nicotine patch to be applied to her he did this despite her not requesting it despite there being no indication that she was going through nicotine withdrawal and with no knowledge whatsoever of her current medical condition including her blood pressure the patch was applied the day after it was ordered and shortly thereafter she suffered a massive stroke which was severely debilitating she had to have brain surgery she's apparently wheelchair bound and is doesn't have much use if any of the left side of there are essentially five  errors which occurred during the trial court proceedings which i'm asking this court to reverse and it's a word a new trial based on any one or certainly the cumulative effect of those five errors the first was three depositions of dr foldback the second one was never completed during the course of the subsequent depositions of dr goldman i asked him if he stood by all the opinions he had previously given and he affirmatively stated that he had when he showed up after trial however his testimony had changed dramatically and our number of things that he testified to previously he no longer agreed with these were important things involving very important facts of the case for example initially he testified that there was a three step process that would prove would be required before you wouldn't minister a patch he said you had to number one inform the patient the patch was available number two patient if they wanted it and number three ask if they had used the patch before and had side facts this was his initial testimony which was actually good for the plane because the defendant had done none of these things he abandoned that testimony at trial and also previously had test and of course that again was bad testimony for the plaintiff because previously he said it was the physicians responsibility and now he was flipping on that and then he also cropped out whether or not she was having any symptoms  because you were one of the justices that sat on the way because by case and that was exactly the argument that the defense made in that case that it was a factor prospect of a nation that caused per se to cause the witness to change their testimony and this garrioch doesn't the defendant or doesn't the plaintiff's attorney have the right to an expectation of high priced examination that he is not going to hear a different answer from the expert than what's in the disclosure and this court responded we agree case said that they witness disagreed with him side i mean that the defendant i'm sorry the expert himself testified that he had made significant changes and his opinions i understand that the trial or think if you look at the record you will disagree with the trial court on that point i mean these were substantial changes that he made in his testimony they were known to defense counsel before hand and they were not a five and a six is the questions that i offer a proof i first asked the doctor and my offer of proof setting aside your meeting last night in this morning did you talk to them about that and then he gives his answer very says i don't think you're absolutely correct that parts of what i've been saying are quite different than what i said in this but you know i had the opportunity to talk about these things in my views further and then i s and did you discuss those opinions with counsel that you're talking about the ones that are different than the ones from december of two thousand and eight with counsel you there last night or this morning and this answer was yes as well as previous to that so that part of the exchange was not in the defendant's brief it is in our profile brief he has made it that in the meeting last night in the meeting that morning he had discussed with the fence counsel the fact that his opinions were prejudiced how those changes the idea that it came out during my process that it was vigorous of errors i was and i'm sorry i think it's never for is that the defense blamed the empty chair and blame the nurses throughout the trial by claiming not just that they didn't tell that they didn't  there is no problem with a defense witness that would say that the nurse takes apply pressure and the problem is that the defense had up theme throughout the trial that it was the nurses response ability and that the nurse didn't need that responsibility and if you look at vials oh no there were abnormal like oh she had high blood pressure i should separate patient work very high blood pressure and they're saying that they were using that as a defense saying that it wasn't worry about withdrawal and that's why nicotine actually serves i think that in some people there is withdrawal issues i think that your practice that that is why they offer the patch but in this case there was no testimony or abbott is that she was experiencing withdrawal which would necessitate a patch and there was testimony and evidence that the patch doesn't really good for everybody and their same  people that the patch shouldn't be applied to and that includes people that have high blood pressure and it's on the first day of her admission they're her profession or something like one ninety seven over i mean she had very high level pressure multiple high blood pressure readings if the doctor would have known that he should he would not have applied the couch i mean you don't give the cash to everybody it's just like any other medication sometimes you have to take the person as an individual some after this occurred and told the family that he did not think it was appropriate for them to file the case dr duncan is very strongly opposed to medical negligence cases has materials and has office on his fall and so forth and discourage the family from filing the case he was calm as a defense witness in the case for the doctor and i think that the jury has a right to consider that type of money and and r materials and things in his office and his personal beliefs about the impropriety of filing magical negligence cases five that's dr duncan did say that you're right he said if it was two hundred over one hundred he would give a pass there  before allegations of negligence in the case and then when i was questioning the doctor i said to him i won sixty one sixty nine i wrote this for things that i thought were things that you and we would have expert testimony that you would have done differently in this case and you were here for opening and you heard those things right answer yes yes he wanted to stay in the concept of being reasonably careful right insert that's right and then i went through with him those four things he disagreed with me that he wasn't hospitalization in this case senate trial the plaintiff sought to blame dr currie for the fact that she suffered a stroke dr  defense and his theory of the case was number one the nicotine patch was properly number two he did do anything wrong in treating   rates the trial challenge was extremely thoughtful in detail in wrongly and did not abuse his discretion but rather ruled consistent with the existing the first issue which the plane of such talk about today was the testimony of dr goldman and like the plain opinion by this court to read the full testimony of dr goldman as well because as the plaintiff's counsel kept pushing him on cross examination and impeaching him dr goldman often responded ok you're right but that's not relevant that's not what i'm here to talk about and he tried to distinguish between specific questions pertaining to this patient and generalities well let's let's get to the heart of this issue because what the plaintiff is saying here is not that dr coleman changed his testimony in some non material aspects the point of this really attacking defense counsel and say defense counsel knew that dr goldman would have these changes in testimony and deliberately withheld it that's what the plaintiff this contending and that is absolutely untrue you can see that as you review the testimony and you can see that never at any point through the trial judge even have the slightest concern that anything that dr coleman stat said at trial was something if it was a surprise to players counsel it was a surprise to defense counsel as well but it's more important to recognize that this really this case isn't like a white person's car walk at all and one person's car walk honest he was also trying to engage in a watch way with point of scalpel as she sought to impeach him and explore this and he got he got intellectually engaged so when he says that what he's talking about in his opinions are there's a checklist there standard protocol for intensive care psychiatric ward one of the polls of course is to make sure that anxiety which is present in those patients doesn't get too overwhelming or two out of hand courses are idiots or they wouldn't have checked into the intensive care unit first place but at any rate so dr curry explains what the the unit procedures dr coleman didn't say anything different in my mind is a false issue this court could not find on this record that defense counsel intentionally withheld material opinions we were asked this discussed she was not on any medication for blood pressure because he found that she would return to normal blood pressure without medication at the time of this hospitalization number three a stroke is not not routinely smoke they can cause high blood pressure but there's no evidence that this actually even caused high pressure in her she had anxiety she had a number of things going on some of the testimony body not in a second or an hour or in two hours this was this case was tried on a false theory that's what's wrong with this case it took the jury just a couple of hours to reach a verdict in favor of dr karp already the reason was they heard all of the evidence and considered it and all of the evidence the male fest weight of the evidence supported the conclusion that this package had nothing to do with the plaintiff's unfortunate stroke and dr laban's plaintiff's expert was the only relationship and all the other doctors who testified said that there is no cost so relationship and that it was entirely proper to apply a nicotine patch under these time we opposed not only on timing but on the fact that dr o'donnell even though he's described as a doctor was in fact not a medical physician this training was a  and so we contended although the trial court did not rule on this point that he was not qualified to issue the same types of opinions or refute doctorate hands and to the trial court so i don't think that's the case secondly they said well there are some instances here in this record that just well to be honest with you this was a long record a big trial and i don't know where these mystery places are they didn't list them in the discussion of the issue i think when you issue moreover that type of question would only go to damage to us it certainly a number of people that it's this combination of two things that seems to suggest some things that probably aren't really the case so i don't think we could find that th use of discretion i think baselessly but contend this is a judicial admission and so they're saying ok we got this we pushed him here and whether he understood what we were saying or not or understood what he was saying or not this bars everything else i mean murray testify we heard him say i did not do anything here i just because he didn't really get what was going on doesn't mean that he may a deliberate intentional admission that he did it's starting off where council left off maybe just very quickly there was two instances during the trial defense counsel asked my client who is disabled and has to have people come in to help her care for her daily needs she asked my client do i understand correctly that you personally don't pay those people to you that's what she asked my client that you don't pay for the services that you're getting which is one of the elements of damage that you are asking to be return the objection was sustained but the issue was before the jury that she does not pay these people that it came up again when dr duncan the witness testified that talked about pam's insurance that she wasn't any longer his patient because there was a change in her insurance and then there was a third doctor inspired to retain that expert dr nyquist that referred to my patient as someone who was obviously living in poverty so there were three different examples that came up during the trial i think if you look at the no five use first three point  three insurance is not to be considered it was before that terri i'm three separate instances her welfare poverty very sure it's back there the fact that she wasn't paying for the service that was private and who knows if the jury didn't decide it for the pla but say we find there's no damages because we know that she didn't pay for any of these things herself we don't know how that testimony affected the outcome of the jury but we do know they were instructed that they can't consider it and i think that that  that's that is one of the errors that merits a new trial counsel said the jury heard all of the evidence the jury did not hear all of the affidavits i had a rebuttal expert dr o'donnell has that position was not ever taken  involved in a jury trial in february i filed a motion with the court to bar him as a witness because he refused to answer my questions in march the filing by i called the court and asked for a hearing day on my motion the court said the earliest date we say first september and continue to november i renewed my emotion after it was continue but even if it would have been in september i provided them with dates in july there was able to hide under the authority of this court in the supreme court i had a right to present that testimony and i was barred from doing it so you know they found a problem just and i did i did but the jury never got to hear his