if this court conclude this medical malpractise jury trial involves serious permanent injury to my client's media nerve after a routine and elective carpal tunnel surgery doctor from the second is irrelevant of testimony by dr fernandez regarding patients in general and the third is the highly improper closing argument comments insinuating that  i fabricated evidence for the jury and as to the first issue that i'd like to comment about the two thirteen violations by dr cole the issue in the case was causation that puff medical malpracti zero two thousand seven hundred just a few weeks before trial they file supplemental disclosure and for the first time they offer opinions regarding causation by dr cole the causation opinion had to do with the fact that the normal was there before he ever operated on the patient and it had causation opinions regarding the role this was well after all the definitions were done i came in on a motion to strike those opinions in court so i show up to trial and that's a key rule i show up to trial a few weeks later expecting the case to be tried and the issues raised in the depositions and disclosures and that is this that the neuroma according to that that no roma formed from that chronic compression of that ligament on that nerve the jury believe that i was going to lose the case because that had nothing to do with anything that dr cole did but that's not what happened i get to trial and i put on dr cole as an adverse witness he makes no mention of causation nothing i rest my case dr cole first witness called by the defense and out of nowhere he stands up for the jury and announces that this is the most important part of this case and he discloses for the first time that in his opinion the government was caused by nerve to generation very important for this cour significant difference between his opinion about nerve degeneration as being the cause of the roma and the theory that they went into this trial which is compression of their i'll tell you why it's important in a problem with the case that they realized when they got weeks before trial and that is if they stick with their theory that the compression long term compression from the use of the wrist of that ligament caused the neuroma they stick with that theory after his surgery if all he did was just so so negligent so that's why they came up with this nerve degeneration opinion and it devastated me i had no idea they pulled out an e m t which which which i can see was a part of the record was from a after my expert done and so all the most important part of the case is the m g because the e m t talks about motor nerve degeneration in the form and if you look at the record libya pace regarding to thirteenth strict compliance not tactical gamesmanship follow the plain language of two thirty he was disclosed as an f three witness conclusions opinions and basis are required by that rule he never once wrote anywhere in his disclosure that he had the opinion that nervous generation was what caused that aroma the only two opinions were what i mentioned earlier when again selected the world to thirteen disclosure he made reference to the long term affects of the carpal tunnel syndrome and that that nerve pain was caused by severe nerve compression no experience prior to the time she ever saw him eat that was his theory and that i can live with that well what why is that different how's it different bending their own if they are all male is in a different location than where he in size because if the nerve was being compressed by that ligament he was seen it and so i was prepared to deal with that issue is his theory was that she had longterm compression of the nerve from couple paul and even when we cut open that ligament and release the pressure in a roma can form he would have seen it if that's what happened and that was his problem that's why it's different he only said that this patient had nerve damage from compression  nerve that's the key very important i guess it's the action between compression of the nerve causing the robot which i could deal with versus what he came up with which was nerve to generation prior to never touching this patient down in the form operated i thought that the record indicated it was possible for them to form after the surgery the new roman no the what the record reflected is that the neuroma could form from years of compression by that ligament over the nerve that's where it could form that i have no problem with because i could deal with that because dr cole can explain why he would have seen it and more importantly if that's true when he releases the ligament and allegedly doesn't touch the nerve he can't explain why she got prior to now after home from the surgery or was it also an issue that it could have formed after the surgery and then a trial pool they're saying because they couldn't get around why he would have seen it because if their theory was their theory he would have seen it and why would she have gotten worse the owner was already there as to what caused her to roll and what's the difference between i was stuck with dr cole getting up there and saying reading the e m t putting it up in front of the jury seeing the words nervous generation dated before he ever operated on her and he just makes them believe and says that nerve degeneration is what cau world so i don't believe that nerve degeneration i don't have the option to hire an expert to tell the jury that nerve degeneration doesn't cause an aroma and so that's what i was stuck with him him having that testimony performing surgery i believe that he would have been allowed to testify that he neuroma was from years of compression of that ligament that was a disclosed and i believe th finding was only discussed to explain that she had severe couple public certainly both wrists and she needed surgery that is the extent of what was talked about of the energies which dr cole when he took the stand who made that leap to say that nerve to that repeating myself is that he he didn't see it in his operative report so the jury was hearing testimony would have heard testimony and by cross examination would was would have been had he not changed he was gone he was from wisconsin he drove back we were done the next day judge we've done they finished their case on friday morning i believe this all happened right after the left they put on so i did saw i didn't i objected on to thirteen i didn't object to lack of qualifications because i couldn't i didn't know the expertise until i left that courthouse after a not guilty and went talk to people and find out that this is a neuromas don't come from the generation of your expert dr did what he testified to the cause of the neuroma was the scalpel and what was interesting is mr brant they had this in their back pocket i had no idea this was coming when i look back at the record and i see it crystal clear when i went to trial relying on the courts having struck a few there have been better off the judge would be better off allowing them i would've gotten after i would have dealt with this issue of their generation and i would have known what these opinions were but i relied on the court striking those opinions discovery deposition he's a trooper he's a subsequent treatment very important gave his deposition no opinion on causation no opinion on standard of care gave in two thousand solved he said i haven't read enough records i don't know i'm not i'm not rendering any general and that campbell case is right on point patients in general opinions about patients in general i've seen patients feel that life has been was used by mr grech to say well he's just getting into his background his training experience causations got to come from a medical doctor you can't just talk about back in the day it was well if he hurt his back ten years ago he hurt his back in this car accident we're going to let the jury make that leap to say that they're related can't do that and this is really what we can said and what sullivan crystallized so that issue alone allowing the jury to make those conclusions was highly prejudicial because the jury made that conclusion that oh this can happen when one of the standard care they please a court counsel but one address one thing that was raised in the briefs and i want to hit for speak as i know my time is limited there were arguments made in the briefs by the plaintiffs regarding closing argument statements that were made in closing arguments and i want to discuss that over it was discussed for a moment and so in the closing argument i made reference to the fact that the plaintiffs had not called to doctors who had written letters that ended up in a workers compensation i get to trial the first time i had heard about these letters or that they would be relied upon was a trial and so i made a statement about the fact that those weren't all those two doctors one  the importance of that is this the inference under the i p i rule five point zero one of the instruction five point zero one is that not calling those witnesses would be adverse would would be evidence that would be a indication that their testimony would be adverse to the party not calling in our case the damage had long been done these opinions said it set forth in these letters were published to the jury they were put up before the jury in those opinions stated in those letters were thus that my client had actually committed malpractise or that he had injured the patient's nerve  during the surgery and so while the plight of claims there are some prejudice there the prejudice had long been long happened and if the prejudice was all coming the way of that and so the jury heard from two individuals through these letters about their opinions opinions that were from people that didn't treat the patient or harmful not to the point it would clearly harmful to the defense of the case so by the point of brought that up in the in the brief i don't see how they were injured i don't see how they were prejudiced i don't see anything because if i'm a juror in this case and i'm listening to me make that argument i think the only conclusion would be that the defense would want these individuals to testify  because they obviously were not going to be helpful to the defense so there was an objection on the us made an objection sustained in the jury was managed so this case obviously the focus of the case from the focus of this case is those those particular rulings i think the court has to give the truck or latitude they are there making those determinations real time there was a contention that  there was a misstatement of the law in the closing argument i think i made mention of the fact that the letters were hearsay when the letters i mentioned earlier it is true that experts can rely on hearsay but that does not make them not hearsay in other words it's perfectly appropriate to call out those things as being hearsay because they were it's contended that the judge didn't mohnish the jury about the argument he did you read i p i one point zero one in the last line of that instruction says closing arguments are to be disregarded if they are supported by the evidence of the harm that's being claimed with respect to this closing argument i think is not borne out by what happened and obviously the trial judge felt there wasn't anything there that should be done other than to sustain any objections that you found that you made mistakes that there was an absolute abuse of discretion and this means that no reasonable person in the position of the trial judge would take that view adopted so this church had two opportunities to make these r all these things were less and so judge warranted two opportunities to look at these things the strata case that we cited page thirty six of our brief abuse of discretion is the standard there so i'm not going to walk came to court here they filed an appeal based upon the proposition that certain objections were made and they were overruled when in fact when you look at the record no objection was made as to some of these things so there was no ruling in other circumstance in objection was made in a ruling was obtained use of the evidence came in and lastly there are circumstances where they were complaining about the testimony coming in that they brought out on cross examination and so this brief this whole contention about disclosure is rife with the proposition that because the statements made in the brief were not borne out by a review of the transcript and i i assume this court except pretty seriously  someone is indicated in agree that some ruling took place when they didn't take place in so i don't know how this court handles these things but it seems to me to be a pretty serious thing when you come to this court and you file an appeal the make an appeal based upon the certain rulings were had that don't exist in the record with respect to the two thirteen disclosures i've i think i've said forth all those things in our brief  a would you say that in the discovery depositions the rule two thirteen disclosures and the evidence that position that one actually d it says nerve degeneration was caused by carpal tunnel syndrome it's in it's in the disc those words are in long term compression will negatively affect the outcome of carpal tunnel syndrome those words are in i don't think that you i don't think i don't think judge warrants found that there was a distinction i don't think if you found that the word compression versus testimony or disclosed to opinions that there was a problem related compression to the nerve it was a distinction between whether or not there was a generation and i don't think he found it since and that was the reason for my question earlier to opposing counsel what's the difference between cross examination that in two thousand and seven p e m g this study of the nerve showed nerve degeneration next in his cross examination test so it came out through a nervous breakdown had already begun in two thousand and seven which is long before the surgery it's from dr grindle on cross examination he agreed that the plaintiff had severe carpal tunnel syndrome before the surgery and he that carpal tunnel syndrome will cause damage to the nerves to the point where that it will never recover so these were opinions that were just brought out at the time dr cole took the stand these were while the plaintiff's own expert was on the scene at a time if you we had also set forth the opinions and it's on page seven of our brief and i've sorry i point of view in the wrong direction but the last in the second paragraph on the page says thirteen you say yes yes i did know that and i think the answer is no but i understand your explanation yeah and i apologize i guess i did read into that something more than actual says severe nerve damage right what's the difference read that there are degeneration i don't think that i don't think the judge marks thought there was a distinction i don't think i don't think that the actual originated you see you know more importantly none of the experts took the stand in saw and drew to what caused the problem but we just looked in the disclosure itself but in the brief of the of the plaintive the argument is made that he was never disclosed as having that opinion but it aged twenty five with their own grief later then concede well maybe the disclosure does in fact have an opinion as to causation so kind of beset with a situation where there was a fairly failure to object testimony comes in it's opinions were brought out on cross examination not direct exam and there's appear to get rulings and there's a disclosure in the opinion disclosure i'm not going to spend much time about dr fernandes i would just say this to you that dr fernandez discovery deposition was available to the judge the trial judge at the time he was making rulings on the evidence that was going to be presented in the evidence just so we're not under the gun where the situation or pretrial were judged forgers both those documents and he can cross reference to see if those disclosures were his interpretation of the discovery deposition be towards him the evidence you were not in that situation we were in that situation yeah we were going to be in a situation where he didn't have to make a decision kind of real time during trial we're in a situation where we had all the time in the world pretrial for him to carefully go through and make a determination he made those determinations so he had that dis rule to thirteen disclosure was severely limited that per cent and so whatever limited to yes do you agree that during his evidence deposition he did try to go into an opinion as to what caused it and whether or not your client caused it but then he was rehabilitated i guess what was challenged by counsel for the plaintiffs in saying hey you never had an opinion before isn't that correct didn't you sit for a deposition and testify that you didn't happen opinion so how does that impact the allegation that you know he did testify or try to testify about having an opinion as to the on cross so that's a problem i don't think you win that argument secondly with respect to dr fernandes opinions the contention is they're all generally if they weren't specific to the point of we kind of can't have it both ways they weren't specific to mrs ortega and so that's that's the contention but i would say on the key issue that they are complaining about was brought out on cross examination it was stricken when it was brought out on track so i think that's the answer to that i want to talk about that very briefly campbell case cited by the point of survive general medical questions we've got to think about this for a second because campbell cases one where somebody came in think smoking might be related to the back injury so they're throwing out these opinions that don't really have a of the basis of what happened here is that the opinions that dr fernandez talked about in his evidence deposition were tied up bring about a relief all of those things that were talked about were tied up by dr shipman so we have to look at the case and in a global scene from the trials you point that the court in the jury hears a rule that says general medical questions are not allowed in the hypothetical question is gone there's no hypothetical question that we use and or the hypothetical question is gone if you can't address a witness position who hasn't seen the entirety of the record and say hypothetically if a b and c exists will be happy so i don't think that that applies to this case it does apply to the case where it appears and i  same with the same part of the body you must see part of the body rule which is the boy can case you must link up those two things argument i want to start with the two thirteen issues that this court raised with mr bryant regarding dr cole it's easy now because i have a record and i will tell you it's to see five twenty five not their briefs and what they say in their briefs that the record so beginning at page c five twenty five and it goes to take seat fact twenty eight and i and that's the two thirty two thousand and sixty disclosure the only opinion written opinion disclosures by dr cole you can all read the word earth to generation does not appear it's out there and how do we know that because ten weeks before trial they tried to add causation in the court struck it so what about  by the time doc by the time she came to dr cole cause nerve damage there because that there i had no issue with that that's the difference nerve damage is nerve compression that was their theory up yes ok because the meaning is that as it was talked about through discovery the nerve damage that they were talking about was the damage caused by chronic compression that sometimes these surgeries just don't work even when we release that ligament we just can't help it that's the difference words nervy generation i don't know right now we did have an expert on that issue it came out it came out in their case in chief it was something pulled out of nowhere which dr kolbe admitted i had no choice when i crossed them he said yeah i guess i just came up with that i never said that before so i had no i had no other alternative but to preserve the record for appeal frankly and bring that to this court's attention that only is it not in his written disclosure but he admitted on the witness stand that he that it's a new opinion of what leads you to believe the result not guilty because the e m g describe  yes you opened her up and you didn't see it because it was down here that's that's the prejudice that's why i lost this case because they moved the location i mean they they looked at petting him and they said this is the cause of the that killed me because the jury and of course they couldn't x you know that's right dr dr fernandez found it right here because it appears right i mean it was here it wasn't down here fernandez found it at the risk reese which is because their expert dr shipman you got up there and sort of went along with you know that this was below this was that that what fernandez really found was was we're down here in the forum that's what their expert said and we got into a debate about that at trial letter i mean crash and burn desperate pathetic to insinuate that the jury doesn't understand what you're saying is it's a legal term thinking they have a street sense of what it means it means don't believe it that's your say don't believe that's how they used the word that's how the jury understood it and to insinuate that i went on the internet like anybody can go on the internet and create a document was devastating i mean credibility is everything in these trials and so the jury now thinks that i when we had a sidebar before i published that letter that letter was part of worker's comp file that is as this court knows to i meet done because they didn't understand why this lead to the second surgery  gahl my expert's opinion it's pretty important it's a medical record signed by doctor and the five a one comment the comment i did emotional women on it no comment about people who were equally available and mr brown violated the motion