 01:19:11.773 JUSTICE WAINER APTER: YOUR EXPERT IS THAT IT COULD HAVE BEEN THEY WOULDN'T 808 01:19:11.773 --> 01:19:16.609 BE ABLE TO SEE PART IN HER EYE CORRECT. EDWARD D. ROGERS: THAT RELATES TO ^ WHETHER ^ 809 01:19:16.609 --> 01:19:21.320 WEATHER PEOPLE SAW IT IN HER EYE. THE EVIDENCE ONLY TWO PERCENT IN THAT LOT. TWO PERCENT 810 01:19:21.320 --> 01:19:25.276 CHANCE SHE GOT IT. JUSTICE WAINER APTER: CORRECT. THOUGHT YOU WERE SAYING 811 01:19:25.276 --> 01:19:29.648 THAT THEY SHOULD HAVE BEEN ABLE -- HAD IT BEEN IN HER EYE THEY WOULD HAVE BEEN ABLE TO 812 01:19:29.648 --> 01:19:34.233 SEE IT WHERE YOUR EXPERTS THAT THAT NOT NECESSARILY. EDWARD D. ROGERS: IF I 813 01:19:34.233 --> 01:19:38.624 SAID THAT /SURPB I AM SORRY. THAT IS SOMETHING OUTSIDE THE RECORD BUT COLORS /-P ARTICULATES 814 01:19:38.624 --> 01:19:43.940 ^ AN ^ AND THINGS WHERE WE CLAIM THAT THEY COULD. THAT IS NOT EVEN THE ISSUE HERE. WE 815 01:19:43.940 --> 01:19:49.522 SAY THERE IS NO EVIDENCE OF DEFECT. ONLY TWO PERCENT CHANCE DEFECT IS INSUFFICIENT TO 816 01:19:49.522 --> 01:19:55.306 GET A JURY. NEXT THE THING THAT WE HAVEN'T TALKED ABOUT TODAY IS TWO TYPES OF CAUSATION. 817 01:19:55.306 --> 01:20:00.791 THERE IS GENERAL CAUSATION AND THERE IS SPECIFIC CAUSATION. ^ AN ^ AND /TKEUFPBS DIAGNOSIS 818 01:20:00.791 --> 01:20:07.194 ACE METHODOLOGY THAT IS ONLY RELIABLE TO PROVE SPECIFIC CAUSATION. THERE IS NOT A SINGLE 819 01:20:07.194 --> 01:20:13.981 CASE NOT A SINGLE TREATISE. NOT A SINGLE COURT THAT IS EVER HELD THAT /TK-FRGS DID YOU GOES 820 01:20:13.981 --> 01:20:20.279 CAN BE USED TO PROVE GENERAL CAUSATION. THE ONLY EVIDENCE THAT THE PLAINTIFF'S EXPERT 821 01:20:20.279 --> 01:20:25.715 SPEAK TO ABOUT GENERAL CAUSATION ACE RECALL LETTER AND THEY CLAIM THEY RELY ON RECALL 822 01:20:25.715 --> 01:20:30.559 LETTER BECAUSE IT SAYS POTENTIAL RISK OF INFLAMMATION. VERY NOTABLE THAT RECALL 823 01:20:30.559 --> 01:20:36.158 LETTER SAYS NOTHING ABOUT RETINAL DETACHMENT WHICH IS DID LOCAL STARY RETAINED EXPERT'S 824 01:20:36.158 --> 01:20:40.735 ^ OPINION ^ PIN. NOT EVEN THE RECALL LETTER WHICH IS ONLY THING THEY POINT TO AS PROOF 825 01:20:40.735 --> 01:20:47.035 THE GENERAL CAUSATION SUPPORTS DID LALZARY RETINAL ATTACHMENT ^ OPINION ^ PIN. EVEN D 826 01:20:47.035 --> 01:20:52.275 R. PHILLIPS ^ OPINION ^ PIN REGARDING THESE -- ACTUALLY CAUSING INFLAMMATION THE ONLY 827 01:20:52.275 --> 01:20:58.179 EVIDENCE IN THE RECORD, ONLY STUDY THAT IS HE HAVE BEEN CITED /PUFPLT /PEUFPLT THERE A 828 01:20:58.179 --> 01:21:03.448 PPARENTLY ARE 3 TREATERS WHO AT LEAST HAD SOME INVOLVEMENT TWO OF WHOM WERE PROFFERED. 829 01:21:03.448 --> 01:21:09.859 BUT THERE ARE 3 DIFFERENT EXPERTS THEORIES AM I RIGHT ABOUT THAT. EDWARD D. ROGERS: 830 01:21:09.859 --> 01:21:14.779 THERE IS TWO. LOOK AT THEIR /TERLGS WE ASKED THEM TO DISCLOSE EXPERT. THEY DISCLOSED 831 01:21:14.779 --> 01:21:19.276 TWO. DOCTOR FILL /UPBS ^ AN ^ AND LOCAL STARY. JUSTICE PATTERSON: ONLY ONES 832 01:21:19.276 --> 01:21:24.303 IN THIS CASE. EDWARD D. ROGERS: MEDICAL RECORDS PUMPED INTO THE RECORDS NEVER 833 01:21:24.303 --> 01:21:28.101 DISCLOSED ^ AN ^ AND NEVER OFFERED ^ OPINIONS ^ PINS OR TESTIFIED ABOUT THAT /PUFPLT 834 01:21:28.101 --> 01:21:32.132 /PEUFPLT TWO EXPERTS ^ AN ^ AND DEAL WITH TWO THEORIES OR 3. EDWARD D. ROGERS: 835 01:21:32.132 --> 01:21:37.980 TWO THEORIES. DR. PHILLIPS THEORY IS THAT THE SILICONE PART CAUSED EYE INFLAMMATION 836 01:21:37.980 --> 01:21:42.146 AND THAT THAT EYE /TPHRAEUPBLS CAUSED /KAGS CADE OF SYMPTOMS THAT CAUSED HER VISION LOSS. 837 01:21:42.146 --> 01:21:51.228 DR. LALEZARY CLAIMS SILICONE PART CAUSED RETINAL DETACHMENT THAT CAUSED CASCADE OF SYMPTOMS 838 01:21:51.228 --> 01:22:01.538 THAT LED TO /HUFPLT /HUFPLT HE CLAIM CORNER NAL DECK DAYS RIGHT. LAST WAS RETINA ^ AN ^ AND 839 01:22:01.538 --> 01:22:07.420 CORNEA, RIGHT. EDWARD D. ROGERS: HE SAID THAT DOCTOR LOCAL STARY DID SAY THAT 840 01:22:07.420 --> 01:22:11.859 THERE WAS I KNOW /TPHRAEUPBLS BUT HIS MECHANISM FOR HOW YOU THE WAS ACTUALLY CAUSED WAS 841 01:22:11.859 --> 01:22:18.063 RETINAL DETACHMENT HE DID ALSO OPINE THERE WAS INFLAMMATION, YES /WUFPLT /WUFPLT THAT IS 842 01:22:18.063 --> 01:22:24.547 ALL TOTALLY RELATED TO CORNEAL ADVERSE REACTION. EDWARD D. ROGERS: WAS CASCADE 843 01:22:24.547 --> 01:22:30.440 WHAT HAPPENED EVENTUALLY. AS JUSTICE HOFFMAN TALKED ABOUT THE MY /TKPWRAEUPLS OF THE 844 01:22:30.440 --> 01:22:37.204 PELLET TO THE ANOTHER AS A RESULT BUT IT PART STARTED FILL /EUPTS IT STARTED WITH 845 01:22:37.204 --> 01:22:43.094 INFLAMMATION ^ AN ^ AND LALZARY SAID IT /STAPSED WITH RETINAL DETACHMENT /WUFPLT /WUFPLT 846 01:22:43.094 --> 01:22:48.578 EITHER WAY HERE IT SAYS ONE THE CLINICAL IMPLICATIONS THAT THE CORNEAL ADVERSE 847 01:22:48.578 --> 01:22:54.722 REACTION WHERE PARTICLE MIGRATES TO THE ANOTHER CHAMBERS AND THAT CAUSES HARM. THAT IS 848 01:22:54.722 --> 01:22:59.737 WHAT THE -- AT LEAST ONE THE DOCTORS SAYS HAPPENED HERE, CORRECT. EDWARD D. 849 01:22:59.737 --> 01:23:05.324 ROGERS: THE -- MY UNDERSTANDING IS THAT DR. LALEZARY TESTIFIED THAT IT WAS PELLET NOT 850 01:23:05.324 --> 01:23:13.564 PART THAT MIGRATED. ALL RIGHT /TPUFPLT /TPUFPLT SORRY. IF THERE IS REMAPPED ^ AN ^ AND 851 01:23:13.564 --> 01:23:20.643 IF THERE IS DIRECTION TO PERFORMANCE AC TAKEN HEARING WAS YOUR UNDERSTANDING OF WHAT WOULD 852 01:23:20.643 --> 01:23:26.367 HAPPEN. EDWARD D. ROGERS: MY UNDERSTANDING OF WHAT WOULD HAPPEN EXPERTS 853 01:23:26.367 --> 01:23:30.514 WOULD TESTIFY TO THE BASIS OF THEIR ^ OPINION ^ PIN AS TO WHAT THEY TESTIFIED TO IN 854 01:23:30.514 --> 01:23:34.909 DEPOSITIONS. THESE ARE NOT DEPOSITIONS THAT WE TOOK. IF YOU LOOK AT DEPOSITIONS PLAINTIFF'S 855 01:23:34.909 --> 01:23:39.602 COUNSEL DID DIRECT EXAMINATIONS ^ AN ^ AND PULLED OUT ALL OF THE BASIS FOR THEIR ^ OPINIONS ^ 856 01:23:39.602 --> 01:23:44.742 PINS IN THOSE DEPOSITIONS. SO IF WE HAD IS ZERO 4 EVIDENTIARY HEARING I HAVE NO IDEA WHAT 857 01:23:44.742 --> 01:23:49.095 ADDITIONAL EVIDENCE. THEY HAVE NEVER PROFFERED IT ^ AN ^ AND CASE LAW THAT WE HAVE CITED 858 01:23:49.095 --> 01:23:54.560 IN BRIEFS TALKS ABOUT WHEN YOU NEED TO HAVE THESE HEARINGS, /RAOUGT. DO YOU NEED TO HAVE 859 01:23:54.560 --> 01:23:58.416 ^ AN ^ AND /ERTSZ ROADWAY HEARING IN EVERY CASE IF THE EVIDENCE THAT THEY TESTIFIED TO 860 01:23:58.416 --> 01:24:02.525 IS /P GOING TO BE EXACTLY THE SAME AS THEY TESTIFIED TO IN THEIR DEPOSITION. RIGHT. 861 01:24:02.525 --> 01:24:08.848 IF THE PROPONENT SUBMITS THE REPORTS AROUND THE EXPERTS SAYS YES I RELIED UPON THIS REPORT 862 01:24:08.848 --> 01:24:13.561 /PEUFPLT /PUFPLT WE HAVE NO DECISION COUNSEL FROM TRIAL COURT ON THIS ISSUE. YOU'VE ARGUED 863 01:24:13.561 --> 01:24:19.513 THAT. EDWARD D. ROGERS: TRIAL COURT ABUSED IT IS DISCRETION. JUSTICE 864 01:24:19.513 --> 01:24:23.024 PATTERSON: NET ^ OPINION ^ PIN DECISION THAT NET ^ OPINIONS ^ PINS WERE NOT NET PUPS AND 865 01:24:23.024 --> 01:24:28.029 NO DETERMINATION THAN AC /TAUPB. NO DETERMINATION AS TO WHETHER OR NOT A ONE ZERO 866 01:24:28.029 --> 01:24:32.073 HAD HEARING IS NECESSARY WHICH IS PART OF THE TRIAL COURTS CONSIDERATION. NOTHING WAS 867 01:24:32.073 --> 01:24:37.177 DONE ON THIS ISSUE IN RESPONSE TO YOUR OBJECTION BY THE TRIAL COURT. EDWARD D. 868 01:24:37.177 --> 01:24:40.781 ROGERS: THE TRIAL COURT CONSIDERED ALL OF THE EVIDENCE THAT WAS SUBMITTED THERE ^ AN ^ AND 869 01:24:40.781 --> 01:24:45.695 /PHAUD THE DETERMINATION THAT IT THOUGHT THAT THERE WAS SUFFICIENT EVIDENCE TO GET THE 870 01:24:45.695 --> 01:24:51.191 JURY ON THE MANUFACTURING DEFECT ISSUE BECAUSE THE HYPOTHETICAL RIGHT /PEUFPLT /PUFPLT 871 01:24:51.191 --> 01:24:55.788 I AM TALKING ABOUT THE OBJECTION -- JUST TO BE CLEAR YOU MADE AN OBJECTION BASED TO THE 872 01:24:55.788 --> 01:25:03.204 ADMISSIBILITY OF SEVEN ZERO TWO AND SEVEN ZERO 3. EDWARD D. ROGERS: YES. 873 01:25:03.204 --> 01:25:07.322 JUSTICE PATTERSON: YOU CITED AC TAKEN. ISSUE WAS JOINED AS TO THAT ISSUE. NO DETERMINATION 874 01:25:07.322 --> 01:25:11.388 BY THE TRIAL COURT ON THAT ISSUE AM I CORRECT. EDWARD D. ROGERS: IN THE WRITTEN 875 01:25:11.388 --> 01:25:16.958 OPINION THE TRIAL COURT DOES NOT GO THROUGH BECAUSE /TKERT FACTORS P DOESN'T TALK ABOUT 876 01:25:16.958 --> 01:25:22.016 THE GATE KEEPING FUNCTION THAT YOU WOULD EXPECT IN THAT TYPE OF ^ OPINION ^ PIN. I AGREE 877 01:25:22.016 --> 01:25:25.724 WITH THAT YOUR HONOR /PEUFPLT /PUFPLT IN THE HEARINGS WHICH WE HAVE THE TRANSCRIPTS OF 878 01:25:25.724 --> 01:25:34.198 OBVIOUSLY PROPERLY THE BRIEFS WERE NOT SUBMITTED AS OUR COURT RULES DIRECT EXCEPT IN CERTAIN 879 01:25:34.198 --> 01:25:39.951 CIRCUMSTANCES. BUT IN THE TWO HEARINGS BEFORE THE TRIAL COURT THE ORIGINAL DECISION 880 01:25:39.951 --> 01:25:45.416 ^ AN ^ AND RECONSIDERATION DECISION THERE IS NO PLUCKS OF AC TAKEN AM I CORRECT ABOUT THAT. 881 01:25:45.416 --> 01:25:49.276 EDWARD D. ROGERS: IN THE WAY THAT YOU WOULD EXPECT BASED UPON THAT, NO. YOUR HONOR 882 01:25:49.276 --> 01:25:54.967 DO I KNOW WHAT IS GOING ON IN THE TRIAL JUDGES HEAD HE'S GOING THROUGH THOSE FACT OFFERS 883 01:25:54.967 --> 01:25:58.635 WHEN WRIST OUT I BELIEVE. THERE IS NO RULING. JUSTICE PATTERSON: I AM NOT ASKING 884 01:25:58.635 --> 01:26:04.211 FOR MIND READING. EDWARD D. ROGERS: RIGHT BUT WE DO KNOW THAT THE RECORD THAT 885 01:26:04.211 --> 01:26:10.608 WOULD BE CREATED IF THERE WAS A 104 HEARING IN THIS CASE WOULD HAVE BEEN THE EXACTLY SAME 886 01:26:10.608 --> 01:26:14.762 RECORD /TPUFPLT /TPUFPLT LET ME ASK YOU QUICK QUESTION ABOUT THAT. YOU INDICATED THERE 887 01:26:14.762 --> 01:26:21.250 WAS ABUSE OF DISCRETION. IN WHAT WAY OR WAYS DID THE JUDGE ABUSE HIS DISCRETION. 888 01:26:21.250 --> 01:26:25.992 EDWARD D. ROGERS: IN THIS CASE IN NOT FOLLOWING AC TAKEN. IN NOT MAKING SURE THAT THERE 889 01:26:25.992 --> 01:26:32.107 WAS RELIABLE BASIS FOR GENERAL CAUSATION AND THERE WAS A RELIABLE APPLICATION OF THE 890 01:26:32.107 --> 01:26:37.304 /TKEUFRPBGTS DIAGNOSIS METHODOLOGY TO RULE IN AND RULE OUT THE OTHER CAUSES USING SCIENTIFIC 891 01:26:37.304 --> 01:26:43.450 METHODS RATHER THAN JUST NET ^ OPINION ^ PIN AND JUST PERSONAL BELIEVES THAT I THINK 892 01:26:43.450 --> 01:26:48.082 YOU SHOULD RULE THESE TYPES OF THINGS OUT. RIGHT AT THE THAN OF CAN A REALLY ONLY TESTIMONY 893 01:26:48.082 --> 01:26:52.992 PORTION ASSOCIATION THAT YOU SITE ^ AN ^ AND CITED THE CASE THAT SAYS THAT INSUFFICIENT. 894 01:26:52.992 --> 01:26:57.359 JUSTICE FASCIALE: HAS THE JUDGED ABUSE HIS DISCRETION IN ANY OTHER WAYS OTHER THAN 895 01:26:57.359 --> 01:27:02.793 THOSE. EDWARD D. ROGERS: I THINK ALSO THE ISSUE DEFECT RIGHT. IN THIS PARTICULAR 896 01:27:02.793 --> 01:27:07.366 CASE THE TRIAL JUDGE MADE EVIDENCE OF MANUFACTURING DEFECT BASED ON EVIDENCE THAT 897 01:27:07.366 --> 01:27:12.225 DIDN'T EXIST. RIGHT. THEY CITED ANAL BEGAN EMPLOYEE AS ^ AN ^ AND /SP*ERTSDZ ALLEGEDLY 898 01:27:12.225 --> 01:27:17.761 TESTIFYING THAT THERE WAS DEVIATION FROM MANUFACTURING SPECIFICATIONS WHEN THAT WAS 899 01:27:17.761 --> 01:27:23.961 NOT EVEN HER AREA IN WHICH SHE WAS -- SHE WAS SKIED ALD TO BE DEPOSED AN ACTUAL WITNESS 900 01:27:23.961 --> 01:27:29.732 FOR ALLERGAN WHO TALKED ABOUT THAT TOTALLY CONTRADICTED IT. YET THE TRIAL JUDGE RELIED 901 01:27:29.732 --> 01:27:35.467 UPON HYPOTHETICAL TO FIND MANUFACTURING DEFECT. IT IS FINDINGS. ABUSED HIS DISCRETION 902 01:27:35.467 --> 01:27:41.042 IN ADMITTING THOSE ^ AN ^ AND FINDING THAT THERE WAS /WUFPLT /WUFPLT SORRY TALKING ABOUT 903 01:27:41.042 --> 01:27:47.508 THAT THE -- YOUR CORPORATE REPRESENTATIVE WAS ASKED IS IT CORRECT TO STATE THAT /SAO*UR 904 01:27:47.508 --> 01:27:58.375 WAS NOT DESIGNED TO RELEASE SILICONE PARTICULATE (READING). YOU ARE SAYING THAT IT WAS 905 01:27:58.375 --> 01:28:02.877 ERROR FOR THE TRIAL COURT TO RELY ON THAT. EDWARD D. ROGERS: IT WAS ERROR FOR 906 01:28:02.877 --> 01:28:08.484 TRIAL COURT TO THEN USE THAT TESTIMONY AND SAY THAT THIS MEANS THAT THIS PARTICULAR UNIT 907 01:28:08.484 --> 01:28:14.335 THAT THE PLAINTIFF GOT HAD A SILICONE PART. THAT IS WHAT TRIAL COURT DID /WUFPLT /WUFPLT 908 01:28:14.335 --> 01:28:20.587 OKAY BUT WASN'T ERROR TO SAY THAT TWO POINT TWO PERCENT THAT HAD DEPICT THE DEFECT IS 909 01:28:20.587 --> 01:28:27.614 THAT THE APPLICATOR RELEASED A SILICONE PART EVEN WHEN IT SHOULD NOT HAVE DONE SO. 910 01:28:27.614 --> 01:28:32.186 EDWARD D. ROGERS: SO ISSUE THERE IS THE DEFINITION THAN THE PLA. RIGHT OF A MANUFACTURING 911 01:28:32.186 --> 01:28:37.293 DEFECT. RIGHT. SAND IT IS WHEN THERE IS A DEVIATION FROM THE MANUFACTURING 912 01:28:37.293 --> 01:28:42.149 SPECIFICATIONS. AND SO THE ALLERGAN WITNESS THAT TESTIFIED TO WHAT THE MANUFACTURING 913 01:28:42.149 --> 01:28:49.016 SPECIFICATIONS WERE TESTIFIED THAT A 3 HUNDRED MY SILL CON PARTIES ACTUALLY NOT OUTSIDE 914 01:28:49.016 --> 01:28:53.600 THE MANUFACTURING SPECIFICATION /-GS. ACTUAL WITNESS WITH THE KNOWLEDGE SAID UNDER THE 915 01:28:53.600 --> 01:28:59.751 TEST ^ AN ^ AND PLA THAT IS ACTUALLY NOT. BUT TRIAL COURT DIDN'T SITE THAT OR LOOK AT 916 01:28:59.751 --> 01:29:05.252 THAT BUT UNSTADE CALLED ALLERGAN EMPLOYEE ^ AN ^ AND EXPERT WHEN TESTIFYING ON SOMETHING 917 01:29:05.252 --> 01:29:12.144 FOR WHICH SHE WAS DESIGNATED /WUFPLT /WUFPLT I AM LOOKING URGENT DRUG RECALL DATED DECEMBER 918 01:29:12.144 --> 01:29:37.539 282018 AND EXPLAINS (READING) SO UME A CONFUSED AS TO HOW YOU ARE SAYING THAT IT WAS IN 919 01:29:37.539 --> 01:29:42.629 ERROR TORE TRIAL COURT TO RELY ON THE FACT THAT DEFENDANT CALLED IT DEFECT. EDWARD 920 01:29:42.629 --> 01:29:47.599 D. ROGERS: THE DEFENDANT CALLED IT DEFECT IN THE LEFT ER LETTER THAT WAS SENT OUT PURSUANT 921 01:29:47.599 --> 01:29:55.261 TO FDA. YES THAT WAS RECALL PROCESS AND CALLED IT /URPBL EVENT DRUG CALL. EDWARD 922 01:29:55.261 --> 01:29:59.529 D. ROGERS: QUESTION IS WAS ALLERGAN ADMITTING THERE WHEN YOU THE SAYS MANUFACTURING ISSUE 923 01:29:59.529 --> 01:30:06.816 THAT DEFECT THAT THAT WAS SAME AS ADMITTING THE DEFECT UNDER THE PLA AN ANSWER IS NO /WUFPLT 924 01:30:06.816 --> 01:30:11.289 /WUFPLT OR PERHAPS AT LEAST ENOUGH TO GET A JURY. THOUGHT THAT IS WHAT YOU WERE ARGUING. 925 01:30:11.289 --> 01:30:16.482 WERE YOU ARGUING THERE IS NO EVIDENCE WHATSOEVER THAT THERE WAS DEFECT HEREMENT ONLY 926 01:30:16.482 --> 01:30:21.726 QUESTION FOR PUS ON SUMMARY JUDGMENT IS COULD THERE BE DISPUTED FACT AS TO WHETHER OR NOT 927 01:30:21.726 --> 01:30:27.333 THERE IS A DEFECT. EDWARD D. ROGERS: THE EVIDENCE IS THAT THERE IS TWO PERCENT 928 01:30:27.333 --> 01:30:31.795 CHANCE /WEUFPLT /WUFPLT THAT GOES BACK TO /TKUFRPBT /THUBG. THINK WE ARE GETTING CON 929 01:30:31.795 --> 01:30:40.330 NEWSED P IN TWO POINT TWO PERCENT OF THE PIECES IN THE LOT IT WAS RELEASING THIS PART. 930 01:30:40.330 --> 01:30:46.211 I THOUGHT YOU WERE SAYING EVEN THOUGH THOSE TWO POINT TWO PERCENT THAT IS NOT DEFECT 931 01:30:46.211 --> 01:30:51.923 BECAUSE THERE IS ACTUALLY NOTHING WRONG WITH RELEASING PART. EDWARD D. ROGERS: 932 01:30:51.923 --> 01:30:56.738 YES ABSOLUTELY THAT IS ONE OF OUR ARGUMENTS, YES /WEUFPLT /WUFPLT FACT THAT IT EXISTS 933 01:30:56.738 --> 01:31:01.907 IN TWO POINT TWO PERCENT OF THE PIECES IS NOT THE SAME AS THERE IS NO DEFECT AT ALL AND 934 01:31:01.907 --> 01:31:05.474 YOU ARE MAKING ALL OF THOSE ARGUMENTS CORRECT. EDWARD D. ROGERS: CORRECT, YOUR HONOR. 935 01:31:05.474 --> 01:31:11.850 THERE IS NO EVIDENCE IN THIS CASE -- ONLY EVIDENCE AS TO WHETHER OR NOT A 3 HUNDRED MY 936 01:31:11.850 --> 01:31:23.498 SILL CON CALM FROM ALLERGAN WITNESS WHO TESTIFIED THAT THERE NOT DEVIATE /WUFPLT /WUFPLT 937 01:31:23.498 --> 01:31:29.675 AND FROM DRUG RECALL. YOU CAN ARGUE IT MEANS DEFECT. IT IS JUST ABOUT ^ WHETHER ^ WEATHER 938 01:31:29.675 --> 01:31:33.756 THERE IS ANY DISPUTED FACT. EDWARD D. ROGERS: YOUR HONOR, THERE IS STILL THE 939 01:31:33.756 --> 01:31:39.680 SEPARATE ISSUE RIGHT OF WHETHER OR NOT THIS TUCK UNIT THAT GOT IN THE PLAINTIFF'S EYE 940 01:31:39.680 --> 01:31:44.554 WAS THE ONE THAT HAD THAT PARTICULAR IF YOU WANT TO CALL IT DEFECT /PUFPLT /PEUFPLT THAT IS 941 01:31:44.554 --> 01:31:51.069 TIED IN WITH DIFFERENTIAL DIAGNOSIS WITH THE PLAINTIFFS THEORY WHICH IS THAT THEY CAN 942 01:31:51.069 --> 01:31:59.474 OVERCOME -- THEY CAN MEET THE CAUSATION STANDARD THROUGH DIFFERENTIAL DIAGNOSIS SO THERE IS 943 01:31:59.474 --> 01:32:04.072 A STRONG RELATIONSHIP BETWEEN THE ISSUE THAT YOU ARE RAISING AS TO ^ WHETHER ^ WEATHER 944 01:32:04.072 --> 01:32:10.697 THIS PARTICULAR UNIT HAD THAT ISSUE AND THE QUESTION OF ^ WHETHER ^ WEATHER THEIR EXPERT 945 01:32:10.697 --> 01:32:16.872 SHOULD BE ADMITTED. EDWARD D. ROGERS: THE MYRLAK. PRONOUNCED MYRLAK CASE TALKS 946 01:32:16.872 --> 01:32:21.690 ABOUT THE FACT THAT YOU CAN PROOF DEFECT BY ELIMINATION OF OTHER CAUSES. I BELIEVE THAT 947 01:32:21.690 --> 01:32:26.581 IS WHAT YOU ARE TAKING ABOUT /PUFPLT /PEUFPLT NOT MANY MANUFACTURING DEFECT CASES IN NEW JERSEY 948 01:32:26.581 --> 01:32:32.835 T THERE HAVEN'T BE MANY AT ALL IN RECENT YEARS. BUT THERE IS A LITTLE BIT OF LAW AS TO 949 01:32:32.835 --> 01:32:38.871 WHAT THAT MEANS. BUT THAT ALSO REQUIRES THAT THE PLAINTIFF PRODUCE ADMISSIBLE EXPERT 950 01:32:38.871 --> 01:32:41.848 TESTIMONY ON THAT QUESTION. AM I RIGHT ABOUT THAT. EDWARD D. ROGERS: ABSOLUTELY 951 01:32:41.848 --> 01:32:47.424 YOUR HONOR. THAT IS ONE HUNDRED PERCENT CORRECT. RIGHT. OUR ARGUMENT THAT THIS IS NOT 952 01:32:47.424 --> 01:32:52.517 A DEFECT. PLAINTIFF DIDN'T GET ONE OF THE PERCENT THAT WAS IN THERE. EVEN IF SHE GOT 953 01:32:52.517 --> 01:32:58.083 ONE OF THE TWO PERCENT OF UNITS THAT HAD A SILICONE PARTICULATE THAT SILICONE PART DOES 954 01:32:58.083 --> 01:33:03.524 NOT CAUSE INFLAMMATION. THERE IS NO PROOF WHATSOEVER EVEN IF YOU WERE REMANDED FOR ONE 955 01:33:03.524 --> 01:33:07.395 ZERO 4 HEARING THERE WOULD BE NO PROOF OF THAT WHATSOEVER. JUSTICE FASCIALE: 956 01:33:07.395 --> 01:33:11.828 INCLUDING CIRCUMSTANCE PROOF. EDWARD D. ROGERS: YES INCLUDING CIRCUMSTANCE 957 01:33:11.828 --> 01:33:17.790 PROOF HERE YOUR HONOR. THE CIRCUMSTANCE PROOF THE ONLY -- IS THERE CIRCULAR KIND OF DIFFEREN 958 01:33:17.790 --> 01:33:23.442 TIAL DIAGNOSIS PROOFS EVERYTHING. RIGHT. THERE IS REALLY NOTHING THERE. AND THEN LET'S 959 01:33:23.442 --> 01:33:27.488 WE HAVEN'T REALLY TALKED ABOUT THE SPECIFIC CAUSATION PART OF THIS /HUFPLT /HUFPLT BEFORE 960 01:33:27.488 --> 01:33:36.978 YOU MOVE ON. FUNDAMENTAL QUESTION. IF THERE IS NO DEFECT WHY DID YOU RECALL THE PRODUCT. 961 01:33:36.978 --> 01:33:41.540 EDWARD D. ROGERS: FDA TOLD US EVEN THOUGH DON'T BELIEVE IT IS SAFETY ISSUE IT IS 962 01:33:41.540 --> 01:33:48.337 PRODUCT QUALITY ISSUE AND YOU NEED TO RECALL IT BECAUSE OF THAT. I CAN GIVE YOU THE PAGE 963 01:33:48.337 --> 01:33:53.037 OF THAT YOUR HONOR IN THE RECORD /HEUFPLT /HUFPLT MY UNDERSTANDING FROM THE RECORD IS 964 01:33:53.037 --> 01:34:02.120 THAT IN A 4 WEEK PERIOD YOU MADE ALLERGAN MADE OVER TO ATTEMPTS TO GET THE FDA APPROVAL 965 01:34:02.120 --> 01:34:08.819 TO NOTIFY U.S. PROVIDERS. EDWARD D. ROGERS: CORRECT /HEUFPLT /HUFPLT THAT FEELS 966 01:34:08.819 --> 01:34:16.822 TO ME LIKE THIS IS NOT FDA MOTIVATED. 20 A/SEPLTS ALMOST ONE A DAY FOR A MONTH, THAT 967 01:34:16.822 --> 01:34:23.850 FEELS TO ME THIS IS VERY ALLERGAN MOTIVATED. SO YOU'VE CALLED IT A DEFECT. YOU HAVE 968 01:34:23.850 --> 01:34:30.781 RECALLED IT. AND THEN IT FEELS LIKE YOU ARE SAYING WE DON'T NEED A 104 HEARING BECAUSE 969 01:34:30.781 --> 01:34:38.099 IT IS NOT A DEFECT. EDWARD D. ROGERS: YOUR HONOR, LET'S -- I AGREE THAT WE ARE 970 01:34:38.099 --> 01:34:44.879 MAKING THOSE ARGUMENTS FROM A VERY UNSCIENTIFIC KIND OF FACIAL LEVEL THAT HAS SOME TYPE 971 01:34:44.879 --> 01:34:52.522 OF CURB APPEAL. RIGHT THERE. THERE NEEDS TO BE SIGNS /PWAOEUPBTD ALL OF THIS. MYRRH 972 01:34:52.522 --> 01:34:59.367 RAIN ACASE TALKS ABOUT THIS. THEY WANT PHARMACEUTICAL MANUFACTURERS WHEN THEY DON'T 973 01:34:59.367 --> 01:35:03.972 KNOW ABOUT THE RISK TO SAY OKAY WE DON'T KNOW ABOUT THIS THIS IS SOMETHING THAT IS 974 01:35:03.972 --> 01:35:08.089 POTENTIALLY OUT THERE. JUSTICE HOFFMAN: BUT THERE IS ^ AN ^ AND ASSUMPTION THAT 975 01:35:08.089 --> 01:35:12.226 THERE IS SIGNS BIND YOUR RECALL. EDWARD D. ROGERS: RIGHT AT THAT PARTICULAR 976 01:35:12.226 --> 01:35:18.538 TIME WE DIDN'T KNOW EXACTLY AS WE TOLD THE FDA WE QUANTITY RULE IT SOUTH YET. THERE NO 977 01:35:18.538 --> 01:35:23.837 STUDIES THAT WE ARE AWARE OF ON THIS SO WE WANT TO GET THAT INFORMATION OUT TO MEDICAL 978 01:35:23.837 --> 01:35:28.461 PROVIDERS. RIGHT WE WANT TO LET THEM KNOW WHAT'S GOING OBJECT RIGHT. AT THE SAME TIME 979 01:35:28.461 --> 01:35:34.002 REPORTING THIS TO OTHER COUNTRIES AND TELL US GO AHEAD ^ AN ^ AND RECALL IT IN SOME OTHER 980 01:35:34.002 --> 01:35:40.286 /TKUPBT /TREUS. BUT FOR SOME REASON FDA WAS NOT GIVING US PERMISSION TO DO IT HERE. 981 01:35:40.286 --> 01:35:44.719 WE WANTED TO BE FRANK ^ AN ^ AND OPEN ^ AN ^ AND TRANSPARENT WHAT IS GOING ON. THAT IS 982 01:35:44.719 --> 01:35:50.420 WHY WE FOLLOWED UP TO 20 TIMES. AT THE SAME TIME WE COULDN'T RULE IT OUT. WE WERE TRYING 983 01:35:50.420 --> 01:35:56.042 TO DO WHAT WAS RESPONSIBILITY CORPORATE COMPANY DOING. IF WE CAN'T RULE IT OUT WE NEED 984 01:35:56.042 --> 01:36:01.594 TO GET WORD OUT ABOUT IT. WHAT HAPPENED. WE DID SIGNS. SPENT THE NEXT YEAR DOING THE 985 01:36:01.594 --> 01:36:08.327 SIGNS TO SEE IF THIS WAS THE CAUSE /HUFPLT /HUFPLT WAS THAT THE TESTS WITH THE RABBITS. 986 01:36:08.327 --> 01:36:11.308 EDWARD D. ROGERS: CORRECT, YOUR HONOR. THAT IS ONLY TEST IN THE RECORD. COUNSEL 987 01:36:11.308 --> 01:36:17.374 TALKED ABOUT THE FACT THAT YOU CAN'T TEST THIS. YOU CAN'T TEST THIS. WE TESTED IT. 988 01:36:17.374 --> 01:36:24.680 YOU CAN'T DO HUMAN TRIAL BUT ANIMAL STUDIES. ABSENT /TAEUB TALKS ABOUT YOU CAN'T DISREGARD 989 01:36:24.680 --> 01:36:31.137 THESE STUDIES IN VIEW OF LESSER EVIDENCE. THAT IS EXACTLY WHAT OCCURRED HERE. THEY 990 01:36:31.137 --> 01:36:37.512 DISREGARDED A SCIENTIFIC STUDY FOR WHAT THEY -- WHAT IS LESSER EFFORTS ^ AN ^ AND EQUIVOCAL 991 01:36:37.512 --> 01:36:43.079 STATEMENT IN RECALL LETTER THAT WAS SEND OUT IN ABUNDANCE OF CAUTION TO LET DOCTORS KNOW 992 01:36:43.079 --> 01:36:48.915 WHAT WAS GOING ON EVEN THOUGH KNOW PROOF THAT IT COULD ACTUALLY CAUSE THE HARM BUT BECAUSE 993 01:36:48.915 --> 01:36:55.446 HADN'T BEEN DISPROVEN WE WANTED TO GET THE WORD OUT /WEUFPLT /WUFPLT I THINK SAW ONE FD 994 01:36:55.446 --> 01:37:01.329 A LETTERS THAT IT SAID IF YOU HAVE AN EXAMPLE OF SOMETHING, NEGATIVE CONSEQUENCE THAT FOLLOWED 995 01:37:01.329 --> 01:37:07.550 FROM PRODUCT REACH OUT HERE. DID NO ONE OVERREACH OUT AND SAY INFLAMMATION COULD HAVE 996 01:37:07.550 --> 01:37:10.448 BEEN CAUSED. EDWARD D. ROGERS: THERE IS NO EVIDENCE IN THE RECORD YOUR HONOR 997 01:37:10.448 --> 01:37:15.663 OF ANYBODY CLAIMING THAT THEY HAD ANY OTHER PERSONAL INJURIES HERE /WEUFPLT /WUFPLT SO 998 01:37:15.663 --> 01:37:18.755 THIS IS ONLY. EDWARD D. ROGERS: IT IS COMPLETELY ^ ABSENT ^ ABSENCE OF ANYBODY 999 01:37:18.755 --> 01:37:23.445 ELSE SAYING THAT THIS SILICONE PART ISSUE THAT THEY RECEIVED ^ AN ^ AND INJECTION FROM 1000 01:37:23.445 --> 01:37:28.934 THERE LOT RIGHT -- THERE IS NO EVIDENCE IN THIS RECORD OF THAT /WEUFPLT /WUFPLT THERE IS 1001 01:37:28.934 --> 01:37:33.595 NO EVIDENCE IN THIS RECORD BUT NO EVIDENCE ON IT EITHER WAY IS WHAT YOU ARE SAYING. IT 1002 01:37:33.595 --> 01:37:38.860 WASN'T ASKED. EDWARD D. ROGERS: OUTSIDE THE RECORD THERE WAS A ONE LAWSUIT IN 1003 01:37:38.860 --> 01:37:45.298 /TPHRA*R. ALLERGAN GOT SUMMARY JUDGMENT. THEY COULDN'T PROOF DEFECT OR CAUSATION. 1004 01:37:45.298 --> 01:37:51.199 SAME THING THAT IS HAPPENING HERE. BUT THAT ISSOUTS THE RECORD. PLAINTIFFS HAVEN'T 1005 01:37:51.199 --> 01:37:56.981 RAISED THAT: SAID OTHER SIMILAR INCIDENTS. HAVEN'T LOOKED TO WHAT THIS COURT SAID TO 1006 01:37:56.981 --> 01:38:02.913 LOOK TO AC /TAUPB, EPIDEMIOLOGY. JUSTICE PATTERSON: LET ME ASK YOU ABOUT NET 1007 01:38:02.913 --> 01:38:08.153 ^ OPINION ^ PIN. YOU HAD TWO OBJECTIONS WITH RESPECT TO THE PUNS OF THE DOCTORS. SEPARATE 1008 01:38:08.153 --> 01:38:13.944 DISTINCTION STAND /ARZ. NET ^ OPINIONS ^ PINS LONG TIME STANDARD BEEN AROUND A LONG TIME. 1009 01:38:13.944 --> 01:38:19.764 AC TAKEN SEVEN YEARS OLD AND TWO VERY /TKUFRPBT FUNCTIONS HERE. TALKING THE EXPERT'S 1010 01:38:19.764 --> 01:38:26.650 ^ OPINIONS ^ PINS IN ISOLATION WITHOUT REGARD TO THE RELIABILITY STANDARD OF AC TAKEN, 1011 01:38:26.650 --> 01:38:35.811 WHY WERE THESE TWO ^ OPINIONS ^ PINS NET ^ OPINIONS ^ PINS RAGE RAGE DAY THEY DID NOT 1012 01:38:35.811 --> 01:38:40.638 HAVE ACTUAL BASIS FOR WHAT THEY WERE SAYING. THEY ASSUMED IT WAS THERE. RIGHT. THEY 1013 01:38:40.638 --> 01:38:47.528 ASSUMED THIS SILICON PART WAS THERE IN THE INJECTION RIGHT BECAUSE SHE HAD /-PN'T IT 1014 01:38:47.528 --> 01:38:52.609 BEFORE SO HAD TO BE THIS TIME. THIS TIME IS /TKUFRPBT KIND OF METHODOLOGY THAT IS NOT 1015 01:38:52.609 --> 01:38:58.621 A /REBG NEWSED METHODOLOGY. DIFFERENTIAL DIAGNOSIS IS RECOGNIZED BUT NOT THIS TIME IT 1016 01:38:58.621 --> 01:39:05.063 IS /TKEUFPT /WUFPLT /WEUFPLT NOT MADE UP EXISTENCE OFSY CONE PART CORRECT. THERE WAS SILICONE 1017 01:39:05.063 --> 01:39:12.949 PART IN TWO POINT TWO PART. YOU ARE SAYING THEY COULDN'T ESTABLISH THAT IT WAS HER TWO 1018 01:39:12.949 --> 01:39:18.352 POINT TWO PERCENT. IT SOUND LIKE ARGUING BROADLY. THEY TOTALLY MADE UP THERE WAS NO 1019 01:39:18.352 --> 01:39:24.074 SILL PHONE /KARLT AT ALL. THEY DID HAVE PACKETS BUT COULDN'T SHOW THAT IT WAS 27 POINT 1020 01:39:24.074 --> 01:39:29.589 TWO PERCENT. IT IS POSSIBLE THAT IT WAS IN HER ISLAND WOULD BE NORMAL NOT TO SEE IT, 1021 01:39:29.589 --> 01:39:34.101 CORRECT. EDWARD D. ROGERS: YOUR HONOR. DON'T MEAN TO GIVE IMPRESSION THAT THERE 1022 01:39:34.101 --> 01:39:40.218 WAS NOT ANY OTHER EFFORTS WHATSOEVER. LET'S TALK ABOUT WHAT THEIR BASIS WAY TO SAY THAT 1023 01:39:40.218 --> 01:39:45.980 THERE WAS DEFECT. RIGHT. THEIR BASIS TO SAY THIS THIS ONE WAS DEFECTIVE WAS BECAUSE 1024 01:39:45.980 --> 01:39:51.673 SHE HAD GONE PRIOR INJECTIONS AND THIS TIME THERE MUST HAVE BEEN SOMETHING CURRENT SO 1025 01:39:51.673 --> 01:39:58.964 SHE MUST HAVE GOTTEN ONE THE ONES WITH THE SILICONE PART. THAT IS THERE REASON /HRUFPLT 1026 01:39:58.964 --> 01:40:02.800 /TPHEUFPLT /TPHUFPLT THAT MUCH IS TRUE. EDWARD D. ROGERS: THAT MUCH IS TRUE. 1027 01:40:02.800 --> 01:40:10.226 VERY ANECDOTE TAL RIGHT. THERE IS THE SIGNS TO ESTABLISH THAT. DOCTORS DOING /TK-FGS 1028 01:40:10.226 --> 01:40:15.983 I GO IS IN PRACTICE. THEY GOT A PATIENT AND HAVE TO DO SOMETHING. THEY DO THIS DIFFERENTIAL 1029 01:40:15.983 --> 01:40:21.185 DIAGNOSIS AND SAY THIS IS MOST LIKELY THING IT COULD BE SO I TREAT IT THIS WAY. THAT IS 1030 01:40:21.185 --> 01:40:27.931 NOT THE LEVEL OF SCIENTIFIC MEDICAL CERTAINTY THAT AC /TAUPB /REURTS. JUSTICE 1031 01:40:27.931 --> 01:40:31.609 FASCIALE: THAT IS ONE ERRORS THAT YOU SAY JUDGE MADE BY FAIL TO CONDUCT ^ AN ^ AND AC 1032 01:40:31.609 --> 01:40:38.446 TAKEN HEARING TO ADDRESS THE RELIABILITY OF THE SIGNS UNDERLYING THAT METHODOLOGY. 1033 01:40:38.446 --> 01:40:42.127 EDWARD D. ROGERS: YOUR HONOR WE SAY THAT THE TRIAL COURT DID NOT CONDUCT THE PROPER ANALYSIS 1034 01:40:42.127 --> 01:40:48.050 UNDER AC TAKEN BUT WE MADE THE AC TAKEN ARGUMENT. THEY SUBMITTED ALL THE EVIDENCE THAT 1035 01:40:48.050 --> 01:40:55.098 THEY SAID ON OKAY /TAUPB ARGUMENT. THE JUDGE DIDN'T RULE ON AC TAKEN ARGUMENT IN THE 1036 01:40:55.098 --> 01:40:59.798 TRIAL COURT RULING DOESN'T MEAN THAT THE RECORD WAS INSUFFICIENT TO MAKE THAT RULING. 1037 01:40:59.798 --> 01:41:04.313 THE APPELATE DIVISION FOUND THAT RECORD WAS /STPUGS TO MAKE THAT RULING /RAOUGT AND THE 1038 01:41:04.313 --> 01:41:10.505 QUESTION IS DOES THERE ALWAYS NEED TO BE A 104 HEARING. JUSTICE PATTERSON: 1039 01:41:10.505 --> 01:41:15.064 RESPECTFULLY COUNSEL IT IS MORE THAN THAT. THAT IS TRIAL COURT NEVER MADE THE GATE KEEPING 1040 01:41:15.064 --> 01:41:21.801 FINDING WITH RESPECT TO THE ADMISSIBILITY OF THESE /SPERLTS UNDER SEVEN ZERO TWO. IT IS 1041 01:41:21.801 --> 01:41:27.498 JUST NOT THERE. YOU KNOW P IF SOMEONE COULD IDENTIFY SOMEWHERE WHERE IT'S OUT THE RECORD. 1042 01:41:27.498 --> 01:41:32.525 IT IS JUST NOWHERE IN THIS RECORD THAT THE TRIAL COURT WENT THROUGH THAT ANALYSIS. NOR 1043 01:41:32.525 --> 01:41:40.936 DID THE PLAINTIFF PROFFER EFFORTS GEARED TOWARDS THAT TEST. IT IS AS IF THE TEST DIDN'T 1044 01:41:40.936 --> 01:41:47.396 EXIST AS TO WHAT HAPPENED IN THE TRIAL COURT. THINK YOU ALREADY ARGUED THAT THAT'S ERROR. 1045 01:41:47.396 --> 01:41:49.396 EDWARD D. ROGERS: YES YOUR HONOR THE QUESTION IS. JUSTICE PATTERSON: 1046 01:41:49.396 --> 01:41:55.568 ARE YOU REALLY SAYING THAT THEY PRESENTED ^ AN ^ AND AC TAKEN PRESENTATION GEARED TO THE 1047 01:41:55.568 --> 01:42:01.001 AC TAKEN FACTORS. EDWARD D. ROGERS: YES. AS BEST THEY COULD WITH THE EVIDENCE 1048 01:42:01.001 --> 01:42:08.291 THAT WAS AVAILABLE TO THEM, RIGHT. THEY -- WHAT EFFORTS -- ASK THEM ON BEE /TPWUT ALL 1049 01:42:08.291 --> 01:42:14.472 WHAT EVIDENCE ARE YOU GOING TO SUBMIT IF WE REVERSE THIS FOR 104 HEARING. IS YOUR EXPERT 1050 01:42:14.472 --> 01:42:19.937 GOING TO SAY I HAVE STUDY THAT /SOES SILICONE PARTS DO THIS. JUSTICE NORIEGA: 1051 01:42:19.937 --> 01:42:26.212 IF THEY DO WOULD YOU OBJECT TO THAT IN SUBSEQUENT HEARING /PUFPLT /PEUFPLT IF THEY COME 1052 01:42:26.212 --> 01:42:30.358 UP WITH NEW INFORMATION. EDWARD D. ROGERS: IF HE COME UP WE MAKE OBJECTIONS 1053 01:42:30.358 --> 01:42:37.063 LINKED DISCLOSURES. RIGHT. AT THE END OF DAY WHY DO THEY GET SECOND BITE AT THE A.M. 1054 01:42:37.063 --> 01:42:41.168 WHEN PRESENTED WITH THE ARGUMENTS. KNEW THE EVIDENCE THEY NEEDED TO SUBMIT. THE TRIAL 1055 01:42:41.168 --> 01:42:47.459 COURT -- BECAUSE TRIAL COURT DIDN'T GAUGE IN RIGHT ANALYSIS THEY GET A DO OVER /TPUFPLT 1056 01:42:47.459 --> 01:42:52.260 FIFTH AMENDMENT DIDN'T ENGAGE IN ANY ANALYSIS. WE DON'T KNOW THE METHODOLOGY THAT IS 1057 01:42:52.260 --> 01:42:57.801 BEING ANNOUNCED AND PUT FORWARD. WE DON'T KNOW. EDWARD D. ROGERS: BECAUSE THERE 1058 01:42:57.801 --> 01:43:01.890 US NONE. WE KNOW FROM DEPOSITIONS BECAUSE ASKED QUESTIONS IN DEPOSITIONS. JUSTICE 1059 01:43:01.890 --> 01:43:06.278 FASCIALE: YOU ARE SAYING THAT BUT WHERE IS JUDGES FINDINGS. WHERE FINDINGS OF FACT ^ AN ^ AND 1060 01:43:06.278 --> 01:43:11.106 /KOPBS COLLUSIONS OF LAW ON THAT SUBJECT MATTER. EDWARD D. ROGERS: APPELATE DIVISION 1061 01:43:11.106 --> 01:43:17.381 FOUND BASED ON REVISION OF THE RECORD THERE WAS NO TESTING OR PUBLICATION FOR PEER REVIEW 1062 01:43:17.381 --> 01:43:22.665 OR NO EVIDENCE OF THAT /TPUFPLT FIFTH AMENDMENT APPELATE DIVISION DID AC TAKEN HEARING. 1063 01:43:22.665 --> 01:43:26.949 EDWARD D. ROGERS: I GUESS WE NEED TO TAKE A STEP BACK AND SAY WHAT IS THAT HEARING 1064 01:43:26.949 --> 01:43:31.464 SUPPOSED TO BE FIFTH AMENDMENT /TPUFPLT THAT WAS MY INITIAL QUESTION TO YOU. IN ITS REMANDED 1065 01:43:31.464 --> 01:43:35.606 WHAT HAPPENS. EDWARD D. ROGERS: IN THIS PARTICULAR ^ INSIDE ^ INSTANCE I ASSUME 1066 01:43:35.606 --> 01:43:39.370 THEY ARE GOING TO SUBMIT THE EXACT SAME EVIDENCE. JUSTICE NORIEGA: THAT WAS 1067 01:43:39.370 --> 01:43:43.924 MY QUESTION WAS GOING TO ASK BEFORE YOUR ANSWER TO THAT TWICE NOW IT WOULD BE THE SAME 1068 01:43:43.924 --> 01:43:48.932 COMPACT HEARING YOU MENTIONED THAT THERE WAS -- THERE IS SCIENTIFIC EVIDENCE THAT THE 1069 01:43:48.932 --> 01:43:56.473 DEFENSE HAS THAT YOU WOULD PUT-UP AGAINST ANY SCIENTIFIC EVIDENCE THAT THEY MIGHT SUBMIT 1070 01:43:56.473 --> 01:44:02.328 ROCK RON WE SUBMITTED IT LAT TIME. IT IS IN THE RECORD. /TPHEUFPLT /TPHUFPLT YOU WOULD 1071 01:44:02.328 --> 01:44:06.928 ^ CONTINUE ^ TIN TO RELY ON THAT AND/OR THAT IN AC TAPE CONTEXT. EDWARD D. ROGERS: 1072 01:44:06.928 --> 01:44:13.504 IF THEY WERE LOUD TO HAVE DO OVER WE RELY ON STUDY TO SHOW THAT SILICONE PARTICULATE 1073 01:44:13.504 --> 01:44:18.438 DOESN'T SHOW THAT. JUSTICE NORIEGA: DO OVER PRESUPPOSESED THE JUDGE MADE THOSE 1074 01:44:18.438 --> 01:44:24.123 FINDINGS TO BEGIN WITH /ROPBL RON DO OVER IN THEIR ABILITY TO /THO MAKE A PRESENTATION. 1075 01:44:24.123 --> 01:44:30.488 IF YOU REMAND TO MAKE FINDINGS UPON THE LORD THAT EXISTED. THAT IS ONE THING. RIGHT. 1076 01:44:30.488 --> 01:44:35.688 JUSTICE PATTERSON: AS A READ AC TAKEN THERE IS NO ONE HUNDRED PERCENT /RURPLT 1077 01:44:35.688 --> 01:44:41.170 OF A 104 HEARING. EDWARD D. ROGERS: AGREE /PEUFPLT /PUFPLT SO PRESUMABLY YOU 1078 01:44:41.170 --> 01:44:45.467 WOULD HAVE THE OPPORTUNITY TO ARGUE THE TRIAL COURT UNDER AC TAKEN THERE IS NO NEED FOR 1079 01:44:45.467 --> 01:44:51.094 A 104 HEARING BUT TRIAL COURTS WANT A 104 HEARING THEN EVERYBODY SUBMITS THEIR EVIDENCE. 1080 01:44:51.094 --> 01:44:59.726 BUT THERE IS NOT EVEN BEEN A /PROFRZ /HAOERZ OF THE BASIS -- YOU DON'T -- NOTHING HAPPENS 1081 01:44:59.726 --> 01:45:05.879 UNTIL THERE IS A PROFFER BY THE PROPONENT OF THE EXPERT TO TRY TO GET THE EXPERT TESTIMONY TO 1082 01:45:05.879 --> 01:45:10.784 BE ADMISSIBLE. SO THAT IS THE STARTING POINT BEFORE THE TRIAL COURT. AND THAT DIDN'T 1083 01:45:10.784 --> 01:45:16.232 OCCUR. ALL OF THE STEPS THAT MAY OR MAY NOT OCCUR IN AC TAKEN ANALYSIS SPECIFICALLY OR 1084 01:45:16.232 --> 01:45:21.338 104 HEARING NO DETERMINATION AS TO ^ WHETHER ^ WEATHER ONE WAS NECESSARY P NO HEARING. 1085 01:45:21.338 --> 01:45:27.055 NO ACTUAL FINDINGS. NONE OF IT HAPPENED BEFORE THE TRIAL COURT. EDWARD D. ROGERS: 1086 01:45:27.055 --> 01:45:33.923 YOUR HONOR, AT THE END OF DAY YOU STARTED WITH THE FACT THAT PLAINTIFF DID NOT SUBMIT 1087 01:45:33.923 --> 01:45:40.022 ANYTHING FOR THAT AND THAT IS WHERE I THINK WE WOULD DID I /SRURPBLG. RIGHT. WE FILED 1088 01:45:40.022 --> 01:45:46.127 OUR MOTION BASED UPON AC TAKEN, RIGHT. WE EXPLAINED WHY THEY DID NOT COMPLY WITH THE 1089 01:45:46.127 --> 01:45:52.313 AC /TAUPB DAUBERT FACTORS. THEY CAME FORWARD WITH THEIR RESPONSE AND THEIR EVIDENTIARY 1090 01:45:52.313 --> 01:45:57.159 POSITION. JUSTICE PATTERSON: YOU MOVED FOR RECONSIDERATION ^ AN ^ AND POINT 1091 01:45:57.159 --> 01:46:02.046 HAD OUT TO THE TRIAL COURT IF I AM CORRECTLY READING THAT TRANSCRIPT THAT THE PROPER 1092 01:46:02.046 --> 01:46:08.065 PROCESS HAD NOT HAPPENED. EDWARD D. ROGERS: CORRECT, YOUR HONOR PAT. 1093 01:46:08.065 --> 01:46:11.102 JUSTICE PATTERSON: THEY DENIED CONSIDERATION. EDWARD D. ROGERS: THE TROWEL COURT 1094 01:46:11.102 --> 01:46:14.153 DID NOT EVALUATE THE RECORD ^ AN ^ AND DETERMINE WHETHER OR NOT THE ^ OPINIONS ^ PINS 1095 01:46:14.153 --> 01:46:18.013 WERE RELIABLE. JUSTICE PATTERSON: EXACTLY. SO YOU SAID ON RECONSIDERATION 1096 01:46:18.013 --> 01:46:24.971 CORRECT ME IF I AM WRONG THAT THE PROPER PROCESS HAS NOT BEEN FOLLOWED HERE AND WE THINK 1097 01:46:24.971 --> 01:46:29.924 YOU SHOULD FOLLOW IT BEFORE YOU MAKE A DETERMINATION THAT THESE ARE ADMISSIBLE AND 1098 01:46:29.924 --> 01:46:35.560 THAT SUMMARY JUDGMENT SHOULD THEREFORE BE DENIED ^ AN ^ AND TRIAL COURT DID NOT GIVE YOU 1099 01:46:35.560 --> 01:46:39.751 THAT RELIEF. EDWARD D. ROGERS: RIGHT. /RAOUGT. WE ASKED THE TRIAL COURT TO 1100 01:46:39.751 --> 01:46:43.238 GO THROUGH AC TAKEN ANALYSIS ^ AN ^ AND TRIAL COURT TO DETERMINE WHETHER OR NOT THERE 1101 01:46:43.238 --> 01:46:48.799 WAS RELIABILITY. TRIAL COURT SAID I ALREADY FOUND THESE ARE ADMISSIBLE. I AM LETTING 1102 01:46:48.799 --> 01:46:56.367 IT IN /PEUFPLT /PUFPLT YOU ARGUE THAT THAT WAS ^ AN ^ AND ARGUE ^ AN ^ AND ERROR BY TRIAL 1103 01:46:56.367 --> 01:47:02.717 COURT. EDWARD D. ROGERS: THAT ERROR BY TRIAL COURT CORRECTED BY APPELATE DIVISION 1104 01:47:02.717 --> 01:47:07.041 /HEUFPLT /HUFPLT I UNDERSTAND HOW THAT WAS DONE. BUT SHOULD THAT BE PROCESS THAT THE 1105 01:47:07.041 --> 01:47:14.302 APPELATE DIVISION REALLY WAYS INTO THAT DEGREE OF SPECIFICITY. LOOK BACK AT /KEPL /-P 1106 01:47:14.302 --> 01:47:20.442 SAYS SOMETHING /TKUFRPBT. IT SAYS THERE IS A BENEFIT OF ^ AN ^ AND ORDINARILY ONE ZERO 1107 01:47:20.442 --> 01:47:26.180 4 PERCENT EVEN IN A SITUATION WHERE DEPOSITIONS HAVE ALREADY BEEN TAKEN. TRUST ME I AM 1108 01:47:26.180 --> 01:47:33.103 SYMPATHETIC TO YOUR ARGUMENT BUT ALSO HEAR YOUR ARGUMENT AS LOOK ALL THE INGREDIENTS ARE 1109 01:47:33.103 --> 01:47:38.979 HERE. WHAT /KEPL /-P SAYS PUT THEM TOGETHER P PUT THEM TOGETHER IN ORDINARILY COMPREHENSIVE 1110 01:47:38.979 --> 01:47:43.801 WITH A. PUT THEM TOGETHER THAT GIVES THE JUDGE ^ AN ^ AND OPPORTUNITY TO ASK WHATEVER 1111 01:47:43.801 --> 01:47:49.356 QUESTIONS MAYBE /PWEGD WITH REGARD TO THE JUDGE. AND SO I UNDERSTAND THAT ALL THE INGREDIENTS 1112 01:47:49.356 --> 01:47:55.807 ARE THERE BUT FEELS LIKE /KEPL /-P NO /KEPL /-P IS PREAC TAKEN BUT FEELS LIKE THERE IS 1113 01:47:55.807 --> 01:48:00.513 A SIGNIFICANT BENEFIT TO PUTTING ALL OF THIS TOGETHER IN ONE HEARING BEFORE THE JUDGE 1114 01:48:00.513 --> 01:48:07.002 ^ AN ^ AND DOING IT IN ^ AN ^ AND ORDINARILY RATIONAL PRESENTATION. AND IT FEELS LIKE 1115 01:48:07.002 --> 01:48:14.960 AC TAKEN JUST ADDS ON TO THAT THE NEED FOR WHAT ANALYSIS HAS TO OCCUR THERE. EDWARD 1116 01:48:14.960 --> 01:48:20.448 D. ROGERS: THAT'S EXACTLY WHAT SHOULD BE HAPPENING YOUR HONOR, RIGHT. I GUESS THE QUESTION 1117 01:48:20.448 --> 01:48:26.682 IS THIS CASE THE VEHICLE FOR THIS COURT TO SAY THAT BASICALLY YOU ALMOST ALWAYS NEED A 1118 01:48:26.682 --> 01:48:32.125 104 HEARING BECAUSE YOU NEED THAT ORDINARILY PRESENTATION BECAUSE JUST DOESN'T COME OUT 1119 01:48:32.125 --> 01:48:37.276 IN JUST SUBMISSION OF DEPOSITIONS ^ AN ^ AND SUBMISSION OF STUDIES, RIGHT. 1120 01:48:37.276 --> 01:48:41.363 JUSTICE PATTERSON: WE HAVE MORE HERE THAN THAT. WE DON'T HAVE ANY DECISION. WE DON'T 1121 01:48:41.363 --> 01:48:46.486 HAVE ANY OF THE STEPS THAT WERE NECESSARY TO TAKE PLACE ^ AN ^ AND MOST IMPORTANTLY APPELLATE 1122 01:48:46.486 --> 01:48:53.216 DIVISION'S RULE BY TRIAL COURTS AND NO DECISION ON TRIAL COURT ON A MOTION THAT YOU MADE 1123 01:48:53.216 --> 01:49:00.155 AND UNDERSTAND THAT YOU TAKE A WON ^ AN ^ AND RUN OUT COURTHOUSE. AND THAT YOU ARE NOT 1124 01:49:00.155 --> 01:49:07.074 GOING TO COME BACK ^ AN ^ AND COMPLAIN BUT WITH RESPECT TO HOW THIS PLAYED OUT OR ADVERSARY 1125 01:49:07.074 --> 01:49:13.184 WOULDN'T BECAUSE THEY PREVAILED. BUT YOU WENT BACK ON RECONSIDERATION AND SAID THE PROCESS 1126 01:49:13.184 --> 01:49:20.399 WAS NOT FOLLOWED HERE. AND SO WHEN YOU SUGGEST IT IS A DO OVER THAT WE ARE DISCUSSING 1127 01:49:20.399 --> 01:49:27.109 HYPOTHETICALLY, THAT IS THE ARGUMENT YOU MADE BEFORE THE TRIAL COURT. EDWARD D. 1128 01:49:27.109 --> 01:49:31.352 ROGERS: WE ASKED THE TRIAL COURT TO GO THROUGH THE ANALYSIS THAT THE APPELATE DIVISION 1129 01:49:31.352 --> 01:49:36.969 WENT THROUGH. THAT TRIAL COURT SHOULD HAVE GONE THROUGH CORRECT. BECAUSE WE /URPBLD 1130 01:49:36.969 --> 01:49:47.418 THE TRIAL COURT TO GO THROUGH THAT ANALYSIS AND BECAUSE WE /URPBLDZ PLATE COURT HAD THIS 1131 01:49:47.418 --> 01:49:53.464 VERY LENGTHY DAUBERT ANALYSIS BECAUSE ONLY DISCUSSED THIS IN 3 PAGE HE IS IN THE ^ 1132 01:49:53.464 --> 01:49:56.681 OPINION ^ PIN OR TWO PAGE HE IS. EDWARD D. ROGERS: IT WAS COUPLE OF PAIN HE IS 1133 01:49:56.681 --> 01:50:01.825 BECAUSE THERE WAS NOTHING SUBMITTED TO SUPPORT IT. THAT IS WHY /WUFPLT /WUFPLT JUST SEE 1134 01:50:01.825 --> 01:50:07.455 THE PLAINTIFFS EXPERT WOULD NOT QUOTE PASS MUSTER UNDER DAUBERT. EDWARD D. ROGERS: 1135 01:50:07.455 --> 01:50:13.458 SAID ON LAST PAGE BECAUSE DIDN'T DO TESTING PUBLISH IT FOR PEER REVIEW. DIDN'T 1136 01:50:13.458 --> 01:50:19.664 DEMONSTRATE /WEUFPLT /WUFPLT IF THE TRIAL COURT HAD NOT A/PHRAOUD THE AGE /SUS AT ALL AND 1137 01:50:19.664 --> 01:50:24.137 YOU ARE SAYING IT IS FINE THAT THE TRIAL COURT DIDN'T DO BECAUSE THE APPELATE DIVISION 1138 01:50:24.137 --> 01:50:29.776 DID IT THAT DOESN'T LOOK LIKE A/PHRAOUG THE ANALYSIS. THAT LOON LIKE EXTRA ORDINARILY 1139 01:50:29.776 --> 01:50:36.809 SHORT DISCUSSION OF THE ANALYSIS. EDWARD D. ROGERS: BECAUSE OF THE EXTRA 1140 01:50:36.809 --> 01:50:41.448 ORDINARILY SMALL EVIDENTIARY SUBMISSION COMMITTED BY PLAINTIFFS WHERE THEY ONLY RELY ON 1141 01:50:41.448 --> 01:50:46.646 RECALL THEY ARE E- LETTER THAT YOUR HONOR HAD TALKED ABOUT. THEY HAVE SUBMITTED NOTHING 1142 01:50:46.646 --> 01:50:51.957 ELSE TO SUPPORT THEIR PUN ON CAUSATION /WEUFPLT /WUFPLT THEY SUBMITTED MEDICAL RECORDS 1143 01:50:51.957 --> 01:50:56.957 TO SHOW SHE HAD GOTTEN THE SHOT. IT IS NOT TRUE THAT THERE IS NOTHING ELSE ACCEPT TO THE 1144 01:50:56.957 --> 01:51:01.440 ONE RECALL LETTER. THERE IS ALSO TESTIMONY FROM CORPORATE REPRESENTATIVE ANN SMITHED 1145 01:51:01.440 --> 01:51:08.272 TO THE FDA AND DID SUBMIT MEDICAL RECORDS AND DID DETAIL WHY THEY DIDN'T THINK IT COULD HAVE 1146 01:51:08.272 --> 01:51:14.759 BEEN THIS, THAT AND THE OTHER THING. SO I AM NOT SURE -- HE HAVE BEEN IN DEPOSITION TESTIMONY 1147 01:51:14.759 --> 01:51:24.731 THERE WAS A DISCUSSION I THINK I MENTIONED IT BEFORE FROM DOCTOR LASSO OWE /HRAL ASTAR 1148 01:51:24.731 --> 01:51:37.852 Y EXPLAINING WHY HE DID NOT THINK FOR EXAMPLE IT COULD HAVE BEEN FROM A PRIOR -- THAT IT 1149 01:51:37.852 --> 01:51:44.199 COULD NOT HAVE BEEN FROM CATERACT SURGERY IN 2009. IT COULD NOT HAVE BEEN FROM THE /TRAB 1150 01:51:44.199 --> 01:51:54.775 CUE LEX TOMB I SURGERY. RETISERT IMPLANTED. NOT THAT THERE ZERO FACTS AT ALL. THERE 1151 01:51:54.775 --> 01:51:58.685 WAS DEPOSITION TESTIMONY ABOUT WHY HE THOUGHT IT COULD HAVE BEEN OTHER THINGS. CORRECT. 1152 01:51:58.685 --> 01:52:04.195 EDWARD D. ROGERS: IT WAS ALL BASED TEMPORAL ASSOCIATION. ALL THOSE THINGS 1153 01:52:04.195 --> 01:52:08.489 HAPPENED IN THE PAST AND COULD HAVE CAUSED. BUT THAT ^ OPINION ^ PIN WAS NOT SUPPORTED 1154 01:52:08.489 --> 01:52:13.013 BY FACTS IN THE RECORD. TOWNSEND ^ OPINION ^ PIN THAT THIS COURT STATED STATED CANNOT 1155 01:52:13.013 --> 01:52:18.442 GIVE AN OPINION /KRUBGTED BY FACTS IN THE RECORD AND THAT IS EXACTLY WHAT HAPPENED HERE 1156 01:52:18.442 --> 01:52:23.616 YOUR HONOR. RIGHT. YOU HAVE A SITUATION WHERE THEY ARE ARGUING THAT THERE IS PROOF OF 1157 01:52:23.616 --> 01:52:30.051 GENERAL CAUSATION RIGHT. WHEN FACTS IN THE RECORD THAT ABSOLUTELY DISPROVE THAT /WUFPLT 1158 01:52:30.051 --> 01:52:34.801 /WUFPLT THERE COULD NEVER BE A QUESTION OF FACT EVEN WITH ALL. EDWARD D. ROGERS: 1159 01:52:34.801 --> 01:52:44.605 ON ISSUE OF GENERAL CAUSATION THERE IS ABSOLUTELY ISSUE OF FACT ON THIS ISSUED. NOTHING 1160 01:52:44.605 --> 01:52:51.292 THAT IS -- ANY SIGNS THAT SAYS THIS COULD CAUSE IT. JUSTICE NORIEGA: THIS IS 1161 01:52:51.292 --> 01:52:57.610 WHERE I AM HAVING /PRUBL TROUBLE. JUST PROCEDURALLY WHAT JUSTICE PATTERSON WAS 1162 01:52:57.610 --> 01:53:03.051 ASKING YOU ON RECONSIDERATION YOU ARE ASKING THE COURT TO RECONSIDER IN LIGHT OF AC TAKEN 1163 01:53:03.051 --> 01:53:11.385 TO PERFORM THE TEST, LOOK FOR THE FACTORS, EXAMINE THE WEIGHT OF THE TESTING, 1164 01:53:11.385 --> 01:53:15.941 PUBLICATION ACCEPTANCE IN SCIENTIFIC COMMUNITY ^ AN ^ AND WHETHER OR NOT ANY OF THAT WAS 1165 01:53:15.941 --> 01:53:22.062 DONE. COURT SAID NO WHICH DID NOT ENGAGE IN THAT REVIEW AND APPELATE DIVISION IN ONE 1166 01:53:22.062 --> 01:53:29.541 SENSE SAYS THE RECORD DEVOID OF (READING). SHOULD WE THEN REVIEW THAT AND SOMETIMES 1167 01:53:29.541 --> 01:53:36.075 REPLY SAY THAT IS ENOUGH. THAT THE /AEPDZ ONE SENSE REVIEW OF A TRIAL COURT WHERE THAT 1168 01:53:36.075 --> 01:53:43.168 HASN'T BEEN DONE AND YOUR MOTION FOR RECONSIDERATION HIGHLIGHTS THAT THAT THAT 1169 01:53:43.168 --> 01:53:47.379 SHOULD JUST DEFINE THE ISSUE. EDWARD D. ROGERS: YES YOUR HONOR BECAUSE WHAT 1170 01:53:47.379 --> 01:53:52.773 -- THIS IS NOT A SITUATION TRIAL COURT MADE A CREDIBILITY DETERMINATION BASED UPON LIFE 1171 01:53:52.773 --> 01:53:57.686 TESTIMONY, RIGHT. THE DETERMINATIONS THAT ARE BEING MADE HERE ARE BASED UPON THE DEPOSITION 1172 01:53:57.686 --> 01:54:01.964 TESTIMONY ^ AN ^ AND DOCUMENTS THAT ARE BEING SUBMITTED. RIGHT. WE SAID THAT THE TRIAL 1173 01:54:01.964 --> 01:54:07.157 COURT SHOULD APPLY AC TAKEN FACTORS TO THE EVIDENTIARY RECORD THAT EXISTED ^ AN ^ AND 1174 01:54:07.157 --> 01:54:11.519 RESULT WOULD BE THAT THE ^ OPINIONS ^ PINS WERE NOT RELIABLE. RIGHT. THE TRIAL COURT 1175 01:54:11.519 --> 01:54:15.792 SAID DENIED I THINK THESE ^ OPINIONS ^ PINS SHOULD BE ADMITTED /PUFPLT /PEUFPLT TRIAL 1176 01:54:15.792 --> 01:54:22.917 COURT NEVER DISCUSSED RELIABILITY. I THOUGHT YOU AGREE WITH US THAT THAT WAS ^ AN ^ AND 1177 01:54:22.917 --> 01:54:27.500 ERROR BY TRIAL COURT. EDWARD D. ROGERS: IT WAS ERROR BY TRIAL COURT IN MULTIPLE 1178 01:54:27.500 --> 01:54:33.665 RESPECTS YOUR HONOR AND I AGREE THAT THE ORDER DID NOT GO THROUGH THE AC /TAUPB ANALYSIS 1179 01:54:33.665 --> 01:54:40.003 /PUFPLT /PEUFPLT DIDN'T STATE AC /TAUPB. DIDN'T DEAL WITH THE FACTORS. IT IS A NET -- 1180 01:54:40.003 --> 01:54:45.348 I'M NOT SAYING THIS WAS RIGHT BUT TRIAL COURT VIEWED ENTIRE QUESTION OF THE ADD MISS 1181 01:54:45.348 --> 01:54:53.712 BULLET OF THE EXPERTS TO SAY UNDER THE NET PUN UME /PWREL ATHAT'S WHAT THE TRIAL -- YOU 1182 01:54:53.712 --> 01:54:59.696 KNOW I AM AT LEAST READING WHAT THE TRIAL COURT SAID /ROPBLG RON UNDERSTAND. 1183 01:54:59.696 --> 01:55:03.814 JUSTICE PATTERSON: YOU /-RG AUD THAT WAS ERROR IN RECONSIDERATION AND PROPERLY SO. AND 1184 01:55:03.814 --> 01:55:11.279 YOU ARGUED IN THE APPELATE DIVISION THAT WAS ERROR. SO ARE YOU SAYING NOW THAT THERE 1185 01:55:11.279 --> 01:55:18.690 WAS REALLY A PROPER AC TAKEN EVALUATION DONE BY THE TRIAL COURT AND WE JUST DIDN'T KNOW 1186 01:55:18.690 --> 01:55:24.885 ABOUT IT BECAUSE IT IS NOT ANYWHERE IN THE TRIAL COURT'S ^ OPINION ^ PIN. EDWARD D. 1187 01:55:24.885 --> 01:55:30.967 ROGERS: I AM NOT SAYING THAT. I DON'T KNOW WHAT WAS GOING ON TRIAL COURT'S DECISION. 1188 01:55:30.967 --> 01:55:38.373 /PEUFPLT /PUFPLT ONLY ONE EXPERT DISCUSSED THAT PUP AND THAT IS NET ^ OPINION ^ PIN. 1189 01:55:38.373 --> 01:55:42.183 EDWARD D. ROGERS: YOUR HONOR I GUESS ULTIMATE QUESTION IS RIGHT, IS IT APPROPRIATE 1190 01:55:42.183 --> 01:55:47.650 ON THE /SURBGS HE IS OF THIS CASE ON THIS RECORD BASED UPON THE EVIDENTIARY SUBMISSIONS 1191 01:55:47.650 --> 01:55:52.949 ^ AN ^ AND LACK OF PROFFER OF ANYTHING KNEW OR ADDITIONAL THAT WOULD HAPPEN FOR THE COURT 1192 01:55:52.949 --> 01:55:59.334 TO REMAND FOR THE TRIAL COURT TO ENGAGE IN THE ANALYSIS THAT'S ALREADY BEEN ENGAGED IN 1193 01:55:59.334 --> 01:56:05.310 RIGHT. UNDERSTAND YOUR HONOR SAYS IT'S A SHORT ANALYSIS IN THE APPELATE DIVISION BECAUSE 1194 01:56:05.310 --> 01:56:10.473 THAT IS BECAUSE THE EVIDENCE IS SO SHORT FIFTH AMENDMENT /TPUFPLT I THINK /AEPDZ REJECTED 1195 01:56:10.473 --> 01:56:17.541 THE DIFFERENTIAL DIAGNOSIS METHODOLOGY SIMPLY BECAUSE THE PLAINTIFF ALLEGEDLY HAD 1196 01:56:17.541 --> 01:56:25.492 PRE-EXISTING MEDICAL CONDITIONS THAT IN THE APPELLATE DIVISION'S DECISION -- ^ OPINION ^ 1197 01:56:25.492 --> 01:56:31.692 PIN PROVIDED A BASIS FOR SAYING QUOTE THE DIFFERENTIAL DIAGNOSIS WAS THEREFORE 1198 01:56:31.692 --> 01:56:37.570 UNAVAILABLE -- UNA/SRAULG I AM SORRY. EDWARD D. ROGERS: RIGHT WHEN DOCTOR TESTIFIED 1199 01:56:37.570 --> 01:56:44.868 AND THIS IS ON PAGE ONE NINE SEVEN AND ONE NINE 86 DEFENDANTS APEN DEDUCTION AND ALL RISK 1200 01:56:44.868 --> 01:56:55.467 FACTORS DISCUSSED COULD HAVE LEAD TO RETINAL (READING) /TPUFPLT /TPUFPLT THAT IS NOT AC 1201 01:56:55.467 --> 01:57:00.531 TAKEN ANALYSIS ROCK /ROPBLG ANALYSIS THAN AC TAKEN IS WHETHER OR NOT THERE IS A RELIABLE 1202 01:57:00.531 --> 01:57:06.089 APPLICATION OF A METHODOLOGY TO BE ABLE TO DETERMINE. SO HERE THEY ARE USING DIFFEREN 1203 01:57:06.089 --> 01:57:12.553 TIAL DIAGNOSIS TO ELIMINATE CAUSES OF RETINAL DETACHMENT RIGHT. SO WE HAVE -- HE SHOULD 1204 01:57:12.553 --> 01:57:19.298 BE GOING THROUGH SCIENTIFIC BASIS TO BE ABLE TO SAY ALL THESE FACTORS ARE NOT WHAT CAUSED 1205 01:57:19.298 --> 01:57:24.377 U BUT TESTIFIES IN HIS DEPOSITION THAT ALL OF THOSE THINGS CAN ACTUALLY CAUSE IT ^ AN ^ AND 1206 01:57:24.377 --> 01:57:30.953 CAN'T RULE IT OUT AND HASN'T DONE IT ON SCIENTIFIC BASIS. WHY DO WE NEED TOO REMAND 1207 01:57:30.953 --> 01:57:36.079 IT WHEN WE KNOW ON THIS RECORD FIFTH AMENDMENT /TPUFPLT ASSUMING THE SIGNS THAT THAT 1208 01:57:36.079 --> 01:57:42.791 METHODOLOGY WOULD BE REASONABLE IT WOULD BE A QUESTION OF FACTOR THE INJURY. 1209 01:57:42.791 --> 01:57:48.449 EDWARD D. ROGERS: WHAT /SAOUPBS IF THEY /SPHUTED. NO SIGNS PROFFERED BY PLAINTIFF. ALL 1210 01:57:48.449 --> 01:57:56.239 THEY POINT TO ARE ALLERGAN DOCUMENTS THAT THEY CLAIM PROVE DEFECT AND CAUSATION. 1211 01:57:56.239 --> 01:58:04.021 RESPECTFULLY, THEY DON'T. RIGHT. I CAN UNDERSTAND THAT ALLERGAN DOCUMENTS USE THE 1212 01:58:04.021 --> 01:58:11.042 WORD DEFECT. ADMITTED. YOU KNOW. BUT EVEN SEW THE EVIDENCE SHOWS IT IS NOT OUTSIDE 1213 01:58:11.042 --> 01:58:15.991 MANUFACTURING SPECIFICATIONS. IF THAT IS ISSUE OF FACT LET'S GO TO WHETHER OR NOT THIS 1214 01:58:15.991 --> 01:58:21.001 PARTICULAR UNIT WAS ONE OF THE THE PERCENT THAT HAD THAT DEFECT. THE ONLY EVIDENCE IN THE 1215 01:58:21.001 --> 01:58:27.876 RECORD ON THAT IS THIS BACKWARDS USED OF THE DIFFERENTIAL DIAGNOSIS TO ELIMINATE OTHER 1216 01:58:27.876 --> 01:58:36.102 FACTORS TO SAY IT MUST HAVING THAT. EVEN THOUGH DOCTOR L TESTIFIED THAT THOSE OTHER FACTORS 1217 01:58:36.102 --> 01:58:40.990 WOULD HAVE BEEN TOO. THAT IS WHY SUMMARY JUDGMENT. JUSTICE PATTERSON: THAT 1218 01:58:40.990 --> 01:58:44.979 IS AN ARGUMENT THAT COULD BE /PHAUD ON SUMMARY JUDGMENT. EDWARD D. ROGERS: WE 1219 01:58:44.979 --> 01:58:49.898 DID MAKE IT ON SUMMARY JUDGMENT AND DID PREVAIL ON SUMMARY JUDGMENT IN THIS COMPACT RECORD. 1220 01:58:49.898 --> 01:58:57.928 THE LAW DOES NOT FAVOR SUPERFLUOUS ACTS. IF THIS COURT CAN LOOK AT THIS RECORD AND SAY 1221 01:58:57.928 --> 01:59:02.480 WITHOUT ANY PROFFER OF ANY ADDITIONAL STUDIES OR EVIDENCE THAT HAS BEEN MADE ON THIS RECORD 1222 01:59:02.480 --> 01:59:07.319 THAT TRIAL COURT COULD GO THROUGH AC /TAUPB ANALYSIS ^ AN ^ AND DECIDE THAT THERE WAS 1223 01:59:07.319 --> 01:59:12.148 SUFFICIENT EVIDENCE THAT THIS PARTICULAR UNIT HAD THE SILL THAN CONE ARTICULATE. THAT 1224 01:59:12.148 --> 01:59:21.270 DEL PHONE PART WOULD CAUSE INFLAMMATION THAT COULD LEAD TO VISION LOSS OR THAT ALL OF 1225 01:59:21.270 --> 01:59:27.122 THESE OTHER FACTORS WHICH THE EXPERTS ADMIT COULD HAVE CAUSED IT, THAT THEY WERE UNABLE 1226 01:59:27.122 --> 01:59:34.031 TO RULE ONLY THROUGH TEMPORAL PROXIMATE /UPLT WHICH THEY COURT SAID YES, IT IS A 1227 01:59:34.031 --> 01:59:38.871 CONSIDERATION BUT NOT DISPOSITIVE. THAT IS THE COLD RECORD BEFORE YOUR HONOR'S. THERE IS 1228 01:59:38.871 --> 01:59:46.034 NO WAY THAT THAT PASSES MUSTERS UNDER AC /TAUPB ANALYSIS AND TO REMAND FOR THE TRIAL COURT 1229 01:59:46.034 --> 01:59:52.643 TO SAY THAT AND THEN HAVE TO US GO THROUGH THAT WHOLE PROCESS THAT WOULD BE SUPERFLUOUS 1230 01:59:52.643 --> 01:59:59.169 ACT I SUBMIT. THEY HAVE NOT REQUESTED 104 HEARING UNTIL THEY LOST BECAUSE THEY NO 1231 01:59:59.169 --> 02:00:04.651 ADDITIONAL EVIDENCE. THEY HAVEN'T PROFFERED ANY ADDITIONAL EVIDENCE FOR 104 HEARING ^ AN ^ 1232 02:00:04.651 --> 02:00:13.471 AND ABSOLUTELY SUPERFLUOUS -- YOUR HONORS CAN WRITE ^ OPINION ^ PIN SAYING WE THINK THESE 1233 02:00:13.471 --> 02:00:18.363 ARE IMPORTANT. IN AC /TAUPB WE DIDN'T SAY YOU NEED 104 HEARING EVERY TIME. /RAOUGT. 1234 02:00:18.363 --> 02:00:24.199 WE /SPRAUPBD IN /KEPL /-P YOU NEED THESE HEARING WHICH THINGS ARE UNCLEAR. WHEN CONFUSING. 1235 02:00:24.199 --> 02:00:31.373 WHEN THEY HAVEN'T BE ADEQUATED EXPLAINED. THERE IS NOTHING ON THIS RECORD THAT IS CONFUSING. 1236 02:00:31.373 --> 02:00:39.650 NOTHING BEEN INADEQUATELY COMPLAINT. FORCING ALLERGAN TO DO THIS AGAIN WOULD BE 1237 02:00:39.650 --> 02:00:44.407 SUPERFLUOUS ACT THAT SHOULD NOT /P-B DONE. WE THINK PROPER TO A/TPURPL THE /AEPDZ AND, 1238 02:00:44.407 --> 02:00:49.008 YOUR HONOR GIVE INSTRUCTIONS ABOUT ONE ZERO HAD HEARINGS AND HOW AC TAKEN SHOULD BE DONE 1239 02:00:49.008 --> 02:00:55.209 WE TOTALLY UNDERSTAND THAT. BUT IN THIS PARTICULAR CASE WE DON'T THINK BLANKET RULE 1240 02:00:55.209 --> 02:01:01.510 REVERSE SUGGEST FOR -- IS THE CORRECT YOU RESULT HERE BECAUSE COULD LEAD TO UNNECESSARY 1241 02:01:01.510 --> 02:01:07.158 ONE ZERO 4 HEARINGS. TRIAL COURT THEN WOULD FEEL OBJECT /TKPWAUTED TO 104 HEARING IN 1242 02:01:07.158 --> 02:01:11.764 CASES WHEN THEY PLAINLY HAVE NO EVIDENCE TO BE ABLE TO SUPPORT IT. THOUGHT WOULD BE SU 1243 02:01:11.764 --> 02:01:18.053 PERFLUOUS ACT WHEN YOU HAVE NO STUDIES. THAT WOULD BE HOLDING IF YOU REVERSE THAT AND 1244 02:01:18.053 --> 02:01:22.987 WE SUBMIT WOULD NOT BE THE CORRECT JUST RESULT IN THIS PARTICULAR CASE. JUSTICE 1245 02:01:22.987 --> 02:01:35.936 PATTERSON: THANK YOU. ANY OTHER QUESTIONS. THANK YOU VERY MUCH /PUFPLT /PEUFPLT MISS 1246 02:01:35.936 --> 02:01:45.299 C. VARU CHILAKAMARRI: U.S. COMMERCE AND NEW JERSEY CIVIL JUSTICE COURT. THANK 1247 02:01:45.299 --> 02:01:51.900 FOR TAKING TIME TO HERE FROM US TO. WANT TO ASK THE COURT REINFORCE 3 ASPECT RELIABILITY. 1248 02:01:51.900 --> 02:01:58.447 CLARIFY NEW JERSEY 'S RELIABILITY TEST ALLIANCE WITH THE FED SEVEN ZERO 3 RECENTLY AMENDED 1249 02:01:58.447 --> 02:02:03.491 STANDARD WHICH I THINK JUST MAKES -- WOULD MAKE IT CLEAR IN THIS CASE ^ WHETHER ^ WEATHER 1250 02:02:03.491 --> 02:02:08.411 REMAND OR NOT AND WHAT THE COMPACT STEPS THE COURT SHOULD GO THROUGH. SECOND WE WOULD 1251 02:02:08.411 --> 02:02:16.680 ASK THE COURT CONFIRM THAT TEMPORAL PROXIMITY STANDING ALONG LOAN IS NOT RELIABLE BASIS 1252 02:02:16.680 --> 02:02:21.607 FOR GENERAL CAUSATION AND THEN FINALLY WE WOULD ASK THAT THE COURT MAKE CLEAR THAT RECALL 1253 02:02:21.607 --> 02:02:27.164 DOCUMENTS ARE NOT AUTOMATIC PER SE ADMISSION /-SZ OF CAUSATION. ^ AN ^ AND I HAD LIKE 1254 02:02:27.164 --> 02:02:31.626 TO WALK THROUGH EACH ONE AND HOPEFULLY CLARIFY A COUPLE OF POINTS DURING THE COLLOQUY. 1255 02:02:31.626 --> 02:02:37.519 ON FIRST ^ PEACE ^ PIECE AT NATIONAL LEVEL FEDERAL RULE SEVEN ZERO TWO WAS AMENDED 1256 02:02:37.519 --> 02:02:42.489 BECAUSE THERE WAS A NEED TO CLARIFY GATE KEEPING STANDARD IS ACTUALLY MULTI STEP PROCESS. 1257 02:02:42.489 --> 02:02:48.280 THINK AS THE QUESTIONS DEMONSTRATE IT IS CLEAR THAT THE GATE KEEPING FUNCTION APPLIES 1258 02:02:48.280 --> 02:02:53.490 NOT ONLY TO ENSURING THAT THERE IS RELIABLE FACT THAT THERE IS RELIABLE METHODOLOGY BUT 1259 02:02:53.490 --> 02:02:59.673 RELIABLE APPLICATION OF THAT METHODOLOGY TO THE FACTS. AND THE /PHEPLT TO SEVEN ZERO 1260 02:02:59.673 --> 02:03:05.147 TWO MAKES THAT CLEAR. IT IS CLARIFICATION NOT SUBSTANTIVE CHANGE BUT WE DO THINK LIKE 1261 02:03:05.147 --> 02:03:11.780 DELAWARE HIGH COURT THIS COURT COULD USE THIS CASE AS ^ AN ^ AND OPPORTUNITY TO CLARIFY 1262 02:03:11.780 --> 02:03:16.614 NEW JERSEY ALLIANCE WITH THE FEDERAL STANDARD IN THAT REGARD. THE LOCAL /PEUFPLT /PUFPLT 1263 02:03:16.614 --> 02:03:24.167 NOT RAISED BY ANY PARTY COUNSEL. VARU CHILAKAMARRI: NOT RAISED. THINK IT IS 1264 02:03:24.167 --> 02:03:29.045 CONSISTENT /PEUFPLT /PUFPLT NO SIMILAR AMENDMENT TO NEW JERSEY RULE 702. VARU 1265 02:03:29.045 --> 02:03:32.975 CHILAKAMARRI: THAT IS CORRECT. NEW JERSEY SEVEN ZERO TWO IS PRETTY ^ SPARS ^ SPARSE. 1266 02:03:32.975 --> 02:03:40.805 /STKOE WE THINK JUST LIKE DELAWARE COURT DID WOULDN'T BE SIGNIFICANT LIFT TO JUST CLARIFY 1267 02:03:40.805 --> 02:03:46.328 PER AC TAKEN ^ AN ^ AND OLD NOW SKI AND THOSE CASES THAT THAT STANDARD MEANS YOU HAVE 1268 02:03:46.328 --> 02:03:51.705 TO HAVE RELIABLE PLUCKS OF A METHODOLOGY TO THE FACTS. AND THAT IS PARTICULARLY IMPORTANT 1269 02:03:51.705 --> 02:03:57.367 FOR THE NATIONAL ^ AN ^ AND LOCAL BUSINESS COMMUNITY THAT WE REPRESENT BASED ON BELIEVE 1270 02:03:57.367 --> 02:04:03.901 THAT CLARIFY WAS NEEDED AT FEDERAL LEVEL ^ AN ^ AND STATE LEVEL. AND THIS CASE TRIALS 1271 02:04:03.901 --> 02:04:09.853 COURT'S DECISION DEMONSTRATES THE NEED TO ENSURE THAT UNSOUND SIGNS DOESN'T REACH INJURIES 1272 02:04:09.853 --> 02:04:15.462 ^ AN ^ AND PROTECTS THE MARKETPLACE. THERE WAS SOME DISCUSSION WITH THE RECORD. WANTED 1273 02:04:15.462 --> 02:04:22.740 TO POINT OUT COUPLE OF PLACES IN THE TRIAL COURT'S DECISION. THIS IS GOOD VEHICLE BUT 1274 02:04:22.740 --> 02:04:28.151 TRIAL COURT DECISION. KNOW THERE WAS QUESTION ABOUT WHETHER OR NOT THAT WAS RAISED P 1275 02:04:28.151 --> 02:04:36.119 SA SEVEN 3 THAT IS WHERE THE TRIAL COURTS INITIAL DECISION. THE NOTES NOTES THAT THE 1276 02:04:36.119 --> 02:04:44.104 DEFENDANT'S ARGUE THAT BOTH DOCTOR LEVELS TESTIMONY SHOULD BE /SKHRAO*UDED BECAUSE BOTH 1277 02:04:44.104 --> 02:04:55.868 EXPERT FAILED TO PLACE (READING). SO THINK THAT IS THE PLACE WHERE YOU SEE THAT THE TRIAL 1278 02:04:55.868 --> 02:05:04.399 COURT DID HAVE THE OBJECTION MADE AND THEN LATER ON IN THAT PUN PSA812 IS WHERE THE COURT 1279 02:05:04.399 --> 02:05:10.290 -- IT IS A LITTLE CONFUSING ^ AN ^ AND COURT HAD TWO DISCUSSIONS I THINK ABOUT THE EVIDENCE 1280 02:05:10.290 --> 02:05:15.399 ONE FINDING THAT THE EVIDENCE WAS SUFFICIENT BECAUSE THERE IS OBJECTIVE EVIDENCE THAT 1281 02:05:15.399 --> 02:05:30.793 THE SILICONE PART EXISTED. BUT ON PSA8 ONE THE CORD FINDS (READING) AND THEN THE COURT 1282 02:05:30.793 --> 02:05:36.335 IN THAT PAGE ^ AN ^ AND NEXT PAPER GOES ON TO TALK ABOUT WHAT THE -- WHAT THE EXPERT'S 1283 02:05:36.335 --> 02:05:43.726 LOOKED AT DRUGS THE MEDICAL RECORDS. BUT ALSO IMPORTANTLY THE RECALL DOCUMENT. SO /PUFPLT 1284 02:05:43.726 --> 02:05:49.528 /PEUFPLT I VIEWED THAT. TELL ME IF YOU DIS/TKPWRE AS PART THE NET ^ OPINION ^ PIN 1285 02:05:49.528 --> 02:05:55.893 DISCUSSION THE COURT WAS UNDER TAKING BASED UPON -- DID THE EXPERT SET FORTH THEIR BASIS 1286 02:05:55.893 --> 02:06:01.296 FOR THEIR ^ OPINIONS ^ PINS. I STAND THE WORD RELIABLE IS IN THERE BUT THERE IS -- DO 1287 02:06:01.296 --> 02:06:07.614 YOU AGREE THAT THERE IS NO AC TAKEN ANALYSIS IN THAT ^ OPINION ^ PIN. VARU 1288 02:06:07.614 --> 02:06:12.060 CHILAKAMARRI: DON'T THINK AC TAKEN DISCUSSION. THINK MAYBE THE WERE SMUSHED TOGETHER IN 1289 02:06:12.060 --> 02:06:17.400 TERMS IT IS NOT NET ^ OPINION ^ PIN BUT THE COURT SEEMED TO SUGGEST THAT THERE WAS BECAUSE 1290 02:06:17.400 --> 02:06:21.410 IS FOR THE ^ OPINION ^ PIN ^ AN ^ AND CITED TO MEDICAL RECORDS AND THE RECALL DOCUMENTS. 1291 02:06:21.410 --> 02:06:27.719 SO YOU KNOW I THINK MAYBE IT'S THE SAME THING BUT DIDN'T SITE THE AC TAKEN. THAT IS 1292 02:06:27.719 --> 02:06:32.758 TRUE. THOSE ARE PLACES I THINK SUGGEST THAT THE TRIAL COURT -- OBJECTION WAS RAISEDED 1293 02:06:32.758 --> 02:06:39.936 TRIAL COURT ADDRESSED IT ^ AN ^ AND GAVE /AEPDZ /STPHEUGS BASIS TO RULE AS IT DID. WE 1294 02:06:39.936 --> 02:06:46.276 WOULD -- NO OTHER QUESTIONS ON THAT I WOULD LIKE TO TURN TO THE TEMPORAL PROXIMITY IN THE 1295 02:06:46.276 --> 02:06:50.275 RECALL /PEUFPLT /PUFPLT DO YOUR /KHRAOUPBTS HAVE A POSITION WITH RESPECT TO ^ WHETHER ^ 1296 02:06:50.275 --> 02:06:59.317 WEATHER A 104 HEARING SHOULD OCCUR IN EVERY CASE, MOST CASES IN SOME SUBSET OF CASES. 1297 02:06:59.317 --> 02:07:02.726 VARU CHILAKAMARRI: THAT IS NOT ISSUE WE BRIEFED. THE GUIDEPOST IS MY UNDERSTANDING 1298 02:07:02.726 --> 02:07:10.695 THAT THAT IT WASN'T ASKED -- THE PLAINTIFFS DIDN'T ASK THE APPELATE DIVISION SORT OF IN 1299 02:07:10.695 --> 02:07:15.262 THE ALTERNATIVE. THEY CAN CORRECT ME IF I AM WRONG. DIDN'T SEE THAT DRESSED IN THE 1300 02:07:15.262 --> 02:07:19.877 APPELLATE DIVISION'S DECISION. DIDN'T ASK FOR THAT AS ALTERNATIVE REMEDY PERHAPS THEIR 1301 02:07:19.877 --> 02:07:27.920 WAY A WAY FOR COURT TO NOT REACH THAT DECISION BECAUSE HARMLESS ERROR WHATEVER YOU. THINK 1302 02:07:27.920 --> 02:07:32.207 TO ARGUE WHAT THEY SAID DIDN'T SEE ANYTHING IN THE RECORD OR BRIEFING HERE SUGGESTING 1303 02:07:32.207 --> 02:07:37.881 THAT THEY DO HAVE ANY ADDITIONAL EVIDENCE. SO, AGAIN, PERHAPS HARMLESS ERROR TYPE OF 1304 02:07:37.881 --> 02:07:44.163 ANALYSIS TO ASSIST THE COURT NOT REMAND FOR 104 HEARING. JUSTICE PATTERSON: 1305 02:07:44.163 --> 02:07:50.274 BUT YOU DO AGREE IT IS ERROR FOR COURT NOT TO CONDUCT ^ AN ^ AND AC TAKEN ANALYSIS IN 1306 02:07:50.274 --> 02:07:56.928 THIS CASE. VARU CHILAKAMARRI: I DON'T READ AC TAKEN AS SAYING THERE HAS TO BE 1307 02:07:56.928 --> 02:08:02.123 104 HEARING. JUSTICE PATTERSON: NO UME NOT /SAUG IS ZERO 4 HEARING OR NOT. 1308 02:08:02.123 --> 02:08:10.801 I AM NOT /AOE /KWAUTING 104 HEARING WITH AC TAKEN ANALYSIS. I AM ASKING YOU WHETHER THE 1309 02:08:10.801 --> 02:08:19.519 COURT A DID IT FAIL TO DO WHAT THIS COURT TOLD IT IT MUST DO IN AC TAKEN WHEN CONFRONTED 1310 02:08:19.519 --> 02:08:28.632 WITH AN OBJECTION TO EXPERT'S BASED UPON RE/HRAOUBLT. AND IT WAS -- SO DID DID THAT 1311 02:08:28.632 --> 02:08:33.089 HAPPENED AND TWO DO YOU CONSIDER THAT TO BE ^ AN ^ AND ERROR IF IT DID NOT HAPPEN. 1312 02:08:33.089 --> 02:08:39.123 VARU CHILAKAMARRI: YES THINK ^ AN ^ AND ERROR FOR COURT TO NOT GO THROUGH THE FACTORS. 1313 02:08:39.123 --> 02:08:43.392 IN TERMS OF THE HEARING MY UNDERSTANDING OF /KEPL /-P ^ AN ^ AND AC /TAUPB IS THAT THE 1314 02:08:43.392 --> 02:08:49.877 HEARING IS REQUIRED IF THE PROPONENTS WANTS TO ESTABLISH THAT THE EXPERT SHOULD COME IN. 1315 02:08:49.877 --> 02:08:57.550 HERE IT IS LITTLE BIT PROCEDURALLY ODD BECAUSE TRIAL COURT ALLOWED FOR THE /SPEUFRTD 1316 02:08:57.550 --> 02:09:02.572 TESTIMONY TO COME IN. I DON'T SEE AC TAN ^ AN ^ AND /KEPL /-P /SAUG THAT THEN THEY HAD 1317 02:09:02.572 --> 02:09:07.224 TO HAVE THE HEARING. THEY ALLOWED THE EVIDENCE TO COME IN. REAL ISSUE THAT WE SAY IS 1318 02:09:07.224 --> 02:09:13.130 THEY SHOULDN'T HAVE ALLOWED THE EVIDENCE TO YOU COME IN BASED ON WHAT WAS UNDERLYING THE 1319 02:09:13.130 --> 02:09:21.164 ^ OPINIONS ^ PINS. TURNING TO THE TEMPORAL PROXIMITY ^ PEACE ^ PIECE. AS I STAND IT 1320 02:09:21.164 --> 02:09:26.273 TWO BASIS FOR GENERAL CAUSATION ^ OPINIONS ^ PINS HERE. THEY ARE -- METHODOLOGY ARE DIFFERENT 1321 02:09:26.273 --> 02:09:33.885 2010 DR. L AND DOCTOR P. BUT GIST OF HOW THEY RULE IN THE SILICONE PARTICULATE AS AGAIN 1322 02:09:33.885 --> 02:09:39.131 CAUSE SEEMS TO BE SUM REPLY IS IT HAPPENED AFTER THE INJECTION AND THAT YOU HAVE THESE 1323 02:09:39.131 --> 02:09:45.361 RECALL DOCUMENTS. AND WE THINK THAT NEITHER IN THIS CONTEXT SHOULD PROVIDE FOR A RELIABLE 1324 02:09:45.361 --> 02:09:51.386 SOUND BASIS. WE THINK THAT WOULD BE A HELPFUL MARKER TO PUTDOWN FOR GUIDANCE FOR LOWER 1325 02:09:51.386 --> 02:09:58.368 COURTS GOING FORWARD. ON TEMPORAL PROXIMITY ^ PEACE ^ PIECE CRUX ISSUE SAYS HAPPENED 1326 02:09:58.368 --> 02:10:04.715 INJECTION BUT DIDN'T OFFER ANY STUDIES ANY DAUBERT PEER REVIEW DATA OR /EPB CONSENSUS 1327 02:10:04.715 --> 02:10:12.926 FROM COMMUNITY AND WE THINK CREANGA IS CLEAR ABOUT THIS. IT EXPLAINS THAT TESTIMONY ORAL 1328 02:10:12.926 --> 02:10:20.876 PROXIMITY -- AFTER YOU RULED IN POTENTIAL CAUSE. THEN IT CAN BE A FACTOR AMONG MANY. 1329 02:10:20.876 --> 02:10:28.766 BUT I THINK CREANGA AND CARL SON IS CASE THAT IT SITES FROM NEBRASKA EXTREME COURT WHICH 1330 02:10:28.766 --> 02:10:36.466 HAS ANOTHER MORE ELABORATE EXPLANATION. WHAT THEY /K-G IS TEMPORAL SHOULD NOT BE BASIS 1331 02:10:36.466 --> 02:10:41.712 FOR GENERAL CAUSATION. ONLY APPLY IT ONLY AFTER -- IT IS ALREADY UNDERSTOOD OR WIDELY 1332 02:10:41.712 --> 02:10:46.399 ACCEPTED /PEUFPLT /PUFPLT LET ME ASK YOU GENERALLY AS TO YOUR CLIENT'S POSITION. I 1333 02:10:46.399 --> 02:10:55.725 GUESS A COURT ^ OPINION ^ PIN IN A CASE INVOLVING A MOTOR VEHICLE ACCIDENT AND MISS CHARGE 1334 02:10:55.725 --> 02:11:02.371 FROM MANY YEARS AGO BEFORE I THINK EVEN BEFORE -- CERTAINLY BEFORE. JUSTICE WAINER 1335 02:11:02.371 --> 02:11:09.726 APTER: 2005 I THINK /PEUFPLT /PUFPLT ONE YEARS BEFORE AC TAKEN A SUB SUIT FOR THE KIND 1336 02:11:09.726 --> 02:11:15.558 OF PROOFS THAT THIS COURT ACQUIRED IN AC TAKEN. VARU CHILAKAMARRI: NO, YOU DON'T 1337 02:11:15.558 --> 02:11:21.286 -- DON'T THINK YOU CAN UTTER PHRASE DIFFERENTIAL DIAGNOSIS BUT I DO THINK THAT THAT COURT 1338 02:11:21.286 --> 02:11:27.148 APPLIED THE -- RECOGNIZED DIFFERENTIAL DIAGNOSIS IN GENERAL IS APPROPRIATE METHODOLOGY 1339 02:11:27.148 --> 02:11:32.542 AND THINK THAT SEEMS TO CONSISTENTLY BE WHAT COURTS HERE DO ^ AN ^ AND DON'T TALK ISSUE 1340 02:11:32.542 --> 02:11:40.533 WITH THAT /WUFPLT /WUFPLT NOT COURTS HERE. COURTS AROUND THE COUNTRY ACCEPTED 1341 02:11:40.533 --> 02:11:45.371 DIFFERENTIAL DIAGNOSIS THAT DOCTORS REGULARLY USE IN TREATING MANY THINGS FROM MIGRAINES 1342 02:11:45.371 --> 02:11:51.240 TO HEAD COLD CORRECT. VARU CHILAKAMARRI: CORRECT AND THIRD CIRCUIT ALSO 1343 02:11:51.240 --> 02:11:55.643 RECOGNIZES THAT. WE TAKE NO ISSUE WITH DIFFERENTIAL DIAGNOSIS IN GENERAL. QUESTION 1344 02:11:55.643 --> 02:11:59.722 IS PROPER APPLICATION OF DIVISION. JUSTICE PATTERSON: IS THE THE QUESTION SHOULD 1345 02:11:59.722 --> 02:12:04.410 BE SHOULD THE QUESTION BE ^ WHETHER ^ WEATHER IN THE PARTICULAR TYPE OF CLAIM THAT IS 1346 02:12:04.410 --> 02:12:09.816 IN THIS CASE AND FACTS OF THIS CASE WHETHER THERE IS -- ^ WHETHER ^ WEATHER AC TAKEN IS 1347 02:12:09.816 --> 02:12:14.692 SATISFIED. ISN'T THAT A CRITICAL QUESTION IN THIS CASE. VARU CHILAKAMARRI: 1348 02:12:14.692 --> 02:12:20.159 YES. YES. DOES NEED TO BE SATISFIED. I THINK WHEN LOOK AT FED STANDARD IN TERMS RELIABLE 1349 02:12:20.159 --> 02:12:24.894 METHOD WHICH DIFFERENTIAL DIAGNOSIS FACTS OF THIS CASE. THEN THE QUESTION IS APPLICATION 1350 02:12:24.894 --> 02:12:30.961 OF METHOD. THINK ALSO BUILT INTO WHAT AC TAKEN DECISION SAID AS WELL. ON THAT ^ PEACE ^ 1351 02:12:30.961 --> 02:12:35.065 PIECE THE RELIABLE APPLICATION WE ARE NOW IN DIFFERENTIAL DIAGNOSIS YOU HAVE THE RULING 1352 02:12:35.065 --> 02:12:39.854 IN ^ AN ^ AND RULING OUT. THINK THE PROBLEM -- BIGGEST PROBLEM WAS RULING IT IN. RULING 1353 02:12:39.854 --> 02:12:48.177 IN SILICONE PART AS A POTENTIAL CAUSE. REASON FOR THAT IS AGAIN TEMPORAL PROXIMITY IN 1354 02:12:48.177 --> 02:12:54.074 THIS CASE WE DON'T THINK CAN RELIABLE BASIS. TO /TUT A FINE POINT ON DISTINGUISHING IT 1355 02:12:54.074 --> 02:13:00.464 FROM CREANGA THEY RULES RULED IN TRAUMA BECAUSE KNOWN CAUSE OF /PHRAOEPL /TAOUR DELIVERY. 1356 02:13:00.464 --> 02:13:07.582 HERE SILICONE PARTICULATE IS NOT KNOWN CAUSE. THEY HAVEN'T SHOWN ANY /SP*EFRTS SHOWING 1357 02:13:07.582 --> 02:13:12.267 KNOWN CAUSE OF ANYTHING OR ANY OF THE INJURIES /PEUFPLT /PUFPLT LET ME ASK YOU ^ AN ^ AND 1358 02:13:12.267 --> 02:13:16.758 CORRECT ME IF I AM WRONG BUT I BELIEVE THAT AT LEAST THE NEW JERSEY CIVIL JUSTICE INSTITUTE 1359 02:13:16.758 --> 02:13:25.968 HISTORICALLY PRESSED THIS COURT ON NUMBER OCCASIONS TO ADOPT A DAUBERT EVALUATION. 1360 02:13:25.968 --> 02:13:29.955 VARU CHILAKAMARRI: THAT IS CORRECT. CERTAINLY U.S. CHAMBER. JUSTICE 1361 02:13:29.955 --> 02:13:35.548 PATTERSON: I REMEMBER THAT IN THIS STATE ^ AN ^ AND EXPRESSED THE IMPORTANT OF THAT TRIAL 1362 02:13:35.548 --> 02:13:42.752 COURT DETERMINATION SO THAT A RECORD IS CREATED FOR APPEAL SO THAT FACTS ARE FOUND /SK-PB 1363 02:13:42.752 --> 02:13:50.819 CREDIBILITY IS DETERMINED BUT ALSO TO FA SILL TAUGHT APPELLATE REVIEW AM I RIGHT ABOUT 1364 02:13:50.819 --> 02:13:54.621 THAT. VARU CHILAKAMARRI: YES. JUSTICE PATTERSON: DOES THE NEW JERSEY 1365 02:13:54.621 --> 02:14:01.622 CIVIL JUSTICE INSTITUTE ^ AN ^ AND CHAMBER OF COMMERCE TAKE PROCEDURALLY WHAT WAS DONE 1366 02:14:01.622 --> 02:14:07.429 HERE /EPB /TAOURLLY THROUGH THIS CASE BOTH COURTS HAVE LOOKED AT THIS WAS A PROPER PROCEDURE 1367 02:14:07.429 --> 02:14:13.229 UNDER AC TAKEN. VARU CHILAKAMARRI: THINK THE RECORD MUT /-LD ON THIS BUT THE 1368 02:14:13.229 --> 02:14:17.449 TRIAL COURT. WE DON'T THINK IT WAS PROCEDURALLY CORRECT DIDN'T GO THROUGH THE FACTORS. 1369 02:14:17.449 --> 02:14:26.644 BUT MORE IMPORTANT LIVE DIDN'T LOOK -- THINK THAT IS THE SUBSTANTIVE DEFECT THAT IS MOST 1370 02:14:26.644 --> 02:14:29.792 CONCERNING. JUSTICE PATTERSON: THANK YOU /WEUFPLT /WUFPLT AND THE APPELATE 1371 02:14:29.792 --> 02:14:34.127 DIVISION COURT ENTIRE ANALYSIS ON THIS WAS ONE SENSE CORRECT. VARU CHILAKAMARRI: 1372 02:14:34.127 --> 02:14:39.676 VERY SHORT. LISTED DAUBERT FACTORS. BUT WE THINK CONCLUSION OF THE APPELATE DIVISION 1373 02:14:39.676 --> 02:14:45.302 WAS CORRECT. APPELATE DIVISION SAID THAT THE TRIAL COURT GOT IT WRONG AND WASN'T ACTING 1374 02:14:45.302 --> 02:14:50.712 AS PROPER GATEKEEPER BECAUSE TRIAL COURT DIDN'T ASK WHAT THE ^ OPINIONS ^ PINS -- WHAT 1375 02:14:50.712 --> 02:14:54.924 HAD EXPERT'S ^ OPINIONS ^ PINS WAS BASED ON. JUSTICE NORIEGA: COULD I FOLLOW-UP 1376 02:14:54.924 --> 02:15:01.938 ON THAT. JUST IN TERMS OF PROCEDURE YOU REFERENCED IT AND PARTIES HAVE REFERENCED IT 1377 02:15:01.938 --> 02:15:07.874 WHETHER OR NOT WE WOULD BE CREATING RULE WHERE THERE WOULD BE 104 HEARING FOR AC TAKEN 1378 02:15:07.874 --> 02:15:14.498 HEARING EVERY SINGLE TIME. WITH A THIS CAME UP WAS BY VIRTUE OF THE OF DEFENDANT'S MOTION 1379 02:15:14.498 --> 02:15:21.616 TO EXCLUDE THE EXPERT'S REPORTS THEY WERE NOT QUALIFIED FAILED TO PROVIDE RELIABLE 1380 02:15:21.616 --> 02:15:27.357 METHODOLOGY. SO WHEN THOSE MOTIONS ARE MADE WOULD THERE BE ANY OBJECTION FROM AMEANING 1381 02:15:27.357 --> 02:15:34.936 'CUZ THE COURT ASKED THAT THE TRIAL COURTS IN THOSE INSTANCES PERFORM AC TAKEN ANALYSIS 1382 02:15:34.936 --> 02:15:40.780 EACH AND EVERY TIME TO ENSURE THAT THAT'S HOW WE GET TO THE CONCLUSION THAT THIS DOESN'T 1383 02:15:40.780 --> 02:15:44.715 HAPPEN. VARU CHILAKAMARRI: I'M FRAYED THAT OUTSIDE WHAT WE PREPARED FOR. WE 1384 02:15:44.715 --> 02:15:50.488 DIDN'T BRIEF THAT ISSUE SO I DON'T WANT TO GET TO AHEAD MY SKIS THERE /PEUFPLT /PUFPLT 1385 02:15:50.488 --> 02:15:57.663 BUT ASKING US TO ADOPT THE REVISEDED FEDERAL SEVEN ZERO TWO WHICH SETS FORTH IN A FAIR 1386 02:15:57.663 --> 02:16:02.168 AMOUNT OF DETAIL THE STEPS AND OBVIOUSLY NOT BEFORE THE COURT TODAY AS TO THE ADOPTION 1387 02:16:02.168 --> 02:16:09.731 OF THE RULE OF EVIDENCE BUT YOU ARE -- I THINK TRYING TO EXPLAIN TO US HOW IT SHOULD BE 1388 02:16:09.731 --> 02:16:16.115 DONE PROPERLY. AND AS A FRIEND THE COURT AND LOOKING BEYOND THIS CASE WE WHICH WE MUST 1389 02:16:16.115 --> 02:16:22.895 DO AS WELL WAS IT DONE -- WAS THIS ENTIRE ISSUE DEALT WITH PROPERLY. VARU 1390 02:16:22.895 --> 02:16:27.921 CHILAKAMARRI: IN TERMS ADOPTING THE FEDERAL RULE I THINK THAT CAN BE DONE BECAUSE CLARIFICATION 1391 02:16:27.921 --> 02:16:35.102 WE WOULD ASK THAT NEW JERSEY CLARIFY HOW YOU READ YOUR OWN RE/HRAOUBLT RULE UNDER AC /TAUPB 1392 02:16:35.102 --> 02:16:41.204 SAND OLENOWSKI IS THAT YOU WOULD ASK THAT THE GATEKEEPER LOOK AT BOTH METHODOLOGY FACTS 1393 02:16:41.204 --> 02:16:48.745 AND RELIABLE PLUCKS. MULTI STEP PRACTICE AND WASN'T DONE HERE. IN TERMS OF 104 HEARING 1394 02:16:48.745 --> 02:16:54.414 I AM NOT FAMILIAR WITH HOW LOWER COURTS HERE -- WHEN I PLAINTIFF IS PUTTING FORTH EVIDENCE 1395 02:16:54.414 --> 02:16:59.335 ^ AN ^ AND COURT GRANTS IT IS BASED ON /EPB STUART THE RECORD INCLUDING RABBIT STUDY. 1396 02:16:59.335 --> 02:17:05.946 WE HAVE FULL RECORD ON TERMS OF ALLERGAN COMBATING THE PUNS. I AM NOT FAMILIAR WITH 1397 02:17:05.946 --> 02:17:11.617 WHETHER OR NOT THE /KO*ERTS THEN HAVE A HEARING EVEN WHEN THEY ARE ALREADY HAPPY WITH 1398 02:17:11.617 --> 02:17:16.469 WHAT THE EVIDENCE IS. BUT CERTAINLY THAT IS SOMETHING YOU COULD CONSIDER. MAY RESULT 1399 02:17:16.469 --> 02:17:21.175 IN A LOT OF HEARINGS. MORE IMPORTANTLY IS WHAT THE TRIAL COURT SAID IN THE DECISION. 1400 02:17:21.175 --> 02:17:27.231 YOU WANT VERY CLEAR ELUCIDATED PUN THAT TRACKS THE STANDARDS, AC /TAUPB ^ AN ^ AND DAUBERT 1401 02:17:27.231 --> 02:17:31.973 STANDARDS. THAT WOULD BE HELPFUL. THAT WAS NOT DONE HERE ^ AN ^ AND PERHAPS THAT IS 1402 02:17:31.973 --> 02:17:39.829 A MIDDLE PAT THAT DOESN'T LEAD TO A SURGEON OF IS ZERO 4 HEARINGS /WUFPLT /WEUFPLT. 1403 02:17:39.829 --> 02:17:44.469 VARU CHILAKAMARRI: UNLESS ANY QUESTIONS ON THAT ^ PEACE ^ PIECE THE FINAL POINT WOULD LIKE 1404 02:17:44.469 --> 02:17:49.824 TO MAKE ABOUT THE RECALL DOCUMENTS BECAUSE THAT IS THE SUBJECT OF THE DISCUSSION TODAY 1405 02:17:49.824 --> 02:17:55.087 OUR POSITION IS RECALL DOCUMENTS IN GENERAL SHOULD NOT BE SORT OF AUTOMATICALLY TREATED 1406 02:17:55.087 --> 02:18:01.432 AS PER SE ADMISSIONS OF CAUSATION. AND THAT IS FOR A COUPLE REASONS. IN GENERAL A RECALL 1407 02:18:01.432 --> 02:18:08.013 WILL OFTEN NOT REFLECT THE MOST SOUND RELIABLE SIGNS BUT I KNOW /STAEDZ REFLECTS 1408 02:18:08.013 --> 02:18:13.413 PRECAUTIONARY BUSINESS JUDGMENT. BASED ON MANY FACTORS. SO WE THINK THAT RECALL DOCUMENTS 1409 02:18:13.413 --> 02:18:20.496 AND COMMUNICATIONS SHOULD BE ADMITTED IF AT ALL ONLY UNDER THE SAME RIGOROUS GATE KEEPING 1410 02:18:20.496 --> 02:18:25.622 ASSESSMENT THAT WOULD BE DONE FOR ANY OTHER PIECE OF EVIDENCE THAT EXPERT RELIES ON. 1411 02:18:25.622 --> 02:18:30.620 AND THERE IS A COUPLE POINTS THAT I COULD MAKE BOTH FOR THIS CASE BUT ALSO IN GENERAL 1412 02:18:30.620 --> 02:18:34.796 /WEUFPLT /WUFPLT I AM NOT SURE UNDERSTOOD THAT. FIRST HEARD YOU TO SAY RECALL DOCUMENTS 1413 02:18:34.796 --> 02:18:41.619 SHOULD NOT BE TREATED AS PER SE CAUSATION. HOWEVER THEN SAYING ACTUALLY RECALL DOCUMENTS 1414 02:18:41.619 --> 02:18:49.341 SHOULD NOT BE ADMITTED AT ALL UNLESS EACH DOCUMENT DOES THROUGH A FULL AC TAKEN 1415 02:18:49.341 --> 02:18:52.653 ANALYSIS. VARU CHILAKAMARRI: SPEAKING FOR RELIABLE WE DON'T THINK IT SHOULD BE 1416 02:18:52.653 --> 02:18:58.319 A PIECE OF EVIDENCE THAT CAN PROOF -- THAT EXPERT'S ^ OPINION ^ PIN IS RELIABLE UNLESS 1417 02:18:58.319 --> 02:19:04.786 IT IS BASED ON SIGNS /WEUFPLT /WUFPL I'M NOT SURE THAT I UNDERSTAND. AC TAKEN DOESN'T 1418 02:19:04.786 --> 02:19:12.021 APPLY TO INDIVIDUAL DOCUMENTS. NEVER BEEN ^ AN ^ AND CASE WHERE AN EXPERT RELIED PARTICULAR 1419 02:19:12.021 --> 02:19:19.174 FACT DOCUMENT. EXPERT HAS TO SHOW THAT DOCUMENT ITSELF IS RELIABLE UNDER AC TAKEN. 1420 02:19:19.174 --> 02:19:25.924 VARU CHILAKAMARRI: DON'T MEAN TO SUGGEST THAT. MORE UNDER THE GATE KEEPING METHOD WHEN 1421 02:19:25.924 --> 02:19:32.161 TRIAL COURT IS LOOKING AT EXPERT'S ^ OPINION ^ PIN AND SAYS WHAT DID YOU RELY ON. RELIED 1422 02:19:32.161 --> 02:19:37.033 ON THIS STUD WERE YOU. THIS IS ANOTHER PIECE OF EVIDENCE LIKE THAT. RECALL DOCUMENT. 1423 02:19:37.033 --> 02:19:42.704 IF THE DOCUMENT IS AND THIS CAUSE ILLUSTRATES. IF IT'S DOCUMENT THAT CONCLUDES ROADWAY 1424 02:19:42.704 --> 02:19:47.476 STATEMENT POTENTIAL MAY CAUSE INFLAMMATION NOTHING ELSE TO IT AND NO OTHER INFORMATION 1425 02:19:47.476 --> 02:19:52.591 LETTER, STUDIES UNDERLYING THAT LETTER, THEN WE WOULD SAY THAT USING THAT RECALL DOCUMENT 1426 02:19:52.591 --> 02:19:58.080 ALONE /S-PT SAY SOUND BASIS. JUSTICE FASCIALE: WOULDN'T THE ARGUMENT BE GOES 1427 02:19:58.080 --> 02:20:03.098 MORE TO THE WEIGHT THAN ADMISSIBILITY. VARU CHILAKAMARRI: WE THINK BASED ON 1428 02:20:03.098 --> 02:20:13.407 MARINA CASE ^ AN ^ AND, WE THINK IT WOULD BE HELPFUL TO SAY YOU HAVE TO LOOK AT THAT 1429 02:20:13.407 --> 02:20:19.945 DOCUMENT ^ AN ^ AND LIKE ANY OTHER PIECE OF EVIDENCE WAS THERE A STUDY. THE MA NERA 1430 02:20:19.945 --> 02:20:26.388 /HRUT IMMIGRATION OUT OF SDNY TALKS ABOUT THIS AT /TKPWRAUT /HREPT AND SAUCE RECALL DOCUMENT 1431 02:20:26.388 --> 02:20:32.958 SHOULDN'T BE USED TO SUBSTITUTE FOR EXPERT TESTIMONY UNLESS THE DOCUMENT OR WARNING 1432 02:20:32.958 --> 02:20:38.504 LABEL ACTUALLY /SPHRAUPBS THE REASON FOR IT AND SOME SCIENCE /PWHRAOUPBDZ IT. WE DO THINK 1433 02:20:38.504 --> 02:20:42.225 THERE IS IMPORTANT FUNCTION THERE. JUSTICE PATTERSON: DISTINCTION BEING THAT IT 1434 02:20:42.225 --> 02:20:47.903 'S NOT IN AND OF ITSELF PROOF OF CAUSATION. IT IS NOT ADD MUST OF MANUFACTURING DEFECT 1435 02:20:47.903 --> 02:20:57.854 UNDER THE NEW JERSEY STANDARD. BUT WE KNOW THAT EXPERTS CAN RELY ON INFORMATION AND MATERIALS 1436 02:20:57.854 --> 02:21:04.747 THAT IS NOT ADMISSIBLE AT LONG AS RELIED UPON BY EXPERTS IN THAT FIELD. NOT TALKING 1437 02:21:04.747 --> 02:21:11.466 ABOUT ADMISSIBILITY OF THE DOCUMENT. SO IS THIS CASE RAILY RAISE THAT QUESTION DO YOU 1438 02:21:11.466 --> 02:21:16.646 THINK. VARU CHILAKAMARRI: THINK IT DOES. UNPACKET THAT. YOU ARE CORRECT WASN'T 1439 02:21:16.646 --> 02:21:31.540 MEANING TO SUGGEST THAT IT SHOULD /-PBTD BE SADNESS I BELIEVE. ALTHOUGH RULE 4 ZERO 67. 1440 02:21:31.540 --> 02:21:36.717 THINK THAT IS RELEVANT OP POLICY FRONT BECAUSE WE EXPLAIN THAT ALLOWING THESE RECALL DOCUMENTS 1441 02:21:36.717 --> 02:21:42.552 TO BE USED AS PROOF OF RELIABILITY WOULD /KHUL THE FRANK DISCUSSIONS THAT BUSINESSES HAVE 1442 02:21:42.552 --> 02:21:47.509 WHEN TRYING TO MAKE THESE EARLIER DECISIONS. SO I THINK RULE HAD ZERO SEVEN ^ AN ^ AND 1443 02:21:47.509 --> 02:21:52.965 CASES THAT WE SITE ARE ASK GOOD JUSTIFICATION FOR HAVING A GENERAL RULE THAT RECALL DOCUMENTS 1444 02:21:52.965 --> 02:22:01.326 SHOULD NOT BE TREATED AS PER SE RELIABLE. NOT ADMISSIBLE BUT PER SE RELIABLE BY AN EXPERT. 1445 02:22:01.326 --> 02:22:05.419 NOT THAT YOU DO NEVER USE THEM. INTEREST MAYBE ^ AN ^ AND ^ INSIDE ^ INSTANCE WHERE RECALL 1446 02:22:05.419 --> 02:22:10.282 DOCUMENT FOLLOWED FROM STUDY. FROM A PAPER WHAT HAVE YOU. BUT IN THIS CASE BRINGING 1447 02:22:10.282 --> 02:22:16.670 IT BACK TO WHY I THINK IT IS APPLICABLE HERE /WUFPLT /WEUFPLT AGAIN WHEN DOES EACH 1448 02:22:16.670 --> 02:22:20.916 INDIVIDUAL DOCUMENT GO THROUGH A SEPARATE RELIABILITY ANALYSIS. I AM JUST CONFUSED AS 1449 02:22:20.916 --> 02:22:25.189 TO WHERE THAT IS REQUIRED UNDER AC TAKEN. VARU CHILAKAMARRI: SURE DON'T MEAN 1450 02:22:25.189 --> 02:22:29.904 TO SUGGEST EACH DOCUMENT. LET ME BACK UP. WOULD SAY EXPERT'S ^ OPINION ^ PIN THAT WOULD 1451 02:22:29.904 --> 02:22:34.813 GO THROUGH RELIABILITY ^ OPINION ^ PIN ANALYSIS. EXPERT ONLY RELIED ON RECALL DOCUMENT 1452 02:22:34.813 --> 02:22:42.023 OR WARNING THAT SAID IN CONCLUDES ROADWAY FASHION THAT SILICONE PART CAUSES I KNOW /TPHRAUPBGS 1453 02:22:42.023 --> 02:22:46.747 THAT IS NOT RELIABLE ^ OPINION ^ PIN BECAUSE NOT BASED ON SOUND SIGNS. IT IS BASED ON 1454 02:22:46.747 --> 02:22:53.107 CONCLUDES ROADWAY /TPHUFPLT /TPHUFPLT YOU ARE SIMPLY SAYS DON'T LET RECALL DOCUMENT ITSELF 1455 02:22:53.107 --> 02:22:58.907 BE ONLY SOURCE OF EVIDENCE FOR ^ AN ^ AND EXPERT. VARU CHILAKAMARRI: YES THERE ARE 1456 02:22:58.907 --> 02:23:05.983 PLACES AGAIN WHERE YOU COULD USE TEMPORAL PROXIMITY. BUT THESE TWO PIECES OF EVIDENCE 1457 02:23:05.983 --> 02:23:13.320 AND ONLY PIECES OF EVIDENCE THAT TRIAL COURT RELIED ON ARE ZERO IN TERMS OF ALLOW BUILT 1458 02:23:13.320 --> 02:23:22.454 TO BE RELIABLE. SO I HOPE I ANSWERED THE QUESTION ABOUT THE -- NOT A DOCUMENT ISSUE 1459 02:23:22.454 --> 02:23:27.677 BUT MORE ^ OPINION ^ PIN BASED ON DOCUMENTS. TO BRING IT BACK ON THIS CASE THE REASON 1460 02:23:27.677 --> 02:23:30.856 WHY IT WOULD BE REQUIREMENT. JUSTICE WAINER APTER: ARE THERE OTHER COURTS 1461 02:23:30.856 --> 02:23:37.434 THAT HELD THAT RECALL DOCUMENTS CANNOT BE CONSIDERED AS -- NOT ONLY THAT THEY CAN'T BE 1462 02:23:37.434 --> 02:23:43.414 TREATED AS PER SE ADMISSION OF CAUSATION BUT ADD MISS BULLET IS ZERO. VARU 1463 02:23:43.414 --> 02:23:49.744 CHILAKAMARRI: THE MA NERA CAUSE I GUESS BEST ONE WE SITE TO M MA NERA LITIGATION OUT THE 1464 02:23:49.744 --> 02:23:58.675 SOUTHERN DISTRICT OF NEW JERSEY. YOU KNOW, IT IS /HRUTLE BIT /SRAUG ^ AN ^ AND DOESN'T 1465 02:23:58.675 --> 02:24:05.281 MAKE THE BLANKET STATEMENT. AND THE CAVEAT THEY DO SUGGEST RECALL DOCUMENTS THEY COULD 1466 02:24:05.281 --> 02:24:10.495 BE USED AS EVIDENCE TO SHOW DEFECT WAS THERE TO SHOW OBVIOUSLY SILICONE PART WAS THERE 1467 02:24:10.495 --> 02:24:14.799 ^ AN ^ AND COULD HAVE BEEN THERE. THEY COULD SHOW PROOF OF CONTROL AN OWNER SHIP BY 1468 02:24:14.799 --> 02:24:19.614 MANUFACTURER SO THE OTHER ELEMENTS THAT ARE NECESSARY FOR THE PRODUCT LIABILITY BUT NOT 1469 02:24:19.614 --> 02:24:26.609 CAUSE ACTION FOR THE REASONS I MENTIONED ABOUTLE POLICY RAM CAUSES OF /KHULG AND AT BOTTOM 1470 02:24:26.609 --> 02:24:32.011 BUSINESSES MAKE RECALL DECISION NOT BASED ON SAME STANDARDS CAUSATION ^ AN ^ AND RE/HRAOUBL. 1471 02:24:32.011 --> 02:24:37.568 THEY DON'T NECESSARILY -- NOT NECESSARILY WAITING FOR SIGNS MAKING PRECAUTIONARY 1472 02:24:37.568 --> 02:24:44.307 DECISIONS. STAND IN THIS CASE ILLUSTRATE THAT BECAUSE ISSUED RECALL THEN DID RABBIT STUDY 1473 02:24:44.307 --> 02:24:51.112 THAT THEY REFER TO. THAT RABBIT SHOULD SKI /KREUBGTS WAY WAS DONE IN THE RECALL BECAUSE 1474 02:24:51.112 --> 02:24:57.017 DEBUNKEDED IDEA THAT IT COULD CAUSE THE INJURY. SO THAT ALL HAPPENED OF COURSE BEFORE 1475 02:24:57.017 --> 02:25:02.195 THE EXPERT'S TESTIFIED IN THIS CASE AND SO THEY WERE TESTIFYING BASED ON RECALL DOCUMENT 1476 02:25:02.195 --> 02:25:08.620 WHERE THE OWN SIGNS THAT CALM BEFORE OR AFTER WAS RABBIT STUDY WHICH DEBUNKEDED RECALL 1477 02:25:08.620 --> 02:25:14.426 DOCUMENT. IN SOME WAYS THAT IS CHERRY PICKING AC TAKEN TYPE OF MISTAKE ^ AN ^ AND REASON 1478 02:25:14.426 --> 02:25:20.717 WHY THE EXPERT PIN RELYING ON RECALL DOCUMENT /HEUFPLT /HUFPLT ^ AN ^ AND BEEN NO PROCESSOR 1479 02:25:20.717 --> 02:25:28.225 PROCEDURE OR HEARING TO TEST THE RELIABILITY THE RABBIT STUDY. NOTHING HAS TESTED RELIABILITY 1480 02:25:28.225 --> 02:25:35.632 OF THE RABBIT STUDY. MR. DONELY HAS NOT HAD ^ AN ^ AND OPPORTUNITY NOR HAS HE ENGAGED 1481 02:25:35.632 --> 02:25:44.808 IN PUTTING FORTH AN EXPERT OF WHETHER THE RABBIT STUDY IS RELIABLE OR NOT. VARU 1482 02:25:44.808 --> 02:25:49.538 CHILAKAMARRI: DON'T BELIEVE THAT THEY HAVE /HEUFPLT /HUFPLT LEFT TO SAY THERE IS A STUDY 1483 02:25:49.538 --> 02:25:56.083 ^ AN ^ AND ACCEPT IT'S RELIABLE. BUT TO THE THEME THAT WE HAVE ALL BEEN DISCUSSING, THAT 1484 02:25:56.083 --> 02:26:03.499 RABBIT STUDY WHICH YOU ARE SAYING CORROBORATES THE POSITION OF RESPONDENT HAS NEVER BEEN 1485 02:26:03.499 --> 02:26:08.364 TESTED. VARU CHILAKAMARRI: ONE POINTS THAT YOUR HONOR. RABBIT STUDY AGAIN WAS 1486 02:26:08.364 --> 02:26:15.361 SUBMITTED BY ALLERGAN NOT BY PROPONENTS OF EVIDENCE. DON'T THINK HAVE BURDEN /HUFPLT 1487 02:26:15.361 --> 02:26:21.178 /HUFPLT NOT /SAUG IT IS THERE. BUT PROCESS THERE IS SUCH THAT IT HAS -- NOBODY HAS TESTED 1488 02:26:21.178 --> 02:26:26.547 RE/HRAOUBLT OF THE STUDY. WE ARE NOW TO ACCEPT THE STUDY THAT'S BEEN DONE AND NOT GONE 1489 02:26:26.547 --> 02:26:32.809 THROUGH ANY VETTING. VARU CHILAKAMARRI: WOULD THINK THAT IS TRUE FACTUAL RATHER. 1490 02:26:32.809 --> 02:26:37.954 RABBIT SHOULDY CALM ^ AN ^ AND PLAINTIFF FILED THEIR CASE. THEY COULD HAVE DONE A STUDY 1491 02:26:37.954 --> 02:26:43.316 AND PUBLISHED A /PAUP IS AN HAD IT PEER REVIEWED. THEY COULD HAVE GONE OUT OR DECIDE 1492 02:26:43.316 --> 02:26:50.954 OR HAD PEOPLE IN THE FIELD SAY THIS WAS ACCEPTED. RABBIT STUDY WAS OUT THERE AND THROUGH 1493 02:26:50.954 --> 02:26:59.869 THE DISCOVERY PROCESS WE WOULD SUBMIT THAT IS THE TIME TO SUBMIT TO SOME SOUND SIGNS. 1494 02:26:59.869 --> 02:27:02.886 JUSTICE PATTERSON: /KWREUG ELSE YOU WOULD TO LIKE. VARU CHILAKAMARRI: 1495 02:27:02.886 --> 02:27:10.717 WE WOULD SUBMIT THIS WOULD BE A GOOD VEHICLE /THO YOU THE ALINES AND TO MAKE THE TWO SHORT 1496 02:27:10.717 --> 02:27:19.947 THE GATE KEEPING ON TEMPORAL ^ AN ^ AND RECALL DOCUMENTS. ABOUT DENNIS M. 1497 02:27:19.947 --> 02:27:26.141 DONNELLY: MAKE FOUR POINTS IN TWO OR 3 MINUTES. THE FIRST ONE IS THIS: JUSTICE HOFFMAN 1498 02:27:26.141 --> 02:27:38.885 ACTUALLY AT D A 179, 180 AND 181, DR. HAS HE LAY AND I HAVE TROUBLE WITH HIS NAME TOO, 1499 02:27:38.885 --> 02:27:44.687 CRITICIZE HAD THE RAB IT STUDY AND SAID THE FOLLOWING: THEY TOOK 8 RABBITS WITH HEALTHY 1500 02:27:44.687 --> 02:27:50.437 INTERNET SEARCHES AND THEY INJECTED THIS STUFF IN TO THOSE HEALTHY EYES AND IN NO WAY 1501 02:27:50.437 --> 02:27:56.252 WAS THAT analogous TO THIS WOMAN WHO DIDN'T HAVE A HEALTHY EYE SO IT DOESN'T REALLY SHOW US 1502 02:27:56.252 --> 02:28:03.050 ANYTHING. SO THERE WAS SOME ATTEMPT AT IT. BUT MORE IMPORTANTLY, THE PLAINTIFFS URGE 1503 02:28:03.050 --> 02:28:08.272 DO YOU SOMETHING YOU DON'T WANT TO DO, IT WAS CLEAR, WHICH IS THERE'S ENOUGH THERE AND 1504 02:28:08.272 --> 02:28:13.448 YOU SHOULD AFFIRM -- YOU SHOULD REVERSE THIS AND SEND IT TO A JURY BECAUSE JURY'S DECIDE 1505 02:28:13.448 --> 02:28:21.023 CAUSATION. MEANWHILE, THE DEFENDANTS SAY, NO, BUT YOU SHOULD -- INSTEAD YOU SHOULD ADOPT 1506 02:28:21.023 --> 02:28:26.042 WITH THE APPELLATE DIVISION. AND YOUR POINT, I TAKE IT FROM JUST CONTINUE PATERSON WHO 1507 02:28:26.042 --> 02:28:35.190 WAS, SAYS WE DON'T DO THAT. THE TRIAL COURT WAS SUPPOSE /TKOD IT AND THEY DIDN'T DO IT. 1508 02:28:35.190 --> 02:28:41.764 SO 245 IS THE REASON WHY, AT A MINIMUM, YOU SHOULD REMAND THIS TO THE TRIAL COURT. AND 1509 02:28:41.764 --> 02:28:48.172 THE TRIAL COURT WOULD THEN TAKE LIVE TESTIMONY. AND MOST OF US HAVE BEEN TRIAL LAWYERS. 1510 02:28:48.172 --> 02:28:54.208 THERE'S A BIG DIFFERENCE BETWEEN A PAPER TRANSCRIPT AND A DEPOSITION AND THE JUDGE 1511 02:28:54.208 --> 02:28:59.829 ACTUALLY SEEING THE PAPER. THE TRIAL JUDGE COULD HAVE CONCLUDED, I LISTENED TO DR. LASER 1512 02:28:59.829 --> 02:29:05.924 LAY, HE EXPLAINED THIS RAB IT STUDY DOESN'T WORK AND I BELIEVE THAT. MORE EVER THERE'S 1513 02:29:05.924 --> 02:29:12.395 SOMETHING IMPORTANT HERE, DRUG COMPANIES, OF COURSE THEY'RE GOING DO STUDIES. THEY HAD 1514 02:29:12.395 --> 02:29:17.796 TO DO STUDIES -- IT'S NOT QUITE THE SAME USUALLY FOR THE PLAINTIFF WHO'S GOING TO GO 1515 02:29:17.796 --> 02:29:24.504 OUT AND ALL OF A SUDDEN CREATE THIS NEW STUDY. ONE OF THE THING THE TRIAL JUDGE COULD 1516 02:29:24.504 --> 02:29:31.573 PUT ON REMAND IS, DOCTORS, DOCTORS, LEGITIMATELY AND ROUTINELY RELY ON RECALL STATEMENTS 1517 02:29:31.573 --> 02:29:38.436 FROM DRUG COMPANIES BECAUSE IT GIVES THEM INSIGHT INTO THE PRODUCT IN WHICH CASE OUR EXPERTS 1518 02:29:38.436 --> 02:29:43.369 MIGHT THEN BE FOUND BY THE TRIAL JUDGE TO BE QUALIFIED, TO HAVE COMPETENT EVIDENCE, TO 1519 02:29:43.369 --> 02:29:49.202 HAVE THE RIGHT METHODOLOGY BECAUSE THAT'S ONE OF THE THINGS DOCTORS DO. WE LOSE SITE 1520 02:29:49.202 --> 02:29:55.557 OF THAT. BUT THAT'S WHAT PHILLIPS SAID. HE SAID LOOK, IF THIS THING COMES ACROSS MY 1521 02:29:55.557 --> 02:30:00.796 DESK, I'M NOT GOING ANYWHERE INTOER THIS LADY WITH THIS DRUG. I THINK THOSE ARE ALL 1522 02:30:00.796 --> 02:30:06.456 CRITICAL. I THINK AT THE END OF THE DAY, N J A J SAYS TO YOU CORRECTLY, AT LEAST IN THIS 1523 02:30:06.456 --> 02:30:11.094 CASE, WITH THE /TKEPBGT OF INFORMATION HERE, A 104 HEARING WAS REQUIRED, IT WASN'T DONE, 1524 02:30:11.094 --> 02:30:16.969 IT NEEDS TO BE DONE, AND HOPEFULLY IT WILL BE DONE IN A WAY WHICH SATISFIES US AND NOT 1525 02:30:16.969 --> 02:30:23.119 THE OTHER SIDE, AND IT'LL SO CLEAR WE DON'T HAVE TO COME BACK UP HERE AND WORRYING ABOUT 1526 02:30:23.119 --> 02:30:28.589 DOING IT AGAIN. BUT THAT'S, AT LEAST IN THIS CASE WITH THIS EVIDENCE, WAS NEEDED. AND 1527 02:30:28.589 --> 02:30:33.863 SHOULD BE DONE NOW. THANK YOU VERY MUCH. UNLESS ANYONE HAS ANY OTHER QUESTIONS. 1528 02:30:33.863 --> 02:30:36.986 JUSTICE PATTERSON: ANY QUESTIONS? DENNIS M. DONNELLY: WE'VE TORTURED. 1529 02:30:36.986 --> 02:30:42.898 JUSTICE PATTERSON: THANK YOU, COUNSEL. AND THANK YOU TO ALL COUNSEL FOR A TERRIFIC 1530 02:30:42.898 --> 02:30:52.309 ARGUMENTS, BOTH PARTIES AND AMICI, MUCH APPRECIATED. THE COURT WILL TAKE THE MATTER 1531 02:30:52.309 --> 02:30:55.309 UNDER ADVISEMENT AND COURT'S IN RECESS FOR THE DAY.