t's not that they didn't recognize there's no no in any record regarding a recommendation regarding anything and what would happen was councils were able to take the absence of any noun and anywhere in any deposition in any opinions that were ever disclosed in this case and you had the st day of trial there is this theory that was introduced for the very st time that there was going to be unanimous opinions again not have it so you're asked we asked for three requests the st request was to instruct the jury to disregard all these witnesses who were not called the sec the objection told the attorney to go ahead and then gave an instruction which was ladies and gentlemen this case is not about any party it's about the defendants in this case he did the court didn't strike the statement write anything in that record they agree with my do not with my position it's going to require parties to take unnecessary that position passed and i would i would use another situation of interest which was around a little bit illustrator of the point if the plaintiffs counsel in this case had then turned around and said well there's only two doctors in this case that world discharge orders there were twelve to do it so now all of a sudden those twelve doctors agree with our experts said the discharge was improper i really going to create a situation where attorneys are going to be able to look at the absence of any evidence  on in terms of and what the cases say and to what it applies i think i judge simon shall raise a very valid question at the hearing on the post trial motion and there was a directive plaintiff's counsel you know what are you saying proceeded before there was ever an objection and before the motion was presented and there you know it's important to note that these very experienced trial lawyers after hearing opening statement not objecting after hearing the direct examination of dr shapiro not objecting what was what was the reaction in and redirect and then the rather than objecting and frankly raising what i think i redirect without with any of their experts about what's the appropriate interplay between attending physicians and consulting physicians who's who's in charge of deciding counsel and or to plaintiffs and said we're not going to i grade your motion to the extent that there's any insinuation about me depositions that don't exist i'm not granting your motion but then as to the c examination but defendant's counsel i don't expect to hear you have a listen from your witnesses anything that wasn't disclosed so it is exactly the proper application of rule two of their motion which was don't let them argue this what the court didn't say anything about argument when it will on the motion in you know in the early stage of playing this case so now weeks later when everyone is closing i counsel truly wanted to raise an objection rather than continue with the strategy that counsel had employed throughout the trial it would have raised the objection or we raise the motion a bit of time or at least objection  and closing arguments of course it didn't because plaintiffs counsel white defense counsel throughout the cross examination of the defense witnesses did the same thing that they're complaining about now and in closing argument that witness was not coming in to testify at trial so here we have these good trial lawyers who know exactly what they're doing you know exactly what they can do i cross examination who are there when it comes time for closing argument they get up they talk about the medical facts they talk about the testimony and they draw inferences they are reasonably related and figure based on the evidence and that's what he happened in this case your  and and go directly to what i think is absolutely fatal to latest appeal which is good the two issue more general vertical and just shows all center sharp in his arm and the argument course from motion in the memorandum opinion that you broke recognize that the plaintiff simply would not be in a position to prove any kind of impact of the discussion about what was that the all of the doctors complied with the standard of care this is a case that was spit the plaintiffs raised based upon the electrical functioning of the heart and it was clear even from out of the mouth everything explain that even if let's not see the plaintiff was right with their poor theory which was that there should have been a cardiologist called in by one of the defendants  july th this is a classic to be sure situation and for they have reason in addition to reviewing all of the points that plaintiff has a padre's on the substance and also noting the extensive waiver count five for the five weeks of trial one comment when there was an objection the judge very promptly said listen to it this is not about anybody this is this is a comment that was made without emotion without has any questions for me and i i believe this is truly puts an exclamation point on the waiver issue and the act is that counsel would made a motion for mistrial based on the golden rule argument  raised about another problem that a plaintiff he had with mr burns are going to my partner and they had to she wasn't the appellate court so not before the court today but the interesting point is that counsel complain at the motion for mistrial so i think that tells us that this is this is clear with waiver and this is what this is the strategy they act on the plaintiffs i decided to proceed with and i