we have a number of cases that have been submitted on today's docket on officially enter those they are kumar versus bar united states versus wetherspoon united states versus the morning good morning my name is david happening here representing the plaintiff appellant cherry land i'd like to talk about the main thesis and then after that the waiver prejudice and standard of review issues if time permits and then i'd like exam as far as that the main thesis that we have is that when you have a biomechanical expert no matter how well qualified unless the biomechanical expert is also a medical doctor the biomechanical expert cannot give a specific causation opinion that is cannot say that the specific person suffered this specific incident accident or injury or did not suffer the specific injury in this specific event but let's let's say you're correct  we're really talking about potential harmless error and at least according to my notes the government put three orthopedic doctors that said the injury was degenerative and a fourth doctor that said the injury was mild slight most likely resulted from degenerative processes under the sun and of the circumstances and wouldn't any error that was a committed here be harmless no your honor and it's this is always a very hard thing to deal with when you talk about prejudice not prejudice big all i can really say about it is that the government pushed very hard to get this expert to get this expert's opinions and because the government called them persuasive i call them persuasive in the findings of fact and conclusions of law oppose the motion eliminated and then at the end of the case the district judge accepted that in fact that an extra persuasive somewhere in those findings of fact and conclusions of law saying that it was a persuasive opinion that this these particular injuries to the left shoulder saying this person this injury this injury in this event it all comes together and it's impossible that she suffered the kind of injuries that she's complaining about the ones that have resulted in hundreds of thousands of dollars in medical bills and the surgery and support of the government there was medical testimony opposing the government and i believe that the focus of the balance here was this specific causation biomechanical expert who specifically said impossible that she offered this particular kind of injury and this particular event was he offered as a specific causation expert he was your honor and that's what he testified about said i'm here to testify as to the causational link between the border patrol vehicle and what provided it as specific opinion not only about the mechanics of the collision itself but also about the mechanics specific mechanics of the injury to this particular person now by mechanical expert can testify in general that in general a person probably would not be expected to suffer injury in this kind of event they can give general causation opinions to the cows come home but what they can't do is provide a specific causation opinion and that really was what mattered here  you can talk about generalities all you want but when the district judge has to decide a specific case and say this specific person this specific injury to a specific event then you've got to have some sort of specific causation of painting it needs to come from a medical doctor on part of the prom with dr paul is you may have not had experience with him directly he's just a wizard in the court i mean i like him a lot i love here and he's he's persuasive he's a he's a great expert on anything you want to name talk about the price he is dynamite and i'm not saying this that there's a jury in this particular case but there is a human being who is being affected by testimony of specific causation that should not have been accepted on legal principles as a matter of law but you still get back and it's another  problem let's assume as my colleague points out you know you got a district judge hearing this he or she is not going to be overwhelmed by the actrix or how credible the person is there's a there's a regular problem where the problem is you have an expert ecu or have experts saying one thing they're experts saying the other thing to generate a cause are saying that it's dramatic cause and then you've got the man in the middle who can tip the balance we submit who is dr palace and he is is a very persuasive strong expert who gives an unequivocal be unequivocal opinion it's impossible that she suffered this particular kind of let's show in this incident no question about it impossible and who's to say that that's not the deciding factor and i understand that when you get into the position of arguing precious or not prejudice you are looking up a steep hill but it still is it's still a hill that we need to look up in this case and say well you know if things are really that balanced if things are in balance then putting him into the equation was wrong isn't isn't my colleagues question though about this being a bench trial really determinative here now i mean i mean have an experience district judge well heard the testimony and made it from a nation has the testimony about degenerative process was in your side's desta money was in somebody had to weigh this you know it's not going to be over swayed by anybody going to make a decision and that's what happened but assuming that there is some echo and you know that's a lot of testimony and the judge was i'll undoubtedly swayed by that well there's two things one is that degenerative testimony is invaluable actually for our side because you have a vulnerable plaintiff you have somebody that you would expect would have an event that would be more severe for her than for other people but on the other hand what you have is a you have a balance here you've got one side of the other side if dr pelisse wasn't important they wouldn't have pushed so hard to get his testimony and keep his testimony and they wouldn't have put into their proposed findings of fact that his testimony was persuasive and the district judge would have said i find persuasive what he said under these circumstances at that minimum we plaintiff i've heard medical testimony from the defense side and on balance i find the plaintiff's medical the defense medical testimony more persuasive would we even the here i'd be in i want to keep your honor i'd be in phoenix not enjoying this beautiful city in the beautiful weather because there probably wouldn't be much for me to do but we don't have that situation we have the while the joker and the deck we have dr powell is here with his biomechanical expertise stepping into a medical doctor role and saying it's impossible if you take him out of the equation fangs may be different and that's that's what we're all we're asking for is an even playing field without testimony in the case it should not have been in th case that i have no problems with the fact that we have a very well qualified district judge however he made one mistake already and that mistake was to allow dr powers test my specific causation testimony you know if we were to agree with you and send it back  you wouldn't want to assign it to a different district judge honor i would love to have our state court rule where we get a chance to talk to a change of judge and i don't know if i'm allowed to do that district court you know and since i'm not whoever's i'm not a trial a trial lawyer so whoever handles this is going to have an interesting situation when you come down to a judge who has been overturned by the ninth circuit but i am sure it happens every day yes or it yes your honor does you want to say some time i'd like to say sometime  can just as you question so what is it in a medical doctors training that would allow him or her to discuss biomechanics well nothing to really allowed to discuss biomechanics but the the medical doctor has years of training in diagnosis of particular people look at the entire medical history examine him physically which doctor powers to do talk with the patient which doctor powers to do get an understanding of what this particular person is capable of of suffering and not suffering and in an event of this kind it's hands on specific knowledge again through not only years in medical school residency and all the other training but also experience on the job they can take a specific person and say well i'm looking at this event and what you've told me what i've seen the examination the x rays everything else i think or don't think that you suffered an injury it's a different ball game ok but i mean basically you're saying that the field of biomechanics has nothing to teach us about the cause of it please the court my name is kate foss and i represent the united states as reflected in the questions that you've asked of plaintiff's counsel this was a bench trial it was more than a week long bench trial where the district court heard a whole variety of evidence that could lead to this conclusion despite plaintiff's argument that they have presented this argument on specific causation the first time that specific causation as the term comes up is in their motion for a new trial not in the original motion in limine e not as an objection at the time of trial not as an objection to any question asked of now trying to make in the motion and lemony plaintiff wanted to exclude dr kuhl us all together as unreliable and that was principally supported by a twelve page affidavit by mark cannon who had previously been disclosed in this case and that there was an additional seventy eight pages of exhibits that in fact at the end of the motion in limine e plaintiff specifically said you know some might say that they can opine on forces no they can't they can't opine on forces it wouldn't be helpful to the district court here this is all phrased in terms of the likelihood of something happening which is no more than a lottery ticket being picked in terms of it happening after that the district court in ruling didn't address specific causation because it wasn't raised as an argument but simply said this is supported by this undisclosed expert under the court's time schedule that's enough it's denied so the case law like marble does for a let and fenton they go to the fact that in order to preserve an objection you need to give court an opportunity to rule on it and if the district court hasn't so ruled to make the just your court to where it has to be definitive and explicit and here the only thing that it was definitive and explicit about was that it was based on an untimely rebuttal expert here both our office of the united states and the district court didn't have an opportunity to correct these there the vast majority of dr palace testimony would still fall into this argument that they're making in terms of general causation now we submit that he should be able to testify as to specific causation as well but even even if the court had said no just limit it to general causation it would have been very easy to couch all of our questions and make it in terms of just general causation to say in general is this the type of injury you would expect from these forces and he can say yes or no what even what's the government's position as far as the point was that i would raise a while ago we've got at least five people i think in addition to dr pallas testified regarding the was does that render whatever he might have said harmless i agree i would agree your honor that that does render it harmless and that there's no prejudice there was an overwhelming amount of medical evidence in this case to the fact that miss lynn's injuries were degenerative not to mention that at the time of her injuries she did not complain specifically of left shoulder pain when she was sick she was diagnosed with the whiplash vehicle the impact on the intervening vehicle the impact on the plaintiff's vehicle and establish those as part of the record and then stopped put on a medical expert ask the medical expert to assume what the bio metrics expert had just testified to and given that mr medical expert do you have an opinion with a reasonable degree of medical certainty whether these complained of injuries could have been caused by this accident that would have been perfectly appropriate when i read your honor but the plaintiff did not present an argument that they should not be allowed to make those specific causation opinions so as a result there was no reason why the governor would have had to have guessed as to their objection exactly and further the federal judicial council published a reference guide on internet in kind of distinguishing between biomechanical expertise and that of a medical doctor and the role of a physician is that of treatment and diagnosis but it's not a detailed assessment of the physical forces and motions that created injuries during a specific event and so that reference guide concludes that a biomechanical expert may opine as to whether plaintiff's alleged damages were caused by the to testify about specific causation has occurred yes your honor of from your perspective there's no potential to error at all whether or not it's harmless that's correct and this coming down to it that the argument is about what a medical doctor can or cannot do but here dr pelisse was not trying to diagnose any injuries he was looking at the diagnosis based on the medical doctors and seeing whether there was an injury mechanism for what happened there are two specific opinions that dr polis gives and the first is whether a libral tear what the traumatic injury mechanisms are and he says there are two known traumatic injury mechanisms for slap tear the first is a pitcher it can by contracting the biceps can come often forced labor outs and the other is falling onto an outstretched hand which incidentally was something that happened to miss lynde more than a year after her accident but before she was ever diagnosed with a liberal injury and in so doing dr calloused says these are the two known traumatic injury mechanisms for a labor of terror i can't see how these happened on the medical record here is what i'm asking in cross examination the trial counsel for the plane to ask dr pillows it is opinion excluded any other potential cause for the was the fact he says i'm looking at your report and you use the term likely or unlikely any number of times so you're not definitively ruling out a specific cause you're just saying it's likely  unlikely and dr calloused said yes that's that's the terms i use and that goes to the fact that this whole timidly is more of a general causation opinion any way you look at it he's saying these are the known mechanisms i'm not aware of how it could happen in this case the other opinion that plaintiff spends a lot of time talking about is the fact that dr paulus and the court accepted that it would be difficult to injure your shoulder in three different places at the same time in the same accident so her injuries are at the top of the childer the slap chair one in the front one in the back and the super spin itis tendon and dr palace said i'm unaware of how in this you know straight forward motion of the rear end accident at a very low speed how you could simultaneously injure the top front and back of your shoulder and this is something that is also just a matter of common sense it's very difficult to injure one body part all at the same time or as written in our briefs to say that a child simultaneously skinned disney and bruised his collarbone when he was pushed out well the way you describe that it sounds like that would have been within dr palace expertise in any event i agree your honor but and with that that's why biomechanical testimony this morning that's not the focus of a medical doctor to look at how these forces are affected and what parts of the body are impacted by what forces so to say that they can provide no testimony as to what did or did not happen it's not helpful to the fact finder to just simply abstract it up but if that had been the case if the district court had been presented with this argument and the district court had made a ruling one way or the other the united states would have had an opportunity to frame its questions in that way but they didn't here and that's why it comes down to a waiver argument and there's certainly no plain error but even not an abus court cases that have differing opinions on this issue about whether it's proper for a medical doctor to give the civic causation testimony here it really comes down to the questions asked previously in terms of the prejudice to plaintiff and here there there is none despite this argument that it somehow tipped the balance there's overwhelming number of factual finding including the vast majority of dr palace's testimony which would allow the district court to find how it did and rely upon the medical doctors rely upon its own credibility to terminations finding that plaintiff was not credible her own  doctor who was opining on causation explicitly said that he could not say for first certain whether it was caused by the accident but simply that it was normally a traumatic event and he didn't have any other explanation for it post hoc ergo propter hoc type argument so we have all of these doctors we have all the medical records that alone is enough to support the district court's judgment here client to do the best i can for her but also a duty to the law as my colleague said there's no ninth circuit precedent on this particular kind of problem and the court however it handles its resolution of this case might consider whether some discussion of the ninth circuit's position on this point would be a good idea to provide guidance not only from arizona but of throughout the throughout the circuit i believe that the majority rule would be the correct one when i advocate for that is correct your honor did not specifically cross examine the bio metrics expert on the point of causation proposed facts were not submitted to the district court correct or on well there were there were a proposed fine if i concluded while they didn't deal with the police situation since that had already been dealt with with a motion in limine and i was like here you're sort of down three strokes with one hold a boy yes your honor but it's tiger wood has just shown us you can see you can still become a champion after a long time or as the marines say i'm not retreating i'm just advancing and a different direction up so you're standing on the bridge in the twelfth hole looking at the court and daring us right yes your honor not a great pleasure it's a horse a beautiful day as it always is i don't want to say a little bit about the motion  lemony my colleague seems to be suggesting that you have to follow the chicago method which you may be familiar with vote early and vote often and i think the motion in lemony is simply one vote you just simply you take care the motion of money and you don't have to keep coming back to the same issue over and over because an objection a trial would really just be a form of motion for reconsideration what's the point of that unless you've got something new to argue to the court it really is a waste of everybody's time as far as causation we're talking earlier about general causation specific causation there's a huge difference it's the difference for instance kansas and manhattan kansas is a city in manhattan new york is a city they're not really much alike when you get right down to it there's a huge difference between general causation and specific causation and it's the difference between right and wrong day and day and night the lightning bug and the lightning as mark twain used to say one opinion is allowable biomechanical experts can testify about general causation but and here he did testify a lot about general causation but when you cross the line into specific conservation you have crossed a line you're not allowed to cross that there's no questions thank you very much for a great pleasant experience thank you thank