representative we will refer to the baby is d j and his father as for mara this is a medical negligence case for catastrophic injuries suffered by d j shortly after birth as a result of group b infection which was not diagnosed in time at trial the only ring defendant was a morial medical center this appeal was in the judgment in favor of the hospital to the denial point of both from motion issues on plaintiff's motions for judgment l b or in the alternative for a new trial second was the first strike improperly allowed to testify as to the hospital supposed policy or procedure for routing pair of phone calls to maternity nurses and to testify hypothetically to what she would have said if she hypothetically had been the nurse who answered the telephone call i'd like to first discuss the testimonial errors the sills were discharged from the hospital at twelve forty pm on april seventh two thousand and seven only thirty five hours after deejays birth at five thirteen pm that same tamara called m m c and spoke to someone apparently a nurse in the maternity section the call lasted eight to nine minutes the fact that the call is undisputed he did not get the name of the nurse and he did not recognize her voice if it had been one of the nurses who had attended the civils he would have recognized the voice because he knew those nurses on a first name basis including a nurse  stray neither nurse a strike or any of the other nurses who might have been on duty at that time remember the call the hospital did not document the call the hospital did not record the call the evidence direct them circumstantial is overwhelming that during the call of her marital the nurse the d j was not eating his feeding problems had continued he was throwing up whatever he took and if he had certain other symptoms such as a fever and jaundice because of your hours could not have been for any other purpose the only direct evidence as to what the nurse said  coherent unimpeached i'm contradicted testimony in response to his concerns about d j failure to eat the nurse told to keep trying and don't give up as to the fever she said loosen his blankets to the john does she said that's not uncommon in new barmes when it's light just put him in the window where you can get some sunlight the nurse did not tell him to call pj's doctor she did not tell him to come to the emergency room instructions which they would immediately have follow she told him if things don't get better or if they get worse give us a call back to counter this testimony over objection defendant present of the testimony of nurse jean extract as to what the hospital's and her procedure was for the routing apparent cause and what she would have said hypothetically if she had received the call the purpose of course of that testimony show that even though she didn't remember it the call in fact had been routed to her and that was defend its whole theory of this case it was a statement that was made in the opening statement it was the statements made in closing argument despite the fact that there was no evidence of that the chief had received the call except for the fact testified to a procedure for routing parent calls well more than from the testimony of the other nurses who were on she testified that there was a procedure to route the call under certain circumstances to the discharge nurse and she was that this charge nurse but she had no memory of having received that call and she was barred by the court specifically from testifying correctly barred from testifying that that she was probably or likely or might have been the person who received the call so her testimony the only way to link recall to her was this hypothetical procedure that she said sometimes she described it as her personal procedure because she was barred from she was not an expert witness she was not as an expert witness and so sometimes she described it as her procedure but it would have had to have been a hospital procedure but there was no foundation laid for their procedure she simply said this is testify to guess like lation or conjecture to what might have happened i'm particularly she's like saying well i don't remember this accident but here's what i would have done if i did remember it well it's not that it's more than that that's the question of evidence that would permit you to testify to a standard procedure or policy of to prove the conduct of an employee in a particular occasion that that's improper but i cases we say graham and this graham's evidence in order to qualify under that it has to be a bitch will semi automatic extremely or invariably regular it has to be automated it has to be the kind of thing that can be automated ministerial acts that connect cases mailing filing sending notice and the like in this case or strikes phone testimony proves that her procedure does not qualify under that rule the routing the person who received the call and by the way we don't know if that person even knew the procedure we don't know because it's easter weekend it's saturday afternoon so late afternoon easter weekend who answered the phone we have no idea we don't know if that person was in the chain of that procedure to begin with but apart from that it has to be an automated or kind of ministerial thing in that of what she testified and pages forty four forty five in our brief we reference the appendix in which your actual testimony you can read her actual testimony it would require professional decisions based on the information you have to ask the parent questions and then the person receiving the call has to decide is this an emergency situation is this a feeding situation is this something else that can be handled by any nerves so depending on what they learn from the parent which requires some professional judgment right is an emergent situation then the they decide whether that call goes to nurse x or no fly or or so  on that is a complex decision tree and that is requiring many discretionary decisions and that's as fired would do you can get from a habitual semi automatic procedure and that's what's phone even knew the alleged procedure and now their purpose of course in defense purpose in offering this was to call into question to mars testimony as to the content of the telephone call because if it was routed  to nurse this right which is pure speculation to begin with if it was routed to her bed and she was permitted to testify what she would have said in that in that  court on that record simply said i'm going to let her testify to the procedure but i'm not going to let her testify that she was the person who received the call which of course is a little bit inconsistent i think but nevertheless the court didn't really give any background or basis in law for that decision we had filed a motion in limine eat the bar testimony that was the initial basis that it came up a couple of times during the trial we've documented all of that in our brief and then finally the judge ruled again over objection that she could testify to the procedure if you can say this is the practice occurred was with regard to the failure of the nurses to respond appropriately whichever nurse received this call to the call exactly exactly not only was the defense offering any testimony that the standard of care expert at trial the hospital declined to call someone who they had designated as an expert because they said we  given the history and given to the symptoms that were described in that telephone call it was of it was a violation of professional standards to not tell the parents to call the pediatrician or bring the child to the emergency room there was no dispute about that standard here and in fact they conceded it in fact your honors and in the closing argument defense counsel s in effect all the elements of the case were either proved beyond dispute or conceded duty there was there was no question about duty a standard of care but no standard deposition or was it the testimony gave a trial by them talk to them but they weren't they were consistent they were consistent in the important respects they couldn't find that to be impeaching because you can't impeach on collateral matter as to the main issues you know whether there was a feeding problem and that of course that was well documented in the hospital records he had had feeding problems from the time he was testifying that that the feeding problems had continued and he wouldn't take we tried a bottle he wouldn't take it he threw up that's what he testified drug also had symptoms and john  deposition he said we told him he was john just we were concerned about him not eating we noticed periodic ranting and breathing and then he ends the hinze his testimony about when they were question about that he said what else would suggest that there may have been other things that he would have talked about if they had followed up and asked about it but apart from that the testimony was that there was john does there's consistent between the now there's no argument here that the jury was improperly instructed and this trial came down to a question of fact what transpired on that fateful day from seven phone call between the parents and the nurses the jury heard evidence for almost two weeks some evidence a trial they were in the plaintiff some they were the defendant and then the jury issued a unanimous verdict for the defense even if the jury concluded that it did not know things that on the call was quote my baby is not the standard of care should have been referred to the parents to be easy for the pediatrician to say what the are the emergency room or the emergency department or the pediatrician ok but here the jury could have easily concluded that the child was eating on april seventh and that there was not a major feeding issue at the time of the call the feeding issues were a major focus of the contradicted his deposition testimony where he never reported bonding during the call at trial or soon at deposition the father testified there was no bottle feeding whatsoever prior to the april seventh call at trial he gave contradictory testimony and meaning that there was some successful bottle feeding before the april seventh call that's in the record on appeal volume fifteen page one eighty similarly i'm directing them he testified that once d j had an emphasis at the hospital that morning of april seventh before discharge in every again prior discharge but on cross examination when he was confronted with medical records he conceded that that's right i forgot there were no difficulties parroted disturbed with breastfeeding now in a case relating to feeding vomiting john this and other complaints that are purportedly undeniable signs of a serious infection these are not minor contradiction and it was was reasonable for the jury to infer on the basis of those contradictions that he didn't have a good memory or they didn't know what happened on the call or or that he just was wrong so what was the theory you argued to the jury is to the call h said we argued in closing that the jury believed their version of events sure we quote screwed up but what we said actually happened on the call was run of the mill lactation and base it was under skewed that the parents call the lactation line first before they called any other and the scenario we argued in closing was this mom's home she's it's her first baby she's a first time parent she's just been discharged today she's nervous or alone her parents are here he was just circumcised earlier today i'm having a little bit of trouble getting him to feed what should i do and as gene a straight testify bills kind of conversations on  happen all the time in fact there's such a demand for that kind of non medical practical advice on patient that hospitals offer lactation lines to the public and that was our argument  that there wasn't a serious feeding issue going on here that they needed some help new parents how do i how do i use and if you will how do i position him properly we need some reassurance  problem with reading but he omitted this from his trial testimony and that was brought out on cross to it doesn't matter why his testimony changed but it changed in the jury no kinds of feeding problems were undeniably serious warning signs of a lethal infection those kinds of contradictions matter and the thoughts are it's more of a recession than a contradiction for instance and what's the significance offer it affirmatively at trial it was brought out cross but there was a clear contradiction on issues such as was this child successfully bottle before that you call or was it was he nurses just said what there we did of course have testimony at trial from our own world renowned infectious pediatric infectious disease expert dr perper from the university of iowa who opine that these symptoms were not at all related to the infection and in fact they could not possibly have his testimony was that a g p s an early onset g b s strap infection of the sort that this young child has is not the type of infection that meanders over the course of twenty four or forty eight hours rather it's an extremely aggressive infection that can cause an infant to crash in less than six point five hours sometimes even two hours so he said if the complaints that were that were articulated on april sixth or seven were being driven by an act of infection that child would have fallen apart crashed in short order and he would have died it wouldn't have been you wouldn't that this type of i don't think it would have your honor i think you're right it least that's your theory so here's my next question where is your expert who would have so sent that is you should expect tomorrow to testify at trial as he did was  so if the jury believe this testimony a trial of a hospital screwed up the hospital should be liable then there's the standard of care has been violent right well so the question is i because he couldn't give a consistent story the mother testified she couldn't give a consistent story about whether his eyes were yellow or not then we had to break the call so it's just the bar true but she was testifying about symptoms that she saw at the time of the call and she wasn't consistent either in addition to mars testimony was further further made on the certain because of the emergency department records from examination that only the two of them could have provided any history to the doctors and the nurses in the emergency department and what the store will know on that emergency department would say they say d j had never similar very close one and her response was even if he only said my baby stopped you don't want ben referred to the emergency department pediatrician but the fact remains that where there's a substantial actual dispute disclosed by the evidence at trial and there is an assessment to be made of the credibility of the way that the constitutional right to a jury determin deposition shows that the defendants grasping at straws here that that is clearly a red herring there is no fundamental dispute then consistency you have to show a contradiction of some kind or a material omission in order for there to be an inconsistency and we have documented carefully in our brief the deposition testimony and the tron testimony in that deposition he said we told him he was jaundiced we were concerned about him not eating and also mentioned the ranting and and he also testified at trial to john this and continuing eating problems there's no inconsistency there so there was nothing for them to build  on in making an argument about trying to show that his trial testimony should be disbelieved because it is consistent now that they did try to bring up another inconsistency where there was a  after after the brought him on sunday and they called the same goes to eleanor's and and she said you get him to the hospital right away they took him to memorial they looked at briefly there they said you better go to st john's because we have better facilities there to treat this they went to st john's during all of that time there were multiple record multiple his  parents over dr robert was statements were multiple recorded and all of those were consistent with his trial testimony as to what he said in the phone call he repeated those same things now there was one which was a little different but we don't know anything about how that was recorded whereas in these others would be documented in our brief we have shown that doctors recorded those particular communications in which even he stated the same symptoms that he had stated that he testified that he stated in the phone call now we know that you know under the rules of they're presumed to be reliable in this case we have multiple corroboration of his trial testimony so we have that and we have no material inconsistency with his deposition therefore under the case law your honor the the jury simply could not have disregarded them but they did they did they did your honor there's no way of knowing that the jury simply got it types of cases know that juries are reluctant to return a verdict against medical professionals and against hospitals even when liabilities we're they're simply reluctant to do that and there they will try and find some reason not to return a verdict we don't know what it was we have no way of knowing but my former partner know this and when he was arguing a medical negligence case to a jury he would say ladies and gentlemen dr so and so was driving his car down the street and ran to my client and injured him i know you wouldn't hesitate to return verge against him they ran a stop sign gustav sign around you well that's exactly what happened in this case they blew a medical stop sign that's that's what happened in this case the evidence is overwhelming that the in that telephone call the nurse what he testified he can testify you know sometimes you say well there's no i've sometimes a client will say well i don't have any evidence of this yes you have evidence you have your testimony that's the evidence in this case it's his testimony if in going you didn't want him to deal with on the nerves and simply said here's what would happen and i think you're suggesting that they should have been allowed not to refute in any manner whatsoever what he said in that t far as actors zachary your honor they were perfectly free to do their thing good but that's the nature of trial evidence i mean if you have evidence or you don't he has direct and contradicted evidence as to what he said in this