person glorious the mom and christian is the son of the disabled person is as we know is a medical malpractise case treatment begins back in two thousand and seven when there's a diagnosis of a small to talk a little bit about the damages it's not going to be exhaustive yet there's a reason i wouldn't spend much time there that's correct there is one reason i'm going to talk about it though because i want to mention the cases of len it  fears problems such as blurred vision in isaan a depression increased risk for diseases she requires rehabilitative medical care twenty four hours a day the reason i mention the preserved i think you're asking for a lot especially in a case where you come to us and say that the trial court's decision to deny your motion for a mistrial should be reviewed by us and  as opposed to abuse of discretion really get that from i get that from the campbell case and the campbell case there are a couple of excerpts from the campbell case right now to the extent we can address these pacific's and this case campbell the campbell illinois supreme court case held that defendant doctors and i then the juror basically any problem was resolved and she was of ok upon reaching the counsel table there was an immediate motion for mistrial in that case was there the latter part of my opening statement everybody my my band it was everybody was in shock the judge at that point time the trial judge said that the defense counsel should not be in the court in the jury pool rather the the belief is not what we're talking about we're just what we're trying to get to is if you read the record again you're making your opposing argument judge hargus as we need to think of a recess and that's one of the jurors sort of seems to be listening about and there's a break taken and during that break all of these things  and the decision was made you want to stay if you want to go because she's had these kind of things before she decides to go and an alternate jurors put in place and the next thing that's in the record is we go from we need to take a break to use restarting your closing argument there's not a syllable there's not a word there's not a sentence or paragraph in which you attempt in any way shape or form to secure the record that this court of review could look  when the jury's going to liberating about an hour or so that even an hour and move from this trial rather dramatic fashion seems a little late my our position here is that there was  trial motion what happens is it's a sudden event where the defense counsel and dr in a related nurse come diagonally across in front of the jury as the defense counsel even admitted that she had run say whatever you wanted to say and to get the conversation started to make sure that the record was clear and could put the court in a position where the court would best be able to make a ruling on a motion for mistrial but you never a question yes what's the time lapse between the german having said and the jury thing going out to begin their deliberations how much time yes the jirga sick and as the defense counsel estimated the time over arrival of the knew how much time yes we're talking forty five minutes an hour at least twenty five minutes perhaps only twenty five wells the defense counsel estimated the arrival time at twenty five minutes the bailiff talking about that you're getting sick and closing arguments and dean the jury not in their deliberations well i don't believe the jury began deliberations the jury going into the jury room  also but how are you going to persuade us there are no reasonable judge in his or her right mind would have denied the motion for mistrial which is essentially colloquially put essentially with the abuse of discretion standard would require you to convince us of give it your best shot well i think i believe this was an extraordinary situation after practice and for forty years i had never seen anything like it the campbell case was the only said in the argument of the post trial motion is then by you saying she doesn't belong here or she should get out of there if there's not an objection what is right i believe and also also the judge objection is the work of jascha news you may be wondering her closing argument one i looked in the you know of the word search of the end of the transcript for the term objection i think you were like twenty two of them twenty one of them were your colleagues and one was yours but nothing related to the possibility of a mistrial i believe that the word objection doesn't have to be used i believe an objection is a statement of opposition this is a statement that you're talking about th statement in another self was not on the record again that was during that period of time from where the judge says it will take a recess and then later where you resume your argument when you made the statement that she your colleague rigo should be in there that was that on the record you never secured it on the record you didn't tie it up into any complaint or problem then you had with the proceedings and didn't bring it to the attention of the court that this is something that would be dealt with hearing i hear motion it was brought a half hour before the jury comes back with a not guilty he very clearly said that he didn't feel that there was any real emotion no drama and he felt the jurors were taking it you know you know in a matter of fact way there was nobody crying or no signs that they were upset and the woman herself you know came to him as something that would happen to her before so there's nothing that we can lean out coming from the court there would be consistent with this having the type of drama or emotion that you're trying to suggest that there i think there were two parts to this year on the st part is that when a party assist the sick juror they're going to be put in a favorable light the nd part is that when the court directs me to do something to get counsel out of the my understanding is that i could be here before you based upon the unusual events without even having have had filed the motion for mistrial which was which was presented to the court before the jury began deliberating the following morning when they came in and i don't think your colleagues who agree with that statement i don't see a case that w ok i just believe that it was an extraordinary we have a disabled person here i think that the objective is to try to obtain a fair trial for lot gina i don't think that was had in this city i just look at it as a person who's tried these cases for nearly thirty years when you went back in and gave your closing argument after fifty million dollars you had all the caffeine is that a confident trial lawyer of your experience would have to think you were going to from six o'clock on thursday night until eight thirty nine o'clock the following morning should determine the outcome of this case he told the trial judge that you were making a motion that he has to your clients i spoke to their client and we discussed it in my opinion was that it was it was an extraordinary event that i had never seen it is your opinion changed fast that they went into the room the judge saying she shouldn't be in there the judge ordering me to get her out of the room in front of the jury in the jury stayed in the room the whole time until unlike campbell and then i'm telling her to get out she's assisting she comes out of the role announces to the court that the sick scherzo ok appearing that she had  all she can faint or have other type symptoms which she she told us about i just think if if all of these concerns were brought up contemporaneously right at that moment of the jury sitting in the b and bring up all of these things and say judge in light of all of these in my opinion rather dramatic things that occurred i think that we need another jury we need to retry this case you'd be in a better position of saying that the judge syria just i don't think so possible i don't think so ok ok anything else well my nd point was that the actual interaction between coun i constituted an x party interaction hand that in that situation where there's some you know action brainiest type of event outside the influenced by what happened in the illinois supreme court said that they did the ice favorable now where they were very familiar with that case and you're not suggesting that that's why you didn't make that request or you know so and what she did i'm not talking about intentions i'm talking about the effect on the jury that it was probably in measurable if i was on the jury don't have to prove that the intentions counsel were sure and way it's the effect of the unusual occurrence that mandates a new trial drew a distinction between cases where there is an affirmative misconduct by the nonmoving party on a subject that is directly related to to the case of to the issues in the case to the substantive issues in the case where the court or waiver to an extent so i don't believe that those cases have any application here and i you know i think the court raises many of the same of any objection means two things especially with such an experience counsel which is either that there should be a conclusion of waiver or that there was no chaos and no prejudice just says judge court reporter during the proceedings the absence of any sort of for gear to develop up in the absence then after the notice of appeal is filed to seek bystanders report where not only missing  judge and ms fisher if her she was feeling better and all of the defense all of the attorneys who went into the room there's no court reporter there and they had time everyone agreed everyone agreed that the case could go forward either with ms fisher back on the jury or she could go home and so you know again this this really underscores the the absence any count of what necessity of a record and the bystanders affidavit is are the bystanders report is the appropriate way of handling the situation when there is no  record during the trial by a court reporter and you know this is not a here's all of my effort davis which is fine to provide at the time of a post from motion   we're debating within the affidavits we should be doing that what should be before this court is a bystander's report this certified by the trial judge and the trial judge however did give us the trial  vacation in essence resolution of many of those issues when the trial judge me a detailed record not only of the time that the court heard the motion for mistrial but also at the time of the post absolutely is your honor and i and i i believe that campbell does not tell us otherwise campbell and fair relied on a case set cited in my brief and it says that  the question of brother there is an undue influence on the jury is a determination primarily for the trial judge i think deaths that's just about the exact language in their case so supreme court had in mind was not some sort of a mandatory rule they at you know and i don't even know how they rule would be stated quite frankly the way counsel plaintiffs i should say has stated their rule is that if a physician who is a defendant gives medical care to a juror then there necessarily has to be a new trial and i believe that there's a case but in any event the factual premise is wrong rigo completes the closing argument rebuttal instruction and your honor he asked about how much time elapsed i'm going to i would think at least it would have to be an hour and a hardiman didn't want to do that and the judge said ok well let's just let him get settled pick the foreman and you know we'll let them talk a little while and then we'll excuse them and that's what happened but yes they started they sit down in the room together and started talking and in it's not even just rape waiver this is active participation and this is in the decus ok so i think i think it's pretty clear that when when when counsel us and said when they're in their  the defense didn't say anything about what quote unquote communications there were in the jury room and that's not true when ms fischer wasn't feeling well because in both ms they both said i did not have any communications with the other jurors so it i think to dispense with an issue but if if there were to be any question about it then here's how it's handled is he handled by a board here which is what the court did in the campbell case which i think the court is is fairly clear is entirely distinguishable in terms of the way that they had a situation hand happened with the hearing the jerk and you know she passes out head is rolling back according to the description by the on the supreme court and you know what winds up dropped on the table is taken away by paramedics and ten so there's a lot different there as you know i you know i don't i don't know what more there is to say about this i think you know that the case was very clear the standards of you subscription judge fargo did not abuse its his question and any of the rulings and i don't know if the court has questions about which the you know the plaintiffs main argument or any of the other issues that are in the experts hugged the victim in that case and there was no record of that happening there was no transcript there was no transcript of the post trial motion it was only an and twenty one dollars allow allows us to file affidavits and that become part of the record which we did the worst case versus we're not day the campbell core is not the actual medical treatment it's about quote the attempt i  of off trying to offer assistance here the doctor reaches the jury room and makes a medical assessment not to proceed as an observation and an assessment that that's part of the essence of medical treatment observation an assessment and whether to proceed any further with intervention that happened here but again campbell's about factual situation where there was a discussion before the deliberations of the jury but power itself says that the two bites at the apple are two verdicts that you want to watch or avoid even power states that in the other cases a consistent with that again can go you know we don't have to prove prejudice or intentions because we ended when did i leave five hundred and forty five dollars so if that's relevant this is what the judge determined and that's consistent with my recollection and that there were no deliberations in the morning because i presented the motion so  orally i can i believe that the all of the points that i've made on appeal alone constitute reversible error with the possible of exception of the comment during closing argument  in violation of motion lemony i think that should be probably taken in context with what happened right before then that is the end usual events keeping in mind that the theory of the case was untimely and usual occurrence was timely response to a medical condition it was life it was a live episode in front of the jury thank you ok thank you for the briefing arguments are all very well done we'll take a gander advisement and i should note that our colleague here is fully engaged in this case and was prepared to participate but there was a