and it was at that time the day of judgment was raised in order to bar him from listening certain opinions with respect to causation well certainly the opinions were with respect to his opinions which had been known litigation as staging of the cancer and in addition to the prognosis and the treatment with respect to that prognosis in the stage of cancer that she would have had as to whether or not it would have changed or whether or not it would have affected  case she was called prior to plaintiff's expert dr robert thomas as an adverse witness pursuant to supreme court rule two thirty seven and her testimony was presented and at that time she offered indians with respect to what she believed the stage was which is at least of some importance with respect to this appeal jennifer was diagnosed with a stage four hurricane lymphoma which means it is spread to various organs throat the body is the opinion was the cancer was at least a stage four then or at least an advanced stage meaning that was a bulky tumor and would have required events treatment she'd already provided those particular opinions but she also indicated though that she couldn't rule out the fact that it was a stage t which in actuality was the opinion of plaintiff's expert dr robert thomas his opinion was that if someone had done the scan which they should have done in reference to the doctor past the front of the case they would not only seen the cancer but it would have been an earlier stage in his opinion it would have been earlier stage and one of the things that had issue in this particular litigation is the fact that he was not entirely certain as to what the earlier stage was in terms of the progression of the disease cancer never went from stage one to stage to the stage three stage four like you might expect instead it went from stage one to stage two and right from stage two to a stage for the most advanced type cancer at the time of trial the defendant ration objection to dr thomas being able to testify with respect to what the stage was and how the treatment would have changed and he made this of the urging of the defendants based on the fact that the defendants had during the deposition testimony of dr thomas he had conceded a couple things and one of the things he conceded was the fact that with respect to the staging of the cancer in i know the exact progression of cancer had grown were gone from stage one the stage four stage two to stage four stage three stage four he didn't know that and one of the things that he said was that he would defer to him a towel just with respect to that point but his testimony had always been that it was  stage and when i say it's always then his testimony at the decision was that he always believed the cancer would have been a lesser stage if diagnosed in october of two thousand in fact he also did the rule to t sorry apologises because i think your question was related to whether or not he was speculating there was some discussion of it at his deposition and it was also brought up on the offer of proof of trial is that speculation dr thomas as to what exactly her stage was in october of two thousand and his answer was sure of speculative because nobody knows exactly what it was because nobody knows that but what he said i think what you alluded to justice mco is the fact that what he said was his opinion that it was a lesser stage in october of two thousand was based somewhat on speculation but also on a number of amounts of evidence that he had reviewed in terms of the medical records and his own experience in training the case in addition to that he indicated it was based on his best medical judgment and this is an individual that not only on the treated patients that had the same types of affliction as care for some asking for those up but also treated people that clinically stage two is dr gregory indicated that and she actually indicated two things there was a question of fact with respect to this when the defense asked her questions she said she would have given the same treatment she would you get four cycles with an additional if she had been diagnosed as a stage two she would have given her last treatment she would have given her forty five treatments and depending on how bulky basically helping the tumor was she may not have even needed radiation and the reason that's important to this particular case is absolutely with jennifer she had a very aggressive cancer that famed back in in in the following march after she was diagnosed she had to undergo additional therapy and again it was an aggressive therapy like the first one and at the time for bath there was no active cancer which she died from was a result of all the side effects of all the various treatments that she have and that's  diagnosed on top of two thousand his opinion was one the treatment might have changed it might not of but the big thing was her body if it had less cancer would be better able to tolerate off the treatment  received and dr gregory said the exact same thing which is less aggressive treatment is better tolerated the less cancer someone has the better and the reason it's the better is because their body is much more able to cope with all the chemical agents if they get radiation those radioactive agents that they receive in order to fight yes or so just based on that testimony alone dr thomas had opinions that were known to the defendants throughout the yes he has his testimony was to a reasonable degree of medical certainty if you if you look at the record volume eleven page twenty five he was asked to give his testimony with respect to a reasonable degree of medical certainty into those questions he was uncomfortable giving opinions so that you agree it was to let us know and that's how he gave opinions not only through the direct examination that was performed by the plaintiff also by the defendants in cross examination and also in the set forth with respect to stage and prognosis and treatment the court basically decided two things one dr thomas his testimony was speculative and number two that he defer dr gregory in terms of what the stage was in october of two thousand and neither one of those two things are true and the record supports both of the plaintiff's position with respect to both of those issues the court found with respect to the speculation issue that he was speculating his opinions were not to a reasonable degree of medical certainty and i've already indicated that he his testimony was and he indicated it was being given to a reasonable degree of medical certainty with respect to the very issue knows for certain because it wasn't diagnosed so what we have is these two competing experts using their best medical judgment as to how close this cancer arose quickly came forward and symptomology how it responded to treatment outputted that kind of was it was basically a reaction from she developed toxicity from both the chemotherapy agents alertly one of the little mice and she also developed toxicity from the radiation that she received she had radiation  speculation based tom i think comma on a number of amounts of evidence and my best medical judgment that's volume eleven page sixty nine the seven that was his opinion with respect to stage and he's a physician he's not a lawyer and we  speculation in different words or a different way than a lay person or even a physician made so i think you're just being honest when you use the word speculation because he said continually we don't know exactly what she was doctor passed in bag knows for an october that jennifer died from a reaction to that chemical and then she would have died even if you'd only have one treatment i don't know she said one treatment but she certainly her opinion was that she inherited her opinion dr gregory believed in the defense theory was jennifer was would have died anyway she was one of those people that didn't fit into the regular mold and was going to have this reaction either way there since there was some testimony is that  she developed some issues with respect to the chemical agents at stage two but i think the testimony that dr gregory gave was it wasn't till the that the first cycle of treatment and again she and she was she got service that the symptoms manifested themselves with if we look at the response jennifer had she did not have a response after four cycles it was not till the first cycle so she'd been diagnosed as a stage two even under dr gregory's own testimony she would have had toxicity at that point diagnosed they needed to do a lot of chemotherapy they need do a lot of radiation and if she'd had less therapy her body would have been better able to withstand that only in the therapy but of also the radiation that was an opinion the fact or times held it was not heard the very evidence we needed in order to get to the defense case and then directed a verdict based on the very absence of evidence that the traveler just bar it was a very unusual situation from that standpoint but to go back to your prior question  you're going to hear from the defendants when i sit down it would have been the same outcome exactly what dr gregory said she would have the same treatment she would have the same of they'll be deal with that there's no negligence here there's no position that's not what the case law lost the chance to try to survive this cancer all the plaintiff needs to show in terms of establishing proximate cause is evidence to a reasonable certainty that the negligent delaying diagnosis lessen the effectiveness of the treatment or the chance of surviv and throw the papers and i know we've had those before you hope dr thompson dr gregory indicated there was a drastic change in survival for an individual diagnosed at a stage two versus a stage four anywhere from eighty percent to fifty percent is the chance of survival that's just based on the statistics alone dr thomas his testimony throughout has been the fact that if there was less cancer she would have been able better to list standard treatment survival and i don't think anybody in this case disputes the fact that from the time frame the form of the justice mccullough mentioned from october of two thousand when she was alternately diagnosed in february there would have been work answered the testimony in  to work from it is a somewhat complex medical case no question about that but that the issues that are before this court i believe are really relatively straightforward and simple this is not a case of competing experts there was only one expert in this case and you asked the question was this testimony given just all up in the reasonable to your medical certainty by dr thomas well the answer is dr thomas was asked a question he said he would give his but he also then gave the testimony where he edited that his testimony was speculative to reasonable levels or in other words he cannot disavow the testimony that he gave directly in response to a number of questions testimony given in his deposition which was very direct and there were two thirteen objections made when counsel tribalists opinions which opinions in all the patients which d january eighteenth two thousand and seven two weeks later we filed our motion for summary judgment when he announced that dr thomas's testimony did not close the causation yet so literally two  not long before the trial in other words a motion was filed counsel asked for an opportunity to read a post dr gregory was given an opportunity reading of dr gregory and thereafter the case was separate trial motion for summary judgment exactly that the court denied the motion for summary judgment and it was based in part on what counsel represented would be the testimony of dr greg and it was probably inappropriate ruling on a motion for summ opinions of dr gregory work and dr gregory's opinions were unequivocal she felt very clearly that he has of october twenty sixth two thousand which is the only date on which you reach of the standard and or it was a for either way and this is a this is a critical point either way we're treatment was going to be exactly the same as it would have been in february when the diagnosis was made and very clearly no treatment would not have changed in by the way this idea you know what what counsel wants us to do is speculate in the long speculation if this was a stage two maybe she only would have had when it gets into any kind of of any bulk at all everybody gets at least six stages they reassess the patient they have four and then the decision is made whether to go to six or eight but it's always a minimum of six treatments of six cycles of therapy and it is the theory which caused the death there's no question but then the u s to very quick question earlier which is how do we know when this has become toxic in the from dr bradley is you don't know right away this clearly become toxic after the first or second cycle but we didn't know until she was after the cycle because there's a it's a delayed response by th expressly disavowed the qualifications the training or the experience together he was pressed hard it is in his deposition and each time he backed away he said i can't make that in i can't give  if i did it would be speculation i have no open as to whether the treatment would change i have no opinion as to whether or not the outcome change that's what we had at the end of the discovery deposition that the as i say the deficiencies in that testimony which make this a to b by the way are are shown by the patient's symptoms in the months prior to their recognition of the cancer and they are all over the record according to the plight of because that's what they're saying should have evidently not i mean this is this is a very rare for a first of all i'm home is not a common disease and secondly and this was this is one of the tragedies of if you have a patient young active woman who has a an unusual deposition i asked him dr so what you're telling us is earlier is better than later is that correct he said yes but you can't in any way quantify how much better how much earlier than what he said absolutely not that would be speculation and he said i have to the first one question he was that this was not an idle pursuit on my part i went after the guy and i he was honest in his responses he did not have the qualifications say that the testimony of dr thomas would be the same if dr thomas we're talking about discovering this on february fifteenth in other words twenty four hours before eventually discovered on february sixteenth because his testimony would be equally a political it's earlier still better than later but that alice and the plaintiff only gets to his argument that the treatment would have changed if by some miracle there is testimony that the stage was just a stage two and there you'll see that she is responding to a hypothetical question she's asked what if she was not bulky what if she was stage two in that case would she have received lesser treatment events stage as either stage four or stage to be a she was asked point blank to add to a reasonable degree of medical certainty what stage was she in in october of two thousand of and dr gregory point why i responded i believe she was to a reasonable degree of medical certainty stage four she said there was a chance she could have been to be but i think it's more likely she was a stage four stage two b and stage four received her sight sleep the same tree now pardon me how did she know that's that's an inappropriate over the there is a reason why dr gregory knows this and that's because after she had first seen of the sores ozzy shirt she referred him to a radiologist out every step of the way she's being asked to fill out a medical history what are all your symptoms and she had quite a few it wasn't until she saw this radiologist long after the diagnosis of  pointed out that she said you know back in june or july of the previous year she was i really had a problem with night sweats that dr gregory focused in on that she said to me that  is that what she said no it might my recollection is that she was responding to a hypothetical they dealt with only stage two right if she was stage two if it was not bulky she may not may not have received radiation if she had been treated earlier stage even if it was stage four wouldn't that have made a difference and and had she died of lymphoma we might have something there i don't know i'm not going to say one way or the other the worst of all worlds she had an rest of cancer and coupled with toxicity to treat the only treatment that saved her life she went through her first five cycles and then i asked her separately about radiation would you have also given radiation for someone as of stage two and she said probably but in some instances you know you don't need radiation and you know the off the tumor at that time the thing that dictates whether you do radiation is how much there and it just depends on how big is that tumor when you see it and of course nobody knows with respect jennifer that it's a test pilot once it's pokey she would have given the same treatment to her opinion to a reasonable degree about a medical certainty in this case she said it would have been the same she also said though and this is sort of why we have juries to determine what the facts are is she also said on at least four patients it would have been a different treatment for instance she also said the same thing with respect to whether or not jennifer might have been a stage two she said that it boy i'm sixteen page one of two one three one zero four one sixty five and one sixty seven she said a number of times she said the same thing with respect to what the treatment would have been if it a stage two i agree with the defense of this say is that ultimately what gregory said was true it would have been the same jennifer would have died but there were facts that she had set forth before the jury with respect to her own first everything he didn't affront absolutely every single issue he also deferred to her in the sense of what the exact survival rates were and he said in his deposition he believed it was ninety percent if found is the stage to  seventy percent of the stage for dr gregory said it was actually closer to eighty versus fifty that's what he deferred on he didn't defer on what the stage was or whether it was an earlier stage that's not what he deferred on it was not that issue but to go back to what i was saying testimony that the infection of individuals like could have been avoided and the supreme court said that alone was sufficient experts can testify about what could have what might have been in cases such as this  you look at the whole the memorial hospital case it's not absolute in terms of what the plaintiff's case of prove we don't need to prove you know what she would have lived we don't need to prove absolutely there would have been a different outcome but we need to prove that she l chance and she lies to chance because if it does her testimony dr thomas were allowed to testify he would indicate that she lasted percentage chance based on the fact that she was diagnosed at a later stage and he would have said she would have lost a chance at the effectiveness of the treatment because there was more cancer at the time she was diagnosed she had less ability to withstand the chemotherapy and the radiation which ultimately is what led to her death there is no dispute as to the bulk or the the stage to be and this is the to be the peers a designation it doesn't stand for bach but it stands for is there sort of symptoms which go along with what typically is a bulky tumor is least a more aggressive tumor and those are things like night