thirty minutes this morning for this case but we have a little bit of flexibility because it is the only case on the docket that thirty minutes time would be divided evenly between the parties the apologue maybe is there some time for a vote and with that maybe  you get through this in fifteen minutes i talk really quickly as possible we see they please the court i've already introduced myself and my name is lauren live and again i represent the plaintiffs in this case with this appeal from their medical negligence case the claim this time are seeking reversal of entry of judgment in favor of the defendant and against the plaintiff and a new trial based on evidence here years and other errors made by the trial more specifically the plaintiffs allege that the trial court abused its discretion by one permitting the defendant experts to testify about the use of a name is ok as trick two or n g two despite lack of adequate f three disclosure number two by dismissing jerk london because of her religious fervor and not any bias on the part of the church and three by instructing the jury on the sole proximate cause instruction absent even a modicum of evidence that the conduct of another physician was the only cause of why would it not be significant what the other side said about it why did all the sudden become insignificant when uttered by the other side but first i want to say that we do not feel it was a upon us to bring out every opinion on the basis factory opinion we thought it was incumbent be sent to thirteen x three it's explicit mandate one row through thirteen f i am sorry to thirteen i for the defendant if it was important to their where the expert disclosed that among other things that expert had reviewed the medical records including the x rays in the m r eyes and that his opinions were based in fact i led him to support any basis of his his opinions and that a trial when the expert witness was asked about what impact those m r i s and those x rays had there was an objection by the opposing counsel that he had disclosed that well he had disclosed that that he had reviewed that his opinions were based in part on that and that is where the appellate court said that rule two thirds he should be used now this is a sword but as a shield of choice not to examine the expert on that does not give you the right to then bar the experts from relying on what was disclosed his one of the bases of his opinion can you distinguish that case from this i believe i can your honor in that case the expert just cause an opinion and he disclosed the basis for that opinion which was his review of the x rays in this case we have an opinion but dropping down to the specifics if you see a disclosure that isn't adequately supported by what the opinions are then you could move to strike the opinion but my problem is that in this case there was neither motion you nor was there an inquiry as to the bases at the at the deposition and basically you've decided to go to wait to the trial too and maybe even in some instances what you raise wait to the appeal to raise the the the false you find with the disclosure regardless of whether the disclosure was adequate or not adequate the question is isn't there something that you were required to do to bring that to the court's attention based upon what new view was an inadequate disclosure and my answer to that is no it's incumbent upon that t not adequate doesn't that case in the use of that phrase me that you have to do something to bring it to the court's attention this is a situation where you never knew that this witness was go this issue because they told you they were going to apply on the issue they didn't tell you arguably the bases of those opinions and because of that maybe or for any other reason opinion without a basis i'm looking right at the two thirteen's and page five to get you know for the record here of the specific opinion that you say was just sort of thrown in there dr sudden disagrees that the standard of care required doctor back to order replace a nasal gastric tube or to otherwise decompress the f to men or to consult the general surgeon any sooner than it was done that's a pretty specific opinion and opinion that your expert came up with that this expert says no i disagree with that i don't think the standard of care requires it and the beginning of his opinions it is stated based upon his review of these materials all the records and to thirteens and other things that he reviewed and basics you've got the opinion you have all of the materials that he relied upon you have his curriculum details then the onus is on you to either explore further if you want to get more information or take what you're going to get a trial but never until the time of trial did the plaintiffs here for the very first time that the defense argument or the reason why and you tube said not have been placed the standard of care to not require it is because it's in a different part of experience that allowed them the foundation the qualification to testify with all your will you have to do at the deposition i don't know if you took the deposition or mr mirabelle or whoever all you have to do is ask the witness why i mean you were your witness says that the energy tube was indicated and would have made a difference it would have and the able them to avoid the ball perforation and if this other witness disagrees with it you can ask him why i how can you say that wouldn't be of any effect you didn't ask that question about the demonstrative and its inference that was a basis that had never been disposed and came in for the first time  explicitly that there was no concrete evidence but overwhelming evidence of bias and your suspicion of bias is not enough to warrant dismissal however how were you prejudiced by the dismissal of this juror and her replacement by the of the nature of the communication the one that you just offered that she was credible in what she said i mean can't how can we judge the the opinion of the judge the findings of the judge we weren't there and that's what the abuse of discretion standard that we have to employ would require us to do to bow to the judgment of the person who was there who watched the witness testified listened to the witness testimony and apparently believed that this witness had indeed violated an order and specifically said in this findings that this wasn't because of her religiosity believe the judge when the judge gave his opinion as to why he was acting was it was it was that subterfuge on the judge's part that you're asking us to find i'm not saying i did all i'm saying that i think based on a reading of the transcript based on being there the was asked the same question about whether or not she'd be able to put those brought before the bible five times in five different ways and answered honestly all five times it's you can credibility which is a different issue and he asked her five different times if she could put the ra before the bible and all five times she said that she would she said she didn't mean to deliberate just that that's next week john i haven't talked to anybody about this i haven't made a decision yet i will wait until we get into that jury room and despite that she was still not god and this was still a concern for the judge at the time he dismissed he said on page two urging us or encouraging us to decide this as if we were sitting there like judges over was the no for review that's not the standard the standard is whether or not he abused his discretion and all the case law in the case that in order to sustain their burden you would have to persuade us that no reasonable judge would have made the decision that judge will birkhead and i think that's where you're coming up a little bit short if i may be it would be a useful thing at this point to address your third issue respectful of this is the epitome of proximate cause under the doctrine of proximate cause it is not a defense that some party may also be to blame during opening statements and during closing argument the defense counsel and it  the jury that no one else to blame no one else was to blame for the plaintiff's injuries and during the course the trial no evidence was brought to light showing that someone else another physician or anyone else for that matter was implicates the conduct of a third party the second week how can we test this that you are prejudiced by the instruction if we assume let's say that it can't be the sole proximate cause when you have two different book was a two thirteen virus and you you want to go back to the issue that we've already shut the the barn door and i just want to talk about this how can we figure out looking at the record everything that you provided us with that the  erroneous giving of the sole proximate cause destruction let's just assume that it was should not have been given because factually there is no proof that there was one other person that was solely responsible for it how can we establish that you were prejudiced by that based on the record that seems like we left off a little bit of speculation on that question but i think there's always speculation that when asked that question but he had the answer as far as i'm concerned is doubt all doubt that the jury was luck to decide with because of our personally and i think we set this up in our brief establishes as an insurmountable obstacle for the plaintiffs that you have to take a step back you have to put these errors these alleged errors by the trial court into the context of the trial and established substantial prejudice that affected the verdict and we submit that the plaintiffs have not taken that step with respect to any of these errors that are offered by them in their brief and were urged and considered by the trial court again the difficult standard to overcome in each case or whether in the instance of of each of the arguments is the abuse of discretion standard as well and the juror london issue i believe the court has articulated in the questioning of plaintiff's counsel many of the points that were raised by the defense and the one point that i also would raise to the court that wasn't discussed in the opening part of the plaintiff's presentation was the fact that and again the plaintiffs have said that because london was religious it's impossible and they used that word impossible a couple of times in their reply brief for the court to hear determine that she either was incredible or that she wasn't telling the truth but the truth of the meter is even by her own testimony she was highly emotional she cried during the fourth year she was by the count of several people under oath defense counsel and then also of course the  testimony of the judges on clerk this juror was reacting in pristina rising frankly by her loud during the course of the trial soviets in addition to the issues of whether the  the the quote was had abused its discretion and terminating that there was an instance where instances of this juror violating the course explicit or not to try to communicate with the parties so i frankly under any see an overview let alone the abuse of discretion standard i don't know how the courts process could be questioned or criticized or how the findings could be questioned or or criticize and  judge goldberg made very clear particularly in the context of the hearing in the post trial motion that the tipping point for him was not the question of the juror being a religious individual but rather was the testimony of his own clerk who was not one of the defense attorneys and was not the court reporter but his own clerk who had certainly no bias that he witnessed a communication between or an attempt of communication by the juror to the plaintiffs while the parties and the judge were out of the room and the the case was is pretty clear on this court on this point i would say quite clear that the abuse of discretion standard apprise and that the court has great discretion on these issues and of course that has to be the way because otherwise how could the court manage a trial without having that discretion so i think that the the record  education free experience but that's not all of us there your honor and it's and as to doctor back he also says it's based on his involvement with this patient based on his custom and practice the medical records and all of his recollections so it doesn't it's not just the boilerplate custom education and experience and the same is true of doctor so yes he uses the words custom or whether education training and experience but he also uses to specify the materials that he reviewed in this case so i don't think it's a boilerplate i think it's quite detailed and certainly adequate to here have preserved  the right for the defense to bring these issues out during the trial and there certainly can be said cannot be said to be any surprise or any abuse of discretion in the judge's rulings on this issue and if again i would also want to point out to the court quick probably was already aware of this but the actual testimony at trial did not go into a basis it went into it was very in fact frankly the testimony was quite brief on the subject both as to so again on the two thirteen issue i feel that judge goldberg made the right decision and not only the right decision was well said if satisfies the discretionary his discretion and making th rooms and in the overview of the case was was very conscientious about going through enforcing to thirteen and i think was quite evenhanded about it as well as far as the proximate cause issue i find it surprising to hear counsel say that there was no testimony at all that went to the question of sole proximate cause from the first words that were out of management of the gastrointestinal intestinal issues two days before the rupture so it was always throughout the trial the defense that the defendant was  presenting to the jury and of course the defendant did say that our defense counsel did make the point that the defense was not blaming dr ganju were finding fault or saying that he was negligent but it was it was very clear from the testimony of all those witnesses and from the argument of defense counsel who specifically argued in closing argument that if you were a if you accept doctor for instance testimony and dr fortson himself stated on cross examination that use of the nasal gastric tube after we up to the time of the rupture would have related this outcome clearly that's evidence that is the sole proximate cause if you're talking about two different medical where you have two different times it sounds more like last clear chance are you trying to invoke the last clear chance  been given it's all his fault because if it happened later he was there later but and i don't see how the end of the case said tabak who was out of town at the time that that occurred as well back dr beck was basically accused of fail evidence to the effect that factor ganju was the sole is or only cause if you're talking about the identical theory that was levied against dr is your theory of it that it is the sole cause simply because the proximate cause because of the way that the plaintiff presented the case which was to rely on this issue of the nasal gastric tube and then using that in combination with all of the defense testimony including the testimony of dr guy joe who even though setting aside the fact that the jury certainly heading up a level dense to draw that conclusion there's no basis even if the jury should not have been instructed on trial before to and my first presentation was going to be an a lot better and more organized of a fashion but i do want to address counsel's point i'm going to try to do it in his most organized of a fashion as i can first because i began with the two thirteen issue all the dress some of the points she made regarding the two thirteen council indicated that the disclosure of d opinion it was really lost in the mix as far as we were concerned it was in consequential it didn't have a basis it wasn't something they were going to testify to they didn't i just don't know how you can say that one when that's your central theory of liability i mean if this was just some outlier opinion i could maybe understand how it's just sort of thrown in the middle of something but your case the central aspect of your case was that they didn't intervene to and then he talked about that opinion at the time of trial and maybe more detail than he did in his disclosures but there was no objection and it was an adequate disclosure and i guess my problem is that it's too great of a burden to put on the not disclosing party to seek every basis that's not disclosed for an opinion or to assume that in the pinions going to come in at the time of trial when it doesn't have a basis and without a basis  if we assume that if you're right on the two thirteen issue that wasn't adequately disclosed either in the interactive tory answers or in the deposition what about the failure to ultimately objective tri i don't think there was a failure at the side of the doubt on the issue an objection was raised immediately and the issue was that within that side what if you have a motion in limine a a trial to say that they shouldn't be allowed to get this evidence in and it's over ruled by the tr and then the attempt of the lawyer to get the evidence and comes up again isn't it incumbent the person is trying to keep it out and it was unsuccessful at most and let me to again object for the record on the specific basis that you have to object that that wasn't done here it was your honor and i could point out the pages where it was done i've read the transcript i read the record in detail and when the ultimate question was asked ther tone by pointing out that this is where the stomach is and what lead our own here this is where the perforation occurred in the stomach way up here you know that's where the energy to go and it's imperative to no mean it was me who said to the judge judge i think they're trying to make the inference here that an n g tube would not have been affected to breathe decompressed the core and that's why they're trying to use this to monitor that and the judge adamantly said no they're not going issue you know just say that i think that no deposition would last three hours and most witnesses would require redone position if rule two thirteen f three and rule two thirteen i which puts discretion standard and i know that justice abstain asked the question about the communication the bless you and what if it were based on that alone and i think in answering that question bought an important point and that's that this court interjected religion into the inquiry religion was not the issue of religion was not raised by anybody else and sharing a religious view with somebody is certainly not evidence of bias and that she mentioned something to the effect that that's just how she uses her faith when she's saying you know thumbs up that she you know wasn't it wasn't she the person that brought it up actually in addition to carrying a bible into the jury box the trial court brought it out before she even stepped foot into chambers the trial court sad ok i've heard what you have to say counsel to both parties here is the concern that i  notice that this woman was writing on the question bible and to me that raised the issue of rather not so be able to follow the law as instructed by me rather than what the bible calls her detail and then he a to the point of badgering five times that same question in five different ways and she answered all times she would follow the law not what the bible told her to say merely sharing religious be with someone is certainly not evidence of bias that's can't amount to saying that because she was the same race as as the plain text then they had an affinity towards each other and that's just that's just not true that was the purpose of the i'm sorry i'm just i'm sorry once again remember th standard of review and in order to say as we've all tried to address in one way or another today that no reasonable judge would have having thought that there is a jerk before him who was having difficulty following the orders of the court because she had indeed in his view violated an order of a code of the court it becomes very very difficult for us to say that no reasonable judge could have either come to that conclusion or having come to that conclusion could made the decision to dismiss the juror and even if we did believe those two things and might have ruled differently ourselves what right would we have under an abuse of discretion standard to substitute our judgment for that of the trial judge and even  justice lavin asked if we thought we had that and didn't disagree with what the judge said where is the prejudice that we could reach and those three problems i think it all candor are whether there are grounds to remove a juror or not and whether the judge sees what a judge hears which incidentally we can't see and we can't hear will lead a reasonable judge to make inquiry he did state clearly i think that regardless of what you're calling badgering and regardless of other statements he did say that he was not excluding or for the reason that you're suggesting he was which would require us to ignore the other basis for the exclusion and to basically say we don't believe you judge that you didn't decide this you're asking us to do an awful lot here in addition with regard to the project that's in addition to allowing me to find then an extra preemptory strike above what the plaintiffs say it tampered with the jones's ability to have a trial by jury of their peers and disrupted the composition of the jury say i just want to point out that i did know that when the judge's car testified about the thumbs up sign and that's one of the communications that the trial court referred to in his decision to let the jerk go and i know that she explained them away as you know raising her hands in the air and adamantly denied giving the thumbs up sign the trial court's clerks testified that unequivocally no other jurors saw her make these motions so i just thought that was wish this went on the record but i seeing dr gandhi's testimony as we did in the courtroom he wasn't a very likable witness and i think that