dispute negligence here but the district court made four separate legal errors each of which independently requires a rematch and st the court failed to assess comparative negligence under injective reasonable person standard it refused to apply the state's theory of the payments that shoots because it disagreed with the legislature's policy decision to mandate a six percent discount rate rd it pulled a record setting number of the year for non economic damages and later when forced to justify the number after the fact it committed errors of methodology and finally improperly concluded that the government is not entitled to a partial offset for payments from mr clinton's haemodialysis which come out of well your honor i don't think that's what's going on because the judge did not make any fact findings about the reasonable person would do in mr klann situation if this were jury trial there would be there were the jury instructions that instructed the jury be well you can talk about all of it if you want i mean i think it's a complicated enough issue we'd like and and like breaking you know so we'd like briefing on it we're thinking fourteen days no more than fifteen pages ok i'd be happy to go on there but then we just say one thing about that if you look at the perry decision that brief that's the supreme court of illinois decision from last year it's a very recent case it sets out the entire way illinois courts deal with retroactivity of statutory amendments and the basic rule in illinois applies to our case we no longer able to to satisfy the judgment by providing security in the amount of the equivalent lump sum value of the judgment we would have to do it based on a different  take medication well your honor you know that might be what the judge was thinking but you didn't say so there are no facts findings about what a reasonable person would do in the circumstances in fact if you think about where reasonable person is in the understand with the  didn't tell him enough so that he could go and you know that he could do go further on that but he could easily have asked questions a reasonable person with ask questions and a reasonable person who didn't know and didn't ask the questions would go home and ask somebody else  have made a choice to argue before us that this is really a question of the judge following not an objective but a subjective still record you did not choose to argue before us simply is evidence in the record contributory negligence and that i'm sorry injury i'm sorry there is dead that there is evidence in the record of contributory negligence and that the judge overlooked it disregarded it should have taken it into consideration and what i'm concerned about is whether you've forfeited or waived that argument because it seems to me there is evidence in this record of contributory negligence and wh r it's subjective evidence of it but have you really preserved an argument well i think we did your honor because you could we didn't have to introduce our own evidence of it we could take the evidence that was before the trial court whatever you ar so we're taking fact findings like that were saying that that shows contributory negligence so we can waive anything around there took the number made up a number without any justification whatsoever that's in this decision following trial when we moved to reconsider it pointing out that this court has held that the that the district court is required to do a comparison of similar similar why would that be denied but that no because the court the court wasn't just saying this case is out this case and it says as a as an absolute matter i will consider the judge that will consider no case in which there is a partial damages cap and the reason the judge gave is that those cases are not particularly helpful and the problem with that added to it is that this court has directed the district court to to follow similar cases they don't have to be identical fact that this record mention that case to make a comparison it's really important to focus on f t c a the geisha and the reason is that if there's a jury for it it's very hard to figure out what the jury was thinking it's possible perhaps that's very difficult whereas with an f case there's a judge who tries the case writes a long usually a long opinion explaining all the facts and the background and the rationale for the for the for the damage award in those cases or as a general matter the much more useful in doing comparative  analysis sure that she spent about thirty pages on it but she started with a number she just made up i mean to be fair she just made it up and it was the one she and reconsideration when she went through the analysis she said this is merely higher that argument when saying is that the court should say oh in though i really went overboard on this and i'm going to try to figure out whether a reasonable award would be and that's that's something she didn't do she just said up keep the same awar it's a record setting award i mean they keep the same award and you know even if the court decides that the standard is abuse of discretion i would say that's an abuse of discretion argument this is the no hope if the court disagrees that's an abuse of discretion in itself please the court counsel good morning my name is steve talc and i'm here to represent mr kevin kline and your honors if i can i'd like to jump in on a point that mr ha misstated what mr him up and far just told this court that the district court in this case he made up her damage award and that is nowhere near true the court issued an initial order memorandum an order in march of two thousand and seventeen that set forth her damage award findings in the same numbers that are at issue now before this court she didn't pull them out of thin air she in her opinion which was approximately fifty pages the initial opinion explained the reason for each awarded damages in her opinion as required by rule fifty two dollars a now that's before she did the actual comparison in were cited to the court or to in her order the fifty to a comparison to similar cases but to suggest a district court plucked numbers out there or just simply made them up with no rational basis or tiger the evidence is is untrue do you think it damages a ward like that should have a gun with a comparison or a gun with what the district judge said here which has set out the reasoning in this opinion and then to the comparison yes absolutely i believe the way the district court to it it's the required way the court under rule fifty two a is not supposed to ready determine the amount of damage that warranted in a given case based upon what's happened in other cases that she may consider similar the court has to make her ruling on an award of damages based on the facts in the case so you have to start with your own damage assessment and award then under rule fifty two way which is what jeff rosen sugo did you look to the other cases that you consider similar and that you consider suitable for comparison part of the case election here and it was discussed a little bit there in the st part of the argument case it actually is not a methodology it's a judgment call that the court makes the court has to determine whether to include and exclude a given case and part of the judgment and part of whether to include a case depends upon whether that case has the relevant data points the information that is going to be helpful to the court to perform the comparison under the chosen methodology so in this case we know the district court did not use these to damage kept cases from hawaii and she it's not an abuse of discretion she gave a logical was a bow reasonable explanation as to why she excluded those cases they were on the list of twenty to begin with she excluded them because she said specifically they are helpful or useful to the comparison that she chose and therefore she excluded them if the white cases would have entered in a ward of five million dollars for physical or pain and suffering but then said we're reducing that to a statutory cap of three hundred and seventy five thousand then potentially that case becomes useful or helpful that would give the court the information she needs to understand what the fact finder believe was required to make the point of whole it's similar to the point to far to the case dibiase o which is a th circuit case their a wards in other cases were able to be used even though they were reduced to comparative fault because the fact finder we do with the fact finder awarded originally for the full award before the compared to fall reduction se rule that she can't consider damaged at cases that despite what the government says that is not what she did if we look at the record she she is the one that actually added the compound a case to the list of twenty the parties didn't submit a white case the defense or the government submitted the st case but not the nd case companion and the court never said because it's damage kept i am not going to consider it as a matter of law she simply said because i don't have the data necessary that she finds important because she doesn't know what it would take to make a point of whole that is why she found these three specific cases not helpful it is not a rule that she  inserted or you know announced in file as the government would suggest counsel me ask you a question about that motion you made in the district court to have her add in the standard that she applied in considering a competitive negligence that a concession requires that if there's a difference in opinion as to what happened at the district court if there's a difference of opinion then you go to the district court to ask them to clarify or modify we believe as we reached that the record clearly show she used the reasonable person standard there's three parts of the record where she talks about you reference is a reasonable standard says mr clinton acted reasonably expected to be called about labs and she is describing what it takes for a reasonable person a generic individual or patient to be considered contributory negligent and therefore she's referencing the reasonable person standard when considering mr clinton's conduct but so we believe the record is clear that is not the relief we are asking for from the different court we basically took the position plaintiffs believe clearly the record show she is the right standard there is a difference in opinion as to what standard was employed between the government and the plaintiffs and just for that reason ask the court simply to nature of the condition and the attendant grant thank you enter no respectfully no that wouldn't constitute him being contributory negligent under illinois law because he still has to be shown to be the proximate cause of this whole and if he doesn't understand and if the reasonably reasonably object objective reasonable person wouldn't understand the link between ongoing hypertension and kidney damage then he can't be found to be the proximate cause of his his injury and therefore he would not be considered contributory negligence under illinois law even if he didn't show up for an appointment or take some of his medicines and that leads me to another point part of what the court needs to do the court does have to consider certainly what the reasonable person would know or should know about a condition and its risks and the need for treatment the court is part of the reasonable person standard also has to look at mr clinton's actual knowledge because if the court determines the reasonable person would not know what should not know but because of something in mr clinton specific background or education he does know that he could develop kidney damage because of ongoing ready hypertension that information certainly becomes relevant to an analysis for the court as to whether mr clinton was negligent ready so when the government suggested that she is under way focusing on subjective knowledge or active actual knowledge of mr clinton part of that discussion is necessary and it is part and parcel of the reasonable person standard analysis to cut you off now surely ok so if i have your question i think the government we've set this forth in our priest both in the trial court level as well as this level the government is truly overreaching on their if if you know we will certainly take positions that medicare part the benefits are not are they are collateral that benefits they are not our collateral payments they are not something that would entitle the government to an oscar so if you assume though that were wrong and assume they got the offset the only thing the government should get offset for is what it paid is what it paid not some corresponding percentage to the amount of the bills that medicare would have paid for or mayport pay for in the future so the government claims in the future they should get fifty four percent of the future haemodialysis damages as a credit against the judgment amount and so this court already has dealt with future benefits being speculative in the most of case and so there's other reasons why they'd never get a set off for future benefits that haven't been paid yet but i know i'm going to go to far afield judge if you answer the question the shorter answer is simply there is certainly a difference between what medicare would be reimbursed under the medicare reimbursement act versus what the government is claiming they should get an oscar for does that help answer well on the order of billions of dollars  ok thank you thank you so there's another point that i would i would like to address and i believe judge ruppel you you brought up the question whether or not on the st point on appeal that she used the  wrong standard are they really complaining that she abused her discretion in finding that mr clinton was not negligent and have they maybe waive that argument because they have implied that complaint on this point of appeal and my answer is that they should according she abused her discretion the government's point on appeal directly from their brief for point one is that the district court err in failing to apply the objective reasonable person standard for comparative negligence under illinois law they didn't say also or alternatively that she she made the wrong discretionary call or abused her discretion in finding mr clinton wasn't negligent and i will say she didn't abuse her discretion and as justice wrote our judge or has picked up on the court is focusing on proximate cause mr clinton unless the reasonable person she knew or should have known about the risk of harm from his actions or mr clinton actually because he had specific knowledge about the risk of harm of his actions if you don't have that you can't have contributory negligence because you can't have proximate cause and therefore the government the government has clearly waived any claim that she abuse retroactive or just going forward we're happy to do that we certainly have an opinion as well i'm not prepared to offer all of the support for opinion at this point but we believe it's procedural and should be therefore repealed repl actively so it wouldn't apply anyway but i want to focus our bring to the court's attention which i'm sure it is on your attention the point on appeal here is very very limited they didn't sit there point out appeal is only that the court didn't have authority under the expressed statutory language of seventeen o five d to do as she did to decline to apply the provision they did not challenge in their briefing on their or their point of appeal whether or not the court's determination that applying the provisions would not serve i guess part of my point would be if the court agrees the clear in plain language of the statute gives the court authority to do as she did whether the statute is retroactively affective on appeal because moot if there had interpretation is right position certainly as it's clear therefore you don't go to extremes or katie rees that statute for what it says which we believe the court did and it doesn't make a lot of sense to say that the election is mandatory and then to say unless the court decides in any case can essentially nullify the mandatory requirement by saying it doesn't serve the purposes of the statute in this case it does make more sense to think of it as if the election is made in a case as to one claim and there are others where it wouldn't qualify that the court then could make a decision it doesn't make a lot of sense to think about it i don't think the way that you're proposing to will fair enough but if i could just respond think of think of the what their interpretation means and the the results that it has under these the statute and stop if the government's right and this provision only applies to multi claim actions that would mean this provision does not apply to mr clinton's case so there is no mandate no requirement to even apply these provisions because seventeen o five b which is the section so you must apply if elected would not apply to mr clinton's case that to me is an absurd reading no offense i certainly don't mean any offense to someone who that is absurd to think that the other thing it means is that if their interpretation is right the illinois legislature then is only concerned with meeting the purposes of these provisions in multi client cases but not in single plain cases such as mr clinton's case that's wait to us the practical fact of if all actions only means multi column actions would be absurd under the exact language of the statute that we're looking at it would also render the  actions meaningless or superfluous which is not allowed that it's a cardinal violation of how you interpret in construct statutes that's why i said the point unclear reading of this and if we didn't have a comment and the only thing we have is comment to the model this is not a comment to the illinois statutes themselves this is a comment to a different act which has absolutely some different language so to rely on something that it doesn't even necessarily apply to the specific provisions to try and create an ambiguity that we respectfully believe doesn't exist is improper under illinois law i i don't think that the strength of the interpretation turns on the common ok we basically have to determine whether these are collateral payments under illinois law and illinois law per layered as a as described in layered is simple it says you look to the nature and purpose of the payment and the fund no source to determine if it's cool at this court in most off the dock to the same language when it was considering the wisconsin law concerning quadrille source same rationale you look to the purpose of the payment not the source of the payment to determine if it's collateral so that and what that means then is that if the payments are part b payments are made to indemnify the government from its tort liability to mr clinton then they get an offset for however if part b payments are made for some reason independent of the government support liability then they do not get an offset they're considered collateral and here is the court has specifically found in her order at appendix page ninety seven the court said mr parties knew within pennies of how much the railroad had contributed to the fund the revenue paid two thirds of the fact that these were disability pension benefits so when laird if that the court knew what percentage was traceable pay and other circuits that have dealt with this exact issue whether medicare benefits are considered collateral source benefits to the government in an f t c a case such as those have all said they are collateral their collateral where the claimant has contributed to the funding and that is one hundred percent what we have here medicare part b payments are were made to mr clinton regardless of this lawsuit if he never had this wasin he was getting those payments only because he paid premiums and they akin to insurance the government in their reply brief suggests these medicare part b payments are pure gratuities that is one hundred percent wrong if mr clinton didn't pay for these benefits he would have not gotten them he did not get cases recognize the possibility that the government can show the portion of the benefits program that is funded by general tax revenue it has never been able to do that this is the st case ever in which the government has tried to prove the portion of the the up and the fits the come from general tax revenues and we had the net communist provide evidence below the court excluded that but it's the fifty four percent basically three close to three quarters of these benefits come from general tax revenues and the reason is simple congress created the special effects are deeper than end stage renal disease program as part of medicare you don't have to be eligible for medicare to participate in congress wanted to fund benefits for people with a specific disease and it gave figure seventy three percent of the of the of the money that goes to this program comes from the general tax revenues so it's heavily funded by the government from general tax revenues the same way the judge is going to pay that general tax revenues and this is to we're not claiming the other forty six percent we recognize the other forty percent forty six percent this is collateral source it's not going to be offset but the fifty four percent should be offset or the minimum the court on remand should hold a hearing and let the plaintiff come in and produce evidence and we're willing to have a dispute over the evidence of what the percentages are but the general principle is that there should be a partial offset you don't necessarily look to state law cases on this because decided after the parties it's in the list of comparable cases so that's why we didn't come from us we we tried the case the government tried the case and in hawaii my office handled the appeal and the preliminary aspects of