because we decided that the alcohol evidence should come in and that any argument that plane is put forth to exclude that happens is necessarily over rule but i don't see the connection why i'm not saying a long time and i'm sure he knows how to reach our opinions and he read our opinion and sat down this opinion doesn't tie his hands regarding his ruling on the most refer the filing and he ruled accordingly so why are you saying that explicit a whether they could testify regarding the attacks of an average person but i do believe the court dresses because in the trustee opinion you went through what doctor or miswrote i was in was it was that she was in care that she had to decrease motor skills depth perception and you said that based on the known physical fact of market trysts blood alcohol level at the time of the accident coupled with the statutory presumption that an individual with their blood alcohol level sitting in judgment in this case but average jurors and to the extent that the argument is made that you know the average person wouldn't have done this if not affected by consumption of alcohol and sort of i have some discomfort with that because you know i think it should be limited to the person that is put in context saying that ninety percent of the population that had this blood alcohol level in their system would be in the elimination phase they would have been over the legal limit and they would have been legally impaired both their mental physical fac individually was intoxicated now he did i mean is that the issue impacts a good day or is it under the influence of liquor in this what difference between the two you know well i don't understand the statue lymph i will one talks about under the influence but i also just regarding the closing arguments i know this was the third basis that judge burke used as far as reversal pound he castrates on about four comments  post waiver i'm a party for failure to attract during a trial it's another to say that the trial judge has no discretion to consider whether or not comments were en were were were to the point of impacting the jury and influencing its verdict that he felt was contrary to the notions of justice and that's what a trial is aimed to achieve and so why shouldn't a child happen that sort of discretion to say i think these are i think he's crossed the line and even though no objection was made i think they impact the jury's verdict and as an exercise my discretion i'm going to rely on those address the fact that they were invited by the comments that he had that's still a thing i am glad you brought that up because it's one thing to say that they were invited when there's a response  from opposing counsel based on the comments by other counsel i mean a direct response if the if the person says you know the traffic li presumes that the traffic light was green and you say well here's the time there's no evidence or you can point to the other witness there a direct response but your argument seems to be that if they  an emotional plea during the course of their argument that the community standards and raise it invoked the concept of children being involved that we can also  encourage if you want to respond directly to whatever that story was that's one thing but the say that i now have because they told the story i now have a right to tell whatever story i want it was a violation of a statute nothing more there's something that should be reserved for a criminal case or criminal court not you know i think you're missing the issue with justice care see it this time it is when you drink it personally that then today you have an aunt who buried alive for the rest of their lives now defense counsel responded by saying i have my own family story and what his attempt was was to bring the jury back from this rosy pi sympathetic picture of this is children that there are harsh reality your claim is he opened the door i'm saying it was an invited response to his his our has an invited response so is there is there any any limit to such an what you're saying is i'm not saying that his comment was a problem because i would say it was improper if it was not invited but if the court was determined that and invited comments albeit improper for a long time it should warrant a reversal of a multimillion dollar case of for three weeks i jury verdict i think that it insults the intelligence of the juror judge burke at my school as every trial court does that argument is not evidence before and after the argument itself the jury took  was the judge overruled it because it wasn't invited response but i guess he felt that he was wrong that's a good day that is opinion i would say that his opinion to say that that slant comment is a basis for reversal courtroom this isn't the record but she was there for an hour and a half with the church and i saw four of the twelve jurors openly peak at the end of her testimony i don't we're going to win a sympathetic we can only win on the facts and that's what we are we never tried we i'm not so sure we have any facts to support well international mental health record or mental health that the not only the mental health records might have been kept out because of privilege but it's not like the d c versus essay case there's no privilege here because she put them into evidence and her own counterclaim for her own psychiatric injuries that's how it all started out that's how we happened to get the records in the first place dr morrison just didn't opine out of the thin air dr morrison said she looked at all of her treatment records for two years before the accident going right up to i believe days before the accident and although they won't admit it in the briefing we pointed out and everything dr morrison interviewed that he did that is for two and a half hours and as part of her examination i don't know that i've ever seen a case with this been that much foundation where the person on the medical person offering to pin it looks at all of my records and then interviews me as part of it and then come to a conclusion i would suggest at that point but that's that said i know what it's like to be have domestic disturbance because that's the background of that i'm going to make sure it doesn't happen here and he's ransacked the thing is that he never said no and and it didn't happen but there is almost no case for example in the c versus as a case there was nothing at the scene where there was anything that came out what came out in the d c versus essay case was he was where the admissions or statements by the person in treatment while before the accident that they had suicidal i and that led to the question of whether or not this accident was caused because a suicidal ideations the question here for the jury would have been the fact that the fact that i have a son a definite psychiatric illness i'm under treatment for dr morrison said it was not understand i mean i seem to be having a lot of doors open here and one of the answers is opening that door and that the courts have always been very restrictive on mental conditions because as justice courts have everything everybody tries to try to slip it in had his or her mental condition but in this case we raised her mental condition and if the court writes an opinion the problem i would see it having us when it gets to the point where i would have to say would has this condition i have if that is the narrow limitation of this court's ruling i just would ask what doors with that old how often does that point happen and it would only that's what they found out you could you could never get this evidence and just this is medical testimony it could never come in without a doctor behind it if if point if it stood there and said to the judge today we want to get this in and this is what we think these records and the interview means it never would have been allowed and i want t argument we have an interview by the psychiatry to very specific amount of information the only door some would open would be doors specifically were mental condition has that issue that's only going to be in a willful and wanton case and only when the person has a psych not not in the mental condition is the term they used she has a definite defined i forget the name of the book i think you had three illness that was not under control that's morse's testimony unless the court's going to disregard keeping in mind that judge burke had no problem with foundation what he had problem was he just didn't think it's relevant but that that's that's the best i can do on that as to the other points from the court's questions i understand where i think where the scene where the landscape lies on some of the other issues the real question is still the scope of the scope of the trial court's ability to look at these issues and justice warren said what was in my notes when you make statements in front of a jury the judge is the only one who sees what's there and it sort of mirrors itself in the in the closing argument because one of the one of the issues of course is we didn't object in closing argument to some of the first  if the court reads the entire transcript this was a trial that although it was conducted with good figure was polite and even the closing arguments were not bad they were pretty routine and all of a sudden this court can never see if there's a happened that day but it surely shook everyone up basically what he said was my aunt was killed by a criminal in the words that hang in the court it was just like this you know her client and that might have been enough to close but to shift the balance in what is otherwise  a victim of domestic service she isn't a battered wife or she hasn't had spousal abuse or domestic disturbance stems from a now control team that's what that domestic services also thier says treatment he talks about there's an occasion of her having issues would just like to give a quick quick rundown of her mental evaluations in the months preceding the actual action itself february thirteenth two thousand and one dr clayton signs of work to release form sending her back to work but march first two thousand this i understand that but and then you can understand the context because i don't want to misquote it because i believe these briefs have misquoted maersk characterized and you can look at the actual closing argument itself and i believe and i agree with court counsel wholeheartedly this case was handled professionally it was done professionally it was done clean and the