where the defendants believe that the jury got the verdicts right and in a lawful manner on all points that leaves us with about half of the issues to quibble over because we agree with them on about half of the points the jury concluded that it can clear a collision occurred where by mr poole the defendant struck collided with my client's s u v which she occupied with her son the jury also concluded that injuries followed from the collision and that they caused the entirety of miss wright's medical treatment that medical treatment awarded at two hundred thirty five thousand dollars and was the agreed to amount of past medicals for the keys so the jury concluded there was a collision that there was negligence that the collision reversible error is the most glaring error in this case is the quantum given for damages there is probably ten people in this room right now or fifteen people in this room right now but the issue of the right for the what was concluded to be two level cervical fusion and seven epidural steroid injections over the course of the thirty months between the accident and trial i myself have left cervical fusion and an epidural injections we can only surmise potentially as a guess that of the seventeen thousand dollars maybe they allocated ten thousand dollars to a two level cervical fusion and one thousand dollars to each epidural steroid injection what is entailed in a cervical fusion well they cut your neck open they peel away all of the inside parts of your neck they then cut the bone then cut out the disks inside then hammer in cadaver buttons then put either blades or locking screws in plates that are metal inside your neck so your net doesn't move anymore right there as the i am a doctor to test it it's like having one of those little wooden snaky toys i have a three year old i haven't seen that to wear around my house lately but when i grew up it was pretty popular it's got a bunch of joints and as as the i am a doctor testified once you thieves one two or more of those together that toy is no longer fun to play with it doesn't work right anymore and i am he doctor acknowledged all of that and he acknowledged causation and that's why the jury found causation he acknowledged that all the treatment was appropriate indeed knowledge that she was going to have a range of motion problems and limitations for the rest of her fairly young life in her forty's and further that there would be pain in that she would more probably than not need future orthopedic here as a result of it much like she'd already had seven epidural steroid injections and a fusion so it was established by the jury and defense does not argue with it that that procedure and the seven epidural steroid injections which involve about a three inch needle going into your spinal canal where in there is a risk of paralysis there is a risk of infection by piercing sac in allowing spinal fluid to come out each time you have one of those you run a risk of of literally a spinal cord infection that could kill you or paralyze having been through this myself i can assure you your family is not very comfortable when you go in there you're not very comfortable when you go in there and that's why louisiana law has dictated that the minimum that you can be awarded for his cervical fusion is one hundred ten thousand dollars a two level cervical fee that's in the cornea case and other cases that we said in our brief there in the jury had awarded them about sixty thousand dollars circuit's wisely were elevated to the minimum conscionable level which they said was one hundred ten thousand dollars my client unfortunately despite causation be established was awarded seventeen thousand dollars if this court were to allow that to stand we can imagine the easton's quantum book the other point of books all the new electronic quantum is now going to say essent no longer exists there is no minimum quantum had this but the jury rendered a verdict of ninety five thousand dollars it would not have been sufficient even just for the cervical but there's also louisiana binding case law under the erie doctrine that binds binds your honour's that says under the buckeye striptease decide in the fist circuit that it lady who had some radio frequency appellations and separate dural injections a far far far less invasive concept then it's a level cervical fusion much more akin to the seven epidural five thousand dollars in general damages that's over ten times what the jury awarded in this case just for that the nerve blocks ablations an injection is ten discretion and an abuse of discretion to be met by an error of law and it is the law of the of the state of louisiana under eight hundred fourteen that you must give adequate damages and  almost all of the cases that we cited regarding minimum values cite the whole chain of law saying that you've got to elevate these things to reasonable levels and you're going to guess i'm going to compromise y happened the jury that the judge then winds that they said well we're deadlocked the judge then gives them the allen charge saying hey you know this is a big deal you all know that allen charge better than anybody is a big deal go nonetheless defense does not even contest the conclusion and we accept the conclusion because all medical doctors agreed everything was caused by this sex ok so the two hundred thirty five thousand dollars really there was never any evidence to contradict that so that part of the jury's verdict is i think on a sale and they don't contest it either  dollars for anything else zero general damages zero feature it wages zero future medical medical care zero everything other than they pay the medical in what is the jury do they've been debating and at loggerheads for eight hours they've rendered at least one two viable conclusions that there was a collision that it caused all the medical treatment and injuries and they're worn out and they come out thirteen minutes later so to decide the entire damages model they come out thirty minutes later i put i propose it was probably more like eleven or ten because it took them a minute and have to get in there and get out of there so clearly i think what we have here is we have an appropriate verdict with regard to the collision w regard to causation and we just have a problem with the damages they didn't give the proper legally available range of damages here and by coming back after four injections and as you can see i move it around and it doesn't mean that that that i felt great after my surgery it doesn't mean that i felt great you know for the years before i had the surgery and frankly i don't feel great right now my arms going down so there are there are it's not a credibility issue it's not a perception issue the law says very clearly under buckeye sir if you get these types of injections and whatnot one hundred seventy five thousand minimum you can give jury gave less in their court of appeal had to raise in credibility there is of credibility credibility isn't an issue either when you get your neck cut open and cadaver bones hammered into your neck it hurts and nobody has contested that under the dome of  and i am a doctor talked about the years of pain in restriction she's had even under thirty months of treatment at twenty five hundred dollars that's you know seventy five thousand dollars if you gave a thousand dollars a month that would be thirty thousand dollars this would be a more interesting debate if the jury had come back and given something like you know one hundred seventy five thousand dollars then then i think this court would have to decide well that's what you for the injections do we just throw in the cervical fusion but instead they didn't even make it close they gave seventeen thousand dollars because they just threw in the towel so i would quantum in every book on every on every lawyers desk in town in the state that is completely throws out quantum completely there the jury  erred in in not giving any of the damages that emanate from the damages when you've got hundreds when you've got what should be at least a minimum of one hundred seventy five thousand damages for the size and what not under the  case you got at least one hundred ten thousand dollars for the cervical fusion so we're talking now one seventy to eighty five is really what the minimum quantum allowable by state law should be in this case that also affects your appeal the first is whether sufficient evidence supports the verdict rendered by the jury which you just heard about and second whether the trial judge erred in denying the motion for new trial primarily on the basis of whether the verdict was  compromised verdict i'm going to focus on these two issues in the interest of time i defer to the brief on the image injury issues that were raised on appeal but certainly five time i'm prepared to address any questions on that in that regard  verdict and damns the word is supported by the evidence in this case is this this verdict is not a product of plane air the police first have to address to address whether sufficient evidence support the verdict entered by this matter and they in fact do i just standard for viewing the verdict as a whole as opposed to just the denial of the motion for a new trial is actually playing their standard and because this was a diversity case while louisiana law did not move for relief pursuant to the federal rule of so procedure fifty eight this court should consider this sufficiency of evidence of the player standard and can only reverse the findings of the jury if the judgment results in a miscarriage of justice this judgment does not in on plain error because i believe the standard is very important the court must ask if any evidence supports the jury's verdict any evidence if any evidence does and we're going to discuss that there's not been a miscarriage of justice and the court should uphold the verdict  and then more specifically with regard to damages in particular the court shouldn't overturn the damage award unless it shocks the judicial conscience and raises an irresistible inference that passion prejudice corruption or other on august second two thousand and sixteen too much in for surgery on june sixth two thousand and sixteen video surveillance really showed her loading unloading a car driving turning her head to both sides looking up and down bending down to pick up bottoms picking up and carrying boxes and bags turning her head both directions shopping and performing other tasks all this time she appeared to be in pain and that's called jury can make too much before that in mid april twenty sixth seen there was more video showed her doing some of those very similar things including lifting up a big box up her arms outstretched like a baby stroller fell out getting down to pick it up driving turning her head it's all this of course before the surgery and then after the surgery october thirty complaining of objective opinion at all and these are doctors are not you know being called to testify this is just unorthodox doctor who examined her and test a range of motion finding her neck supple and in fact the appellant agreed with the throughout this entire process with the with minor exception of right after surgery which of course as expected fourth she was in a later access that made her pain worse but she testified it consistently at trial as to what happened in those to disregard her testimony at trial concerning her alleged pain and suffering as a whole on all of these bases and the judge the court's role is to decide whether any of it supports this verdict and we submit that  get the allen charge they couldn't come to an agreement but we were not told on what issue whether that was liability or damages or or you know some other of an injury issue and i'm happy to go into the compromise verdict question to show that this is in fact a compromised verdict on the first element is that the verdict is itself inconceivable and no alternative explanation for it exists already discussed the various reasons why i believe that the verdict is not inconceivable you know there's a lot of talk about other people who had these procedures and what and and the fact of the matter is everybody suffers differently everybody recovers differently what might sideline me and called me a sufferer might might not be the same for someone else so those comparisons and certainly those two other state court cases they're just not happen in this case and that was noted by judge fallon in the denial of the motion for new trial and these are just they're simply not relevant i mean if if we just had a red shirt database of cases where everybody got to serve a fusion got x amount we would never even submitted to the jury we wouldn't irrelevant because they cite the improper there's an improper standard there this court is guided by the federal standard showing if any evidence supports the pain and suffering award and the damages were then the verdict must be must be upheld dear moving on to the fourth element of the yarbrough case is the failure of the jury to reach an agreement after introduction and this is exactly what happened in this case very came back in and reaching agreement after being  by the judge when all parties agree that a zero for general damages is in fact inconsistent this discussion with the trial judge was specifically in reference to your birth and the fifth element that the  new trial there's simply no evidence that there was a tradeoff on liability and damages they asked one question and deliberated for a while that's not that's not evidence that there was a trade off liability for damages and specific also the yarbrough i would note that this is see on page three seventy six of yarbrough the court says although we do not favor questioning verdicts we are faced by the obvious facial contradictions between the verdict and the evidence presented don't think the don't think that the argument appellant satisfies any of the elements of the newly discovered evidence the facts are clear that the palace knew about this officer at the scene of the accident itself so certainly not something that was discovered after trial it may have been cumulative because the first officer was was this is a witness but never called through no fault of the defendants and the appellant didn't show that she took every reasonable effort to procure this evidence before trial certainly knowledge of the officer for two years before trial doesn't support a finding in that regard chain between insurance adjuster and counsel for the appellant wherein the adjuster said they agreed that liability was clear in this paper in your client's damages hopefully this can be done without the need for litigation this is clearly falls on the roof or away to the rules this was an email that was designed to foster settlement in avoid litigation bias explicit terms and that was addressed by a judge found in  sixth two thousand and sixteen medical record now is related to the appellants treatment and diagnosis where she told her doctor the quote i was supposed to have surgery on my neck but chose not to quote and the court ruled this was an exception to the hearsay rule under eight zero three paragraph four because it was a statement made for diagnosis and medical treatment and the record itself was an exception and rate of three paragraph third the appellant complains about a genuine twenty third two thousand and seventeen letter that was allowed into the record this is a letter from the palace council to geico insurance company which was the insurer in the later accident wherein the the letter states that the surgery was caused by this later accident so it is inconsistent with the statements made at trial and pla as well as buchanan the force of an injury issue appealed was the exclusion of any portion of the police report where the investigating officer gave an opinion as to the freshness of the tire marks or what caused the accident the officer was not qualified as an expert is not allowed to make that determination and judge found properly excluded those portions and excluded the presumptive testimony of the officer who didn't end up testifying and i believe the last issue appealed is the appellant's contention that she was entitled sion ruling or an adverse inference concerning some dash cam video that simply never existed the owner of the trucking company testified that only three things could cause the video to trigger and none of those were present here the appellant's didn't call an expert over the company that built the camera or anything like that to suggest that this video would have existed in that defense knew about it the fact is the video simply never existed so it could have well actually that case doesn't address must admit i was very surprised when i encountered that and i would strenuously object to that concept because when you try a case in federal court you have to pay the doctors you have to pay all your experts and you don't recover those cost so it is frankly a burden on play just after we try the case which is why i specifically causation the fact that an accident occurred should be preserved by this court it's not disputed by the defense so to me that we need to order then i'm glad you asked that question no i don't believe that you can under the law i believe that what you have to do is remand for a new trial on the limited issues of damages and apportion of fault damages in the sense of damages other than what is not disputed which is that they awarded the damage to the plaintiff's past medicals so what are the general damages what is a loss of consortium what is  if any loss of earning capacity all those things that naturally emanate from having all those terrible things happen to you during that period of time and in the future where you're not arguing a loaf of consortium was the correct rulin because the son had no you know i'm i'm arguing that because the son was a very young boy and the only and he was just has his mom it's his mom and him that's it so when the mom's laid up your honor like you were with surgery and having all the problems that come from having a bad spawn all the surgical procedures in the coverage and everything else and the ongoing problem unquestionably that's worth at least a dollar to her son it's also worth at least a dollar to her like it is to me the fact that because i'm all stiff and hurting my relationship with my son is in and they gave zero that is that completely defies the evidence there's this case out there where a woman had medical malpractise procedure lost her whole bowel and they gave nothing for a consortium that the court appeal reversed that said it's clear from this type of injury to a woman or to a man that their relationship with their child their small child is going to be affected in some way so that should be reversed also ruling is the proper and should stay all the damages are agreed to by their doctor but then as a little too early says she last to move the mobile segments no getting it back it's mechanical pain a two level season is going to cause some adjacent segment problems that he talks about three percent per year so when counsel says that his doctor didn't say any of this i'm reading it it's in the record twenty seven thirty seven twenty seven fifty twenty seven fifty one i said wouldn't it be more probable than not that this right is going to need orthopedic or spinal care in the future as that process continues to wear and tear levels internet these are it's up to that she has mechanical pain limitations i would say yes we have a contradiction here i'm reading directly from the record he says she's going to have pain limitations at center and we all understand that  that should be set back other than the award causation for the past medical lasted at least a portion of all it needs to be read retried as well a key witness there were two of times we e mailed them over and over again they were a broken record you got to talk to the officer that wrote the report we don't know who else was there we only know the officer at the port that's the corps hall was sending her voice mail we left like ten voice