morning honors i'd like to reserve five minutes of the rebuttal in my very good i'm not going to be long winded you know hundreds i think this is a very straightforward relatively narrow issue but i want to point out in highlight a couple of things verdicts are supposed to be clear and understandable we're not supposed to be able to or have to argue and interpret what the jury decided and that's what we have in this case we had district judge sean cox say clearly this is what the jury did  no not to the instructions and i don't think this is an instruction issue at all this is what this is gets down to what the jury decided your honor that in fact when the jury made a determination of everything up to the amount including the finding of liability i think the instructions were ok just what the jury did with them that created this inconsistency i think the jury could fall of humans followed what they were supposed to do there would have been an amount not a zero in that's the issue because it was on disputed evidence of the benefits and all the jury you saw all this splash heard it and didn't object to it so the verdict was a standard form and again i don't think the problem with the verdict form i mean that's the standard michigan verdict form with the strain it's up taken out in that it wasn't direction because again i think that it was the appropriate form in these types of cases it's just when you have to go beyond the form  look at what was presented and what was presented was a causation defense any any defense in to the extent the benefits were even attacked it was whether they were incurred but you had good the burden of proving your damages i mean the fact that that they offer a causation defense doesn't mean you're therefore entitled to every penny you are giving you still the jury would still have to believe you care if you burn and here i mean correct me if i'm wrong but here they would have to conclude that you proved actually more than one hundred sixty nine thousand damages which which is what your client had already paid well it's interesting that is that correct line of reasoning or not that really because there wasn't even before the jury house so i thought that one hundred sixty nine came in a trial well i don't believe it did it was in a joy to exhibit it was never introduced to trial the prior payments were not introduced the evidence that was presented at trial client and other things so i mean there was testimony about what state farm and there was some testimony about what happened before and going to eat you know and in it was some testimony about the rape the issue that was decided and presented to the jury your honor however was whether the post cut off post i am the cut off whether there were damages the state whether they were benefits incurred the jury wasn't asked to decide well these prior payments incurred those weren't even it issue and that's the whole point of this whether there was evidence presented that they paid or not and this is a standard that you know is a standard unsureness company trick paid we paid you know we don't know anything else because we paid a bunch of money that's not be issue and we see it in all of these cases you had to prove your damages exceeded what he already got and there are three hundred thousand fair but maybe the jury didn't believe that there was testimony that i mean one doctor said he thought your wondering well in the diary rejected that by saying that he incurred amounts i meet the by the ring maybe less than one hundred sixty eight well i don't see how that could be your honor given that own after a trial everybody got put in there or it could have been confused and that's the whole point of the contradictory i would they have been confusing the instructions are clear it doesn't make sense you say that something was incurred after post cut off incurred benefits zero makes no sense if you incurred benefits you think that means that they are liable to pay something and it was on contradicted evidence of what the amounts of the benefits were but if they set a dollar i mean is that answer your i mean i'm not trying to be flippant really i mean if they set a dollar nominal damages then we don't have this conversation i guess right i don't think i know i think we still have a conversation the dollar still would make sense when you decide that incurred all these incurred benefits post cut off you know this is a constitutional damage case of the government you know example is sort of my brief you know i  yes that he was injured what is the amount of allowable expenses of the plaintiff include only expenses not already paid by the defendant how much be well i think again you have to look at the entire record you're going to look at what was presented what the jury had to decide when they entered question three but what was incurred i think that's where you know they're deciding post cut off determinations you know or post cut off benefits so the extent that anything that was paid was prior to the cut off in that part of the former that part of the question i think all usually comes up when you have underpayment cases and these types  of of first party go fall cases usually that's what's going to happen is when you have it worse you have pretty evidence presented specifically of what was prior paid it prior you know all the prior payments and somehow that becomes an issue and that's part of the defense that he we overpaid and you see that in their brief but there was no evidence of that he only overpaid and worked off well again the jury was not allowed or was not required to answer those questions that question they were answering was what happened post cut off see if you look at it you know in state farm's brief there's really very little in the record actual evidence of the record that they talk about and they say well we challenge you know his condition we challenge his needs we challenge you know whether he actually got bathing or or it the amount of attendant care that i'm close to whether it was occurred not to the amount and the jury once you make that determination they made a determination there that they were presented hey you got it you can only award over one hundred sixty thousand that wasn't the issue you issue was close cut off you know what was incurred during that time in bats where you get into the issue and i think that all of that evidence was on contradicted i mean they took their shot they took the solo shot of saying you know what you're not heard from this accident that's what ari said and you know they tried to throw out some things about whether he incurred the benefits and it didn't work well i mean it's your burden to prove the damages not theirs to dis that they didn't try to disprove it doesn't mean you're right but i think we did prove it that's the whole i'm going to remain out of felt that well there may be a lot of reasons that i can come up with a lot of reasons of makes plain what the jury did i mean but the problem is we don't know and we should know from the verdict form i mean they made them out of like my client ok but if they in x the reason i suggested is the real reason and i mean we don't like it reverse jury verdicts if there is a conceivable ground on which they were confused and should award to the contrary i think if there's a conceivable ground that you know is consistent then it sort of that's the end of the inquiry well but i think this is a little different than the usual case again there was evidence presented into two for the him to drink found liability they found that benefits were incurred what they decided was an zero amount i can't i can't rationally explain and i think concerning the accident concerning damages to his vehicle the jury heard testimony from dr gehringer stating that he could not relate any of mr was complaints to anything from the december accident but they also heard testimony from d indicating that he certainly could have been bounced around in the accident and pains were undoubtedly there now on the verdict form and judge nor as you quoted part of it the jury was only generically asked did delineate the length of time this injury was ongoing and you recognized george nora's neither the verdict form was objected to nor any of the any of the jury instructions given the circumstances in which there was testimony in the record concerning previous payments that state farm meet and particularly with regard to over payments concerning weight loss given that testimony in the  verdict form appropriately tracks what the jury's asked to do was their injury or expenses incurred is anything in deciding if anything its own would award only those expenses which have already been paid in this case to the extent the jury found that there was an injury they determined that state farm had already paid everything from it with regard to the scope of state farm's defense at trial  contested everything clearly causation was an issue but also damages were contested throughout the case as well state farm did not offer an alternate amount of damages to the jury it's not required to but they can test it in different ways such as overpayment reiterated to the jury during closing arguments to consider and in addition to the weight loss itself state farm contested the attendant care payments because the attorney care providers were charging state farm for services which came out during trial testimony that were never provided were not needed for mr was koski that specifically with regard to beating so the list goes on and also what it turns on actually is the credibility of the attendant care and service providers as well as mr was koski so whether mr was in these individually entitled to anything when they're claiming attending care for services that weren't necessary or when mr was koski even was clutching his arm to his chest during the trial whereas his physical therapist was demonstrating to the jury the range of motion he actually had and observed mr was koski having so i don't believe state farm's required to proffer a alternate dollar amount that the jury should consider if it's going to contest damages based on the credibility the jury simply could have said you're not entitled to a penny goes to whether they were in kirk in back to your point about plausibility if in fact what state farm is saying is the it is the explanation then what doesn't make that's really the question of yeah even if you arguably could say well the damages applause you deserve damages are plausible if you say that the incurred part is not plausible and that's the whole issue they decided they contested liability the jury found that why i believe he just did it and then created then gave his zero and you heard the admission we didn't contest the amount of damages you know that the jury didn't buy the whole credibility issue because otherwise it could not have checked her box