is a bit of the usual medical malpractise case for a number of reasons it was not the sort of case where the expert witnesses carol about what was required based on the standard of care was not the kind of case that church on whether or not a particular medical fact was put into the opinion process and so forth this was as the defendants conceded in their courts in the tr baby in fact after defended all hope will set you on a day of additional labor additional pregnancy would increase the baby's chances of survival by forty percent at that stage every day it's so critical in such a case that we have an opportunity to do what we can to put our sad of the case on wanted even while the playing field with the defense because essentially that happened was the defense cross examined and impeached the plaintiff on a number of details about that conversation that she did not recall that it got console let me ask you eat you did not matter of fact out there such as dr mark's testimony it's not in the right things aren't there that we need them so easy just raised the point about what no need to go forward unfortunately i can't respond to whether or not the site is correct but i can tell the court that the primary issue with this case is whether or not the statement by defended dr all  actually i that put it on volume four page fifty five and three fifty seven was where the conversation took place this is whether or not i clear the trial court at length on that particular issue it's found in volume four starting on page fifty said i said i mean this is clearly myself i mean he said as a matter pleading that he doesn't have information sufficient information i do you think he should be allowed to take the says the defendant having insufficient knowledge to which and which to form a belief as to the truth of the allegations neither admits nor denies same but demands strict proof thereof that if the witnesses on the witness stand and he said she never told me how does he do that if he has it sufficient information to admit or deny what a fantastic but you never the point is i that's appropriate rehabilitation will the heller case that says cited by your opponent basically says that the inability to recall a fact prior to trial is not inconsistent with the later ability to recall that fact asked a question there that agent ever tell you about a certain cover at the deposition the agent or the person said something along the lines of i don't remember what he said he probably  the difference between memory and knowledge batgirl at trial is not talking so much about memory anymore he's talking about i know she never told me because i would have written something down if she had impeached with the doctor the document was offered to him he was asked a simple question which is here agree or disagree that poker would extend the day labor for two to seven days to allow the patient to be transferred to another facility door is to something like that it's a concession and therefore it's free game my defense counsel i agree that when he says it's a true statement that defense counsel is able to impeachment in the words of it if we witness agrees with the statement there's no need to go through with the final tangent of impeachment to prove the inconsistency if there was one evidence there's objections were made continuously the theft of that was not the way the issue was framed in your briefs i recall it dealt with the the use of the of the argument wells where dr hibberd conceded to but was contained within the literature council says mr berger stood in front of the jury with an article in his view where is that in the record i have no way to respond to that as with many parts of this appeal i had to dig through plan a statement of facts to even find what he was referencing because i wasn't sure exactly which portions of the closing argument he was taking issue with that if you actually look at the text of the closing argument where there were objections made to the substantive use of the document any time the rule but i don't think the court did anything wrong in that regard and i think you're on a point out several issues here that that are relevant now the counsel's issues presented for review were fair phrase properly nor was there much in the way of citation of the record for me to be able to aggressive jackie but we were looking at for instance the issue of the presentation of the pleadings it was only presented in one place and that was it was offered as an exhibit that was going to be used and even the circumstances of exactly how that was done or unclear there was never an offer approved by plaintiff counsel that had been allowed to present this exhibit or cross examine doc all the people with this exhibit these are the questions i was at would have asked and these are the questions the answers i would have anticipated being given by dr will pop up and this is how i thought it would have helped my case whereas we already know the doctor with oprah agreed he has no independent memory of that conversation with the plaintiff he admitted that on the stand and he never said as counsel claims in his brief i remember specifically she told me no contractions in fact the question that was asked was dr bad review of this record  traction make any complaints to you of pre term labor on january twenty sixth two thousand and three answer no she never did there was never a question specifically put to dr although that that matched the allegations place complaints were in dhaka all open gave an answer that with material in materially inconsistent with what he said or how he responded to the complaint he had his counsel it was not one side pleading at the counsel really said so if you look at the very specific text of the allegation in the complaint it says that during the course of the visit the plaintiff a tiny jackson hole the defendant dr olah would pull that she was having contractions every one to two hours and ha been having less frequent contractions since her last prenatal visit as a very specific allegation and no it was that type of an allegation addressed during the course so we have that with respect to pleading and  frankly i don't think counsel as demonstrated as would be required here for him to prove his case that there was any harm but without the little boy said had he been presented with his answer to the complaint you know my counsel back that i've already told you i don't have any independent memory but if you look at my records there's nothing documented in a complaint of pre term labor and there's nothing that's inconsistent or that would have let up in the jury's mind while he just lied about what had happened there's there's nothing here there's no harm and we don't even know how that would have come out because no offer of proof was m and that counsel was extensively for me to be cross examined dr all purple regarding the issues of what he remembered and did not remember he made the point very clear to the jury that doc old boy did not have an independent recollection of this conversation he came back to it over and over and over again so it's not like the jury was kept from hearing that that he had some lack of recollection about this issue i think the court probably points out the color case counsel apparently just thinks the court should disregard color because he doesn't like it but the  says what it says i my class council have objected to defense counsel's cross examination of the plaintiff and similar issues perhaps that issues not before this court those objections were made and that issue is wa two wrongs don't make a right argument doesn't seem to carry much water again with respect to the use of the medical literature it was used in cross examination the way the issue was presented in the brief again it was unclear exactly was the improper use the expert actually conceded that he relied or he reviews a kind of bulletins he's a member of the organisation that produces the bulletins and he finds them to be a quote valuable resource close close and he agreed with some of the text of the specific but i would urge the court to look specifically at what questions were asked of dr hamburg or what objections were sustained when those questions were being asked and then in the closing argument the exact text of what was said i could say to it at six eight extensively here running on time so i don't want to waste of course time in that regard finally i would address i don't know that we have really got to the issue of the testimony of dr marks the defendant's expert again i'm not really clear what issues being raised by plaintiff here  the issue presented for review as stated is defense pediatric expert does not treat pre term labor and has never prescribed for political for the travels have allowed the pediatrician to give opinion testimony about the effectiveness of a drug he had never prescribe used to treat a condition he had never treated that's the way the issue was presented but there were no foundation objections during dr march testimony the objection in limiting was that specifically dr marched relying upon or using a piece of medical literature  some lack of foundation demonstrated so i think if if the court looks at all three of the issues presented for review by plaintiff not only has a plan to fail to provide a basis in the record to say the court made this decision this was the issue it was presented this way the court ruled this way this ruling was improper and that ruling constituted error and cause your reversal harm to the point none of those issues are presented and presented in that fashion and that is the point of her so on that basis i believe the plaintiff's appeal should be denied and that the decision of the considered decision of the jurors should be upheld thank you seven days for the purpose of administering spheroid or for transferring patients when i showed them their document even he had to admit that it was a cut of mind how could he not it's his professional society it's right on target energy absolutely reports his assertion it is rebutted by his own professional societies practice guideline i believe it is clear when looking at the record that those objections were made those objections were over rule and that the one that i did what i could its use is or effect there's nothing i can do on the inside news with any of their experts so i can't cross examine their experts on any of the downsides of trying to rely on what the couple and said all those things are you know