i'd like to focus my remarks this morning on what i believe people primary issue before dysphoric game where the not the plane received a fair trial and in part doing that the plaintiff did not receive a fair trial i want to further focus my remarks on two areas the first being the trial court's exclusion of the coroner's report and the death certificate it is the plaintiff's position that these records are admissible under the only rules of evidence and they were also prepared by the coroner in the ordinary course  f the coroner's business now the reason why these matters were important is speak as it was the plaintiff's theory hatched trial that the defendant dr dole's committed professional negligence in one of two ways either by failing to immobilize the plaintiffs or it might mean to keep the plaintiff on blood thinners sufficiently the trial court's exclusion of the foreigners or and the death certificate undercut the plaintiff's argument because the death certificate states that a cause of mrs williams death was a mobility as a result of her surgical care death certificate autopsy that is correct so how does it come into evidence as to who of that of course i because it was prepared in the ordinary course of business i do not believe that an autopsy is required in order for a death certificate to be to become a despite do not believe that there was a controversial issue back as to the cause of her death she died as a result of  controlling principle at time that horner's records are admissible into evidence and i believe that that's still these controlling case law in this district therefore i believe that the coroner's report and the death certificate are admissible because they were not admitted in this case the plaintiff's ability to effectively argue that dr goals they are to a mobilized mrs williams was a contributing factor in the cause of her death is that your expert said yes well if that's what your experts said and it was before the jury well yes but the bases and we did it dr who talked her his testimony was limited by the trial court in a couple of ways one because the basis of his report that being the coroner's report and the death certificate which he did review and he did testified that there was for part of part of the bases of his opinions were something that he relied upon but not admissible may please the court and abuse of discretion is defined as a decision that is arbitrary and simple and reasonable or a decision in which no reasonable person could adopt the view taken by the trial  regards to this death certificates the plaintiff is arguing that this was a miss of all and necessary under the rule of criminal procedure one fifteen past five point one which creates a business records exemption that can apply to death certificates provided they meet the other requirements we believe that is as your honor said limited to autopsies as the statute says but more importantly five eight two two zero one is a specific statute that deals exactly with this type of case which is wrongful death cases involving negligence this was a wrongful death case based on negligence that statute says that coroner's records cannot be used to prove any fact in controversy and we would agree that pulmonary embolism was the recognized cause of death but the fact that it was secondary to immobility was very much in controversy and to allow this record in without an autopsy having been performed a record that is sealed and looks very official the jury interprets that as a fact and it's not it's an opinion in the case law says that that is an opinion absent some type of autopsy and as your honor pointed out in this case there was no prejudice because the plaintiff's expert testified regarding his opinion as a cause of death he testified regarding his basis for that opinion which included his review of the coroner's records when you have two statutes or rules that are at war with one another like we do here the specific controls over the journal so to that extent five eight two two zero one is the correct statute to apply and that precludes the death certificate from evidence that decision was based on an accurate reading of the law and was not an abuse of discretion the second issue that p raises is the evidentiary issue regarding the specific titles and authors of the articles that his expert reviewed now the plan of claims that this evidence should have been admitted to establish the  experts and we agree that evidence must be admitted to establish that basis but where we disagree is that we believe the basis was established the plaintiff's expert specifically testified that he reviewed the medical records that he was relying on his training his experience having done hundreds if not thousands of similar procedures and his review of what he considered to be the relevance and authoritative medical literature that  basis of his opinion the jury was away or that he was basing it on all of those things so adding these titles would not have assisted the jury in deciding this case the jury would have been unfamiliar with these articles they would have been unfamiliar with these authors the only effect that this could have had on the jury was an impermissible bolstering of his credibility  suggesting that these other authors who were not available for cross examination and therefore he had their opinions are entirely hearsay suggesting that they agree with the coding case which we cited in our grief says that that is upon and he provided copies of those counsel and testified briefly about why he selected those three articles would that be permissible no your honor i don't think it would because the fact is that he he reviewed articles he's basing his opinion on his review i don't think we need to bootstrap in these articles in order to establish the basis for his opinion would he be permitted to say i study done under or watched and autopsy by a nobel prize winning surgeon and i learned from him some of the things that i know i think is certainly something so my conclusions are based on my study with him and let's say his name would be one that would be recognizable to the jury or at least possibly recognized the be permitted to say to testify to that no your honor and the reason is again that would be using the credibility of this other known individual this other person who is not in the courtroom to be cross examined to lend weight to his testimony but we can't you examine the credibility of the art i mean you know there's a difference between a new england journal of medicine and some men's health information upon which you could cross examine we certainly could cross examine your honor i still believe that it's hearsay and evidence that is potentially very damaging and one of the things about some of the titles of these particular articles is they there's an inherent risk to some of these titles because they are they suggested the ultimate answer in this case and they do so in a way that again these authors are there to lend their opinions or be cross examined some of these articles the titles the guideline wars are over those titles suggest that there is a consensus that there is an answer to the question that the jury is being asked about and all the other experts testified that there is no there is no consensus and so to allow this these articles to be recited simply puts this in the mind of the jury that what we should listen to the plaintiffs expert because he cited in these articles and they have the rights you don't have the ability to cross examine worries degrees from people who gave that physician his degree are not available now your honor that's that's true they are not his professors aren't very available the grades he received the award of these articles the last thing i would touch on in this regard is that there really was no prejudice as i alluded to earlier to keeping this evidence out simply because these articles would have been unfamiliar to the jury they wouldn't have added to their understanding of the case the only thing it could have done is bolster the credibility of the of the plaintiff's expert imprimis now i would briefly just touch on the jury jury instructions issues because those axis either chemical itself or a combination of chemical or mechanical should have been continued for a longer duration because the instruction proffered by the defense simply and accurately stated the sole issue th was asked to decide it was the appropriate instruction the plaintiff's instruction as we argue in our brief is very confusing and it allows for the jury to find something that isn't supported by its the last issue in regards to the jury instructions involved the missing in its structure which was requested but denied that was based on evidence that there really is no reason to believe ever existed dr coles testified that he had no independent recollection of this it and had no independent recollection of making progress no that is alleged to be missing therefore there is no real reason to believe this ever existed if it didn't exist it can't be missing in addition the other the other wireman is for missing does not address this issue and when you're faced with this situation where there are two statutes or rules that are seemingly have odds with one another you select more specific under the tenets of statutory construction and that is five a two to o