thousand and fourteen about ten days later she awoke with a sudden onset of severe swelling and pain which is and vacation of a possible infection three days later she showed up suggestion of her physical therapist to dr solomon on july eighteenth because physical therapist was unable to perform physical therapy due to the level of swelling and pain at that time dr s drew fluid off of leslie crossing the need he looked at the fluid determine from a visual inspection that it didn't appear to be infected and discard this case is about that  aspiration the who the what the when the where what should have been done what that fluid was the case that was the issue that was submitted as the negligence to the jury after that july eighteenth aspiration she went on at dr  instructions for months of aggressive physical therapy she continued to decline and then october thirteenth she ended up getting a second opinion as a result of that second opinion more fluid was drawn a chronic meaning more than six week long infection was was diagnosed as a result of that second aspiration and we're talking this was a rampant infection at that time because of that delay the only option then was to physically remove her name and this is a forty something year old woman had a total knee replacement in fact what had to be done was a two stage total knee where they removed the name insert an antibiotic infused spacer for a period of months put the patient on i v antibiotics until the end of the severe infection as is cured and then do a total knee replacement had the the aspirant been tested and the infection diagnosed and everyone agrees that the infection was seeded you'll see on the transcript to keep saying ted but they the medical term is seated in the knee on the june twenty sixth surgery had it been done at that point the medical option would have been to open the knee wash it out thus removing it and prevent the need for a total knee replacement in early forties to primary two issues in this case one is the closing argument by defense counsel defense counsel stated talking about burden of proof if you are just sitting there and you are not sure then the law requires that you find in favor of defendants i object the court did not did nothing in response to that objection there was no corrective action taken what the court says in his own ruling on my motion for a new trial was not that he instructed the jury to follow the instructions but that he instructed defense counsel to follow instructions that's not a corrective action in fact then the defense counsel well hold on to the did judge instructed this jury that what the lawyers had to say was not the law of the case that it was the court's job to instruct on the law there was a discussion about what the appropriate burden of proof was starting actually from the very beginning of the caister and why do years so why is this not  something that's covered by the instructions generally iran or the burden of proof is the lens through which a jury views everything negligence causation injury damages everything is viewed through the burden of proof the burden of proof is the most basic thing that the jury has to understand that the defense counsel blatantly misstate the burden of proof that is not the civil burden of proof in fact the burden of proof that the defense counsel argued was greater than beyond a reasonable doubt sure means by dec dick's dictionary definition having no doubt so that was an argument and under since this is a diversity action under missouri law that misstatement of the burden of proof is deemed in every case prejudicial air and it is deemed reversible error to not correct that what judge shaw should have done was tell the jury no that is not the burden of proof i have given you the burden of proof that is an incorrect statement that was not done the exchange goes on to then talk about oh yes more likely than not as i read that and as i interpreted the tax time it was in effect equating more lightly of the not with what mr ellington had just said you must be sure and if you're not the law requires you find for defendant there is the issue here of whether fat think more likely than not is is an adequate is an equivalent likely than not  arguing about that because i am having some difficulty with babble i read the exchange the bryant's attorney called the defense attorney on his misstatement the court said follow the instructions in the defen attorney says the court will give you the the burden of proof what that is more likely than not yes but it's in the instructions but no one no one disclaims what he had just said no one says you're right what i just said was not is not more likely than not i read that and turkey at the time live as equating that to the more likely than not that's what i just said yes that's what i just set more likely than not that's how that came across that's how i read it there is no corrective instruction there is nothing by defense counsel saying you're right that is an incorrect statement instruction is given at the beginning in the end it's covered in board bob plaintiff's attorney and there's an effort made to correct here when this misstatement my and but in the in the face of all of that because of this one it's not meant a defense attorney a new trial is warranted is that is that the position you're on or under missouri law and diversity case yes that misstatement of the log it is so fundamental and the fact that the judge judge tried did not sustain the objection a misstatement and it's such a fundamental blatant misstatement of the burden of proof you're putting on the plaintiff then perjury beyond what the state would be and in a criminal prosecution not the law the other issue before the court your honor is is the reason why i gave the brief press taishan of the facts on the cross examination of defense counsel expert witness the court halted our cross examination to a sponte in effect on the issue of what should have been done with the the question that we asked that had not been asked of the defense counsel's that expert witness was isn't it true some form of isn't it true that normal appearance and overall fluid can be in fact court basically says yeah you're going to stop you're not going to ask any more questions on this you're done with us cut that lot entire line of questioning off  that goes beyond the trial court's the latitude to control cross examination that was the central issue in the case and we were not allowed to cross examine their sole court to affirm the district court's judgment for that defendants first argument raised by the talent is due in closing argument the burden of proof there was no confusion at all concerning the burden of proof  wrong fifty one forty nine percent and so forth the instruction the burden of proof instructions fictional or five plus reza beginning of the trial and at the conclusion of the trial that instruction read the burden upon the party relies upon any such proposition to cause you to and then the court will get the jury the instructions and the burden is more likely true than not and then at the conclusion and in so that was discussed there was simply no confusion to the jury there was no suggestion that jury was if you are you do you concede that the statement that was made was an incorrect statement of law i believe that in the context of the argument i don't believe so i don't think it was an intent to mislead or confuse the jury  with the burden of proof but also in the context of the organ as a whole point of counsel during his argument spoke in terms of doubt only if you have any doubt you can still return a verdict for the plaintiff there's the law permits the trial court the  and also quite clearly in terms of the record that an admonition followed by a correct statement of the burden of proof curious any error in this case after the not sure comment judge shaw in open court advis counsel and also for the hearing of the jury follow the instructions and then thereafter mr linton says yes and the court will give you the burden of proof what that is more likely than not there simply in the context of the trial as a whole your honor there was no confusion concerning the burden of proof in the civil case especially in the context of the court's instruction number five which laid out the appropriate civil standard places counsel argues that this was an extremely heinous extremely judgment in manly the smith's or supreme court held that an admonition followed by a correct statement of the law curious any error in closing argument and under that standard here we can have of the the discretion and how he handled the closing argument was it within his province to do so that there was no prejudice there was no confusion and if there had been any confusion any concern over the burden of proof  argument clarify the burden of proof review of his rebuttal argument the final portion of the going shows no discussion of the burden of proof if this had been so damaging so destructive to plaintiff's case such an average discussion of the burden of proof it would have been cleaned up would have been addressed in plaintiff for about a lark you meant you know as i look at the transcript it's you know it goes like this and says but if you're just sitting there and you're not sure then the law requires your client in very with the defendants then there are a few others directions one of them and their news an objection the objection is your honor this is a misstatement of the law not sure the court says counsel mr ellington then attempts to respond to the  i can't really tell because i can't tell the exact context of how that conversation took place but i presume that you have spoken to mr allen ten and i'm just curious as to what was the tone and tenor of that discussion because the record i think in the light most favorable to the verdict would would tend to look like you know the judge has in fact cut off that wind of argument and said that you know now i mean maybe there's some magic in saying the word  sustained but you know i've been a trial judge for twenty four years and i can tell you that from time to time the magic words don't get sad and so i'm trying to just sort out what was this perceived as it took place at least from your your or your partner's perspective i first put in the context of judge judge as not having a trial with kid gloves and in the context of the stretch shaw i think would be a fair statement based on my discussions with with that the trial that the trial was prejudiced by this one single comment especially when you go through the whole discussion with respect to the burden of proof beginning with more dire in the reading of the instructions wealth of the beginning a trial at the end of the trial that anyone was computer confused about the burden of exchange had the same question been asked and answered by the witness or had the same factual issue been covered by that particular an appropriate objection they are now your honor because the that the question that was asked and the answer was undisputed and in the evidence the trial hold on wait a minute that's a different objection that's cumulative not repetitive and you know here's the real problem with this case is that you say that dr salmond conceded that clears and old bill fluid might be infected but that's a very different story than having the defendant's expert  right and there's no basis for this objection at all as far as i can tell i'm wrong tell me why i can only speak in terms of my discussion with a valiant and concerning what was on his mind when he raised the objection that there was an undisputed fact that could not be the more if this is what you're getting at that it was an indiscreet it already been acknowledged united conceded that's not an issue really an issue in dispute wouldn't that have been in that really what shepherd asked them i can only it's not a record i can only relate what it's going to say and i have discussed what they thought and that was on his mind that it was an undisputed issue that it was had been previously address he used the wrong the wrong but  when do we require people to stipulate away their ability to cross examine expert witnesses ma'am never seen that in any case i've tried either as a lawyers or presided over as a judge i agree with your honor that i trial was to play dr solomon's video deposition where in the course of i think of we played about forty five minutes or an hour of his deposition he made the admission about the fluid that perfectly clear fluid could be infected in fact the reason why you test even perfectly clear fluid is because you're trying to catch before it gets to the point where it's green pus and you're beyond being able to do the other about it this was the very first witness this was absolutely not asked and answered it was not repetitive in any way of this question and i'm beyond that judge then cut me off from asking anything else now i don't have to ask anybody else what was going on in this trial i was there that judge cut me off did not allow me by his own statement hear anything else about the flow in fact you'll see later on in the transcript that he calls me up and says in a sidebar you're beating this to death about about the fluid you can read the transcript and make that that determination for yourself but quite honestly this was not judge sheppard this was not something that they were admitted in fact when they then called dr solomon and his position assistant jason gay and that question  them they say well it's possible but not probable that's a change in dr solomon's testimony just opposition so they were clearly not admitting the fact that clear fluid can test positive for infection they were saying well it's possible but it's not probable so they had changed from the admission made in dr soms deposition going on from the point made ago how do we know what this witness this expert how do we know what he would have said dr metabolise deposition all portions of it were designated in deposition that's part of the record well what did you make of this comment because frankly i don't quite get it that quote the lady didn't protest too much  twice the judge did and then he came up with the final command ok figure it out and clearly there's something here that you were supposed to be figuring out and i i can't figure it out in the transcript do you have a clue your honor as mr ward said judge shot does not run a courtroom with kid gloves and sometimes you're slapped upside head don't quite know why i don't know i did not agree with him i was surprised that he felt like we were beating this to death or that the lady doth protest too much i think he was doing shakespeare and that i was the lady and the cynic oh but the fact is the only submission of negligence to the jury was was  negligence not to culture and cell count the same no veal fluid drawn on june july eighteenth two thousand and fourteen that was the specific one so to say that we were going on and on about who would want the when the where about the woodwind that was the only issue of the trial i don't understand i'm at a loss to understand where he was going with that judge ok thank you