of the judgment in the trial court or a remain for a new trial each each of those four ways on its own but when you look at the four arguments that we have together and they all really link together in this case  becomes readily apparent that part which was the night a fair trial and as entitled to a reversal of the judgment in the trial court or a new trial or for arguments and for ways in which we were denied a so my question to you rather directly is what was that your defense of this claim the trial that the presence of the all vs in the child's body at that time was the sole proximate cause of only means only the only yes you know your defense in this case your affirmative defense was that the boy's father was contributory negligence right yes so you're saying two different things well i think what we were doing was asserting multiple defenses that don't necessarily have to cancel each other out well i think i think one does cancel the other out when you're talking about sole or the only proximate cause if you want  jury's answer to that question to possibly defeat a general verdict then you can't have a defense that is completely inconsistent with it and your defense of comparative negligence on the part of the father for his failure to give the proper medical history whatever it is exactly that you said that is inconsistent legally with the theory of sole proximate cause i don't think you have a shot there i appreciate your position judge i do believe though that if there is and there was evidence in this case to support the fact that the drugs that ended up causing the death of joseph ereal were taken after the one zero six am call and had nothing to do with taken whether they were fast acting or slow acting when you look couple that with the evidence that when the park which paramedics arrived on the scene ended there visual assessment of joey furio he was awake he was alert he was oriented to their assessment yes that was an assessment from that point of the bat that was their assessment yes professional assessment by it was lisa's current matters that was the primary system that they did yes a visual assessment when they arrived on the scene based upon their assessment of joey ferial he was awake alert oriented times three and his a b c s were within normal limits kooker bat with the testimony from libby theory joey's father that after the overdose during the one zero six am call all of that when you put all that together that that is certainly circumstantial evidence that the worst was not drugs on board during the one six am call in seems seems to me that you know if if you wanted and i don't think there is anything that was elicited in his cross examination or in the examination of your expert that would provide the jury with any reasonable testimony that it was the consumption of  opiates after your folks left the house that caused this that i i think judge parties entitle to have the jury instructed when there is evidence to support that instruction and there was evidence in this case perhaps not direct evidence but certainly circumstantial evidence to support a so you but you've got you've got the instruction i think an argument could be made that it was given in air but you did get the instructor and that is why when we got the instruction that's that's disregard that certainly would have tested the general verdict in this case and it when you look at what the the we were in the ways in which the plaintiff claimed your paramedics were  fail to law document with the reporting espec it could because the jury find that if in the issues the struction it's they don't have to find all three they just have to find one of the three correct yes but in order to find one of the three they have to find willful and wanton conduct that's the lead in paris but they don't when you put in that in the the language you know that the special iraqi authority is a bit of a time bomb here in that they come back with a verdict in a v m in iraq the tories matt answered in a manner that's consistent it can blow up the verdict right yes so if you're going to plant a bomb like this it had better be perfect and made my suggestion to you is that by using the the vague word response that you don't really test a general verdict with multiple issues of not negligent but wolf on one comma and the word response was chosen because that is the word that was used in the six two two affidavit that was part of the complaint in this case it was a word that was used to demonstrate the overall conduct of park ridge and its paramedics and its personnel during both calls i don't know you know respond they didn't do anything but they did respond they showed up so i don't know how especially in iraq a tory that says where they will fall in line in their response when they did actually respond and then didn't do anything  i don't know how they have to pass the verdict i think it's it's too vague they were the response starts when the call is dispatched and ends after the paramedics leave the scene but then as your boss you say that when you have alternate all of the jury instructions which is how we're supposed to look at it i don't think you can say that anybody would ever be confused that we were talking about whether they got in there and dylan and showed up at the house and where they were from one in that respect there was absolutely no evidence or testimony presented that that was even an issue it was their response they are emergency responders as they as their doctor referred to them multiple times in the in the six two two af response to the call so this is one response and encompasses doing nothing in multiple ways well it certainly does in this particular situation that the response was what did they do from the time that they got the call until the time that they both willful and one that's it there were multiple charges in that case about what exactly they did that was supposedly willful and wanton did they violate their state general murderers and their procedures on but in that case just  either case the the very first hurdle that has to be cleared in those charging paragraphs is where is the defendant willful and wanton in any of the following ways and if the the jury looks at that and says they were not  utterly indifferent they did not consciously disregard that test the general verdict that is a simple clear concise question on an ultimate issue in this case and then when the case is is directly on point in terms of and one in the context of all the jury instructions i don't believe there was any confusion i think response was the appropriate word to use especially again i keep going back to the complaint in the the the doctors the affidavit right it was the bad the doctor's report it was the failure of emergency responders and it was they responded to the request for e m s everything that we do when we get on scene is part of our response sort of emergency response that's why that the term response is the appropriate term and the appropriate term in the context of the jury instructions and all of the have if that was presented to the jury in this case if i can talk for a second about the what would that clear error an abuse of discretion that occurred when the trial court allowed was that although we responded and showed up between one alone one eleven and one eighteen we provided absolutely no treatment assessment diagnosis or transport so you know i think if you had had t at the language that was if the position of your reply was exactly as you're saying here accepting these as true which you have to do and we understand that for purposes of the motion then we provided no treatment but  that's not what was read to the jury and that doesn't seem to have been your position at that time seemed to be your position at that time they had provided no treatment was in the grand scheme of things a good thing for you because it might get  out of the case on an immunity ground was that what you were aiming for at that point time we felt that the allegations in the complaint played directly into six one five and six one zero six immunity and we have to but we don't get to decide what the playing field is going to be when a complaint is filed the plaintiff's council decides what allegations they're going to make and they put them down in the file their complaint and we get it and we look at it and it plays directly into six one of five and six one of six in every which we asserted but  more sweeping than what was put in the in the that the doctors affidavit which was part of the statute or part of the complaint let's let's look at the actual language that was read to the jury that's what you beef is about here yes it says quote provided no medical care of any kind including evaluation assessment diagnosis treatment document documentation that you know that's what was read to the jury add this is not what i think you're trying to represent to us here this morning and what i'm what we took was the allegations in the complaint and it's as a judge clearly going in her or written order granting the motion to dismiss it said in this case the paramedics failed to provide any evaluation assessment examination diagnosis treatment or documentation this is both  in contained in the physician's report there was nothing in the proposed amendment to the pleadings which alter this and that was the order that was overturned by the supreme court all right but both the appellate court in the supreme court pointed out that there were the allegations are that we showed up and did nothing and at and apparently you know they were saying that that was unusual because usually when paramedics show up they do something well and we did do something which is the evidence that running title to tour the unity defenses are going to have to worry about well i've got the complaint it pleads directly into supervision of unity or recreational property immunity or whatever the case may be but i'm i'm worried that if i don't or maybe even to prevail as we did in this case and at some point in time it gets overturned that by accepting the evolutions as true in the complaint which i'm required to do under two six nineteen i'm going to have them read later on to the jury as an evidentiary admission in particular in this case when you look at when it was done in limp oral argument on the deck it did repub what you claim i mean when you claim to have trial that when they showed up and stuck at the foot of the bed and ruled out as mine assess him and left and never filled out a run report and submitted some phony compactness later that was what was offered in rebuttal that seemed to rebut what you tried to defend the case with well i i came out and did what they did or fail to do anything i think it's hard to read the record any other way well i believe your honor that put the put the paramedics did was what was wanted of them that night and was  ok the the facts in this case were hotly contested in terms of who civil rights during the one zero six am call who did what during the one six am call arm but the evidence presented to the jury was that when the paramedics arrived they did their primary assessment a visual primary assessment i acknowledge they never laid one but one one of that one of the reasons why the facts were so highly contested is that your paramedics didn't do their job they didn't fill out any reports to indicate you know this is say was with he didn't have asked why am i looked at he didn't have asthma well you have to follow the asshole protocol they didn't do that they didn't fill out any reports at all i think that we were getting into the idea of what is a paramedic supposed to do when they get there and what they're supposed to do is use their discretion based upon the facts and circumstances that they find on the scene and that's what these paramedics did they got a call fifteen seconds a dispatch of fifteen year old unconscious sounds like as not and that is not what they found when they got on the scene but the phone was a father who was telling them that i over reacted and everything's fine which is evident spight his conduct at the end of that nine one one call at one o six am that's the literary furio that they encountered when they got there they didn't encounter an unconscious fifteen year old when they walked in they had a conscious fifteen year old who set up in bed when they turn on the lights responded appropriately to the questions that his father was asking they looked at him they could tell based upon their visual assessment that his a b c s were within normal limits there were those up there they found the fifteen year old was no longer unconscious they had to think steve nicky that they have noted in their medical records during the treatment of joey when he was in the hospital that when the pill the paramedics one of them noted that he there was the boy was making snoring sounds but he was arousal and there was not needed  hospitalization i think the difficulty we're having here is that you know you talk about the different standards of proof for negligence and then you go up for well for a while and then the third level would be intentional and clearly was your position at trial your paramedics were even negligent but there is plenty of evidence presented here that they intentionally intentionally did a lot of things wrong and try to cover up for it later it's in the record i know you are the record your honor and i respectfully disagree i do not believe there was evidence of intentional conduct i think perhaps somebody certainly as i tried to make clear during closing arguments to the jury this is you can you can  dispute or disagree with how the paramedics handled this call when they got there in their response to the one six am call you can say they should have done more they should have done something different and granted they should have documented and they did that was a communication here and just a mistake that was made after the fact but they did show up they did s to see the boy they did do a primary assessment of him they did check him out and when they left the house that night joey furio he was alive he was awake he was alert he was oriented times three he was it was all in bedroom under the watchful eye of his father who stood there and testified that he said to for the next two hours and checked on him every fifteen minutes like a newborn baby was as testimony that is going to suggest that if you're paramedics had followed their protocol and taken a medical history done an assessment with their hands on the child done  evaluation of the child and filled out a report indicating their decision making process as to why they weren't going to bring him to the hospital based on the history that they had been provided everything else you might have been in a different position at the time of trial or i still would assert that this is not does not rise to the level of utter indifference or conscious disregard the norway in that our conduct right now our kind of right now is going to result is a high probability of resulting in injury i will first start with the special interactive tori's i think that the issue of arguing that it was a proper and appropriate special in iraq atory to ask whether the sole proximate cause  ingestion of cocaine or opiates and i told her thirty first two thousand and four that was clearly an improper special interactive story what was your objection oh well i objection was that yet it was  instructions and in the end with respect to the special iraq natori had to do with the fact that you cannot as a matter of law have the condition which causes you to present for medical care be the sole proximate cause in the medical practice  and the argument was that he was contributory negli contributory negligence for not for misinforming his doctor that's completely different than saying he had hypertension he therefore he had high blood pressure he therefore he must have been eating badly he was negligent and so my my my my complaint or my problem with work you wrote in your brief was on page twenty two and i will read the sentence because i don't think this is what kirk will says and you did not give us a page reference for the honor i respect a reading of that and i believe that if if as a matter of law if negligent conduct that creates the condition that requires medical care if it cannot not what that's not what macdonald versus mcpartlin in any number of other cases on this issue is so that i have not found any case law that says that a negligently creating a condition for which you present to a doctor can be the sole proximate cause we know it wasn't the sole proximate cause in this case because gawker t m testified that he was under the influence of opiates at the time of the one zero six call and if he had been transported to the hospital he would have lived so it could never be the sole proximate cause of his death the ingestion of drugs because there was another element of of them of a cause for his death and that was the fact that he wasn't transported to the hospital so by th end no one testified to the contrary no one testified that he would he still would have died even if he had been transported to the hospital so so there's no way that his ingestion of drugs in this context in the context of a medical malpractise case where the paramedics were presented with an opportunity to save his life when he did he did die of a drug overdose he did die just like people die of cancer but when you go to the doctor with symptoms and they don't diagnose you the s proximate cause of your death is not cancer it's the fact that you were misdiagnosed so so i think that this is an area of law that needs to be decided if you don't believe her course said that i respectfully disagree but i think that the law rule today that the underlying cause for which someone goes to the doctor whether that underlying causes negligently rated or not and never be the sole proximate cause of someone's death and certainly was not t the trial court ruled was so vague that it could not test was that your objection to trial my objection at trial was that i thought it was improper in form i don't believe that i argued that it could not test the verdict but as you know your honors you can uphold the court's ruling and i any going on in your list i know that i'm just i'm just trying to put myself in the position of the trial judge wondering what the plaintiff is complaining set forth in my in my brief it all they did was all that could do was confuse the jury it could not test the verdict as i argued in my brief the jury could have ruled that the paramedics were not willful and wanton in their response where they determined that they responded timely and still have rendered a verdict in favor of the plaintiff where they ruled that they responded timely but once they responded they willfully and wantonly failed to evaluate assess or transport and  the special interact atory be carefully worded so that there is no question that an inconsistent answer is absolutely incorrect and sila with the general verdict and as i mentioned here there's a very easy way to see how that could not happen where they rule that their response was timely but their conduct after they arrived was before mine i also pointed out that they used the wrong definition of willful and wanton conduct so there were a multitude of reasons for which the trial court was acting appropriately when they refused that special in iraq there are two other issues we want you to address and i believe my colleagues from the first one is the admission of taking something from a reply brief  honor the first amended complaint which was the operative complaint at the time defendant filed its motion to dismiss made three allegations of wealth one one act one was that they never of valuated or assess a patient two was that they never transported the patient to the hospital and third they failed to prepare runs those were the three allegations of willful and wanton that there is no quarrel with the fact that they are required to take those allegations as true for purposes of their motion to dismiss but that's not what they said they went far beyond the allegations of the complaint and the trial court correctly ruled that they were not simply admitting the complaint for purposes of their motion to dismiss they were in fact making affirmative statements a fact and hope that helps out for america because in reviewing the transcript it was a little difficult to sort of reconstruct you know when this came up to you bring it up as the most and limiting that you wanted to have this admitted to the judge the lave ruling or just was thinking about it until she heard all the evidence how did this unfold it was initially a motion in limine where we asked to be a judicial admission based upon the number of threats said that you know once you make a statement like that it takes the issue away and we brought that in the beginning of the case because had she reacted that we would not have had to put on the map of the testimony that we did that they didn't provide any care she took that under advisement and ultimately during the pendency of the trial ruled that it was not a judicial admission but she would take under advisement and take additional arguments on whether it was an evidentiary ignition and we argued that and then she ruled prior to the close of evidence that she would allow it is in evidence readmission when we pointed out that it was crucial that we use that  that combines the allegations of the complaint and the law as it relates to the case and they're talking about the facts of the case and they you know characterize the facts i think is the best way to phrase it why aren't they you know why are they allowed to do that because because if you if you make affirmative statements of fact to the court not only the trial court but this court in the illinois supreme court where you are arguing to them to buy your position by my position that there is immunity and distinguish my case from any tucci where the court said we cannot decide whether a munity applies at the pleading stage because there simply is not enough information where you stand up in front of those courts and you make affirmative statements were consistent with the eggs that you were playing with as well they were that the case that you prefer for this jury was that they failed to provide any treatment at all but that's what they said that's what they said in their third they're dealing with the same facts the way that you presented to the jury but they're not that's not what we put in the complaint and we're talking about that no i understand that i'm talking i'm comparing apples to apples here what what what you presented trial was is exactly what they said  illinois supreme court that they provided no medical care they wanted the record to be clear we have provided no medical here therefore we must be immune and then when they lost that argument they turn around and change their story even though they had taken sworn statements from their paramedic shortly after the occurrence where they said they provided no assessment they they did have they did a one me and now all of a sudden they provided care and you if you read the decision on post your emotions you can use the sworn it if you rebutted their argument where they stood up and in their case argue now that they did provide assessment that they did provide medical care that it was the perfect place for or might need to show the jury that to rebut that statement and the trial court gave them the opportunity as must be given in every every bench readmission to explain them they were allowed to get up after me and explain that statement so it was all perfectly appropriate by way of using this is an ev of the evidence the court even pointed out in her post travel decision that said she will have maybe it was you know unnecessary hindsight is twenty twenty honor but at the time i believed that it was necessary given their argument that trial that that standing in the hallway for ten seconds and looking at this fifteen year old was a visual assessment here what about damages the damages argument that the major the damages your honor i think were perfectly appropriate and well reasoned we had three categories of damages that the defendant is unhappy about his contesting the first is pain and suffering and there are big argument there only argument is that once joey furio after being anywhere in the transcript of your expert dr pam for example where he said there anything that the child went through prior to going into a coma was a competent cause of him suffering about agonal breathing being that breathing those last gas before breathing stops and it's a form of suffocation just as if you're being smothered with a pillow that that that once your body slows down it's breathing so much and the breathing turns eggen all that's a sign that you're about to start breathing and once you start breathing for a number or a point of time you're not on high just you just are not breathing and till the point where your brain where you were you go into cardiac arrest thirty i don't mean to i don't mean to in any way deprecate anything that anybody went through here please but for that period of time the amount of money awarded what's your response to the argument made by your colleague fifteen year  healthy athlete active that that's the type of person we're talking about who is now relegated to a coma where he cannot breathe on his own he is he is attached to a respirator he has a catheter in place he cannot eat he cannot talk he has to have secretions wiped away from his face and mouth he was in this condition for two days before he died now it would be nice to be able to be able to make a mathematical computation as defense counsel did and say well that the jury's verdict computes to x number of dollars for every hour he was in this condition the but this court and the owner supreme court has cautioned against that you present that evidence to the jury and let them decide what they think this was worth and i would contend that it's certainly doesn't shock the conscious or indicate anything other than their recognition that this was a vital young active athletic boy who is now hoped to alight to a life support system and lay there in that bed in a vegetative state for almost two days and i don't furious testimony that everything was fine for the next two hours there's circumstantial evidence which shows that the drugs that ended up causing the death of joey ferial were consumed after the paramedics left following the conclusion of the one  whether the response as as a miss jensen wants to term it being out there driving from the firehouse to the house was untimely or whether they didn't do it appropriate where they will fill in what in that particular regard  that there was absolutely no issue about that as the response the word response was used quite a bit during the you know one of the things that you brought up was the situation that the paramedics themselves in in terms of the information that was that they were a little bit behind it all because they weren't given enough information from your own dispatcher no i think that the testimony would was that the this is a normal dispatch they don't get a whole lot of information from dispatch nor do they put a whole lot of weights in terms of deciding whether they're going to do when they arrive on the scene based upon what dispatch tells them they get all of sorts of the sketches which provide some level effects as they're taken in the very first seconds of a jury that was making the providing damage awards i believe based on passion prejudice sympathy but not on the evidence in this case they were inflamed by the fact that we had a three week trial in which we prevent present the testimony throughout the trial that we showed up we followed our primary assessment we came in we did our visual assessment we did our scene survey we walked in we gathered information from the father we observe the child there was a question it was asked of the child you can i i understand people disagree whether we should have done more but the question is whether it was willful and wanton or not but we presented evidence expert testimony i've actually i don't i don't follow you on that the jury was inflamed i mean the jury heard two different cases they apparently believed one and didn't leave the other wait but just before closing arguments after we would presented three weeks of testimony describing for ladies and gentlemen the city of park ridge said we provided no medical treatment of any kind no assessment valuation of treatment no diagnosis and you can see what what was done with that in rebuttal of the trial judge gave them a club and they used their rebuttal argument to beat  senseless and that's that that's the danger of that evidentiary mission and counsel says this was perfectly appropriate it was completely inappropriate and especially the prejudice caused by getting it in that particular time but counsel just called what we said in the reply memorandum an affirmative statement of fact we can't even make statements of fact in and in contesting a complaint under two six one nine we have to accept the that's what makes this such a clear abuse of discretion and so prejudicial as you can see by the damage awards that were given when there was no evidence to support them the one point five five six million for night not that the standard peculiar loss of society computer chips but loss of money benefits goods and services there was no evidence presented to the jury which would ever allow a jury to come to a reasonable conclusion that one point five million was compensation for that element images it has no reasonable relationship to the law suffered the same thing with loss of them what was it you suggested to sixty or something and yes what was there what was the rationale for that what was the words you have i can't i can't remember from the argument what it was what it was you might my argument to the jury was that when we when you're talking about a when we were talking about the age of this child and the evidence in this case there was a substantial evidence presented about all the things that the fluids did with their son in the years prior to his death ok and then got to have all those experiences and that's we're not we didn't ask for ruminating on that already own terms of the damage that we're talking about benefits good services money there was there was no evidence presented especially evidence to support of a judgment of one point five million and then when you look at a loss of a normal life i mean it's at more was thirty six hours from that time the worst case scenario from the time the paramedics left the house following the one zero six am call to the time of death in this case and pain and suffering at this head little breathing room there you don't have to be conscious to have agonal breathing and there is that the testimony though that's in the record indicated without getting too graphic here that the mechanism of death going into the coma rather would be suffocation i don't think there's anybody in this courtroom that would say suffocation is that i grew but if if the person is not conscious there can be no conscious pain and suffering during that time period and i'm talking about before he goes into the cold for that and for all we know he was asleep at the time just as he was asleep at the you know when when his dad went in the first time so