not as interesting as what you've just been subjected to doesn't have the same level of import in the sense of maybe our society and our country but this case is an extremely important case because it deals with the very fabric of trying cases and the importance for district courts to make sure that we strike fairly and justly and that that justice is served i've been doing this a long time and this is a very painful case to bring before you because the last thing i want to do is be in front of the court complaining about a jury and talking about the unfairness the equity of what they did and this case was permeated by bias and improper conduct and facilitated by rulings that were in error and as a result it was a grossly unfair verdict and what i am here to talk to you about today is the importance for you i mean this is why this court's in place it be very easy to simply say ok jerm made a decision mr dreier that's just the way it is clear way to the evidence here demonstrates just how wrong this verdict is and i was there there are three things that demonstrate that this case should be sent back to the district court one is the this document where the agree to medical treatment and care in the cost of medical treatment they're conceding the relationship they're conceding the injury this is not easy as characterized by counsel in their in  end accident i have a client who stopped on the road whose rear ended by seven if i conceded that the fifteen thousand dollars or whatever that there was what the jury was told that the party stipulated goes for the past medical injuries neck and back along with injuries to her head which the jury found but it's well merely for the neck and back ok but there was not all right they conceded liability also that they were and if your client met so that it was that was not before that the jury wasn't deciding that but i didn't read the stipulation to say we agree that we're responsible for back and head injuries your hon wrote that i had i read the separation to say these are the past medical injuries these are the past medical expenses that were incurred for treatment for neck and back injuries the very nature of the medical records if you look at it at that particular document they said that's an amount but that they didn't but that isn't we agree that she has i mean the whole trial was about hiding about her back and her had actually not your honor the whole trial was fighting about her head and her brain they choose or of being a manipulating and the accuser of overstating her brain injury which the jury found that she she did suffer and they if you look at it mr custer's closing argument and if you look at the discussion during the course of this trial and you look at the stipulations they are stipulating that she suffered a neck and back injury because why would use it be allayed to injuries rather for treatment for injections and care and treatment of the neck in the back unless you were not agreeing that the neck and back were injured there be no reason to do it and there are common in the brief that we did it for saving time is completely erroneous  not what happened and if you read custer's closing argument he concedes it and if you look at it as you proceed through this case and you look at that that's the st step and you look at those st six questions after the jury on its verdict has found those medical bills and there are modest medical bills for sure there was substantial medical bills she had spine surgery every single physician the treated the related these conditions to being hit from behind and then pushed in front of the vehicle in front so she had to impacts there were two impacts and every doctor thought it was related including that there doctor they all said no you know there's the quality how big a zip they wanted to argue soft tissue if this jury had said she suffered the injury she'd never had a complaint in the pain ever before an award or ten thousand dollars i would not be here if they if they had that if it didn't didn't ok i know that you challenge whether to buy a medical expert should have been allowed to testify yes ma'am but was did not the biomedical expert that testified say that he didn't think that y that i guess what i guess what i'm just saying i mean you can argue all of those things independently but i didn't see anywhere where the other side conceded or that the jury was advised are right that the defendants have conceded liability for the cause of the accident they have also conceded that as a result of that her back was injured and her head was injured and so you just decide how much for all of that your honor if you look if the court looks at the closing or what defense counsel is not closing argument i want to know what the jury was told and they say that those because during the trial you and mr custer you know contested everything about what all of the evidence was well she had had a prior back injury then she had two years where she apparently was a symptomatic and then she gets in the accident and then and then you call experts that say we think that she is not that she went two years without having problems that is not the evidence and what i'm referring to your honor's in his closing argument he concedes that you should be awarding something for her soft tissue injuries he's he's minimizing or injuries for certain the problem is when you have a jury say zero no award despite the fact that they concede that there's an injury they can see the medical expenses and dr knapp is not a medical doctor and he's you to mean by that is that the jury verdict was against the evidence and your motion for a new trial should have been granted in so what we need to do is look at the trial record and determine whether or not there was sufficient evidence for the jury to find as you just said there should not have been damages on the back injury notwithstanding stipulations in agreements you made per the trial correct are so as we must look at the trial record early see evidence in the light favorable to the defendant on that issue is there some room for us to as our i guess better question would be what is your response to the question is there an alternative ground for the jury finding for instance there's evidence as i understand that your client had a prior back injury yes there was a stipulation yes mr custer made that admission at closing argument but isn't there some room to  look at the verdict in the in the light that they had some evidence of prior injury or something alternative that would justify no damages on those injuries judge movie absolutely not there's evidence of that the last was two years before the incident there was never an injury and the last time she saw our regular doctor was thirteen months before the incident took an x ray of her back in there was no referral for anything no specialists no nothing she's forty years old there's no question she's got a forty year old spine but she has no limitations on every regard that zero is a direct result of the way in which this case was conducted it's did wreck result of the attack on myself and read in tab forty two of the excerpts on page four of four hundred and sixty four this is judge shoves ruling and he's talking about what he's doing and why he's doing it he says dahmer tells us that the district paragraph so mr dreier as a practical matter if i keep it out and you win and you will likely be on appeal and we don't know what the court of appeals will do but if you win you're going to have to wait to recover and you run the possibilit victory is going to be set aside you have to try the case again you're going to win this case you know there's no way around that because you they've stipulated the liability they're going to get at least your past medical expenses and you're going to get you're going to get something for non taking care of the record and we'll wait for the verdict but wait for the appeal this gentleman mr knapp was has absolutely no scientific basis to what he did he was allowed to comment on the on the the actual issue of fact here he was allowed to testify she didn't suffer brain injury she didn't suffer a neck injury she didn't suffer back injury he did nothing scientifically nothing this he did was not subjected and if you look at the record you know he reviewed all the cases and he basically said some people let it and some people don't bite it down so and you pretty strenuously cross examine this person and the position wise well it goes to the through your response to that because my response to that is he allowed him to testify before the put on any of my witnesses the rd day of the trial so now the defense puts on a witness an expert who supposedly is qualified to talk about the material issue that they're there for and hear him say to them while they're hearing constantly the whole time about the lawyers is crooked in the client is crooked and now th educationally on this is that if you look at their reply they don't even address this topic they don't talk about smedley they don't talk about borland they don't talk about any of those cases because what judge did was he basically said you're gonna win i'm going to protect the record for you and i'm not i'm going to let this guy in because it's so bad but when the jury gets if you look at the bias on this and if you look at all the things that did the issue about that this is anecdotal comment  this was such an unfair trial your honor i apologize well i i think you have to take some responsibility on what kamen on the issue of the tax returns and and the wealth because you kept you kept watchful lane on what you know clearly if you put something into evidence you know if you say well ok i may not i'm not going to claim those i am going to come out claim those  whatever and basically it's like well if you want to open that door and you're an experienced trial attorney you open that door then you know if the calvary comes through and if she was going to say well i'm going to try to get my boss i'm going to try to get some economic damages and lost wages here and so it's going to come in how much money you make that you were actually making more money or that you told the doctor well i don't really need to work kind of i'm flipping houses and all of that get that decision you made knowing what was going to happen to things run number one she did not say that she never said that and the doctor when he was examined on that indicated i don't remember the conversation i remember the context i don't remember any of it and they pound that home time and time again and secondly i made the motion to keep out the tax records judge made it very clear i don't like motions eliminate any way shape or form and you can rule on at the time i had to make a choice a tactical decision because if they're just going to put all the tax returns in about wealth because this is a couple that were very hard in the stockton area before this happened they worked very  hard everything that showed on those tax returns from work they did before not from work after she couldn't work that's the evidence and so as a result i didn't have to put in the evidence about the loss of income i did a loss of earning capacity returns come in your honor just so it's going to letterman even though it's mr weber who is not the plaintiff in the case so it is i can understand totally understand from your perspective sitting here you were not in the courtroom you read that call transcript and you want to hold me accountable for what i did i'm fighting like crazy for my client it was unfair we were accused of everything all the bias all the torture from stuff and they used it and that yeah ok well but you were not the trial lawyer here i was not mr dreier was correct and but i'm very familiar with the case and i supported mr custer throughout the case wrote many of the i know he's qualified to do certain things correct but but he has he ever he's never seen a patient's right nobody reviewed all of the medical records including the spine records that showed that an expert witness at least two hundred times has never been disqualified and there's actually a recent and it appears to me that plaintiff's biggest concern is that he pined on causation and i just wanted to direct your honour's attention to a recent case from  this from judge phyllis hamilton talking about that the weight of authority supports the conclusion that the fact that a bio manic biomechanical expert is not a medical doctor does not mean that he is not qualified to offer an opinion as to specific causation sat a published case  continue to sustain objections on the foundation for dr nearest testimony in the inexplicably after the defense counsel attempted to lay a final foundation allowed him to testify on almost what was the order to say the ultimate issue in the case which i believe was whether there was a relationship between the event accident and any brain injury that ms weber may or may not have claimed to have y of evidence that came in that she did not sustain or excuse me that the accident was not a substantial factor in causing injury to her cervical or lumbar spine with respect to the lumbar spine there was as i said an x ray the doctor referred to as chronic and the all of the doctors included in plaintiff's orthopedic surgeon expert agreed that the films were the same there was no change with respect to her cervical injury she had an x ray done  the day after the accident she had another x ray done two years later and again all of the experts and the treating physicians agreed that there was no change between the two with respect to the st x ray  expert testimony came in that it was no evidence of trauma and importantly after this accident she never treated once for cervical injury she never treated for it so our position of course of that the weight of the evidence  what convulsions in a doctor's office at some point correct correct and that evidence came in that and including her own neurologist that there was no documented  evidence of actual seizure activity that they thought maybe it was pseudo seizures but you know there was behavioral but there was never any evidence documented evidence that she actually was having seizure activity actual  activity in fact it was certainly you didn't do the closing argument but it certainly seems like counsel was pretty over the top in using things like calculating planted and manufactured i mean that evidence seemed pretty close to crossing the line so to speak i mean when you think of planting evidence and i mean what evidence was rd that that he you know like he made up evidence or y he manufactured this evidence i don't frankly know what the judge did at that point but that it should not have gone with  planting and manufacturing are ethical violation of that and that would be like you know police officers stealing from that you know that by substituting drugs for you know talcum powder or you know that was defense hired an expert reconstructionists accident reconstruction expert and specifically so that we could the defense could calculate deposition plaintiff's counsel asked for this expert witness mr braun to perform prepare a calculation having to do with the force on the bumper from the truck and not to talk with her about the case not to go over you know any of his findings or how the plaintiff was doing but instead to add in this was the doctor's testimony to add this report with the calculation on the back  is what did he make up numbers did mr trier make up numbers on that piece of paper or did he use the numbers have your accident reconstructionist he used the numbers the accident reconstructionist had said was relevant but the physician an expert treating physicians file the treating physician during testimony said that he did not rely on those numbers and that they were not relevant to his treatment of the plaintiff but what do you what it was what was in the various about that in your view do you think that counsel was trying to give the impression to the jury that this was part of the medical what was on the ferry the significance was that as opposed to hiring their own accident reconstructionist they were trying to get in this irrelevant fact this irrelevant calculation  quite that to planting evidence it didn't if you if you place in a doctor's evidence that you've already been told is irrelevant the doctor doesn't rely on it the court agreed that the that this of this was not relevant that the force of the car was not relevant  and yes that the placement yes it was was like an extra tent by by having each of the experts have this figured this calculation plaintiff's counsel was able each time to try and get the evidence in to try and get that calculation that irrelevant calculation into evidence so by putting it in the in the treating physicians file or does a whole treating physicians file go into evidence no your honor but isn't going to have a no it's not like sneaking something into the jury room you know i mean if that if let's say there was a motion to put the treating physicians report into evidence in both party and your counsel and mr dreier agree that it should go again and then mr calculation i asked their expert what's better than they have the defense expert do something and calculate something i asked him to calculate the force of that speed with this vehicle that the defendant was driving went seventy five to eighty thousand  pounds and i gave that information i wanted that information to go to the treating doctors and my expert because of the force of that impact this wasn't a little s u v that hit the back of my client's vehicle so that's what that was about but but did every one relevant i thought that's what opposing counsel said that pose and gets a a number of things wrong or that are not right number one she says that the prior there was x rays of the cervical spine she's never seen anybody for a new injury to her lumbar spine and he monitored over the twenty four survivor a year before he did the surgery but the jury heard all of that correct yes they did your honor and so to me as a result of hearing that that's the question i have when i saw that verdict form and i saw the zeros and i'm going how is that possible especially when the whole attack on my client is that she's manufacturing this brain injury which her treating iraq has said she had found a brain honor i'm not here on the brain injury but i would tell you that their verdict was also colored on that by the the bias and by the argument of counsel three hundred thousand dollars for a forty year old woman who can no longer work because she can't have the cognitive function that everybody says i can't get it but i question jury verdicts all the time well it's never know what's going to happen when i when you when you try case to the jury and that's why you have attorneys on both sides because there  views of it and one side going to think that the jury got it wrong it's just really difficult to have a difficult burden to overcome the jury verdict and here's what i would say i've tried this is the st time have ever been in a court of in this is from the smells their case which they don't even address the th circuit is add another factor to assist the co ordinates inquiry whether the experts are proposing the test to testify about matters growing naturally and directly out of the research that they have conducted independent of litigation or whether they have developed their opinions express lee for the purpose of testifying because the former provides important objective proof that the research comports with the dictates of good science dr knapp has done nothing he is strickly a forensic biomechanics who testifies exclusively for the defense there was nothing in judge murphy is correct every time i was forced to object as on the cervical spine in the lumbar spine he should never been allowed to testify on that at all he didn't qualify and that information was the only information they had that she didn't suffer a back injury or a neck i mean i'll give you that when i  mechanical experience because of his background as a spine surgeon he used that information utilize it and the judge for some reason just did not like that that communication did not like that calculation and never understood why he had a real problem with that because he was convinced that from from whatever source i have no idea that that wasn't relevant to him that the forces involved the last thing i would leave the court with  his this i really truly appreciate how difficult this task is i appreciate the fact juries do you got to deal with what juries do i deal with it all the time good and bad but she didn't get a fair trial because of the conduct of counsel she didn't she didn't get a fair trial because she was subjected to this wealth issue and she subjected to dr now being allowed to testify in a district court there's the c s that i cited in my papers talks about the duties of the district court i know judge murphy is a district court judge and he understands that better than anybody but the reality is i was at this record judge as well i understand i understand but my my point is that the district court judge has that responsibility and otherwise justice is not done we understand so thank you for your argument thank you to both counsel for your argument the case just argued is