nonetheless the district judge effectively precluded seppi treating physicians from offering expert testimony we submit that that ruling when he really did and i mean after he i laid some of them out for you in my opening brief cited to the others the plaintiff press the defense moves for judgment the court says oaks we didn't but we should a righted the ship i think was the district judges language and yet the judge didn't write the ship by then it was too late to right the ship it had suffered in their remedial hole in the in the hall and the hole in the hole was the fact that one doctor was not available and the other doctor who was available could only testify in a very limited way there were three reasons why forgive me when saying i want to get clarification my understanding of the reason why you wanted these doctors to testify was to talk about causation right that's right dr ok and as i understand it doctor or a second i'm saying his name correctly yes when he came back it was cross examined and recalled and he spoke at length about causation mistaken well to the extent that your crew your honor is saying spoke at length i think that is a mistake and i think that the people in fact happened was it was very limited and their worst continuing objections as that went on the whole happened to be coincidental with the time that their truck crushed mr stephens car into the median up in sacramento we say no that was different and here's why we eliminated those crisis mr dr sec was not allowed to say that he eliminated those causes those are questions that were were objected to it once and objections were sustained they continued to sustain objections throughout so is there any question in your mind that the the physicians who was testimony was barred were they were percipient witnesses were they not they treated they were percipient experts doctors wait wait they were treated for subpoena witnesses meaning they were involved in the action they treated your client right correctly they all testified about what they observed in that connection right yes they did so the only thing it was barred here was because they were not from the district court perspective because they did your side did not qualify them as experts they were not able to testify about things that came about as a result of something other than their direct personal interaction with your client that's what the rules say is it not well the thing about the rule your honor is that the rule has this big condition precedent to it in other words before the district court has authorization to impose a sanction for a discovery violation the violation has to be willful and not harmless and yet in this case we have a district judge a man expressed finding that it was not willful and that it was harmless and yet so that should have been the end of the threats with the rule that's what the rule says the section that allows for lesser sanctions still is a subsection of that main section where we agree with me on this so in other words the qualification qualifying language applies not only to an absolute exclusion but it applies to a lesser sanction which would say was what the district court ultimately did here it would let let's just argue oh let's say we agreed with you and we sent this back for a new trial obviously that point you're on notice he's on notice or whoever is trying it what the problem is here so they make very certain that you know that they're going to check to these went through for doctors because they're not experts you say oh yes they are and then the judge is going to decide and it's going to be abuse of discretion one way or another and let's say that he says they're not experts you're no better off than you were before well i don't know i'm not sure hopefully this court opinion would offer some guidance about that although you always do but but beyond that your honor trial let's just say there was more discovery that doesn't address the issue of whether or not these physicians are experts and you know i'm sure you know exactly what an expert is well you're either a doctor who offers an opinion is that doctors are experts or they're not unless they were standing on the corner here at the center of the nation observing it and they get to testify under rule seven o two even though they may have their bad been a mistake in the mistake the the way they were designated this was an honest mistake the district judge found it was an honest mistake and then it's so ham strung the the way the doctors could testify that was there was no chance in this case this court operates under a presumption of prejudice there's been no showing that there was that that for prejudice has been oh wait a minute you say there's no prejudice my recollection is that if you've got an expert you want to know as an expert and you want to take that person's deposition you want to know exactly what they're going to say if i recall correctly there was none of that in writing and didn't know what they were going to say and they didn't have a chance to take their depositions on that basis so it was a surprise they didn't know your honor it was not a surprise and that district judge found it was not a surprise they had he says explicitly and i think it page thirty thirty one of the excerpts they didn't they knew about the doctors they got the reports on several different occasions from the doctors that doctors weren't disclosed is a problem in the pretrial order and there were whether there were still two months left it was a gotcha in the context of a treating physician i submit that is not as long as the doctors do not form opinions outside of their treatment of the of the patient in other words the very thing that you're asking for no i'm not having outside the treatment doesn't mean  by limiting these treating doctors to testimony that's consistent with him being percipient witnesses in the case counsel has stood up here and said that the district judge made a finding that my clients precluded from providing an opinion on matters outside the scope of their treatment because of the fact that no expert reports were provided to opposing counsel in a timely fashion that is contrary to it and i don't think there's any possible way to interpret the court statement other than as a finding that my clients were prejudiced by the fact that these treating physicians were not properly disclosed those are those are also statements that the court certainly made some findings that favor the plaintiff but the but the finding about about whether or not that the a mistake quite right that there are elections under f r c p thirty seven was harmless or not appears testify about causation was that testimony expert testimony or was it an amplification of his findings as a percipient witness well i i'm not trying to duck the question i the sponsors can come in and they can describe the findings they made they can describe what the plaintiff told them and they can say that you know what what he had is consistent with being in an auto accident  but but the district judge himself recognized that some of the testimony that dr or a second wave in fact went beyond the type of testimony that a percipient witnesses and toddled to give consistent one and did you object we objected but you know the judge said ok you know i realize your point in effect but at the same time this is sort of an unusual testimony but what was the reasoning i'm sorry what was the judge's reasoning for allowing his later testimony that bordered on expert testimony for or say i don't know  i can speculate but i think that the judge felt that plaintiff's counsel had become confused during the course of the trial regarding the scope of the testimony that these treating physicians because of it as a consequence may have dropped off some of his questioning when objections to the church with the earlier testimony was substandard but in fact even in the earlier testimony dr laura sec did express cause ation opinions they work as fully developed as they were later on when and therefore i'm going to allow him to go in as i intended the ruling to be that's what happened right i think that fairly sums it up that's what i read the record what and not but i but i also think that what the court was trying to do was was was draw a line between happened throughout the trial and the plaintiff's counsel given the ruling the court made at the outset was trying to get into the into evidence opinions from these two treating doctors that were based upon their medical training their medical experience and their medical knowledge but let me ask your help on something that as i look at this it looks like plaintiff counsel in order to be successful really needed to have expert testimony i would i buy by failing to get that and the case basically disappeared the district judge seeing that is what had happened maybe tried to help a little bit whether or not in compliance what do we do with that how to what's our standard of review under the circumstances the district judge made and evidentiary ruling i believe that that was made clear to  course you know trial counsel on my side were aware of the involvement of these two treating physicians but at the same time you did have a violation of the court's scheduling water he had the issue come up on really the very first day of trial it wasn't like there were weeks or months remaining in which discovery could have been reopened and the problem could have been easily rectified and i would point out that in three week period from the time when the defense filed that motion in l any of those steps would have tended to minimize the harm that occurred so i think that when it goes to the essence of discretion here where you have a trial a district judge making a deposition as well as a trial testimony would have had to have a draft the arguments that said that the defense experts put forward and now does the appearance of these spinal disks and smaller surrounding evidence were indications that he actually had not caused this particular place of spinal problems and that's exactly the problem here because that is classic expert testimony it's testimony that is testimony you had two witnesses expert witnesses that testified that there was no causation between the collision and the subsequent problems that the plane event right that's correct though so you were fully keyed up with regard to the issue got to present your evidence well except that we didn't know what what deposition and in any event and did you notify the plaintiff's attorneys about your experts and what they were going to say oh absolutely i think they were fully disclosed plaintiff's counsel decided not to take their testimony i have to be brief the district judge relied on goodwin versus staples superstores which states a physician is exempt from the rule the written report requirements to the extent his treatment were formed during the course of treatment what the what the defendant is trying to do is to extract all it is to preclude the doctor from testifying at all about things that were formed by virtue of his training as a doctor and you simply cannot separate those two goodman cannot be read as saying the doctor who observes in the operating room is the same as a doctor who witnessed the witness to and that would be all acts of that here at sevent mission those are different let me ask you this counsel i want to say this with respect but i want to understand how this is being characterized it seems to me what they're saying is that trial counsel who it was acknowledged that mistake from the get go and the point of the point of rule thirty seven is set forth in the advisory committees comments to that that we referenced in our brief to the effect that the w and the not in the harmlessness requirements that are read in conditions precedent to imposing a sanction under rule thirty seven have to mean something and if the judge says this not willful and it's harmless then the question goes away in our opinion this was your we're talking about if you'll permit me to associate my light blinking here we're talking about you asked about standard of review yes abuse of discretion is we look we don't have to look very far to find a case that says that's the standard for evidence rulings but the boundaries of discretion are with this court decides is do you know in other words if we have to look and say is this outside the bounds of what the discretion is permitted and that i submit is what we're faced with today ok thank it what's your comment on that your are close to criticize the trial judge but i'm not either but i mean i'm here that's getting reversed but i'm not here to criticize and that's exactly what the problem was and and it's seemed as though at some point he he started blaming council my trial lawyer for misinterpreting his rulings and you'll see in the record as you as you no doubt have that we have four different places where this ruling was was visited and it it it was  moving target if you will i believe that these this there was no authority to impose a sanction all wants those findings were made that the doctors were entitled to testify as experts even if they were only recipient witnesses because that's what doctors are and finally when we get to the fact that the pre trial order made no mention of this problem when the pretrial order was done through two months in advance of the trial when there had been ample time had  had there been it had it been raised council points to we not my guy not doing anything in the time between the motions and them and they being filed in the trial and i look back farther and say the pretrial order superseded the scheduling order and there was no mention of this problem when there was plenty of time to fix it and as you correctly identified your honor this is this caused the trial to go right and we think he should be  with we've because it was not just the limits to which he allowed the doctors to testify it was the constant characterization of the doctors as lay witnesses they're not testifying as experts it was kind of that he want to take the court's time from these other cases you'll see that i would point i would direct your attention to the colloquy on page thirty of our opening brief where is there anything by way of your examination history that you obtain your the treatment you provided that would suggest there is another explanation no sir this is doctor or a second objection your eye beyond the scope of the treating physician sustained that was the problem right there and at that point we had a problem thank you very much our other question i thanks to both