may proceed please we're here because metro violated the law they violated a very important safety of all the federal employees liability as and because of their violation of the federal law entitled to compensation for the harm that the railroad caused due to its violation of the law the harm that metro caused to lenore rodriguez included weight loss and the jury was cracked in giving her an award for wage loss that included pain and suffering and the jury was correct in giving her award for pain and suffering and it included disability and the jury was wrong in not giving her award for disability and it's up to us here to try and correct that  the primary evidence that is really uncontested in this case regarding the level of disability that lenore rodriguez incurred because of because of metrics violation of federal law is taken from d based on his review of the records it before the accident she was able to work as a railroad conductor which was required you to be able to function at the heavy level of work isn't there a dispute about the heavy versus the light level the definition that you use this there's a dispute in measures job description because and that's your job description it says two things it says in order to be a conductor you have to operate a railroad switch and you have to be able to push at least one hundred pounds so under that the dictionary occupational pilots and every boat patient person in this case said that the requirement to push one hundred pounds is heavy work yet for some inexplicable reason in metrics all agreed that the requirement to push one hundred pounds is heavy work i didn't even say it was exert versus lifting well it's it's in this case what it is is pushing i know what it is in this case as far as what was reagan's testimony where he said  pressure and in order to operate a railroad switch you need to exert up to one hundred pounds to get to switch from one position to the other and even at her best day alone or rodriguez was never documented first visit with dr called lenore was already off work and dr cole said yes yes you have to staff work you can't go back to work as a conductor dr coles said that all of the thousands of patients he sees for rotator cuff only about ten percent off work for five months after the surgery disability returned to work exhibited at the very last visit with dr cause he said that she was limited to light duty no no lifting more than fifteen pounds and that was in two thousand and eight but didn't he say that you didn't have any impairment that would have kept her from returning to the job or he said i didn't know it but i don't think that her call had the requisite facts of the job description dr cole was never told that in order to go back to work as a conductor you have to exert one hundred pounds and i think that because said that his testimony that he's not he can't make an opinion and whether she can go back to work for the specific job as a conductor rather he said what i'm going to do at the last visit in two thousand and eight  my jury as to what is disability it means different things to different areas of life is it not yes and what's the definition that we have to guide this jury in the record as to what it is that bill is well one of the things is is that your gates testimony case is there's a outlier line of cases that say loss of of normal life is you can't give that in the field a case is that the proper instruction to give is the disability instruction and that's why  it and then if you look someplace in the record we may have discussed that during the jury instruction conference whether we should give the loss a normal life versus a disability that it may be an illinois case but there is a case that says that in a feel like cases you have to use disability you can't use loss in normal life in the seventh circuit pattern instructions they have a little they don't usually do itemize for x and they have just a number being on the eighth floor of the daily center and they usually take the jury instructions and put them in a separate spot so they make sure they're part of the record and we went and had the clerk mr guy can say i think i went with me and actually looked in the drawer to see if the jury instructions in this case railroad would rely upon bail because what happened is they load was the jury awarded him five hundred thousand dollars for wage loss zero for pain and suffering and zero for disability and metra appealed it and that's just position on back so the plaintiff can get more money and i was represented the plaintiff and they all and in our brief we said that's fine you can send this case back for a new trial keep the five hundred thousand dollars wage lost claim and send it intensive investigation whether a person who gets zero for something like pain and suffering or zero for something like this ability should get a new trial on that element of damages and you look at the cases so  was a lot like snow for him bail it was not disputed that he had significant wage loss but his evidence on pain and suffering his disability really wasn't there he said he never had any pain and suffering from this visual migraine he had and the disability was really minimal because he kept playing golf he jogged every day he took care of his kids and did everything he would normally do except he couldn't work and the jury said based upon those facts the specific facts that were really a lot like snow over there wasn't much evidence this ability and pain and suffering in a lot what's the standard of review and inconsistent verbs that we should be looking at i knew you were going to ask that we had it as the very beginning of our br really have to do with inconsistent verdicts or is it more of an in this way case well it's it's really that there that the jury ignored a proven element of damages i think the way they describe it in that case and dixon case is a very similar case to this else there was a limited period of disability from when he did the surgery until he in august until he released her back to work i'm sorry honey that the surgery and in january tell you really released her back to work in may and there is no question that for the first four or five weeks after that surgery she was in a sling with a question and she couldn't she had absolutely zero use of her she had to sleep in a recliner she couldn't take a shower she couldn't wash her hair and so you because the last functional capacity valuation show that she can only do median at best medium work when before the accident she could do heavy work but the way that the has been dixon case looked at the disability and what the appellate court said their case as far as giving them a new verdict was that although permanent disability may be in question there was undeniably a period of disability from the time of the accident until the doctor way this lady could do anything for that five or six months between the time he did the surgery and the time he released her back to work that he said that was a disability he didn't say the use the word disability but he said he went through all the things that she couldn't do she could have dancing like you know the way i describe it in closing argument usually is that pain and suffering is something that the defendant gives you that you don't want and this ability is something that you want and they take away from  and certain applications maybe didn't find her to be a credible witness i don't agree and i think what happened was metro would not let her go back to work it's understood in this case that she tried and tried and tried every time she saw a doctor call she said i want to said i am disabled she never said i'm not the same old she said i went to the doctor i went to the f c e and this is what the medical provider said and she took that information to metra and said based upon this information now we let me come back to work and every time she did that matter said no other then for that short period of time between may of zero seven in january of a way when she worked as a conductor with continuing visits to dr brian c record i could tell you what happened is that that she was only at the very best know what happened was is that metro never let her go back to work because she never passed the physical that would let her meet the job requirements as a conductor and that's clearly from august until may august when the accident happened when they when she was released all back to work and and even taken that as a subset from the surgery in january until may those are periods where it's understood in this case that there was disability and in closing argument like indexing that the defense alluded to that that she may have some element of this ability for that period of time when she had her arm in the sleigh and that's what they said their closing argument which is not exactly what they said in the other case but it's close enough as an acknowledgement that for that period of time until she was released to go back to work after the surgery and after the injury that there were many things she was not able to do that qualify his disability that the jury ignored and you know this is not a halo case or snow over case where there's the evidence is you know kind of nebulous about what the disability  remember that and you know just feeling like a piece of burnt toast because i thought i was wrong and i honestly thought that mr goodchild had not asked those questions of of dr gates and that i had misheard but i when i got the transcript i you know and as we said our prefix for a cough and cough to ask in that some i could ask questions go through my direct not touch on at all this f c that was in june of two thousand and nine cross examination  take part of the f c e results that are i thought were misleading and this leading to the jury and got my expert to admit that maybe she was rehabilitated and then and redirect which t i don't think any of the medical records went to the jury it was not good i don't think we set any medical records generally speaking or when we chinese i feel a case as i'm fairly confident that no medical records will back raven has a two thirteen a three x where she and i we agreed to producer for n f c e with raven hoping that it would let her get back to work and i made the mistake of when we got that in not immediately forward what actually i did forward it to dr gates but not telling them that i had forwarded the dr gates so i never even know that her gates had looked at it and they knew about it because it was their expert's report i never told them that i have a dr gates look at it that was a serious mistake on my part but my question is writers i mean it was it was very misleading to the jury for my acts were to say yes based on their functional capacity valuations to go back to work at metro when the conclusion was she will take her back if she was fit that she could go to norfolk southern or another railroad and get a job which she tried to do but and so if if shoot she has he's this conductor experience and there is right now are hiring conductors they're looking for conductors and hiring them that theoretically if she was not injured if she didn't have this disability in her shoulder that this is what my vocational economists said at the end she could go to another trailer to get the job but that the last she i'm trying i'm sorry doctor responds well it's pretty strong she was really backing up and talking on the cell phone at the same time yes you would have to question it he doesn't say i'm literally i changed my mind no but it's in the the othe conductor so she can go back to work as a conductor and dr gates says yes that's what it says and so what i want to do is come back and say with dr gates look at the last paragraph where it says you can't throw switch as you can't throw a switch you can't the conductor and that's what  over that you can give nothing you can get what i recommend you can get mike recommends you can give double what i recommend it is completely within your control now plentiful eyes almost entirely on the dixon versus i don't believe there was right there weren't any and did mention take or pay at the neck or took her back for a short period of time is their right she came back for a short period of time after her surgery and had to that she was unable the measure would not allow her to return to work after that because she was  could do the work she could exert one hundred pounds she could even though no witnesses including your own said well every time she went in took a functional capacity evaluation we had an evaluation that said she's not exerting full effort she's not giving a proper she's not performing the test properly that was the problem with kathleen raven hefley wave and during her functional capacity evaluation said this is the best that she can do when i test her but there are so many in consisten within the testing process within her responses to the tests within the test results themselves both you know she she noted that there's been so as you could possibly do between forty two and fifty three pounds was and i think was a raven's in theory but what was raven eventually concluded was that the functional capacity evaluation was invalid because based upon the plaintiff's actions and responses to the tests she felt that she could do much more were well i think there is at the station within the record in terms of what is it exactly required for the job the job requirement says thirty to one hundred pounds and i think the reason that's there you met us the question earlier about whether that's internally inconsistent but i don't believe it is because that every switch is going to be a little bit different and perhaps room according to our own expert and based upon the results of the functional capacity evaluation we don't know cheap present able to do that in the testing process but the function of the therapist  because i think that's a not all of the testimony of our expert what kathleen raven said was i think she can do more i don't believe this is a valid functional capacity evaluation because i don't believe i'm getting a valid effort from the pla lot to determine whether she's getting accurate information because kathleen raven had already determined she wasn't getting any functional capacity evaluation and getting raped observed the plaintiff driving out of the parking lot steering with her left hand while talking on the cell phone with her right which completely contradicts both the complaints of pain the level of pain the type of activity she could do i mean just said here that it was undisputed that lenore rodriguez tried and tried and tried to return to her job as a conductor it natural and i can i completely disagree and i think the evidence completely discounted that argument because i think what the evidence showed in this case when you look at all of the inconsistency  i think she did the minimum required when metro center to a doctor she went to a doctor when they sent her to a functional capacity evaluation she went and showed up at the functional capacity that way sure but she never intended reverends to do heavy work then line on the applications in the future is very healthy doesn't if she's a liar but does the more stronger inference is that she wanted to return to work isn't it i think it has she wanted to return to work at that that i was very careful in my closing argument because i was not conceding disability and in any way in this case i did concede that there was an element of lost wages she was off work for a nine month period of time and the number the jury gave this particular point made it up in his argument i don't i don't know of any case in illinois which says that in the f e l a case you cannot use loss of a normal life as opposed to disability but his counsel troll was to go with the disability element and it's not the fine and the i p i could have been used loss of a normal life and got down i p i instruction but he did so then that the jury is left to their own life experiences in terms of the finding disability or who defines disability for th definition of disability given to the jury in this case in the end with dr gates his definition was the inability to perform certain actions usually in regard to their work status and that and so  when you look at that this is the foundation the jury had was given in this case to decide this issue of how much to award for disability and dr gates whose definition equated disability with no work they had mr krueger some closing argument who said disability is what they take away from you and what they took away from her was her ability to work and when you look at dr cole the surgeon he said after rotator cuff surgery people can do pretty much whatever they want had a there was a hardly any evidence and really the only evidence came from plaintiff and i think that her credibility was a sort of questionable after after all of the various inconsistent statements that she gave both on job applications and to her doctors and everything else but she said during the time when she after the surgery she said it was a hard for me to go shopping but really what she wanted to say was i have to lift the bags with my my other arm because i can't lift them with my left arm and she said i can't i have a hard time washing my hair but she acknowledged that she can wash her hair with one hand when you take that at it but that was pretty much it in terms of what she could not do even the admitted united why didn't you ask for the loss of normal life as opposed to disability i'm sorry to hear that would net support here theory of the case to not ask the jury to decide how much she should be required and her loss of life loss of natural life when she didn't suffer things that used to be able to do before but it doesn't fit disability which is what we have here every the other thing that they she testified to or that they complained about fares into the other category the fact that her she was on medication that's pain and suffering the fact that she was gates was the initial disclosure came sometime before i want to say that the end of two thousand and eight and he was the post and after the time of his deposition and the time of trial there were else there after the raid with dr gates as testimony became apparent to me that there was a new exhibit that had been given to dr gates and that they were intending to ask him about and this contained i think seven additional records including halfling railroad in two thousand and eight there were so that there were several sidebars and that during when we were making these objections and that really that there was an attempt by mr brutus to continue to get in the updated chronology and hour after hour repeated objections i think mr bridges just said ok fine i'm just going to use the earth chronology and i'm not going to ask any questions about anything on the new chronology and he gets done the doctors yes or he i was very limited in what i did i questioned him directly out i played the function test evaluation here with me a question him directly out of the functional capacity evaluation three specific areas where i asked him does the functional we've been saying you have to lift ergs or one hundred pounds to have a job as a natural conductor so when you asked then as you are arguing now that the f c c report indicates that she can do the job as a conductor how is that saul when no report says she can lift one hundred ergs or one hundred pounds because the job description says thirty to one hundred poles in the functional capacity of valuation and with all of the inconsistency in the records indicate that she can do more than she is showing and it's and so when you asked a question so when he gives the answer  just read which has found a page you know thirteen fourteen of your brief in so you want out your suggestions well that was true even though ten to thirty pounds was a question and the answer is yes ten to thirty pounds when the course is one hundred thirteen she talk about the effect that there is no requirement for disclosure on the cross examine party and in the committee notes it says the exception to disclosure under rule two thirteen she is limited to the cross examining party it does not excuse the party calling the witness from their duty to supplement under rule two thirteen i and that's exactly what what does it say then they can redirect will because what if that was the way the rule was going to be applied then that would be encouraging a lot i believe a fifth of technical gamesmanship because if i had a report with my experts all i would do then was i would give my experts only the documents that are one hundred percent in support of his opinion because then i could say well you know i i'm not going to ask many questions about anything that might be able to use for cross examination by the principals you won't find it more a stalwart defender of two thirteen than me i just look at the reported decisions  he could not have allowed redirect at will i agree one hundred percent that it is judge flynn or his discretion this case and he did not abuse his discretion here but i think that this is the proper reading of rule two thirteen i think he was correct in his interpretation of rule two thirteen to allow this without allowing the party who was a proponent of the experts to withhold from the disclosure any documents that they think well you know we'd like to get a little bit from him on this but it opens him up to cross examination on that decision was i'm going to ask them and take that chance that he's go out and redirect because you're really wanted to get that f c through their expert in addition to your own yes i was going to take the chance i was planning on cross examining using that document but i evaluation indicate and it's right in the in the functional capacity evaluation it says right here this demonstrates a higher level of functioning than required to perform the lifting requirements of a job as a conductor dr gates and was which are we actually though that's what the report yet less and less but that was not my question of dr gates and this is cross examination of an expert opinions and they have an hour of obligation to supplement i prepared a cross examination not know thinking that apparently they weren't going to use these documents and so i had a decision to make but i did no idea how to explain or it was going to rule on weed to react i certainly do not believe the two thirteen and just because i asked a few pointed questions about a document allows dr gates to come in and give underscores opinions and have free reign to talk every single witness that testified the evidence was hotly contested the credibility of the witnesses was questioned by both sides and it was it was a hard fraud trial with every single witness and every single piece of evidence and the jury  effort and that was in two thousand and eight she could only do like judy and she worked hard physical therapy between this two thousand and eight two thousand and nine and she testified i believe she tried her best at two thousand and nine f c the difference was it was being done  redirect nobody was asking him for opinions and retract it was just really took him to go through the document and counsel pointed out part of the documents a dozen a document say this i don't want an opinion from them i just wanted him to say dr look