this matter stems from a medical malpractise case that was result of a seven day trial it involves a case in against the not only the hospital which is the appellate in this case been originally was in front of our involved physicians physician assistants and then the nursing staff this case has multiple issues before the corn  believe it was a pretrial coming up and we notified the court the following day that we learned that they settled so we were notified by counsel that they settled and then we filed it very designation at that point in time opportunity to try again i i did your honor in fact it was our position we didn't need leave of court and there is no rule that says we do not leave of court for that in fact the read in case which is the specifically what we were seeking asked of these defendants we identified the fact that with their expert reports from the plaintiffs showed exactly what the claims would be against these parties the entire case had been focused on each one of these physicians up to the settling moment it was the case was very little evidence was being presented as to our client and the nurses so at that point in june have to tell the court that what percentage you claim they were responsible for their negligence contributed to the ultimate injury your honor we did not have to but i we we basically told the court we were seeking  view they were parties and when we actually designated they were still parties in the case the case that that's how quickly we moved to tell the parties we're going to seek apportionment against these defendants we were told they'd settled they had been dismissed from the case so when we did our original designation they were they were actually parties still in the case and even when we did our nd designation they were still parties in the case and the doc reflects that it's also important to note that the trial court ex essential acknowledged that our designation earth our nd one complied with the court's interpretation of reading in the statute even though we feel there's plenty of suggests we overdid it on when we designated in a den of five the claims we would have but it's important to note that these defendants had been in the case from day one expert testimony had been taken regarding these defendants and the parties were well aware that the focus of this case was soley on those physicians from day one so if one would read the statute to say that the statute appeals i think what their point to it once they became known parties i know we didn't believe we had to actually do the formal designation we believe we had a right to apportionment from the beginning has the colorado supreme court that the statute that same interpretation as the colorado court of appeals did in i think it's anthony i believe it has or are and that is once you settle if you party and you settle you magically become a non party because that's really what anthony sowell's well i think that's correct your honor but i think the key this case is we didn't believe that even applied we just did it out of a of caution there is only what i'm trying to get to the bottom of does it apply no and what do we rely on to say it doesn't apply we believe we it doesn't apply because the apportionment because colorado's a state and we had a right for apportionment from day one in the case once they were a party so you're argument would not rely on and interpretation of the designation statute no because the designation statute in our view was they were there that's for non parties and in this case while we did it over abundance of caution and the court was inviting us to do it to some extent we did it but we from day one asked the court for a right to apportion the liability against these defendants which the court denied and you actually you did say that the statute didn't apply but that came pretty late in the day  not yes your arm when was that when the what the statute applied to this when we decided we we only did it because we felt the court was requiring us to write it right i didn't think the statute ever applied we thought we should get a porsche you raise the argument that it didn't apply at what point we we raised at the beginning of when we designated ok that you said thank you with respect his error is not allowing us to apportion fault against parties not what he had basis for not doing so he that's a good point your honor his basis was he didn't think it was fair fair  that's what he said in the other the fair comment came in when he saying i'm not going to let you a man and your designation and he also said that at that time he didn't think it was fair even though we complied with what he thought should have been in the designation he just said it's not fair to allow portioning that's what he said at the not because of the late date but just on general equitable principles correct your honor they have never argued they were prejudiced in this case at any point in time because of when we decided to designate there's no arguments in their brief there was no arguments during the post trial or pretrial motions if i could briefly  talk about the one of the other main issues in this case and that is the causation issue this case is a medical malpractise case that requires expert opinions at the time of the introduction of evidence and damages if the the amount of your ad damnum amount based upon the previous recovery excuse me not you but the but the plate is no your honor so your argument i suppose would be that there's a windfall because they're not recovering one hundred percent damages but one hundred percent and that goes to two of our arguments regarding the benefits that the plaintiff receives from new zealand as well as the argument that we should have received a set off in this case understood from the actual settlement with respect to if i've answered your question or are like you have with respect to the causation argument i believe in this case the causation was a key element that faint plaintiff failed to present a trial and since some my time is slow i'm going to reserve the remaining time for rebuttal if that's ok thank you there well your honor i think that to the extent that's an equitable and you'll have other mr sachs can address that but in terms of fairness to me it is long been to the extent and i'm not conceding that there was a nearly three million dollars of non economic damages were eliminated pursuant pursuant to colorado law but with respect to the issues i want to address the mr fully raised from a medical and factual context and then mister sacks will address legally the most critical thing to understand in this case is the asian window of time and that was a very brief window of time when the compartment syndrome this secondary process became what is called for when it meaning it is now causing a reversible injury and the only expert witness who provided kai's asian testament on when that window of time was that intervention could have occurred and saved mr blatchley as leg was dr petter woods a world renowned expert in compartment but not an expert in nursing right we had nursing expert but he was not an expert in nursing was he he was not an expert in nursing right correct we had nursing experts who testified as the standard of care of the  so it wasn't just this as as they say unfairness issue or or what it was your designation is deficient because we specifically said they need to tell us what the acts of negligence are and what the kazi sion is the only expert testimony on that was dr petter woods they did not in two or sexpert witnesses on those issues  them to say that this case was always focused on the physicians is a gross misstatement we deposed multiple nurses we had nursing expert witnesses we had a cuz asian window of time that specifically focused on the nurses the issues with regard to dr james and those who follow on the th are an exacerbation of the injury because once that critical window of time without intervention occurred the the opportunity to prevent all injury was gone but we have a lot of argument in the briefing about exactly what nurses can do they can diagnose and they can't treat and we have also the word intervention as you've just used repeatedly what was what were the nurses to do ok well one the nurses can treat there's numerous things they can do they can take off the bandages they can relieve pressure from the leg  terms of intervention and intervention doesn't just mean medical they intervene by communicating what the power point presentations that were used to train the nurses spell it out specifically the nurses are to call the physician and say they're actually authorized to say i want you to come check him for compartment syndrome i recommend you check the pressures in his leg and what intervention did that nurse person well she actually did very conflicting things so what's important to note is when he comes out of the surgery for the repair angela sanders who is the pack units that the post anesthesia care nurse reports to mr plant he can move at the ankle that's clearly in the record he can move at the ankle when anett in the income's on the next morning he can no longer move at the ankle that was lost in that window from irreversible askin me and dayton followed plant right da follow and it in dayton followed point their own expert witness concedes that there was a major change in function the las of the motor occurred in the early morning hours was that your assertion that that claimed negligence on the part of the nurse was one hundred percent responsible for the damages it was a one hundred percent responsible for the ability to prevent damage well thank you for restating my question  ok mr sacks could be getting a lot of questions when i should save him some time if there are other questions on the facts or the or the medicine but your honor to finish up on managing gait and she gave very conflicting information she had a conversation with dr janes in the record all of which is charted hours later which is one of the other things so we don't really know what contemporaneously happened because they charted so so one after the fact but she then got a phone call from wally bryant molly bryant being the p a who told mr plant follow him closely for compartment syndrome which mr plant did not do she gave different information to wally bryan and then she gave to dr james and dr janes this was his st involvement with the patient and didn't have all the history that molly brian hand so there were problems with and again gayton that morning as well although she did recognize the the major change in motor function that mr plant next when you speak to designation or do we wait for your co counsel mr sachs will address specifically the designation other than i mean the deficiencies in the designation as it related to specific wings as well as a causation time period for example if you're going to get sick nate dr james you have to give us cause a that's your obligation when you designate him they did not do that to mr sacks thank you with your question judgments or a yes let me let me give you some predicate for my question yes apportionment the principles of apportionment are intended to prevent double recovery if the if there are several tort features the law it is going to look for ready to make a plaintive whole whole be one hundred percent of and to prevent the settle but with one party and then recover the one hundred percent of monetary damages from a remaining tortfeasor was considered not to be appropriate and therefore the color has developed to provide for ready a portion that surprisingly apparently the remaining parties can be responsible even if they're only ten percent at fault holds that the effect of a settlement with settling defendants is a set off that is an affirmative defense that has to be affirmatively pled it's an it's a set off the show a  case holds that in fact in that case i just want to point out quickly in passing that judge webb raised the question he said you know normally the rules civil procedure of the case that best be raises an affirmative defense and then amended pleading or else waived and you know you cited that offset is an affirmative defense said remains to be decided whether or not the nonparty at fault statute that provides for designation is the equivalent and which one prevails between the statute and the rule and of course we're in federal court and the federal courts have a substantially similar role rule eight that normally requires affirmative defenses to be raised of the nonparty at fault statute that provide for a pleading called the designation of non parties of fall ok so the reading case addresses how that is accomplished and it points out that if if you're going to the defendants the scene in the summit did not comply with the requirements procedurally of the statute and he was correct in so hold it did the statute even apply to them well he found that it did and that's because of a single color a court of appeals decision that this court can take into account in determining our political colorado law that's the montoya case that side of it and in montoya there was a belated attempt in compliance with the liability statute the procedural aspects of that statute so so they become non parties once they settle they become non parties according to the colorado court of appeals yes that well even though he claims he didn't need it oh well st of all we disagree with st anthony's premise that it wasn't required our position is that it's an affirmative defense it has to be the summit's initial designation did not comply and the nd was simply a do over and he wasn't obliged to allow i think my time is up and i apologise that you know the questions let me address the causation evidence in this case first of all there is absolutely no expert opinion in this case that complies with the kaiser decision that being that dr petit what's came in and said but for but for the actions by nurse plant did that cause the injury to the plaintiff it's also important to note that dr james was the physician that came in that morning three hours later and assessed the patient and concluded that the patient did not have compartments under this case turn soley on one issue of cause and that is there is no medical evidence of cause there is no question at trial which is typically dr peter woods do you have an opinion to reasonable agree a medical probability or certainty that the actions or inactions of nurse plant caused the plaintiff's injury there is no question there is no question at trial there is no report that was submitted on the rule twenty six dollars disclosures nothing and then the patient doesn't even receive a final diagnosis for three more days and the reason that is is because dr petit which could not provide expert testimony or opinions that what nurse plant did or didn't do it four o'clock in the morning because this injury well that testimony was it of dr pettit was where he ranks read reference to the team what the team did or didn't do he does specifically say what the team cost he just says team and again that's not proper expert testimony with you have an inference which is what the court suggested an inference of evidence you still have are you still inference of causation you still must have evidence specific evidence and that's not here and there's no evidence in this case that dr james testified that had he been called at four am he would have come to the hospital and done a check at four thirty in the morning there's no evidence of that dr james didn't testify at trial dr petit which didn't provide any pinions at trial regarding that and that's why we believe judgment should have been entered in our favor because truly your honour's a medical need this this is not a case this was not a simple medical condition this is compartments and it's a very complicated orthopedic injury the procedure complicated and there was testimony about how complicated well it's you know can you move your toes can you move your ankle i mean we've all been through situations where we have that kind of diagnosis if you well and if you have nurses reporting up the chain to say doctors or p s they can't paint can't move the toes can't move the ankle something would happen would it not correct and there was there was testimony that the nurses reported that to dr james that's why they pulled him off the floor to say look at this patient we think there's been a change respectfully your honor though there are other diagnoses that need to take place to determine cause compartments and not just whether someone can move their toes or ankle is there any assertion at trial that the nurses soli were one hundred percent responsible d d for the negligence no your honor there was no evidence of that and at no point in time was there any evidence at trial that the nurses were one hundred percent at fault for causing this this man's an injury and such i know you have a lot of issues here but one of your issues i think his instructions and the instructions pertain to one hundred percent liability for the nurses yes the court modified the green meyer instruction he he the your honor the a portion that was taken out and what was kept in is they must award full damages to the plaintiff based on the evidence that they presented at trial as to the nurses but as i say that we should we've an object we objected to that instruction because we felt we should get apportionment court said