michelle rich each side will have up to twenty minutes for the argument the apollo will also have up to five minutes for reebok you'll see the digital timekeeping device on my screen one time has expired and i have it all and finally please remember no autographs knowing the clerk of the court is permitted to record these proceedings today your honor and oh ok i just want to make sure you know since we're not all in the same court courtroom these days it's very it won't be a back and forth as i understand it mr back with it will just be when one stops the next thousand and eighteen and that case management were specify the discovery obligations of the perrys and when discovery was particular discovery was supposed to be produced now in that order a discovery which was requested from our expert dr peter he anderson was not sent to tell actually a lead in two thousand and nineteen and i pods i could not find in the record the original in iraq a choice that were you because it says the discovery had been initiated by the time september th came along but the case management order right and what i'm asking is included within the plaintiff collect the medical records which the plaintiff had acquired from his treatment and we ran into a few setbacks and the ladies st we requested some records from memorial medical group and these records were eventually sent however there were records which were missing and it turns out there was a clear on the stage and at least one record was not included in this packet which was that i notified police council  situation and i believe it was the end of april i want to see even th two thousand and nineteen i said this is the situation we don't have all the records we've got a report so we did do that and five days it took you to realize when he answered well with regard to when we had actually received all of the medical records from plaintiffs we were actually able to confirm that all the records were in our possession and tell that time in july so we were able to confirm that there was a missing provider a p a which was listed on the medical records from morrill medical group we sent a second's or a  request to them requesting these particular medical records from the p a and it turns out that b p a records were not separate and different from the records which the prosy so the inquiry was to get all the medical records from memorial i believe we've got all the medical records we're ready to proceed with the records reviewed with dr peter anderson why didn't you take a deposition of the custodian get it over with us you know judge that certainly that would be a possibility that's not something we typically do you usually will send a records request we get it back anywhere from two dollars to four dollars weeks and that's what we usually rely on and the like to avoid the extra expense of unless the custodian refuses to give us particular records or has some sort of you know objection to providing us with the full record did you get a set of these records from the plaintiff i believe we yes we believe i believe that we received at least two of the visits from the plaintiffs however i am not completely sure if we receive all of the medical records from the plaintiff ok so what's we realize that we had all discovery of the plaintiff's treatment which by the way we were able to confirm that the pla not have prior primary care doctor which would have records that we could review we had to rely on plaintiff testimony that he just had started treating that morrill medical group once we had to cheat all of these records we said we're going to proceed with records review deposition of dr peter university and we're emailing you to let you know we've had some delays in the setbacks now this e mail which was sent july th we didn't get a motion to extension a time we'd like to court to grant this extension so that we can take the deposition of dr peter anderson so you know this is how the case proceed it however the court did not actually sure this motion until a weeks later on october st two thousand and ninety two there was a big gap in time i would had originally went back and forth with his counsel trying to schedule this hearing from the trial court but it didn't happen the court couldn't fit in its in its schedule we got in october and earlier date in october st however his counsel had an objection they had a conflict so we couldn't do it before october st and this is twenty one dollars days before trial set did you go ahead and did you go nd somewhere i saw that you argued that you disclosed four days after the time what was that about i'm not sure what exactly know that we did dr in or since medical records review report within thirty to thirty one days prior to the october st trial date so they had at least thirty days before trial the steps  began i understand you used the report september th on a friday afternoon as i recall and then you said a notice on monday night monday for a video evidence deposition of your own expert you know your honor i cannot remember the specific date which we sent the notice however i know that it would have been in anticipation examination here right correct or ok so it was just a record to review right and when you found your motion for an extension of time when you answer thirteen disclosure right right we did a basic rule to thirteen disclosure that included dr heater said his name and address what we anticipated that he would testify to because obviously at that point he had not yet received his we did not have dr eaters and opinions in for we didn't have his report and his record review had not yet been complete so we did not have his opinions to disclose but we wanted to go ahead i'm sorry  you know so bear with me a so i'm trying to find out if this disclosure was made in good faith so did you take a chance and say we're going to disclose him even though we don't know wh his opinions are or are or alternatively had you made a good faith effort and you had talked to him so that you knew you were going to disclose him but you just didn't have this report we knew we were go extension of time because like i said it was six weeks before we were actually received a ruling on that i would you wait i didn't want to wait your honor i wanted to i want to be ruling is quickly as i possibly could after my questions w would you wait to do anything more until the court rules why can you in good faith continue moving along well i we try to your honor i mean we set what information we have regarding dr interesting interest and was sent to the place this is what we had this is what we know i haven't personally discussed the case with dr eaters and at this point one on one i don't know what his opinions are this in conjunction with the fense had no idea discreet tradition was involved in this case we did find out until august nd two thousand and ninety this was after the deadline to disclose august th with the definitely we didn't receive this record until august nd was supplemented by plan counsel and i thought you said you had obtained all the records we had yes we thought that we did we weren't aware that there was an additional visit with dr rest between the time we had requested t anticipation i mean they're under an obligation to seasonally update when their client goes to the doctor right right and i i disagree that they made efforts to seasonally update they were actually in possession of the records that we receive august nd two thousand one hundred i believe they were possession of those records as early as august st so this disclosure from plaintiffs occurred after the deadline and they definitely had these records before the deadline before we received a confirmation the doctor in or soon could even be deposed in allowed in this case so we proceeded with well scratch that we received plenty of councils extensive rule to thirteen puts in the mail there receipt by plea of counsel i believe it was saturday so we proceed with having the deposition stretch that monday we had the pretrial which was october th two thousand his records review report all records which were reviewed by dr anderson this was all sent to me and before the st five pm deadline this was followed on the following morning we received an email requesting nine and she said well you can look so i went through the records and reviewed we've got one dollar to ninety nine dollars from southwest orthopedics dated two thousand and eighteen this is income which is  requested from southwest orthopedic they don't traditionally do that so once they realize we have the answer to ninety nine who do produce it by e mail long list a p d f file from some very old cases dating back to two thousand and fourteen financial information correspondence old checks now i didn't have to produce this i objected i didn't believe it was relevant but i produced it anyway so we sent cletus counsel massive amounts things he does medical reviews i am me and he does depositions record reviews this are not included in these lists and they produced some checks which had been included within this extensive west provided by d and the checks which they brought to ms mona's heart those attention actually only amounted to about one thousand six hundred dollars now comparatively we disclosed two hundred thousand one hundred and fifty says he does he didn't know that these records reviews were not included in there but he said we're fixing it we're putting together a new list every interested and want to hurt so had days a matter of days five days to produce all the documents the trial we get a motion from his counsel asking to bar him as an expert which obviously as you know no the judge decree and so i can see my time is up so i'll go ahead and you know to put in counsel thank you before you yield i just i'm drawing a blank your honor i apologize i believe it was just a matter of days after we received dr heater since report and supplement of the report to please counsel so it would have been in  late september possibly early october but september th ring a bell at sounds like that might be at chembur th what's your disclosure of the report right and you think that just just are you looking at a document that says simply a mental road to thirteen i'm looking at the timeline i tried to get through on my own and it looks to me like on the august night team there was a two hundred and thirteen disclosure that had no report right and then the report was included on the september twenty s so i think maybe your question just kate was was there a number supplement right i've got the september th because i think that was on the friday afternoon but nothing else was ever like all these documents that you're putting out you didn't ever supplement th as a part of the record regulator we didn't actually respond with those documents until we were sure ten with the rules official rule to thirteen discovery which makes it very very expensive number twenty three was verbatim to the one that in the appendix to rule two hundred and thirteen which asks about rule two hundred and thirteen witnesses that all required information there were also six requests to produce with regard to expert it's only after that that we decide whether or not based on the can and the identity of the expert we are going to probe the bias of that expert there's a lot of reasons for that that expert might be before the deadline came about and l and we lost as the outer limit to comply with the deadline on the c m o is that deadline so we had done it a month early the response i defend w s that they did not have one at that time and they would supplement their no decision had been made and that they would supplement this issue has never been brought up until the appellate stage and that if you look at the motions regarding expert discovery you'll see that in every one of those plaintiff allege that they had complied with every deadline and there was no objection that we had that we hadn't until the appellate stage so i don't believe that would be appropriate on that basis but we'd be happy to supplement with the record if the court found that necessary clearly those are sworn statements by defense counsel you know when i read the case management order the reason i asked that question about the original iraq war is because this seems to me at least to be a very unusual case management or maybe this is the standard one that's being used by counsel now but why would you have these separate in iraq a jury disclosures why can't everybody just send in iraq or tori's i don't understand the purpose of this plane that shall serve to thirteen at going to iraq or tories and that's before you even know if they have a witness can you help me with that i just don't understand the rush requirement there of for that is a for some reason and we didn't put it in our original discovery that far we need to ask by that time though we did include it in our original discovery but there might be a case of premises case or something like that where we didn't ask and we need to do that also in the record are our supplemental to thirteen that were issued on october th two hundred one thousand the rehab and why there supplemental is because we had already asked our original to thirteen enter under tory in response to the appeal on this case one of the most fundamental and basic rights in litigation is for a party to be able to probe the bias or prejudice of a witness the credibility of any witness especially an expert witness is critical to the search for truth and an understanding of the financial bias of an expert witness is so essential because the jury cannot perform its function to properly weigh witness testimony unless they have accurate information and this court in our supreme court is very well aware of the n pact that an expert witness who is this involved in medical legal work it has a huge impact on modern day litigation and that impact can be overstated and that's why in trower the right was outlined and preserved that the opportunity to cross examine expert i have partition ship and financial interest is critical one date i think you three retained expert so i would clarify if you can about these medical records they say they couldn't get the medical records and you kept supplementing can you clarify and i will tell you that our responses to discovery were let me see i looked that up while you were talking it's nice to be in front of a computer were sent with a settlement to me and all records i'm built on october th two thousand and eighteen and then i pulled up my client medical list which i'm going to do now that record was produced i believe i don't have that date and i believe at the beginning of may the law record that defense is complaining about and said we had an august st that does it didn't happen to august th two thousand  could have supplemented but not to have any opinions and felt thirty days before trial especially when defense counsel acknowledges that they thought my client saw p s a and he didn't and we had sent that information to discovery response to that were verified and given them blank medical authorization the year before i don't i think that's all a red herring and why i think this is all a red herring is they got their deposition they got their expert report allowed judge please and allow them to take the deposition and it was only because we didn't get that on the middle right to have the accurate information to discovery to cross examine dr anderson that we're even here because had dr anderson done that regardless of the timing that opinion would have been allowed and it's very clear what happened here because as soon as we got the discovery the opinion we asked for the financial information we had seen dr anderson before the news that he would not give it to us we really didn't take should comply and produce we didn't rest on our laurels we actually made him an emergency motion to compel that early so that we would have it hopefully and less than forty eight hours before the evident deposition and what happened plaintiff's perspective was was ridiculous because and i'm sorry that was what i don't want to be that way but when they sent us the backs of the five o'clock we knew it was incomplete and it didn't comply with that spirit then we got called are you going to cancel the records deposition or are you going to cancel and we said we think it's deficient no we need what do you need what do you need while we noticed there's no tonight united we noticed this we noticed that three hours before the deposition i'll never forget because i'm starting trouble on monday went back to noon at noon i get two hundred additional pages and just a very brief comparison of the information the list that dr anderson provided with what defense counsel provided from their office showed that what dr anderson provided was incomplete and so at that point we needed to take the records custodian deposition to be able to get the information our client was entitled to have and during that record deposition the admissions were overwhelming that only had she left out information that was in mr to defendants witness and they were also to the company will not only dr anderson himself but his practice were were subpoenaed but the fact that she didn't do anything to gather this information is an essential fact for this court judge please i wish we had the october st hearing record we don't but it's clear from his order and what he said in the final pretrial that he made it very clear to defense counsel that this information would need to be provided it's what we found was a flagrant disregard for accurate truthful discovery which flies in the face of the litigation process i can only imagine if the shoe was on the other foot and my client didn't produce things that he was supposed to what where we would be and this is somebody who admit that he absolutely knew the dr anderson absolutely knew the requirements his office knew the requirement his office was aware that we needed this information aware that they had insinuation that part of the reason judge gleeson ruled the way he did is because he knew this factory must be a regular yes and over thirty times with the fans counsel's office alone and in what we were just defense counsel we can imagine what it would be but just judge gleason absence comes on the record if that was the case and they acknowledged that that was the case that the doctor is a frequent flyer someone they've used frequently and dr anderson admitted that he was aware of these because he's been involved in the well from the documents in this in this case alone since two thousand and thirteen i like this last key case because you want me to give you th case because it brings out the reason one of the things it says is at any point during these events defendant could have complied with discovery and avoided the sanction imposed and i believe that that's the case here not only is that case extremely analogous to what we're going through here but illinois law presumes that they have control and full cooperation from the retained witness and we see in the admission from the depositions that these office weren't even contacted or requested to get this information at this point i think i will go ahead and turn it over to my partner michel rich because i'm sure i'm leaving stuff out is that is that all right  acceptable you certainly do think quickly though i'm not sure you left anything out oh i'm sorry you know i'm going to do that before you're fine absolutely fine mr rich  rulings on this case i think any review of his record would show you that he gave the defense great deference and latitude and just like the fraser versus jackson case he gave them multiple opportunities to cure the deficiencies in their discovery responses and they chose not to do that and as a result only then to judge least and make the decision to bar dr anderson as a result of that there were two separate court orders  october th order as well as the october th court order and on the record judge gleason made it extremely clear to defendant what he expected in terms of the production and he indicated on the record quite clearly again that if cendant did not produce that to us that he was going to be reviewing whether dr anderson was going to be allowed to testify in this case and his as i'm sure you're all aware his decision in this case is subject to the highest possible standard there is an abuse of discretion i put a quote in our brief that i think is pretty appropriate that states that that standard of review should be overturned only if the trial court  arbitrarily without implement a conscientious judgment judge gleason's decision making and his conscientious judgment in this case i think was impeccable he gave the defendant numerous opportunities to cure that and they chose not to do it within the boundaries that the court stepped forth in terms the timing miss hart so when we took her records custodian deposition just the week before trial acknowledged to us which is contrary to what mr beckwith told you in his argument that she had never been contacted by defense counsel prior to i think two hours before her records custody and position was that to take place it's clear that they did not make any attempt to contact dr anderson's office to get this information even though they were under two court orders to do so so that's that's clear from her deposition testimony and i would ask you to take notice of that i think another thing that's quite noticeable and that the court relied on  making this decision is that when i did take dr anderson's video evidence deposition which was just again a couple days before trial was set to begin in this case i asked him about records refused the difficulty because again that's what he did in this case i questioned him further because i knew what we had learned from miss hart so the evening or did he say oh well actually today i became aware that that that's not in there so if we had not proceeded with miss hart those depositions and the other discovery requests that we had made dr anderson would have intentionally tried to mislead me and his evidence deposition like he did and i think that's significant and that's why the court made the ruling that it did and gave them so many opportunities to fix that and they didn't do so you know when i read this case i have to tell you that i was very concerned about the fact that all of recognize that the court was involved in you were doing all this but the defendant says they did the best they could i think miss cooksey is explained in that you know he did this other thing but i guess my question is how if you did have this number two hundred thousand one hundred and fifty dollars than it been paid by this defense firm how was the pla prejudiced in this case if the judge gleason had not ruled to bar the the expert i mean you did have a lot of information you knew he was a frequent flyer that could come out before the court you knew this particular firm paid a lot of money to this guy to review cases do you think prejudice plays a role in this at all i absolutely do your honor and i think the significant fact in this case is that we still have no idea how much dr anderson has made performing records reviews we never got that number because they told us that they don't have it compiled and it wasn't produced even though it could be according to miss hart though if she would have actually complied with our subpoena and our multiple other requests but she didn't so we have absolutely no idea how much dr anderson makes performing records reviews which is what they did to mr mckinney in this case and that goes to the crux and the heart of two hundred and thirteen dollars s three and the case law that we have from trower and frazier versus jackson that says this is this is relevant information that is supposed to be disclosed by the defense and dr anderson says he's aware of this and has been for some time so i think it absolutely prejudiced and prejudice us in this case because we still have no clue as to even a remote idea of what this doctor is earning when he perform records reviews on plaintiffs in litigated cases he also acknowledged that his deposition list is not accurate i was able to point out at least one deposition from two thousand and fifteen that he had given that wasn't on his list so again that's that's something that's significant in this case this is not giving us a clear picture of this doctor so i think that my time is just about to expire in a few seconds i think clearly judge gleason's reasoning in this case was very thorough he used extreme conscientious judgment i don't think that there is anything inappropriate about his rulings or the verdict of the jury in this case i think the word was appropriate for what my client dr testified to at the time of trial so we would ask argument just as the meat on the da jury trial that they were deprived of an opportunity to cross examine dr peter anderson and meaningfully you know this argument is categorically undermined by the fact that with the substantial which record reviews were included or how much dr anderson made from records reviews a problem with that argument is that miss want to hurt so testified that included within the deposition list are depositions for both records reviews and i creative counsel edwin when was the heart so testified she could get clear his counsel an updated list this wasn't followed through they didn't say anything well how many days for trial was examiner had to be made available for deposition by august th so that would be from this high you're in a raga juries at least i'm reading the case management or expert doesn't even talk about i'm sorry your retained expert doesn't talk about controlled experiments but it does say defendants retain expert witness if  examiners shall be made available for deposition my honest exchange so had you done that they would have had far months to pursue this not five days that's correct or rather however just as we argue problem here judge i can't give you an exact date when we actually mailed off requests for the hip before i can only tell you that my e p o th two thousand nine hundred which was the date which i initially e mailed opposing counsel to let him know i was having some difficulties that we definitely would have simply request way before that so january february perhaps but i don't know for sure when did you take plaintiff's traders  one which was the plaintiffs primary care doctor very new primary care doctor i believe that was taken in this summer however at whether it was june july out the fact that dr anderson if you read his his transcript along with mine to heart so they both testified that they had a willingness to provide opposing counsel with a fixed list one which contains all of the records by july rd correct this was a raid this was a new development your honor at up into that up until that particular point we were completely unaware that there was an alleged dis with the planet up to that point it was understood that we were just dealing with stock issue injuries it was the bombshell record on august nd which was released by playing it and we said oh wait oh we we had no idea this was true the bombshell obviously the courts don't want this kind of thing going on we don't want this way to go it was nine hundred pages a record for a simple auto ca so why didn't you just move to continue it well your honor it goes back to the motion that i originally filed for an extension of time in my prayer in the alternative i said if the court believes that we were add we thought we had more or less we would be receiving a decision from the traffic court for six weeks time at the time we filed that we believe you would get a decision morsi well i don't see any reason to stop moving in your office you ought to tell your boss as to our partners increase the band with me to do it ok i'm sorry thank you for your arguments council will take the matter under advisement it