cut and i am going to try to address to bring my my points around to those primarily one of the one of the clear cut issues that is quite a implicate of the things that perhaps are a little gray area is the application of the c s a the supreme court's case which the hospital wishes to have applied by iran is to make a general rule of fundamental it was a consideration right out of the box in making a determination as to whether or not the privilege was going to be was going to be waived with respect to some of these documents essay them was that the first of all has to be understood that this case was a case which dispensed with the requirement of a party placing their mental condition into issue impossible to to to use the the privilege in this case no privilege challenge on the supreme court said is absolutely absolutely and this was a case in which it was simply not going to be allowed to be applied but it  argued for is that in fact there is what the judge did in her order with respect to at least one of these productions two different actually three three things were pretty ordered to be produced the first appropriate standard but the question is whether their door was open by the inner i get very response well i guess the argument is that the door was was open the character of the top of the injury is not the character however phrasing the reader case specifically says that when there is a physical injury a brain injury the fact that it has the neurological consequences such as part of the difficulties with lisa suffered any and those things do not change it into a psychiatric injury and so therefore by difficulties which she didn't him before she has depression which she had before not asking for that she has bipolar which she had before that's not part of our case because if she's more depressed now than she was before i doubt strategic well here the their records are confidential they're privileged and there's a really important reason that you should do so if the supreme court of the united states in the recognized this reason our supreme court has recognized the reason the legislature recognized the reason that unless there's a real serious privilege of confidentiality people will simply not talk to their therapist in the same way order not to put her mental condition as an element in her case ok second but she also framed her case so that the doctors who had been treating her wouldn't have access to information that might help them defend themselves absolutely that's exactly right that's that's what the statutes about that's what the read a case is about the relatives well counsel the fact is that most people who have mental health treatment do not wind up in court and they're not base of having to make the strategic decision they just go along with their lives and they see their doctors and they're fine everything works out for them they are getting the care that they need lots of people do not want up and want in lawsuits and in court so that the confidentiality i know gets  give it a number eighty percent of the time sixty percent of time fifty percent time one hundred and ninety nine percent of the time isn't an issue it's only an issue when you are in court and what i'm having trouble with here is that this judge did pay attention to the mental health code she did pay attention to confidentiality should work very hard to to deal with it and to give it credit and she stopped found that these records were were necessary for these doctors to be able to properly defend  that their records would be protected even though they ended up with a brain injury here and other related sorts of things can happen that doesn't be protected but because this has to put that initial make that part of her damages she's not saying that she's saying that she has a physical injury and that brain injury has resulted in cognitive problems and what the supreme court that for the defendants to defend themselves this privilege is not a bar to their defense they are entitled to claim that many of the things that she's complaining about are simply the developmental continuation of the problems that she previously him they can call they can first of all the supreme court pointed out in in the reader case they can call their were received in the first case the one thing that they can see him for their defense are the statements that she made confidentially to these therapists want to go they have to do it without it because that's the  or say anything contrary no they could they could they could do everything but this one thing they can't book him her prior disclosures that she may believe them to be confidential before any of this happened because they overdosed but as it before and she has difficulty moving which she didn't have before and and the reason that we're here is because now she also have some cognitive difficulties that she didn't hear before and i think they can't they i mean because that door is open with regard to those damages that she didn't have before him why isn't that open the door under the act which is an exception his records i might well be proper to borrow any money from testifying about these records if somebody is worried that they're going to jump up and testify about the records if doctors are really for somebody else's you know what here's one of the records from robert previous  hospitalizations let me tell you what it says that indeed that pete the end of the privileges is off ok i agree with that but that hasn't happened in the end and it's not going to happen and the fact that the you know treated her and hope and did what they're supposed to do look at the records doesn't mean that she has made her mom or her put her mental condition as an element in the case support i guess i'm going to jump around a little bit based on what has been going on and because the trial court focused on the fairness issue i think i will also start there  and the question about whether the plaintiff was cherry picking their damages is really what triggers this exception that the court record they have chosen not to state we are saying if it depression was a related  chosing choosing not to say we have chosen not to say that the bipolar condition has been aggravated however we are choosing to claim that in cognitive issues which can be a hallmark but a symptom of depression or bipolar as well as a neurological injury we're going to claim that and based on the reports we were given from these doctors they all recognize that the cognitive issues preexisted the two thousand two hospitalizations this one so plaintiffs and cherry picking didn't cherry pick well enough they have chosen something that was there before and in doing so the trial court recognized this doesn't seem fair that you can go into this and yet or close anyone from inquiring further or seeing the records to find out what the baseline really w the problem isn't that these treaters saw other traders records there's no problem with that at all we wouldn't be here if that's all that happened what's happened is the plaintiffs  gone forward further and said now we're going to call them they didn't have to call them in their case and for the first nine or seven years of the case that these folks didn't pop up suddenly in two thousand eleven they've decided we're going to call these traders to pursue this element of damages and i think it actually goes beyond the pain and suffering element that attends a physical injury and they're literally caught claiming something that can be either organically caused or something from prior psychological issues and they're trying to cut too fine a line by saying no no no it's just the organic cause that we're worried about here for closing that their own newly disclosed opinion witnesses if you will are going to say well in reaching our opinion we had to consider what her baseline was which made us look at the earlier records i know counsel has said no one's going to testify about the records and it may be that these doctors don't get up and say well when you see record a b and c here's what i see but by offering an opinion that the lithium contribute the there's a very narrow exception right so if it doesn't go to damages then under the that you did it's i understand the distinction that you're asking me about and in the redirect it using reader as the example the knee problems we're talking about something that's not rita rita focus slowly on did they place their mental health at issue with respect to the fund of fairness that the courts have carved out is an exception you don't have to find that by making this claim they've put statutory exception i probably just said they're wrong which is it's not just placing your mental health an issue it's challenging any aspect of your treatment at mcneil for a psychological condition a mental health condition so there's three ways to get out of this the trial court shows the front of fundamental fairness exception which is a judicially created exception i think your question goes to was placing the mental health condition and if i can i address d and you correctly and i think it is different because the plaintiff has to prove what they cost and in order to know what they call eyes they had to know what treatment and it and he like it that this isn't something that's going to the physically thing that's going to help the hospital that this has to do with setting i guess they the determining what happened to her as a result of the overdose that's what they're saying it is not go to anything else they're making a very careful living here but i don't think you can make that triggered the any aspects of your state but the services provided for mental health i thought it was in our hospital seeking mental health history but i think that the images were well as a result of the overdose supposedly overdose of the li placing something issue by saying she is challenging the services we gave her for a mental health with the but that goes to his or her that we're treating people with mental health issues differently that would be somebody who has a problem with their talking about a case where you're challenging you either directly put your mental condition in issue something beyond normal pain and suffering that we get in every single person injury case or you have challenged an aspect of your mental health services now that doesn't open the door why get absolutely everything but what it means is is the privilege is possibly waived and the records are possibly discoverable if you challenge my mental health treatment for you then records of your mental health condition from somewhere else if it meets the other statutory factors is relevant is it is it not unduly prejudicial you still have to look at that so i don't get as as at least in one of the briefs i don't want everything well of course i want everything but i've got to ask you for everything today i get event disclosure i also believe though even if you don't find she has certainly placed that issue in aspect of the services i gave her which is the second exception under the act now there's very few cases that deal with that second exception because they necessarily have to be mental health care cases but this is one of them so that i can get in through the second part of the act as well as long as they can show these records are relevant not prejudicial and otherwise admissible in the trial court found that because in their records these doctors acknowledge we've looked at them we found them relevant you don't have to look at all of that to treat someone a lot of doctors do a lot of doctors don't they did now if that's all the further they went we are here but they've said we're now going to call them and that's what opened the door to all of this that's at least a star p on that i really only want to touch on one one other thing if i can and it really is really a case which is totally different than here you've already recognized the need case it was a case that was trading for a mental health condition at the hospital and something went wrong that alone takes away a lot of readers impact in this case in terms of they're saying a neurological injury a brain injury that's not a logical does not mean that it's opening the door to a mental condition as a general proposition that's fine but what they were saying is under the facts of this case even the supreme court opinion limited themselves to the facts of that case they didn't say whenever you claim an organic brain injury you're never opening up the door the facts of that case simply had the plaintiff and his wife answering questions at a deposition that were posed by defense counsel and they said well you know we think the behavioral changes that was the record of rita under those facts just claiming a neurological injury with behavioral components didn't open the door in our case they've gone beyond that and that's why i read a really does it apply to this case we've gone one step further we have doctors what do you call them experts whether you call them to thirteen to opinion witnesses they're offering expert that in light of the relatively recent decline in function and it looks like this is on seven fifty four a record in light of a relatively recent decline and puncturing functioning  stria lithium toxicity she may have an organic brain syndrome in a border to arrive at that opinion you have to be talking about her prior treatment in a condition  suffering from mild to moderate cognitive impairment slowing inattention speeds executive functioning things like that and she says while depression can play a role in her cognitive the deficit lithium toxicity may also play a role her own opinion is acknowledging it's a combination where the it's on her report and i have seven sixty four comma seven sixty seven so that's didn't within they are and they're making a claim for it that is how they've placed their mental condition addition it's not just saying i have pain and suffering i'm suffering pain and suffering because of my leg weakness which was the first  they were only playing like this and ordinary pain and suffering bit of that comes with that like an auto accident they have gone beyond ordinary pain and suffering at this point they are calling treaters who are treating mental condition both  costs involved in the treatment and what we think the prognosis of their response will be with that just going forward to do with what's going to hit but again they can't talk about what we think is causing it which goes back your question on damages you can't talk about what's causing it without considering it was there before if those records and i haven't seen them say it's the same level it's not a damage that they can recover but they're trying to they're opening the door by the time and the judge and the trial court even though as you can see from our cross a field that is no more we don't think she went far enough she went through hundreds of records and picked out records that use the same behavioral components in  his rights know what what was the word depression it has it gotten worse and did it get worse because of this lithium or just natural causes how how in the world can you figure out what's baseline is word that's been used before work where can you put the bass playing is a baseline just from that lithium dose was she ever depressed before that how would we know unless we looked at the records and that's why we we felt and challenging it that the trial court didn't go for it because she didn't give us did they use any other psychiatric terms of a size depression in those two they discussed personality disorders and you think i don't want to  disorders and he hinted at perhaps a schizophrenia process so that they are looking at conditions she previously had and and those conditions might be  responsible for her cognitive difficulties they've all recognized they could be contributing one doctor says that it's not necessarily the same at her news but certainly the doctor landry comes and says you know these certainly depression on and it's really we think it should go further ok and it's clear that if at least dr landry had not used the term depression and either or both of the doctors had not used the term spyhole and personality disorder we wouldn't be having this discussion i believe that's true because they both have big they they have all said that because it was preexisting they could be also contributing to it and as anybody disputed with the depression bipolar personality disorder or psychiatric terms and set of neurological things i don't know how they more records which i understand are not a part of a cross appeal but perhaps it's a part of this initial appeal which is it wasn't quite broad enough as as justice and thank you very much i question is why you have your net put her mental condition in this case is an element of your claim you're saying it's happened but if it has she's not that's not part of her plan her claim is only for those conditions that arise because of the bad brain injury now that may be a little difficult to sort out but is the read of court says plainly they're entitled to get have examinations of her they're entitled to see all her medical records except for the ones that are purpose because she was she was disclosing information to the therapist and she has this condition now you say it might have been caused by its prior condition if it was caused by his prior condition we don't want to we're not it's not hard to park a case for anything that's caused by their prior condition