more injustices may please the court counsel francis spinner representing the appellant's defendant john manchester as your honour's know this case comes before you on the appellate courts to one reversal of a summary judgment which was granted to my clients by the circuit courts with respect to iran for death claim fraud against my client with respect to the death of an unborn fetus which was approximately ten weeks gestation at the time the voluntary abortion was undertaken by the mother of the plaintiff i would suggest to the court that there are as our briefs indicate two primary separate bases along with a public policy basis upon which this court should reinstate the summary judgment as a matter of law in favor of the defendant the first deals with the scope and it's a more narrow argument the scope of the wrongful death act and the scope of recovery under these circumstances the second is the more broader took a policy issue of proximate cause and then the third in the last one really talked about goes to the issue of just a general concept of public policy under illinois law as to whether illinois law wants to allow damages to be recovered in circumstances where a pregnancy is voluntarily aborted and the damages are then sought for the death of the fetus let me let me first make it clear and i probably don't need to do this but this is not a politically related case this is not a case about morals there were some mention about scarlet letter and things like that in my opponent's brief their response brief this is a purely legal case it happens to involve an abortion but this court is not being called upon to make any judgments here with respect to the propriety or impropriety of this abortion or the concept of abortion in general this is really a tort case and it's can be decided as a matter of law  principles let me talk about the wrongful death act question first because if this court wants to i believe that summary judgment can be reinstated as a matter of law on those narrow grounds which is that there could be no cause of action here under the wrongful death act under the circumstances that we have here we know that the wrongful death act which has been in existence in illinois now for a proximately one hundred fifty five years has certain requirements in order to bring a cause of action the first of course is that the death is caused by the negligence of the defendant that must be demonstrated but the second part is that the injured party who became deceased must have had an injury at the time of death upon which of cause of action could have been brought had death not occurred and i submit to this court that there is no such injury in this case under the record that we have before you and therefore wrongful death cause of action could not be brought to justice cahill and his dissents in the appellate court decision talked about this and i submit to the court that the majority really did have a good answer to that question and they glossed over it and i would urge the court to look very carefully on the statutory issue that we have here with the record in this case as to what evidence there is of a predicate injury to the fetus prior to the abortion upon which a cause of action could have been brought on behalf of the fetus had the abortion not taken place had the death not occurred now the rules of construction are clear by this court this court has had numerous cases over the years interpret ing the wrongful death act we know it's  law we know the legislative language when clear has to be applied and we know that the scope of the remedy has to be strictly construed because it is a statutory remedy interrogation of common law cases that we cited in our briefs have consistently held that to deceive and has to have had an injury that occurred to the deceiving prior to the death in order for wrongful death cause of action to occur now if i can turn to the evidence in this case with respect to the injury to the fetus we know and it's unrebutted that baby doll was not injured in the vehicular accident between my client and the mother michelle williams that is  undisputed we also know from the case law and clothing verb versus motorola that simple exposure to radiation such as the x rays that michelle williams underwent during the course of her treatment before the abortion simple exposure to those justice freiman those cases really go more to the proximate cause issue but i'll be glad to talk about those now and i don't want to loose sight of the fact that the the statutory issue i'm arguing now is a separate distinct one than the proximate cause but i will be more than happy to talk about those two cases in in the roseberry case which was the one nine hundred ninety five georgia appellate court decision the mother had been diagnosed with liver cancer and she wanted to undergo treatment chemotherapy treatment she was twenty three weeks pregnant at the time that the abortion was undertaken and the cause of action was brought in the georgia court by the mother for wrongful death  the fetus which was voluntarily aborted a minimum medical malpractise action and there was an error in that case alleged against the doctors as to their failure to properly diagnose with standard of reasonable care the viability of the fetus but the bottom line in that case was that the court found that when the mother chose to voluntarily undergo an abortion in order for treatment of her own condition the liver cancer  that she could not charge a wrongful death cause of action against the doctors for the aborted fetus now surely versus bacon and this is very important and i'm not sure who we made it clear in the briefs and i wish we had done a better job surely versus bacon did not other than addict even address that question surely versus bacon is the one nine hundred eighty appellate court decision and in that case the real legal issue in the case apparently under georgia law at least at the time it was required to show what the term they use there is quickening which i believe is the equipe quibbling of viability in order for a cause of action to proceed with respect to the death of a fetus it was required for the plaintiff to demonstrate quickening and the court decided in that case that the jury had to decide based on the evidence that was available whether the quickening existence existed or in other words whether the fetus was viable and therefore the case was remanded to the trial court for trial on that issue an a that i've read so many of these cases from the various courts but thank you just remain you're right but that was the gist of that case it turned on a completely different legal issue surely vs bacon did where as rosemary turns on similar facts to what we have here which is the intervening cause on the proximate cause issue and if your honour's want me to stay on the at the proximate cause issue at this point i'll be glad to or oh well let me go back and finish off than the statutory question if i could if that's all right with the court  let's go back to the evidence of the injury alleged by the fetus prior to death ok it really comes from three alleged sources at least in the briefs that have been submitted by the plaintiff one is his william statements as to what the doctors said to her and we know that's not admissible for consideration it would never go to the jury and therefore this court can't consider it because it's hearsay and we have the jordan vs morsi case that we cited in our reply brief first district nine hundred seventy which says exactly on point and injured party cannot testify as to what doctors told him or her as to what the injuries were and thereby create evidence as to those injuries and if you go back to the majority's decision the appellate court there is progress in paragraphs of the court discussing what ms williams reciting in her deposition the doctors told her that evidence is not admissible and therefore the the appellate court should not have considered it and this court cannot consider it on the issue of injury to the fetus before that it's hearsay it's an unmissable second we have michelle williams his own views as to the risk or injury to her fetus that's not admissible she could not qualify to offer th t testimony that's medical evidence there is no qualification by her to give such testimony she's a lay person no medical background or training so that evidence is not admissible what are we left with we're left with the deposition testimony  keller and then the affidavit of dr adelman and i'm not going to go into great detail about we had our motion as to whether this court should consider that affidavit because it really wasn't submitted to the circuit court as part of summary judgment on count two it was submitted later on a completely different count but let's leave it in there you can read through the entire deposition of dr keller and the two of important paragraphs of the deposition of dr adelman and they don't talk about anything other than risk of future injury repeatedly and if i could give the court just the page numbers i don't have the records cite but i do have the page numbers of the transcript of dr keller which are in his deposition pages twenty seven twenty nine thirty eight fifty three and sixty two on all of those five separate occasions dr keller specifically said i cannot quantify the risk that this baby might have for future injuries because of the radiation exposure based on plaintiff injuries i'm wondering if we are down to primarily the radiation issue because i also know this is a question for plaintiffs as well that the majority of their brief deals with the radiation issue is well  you spent a minute or two talking about your pill bellecourt analyzed and i think as i said the bulk of their response to you was is basically in the radiation area is that is that where you see this case turning and this particular question chief justice thomas yes and here's the reason because we do have to focus on the fetus not on the mother we can't lose sight of the fact that this is a cause of action for wrongful death of the fetus michelle williams brought her own personal injury claims under counts one and count three those cases actually were resolved at the trial court level dismissed settled they're done and those have nothing to do with the cause of action before you now this is a i don't want to call it narrow but it's a specific cause of action here for wrongful death of the fetus and therefore the mother's injuries don't matter the mother's injuries cannot be injuries for which a cause of action could be brought by the estate of the fetus for damages what about what if the  if the accidents cause premature labor and obviously premature labor is something that in the normal course of events shouldn't happen especially to a ten week old fetus i think you could make a decent argument that the birthing of a fetus at that age is an injury to the fetus because normally the fetus is going to develop over the forty week term and be delivered approximately at a normal time all things being equal and by being i guess in a sense forcibly taken out of the mother through the course of injury from the accident yes the fetus in that situation i think an argument argument could be made itself has suffered an injury but of course we don't have that here and that's why that's an important distinction just a starman because we have unequivocal medical testimony by dr keller who's the only one who talks about it this fetus was not injured in the accident he knew of no reason why the fetus could not have been carried to term based upon the information he saw and so we have a complete lack of any evidentiary information of present injury to the fetus what you would you propose just as government is a different situation i think probably there is there an injury to the fetus i don't think this court needs to go there in making its decision because that would be a different case for a different day well i'm not necessarily sure that it's not the same kind of thing but but the difference i want to have you focus on here is again that question really goes to the mother and it doesn't focus on the fetus yes we took michelle williams as we found her yes she was injured in the car accident arguably by our negligence yes she sustained certain injuries which the record showed and yes her case is resolved because of that that's how you found her the fetus on the other hand we found the fetus ms williams being pregnant ten weeks along she's in an accident but the fetus really comes out of the accident in a sense no different than it went into it as a fetus as a viable pregnancy and dr keller tells is a big big distinction just as freeman and here's why dylan as the court knows establish the principle that where someone has suffered an injury presently in that case the catheter segment was left behind lodged in the heart injured the heart and there was medical testimony that because of that catheter being in the heart the following things might occur in the future and the doctors testified to what those various things were and gave a percentage likelihood this court found that in those circumstances future injury would be compensable but at the very critical point in that case is that there was a present injury and the plaintiff was not the ceased and let me just suggest you and we kind of go into this in a reply brief how can they deceive and have any risk of future injuries by definition death cuts off the possibility of future injury and in this case if you start from the proposition which i submit you must that there is no present injury to the fetus and then the death occurs through the abortion that completely eliminates the possibility of any future injury to that fetus and therefore it's completely distinguishable from dylan and i would urge this court not to extend dillon as the plaintiff want you to do to a wrongful death case where there is no present injury to the injured party because doing so is sort of allowing recovery of damages which in reality can never occur because the death has eliminated that possibility and that's why it's a big negligence in this case and then i think you were starting to say that even if we got past all of it any evidence concerning the effects of radiation were suspected now were they speculative in the sense that some of the testimony the hearsay testimony and otherwise should have never come in or they also speculative in this that the doctors were merely speculating as to what i'm going to go through each one of those was the radiation in this case a cause in fact from this accident yes of course it was ms williams would not have had the radio the x rays had she not had this accident but the more important part to get to the next step of your question chief justice is the issue of the speculative nature we only have two sources of testimony on the radiation future risk and again it is a future rests not a present injury and that's dr ann keller and dr edelman neither of them quantify that and under the foley case which we cite specifically on point under dylan that's not admissible there has to be evidence that is more you know might or could occur and dr keller expressly says on those five pages i tell you i cannot quantify the risk of future injury as to whether it exists which fully tells us makes it in unmissable and dr edelman's affidavit simply talks about there is a risk and he never quantifies it either therefore it doesn't admissibility test so at the end of the day the record here fails to establish a question of fact on the risk of future injury which would be sufficient under the wrongful death that for the cause of action to occur and although you acquiesce in the cause  be absolutely and that's a very critical question when you get to that second issue and proximate cause of the legal cause it's necessary under the legal tests and we do have an intervening actor and very important for this court to recognize that distinguishes the leak case from all the other decisions by this court young gorman marlowe thompson brisky abrams all of those had intervening acts just like we have here the abortion choice and an activity by ms williams and therefore we need to turn to the intervening act cases and we know that the standard established by this court under legal cause where there's an intervening act is whether that decision was something a reasonable person objective like well i believe there would be no remedy and again we're distinguishing the remedy that the mother had for own injuries is separate and apart not relevant here but justice freeman i want to make a very important point here which is your question presumes that there was an injury or damages suffered and that there should be a remedy for that and i go back to the part that there are really the in the record there is no evidence of injury or damages to the fetus before it was aborted and therefore there is no cause of action because there are no damages  and i hope you understand your question assumes that there would be damages and therefore there should be a remedy but in this record there were not other than the speculative future risk of injury which at the end of the day under the case law is not admissible i think it probably would i mean i'll give an example just this garment if somebody had come in and said consistent with what we saw in dillon and you know the problem is it's a wrongful death case if somebody had come in and said this fetus suffered the following injuries as a result of the accident or the following present injuries before it was aborted you would then have the prerequisite element of a wrongful death case which is or could have been a cause of action brought prior to death but death interceded had there been such evidence but there is none and i don't want to lose sight of the fact which i argued before that dylan should not be extended under a wrongful death case to allow evidence of just future risk of injuries in other words if there had been evidence that this fetus had a forty percent chance of suffering injuries in the future from the radiation but of course those injuries had not occurred to death and there was no other injury at the time  may please the court will this is not a case about a voluntary terminations mr manchester's negligence made mrs williams have to pick between having an abortion or risking severe and significant permanent disabling injuries and giving birth to a baby with serious effects the severity and significance of the injuries are evident by where the term a nation was allowed at a religious manchester should not be able to insulate himself from liability because miss williams picked one of three horrific objectionable options that were forced upon her because of his negligence if you break down this case with counsel appears to be doing intermingling co mingling the wrongful death act and the proximate cause i think procket proximate causes is clearly found here is it reasonably foreseeable that a pregnant woman who gets severely injured may have to terminate a pregnancy because of risks to her significant risk to her or risk to the baby from a foreseeable standpoint is  so far removed remote was mr manchester's negligence a substantial factor in causing the x rays to be given in this williams as a result of these severe injuries and as a result of the termination i believe so it is our position that any of those options that were the objectionable options no one would want to be in that situation to have to pick among for those three and not that's not a voluntary choice and any consequences that would stem from any of those options that were forced upon or as a result of mr manchester's negligence that should be accountability and on mr manchester make doesn't it go to the mom's injuries this is a wrongful death and i think for proximate cause analysis you do look to not only to the mother's injuries as well because it establishes the reasonableness of the foreseeability of the act of the terminations so i'm suggesting to you that whether the baby the fetus was injured or not in this matter for only proximate cause analysis it need not matter because it is still recently foreseeable that a mother who is pregnant would terminate her pregnancy simple simply because of significant risk to herself i'm suggesting to this court that for proximate cause analysis now in answer to your more specific question with the wrongful death act yes i believe we do have to have if i think it's unclear whether an injury needs to be occurred had to have heard in the wrongful death act before assuming that this court determines that there must be an injury to the fetus to pursue a wrongful death i believe there is known that this could have happened and that's all foreseeable but if the starting point is whether or not there is an injury to the fetus as just as government is saying from the statutory framework doesn't that change everything well i think in the sense that if this court determines that under the wrongful death you needed injury before the death and had the fetus men alive there would have been a she he or she could have maintained of cause of action then yes and i believe there is that why and i don't want to put words in your mouth but i i did with and going to the radiation aspect of the case which i think is your point that there was an injury to the fetus through the radiation i don't i we agree with judge that just as gordon's decision and i think in justice gordon's decision implicit in his decision is that there was an injury to the baby but i believe here again with the stick a standard being is there some evidence as opposed to as if we had a trial there is evidence that the baby was injured this case is being argued as if it was a given that the abortion itself could not be the injury that is it is an accurate and accurate yes and that's why i qualified my statement to madam justice and what was foreseeable was the abortion the abortion involves a process which first dangers and then kills the baby there's no question about that is that correct yes if they act was foreseeable and as a a matter of law cause and lock you will cause in fact has been conceded there was the connection because there was no linkage between the acts causing laws whether or not whether or not it was foreseeable and thus approximately cause if if the horse in itself was foreseeable and you tell me why that wasn't the injury what i believe that that could be if this court determines under the wrongful death that that an injury need precede the death that that would be sufficient for an injury but i would say in another question sharp does the injury that we've been talking about up to this point have to be linked to the death or can the injury be totally independent  and satisfy that the requirement of the act i think it depends on the circumstances related i think the injury if one is required has to be ruled proximately related to the negligence not negligent  council cited my posing counsel cited the case of roseberry there the term a nation whether it be just the terminations at the death or the injury preceding the termination in that the baby's first injured during an abortion in that case the reason for the terminations was unrelated to any negligence here it is causally related directly related to mr manchester's negligence but i want to go back that if that answers your question i would like to proceed with where else we may see an injury under the facts and again is there sufficient facts in dr calibers deposition he testified there is no safe rush holt for radiation to a fetus meaning that once she's radiated there is an increased risk of problems with the radiation related to the radiation yes i can say that the baby scuse me c three forty one yes i can say that the baby certainly would have suffered but the baby certainly was at increased risk of having problems related to its radiation exposure is and it's not as i can't i can't say that the baby would have suffered you read that again s yes i can say that the baby certainly would have suffered but the baby certainly was at increased risk of having problems relating to its radiation exposure and in answer to your question the only lack of certainty is as to whether or not the event that is the birth defects was certain to occur and under this court's analysis in dillon the mere fact that there is sufficient evidence of an increased risk of harm as this court stated that that the increased risk is itself a present injury you can apply the dylan case to a wrongful death act we are using the dillon case to satisfy the injury element and if you look at dr kelly hurst further testimony in this case when he was talking about that radiation of c three sixteen that radiation of exposure of specks cellier the development and he answered so certain organs that are developing may develop incorrectly certain organs that have developed may grow and mature in correctly and then there is the increased risk with radiation exposure of malignancies childhood and adulthood malignancies which means under increased risk of harm which i submit to you w not die and was born he or she would have been able to maintain a cause of action for increased risk of harm throughout his or her life is there any we would have to expand dylan nearer nails i don't think so the only injury so therefore under the wrongful death fact we have satisfied that element of injury is any increased risk sufficient i think under the dillon case for purposes of of  the increased risk of harm as long as you have above zero percent yes because you discussed the instructions that would be necessary and counsel brought out if the fetus that survived the fetus brought independent action that increases yes that is my point based on the testimony of the increased risk of harm was not just to be born with serious birth defects but to be born with defects and malignancies that go throughout her life his or her life such as childhood maladies and and adulthood maladies such as leukemia as dr keller testified and i think that is sufficient evidence of an injury an increased risk of harm and you are simply using that if this court determines an injury is necessary and if this court determines that the abortion is not a proceeding injury you have the risk of harm  that did not stand for the proposition that there is no action for radiation exposure in that case the increase of risk was an increased risk of exposure not an increased risk of harm as a result of documented exposure in that case there was it was a pleading stage and they did not even plead that the individual is using a complete phones in a completely different type of radiation that they were even exposed to it was merely an increased risk of exposure here it is undisputed that the baby was bombarded with pelvic x rays and a cat scan in the emergency room so there's no question that radiation exposure existed and the increased risk of harm is from that radiation of exposure and isn't dylan is satisfies the injury would also suggest to the court so of this court found that the  visit actual injury like a physical injury from the auto accident yes like that yes but that i don't believe is the proximate cause analysis of what the rock or what an injuries considered under that type of analysis with all respect to this court that under then dylan would not apply dylan has in this court has in dillon recognized that a risk of harm is a present injury i would also suggest to this court that because of the intimate and special relationship between a mother and a fetus that an injury to the mother when she is severely injured may be considered an injury to the fetus and there and there was a present injury until since or until there was a present  i believe the injury was the radiation exposure or he left the catheter inside or well dead that a catheter tip was left by the heart here we have the radiation exposure as being the foreign object within the body i don't see a distinction between the two there was no testimony that there was actually a physical injury other than a foreign body in it in her by her heart here we have the foreign injury to the fetus yes is there any case loss of i think no not on the specific point that i made but under runs well you do discuss and the cases following it you do discuss the intimate and special relationship that lives with a mother and a fetus and i am suggesting to this court that an injury to the mother when it for all practical purposes she is the shell the house the life support system of the  us that if she is injured to such severity as is the case here that it may be medically necessary in the sense that tate a terminations that's going to be detrimental to the fetus and i believe under that unique situation you could consider a serious injury that necessitates a foreseeable terminations should be considered an injury to a fetus that is in the first trimester is not viable outside that protect with regards to public that would be different if the child she was six months pregnant i think it would depend on the circumstances because the question becomes then was she able to be delivered at that time without radiation exposure without i mean in this case if you recall that the other two options that counts my posing council which is that this manchester chose was to either have immediate term immediate surgery with the baby which would result in significantly more radiation exposure or wait three months there is no testimony that if you read the depositions and read the testimony shift three options one of them was not to carry the the fetus to term it was to six months an additional three months and dr calendar testified that in the record the surgeon that would have done the purpose of the operation said not only will there be additional radiation exposure to the baby during this delayed surgery but it may even be more substantial additional radiation exposure because of because it now becomes a more complicated surgery and that ties in the increased risk of harm to the mother in delaying because broken bones is the bones may have to be revoking and there was a question as to whether she could even carry it for additional three three months does that answer question if i may proceed we proceed you know just as a government an interesting question i don't know it was only answered earlier it seems like the doctors said you know we do a reasonable degree of certainty we can't say there's going to be an injury to  but there's an increased risk of injury she asked the question is does any increased risk and i believe what you said is anything above zero percent right yes so that the wrongful death act itself as if death of not ensued have untied the party injured to maintain an action and recover damages so we're we're left with testimony of well i don't know exactly what i mean because he didn't say what percentage but it could be so de this court in dillon stated and referred to that even if it was only one or two percent or five percent or ten percent yes let me give you an example the i would assume the same response and not a doctor but i would assume the same rays when we go to the dentist is that the type of injury that we're talking about we should be talking about here in light of the wrongful death is especially when those same doctors say they can't to a reasonable degree of medical certainly say there will be an it's just an increased chance i think there's a distinction between x rays when you're having your teeth worked on and a cat scan which is a higher form of radiation and pelvic x rays went into an because that i think that goes to my point my point is if she is in an accident and her head hits the steering wheel and she has some broken teeth and they say that we have to x ray those teeth and you ask the same question of those doctors any x so the doctors in that case they she had so a couple of broken teeth first of all first of all i would point out that at the summary judgment stage quantification was not even an issue quantification was not brought up as something lacking it seemed based on the briefs and i invite this court to review them is that the the opposing counsel and then the trial judge judge duncan bryce seem to be solely focused on the life versus proctor case and that somehow determination was the actual cause of the death and nothing else mattered we argued increased risk of harm at that point now i bring this up mr wolf only because if you look at the dylan case i mean we can argue whether in that the catheter situation migrated to the article that is the physical injury and you say that the radiation itself is but if we look at the future of hermas an element of damages i think until after there's already been an assessment there is an actual injury in this case we're back to the point that we would have to know radiation is the actual injury and you even said that you said that in comparison to dylan that radiation is the actual injury and the actual injury is that as the testimony of dr keller and i could read other transcripts once those were once the baby is a radiated she or he is at increased risk of all these birth defects i believe that satisfies an increased risk of harm which this court in dillon said satisfies the fact that that is a present injury again we must look at the context of where this terminations was occurred if this was such this risk either the mother or to the fetus this hospital would have never allowed the terminations to proceed and that is the evidence that they only determined a terminations was acceptable because they know not allow elective terminations but i would suggest first of all we do have again quantification was not an in issue the standard here is should we be allowed to do that is there a question of fact i think the mere testimony of d keller and dr adelman that there was an increased risk of harm to this fetus as a result of the radiation exposure all put into into being as a result of the negligence of mr manchester satisfies that injury requirement and if this fetus was born even if this fetus was born without a serious birth defect at birth she or he would have a cause of action with an increased risk of harm for the childhood and adult sure regarding public policy i was not allowed to thank you for your counsel makes an argument that somehow this court by ruling against miss williams by not really against mr williams will somehow give incentive to create abortions i think that is absurd i think it's an affront to women and they have not provided anybody this court with any rules studies or statistics i think we have established either through the injury to the mother or through the injury to the fetus through this increased risk of harm we meet any injury element of the wrongful death and the element to maintain a cause of action thank you your hon thank you again your honour's we have a very important concession here and that's very important concession which i'm not surprised at is that the president during which the wrongful death act requires is nothing other than the risk of future injury that's very important because we now have the concession and i think we had it in the record before there is nothing else other than a risk of future injury and we know from the lewis vs let industries case which is the first district two thousand and three that cited that a risk of future injuries a presidential and noted that this court said essentially in dillon where there is a present injury and also a risk of future injuries we're going to allow recovery for that risk of future injuries where it sufficiently proven up now the plaintiff has basically said i have no presidential and because of that fact lewis tells us and dillon tells us there is no cause of action here under the wrongful death act let's turn to the quantification of the risk of future injuries foley versus fletcher which we cited to a first district case also playing dylan says if there's no quite sophistication of the risk it's not admissible and it can't prove up the case and we have here affidavit two paragraphs only talk about the risk he gives absolutely zero information about the qualification so we must throw out edelman's affidavit as support for the standard of proof that a plaintiff must meet under dylan and foley then we turn to doctor edelman's testimony and i've read you the five pages where he expressed lee states i cannot quantify the risk five different times at five different points in a deposition he said i cannot quantify the risk at one point he expressed he said and i don't remember exactly the percentages but i'll just use example it's in the transcript i can't say whether it's one percent ninety percent five percent whatever i cannot quantify the risk now those are the only two sources of evidence is  us that that's not enough and that was exactly on point if you know you all look at foley foley specifically says where the doctors say there is a risk but they do not quantify it that doesn't meet the standard of admissibility as being reasonably certain so to answer your question justice kilbride i think the fact that he didn't say zero doesn't matter because saying risk but not quantifying it doesn't meet the standard of admissibility what about the question that summary judgment was the sort or you i would suggest to you that it wasn't argued per se like that but i didn't suggest it doesn't have to be because we all know that when a summary judgment motion is brought and the defendant who's moving for summary judgment in this case makes a prima fascia case that they're entitled to judgment as a matter of law the burden does shift to the plaintiff to come forward some evidence that would be admissible to create a question of fact so it was you know the law is the law and they have to state a cause of action they the plaintiff for wrongful death the element of the cause of action is a present injury they're relying upon this risk of future injury with radiation as their present injury fairly and dylan tell us it has to be quantified i think it follows my logic that goes along that the burden was on them to do so to avoid entry of summary judgment and they did it and they didn't and it's clear that there is no evidence of the quantification there let me just turn quickly to the proximate cause analysis you heard mr wolf talk about a substantial factor that's the cause in fact part of the component and we can't lose sight of the fact that the analysis is different especially when we have an intervening act or the abortion the bad driver crane operator etc and the proximate cause analysis and legal cause the the subsequent intervening act here the abortion has to a reasonable person or on other words objective late be seen as  likely result under the circumstances that's the test and the key word there one of the key phrases is the likely result and i submit to this court that where you have an uninsured fetus who the medical witnesses say could be carried to term whose mother is injured in an automobile accident objectively it is not a likely result that that mother is going to elect an abortion to terminate that life from the auto accident and you know we go back to everything we all have back in law school by proximate cause and we know the cause and effect this simply but for but legal causes as a very learned professor that i had back in law school said how far is the rubber band going to stretch before it snaps and that's a policy decision that this court needs to make and the policy decision and proximate cause in this case is do we want to say that a voluntary abortion of an injured fetus is a likely result of an auto be an automobile accident where the mother is injured and i submit that is a matter of law it's not and that's a policy decision i mean let's we can't disregard the fact as i know this court knows that proximate cause is really kind of an esoteric analysis it's not easily quantifiable it's a judgment call that the court needs to make when does the rubber band snap when is legal cause no longer there and i submit to this court that up in a voluntary abortion of an uninsured fetus is not a likely result of an automobile accident like this therefore there is not proximate cause we do have the condition versus cause or the superseding intervening act situation that all of those prior cases that this court has dealt with have talked about unless this court has any other questions oh one other thing i want to say and i apologize there was there was something brought up about mr wolf about the mother's injuries equal an injury to the fetus there are two separate people and we know as a matter of statutory law in illinois that a fetus is recognized as an independent and separate person a separate entity so the injuries to the mother's are irrelevant to the wrongful death cause of action there must be an injury to the deceit which in this case is the fetus which could have been brought had death not ensued please don't lose sight of the fact that the focus for the wrongful death argument has got to be on the injury to the fetus and not the mother just this is unless you have any other question i thank you for your time