consent situation without the schools in those opinions on your supreme court to thirteen as required in the dad who will we also asked the court to burst with respect to the failure to allot the trial that makes the document that was i'm going to control of the defendant in this case something that should've been controlled by him appropriate for missing evidence case he has no i just one nation for the person who has the only explanation that can be made in this case as to whether it existed or not at the time the surgery is b miss kerr is the person responsible for determining that i mean when a witness is only in the control of a party and could have been produced by the group by exercising reasonable diligence  valerie who or if she didn't have would have told me that in this surgery would have gone forward and by virtue of the fact that she never told me and that she believed that the document was there at the time in the s they informed consent form is the dispositive bit of evidence in this case which is not true as you can see from the jury instruction in the law in this case there's no mention of informed consent from it is some evidence oh whether there's where it's but there's much more to do with the question is was the plaintiff's informed of the risks and benefits and that's a fact mission mr nordstrom if you read the cross examination didn't it was a little equivocal but  got a pamphlet of information from the verde i think that he said now i read some of it not all you know this is so there's only so much a physician can do and i believe so you know did he have informed consent these ten to you on the global information available to you i believe the jury decided he did he had plenty of information whether there's an informed consent from the file totally fair argument but not  discretion of the trial for him is not to be reduced or reversed without a finding of an abuse of discretion and that goes back to have just the score there was a fair question that the jury was entitle to make the determination of that is their job on their and the defense hest try if there's one thing everyone or over my years of trying cases it's that juries don't like repetition they don't want to hear the same thing over and over and then you brought in that and i find this interesting that he said it and he said in his brief he said it many times it was a tactical decision you know if you look at any discovery rule decision they all say the idea of discovery rules is to eliminate surprise to stop us from doing it you know to for reasons we can't explain informed consent to use and so to suggest we didn't have an explanation true it's because there is no explanation we or skip let's just say that the evidence about the informed consent issue which is beyond the informed consent  at least to us to me the jury couldn't get it we don't know what the jury thought but i believe they came to the conclusion that this plaintiff had sufficient information about the can the informed consent to undergo the surgery had he not he could have said no i would also point out that their request from the insurer they had no mr if you would or wants to suggest given the right to offer of the missing evidence instruction came during did she was as mr hoover says perhaps the key person i thought susan eaker was the most important person as to the informed consent issue because she saw him years and tried over thirty jury trials never had a turn prior to the close of the case tended to be a missing witness instruction as for example an employee oh well you know how to party all three who are is an employee of the other party who was in charge of getting in the sign informed consent forms and in charge if you look at the judge's decision as to why it wasn't here it was soley been used on the decision on availability of the women it wasn't based on any other factor if  to go back and try to verify those facts but when the defense doesn't present the witness who can verify the chain of evidence in this case best error