there's nothing in the record to support the court's calculation nd with respect to an economic machine let me ask you a question about that i certainly appreciate the united states  positioned any awarded damages to a five year old based on what might happen in twenty years or forty years it's very hard to defend  what is the old turn of the judge can't say well we don't know what your education will be or what your earnings will be so come back in twenty years since that's not an option what should the judge  yes well what she heard her view was that there were while s would be precluded from certain job opportunities because of his injury there were still a wide range of potential absent injury the district court assumed that absent his injury with just a high school education as with his earned one hundred thousand dollars a year and you know but there's nothing in the record to support that and i think it's very and sixty one dollars a year with a high school education as a district court if it had not been injured and that was consistent with what the government's expert reported she reported data from the bureau of labor statistics that the average wage for occupations typically requiring a high school diploma was forty one thousand one hundred and twenty dollars a year and so unless you think that it's sort of disproportionately likely to have had a higher paying job his injury i mean well it's certainly possible you know that sort of mere possibility isn't a sufficient basis for damages board and what you're saying i think that's i think that's right your honor i wasn't sure from your question if you were suggesting to a different judge or force that was if you were just asking about the trial so that's part of the that's part of the case under our sort of rule thirty six that's one part of the issue but i understood you to say you don't want to new trial just new findings and new numbers for the damages latitude these are very very difficult decisions to make in light of davis and i wonder why we shouldn't be equally deferential to the judges that appeared in the testimony on cross examination of the government's expert in response to questions about the likely wages of skilled union trades the government's expert testified that  certain skilled union trades like an operating engineer could potentially earn eighty dollars to one hundred thousand dollars a year and when asked whether it was possible that absent his injury as could have earned  million two hundred thousand dollars a year the government's expert testified that it was possible but she explained that her answer was based on the idea that anything is possible and che it could have been earning a one million dollars i don't think that this isn't just kind of tongue in cheek why anything's possible you know we may win the lottery i thought it was actually a green with was necessarily suggesting it was likely and i think she was suggesting that you know she didn't know you know that these sorts of occupations are are sparse you know skilled trades and not everyone has the requisite counter skill and i think  saying yeah it's possible the you know the upper end may be one hundred thousand so it's not the district judge just didn't flip a coin and come up with one hundred thousand and that's that's right your honor but i think that the problem is  mere possibility isn't sufficient for an award of damages that there has to be some some likelihood and i think that you know the standard which you know plaintiffs cited in their response brief agreeing with us on this is that you need a well i but i i think the longer that they're there what there was a disagreement as to the effect of the injury on x is likely earnings and i think that's you know there there's i think  reasonable minds can disagree in terms of how to you know how to determine that but i think you know the fundamental problem here is starting with the assumption that she would have earned one hundred thousand dollars a year in a skilled union trade it's just i mean it's just inherently arbitrary and i think the fact that plaintiffs own experts assumed earnings of just under forty one thousand dollars a year with a high school education if as has not been injured skilled union trade absent is injury the district court could have just as easily assumed that he would have been a payroll clerk or cashier even absent his injury and making the award zero your time your time has  constant references that plaintiff phones i don't know how the expert becomes mine he was an expert that was who offered evidence in the plaintiff's case however there was evidence offered in the defendant's case and that evidence came from their vocational rehabilitation specialist as it relates to the issue of last earnings the trier of fact may infer a future loss of earnings from the nature of an injury and when the plaintiff is a in fact what the law says in illinois is it says the trier of fact may infer a future loss of earnings from the nature of an injury and courts have permitted an instruction to that effect where the evidence is a deuced of some permanent injury to the minor child the critical inquiry as it relates to this is the issue of permanency it is a question of attempting to find the correct question the nation which was conducted on the defendants will cation experts was focusing on the nature of his disability this child has suffered an injury to his brachial plexus it is a very serious injury it has been described as serious by the evidence the un contradicted evidence i might add in this case the brachial plexus medical introduction is that it takes comes out of the cervical spinal cord and it controls the movement of the shoulder the arm in the hands in this particular case one of those nerve roots was literally ripped out of the spinal cord that's what the definition has been involved in as a result of that injury that child underwent surgery and then dr nestle the only doctor who testified the government chose not to get an expert to examine this council counsel i'd like to bring you back to some of the legal problems in this case but let's go past the question about what the right way found that there were in fact incurable neuropathy injuries associated minutely the injury in that case was probably a greater injury as it would relate to the actual volscians to the child beyond that i would say that the court did in fact look at a case that it regarded as similar returned a verdict five million dollars less and did that on the basis of the fact that the description of the injury which appeared in that do it was for loss future earnings it was not economically not economic damage pain and suffering was three million dollars disability was five million dollars which in this instance we elected to go on loss of a normal life and  lost earnings yesterday lost earnings and medical expenses ok this is kind of hard on the phone should i keep going as it relates to the analysis the judge rosen single engaged in here based upon the guidance that this court had given her in not only the arpan case but the guidance that i apologize for making the reference to stingel you are correct the court in the district court is the district court and it doesn't make any difference who the judge was and i sta task and there's really no formula and the purpose of consulting damage awards in other cases is to facilitate according to the court's language and to keep for johnson a more thoughtful discipline and informed award but there's also a statement to the effect the question should be the byword when looking past awards because they offer quote at best a rough approximation of damage  as has instructed district courts to engage in comparison of other cases and use their discretion to determine which of those cases they find informative and which of those cases lack sufficient detail information or similarity from which they could draw those conclusions in her order the court did in fact compare cases in fact the court compared sixteen different cases i made reference to one of them's got those cases where there was a verdict of thirteen million dollars in other cases she compared she found that there was either a settlement which she found to be distinguishable because obviously settlements typically involve amount of money less than what a jury may or may not award hence the risk factor or that there were insufficient facts described as it would relate to this particular child i'd like to emphasize to the court that it relates to this issue of other cases the other not economic damage claims that we're talking about this child this child the evidence in this case in the trial judge heard this child has is unable to brace himself when he falls he can't touch the piano keys with his fingers he can't operate the key port in the chinese american culture predominant use of his left hand is looked down upon he's already aware of the differences in his inabilities and that and how that already upsets him at the age of four years old and in fact frequently wishes and says and it's testified that he wishes that he had his brother's right hand he has diminished grip strength he's not going to be able to play video games swing a golf club swing a baseball bat play musical instrument this is a significantly disabling injury and the judge when she was making her findings as it relates to these other issue not economic damages she specifically discussed the effect of this injury on disfigurement as this child ages the disfigurement is going to become more pronounced because as he grows his bones will not grow in tandem and the difference between his good arm and his bad arm is going to become more and more pronounced the judge discussed that was aware of that and analyze that when she assess damages moreover in addition to that this child is going to have as the child gets older an element of mental anguish because as the court has found mental anguish is an appropriate element of damage in this case this child is going to be ridiculed there could be evidence  ridiculed and as that child continues to get older kids can be cruel and it's a difficult situation finally and equally important is it relates to the loss of a normal life is going to have one on this child  whenever there are going to be kids playing ball this kid is not going to be chosen he's going to be standing and standing on the sidelines maybe i'm a little too passionate about this because i have grandchildren i look and see what happens to these children but i believe that in this case judge rosen stingel heard the evidence she heard the testimony and this is carefully considered what the facts of this case were he understood this child was five years old and he in fact understood and took into  the fact that these elements of damages for a child who doesn't get to come back for within the ambit of what is in fact fair and reasonable to address quickly your time has expired so you may want to wrap up here ok i was just going to say your honor is one hundred thousand dollars figure as it related to the wages they came from their testimony it doesn't matter if the evidence comes from the defense expert or a plaintiff's expert they that witness