a part time university teacher or a member of a corporate full board is entire respect it's one thing to say i couldn't return to my former job as a c working forty hours or hours that is what economists do in corporations throughout this country every day they take they interview the plaintiffs they get information about the finest medical condition is and then they crunch numbers  would we necessarily well with no expert necessarily concluded that that he could work twenty hours a week in those capacities and in a lower stress and vironment like being a university teacher or a member of a that the assumption the disk that the expert mates about what the difference is is an assumption based on the ten hours a week just met it was not based on a specific number of hours it was based on the types of jobs that andriy thought that he  jury knew that mr arland made one hundred thirty five thousand dollars work and was making eight thousand dollars now the jury awarded one hundred and twenty seven thousand dollars a year for twenty years this court would have needed to affirm that because that's what the evidence was shown was his that i think i can also work on of you maybe another war too and i could teach part time he didn't he looked around he didn't have any other abilities in fact in order to get a permanent job he would have had a job there and strong position which the evidence shows he would he doesn't he doesn't have to show it to me well we know what did earning capacity was before the horse so i say we know you have a better argument that although the fact that he had to quit because his previous job th you lose right we have to provide a reasonable basis to the jury to make a determination of what that is not actually true you have to have evidence from which the jury can find by preponderance  judge you decide the issue are you decide whether the jury's got enough you would lose would you not on there that extreme opposite of please don't tell me that's not the facts of the case that's why we call it a hypothetical asked if you can't prove it is a tort earning capacity by whatever standard of proof is imposed and is appropriate you lose the burden zone you correct ct it it seems to me particularly on the page that you cite your argument was a causation argument own you said i don't lead the plaintiff has met their burden of proving that either the failure to give th six and or the specifics with regard to disarm embarkation and in a causal connection would have led to a different result than ultimately what happened in the record that's a causation argument and you're making a completely different argument it seems to me on appeal your honor let me be clear we are not arguing on appeal this is correct it is a different argument on appeal the argument on appeal you're referring to the procedural history of the case i believe the argument i'm referring to the pain of the record that you cited in your brief d to support the opposite proposition improperly preserved this issue yes your honor the will and let me make sure that i'm being clear on this we did move for judging as a matter of law but as with respect specific lead to the standard of care we are moving for a new trial not a judgment as a matter of law and if there any if if that was not one hundred percent clear in the brief i apologize for that but the point that we make here is not that this is not our argument on cross appeal is not clear because this is an argument that the evidence was insufficient to support the jury's specific argument for judging as a matter of law the court and still examine the context of your opponent so that when you raise an issue about a motion for a new trial you didn't properly present the issue and you said well we made for judgment as a matter of inquiring into whether any evidence supported submission of the issue that's that's the solution that's a top or your honor i understand and again we are not arguing that the court heard by not entering judgment as a matter of law under the standard of care analysis our our argument is that the judge abused discretion by allowing the play desex parts to testify in a manner that was inconsistent with the appropriate maritime standard which is well preserved and we are arguing that the courts should have instructed the jury in accordance with this court's decision in franza as it pertains to sift leads he said a new trial is necessary because the requisite standard of care applicable to a physician facing a cardiac emergency at sea or the improved that and c l's doctors did not meet the applicable standard of care that's a sufficient to exactly roger but it goes it goes to the question of the instructing your honor it goes to two issues and let me i disagree that it's a sufficiency issue your honor for two reasons number one the question and certainly you know this is with respect to our cross appeal certainly or on or on the question of whether or not the plaintiffs experts provided an appropriate appropriate testimony as it relates to the standard of care the question is what is the a political standard and that dovetails specifically into the jury instruction so i know where you had it all turned jury instruction to me what that difference between the two was was trivial and far so clearly with and the discretion of the district court to get the pattern instructions that didn't have the specific language of the circumstances being at sea versus on land that's jury argument kind of stuff i understand it you preserved an issue about the jury instruction although it doesn't seem to have much merit to me but you know my focus has been on this issue about the motion for a new trial which is not dependent on the jury trial i'm on a jury instruction it's a sufficiency argument best i can tell but your honor that i respectfully submit was preserved because there was an early on in the case there was argument about the issue of the jury instruction and the jury instruction issue is what helped define the care as this court described in france necessarily is variable depending upon when comparing positions on board ship medical and center as opposed to lambaste medical center and so your honor our argument is not for judgment as a matter of law based upon the failure to apply the appropriate standard of care our arguments for a new trial because we respectfully submit that if the court is going to instruct the jury i understand your honor referred to that as a trivial difference and i would submit that's an extraordinarily significant difference your honor in front of this court talked about the fact that implicit within the variable standard is the notion that cruise lines will not be helped the same standard of care that would guide treatment on shore and why that matters and why i believe that the the lack of clarity on the distance of what is the appropriate standard of care a put the bill to the doctors on a cruise line is fundamentally vital to how the entire trial would progress counsel who was put before the jury by which witnesses that there should be a different standard care what was the jury how was the jury to know this is not an  super duper negligent standard i mean what exactly was the jury to apply not because it happened to see what standard i believe your honor standard that should've been applied is to explicitly identify for the jury that the standard would be what was provided by trial counsel and that is that when examining the conduct of the physicians onboard the vessel they should be compared to conduct that is of that your honor but the jury the jury of course knew that this happened on board the ship but all one has to do i would submit is look at the expert testimony of the plaintiffs who as they describe the standard of care describe in the context of an emergency room the art but they also identified be existence of certain limitations inherent within a a medical center on board a vessel for take and the judge instructed bit based on whatever evidence that you're talking about the only difference you're really talking about which instruction is that what the district court should have said was that the reasonable care on the part of a position in an adult rejects involving that medical malpractise that it needed to be specific about what that circumstance was as opposed to generally telling the jury that it's under you know all the circumstances and allowing that to be court with respect to this decision court's decision in front stops short of giving the district judges the guidance that i believe they need in order to go to the step further of not only in the context of examining the jury instruction although i guess what we s indisputable cruise lines must treat their passengers with ordinary reasonable care under the circumstances it seems to me doesn't stretch and is exactly what we what we said in front of your honor global standard is the notion that cruise lines will not always be held to the same standard of care that would guide treatment oh i'm sure that's not to say that they can't sometimes but they won't always it's your honor  front of this court also said there can be no dispute that a cruise ship is different from a hospital undeniably the practice of medicine is far more central to hospital operations into the business of cruising is shift like a university medical center offers an abbreviated menu of treatment and procedure options as compared to a hospital or private physician's office where we know which was which was the burden of you in your expert to explain to the jury a daughter i are not my you're not going to jump up and say wait a minute that when the circumstance this trace it really took place in the harbor own sure your honor i don't think that that was our burden i believe with respect at the plate that has the burden of coming in and demonstrating what is the appropriate and we know we argued that this was equivalent to emergency room but don't pay any attention to your order doctor meson a plaintiff expert testified this was below the standard of care in every way not just as a cardiologist but also someone who works closely with emergency room physicians like i said before this decision is something that emergency room physicians do every day that's at the record one hundred and sixty nine to page one hundred and fifteen i would have to tell nicely with the testimony that this was the between an equivalent emergency room that doesn't have a surgical center to deal with an emergency hemorrhagic brain bleed and a land based emergency room that theoretically could and when doctors know morose and almeida describe the decision they have to make it was defined within the contours of the fact that they didn't know when the mr blonde's heart attack began and therefore had to use their measure judgment in accordance with how they have to decide based upon the fact that they were  and iowa which all of which your expert couldn't test but every everything you said he could have to extend understood your honor but i believe that without the requisite guidance in terms of how far the standard should go and how am getting that feeling just now now let me get to the point where it regardless of how he will respect you are economists who really did nothing but crunch numbers like all economists  number and not a certainty but the amount the amount of damages must be established reasonable not absolute certainty it is sufficient to be a reasonable basis for computation of the images afforded even to the result only be foxed there's no the other couldn't do it for factors related to cardio three of a kind of hills too with stress you know if this it happened six months earlier a different carrot we wouldn't be the st job there's not a scintilla of evidence in this record that the reason he quit the st job was stressed well i think he may have set some point that it was a stressful job but he the reason he quit was so he could go do this other thing but even if even if that's the case week job as is see that would be endangering his health far too much but it really is not capable of working more than even saudi hours and a lower  medical expert doesn't testify as to what is supposed injury earning capacity if we have his own assessment of what he he wants and plans