and i would like to make it clear from the very start this is not a typical two thirteen case where we scour the record to see if the expert gave the opinion his or her deposition trent this is a fair involving surprise involving prejudice not in gamesmanship i take it you're all familiar so i'm not going to go into the fact that the placenta showed two problems infection and these things called other changes different parts of the sense of it was dying with the defection that's undisputed so i'd like to go through why this is surprise why this is precious why this is gamesmanship all the defendants fell through to thirteen disclosures the hospital you know so later settled out of the case named with no causation i am well aware that you don't have to have every opinion in the disclosure you could have in your deposition is a factor among about ten of them that you can consider as to whether we were surprised franciosa separate things occurred at that position which are sick and it started out nice routine what your background what did you read and we get to the first question question and the lawyer submitting in stocks and says he's not here he's not being offered to give causation opinions and then the second thing happened the doctor agreed on the record and then the third thing happened which is really significant we  every time they have happened both the lawyer presenting him and the doctor would say he's not here to give court and quote medical opinions i've got here to give quote unquote medical opinions and what happened we've moved  skipped over another factor that occurred prior to this franciosa path allergens he he doesn't treat five patients he's not in the a mentality just he's not a maternal fetal medicine doctor it's not even logical for us to be thinking that he's going to give an opinion that there was fetal brain damage here's what else occurred in that deposition we found out that he was sent the medical charts but didn't meet them not too surprising because all these supposed to be talking about is the we know he's going to give his opinion that infection but he doesn't know any of the facts as as to whether there was any clinical infection at trial he ends up giving this opinion that well of course cytokines can cause this because it's a premature baby with  so we have a hearing in front of a judge the cop who says well you better what do your him first mr defense counsel before you start this evidence that position because yes you're able to tease out learn we learned that he had that he does still this call the record still hasn't read the facts and he says it's tied in their brief yes this is a change in my earlier opinion so why did  he let it in because if you go through this hundred forty nine page transcript you can tease out a couple of sentences that sound like a causation opinion and they're citing the defendant's brief they're the only thing in there that's six this is a really interesting yes i'm sure it's interesting for you to everything else is pretty routine it's a it's a first impression but what we have we've got some help from these reports we've got common sense we've got weather was constitutional or matt was out of his way to say obviously it is a purse even the majority it's just a procedural requirement which by definition does not involve questions concerning substantive merits of they could be very well with me components and they took the two s six to two again multiple pages going up five with masking tape covering the stuff that the court didn't want to see which all of you  he braff to this today six two to six years before this trial i wasn't the lawyer i didn't hire him we don't have the cover letters that were set when we know you love the strip but as you know from our other issues the strip is hard  well i can tell by your questions that this is not a strong point for me so i'd rather use my point of my time to talk about your steps which i think it's extremely important point deposition of dr smith we find out that even though he signed that progress note it was really in the handwriting of the president i mean it it's dangerous to take plymouth narry opinions and use them for impeachment of an opinion later on when the court said the only reason you have this opinion is a political one just to get it through that it's a pleading requirement is the way to describe  you their steps this was very powerful testimony as you know they were just talking about it one of the issues was does the scriptural feel intolerance to labor here we have a nurse not just a nurse the head nurse in charge of all labor and delivery yes they're correct she wasn't assigned a patient she didn't read the script at the time and she's the one that came in and signed the occurrence report we take her between a nurse and a doctor there is no dispute even by the trial court that she was capable of giving this opinion let me give you an example of a case where there's a fever in a child and they're saying that the doctor should have given aspirin to bring down the fever are you going to be able to bring that person to say yes i read the thermometer of the temperature was one hundred two point one yes i put my hand on the head and that baby was perspiring yes this baby had a fever of course you're going to be able to say that and this nurse's entitle to say yes i saw this on this trip yes this is feeling towards to the labor she is not entitle to say the doctor should have given aspirin the doctor should have done a c section and we know she wasn't going to do proof there it was a continuous offer proof the evidence was in evidence deposition the judge knew exactly what the what the nurse was going to say the judge conceded that she was competent to give that opinion he just said it was in tape versus osman which is to ask at the outset can the jury's verdict be explained by a finding of no negligence and i think the answer on this record is yes and if there is the case given the  general verdict given the absence of any special interact a jury's there is no need for the court to dwell on the causation related issues there are a number of decisions from this court tape davis long hard fought trial how much of the effort of the attorneys in the experts was devoted to addressing the issues of negligence there is no question about that on this record the two we the plaintiff contended erroneous lee i couldn't have out affected the outcome of the case because it only pertained to one of four issues the plaintiff was raising the davis case in another case where this court said that a threshold factual issue that could be resolved had to leave the court to affirm regardless of unrelated causation evidence again not in the struction issue i'd also also just briefly emphasize the deferential standard of review here it applies to all of the issues that the plaintiff grades i would submit that the court could begin even by looking at the hearing on the polls try motion and work backwards to see what a conscientious hardworking trial judge was looking at every issue in this case i think i think out of plea the court would be hard pressed to find a trial judge who works harder to understand the  medical negligence issues to understand the medical issues and all of the tough to moni to listen and read hear arguments and there was clearly aware of the jury's reaction this court may find the ruling that it disagrees with but i don't think a ruling they could meet the standard that no reasonable judge would have reached the decisions that our trial judge arranged i'm rule two thirteen it was dr franciosa discovery deposition perfect  corporation i think that the that what he has to be done your honor is to look at the record and look at the opinions that he that the witness kay and it was clear that he was testifying to causation opinions and at the outset of the deposition and this was taken by plaintiffs counsel it was an understanding was raised that there all opinions that were given would be given to a reasonable degree of medical certain best proof of that is dr kopans testimony and you know to put this in perspective the this deposition went ahead and i told her of two thousand and three before the first trial long before the first trial also have to look at the substance in substance dr cotton refuted every single opinion that the plaintiffs take issue with today they're in and i regret all the  evidence deposition that wasn't covered in his discovery deposition so again perfect no error i don't think so and certainly not traditionally and i think you know when when you consider the attention that the trial judge gave to the issue it's not a situation as and as often is the case where an expert blurts out and undisclosed opinion and try and so the jury hears the undisclosed opinion before there can be an objection before the judge gets a chance rule and the trial judge here wanted to very carefully look at this issue after the plaintiffs raised it motions in limine a so if the evidence deposition was taken rather than just try to address the issue quickly or the the trial judge conducted a special saturday session at our offices he devoted quite a bit of time to going through the deposition line by line discovery deposition compared to evidence deposition and his conclusion was there wasn't anything that was in the evidence deposition that hadn't been covered in the discovery deposition so on the up basis i would have to submit that the trial judge clearly no objection now when it was moved into evidence now when all those exhibits removed and the evidence for the plaintiff to argue to this court that a blow up of a slatted that is a placental sla somehow put it scared the jury into a not guilty verdict i think doesn't make sense on this record the trial judge did not think it made sense when he heard all of these arguments at the post trial motion here on earth unless the court he has the specific question and the literature issues i see i see that my time is up and i want to give mr horsman an opportunity to address the other issues i will thank the court for its time and ask for a firm i'm sure the first probably seen these before with the feel monitor set up as electrodes on the baby and or the mother and that's where they monitor the heart rate of the child the machine spews off a stri six two two report and he was looking at those same strips and tried and he never said well i've changed my reading of these because now i have a lot of additional information  looking at the same exact stuff the trial and gives a different opinion and at travis was confronted with this new consistency and he never never tries to explain nothing he didn't he didn't offer any opinion as to whether they did or did not ask you know brain damage because he could not which dovetails into our medical literature because then they get of understanding started pitching him with medical literature and cytokines and he's like that that means we're going to have specially derogatory on every single medical malpractise case because there's always going to be causation and violation the standard of care and and the literature is right with the with the article saying don't use these these create more than anything else point number two how do you judge if that's interpretation how do you justify all of the two thirteen cases that this burst district has reversed just because an extra pinion was put in by the look i think there's policy reasons why you should do it by your questions maybe you don't but you don't even have to reach them you only have to reach that this is an opinion they want to have it both ways they want to keep him this testimony out and nicholson's testimony out because when they're reading the script it's an opinion but when blake reads the strip they want to be a fact well which is these are plymouth area opinions it says at the top of this closure these are the opinions he's going to have a trial  case that's all we're asking that was overwhelming terrible gamesmanship here