have here today of the motion for summary judgment the issue honest motion for summary judgment is whether there is a question of material fact this case we've got the best evidence available that there is a question fail to establish proximate cause as a matter of woe here the defendants are arguing for a motion for summary judgment not on the basis that they are entitle to judgement on their own evidence but instead they are claiming that the plaintive cannot produce sufficient evidence to make out the elements of her case and that theory that even if an expert notice testifies that there is a possibility that of cause ation that that is sufficient distinguished from this case where this may have have i have expert test with which will show proximate cause with regard to the statement of  cause because her experts said unequivocally that they didn't know what a narrow surgeon would do and in fact care that the political gets which broke a professional conflict must be measured what was the what was the violation of the standard of care of this kid what is your theory as to what was not always consistent on that point at one point he said it should have been one group each study other times he said to repeat studies but it really doesn't matter because a motion for summary judgment you have to interpret the the evidence in the light most favorable to the plate so the fact that dr jenison contradicted himself on that issue is irrelevant so you because of the fact that actually i think there is evidence of proximate cause on both the first study and the second although obviously it's more clear on the second ultrasound study because as even the trial court said in that in ruling on the motion for directed verdict there was evidence out there was new back showing that certainly by july twelfth it doppler study would have been positive treatment meson should prescribe prophylactic westerners after her wash was discharge from the hospital for two week period until he was going about his new normal business so we had two theories of him doctor genesis testimony where he said that  patient suspicion that there's suspicion for that continued because he was continued to be immobilized and unable to walk needed to have tasks which is repeat ultrasound was reasonable to treat him with heparin but to do neither was to leave it up to chance whether he could when he was not up in about to have any opinion as to whether or not he would have had an episode of shortness of breath the night before and i would have it my way of knowing exactly what the shortness of breath was due to but i think more likely than it was due prosecutor's i don't know that confused or whatever particularly because of the fact that all the circumstantial evidence which was testified to by the experts i e that the patient is most at rest when he indicating that in fact that these what thoughts have been there for one to three weeks and so again they had to have been cough there was a reason why they would not have been indicating from which an inference can be made that sure sounds on july fourth or july fifth and certainly by july twelfth would have shown went back to your question about the opening about opening oh my opening statement that whatever i said in opening statement is not that was not actually that or tennyson said repeat doppler studies in his direct testimony he also said it in his deposition so that was not a thing he said that all wrong i for whatever reason in my opening statement just chose to focus on the first repeat study but that are tennyson clearly said in his deposition which we took a long time for the trial court to find at the trial court where he had said that in this deposition he said it several times in his direct testimony and was prevented from saying it more by the trial court's rulings whether you say the point this is a motion for summary judgment the motion for summary judgment you're not limited to the trial court record your limpy you can accept anything in the record itself on motion for summary judgment and so alter sound study what is shown d d t and then on and he said that in cross and then later on the cross he contradicted himself but as the supreme court held in palin versus r a few pages later he said it was speculation so we did contradict himself i have to acknowledge that but that doesn't mean that is you know is this for a court said that one versus router that the after this deposition dr jenison takes place we get a supplemental disclosure from point that says what was required here was one doppler within a week that's what we think we're going to trial this one doctor within a week she repeats that opening statement she an algorithm just maybe you have to do a repeat doppler you know week and so when we get to our cross examination of dr jenison this case that's where we start isn't it true that we comply with the standard of care here can counsel what is the situation let's assume that he is contradicted so what is the situation regarding it as far as a jury trial is something in other ways on this jury and let me tell you when i discussed with the jury but it's not if i didn't bring that in here just because one juror hung this thing up and would let it go to a verdict is not a reason that doesn't mean we are entitle asked him point blank you have any reasonable degree of medical certainty as to whether a repeat doctor on july fourth five or six would have revealed anything at first he tried to say yeah you would have seen something but then he goes through and he goes you know what that's subsequent contradiction or disagreement or whatever it was even limited the viability of his earlier testimony it's not a contradiction it's when he says there is no factual  consider it isn't it isn't because under the teachings of white box when you get those conclusions that's a conclusion but an expert opinion that's not supported by backchannel basis is entitled to no weight it's entitled to nothing and it won't prevent speculation conjecture guesswork his words his own testimony that's his conclusions are based on those things you can't support counsel my problem i'm trying to get you to focus on that here that's why i asked the questions i d cross if i had no crossed it goes i was curious so there's a cross examination in the wood this is now ph how does the impeachment go to anything other than the  all of the all the experts in white back i will come up with this conclusion it's directly related if they had just done the c t scan he would have survived this we would have been able to say the chances of success of survival were more than fifty percent of the whole that's what they all say initially but when you get down to the cross examination and say listen if you perform this test and these are all testing cases you worry that c t scan what's going to happen well i don't know if it's going to show hydrocephalus at the time you work with him to the second what he said he said it's either or you could do either one of these to comply with the standard of care if either one complies with the standard of care why am i supposed to do both if i so there's a fatal flaw with what he says i'm supposed to do with the standard care one alternatives but also could have been a problem both is that his testimony was changed from his deposition testimony his testimony deposition is either or when i ended up with him a trial he said you could do either doppler within a week or you could pull open ice or you could do book page sixty of volume ten you could do both or either one so i've got three different scene ways where i can comply with the standard here i don't have to is that if you're going to have these conclusions you've got to have a basis for it and when he testifies that it's speculation yes work was subsequent doppler which show then he's given away those inclusion and white back aguilar indicate you're entitle wife thirteen he can tell us whether these pulmonary emboli life were in him before he ever went to the hospital were a week before he went to the hospital well i say this is like president circumstantial evidence that supports the plaintiffs there because in a medical malpractise case you can't rely on circumstantial evidence you have to have expert testimony to a reasonable degree of medical certainty that's what supports proximate cause in a medical malpractise case and it i longer miscible then you should have made a motion to strike and it should have been litigated in the context of a motion to strike the testimony before the hearing in a motion summary judgment because if shown that deposition testimony works at docklands for only just now and i may create summary judgment another doctor would have picked it up at some time the problem with that is we don't have an expert testimony that an additional doppler would have picked it up because he says that's speculation fifth of july twelfth when you're going to perform to two gobblers twenty because we are before the trial judge the motion for summary judgment says nos july fourth of july eleventh she realized she made a fatal mistake because everyone concedes that all of these events could have happened within a twenty four hour period of time there is no testimony to a reasonable degree of medical certainty that the first doppler would have shown anything because he's testified it's guesswork there is no testimony no disclosure no deposition testimony no trial testimony and  surgeon would do if this case dr jamison clearly said he says that on page one hundred four of his testimony that i can say that he would have they would have seen far above me on july fourth fifth and six he says that if here is part of his cross examination that establishes that a you look at gatlin vs router what the supreme court said in that case and in that case there was directly contradictory testimony by a doctor and this one  own because that when this instance finds it with regard to the question of what the second doppler would say the trial court clearly said in the trial that there was all sorts of evidence blood clots and so clearly the second doctor would have shown it with regard to lovenox defense counsel has prevented presented no case no record evidence which shows that alternative that was the evidence that was prevented but it would be mr mr borden's burden of proof to show that plaintiff could not come up with that evidence and that that isn't so there is as i said