in this particular case liability was not an issue the defendant had it admitted liability the evidence that was presented excuse me to the trial court consisted in part of defendant's sprint cell phone records which showed that i mean do we clearly have definite evidence as to why it was used when the use was terminated on the date in question yes yes ma'am the records did indicate specifically the the cell phone records shows phone calls and come in and outgoing as well as text messages and when those calls ended as well correct correct and ok yes and in this case the cell phone records clearly show that in the minutes perceiving the time of the accidental when i say the time of the accident is as it is reported on the police report which was six fifteen pm that assume that when an officer is filling out the police report and responding to a motor vehicle accident that in might not be it might be unlikely that any of the drivers involved may know exactly what time it happened so it may be that time may have come from when he checked with dispatch to see what time they dispatched him to the scene which means that the call place to nine one one may have happened and probably happened a few minutes and refresh  my memory here do we have simply the time on the recorder do we also have when the officer was dispatched when the call came in and we would we have here just a timeline to report the time on the report which shows six fifteen p and the cell phone records again from six o nine to six twelve pm show for either incoming and received or outgoing and received phone calls from defense so in those calls had  record shows unfortunately sprint and i think this may apply to most cell phone carriers they only hold the data for the text messages for sixty days by the time that we were able to get the records we were not we did not have access to that data so that would show specifically the dates and times text messages were sent and received from the phone what it does show in the records that during the thirty day encompassing the date so it was from april twenty third two thousand and one may twenty second two thousand and ten that nine thousand four hundred twenty nine text messages were sent which on if you average based on a sixteen hour day that's about twenty messages perhaps out of three hundred fourteen text messages per day about twenty text messages per hour based on sixteen i think that's a little more speculative than the cell phone usage as far as making a call that the person was possibly on the phone making the call of the time the accident i absolutely think that that would that we should have been evidence i should've been presented to the jury absolutely simply based on average over the course of a month the usage for texting not simply based on that your honor there was the what the testimony what the evidence that we have what we know is that on the evening of may or the defendant was driving from a softball game in a local high school to a local restaurant that she was on the phone while driving minutes before the time the bason as reflected on the motor vehicle after she had a graduated driver's license she was eighteen years of age at the time and that was contrary to statute that this allows the use of cell phones for drivers with a graduated they're under the age of nineteen we also know that at the time of impact she was looking down we know that she was traveling at forty miles per hour we know that there was no squealing no horn horn honking and she acknowledges that she did not apply the brakes so are are we submit that the records show not just that she was her conduct was very willful and using the cell phone contrary to statute while driving which is evident from the records but also that  and as stated in defendant's bre she denied being on the phone at the time or proceeding the accident and that is clearly not true because we do have the records show that the my recollection from reviewing the record was that there was the cell phone records themselves and the deposition the cell phone records distopian so  statement in response to justice white's question in the minutes proceeding the accident which was the day that our time does six fifteen the last call but it ended at six twelve however there were phone calls in the record court should have allowed testimony to be presented to the jury regarding the cell phone records and that he erred in where we could have presented that testimony and that circumstantial that the if there's any evidence that could tend to show what to prove but we are alleging in this case that there were numerous the luminous text messages throughout that surrounding for does and only because we missed that time cut off but the testimony would state how many texts were and within that period of thirty days surrounding that and our position is that it is evidence that the jury could as a reasonable person and her from those facts come by and with the testimony of witnesses including the defendant that she was going forty miles an phone a few minutes prior to the time reflected on the accident report given all the number numerous text messages received during that time period that she was on the phone  have any information as to whether she was or was not on the phone because of the passage of the time was that offered to the trial court i believe that was judge during the motion for the defendants or plaintiffs motion to relieve to amend the complaint unfortunately we do not have a transfer there was not a court reporter nor the reporter operating at the time the motion for summary judgment was where was the standard review  and to go back to the argument and shoe address the motion for summary judgment many of those same facts that we've just asked which is what we're arguing here today that this is clearly all this all the facts that i've just given your your honour's as far as regarding the stop and records the text messages that paul place fact that it was obvious willful misconduct just being on the phone while driving contrary to impact especially in a circumstance when we're dealing with a defendant who was on a graduated driver's license was rather because statute precipitately precludes a person with a graduated driver's license from using damages if that was raised in a post trial motion found was that raised my recollection was that it was raised in the post from motion i believe i would have made for your argument with respect to that judgment for the defendant on the issue of alleged cell phone usage at every stage of the case plaintiffs fail to come forward with any admissible evidence circumstantial or otherwise that would have supported an inference the defendant was using her cell phone at the time  while there is no evidence to support it and the defendant specifically didn't need to be something the jury should at least know about that there's no proof which texans going on but there's no proof the number of times that this particular person but but but that's just it that's where we get into a really a prejudicial issue informing the jury that there was this large number of attacks over a thirty day period a thirty day period that is the majority of which is after the accident occurred so you're basically making an assumption based on assumption based on speculation to try to get to the point where the jury can conclude that my client was texting at the time of the question is the question oh yes it's not good what about this whole business of any expert testimony on the question of what the phone records can say there was not  confirmed the fact that the records don't contain any times for texting but they do contain times for the telephone calls and the meaning of when a full minute is charged or a i believe that was in the affidavit of ashley ramos that was attached to the cell phone records that were some that were supplied to the trial court in support of the motion to man and the motion for partial summary judgment but the evidence deposition testimony was never presented again they file an amended complaint that did not include or reference the prior attempted claims or  or which are arguments on those issues accidents the defendant cell phone records from this deposition deposition of another witness and two witnesses well the deposition of jennifer patrick who was one of the people who the records show defendant was using her cell phone at the time of the accident there are two problems with that argument first of all the records presented to the truck were didn't actually support that conclusion and the use of a cell phone even if proven wouldn't effect is the same the trout court has rejected the claims as a matter of law and there are three ways that you can preserve that three very simple ways to preserve it you can either stand on the rejected counts taken voluntary dismissal and court makes clear that if this isn't a difficult thing to do to preserve these claims in fact they may use the language of waiver rather than mere forfeiture so i think we're at the point where it's expected that litigants will do the defendant cell phone records in this case permanently show that there were no telephone calls placed to or sent from defendant cell phone in the three four minutes prior to the accident or in the three minutes afterwards the records contain no information as to when any attacks were sent or received the records only just close a total number of messages sent or received by the phone over a thirty day period that encompasses both before and after the accident a majority of that period is actually after the accident we just can't draw anything provocative problem that a jury would have to engage an impermissible speculation and conjecture to determine based on the cell phone records that my client was texting we also have the undisputed witness testimony from my client that she wasn't texting or speaking on the telephone either at the time of the accident or immediately before we had we took the deposition of jenna patrick who was one of the the people whose telephone numbers were referenced in the in my client's cell phone records she testified that she was speaking with me on the telephone of the time of the accident we have the affidavit of john signs the other person who telephone number was referenced in different cell phone records he also testified that he did not speak to his daughter at the time of the accident but that he spoke to her several minutes after work that would be the six eighteen telephone call from defendant cell phone to her stuff all of the witness testimony is perfectly consistent with the cell phone records that were produced and that there simply was no dispute a fan that was raised by cell phone records it's perfectly consistent with the all the distinction between just being committed to a legible on one count and being able to make that clear that requests for punitive damages at trial i think there there is a further burden to meet in order to make that request i see that i'm running low on time  was no testimony that defendant was on the phone while she was driving prior to the accident again that is speculation based only on the records and your assumptions about what dan defendant did after leaving the softball game defendant testified in her deposition that she did a fire breaks that as a page three forty six of the record defendant also testified that if she looked down it was likely that she was changing b channel on the radio as a page three forty eight of the record so and also with regards to miss ramos who testified that in evidence deposition regarding the sprint cell phone records she was listed as an expert there was an evidence  n taken of her testimony and that in that deposition she stated that although the records that we have showing those over nine thousand text messages cannot be  there's no way of knowing because as i said the dad is not saved after sixty days but it could have been made at any time during that thirty day period so if again is testimony from an expert on those cell phone records that could have been presented to the apologize if i was not counsel at the time but my understanding is that it was offered during the offer proof that she would be i don't have the evidence deposition at during the offer of proof at trial that was made before on the science was on the stand offer proof was what the cell phone records and the accompanying testimony would be and what it would show which is but i just stated so you don't believe that the actual deposition itself to i honestly don't know so i can't i just seem so speculative to me and we say i'm in an accident and someone says i was looking down immediately prior to it and then my cell phones in the vehicle and they pull my records and see that i've sent ten thousand text over the last thirty days how does that even come close to a reasonable inference that was texting at the time of the accident well i think accompanying that with the fact that we know from the records which is the number of calls and all that received just minutes before the time reflected on the accident report of six fifteen and there after coupled with the fact that she was technologists as she was looking down i don't disagree with you i absolutely could have been and she would have been allowed to testify that at trial but my argument is that the jury should have been now allowed to hear all these facts and make what reasonable inferences the jury is allowed to make from the fac  arguing that there was a waiver or for a picture of any argument again the plaintiff had cited box craft and as was just discussed specifically justice mclaren's especially concurring opinion in gail or that where he stated that the preservation of the cause of action comes from the attempt to file the amended complaint containing the possible action not from the trial court's decision to grant or den