madam clerk will you please call the next case in with the attorneys please step up to  alternatively a new trial on damages only or alternatively i'm damages and liability as the court is aware we've had two trials in the lengthy history of this litigation and with respect to the second trial the primary issue i'd like to address was barring our economist dr knows with respect to the first trial i like to address briefly the next negligent credentialing cause of action and possible touch on the nursing allegations and i can do either of those in any order of the court has a preference proceed with your argument thank you roger with respect to the second trial and why we think minimally we should receive a new trial and damages is that we submit must respect look at the trial court abused its discretion in buying d income from all the records i've read all the trials that really does not happen that can it would happen here the whole point of the inquiry is to assess the experts credibility and plaintiff can certainly answer those questions they're entitled to probe the financial bias potential bias to determine whether this person is a professional expert but trower does not say you have to answer those questions and i think that's important for two reasons ron let's say we went to trial of information was provided unlike in trial or and hastings and the related cases dealing with this issue here dr and rose readily testified that one hundred percent of his income came from consulting trial or says you're trying to find out if the expert is a professional expert here essentially he was that was his work rise for or consulting either depositions or trial but the jury got that information if we have any confidence in the jury system an expert on the merits with relation to economics this was all designed just this is this comes up in every trial as the court knows and the usual line of questioning is what are you charging what percentage of you know do you do clinical work do you do  you do teaching you know what percentage of your work is testifying as a consultant how much for defense how much for playing and how much you being charged today with that wind up inquiry i think is adequate for the jury but to come a to compel or witness to disclose their income i mean i've worked on a lot of medical and legal malpractise cases and i think the pool of experts in a well dry up now that's not the primary reason but i've had cases where mr clifford and mr power appeared and i don't think they would sign on to appearing and you know maybe it's not fair for me to bring them as an example but i've had cases with them where they've appeared as experts in any event the central point of trial or is that in the language in the case is they at the person conducting the deposition be given an opportunity to probe and challenge them credibility remember i think and i know it was a trial on the merits of the case credibility is always important but it should not trump the merits of the case which is what happened here again and with the unique facts of this case the information was readily disclose he's a professional witness essentially hundred percent consulting the dollar figure it had nothing further to the equation i mean how far do we take this out i mean we you know the court is far more qualified than i to think of scenarios of more and more information but the essential point here the information was given to probe and challenge his credibility but not withstanding that if this court come you know there the court held that the jury was ample opportunity to assess credibility and possible bias that's all we're trying that's all any was entitled to do in a trial assess to challenge credibility let the jury assess i think the facts are sufficient but here to a bond expert and whisk around for not answer one question in light of all the center information i respectfully submit was an abuse of discretion correctly identified in the record we were asked to acquiesce in the sanction we didn't because we don't believe we had an obligation to agree to a sanction when we did nothing when our expert did nothing wrong but also if you look at those cases and what happened here to have binder expert was really unconscionable doctor to post eighteen months prior to trial one question to answer objection in fact defense counsel turned to plaintiff's counsel at the deposition and said if this is important take it before the court that ever happened no during the eighteen month period there was no phone call between counsel no matters nothing to try to work with him out work it out of my counsel no motion to compel rule to nineteen court for a ruling i don't think we can hire enough judges to handle that call yes or yes there was there was no prior motion there was no motion in limine a it was day two of the defendants putting on their case in chief when there was this oral motion to hail mary call but they were successful they tried it day three with d percent it should be good accurate yes sir you know that the jury is comprised we are told of a group of people i think people would get that you know that perhaps he had some affinity to we really submit that we should have this judgment vacated it's our position that the plaintiffs failed to prove their cause of action or crisis of action which boiled down to two at the end of the day with respect to the hospital to put trial number one defendants moved for a finding by the court that dr kay was not the agent of the hospital that was granted that was never appealed that is in stone in this case the hospital has no responsibility for dr kay with respect  vicarious liability so that brings the plaintiff to two theories of liability against the hospital one is you know it's interesting they had the foresight to allege it because it wasn't strongly recognized until twenty seven frigo the negligent know it's not what i'm saying your honor i'm saying under the facts of this case and under frigo which is i believe the template for analyzing whether they asserted and proved a proper cause of action for negligent credentialing the plaintiffs had to prove they at the hospital was negligent in granting privileges to dr kay to work at the roseland because dr kelly did not have the credentials to work board certification was not a requirement to work at the roseland we are now we know that that is correct and quite frankly most of the yes he certainly misrepresented issues on his resume and its application as the plaintiffs point out in their brief that most of those constituted ethical violations did they probe into his resume his application obviously they didn't discover the misrepresentations but the essential point of that is that even if they discovered the misrepresentations at most they could rise to an ethical violation ethical question would they have hired him that's not the issue the cause of the action is that right through under free go but for dr k a credential to perform the job of an emergency room physician plaintiff would not have been injured there's no evidence of that negligent credentialing is not a cause of action where you fail to find out that somebody might have lied or might have misrepresented or might have had a dui or might have had some ethical obligation  just can't come in and say i wouldn't hire him you have to look at what are the credentials and requirements of that hospital dr kay had the credentials there was no deficiency with respect to those facts so that cause of action under free go was not the certification required therefore he was not qualified to perform the podium surgery here there is nothing to say dr cade was not qualified to perform the work in the emergency room the basis for your statement that he had the a couple of things first there's been a lot of discussion about the nurses allegedly failing to do an e k g at one fifty five pm right before mr bluecher was discharged to trinity the specific issues instructions submitted to the jury was that role some was allegedly negligent with respect to the nurses conduct for allowing mr bluecher to be transferred rather than an unstable condition there's no issues instruction submitted for failing to perform an e k g i think that's important and we have forty five volumes of record when i got down to fundamentals i start with the issues instruction but we've had a lot of talking a lot of side discussions about the e k g but that's not what the jury when he did he here earlier in the day yes he first came in then he then said later on maybe about nine o'clock or ten o'clock that he was he had chest day and there was no further e k g then i guess all of that earlier conduct he was under dr kelly's care and plaintiffs spent a great deal of time in their brief discussing doctor case mel practice again the hospital does not own dr kay he's not an agent at all  importantly with respect to the nurses conduct there alone nursing expert says that somehow the nurses should have performed an e k g right before he was transferred at one fifty five a couple of points need to be made about this number one not withstanding that the jury in this never asked to deliberate on that issue and resolve it secondarily there's no expert and i searched the plaintiff's brief believe me they have two point one million reasons for finding this evidence if it existed there is no expert that connected the nurses alleged failure to perform an e k g at one fifty five with the additional heart damage she allegedly sustaining from a delay in getting the nobody said that he sort of ignored it not if used to promote the transfer stood in front of the ambulance right after and stop this transfer so that they could do another e k g which he received forty minutes later so that's important for two reasons injury would not have occurred there's no expert that could sites that information because they proved op the injury did occur because of dr k because of all these other people no wrong expert nursing a physician said that intervening superseding cause in the proximate cause chain so even if you could get to the point where he found there's a cognizable cause of action against the nurses sufficient to take to the jury dr russell cut that off with his order of transfer and there's no expert further treatment evaluation but again the whole issue here is that the alleged delay in the timing of when getting a second e k g caused additional muscle damage not the stuff in the morning players to try to backfill it all into one package but the he was the personal physician he was watching with me and he gave the order he's the one determining what treatment is appropriate for this particular patient at that moment unless you're listening for the questions we request a complete reversal knowles ability to testify is that the charge case would appear to be right on point jowers said that the parties have a right to know the annual income earned by an expert witness as an expert for the very reason that the size of the him of his income the amount would likely come into play in front of a jury as medivac one of the reasons that dr knowles gave when he was offered the alternatives was i don't want him to know my income and that's the whole idea behind trial or if somebody is making a million dollars a year they've got a there's a potential for someone to believe they might stretch the truth if they're making one hundred dollars a year maybe not you know this is the trial were does not provide a bright line you maintain it  believe that it does and if it did not in this case the trial court judge made every effort to accommodate them and that was going to be my major my main point here it's a question of discretion in the trial court judge offered three different alternatives to assist the matter and let them put him on the stand the first was simply to seal that part of the record so nobody except the jury would know they refused he just said no i went through it after the trial was over the judge said just i just did not understand why that witness and that lawyer would not except that way to handle the matter he would be able to testify the jury would know how much he made in the last two years as an expert witness but nobody else would know his history his belief that he has some sacrosanct right to keep his earnings as an expert secret contrary to trial would have been satisfied and the judge offered to let the jury let him testify that this is how many hours i work last year and this is how much i charge per hour and the doctor said well no then the jury can still figure out what i made and the judge said ok what if i let him testify without answering the question but i will give a five point zero one i p i five point to one to the jury telling the jury that you can draw an adverse inference from that and that counsel said that's not said why did the hospital ever keep this person on is an expert witness when they knew this was coming up and the judge doesn't trial judges don't appreciate being put into a box where they have to make a hard decision when they didn't have to be put in that box somebody could be viewed or they could have work for the child court's a word of the second trial the first and one that's not touched upon in the defendant's brief that all was the fact that the jury in the first case came back with a very limited court judge said you're already two hundred thousand dollars but your county but the hospital's counsel in closing argument suggested a minimum of around i believe it was four hundred thousand dollars and the trial court judge said the reason that occurred is because the jury saw the surveillance video the surveillance video is without sound the injury in this case and i know you're on a separate read the transcript is one of cognition and ability to communicate and that a video without sound not only would not reflect  that but in fact might in fact hagar take the situation by suggesting because the video shows as this man walking around and driving and being with people might imply that he was fine he said it had you had adverse prejudice the judge said that night should not have come into evidence and that was one of the grounds for the new trial here the ground was that the first jury awarded zero for a for medical expenses and it's just not clear why they did that the judge said there was no reason to do that the bills were not there were not  in issue they were agreed to he said that alone an illustrated their confusion along with the fact that when they wanted future medical they had that wrong as well they gave too much but then the trial court judge made it very clear he said there's no evidence of a compromised verdict and damages and liability very separate all this was within his discretion here the point that counsel raised today is the question of whether or not plaintiff proved his case against the hospital and we made the point in that br ahead two separate causes of action against the hospital one for the credentialing area with respect to dr kay who i think i don't think anybody quarrels with that didn't do anything right here and the other question was whether or not the nursing staff at the hospital committed negligent and if i can just start with the latter first dr finn tell testified that dr kay and the and the hospital staff both violated the standard of care that would the testimony in this case was not limited to dr k in two terms of doing things wrong the testimony was directed at the nursing staff at the hospital there sure schroder our expert said the nurses can do an e k g without a doctor's order essentially and i may be preaching to the choir but i just want this to be i clear he had a heart attack the idea slacked off blood does not get to that particular section of his heart and this case the i read that was black was the artery that feeds basically a bottom chamber of the heart it does a great deal of pumping without blood the muscle started to die when the muscle back is the hard can that chamber doesn't beat effectively anymore because the wall can't squeeze  that the doctor thought it was on necessary at nine o'clock and that dr kay did not testify in this case and so we don't know what he did or didn't do but but the d all the testimony outside of nurses rock from the hospital incompetent and that was the other half of our case it wasn't just a question of credentialing that because steele's specifically said i have already shown in my testimony that the doctor who did the transfer that's k did not know what he was doing and that hiller testimony if you're honest recall was to be a fact that if a qualified doctor had been in the emergency room he would have known it was a heart attack he would have given the t p a the testimony was really kind of got buried along the way charles gross sue our hospital care and management expert the only one who testified in that category said that the hospital also violated its standard of its standard of care when it failed recruit dental dr king and the implication was because he wasn't qualified to be there they would have discovered he wasn't qualified so they the air that so many rivals keeping in mind that back to k funk the the board's either seven or ten times of transfer and but that's why the issue in the first case was you transferred him before he was stable that was the issue in the first case you get the patient stable by doing p k g s finding the heart attack the doctor trinity said i can't be sure it's this you know and they had to wait for it and that said the period of time between the transfer in the time he finally got e k g it was was not until two thirty five and if you're honest recall the testimony this case i verdict on the first trial for their failure proving both causes of action now given that with respect to the trial or decision and i know the court has and will continue to scrutinize it looking at page twenty one of the opinion and this is the supreme court's certain quote however we believe that fairness does not dictate that from list single question should spring with such broad inquiries into the merits of from the cases as previously stated we are confident in the jury's ability to recognize that the fact that a witness has typically testified for a category or a party does not mean that his testimony in previous cases was ill founded fear or because they want delve into dr kirshner prior testimonies i cited that because it highlights the appellate the supreme court's looking at the a jury's ability to evaluate the information they're given now if i flip the head to page two twenty two the holding it says we hope that the circuit court did not abuse its discretion in promoting defense counsel during cross examination of plaintiff's witness to enquire regarding the annual income derived from services relating to serving as an expert witness and the frequency with which the witness's testimony in prior cases had been for people suing doctors the holding right there does not say it again there's no bright line rule they have to give the job they have to give the answer you can inquire and if i witness refuses that's for the jury to evaluate i'm sure he's able trial attorneys will make a fine run at that in closing argument however the point is the claim here they acquired and they got the information brief and what happened in this first trial whether dr k committed malpractise is different from whether the hospital is guilty of negligent credentialing malpractise is not equal is not equivalent of whether he could opine whether mr bluecher had he received the t p a fifty two minutes earlier which is the entire gist of the cause of action against the nurses that somehow that delay contributed to this the outcome had been different he said no it's right in there on those pages their own expert this is why in the brief this evidence is missing it's not there and there's evidence to the contrary and our essential point with respect to the nurses is that there is no expert in this record that  linked the causation for the nurses alleged deviation to the injuries at issue no one allege that the nurses were responsible for the heart damage caused to earlier in the morning or for the damage caused by dr kay that nurse rock no one said