argument calendar which is i'm assuming and as you can from that you can correct me if i'm pronouncing it versus boom this rest with thank you filed after these gentlemen were denied a fair trial pursuant to the seventh amendment my clients were rear ended on the freeway by a semi truck where the driver falsified logs where he was over his allowable time limit to drive and where he lied to police officers about who was driving and the jury found that this truck driver who rear ended someone on the freeway was zero percent at fault you have to ask yourself why and what happened in the trial what happened in the litigation in order to get to that stage under those sets of fa and we believe that it occurred because of three specific areas first of all during the pretrial phase during motion practice where there were some disclosure issues by the magistrate i don't know that that necessarily warrants a new trial in this case on those particular issues but certainly if this were mad that if this matter were to proceed back to trial we certainly need more clarification on those issues for the magistrate to follow because currently they are misapplying the rules of civil procedure and twenty six with regards to disclosures and there's also some inconsistencies in there as well also there was some summary judgment motions that were granted as to two defendants and the issue of negligent entrustment that we believe to warrant a new trial  certainly preserved was or something in the record that you thought that it was waived i read the record differently than you did but where in did you in the record can you point where either of the people you're suing under that standard had any knowledge whatsoever of any improper actions by either the husband or wife driver in this case the i would have found them culpable under that theory the question is not whether they actually knew it's whether or not they should have known and the facts are where in the record you show that they should have known there was evidence proffered by mr or mrs boone that they have pitch habitually falsified travelogues they did it for years when these new standards are going about what the companies knew not what they did what the companies knew or should have put them on notice that's what the law requires does it not well the law requires that they should have known in the question is what did they do in order to be able to come to that determination they did nothing all we had to do was ask we got in this case we got the information out once we asked the question about have you ever falsified logs in the past before and i think i think judgments question is what does what evidence is on the record about what the company knew not the individual there is it's hard to prove a negative your honor there is no there's nothing there's nothing because they didn't do anything they didn't do anything in order to be able to determine this and the reason why is because they felt like because these people hadn't been involved in this type of situation before hadn't been quote unquote caught before that they didn't have any notice of it well you don't have to have get caught in order to do that there's specific case law in there that i believe it's a mills versus continental packing case which says it doesn't matter whether or not the they knew of the risk or not or whether it previously resulted in an accident before in the real reason for that is because they should have done something more than just nothing all they have to do every once in a while is say hey look let's look at your logs let's see what you're doing they never did any of that stuff that they would have they would have determined these people were falsifying for years and that is a question of fact for the jury to determine whether or not they should have known that's not an issue at all if they looked at the logs logs would have been perfectly ok but anyway you don't get any place on that last i'm sorry unless you can show that there is the tribal issue and negligence that should have gone to the jury i'm sorry i didn't understand question ma'am seems to me that if they looked at the logs they would have found exactly what were in the logs right well they had to do is ask these people are your logs accurate maybe do an inquiry about the amount of time that they're driving and see if there's any and accuracies on it for years they did nothing about it if it did just that there  case i mean you run your case however you want but at least for me you're not getting any traction on this one you may as well go on to something else fair enough let's move on to the negative examples per se let's move on to the negligence per se thank you very much specifically again that they violated the the federal motor carrier safety administration regulations they've admitted to that and under the wood vs safeway case we believe that in order to preclude that there has to be no finding of a fact that a jury could possibly find denied it because you didn't go to the jury but can't find anything in the record so there are just two instances first is when we get emotional lemony on the particular issue that the motions in limine were denied and there was a minute order on that that's all we have on that so when it proceeded denied it said denied didn't you have found we took conference or something we had a submission of the of the jury instructions we then submitted probably four or five different jury instructions on this particular issue we submitted those the judge with argument and those and those are part of the record i can certainly find those for you by just a second but we do have this specific jury instructions that were asked and below the insurance instructions we have argument on there as well alternately the judge held that he didn't believe that there was any question of fact for the jury to his order on our motion for new trial on that particular issue and in that he specifically says he didn't think that the guy was tired because he testified he wasn't tired and therefore he didn't give the instruction that's not the standard that should be a question of fact for the jury in that particular issue so we do have it would lead to negligence a person complaining we did not plead negligence per se originally we did a motion to amend the complaint to include that it was not allowed however the evidence was allowed to be understand  correct we do believe that that it was perfectly on notice of the defense they knew about it we talked about it in at the time of trial we submitted the jury instructions at that particular time and there were enough notice the defense on that particular issue that was tried during the case of that under nevada law does it have to plead negligence per se i don't know that that's as clear as you think your honor on that issue i believe that you can always do a motion to amend your pleadings even after a trial by the way battle on a fifteen a motion to amend to conform to the evidence that was presented at trial you can always do that your honor we submitted the request for the negligence per se and it was never granted we never made the formalistic motion at that point time it wasn't letting us have the fifteen a i'm sorry he wasn't having us do the negligence per se it wasn't because we didn't have it in our pleadings that was not his reasoning it was rushed down just trying to get the state of the record i understand and following up on that on that point where in the record  exact site are you referring to the district judge for vented you from presenting evidence concerning negligence per se well what we have and i don't have the exact i might be able to find that your honor before in between my my rebuttal but i can tell you that there is nothing in i'm sorry go with your vital maybe get it yet there is nothing in the record where he issued a formal order saying negligence per se is not all i have is the motion for new trial that was denied and in there he gives his reasoning why at the time of trial he didn't do it if you're asking for where in the record during the trial that that was done it doesn't exist i mean there might be some discussion it's embedded in the if he did it you're saying he denied your does not give it to us at that point time our only option is to go to get a verdict and go ahead and ask for a new trial on the issue which we will brief the issue on in the motion for new trial it meant a motion for a new trial and he gave an order specifically outlining the reasons why and his reasons why were that he determine that this person was not tired and therefore there was no causation of the standards to negligence and that your honor should be left up to the jury to decide was there actually any additional evidence that you needed to put in isn't it just a question that you weren't allowed to argue it he did not what we couldn't argue it because the standards don't get put in until you actually given as a jury instruction i so we can actually argue it if it's our theory was gone and you didn't question of evidence i mean there is an additional you  allowed to ask them where you tired and absolutely to question its credibility i suppose absolutely and it was a question of fact of whether or not the jury determined whether or not he was tired out i believe my time is up it is but we'll give you a couple minutes rebuttal thank you your hon for sat i mean let me rephrase that the record actually supports the opposite that there was no factual support for this legal causation and therefore it never should have went to the jury or honors in section three ninety five point three include the a pellets and their injuries within the protected class and which what the regulation was designed to protect there is that argument but you still have to go down to the next element i believe where it fails that legal causation aspect here there was no evidence of fatigue well because he said so you know the accident it was uncontroverted as your honor pointed out they could have asked questions regarding seatbelt violation just because you write something down in a log book as doesn't mean that there's legal causation for injury alleged and i think that's that that's the crux of the argument here which  believe is the is the whole point that the trial court what should he have done that he didn't do i mean there was a violation of the statute the regulation and if i at least just placed in the record that says that is negligence per se so the issue is causation what should he have done well your honor here and when you say yes that would be yes what should he have known what should council have done to show the connection between the violation and enough evidence to go to the jury on this issue on whether there w causation he should have cross examined that witness more thoroughly in my opinion and i can speculate as to that that mean their theory is lacking in general over negligence per se there wasn't negligence per se instruction that was different and i know that it was more about lane of travel and about hazards in front of you and whether you're exercising ordinary care so there wasn't any there wasn't a lack of negligence per se entirely it's just the negligence for saying that they wanted the unreported how would he have revived it other than to question the fact that well you know that he at least didn't comply with the regulation indeed he tried to cover it up the fact that he didn't and  because he was the driver and he tried for whatever reason to show that he wasn't he said at least in the little bit that i have that he was in there depositions that he probably or here there if the evidence is not there to support the jury instruction then it's not abuse of discretion for the court to decide that and i think that's that's the crux of the argument if there is no legal causation there's no nexus to this violation to the accident then it's so it's the logbook violation is akin to a seatbelt violation in my article but the number of hours away from driving is more than that i mean there were two regulations correct but both of them were denied because the court found that there was no legal causation and i believe that's the underlying pin point there so because there's no evidence of  complex runners appellant counsel would like you to believe that this was a case full of rampant trial court errors that's not the case here it's not a big automobile negligence case where the trial court over six days of trial came back the verdict came back unanimous six person no liability for my client mr bruno now that's six days of witnesses six days of exhibits six days of argument now there was some there were some disposer issues obviously now if tribal council fails to follow the rules it's not improper to exclude those items and as your honour's pointed out there's nothing in the record it should have went to the jury or the companies had no knowledge and they had no they should the test is had knowledge or should have known right so there's nothing here as your honor pointed out that th e companies wouldn't have known just looking at these log books and further if they would have inquired they wouldn't have known either now going on to the next issue which counsel the failures of strategy and in particular and it wasn't noted by counsel but this is medical bills with drawl and your daughters didn't excuse me yawners didn't ask about that however this was a purposeful withdrawal of seven hundred thousand dollars in medical bills they pursued pain suffering instead now that was a purposeful asking something else  on absolutely everything except for the negligence per se what would you try to look like first of all you're a new trial would look like it would look like additional attorney's fees for one which is prejudiced to plan there was a unanimous verdict for zero liability i don't believe a new trial is as appropriate here and counsel stated even that on the pretrial motions he doesn't believe that there was any issue there there that could have been reverse jury verdict simply because there is a possibility of a different verdict that's not the standard for reversing and provide and providing a new trial here the standard of review the crux of the case your honor they can't now come back and say we want another trial when they're not entitled to it i think that's the that's the gist of it refresh me on the jury verdict form did they was there a specific finding on consolation there was not because it didn't get to that issue is or is that there's general verdict form the verdict form itself stated hold on one moment here i have a cite for that i believe it's three ninety two let me grab my notes here and m so six one one two is actually the verdict so i'm not it says do you find that plaintiffs have proved by preponderance of evidence each of the elements necessary to establish their claim of negligence against whom and it states no checkmarks by the jury now so that means it didn't even get to the question of whether damages or causation was there because there was no negligence found by the jury that's a very important aspect because it doesn't even get to the question of damages so if your hono honour's negligence per se instructions are found in the e r thirty nine one two just like and thirty nine ok thirty nine one two i believe is where it begins is also thirty nine forty three to however at that time and so you all you have is the motion motion for new trial where he specifically finds the reasons why he did not really there has to be i mean someplace somehow he has to have said this is do not this was a trial where the judge made  lot of decisions and basically came back and gave us his opinion about those decisions but he didn't give reasons why he didn't have it at some point he's going to say we're refusing your instruction that's that's what's puzzling to me and all these piles of excerpts you have here we don't have a  don't have a ruling on here if you want to know what reality happened was they probably had a off record meeting about jury instructions because they often do that in order to fetter out which ones are going to be the ones and then they get on the record and they put on the record what those those instructions were and i don't know that he didn't do that he just went ahead and gave them and said this is what he's doing and that anybody objected to time again objections were made at the time that the discussion was so that it was and there are some trial judges who say all right we're going to have an off the record discussion and then i get the instructions and i say do you have any additional instructions to give or do you object to any instruction i did not see when that was given the opportunity to do that on on the record your honor i didn't see that either  the verdict form in which the jury indicated that there was no negligence you were not talking about negligence per se but if you have a unanimous verdict of the jury that there was no negligence even if there had been a pleading of negligence per se wouldn't that have a had the same impact negligence per se is a completely separate theory of nine cents a different theory but in terms of so they could have found a you plain simple negligence and yours asking for something it's a higher step up first of all negative per se is a little easier because it actually deals with whether or not the four elements are negligence per se i don't need to go through that with you but the reality is it's easier number one number two the jury never got to the point of these are the regulations they weren't admitted because it would be admitted in the instructions that we proposed it never actually looked after the i'm just i'm sorry did you go out of your job for evidence of the regulations yes your honor we did in the proposed research i just i don't know i was talking about before the jury did you did you cross examine when you cross examine the truck drivers to juge asking about the regular we did but they were not and the jury was not entitled to answer the question of whether or not a violation of provisions caused this crash in terms of and i don't want to prolong this but just in terms of your theory of negligence per se they have to be that the plaintiffs have to be part of the protected class i don't see any case that says second one is it doesn't doesn't talk about sleep it talks about time off before driving right yes the history behind those regulations is based upon studies about the number of hours a people should be driving with their eyes focused on the road and nothing else and and the amount of time that they need to recoup in between those times and the question about why those regulations are there was not part of the trial for sure ok were you able to ask the driver thout that  regulation they were asked whether or not they were in violation of certain regulations about sleep and whether or not they were in violation but the specific provisions were not brought to the jury's attention or until and what was the answer the answer was he violated them he admitted that he violated them asked did the jury ever know what these regulations said are they at least the pertinent one not the specific language of the regulations no they knew that there was regulations out there we intend to do offer through the jury instructions and argue it at the time of argument and i t it the record doesn't actually include that examination of cross examination the record should have a examination of that i don't have a side to it as we speak and it's hard to there is several feet of actual record in this case and all i can say i don't know but if there is a page where it actually shows that i don't know what it is all i can say your honour's are there was probably what i believed to be fifteen issues that i was going to be arguing in front of your honor today and there was a lot of issues that we felt warranted that and i didn't have the specific type teachin to that particular element of it i apologize thank you counsel thank you the case has started to be submitted for a decision