same mary's hospital by the defendant kilgore she had had a mammogram approximately four five or six years prior at the age of thirty three in the state of texas at that time there was a  baseline mammogram and it showed that she had large breasts and they were very dense and the mammogram that she had when she was thirty three years old was not necessarily for any complaints that she had about her breast but was an overall part of an overall physical examination that's important because of what will come next a down the road when i get into my argument subsequently she moved back to st or from texas and as a result in two thousand and four some six years later five or six years later at the age of about thirty eight she made some complaints overall complaints to her family doctor dr jekyll and dr checco recommended that she have an examination laboratory test in and also suggested that she have a mammogram she had the the mammogram was sufficiently concerning to the radiologist that he wanted to see the mammogram that was originally taken in in texas some five or six years earlier when that came back the screening mammogram which was taken in streator illinois by the in two thousand and four was compared with the one that was taken sick years earlier and there seemed to be is an asymmetric problem with which is a concerning problem for the radiologist and he decided that because of that he wanted to do a diagnostic manual so they called her back after approximately four or five days she had a us spot or the guy ignites the mammogram and he still wasn't satisfied with the results of that mammogram so he decided that he should do  there was no problems it was a and nine result come back this is his testimony is that he told her come back in a year subsequently a letter was sent from the hospital which letter was signed by the actor hill born telling her that she should comply with the rules of had the mammogram that resulted in cancer in two thousand and six when she went in for that annual mammogram what is important here  mary's will not pay you unless you get an appointment from a doctor to make your point with results so she started with them in may of two thousand and six to attempt it's all still in the record in the record that he malignancy the fisher that was biopsy was in the exact same location as what was earlier called by the  fibroid hema some sort of a fibrosis that he said was nine cancerous back is kind of a general statement as to where we're at in terms of the facts of the  motions in limine everything seeking to have from the defendant everything that they had in terms of journals stacks of order graphs what the standard of of what is  usually the object of discovery vehicles the trial started and we began the trial and when the plaintiff's case we would allow the defense to go into what he would normally go into as far as testimony is concerned within the scope of the  adverse testimony in order to shorten the process whether the defendant took the stand subsequent to my examination the plaintiff put on or the defendant but know a power point exhibit which is the major one of the major points of why we believe this age should be repurposed that powerpoint exhibit violated about the plaintiff in two thousand and four when he termed she had no answer but it was benign now let me get to that these this power point a reproduction from a textbook which was also never disclosed we asked about textbooks we didn't get a disclosure the textbook had actual as a teaching instrument to teach those who use that text or as the what cancer looks like or could look like what of the nine s of mass looked like those were reproduced in this power point and they were labeled cancer nine cancers and they were put on the screen we object in yemen right at the start case especially for the case that involved the of photographs of the arche line in the car where the judge ruled that the photograph of the carpet community even though it wasn't disclosed because it was not moved it didn't have any real relevance to harvey accident happened but he would not allow the photograph of the parking lot because he said that goes to the substantive nature of the of the case back in any event what are you complaining about the power point was that there was therefore what happened even that just in that situation what we had was this additional expertise that they were able to argue to the jury in comparing what those experts opinion will was on the reproductive copies of the mammograms with the mammograms that were taken in two thousand and six which are in two thousand and four which were deemed to be benign by the radiologist defendant we had no bases we couldn't cross examine obviously we don't there was no way we could cross examine was just they came from a textbook that was never disclosed it's hearsay double hearsay because he all morning testified that that particular reproduction was in fact a cancer or a non cancer and now i'll use that mr and mrs jury to compare it with my mammogram of two thousand and other radiologists so you have hearsay you have a discovery violation and you have a situation that do not agree with that they're listening to their position is they e mailed in seven days before and they did email they e mail everything except the power point the power point was never there will never any testimony that that textbook was ordered and it also violated the rule that says you can't use a test walk in your direct examination of of other evidence i was coming here except for the contrast yeah the two of you except for the opinion of the radiologist that read the original mammogram that was reproduced in the textbook was presented to the jury it was labeled and it wasn't the label that was placed there by the defendant no more that was labeled in the acts as fancy non cancer that they refer to that is simply for respect that witness testified fifty some pages of a record thirty stone ages were on our watch that means he must spend at least an hour or an hour and a half on the see that dr hill boring when asked the question as to whether or not he is mammograms in two thousand and four were to six months so that the patient then has a determination as to at least knowledge that the probably no longer is a probably either you have cancer or you don't answer these ladies aren't piling up to know if they have cancer or they don't have it and that's why the buyer ads are used by every really ologist and they have conditions on each of the by rad categories as to bring them back or telling them they don't need to come for another year for their annual mammograms it's important t a year and it was her fault she didn't come back for over a year had she come back they would have found the answer and as a result when you put that together with everything else this lady did not get a fair trial and besides which your honor there's even other issues involved that well i don't have time to do  but if you look at the cases as the scales case the jackson case one of the cases of that that i cited in there was that they were the court would not allow a mother who was suing for a retarded son to bring the son into the court room for the jury to see the son because she didn't disclose the son and the  discovery response another one of those cases were a buffer to show the damages of a car the judge refused to allow the bomber to be brought in because it wasn't disclosed to the other side i want to ask one last question that's going with the jury instruction they say the there's an argument that the law was in the state mr hickey morning this record in any of the briefs to justify that you know the first off because there certainly is plenty of evidence that supports the jury's verdict in this case and as everyone is familiar with the patrick standard it's certainly not a case where the evidence so overwhelmingly favor the plaintiff that no contrary verdict based on the evidence could ever stand so if we focus on new trial was there an abuse of discretion by judge head on jurors for a day it was a slow tedious process but we did both believe that we had a fair jury and i believe the conclusion also supports that we did have a fair jury in this case there's partner mr mcphedran in told him in addition to everything else that he has seen we also do have a power point presentation i then asked him for his e mail address which he gave to me and then e mailed that power point presentation to  him myself so i personally provided it to him a powerpoint presentation containing basically a couple of different images the different sets of images first included all of the it included some of the mammogram images from the plane if it includes some of the ultrasound images of the plank of and it also included some ultrasound images that we were intending to use as a demonstrative exhibit that were pulled from an x those images since we pulled them from a textbook we figure because of copyright was we had to tribute those images to the textbook and in very e purpose of our point was this this case involved basically the the crux of the case was the dr phil born need in order to meet the standard of care need to perform asked that he saw in this woman's left breast i don't mammogram an image and then an ultrasound image in he concluded based on the ultrasound imaging techniques and based on the for m characteristics that you look for in an ultrasound that this was probably a bun matching finding and so the purpose of this power point was to show the jury the different issues that are radiologists looks for to make a determination that even if there is some mass scene they still don't need to do a biopsy and that's why if i can follow up on that that's my question well this is there was i'm guessing approximately eight different textbook images that were missed seven of them didn't have anything legally there was one did it say that it was malignant and and then and that was it and that when players counsel objected to the use of this we were very mindful of his ruling and made it very clear to the jury that what we're showing them from these images that are just used for demonstrative purposes that we're not showing these for any purpose other than to educate the jury so we needed very clear in our direct examination any of the images from the text post that these are not this patients and these are not doing anything other than to establish how does a radiologist interpret these images so we pointed out to the jury image of bone can act out if something's cancer all an ultrasound and do is if you take these for characteristics and either becomes more likely malignant or more likely but mine and the only way that you determine if something is cancerous is to do a biopsy and put a needle into that mass take tissue out and then send it to the pathologist for an evaluation so there's nothing about the ultrasound images alone that can make the inclusion that this is a cancer or the fourth thing we go to some something called internal f o consistency how well the sound of the ultrasound goes through the mass so we go through each of these four characteristics with the demonstrative  regard to those on the well i didn't i think i had it separate i didn't have them side by side i just put up her images just talk to doctors don't want what you see in the margins here what are they regular irregular and then i showed another image just wanted to get another set of images other than just this one patient to show a little different view of what these images look like because you know the images are of a quality that  all kinds of testimony on margins so you did he did make comparisons oh he didn't mean the pictures from the textbook in the pictures from the from the point i don't believe so i think from the textbook just for images and he used a pan or something instead ok this would be a regular merging in this is what these margins look like without using something i can presumably authority here that i think that you are correct and i just happen to think that in this case those demonstrative examples help the jury to understand what he was doing i didn't the the types of masses that you have the shape of out there sometimes a classic shape where there's a line up i have access of orientation where it's like a big oval and it's really easy to see or you have a kind of a wanted to know shape so there's certain masses in ultrasounds that are very easy to determine each of these four characteristics but there are some shades of gray where the shape isn't quite lined up like and i think it was a a teaching tool for the jury to see a more classic example of a mascot like wind up on an axis in a certain way so reason i'm asking these questions with regard to he said that it's really a subjective decision by the radiologist whether it's a virus two or a virus three but i disagree with plaintiff's counsel when he says because if it's a buyer is three then he admitted he deviated from the standard of care that's not true there's no authoritative article x that was introduced in this case to indicate that this woman needed to be followed up in three to six months if it was a three that was the only testimony from mr rahul his expert dr phone who showed up who said a short interval follow up is three to six months it was always the position that we had the follow up that was reasonable in this case whether  the so the instruction that we sent it was the two thousand and five hershon of reasonably well qualified so we basically fell into that yeah period of time where there wasn't a clear  before case comes out right right so neither two thousand and five nor two thousand and six instruction is the correct one as of yet the current law stands i do agree with that but at the time i think that the three thousand five instruction was appropriate i don't think the jury was misled as to what they were determining i think that recently well qualified have been used for least a decade or two before  her to her primary care physician for her to come back here the reason it was relevant is that she would have come back in here the treatment van would have been the same as the treatment if she would have been diagnosed with the times you see my doctor the born in played of said played it didn't cause for cancer they grew with that dr phil gordon was this woman's cancer reader it was her job exercised reasonable care hello it's not contributory negligence because we believe she likely had cancer at the time trial is when we received this particular document that was to answer all of our request for production and in no time was there any reference to a textbook or in which i we were in the courtroom when we got this we were picking a jury however i'd like to go back to there for a minute what we have here is the opportunity for the defendant more to bring into this record in the presence of this jury five or six radiologists to support his opinion that the images of mrs shar bono  the images from the textbook with the images from the mammogram and the ultrasound that he had evaluated in two thousand and four keep in mountains and then he would use those and show that this is the image of mrs sharp bono and as a result they were the cancer was not the same on the image as it was in his images and how any jerk could be fine the distinction between those two is it which is not just the way they could do it what they did is they brought in and the jury was baiting where if this was a valuation made from a textbook from radiologist this was a an actual mammo reproduced so somebody had to read them that somebody who had to read it was a radiologist who call what that really that that was by doing that you added an expert witness if he had six or seven different images and he said eight he had eight different radiologists potentially to say that the images of dr hill born were correct and we had no way of disputing i don't know how we could have done anything about that and also your honor if there is a an important distinction invented the categorization of of a breast sees and it was american radiology society that offered that as a guideline for now why is there work it's important because she was entitle to know all whether or not she had cancer when you said probably but nine what is the first if she what would have been the first reaction to someone who was told it's probably behind well what else can you do to find out of points if it's truly benign all he had to do was buy a c he already knew there was a problem there was a difference in the two thousand and four mammogram from the one from texas back was a red flag for him that took him out of the category of a screening mammo there showing the abnormalities the suspicious abnormality you knew there was cancer there in two thousand and four he admitted there is expert if you look in the records and look at the dialogue between the cross examination and my cross examination with those experts and dr hill borne there isn't any way that this case should not be sent back for either a new trial or a judgment in our favor based upon and dr billboard's admission that this was not the night and one other thing the letter did that she got didn't tell her anything other than that your biopsy your mammograms were going nine it didn't say probably been airing it said ben knight and she testified that if she would have been told that it was was a letter back here dog the letter said comply with the american cancer society rule that says when you get forty years old you a letter told her anything about her or of result demonstrative if it's substantive which it was it needs to get to us before that's it otherwise a sixty day rule makes absolutely no sense you might get a