and the line officers board i guess found one thing and the chiefs found something else and so innocent process and whether the taser any issue on that is whether the tas you were to enter introduced what the chief said the other side would clearly want to introduce what the officer said about this and then you what essential a have a trial that been a trial i mean  if the reports themselves and their conclusions are probably on some level a kind of a hearsay thing that was based on their determination of all the facts and so just sorting all of that out would probably take longer right which is different than taser within policy or outside policy why couldn't the judge say what can fairly bring any of that in i would have to allow all of that  which would take longer and then the whole trial it would confuse the jury and it doesn't it doesn't exactly what you have to prove as the same thing as whether it's in or out of policy why why don't we just can't we just  i realize you have another issue where you say the other side open the door i'm just wondering why do we even have to think about four o seven if under four hundred and three it's perfectly within the judge's discretion to allow to say no i'm not going to have the call experts in both called experts on force not that involved that correct yes ok but the department department's own judgment of what happened here was significant as an end in initial review was there or you recommendation by different panel officers and there was disagreement there so there were the majority opinion minori painting them of the chief of police and the police commission adopted as the opinion that said that the use of force w a reasonable and violated the l a p d policy very fact and it was defense that would have wanted to put on the evidence regarding the dispute and that was fine when we think that the chief of the opinion finding that the use of force is unreasonable the chief of police adopting that opinion the police question and agreeing that with all the important persons that evidence favoring play in his case and defendants want to bring out by this feud about that evidence that was fine but that if you wouldn't have been separate and apart from the issues in the case it wouldn't have been enacted from or taken more time to do what was already being done in the case and i think your honor that one of the points that i did want to make was there is this idea i think that well pla had all the evidence they needed to prove their case anyway so why bother including the chief of police of opinion and i understand the reasoning of that argument but that's not how the rule of evidence works this was powerful evidence of come in or not so i understand completely that it's not quite your honour's making but i guess i guess it's so but i guess the fact that you understand my point and i understand your point and we view it for abuse of discretion that's appellate judge it's not you know i might have ruled differently but that doesn't mean that another judge abused their discretion if we can both make good points on this and so i guess i'm using your own words against you in the sense that i say well i rest my case because you're saying i'm reasonable i'm saying you're raising a ball well then how do i stand the judge abuse has or her discretion well with all due respect your i was trying to say that that that's the end lemony rolling past the abuse of discretion but then there's something that happens later that your position is that the other side open the door the barn door flew open and misleading impression by the use q this question if if the expert was prohibited from testifying that the officers use of force was reasonable how else was the expert supposed to to admission at least of the only p d s official funny does it turn on the fact that this expert was so closely affiliated with the l a p d in other words would it would have mattered let's say if he were from you know some other jurisdiction you to six to have to be able to show that the tasting had some relationship to his death  i mean i guess could you hypothetically recover if they said well they shouldn't have but the tasting had no relationship to him dying how does that fit in with your theory these are trial and there was a dispute testimony factual and expert testimony regarding that issue so so it was plaintive mention that and he didn't swallow it he was hiding in his mouth but he that  you can have nominal damages or other types of damages even if the tape is excessive force was not the direct cause of it so whether there would have been a case either way i think is an easy question we clearly would have had a case and a cause of would have had to believe that which they do know what the actions were then but the case in caused death and that also relates to the pathologist what a sad i know there were a number there were paramedics that were you know there were a number of people about whether that there should have been a sweep of the mouth and all about ok i just wanted to let i know we've taken you over i'm going to give me two minutes for rebuttal ok five i want to find out before we move to the other side whether policy finding it would have been more prejudicial than probative it was as subsequent medio measure and there is case law that says that an out you know whether an officer violates policy or policy is not the same as what's being claimed here or what scholars something like that well i think a few things st of all i think because it's coming from the chief of police findings that they would have the jury could have very easily just said well the chief of police said it's out of policy therefore it must be excessive force therefore even though they are so you're asking us to assume that despite in my hypothetical instruction from the judge the jury the more important question is if they had let in the finding as judge callahan was saying made you know well what about if they would have wanted to know then we would have had it would have to have a trial within the trial because there would have been the mini trial in terms of well the the majority of the use of for use of force forward found that was within policy so why did they find that you have to explore that and then they were also you know laid to say that the evidence was the same it were and different but that but that we don't know what evidence was actually introduced at the use of force for good versus what was introduced to trial and and the plan just one prejudiced by that in any event because they were able to what they did was they had their expertly of a z go testify and explain how the policies work and explain you know whether there rea policies are consistent with posed and things like that and then what he would do is they would play snippets of the officers testimony and then they would say you think is snippets from the officer says money that they gave both of the use  was that reasonable or was that consistent with policy why or why not right and if you open that door if you will not that command i'm just trying to visualize as having been a part former trial lawyer in terms of there would officers that but the other way came to another conclusion that you had to put the numbers and and and both those bodies also very light on the other witness statements right in order to come to those conclusion would say they would play say for example and i'm just making a page numbers don't have that approach off the top of my head but they would say ok we're going to doubt play officer was videotaped twenty to twenty five and now we're asking you a bunch of questions is this reasonable is this not resembles a consistent and are consistent all of that but we don't know what happened for example between pages ten through twenty because that's not in evidence does that make sense what i'm saying so that we don't have the entire interview of medina's for example into evidence and we don't have the entire deposition as we just have the trial that that for example officer may need to gave when he was on the stand and the snippets that they played we don't know  when the door of a soap and it should have been allowed to come in eventually we have to get to prejudice i want to know i want to hear your analysis of if there was an error why is it not prejudicial and i would like to hear your analysis of what the theory of the case and what had to be found because it doesn't seem i am assuming the case sorry i didn't cut you off there are no that's all right i don't think there's prejudice for a couple reasons st of all i think i think your honor is correct that they were trying to prove that the tase swallow the bindle but he didn't the pathologist didn't make a finding that it was caused by the taser not by that is i don't think they can make that determination so that was hugely disputed a trial whether the whether the swallow whether the tasing caused the death and actually mr caterpillar has made no opinions about that he was not a medical expert he was not he was not allowed to testify about any of that kind of stuff and he didn't all he just said was whether the was prime just trying to test the way the case was tried did the jury have to believe that that casey caused him to swallow it and that's because no one testified from a medical perspective that the the tasing caused him to inhale you know take a big deep breath in and that sort of caused the bindle to go back into his throat and then that caused his death right that so you're correct in that sense so there was a sense there was testimony from both sides and we have no idea what the jury's few was on this if there was other material occur we would have to send it back for a new trial right if there were material or yes but i don't think there was here because plaintiffs can't i don't think really does can show that they were prejudiced because they ha that there are whole claim of prejudice around this issue is that the basic one line that that they objected to was the catapult or should not have been able to say was consistent with policy but then the have violated the motion eliminating it didn't that's what i'm saying you didn't so on what basis what other basis would have been able to judge i don't think there isn't and so let me just move to the question that i have why are they wrong in fact we know that not to be the case why is that why wasn't that a sufficient opening of the door for them to correct that misleading impression because that's just catapult us as opinion i mean he said asked for and they have their own experts so land a zero basically testified to the effect that it was out of policy and not consistent with training and our expert testified it that it did and that and pledges made a lot of the fact that that policy for l a p d the jury was well aware that the jury was aware that had a put this was a paid asked for if they they got out that it was being paid something like two hundred and thirty dollars or two hundred and forty dollars an hour was paid ten thousand dollars over the course of the case  they you know they also got out of the fact that you know kind of put as could be bias because in four hundred and ninety nine out of five hundred cases that he's testified as an expert to he always testifies in value way which experts who believe why would it not be highly broke but that's what makes it so prejudicial too because then you would have to bring in so even if you could argue that there was some kind of door opening you still have to find that wanted that that the outcome would have been different because eve stuff to show prejudice and they want to use it for the truth of the matter asserted which is that you know that because there was a finding about a policy that it was an unreasonable excessive use of force and that therefore the they argue then they argue that even if you don't think the tasing caused him to swallow and were still entitled to damages for him being chased was that part of the i don't believe so i think it was more they were they were more focused on the fact that it was the taser that it was hazing so what about this if the tape was out of policy in order to p did they also still have to prove it could be out of policy but it wouldn't necessarily have to cause someone to die it could still be out of policy so didn't they still have to prove let's assume it was out of policy in order on their theory of the case did they also have to prove that the casing caused him to die i would think and death well i know you say you were unfair but you we have to you're in the representative of who was there what i was going to says and so i would think they would because it was either that or the point you know the punches because that after after they use a taser malarial punched him three times in the jaw and that was found within the policy so if you're going to say that you know the funny that it came in policy wasn't it minute i mean to you think if you're going to admit one part you know of the conclusion which is out of policy then you'd have to miss the other part which is in policy and out of policy was it required that there be a nexus to his death in order for the plaintiff to prevail was that the theory of the case i went to i would think so the point which is we as we don't know what they would have failed to say had resolved the st question and that in a different way so in that sense it's no different from a general verdict except that we know they only got to the st issue and found it was an excessive force read but whether it was in policy or out of policy doesn't prove that it was a constitutional violation well of course of course but it's not what we said we're going over stuff we've already covered that doesn't mean it isn't relevant to t were not trying to bring everybody up and caught that doesn't mean that but that doesn't mean that it all comes down to us just because you say ok well i want to interview this report i mean a court would be say well you can't just read it or get this report without same with the cemented for around the same time as the motion let me name certainly before you have a ruling on a motion of a name and the litigants are expected to put all the witnesses including those they may call you know in the event become necessary so i don't think that it's really did the taser did the tasing him it seems to me did the tasting cause him to swallow it is it isn't that the central issue that was the connotation but that wasn't a liability being excessive at least you know in determining whether the force and cause allegedly caused the death was excessive you could look to whether there was