ok ok i think you're on it please the court my name is byron miller and i represent us near some corporation and i would like to reserve three minutes for a bottle very well your honor is in this case there were four agree sarah's the very worst of it which was the use of offensive collateral stoppel all these errors individually and collectively resulted in an unfair trial to us nursing a denial of due process as to the de novo issue of identity and an unjust verdict that must be reversed and remanded for a new trial was the name of your nurse as opposed to county foot ok and what's the name of the nurse that you say you should have been able  saying that the other two yes but you don't have any evidence right you know we had a lot of evidence really i thought i thought it was kind of common ground here that you had no evidence that the other twenty one of the other two was the person who met the guy got hurt you know i mean in fact that their brief interest we stay that somehow in this in the pretrial conference with the judge caldwell i said that we didn't have any evidence in fact the record says that i said we have overwhelming pickup truck he brought prophet to the emergency room that night he testified that he walked into the emergency room by himself went to the desk song female told the female he's got somebody injured and the female falls him out with the wheelchair puts profit in a wheelchair and brings him back in the emergency room ellen wright the c e o of doesn't understand how that is evidence that it was a did someone different than your your nurse y evidence that's right so ellen wright testified that it was roxanne parsons job to staff the desk that it was her job to be there to staff the desk and assist patients in whatever people coming in so the only person who was staffing the desk that night was roxana parsons and we have all the records up their records of the three patients there in the hospital at the time this nurse foot was attending to a pediatric patient roxanne parsons's name in additions or no or in any of the charts because her job was to staff the desk so we not only have roxanne parsons clearly in the position where she had the encounter with but parsons and hurt both said we have no recollection whatsoever of that night we don't remember mr prophet and her testify that it could have been any one of us then mr prophet in his  was so out of it i could barely remember it was even a female but he testified that the female who brought him into the wheelchair was the nurse that stayed with him the entire time and started all the procedures that could not have been county foot justice and other where that that's not that's true that's true but you know this is really a circumstantial evidence case and i understand there's a van i mean that you've answered my question why you want to be able to do this and some of that person's job was to staff the front desk but also the medical records of the three other individuals so there are five reasons why the fence acquittal stoppel should not have been applied in this case but what i want to do is i want to focus on two of them the st is a requirement in kentucky and essentially universal requirement that the application of offensive quadrille stoppel comport with notions of justice and fairness so just so i can get these straight the way the district court i think so all six of them you're right or yes yes i mean that well then i should be able to look in your brief language that deals with each one of them well yes and no i mean incentive i mean we could i could have stood up and made some objection the problem is it would been an exercise in futility because the motion for summary judgment was by norton parsons not by a case litigate the grant a summary judgment to hunt and parsons correct that's an element correct and it would seem like you did have that foreign fair opportunity you could have you could've you could have appealed i mean in this correct me if i'm wrong but my understanding is procedurally you could have appealed that grant of summary judgment that exculpation of the two people that would leave only your nurse will contest you also as otherwise kentucky was says we had no right to appeal we had no standing it was it would have been an objection an exercise in futility jenkins and all that is wire is clear though you were you were a party in in the kentucky case is that correct that's correct you were intervenor no what you were just a straight out party or party us nursing and county foot were defendants in that case was there any disregard the standing for a moment was there any proce obstacle in that case under kentucky law to you appealing that summary judgment terminations favor of the other two nurses absolutely or was it it was a black  law that you can appeal a summary judgment granted in favor of a codefendant if the if the point of doesn't resister doesn't oppose it another defendant can't oppose that or prevent that from happening or being entered or file an appeal judgment even if it's to try to somehow preserve an issue of apportionment but what does this actually matter whether or not you are allowed to appeal because didn't the kentucky court rule in its motion in limine a that you did have a full and fair had a full and fair opportunity to argue the question of identity so doesn't that seem to at least suggest that under that kentucky law it would suggest that you had that and the wall cannot be such that we would have to go to trial risk an adverse verdict take it up on appeal simply to preserve some issues so that down the road we could avoid issue preclusion in a demo to the action besides under dwyer if we took it up on appeal what would happen to be the same thing happened where you have no standing have no right to appeal dismissed meanwhile we could be facing a huge verdict as a reason make the standing argument just to court the right yes we did but the court then said submit briefs on it and restricted us to a one page brief and so we actually submitted a very lengthy we squeezed in a lot of stuff but a single leg micro fish but we raised the standing right to versus concrete also the blonder case so it was all set forth so this the privileges to us nursing was palpable and real how unfair and unjust was it to deny us nursing the ability to contest the issue of identity once what happened is the court said you can't you can't not only you can not only introduce or you cannot introduce any evidence as to her or parsons you can't even stand up in order to have a jury that of a certain persons so what happened in the in the closing argument on phase one eric says counsel stood up and told the jury in a reading from the directly from the testimony there were three possible suspects put her in parsons hurt and persons have been ruled out there is no evidence that her parsons were the ones who transported mr profit and mr miller hasn't even argued that they were i couldn't i would be sanctioned by the judge if i introduced any evidence or  so they took the issue preclusion really in the years that not only is a shield to prevent me from putting on the evidence but they use it as a cudgel to hammer me in closing argument that i couldn't argue with course i could could have argued and i should have argued that's part of the denial  process and the only part of the got a day novo trial in this case on the issue of identity was a reach u s nursing did not get going over the trail at all ok well your time's up so you'll have a bottle and  let me let me just run through it there on the collateral stoppel there's like four reasons why this is not something that should be reversed st this law that they're citing which is th preclusion it was never argued to the district court and i'll get into that mr palm mr miller was wrong on that secondly it had nothing to do with why they didn't oppose the summary judgment in the tr rd it was satisfied hearing any of that because they had the ability to appeal from the unlimited motion in state court and in the a limb and emotion in state court they did challenge and the whole issue was what was the effect of the summary judgment on their proofs so even if they were right about being able to appeal the summary judgment they could have appealed the in lim and i and the last point is that they haven't been able to point to any evidence i can address what mr miller said briefly it's in the briefs but there's no evidence that would have supported the your comment that these two nurses and transport minister profit in any manning the desk and and you know i know there's this bizarre about there nurse was supposed to be helping a child though with a nurse parsons most important point i think is that at the pretrial the day before the trial when they st argued this whole issue about standing the judge asked mr miller what evidence do you have that was either heard or parsons's federal or state court which are better all day before the trial and mr miller answered for her but there was no answer for parsons and in our brief we cited that a there was no evidence if you read the depositions there's no evidence that parsons was that the d who we talked about testified that i don't know if it was the nurse who was at the desk who came out or not i mean there's no evidence about parsons he talks about how there was evidence that parsons were white scrubs and there was testi none of this was argued in front of the district court even though mr miller was i asked and then this argument that they're raising on reply which is that it's really important here because all of this evidence was a deuced after the state court trial that was org you'd note we are in the district court they didn't even or you would in the initial brief they argued it for the st time in the reply brief so again our position is this wasn't really evidence but they've way if that they can't that argument troubles me is that if you have worn an ordinary tort suit where everybody agrees that only one person committed the torp there's disagreement as to who that person is right maybe you're used to this person these richen the other person you can't hold them or you don't like them or it's your sister or whatever you don't sue that person normally there's no way for the person who sued to get that other person in the case as a party is that true well i don't you know they're they've cited that compton case where the kentucky courts do that fiction where they allow if the plaintiff doesn't bring in a defendant the codefendant can him plead the defendant and then the kentucky courts the smiths but that's enough in order to get a portion under so i'm not talking about apportionment i carefully described this as i'm not of course my kind ok one person did it everybody knows only one person did it the nature of the tortoise that only one person could do it it's not an inspection case where there's five inspectors and they all fail to inspect right in that kind of context the way the defendant can deal with the possibility that someone else did it which seems like under justice they ought to be able to do is to prove that the other person did it or to give enough doubt to the core the other person did it rather than you but you can't get them to be a party what you do is you put in testimony to say that other person did it but you there's no way if if if if they are sued and then the and then the plaintiff decides not to sue them they can't force him to stay  is is focused all on the meaning of the kentucky apportionment statute but it but it also says even though you don't have a right to appeal it's still a binding ruling on the remaining if the initial defendant is the smiths wire says yes it does and that's an impediment or a portion of purposes but it's also for purposes of the significance of the ruling on the initial dismissal it says that the sheep justice they attribute to the former chief justice it just seems astounding that you wouldn't be able to point the finger at somebody else who either was a party and no longer is a defendant or never was a defendant but now like not our purposes apparently there's this is an unusual interpretation or an interpretation of an unusual provision or an interpretation of the provisions to make it pretty unusual which distinguishes between people who have been sued in them have their sued terminated and people they never sue for seems a little artificial but i could see it might work for a portion of purposes but just for purposes of whether you can point the finger at somebody else and say therefore i was not that person i was that person was there and i wasn't there i'm just having trouble seeing how having that person be released as a party keeps you from pointing at him well all i can say on that is that the only law both the state court in kentucky ruled that the wire which is supported appeals ruling i take your distinction between apportionment but there is no case that says what you're saying and it seems obvious what if we think it well what if we think it's right in those cases or to strike a will then you lose on that well i don't think i lose on it because because what if he that might be within the same case i mean if you're saying they can point the finger in the same case i think that's wrong and there's no law that says that unlike insight you i think the weight of authority nationwide let alone in kentucky is that it is that it is  been a ruling on a summary judgment you can point the finger out and that's what the wire sells again an important one and and and on specific language in the important statute it's not really what the language cases in other states that we cited that then i can say i don't think they matter because i think in kentucky it's clear that the courts said that there was standing here and that there was preclusion but but the case  cases in other states or in other states what about in this state thank you kentucky there are no cases in kentucky other than dawar now you're saying that it's different because of fortune but it's the only case looks different because it rel heavily on the portsmouth statute so it's kind of us which is in some respects kind of a strange so a trying to get over this point to make my remaining point even if that's the case that's what i'm asking you something that's the case they're allowed to rule a stop  is still an issue and whether or not this can be applied is still an issue of discretion because even in cases that have said that whether or not it's binding depends on whether or not you have a right to appeal the courts have said that you have to look at the facts and circumstances of the case in order to determine whether that should be applied let me let me just play it out to issues that that are looked at in this case that makes it inappropriate for collateral stoppel one like i said before even if you can agree that a summary judgment couldn't have been appealed but the there  decision that the state court judge made in this case the state court judge made a decision that that finding balance us northing and what that could have been appealed they oppose pardon me settled it the next day well it could have been appealed then and you know that there are cases when the judge in this case very clearly said that she was relying on well no she said that she wasn't that wasn't that was that's right but she was looking she could look at the fact that the appeal was available the nd thing is that the law i mean look at the situation here it's clear they want six years after this summary judgment saying that the reason that they didn't oppose it was because they didn't feel like they had enough of in that sense of because they believe these nurses shouldn't be liable because there was no causation that's what they said consistently for six years it wasn't until the day before trial in the district court after they had made that incentive or argument in the state court and then again throughout the district court in one many proceedings that they st said well we couldn't have opposed that because the stamping it was the day before and even then they didn't say and as a result of no standing there was this no appeal no preclusion rule that's a bright  rule they never argued that in front of the in front of the district court this whole argument in the brief about restatement twenty eight won and how that ought to be a bright line rule precluding i'm sorry  excluding any collateral estoppel you can look at but in the briefs that was never argued before and if you look at what church caldwell ruled you can see that her that she took the argument about appellate standing which they only raised on the last day months after this whole thing a been briefed she took that as an argument of incentive and that's all she ruled on so this whole argument that they're making in the brief about restatement and eighty one and how the restatement is the touchstone of the law in kentucky that was never a simple low and we've cited a bunch of cases in our brief if i could just have one more minute to cite a couple  kentucky with issue preclusion kentucky courts often don't apply the restatement he gives all these examples consent judgments the fault judgments so this whole organ meant about how kentucky would apply the apportionment case but i just say that there's no law to support the proposition that you're suggesting might be the law in kentucky in there suggesting should be the long kentucky and well i think the was clear that we don't have to raise every single case or argument once we objection we assert a proper grounds for the error of the ruling i mean you do if they're pretty discreet different reasons why you think something's wrong you have to tell the district court we're not going to just say well you object to that evidence and now we can come up with anything so that is you know you do have to give the district court a chance to get it right for the right reason and i think i believe we did in fact you know you can look at the transcript of the hearing of may th two thousand and eighteen you can look at the brief that we filed the single spaced brief that contains multiple sites and maybe sets the one he says is filed very late but i'm looking at the one you filed in response to the motion in limine which is presumably the st time you should be making these arguments about collateral stop so right in the in the federal court in the in the preclude argument as to the liability of nurses her person so that's where he would raise the issues right that's where you would have your response yes and i think that what happened is when you say it doesn't make any difference who the female was but then later on you say that's the key issue since have to say it was a little puzzling at least well that would be puzzling because since two thousand and eight when we've been going way to getting this case the the primary issue the  they've got the wrong female their own identity i thought it seemed like the st line of defense and maybe the principle one for most of the litigation in kentucky was the nurse did not put any injury taking this guy from the sacks and putting them in a pickup truck in the seatbelt sitting upright driving the hospital is what heard of not moving twenty and that is true too it was a two pronged offense but there are two key issues and the issue of causation though was not an issue said that with respect to the issue of causation that's not before this court in terms of the indemnity action is just the issue of identity and whether the whoever that female was see if it was if they prove it was county foot whether she breached the standard of care and my position is that what the what eric is doing is trying to flip the burden of proof it's not it's not us nursings burden to prove it was her parsons it's their burden to prove it was county foot in our responses a definitive to simply say that's incorrect here's all this evidence circumstantial as it may be some of it pretty powerful to indicate that it wasn't a county foot but the court said you can't go into any of it you can't put any of that evidence in and you can't make the argument and then they stand up until the judge or tell that the the the jury that you didn't see any evidence in your eyes well we'll look at this and see whether we can read it as having raised all right thank you both for your