is if the jury really found here that all that was going on was some temporary pain temporary stiffness and soreness and not anything else there's this point matter in the end it's almost even more than harmless it's injuries and medical expenses bill we weren't even allowed to present the diminished capacity claim the jury might very well have concluded that his inability to work justifies additional you say that the judge had made this ruling you had other witnesses that you would have had to testify about potential capacity i think you just said that yes for sure then you said that  you think what gresham was going to say is even required did you make an offer of proof as to what these other witnesses would have said because i i read the judge to say that earning capacity claim has to be based on more than speculation and he didn't think there was sufficient evidence to support a finding on future earning capacity so i'm wondering whether you made a record as to what these other witness gresham and i don't honestly remember whether i mentioned mr russell testifying to those same matters at that time or not the judge and at that point in time again midway through the testimony  e i asked the judge did you kill the claim or do i still have life and he said no the claim is and so at that point in time or perhaps rather i didn't pursue it because  ruled it out but i understand that you can still make a record is what you would have put on to show there was error and so i'm just wondering how when we look directly over and decide that ourselves you've answered is  my question i think so go ahead if you want to talk about the instruction surely there is again this point to where the trial judge gave not one not two but three spontaneous repetitive instructions during the testimony fracas causations medical causation experts indicating that he being the doctor wasn't there that it's not up to the doctor and that it's not for the doctor to a greater steam leans over the bench and looks down at the jury and says he wasn't there it is not up to him not one time or three different times in a row the jury gets the message that's why the chambers discussion what i mean that's not in the record i guess was what was the reference about the witness shutting up what prompted that w was upset i don't really know why to be honest with you but he was never experienced anything like it to be quite candid and he was it demonstrates th that fairness and integrity are essential to the proper functioning of our jury system and in this case a fair trial is what mr russell received st he was allowed to put in evidence that was in line with his discovery responses  mr russell was not prejudiced by the court a man about what within the purview of the jury or the track or properly excluded evidence on the lack of a citation given to mr anderson finally the jury properly exercised its role as that seven thousand dollars fairly compensated mr russell for his injuries it is for the jury as a sign or the fact to resolve conflicts in evidence and to weigh the credibility given to the testimony of the witnesses swines opinions mr anderson under any obligation to offer evidence to his own witnesses to contradict the testimony of mr ruff dr swain there was more than sufficient evidence for the jury to determine that he m sixty eight fundamentally the three statements of the court during his doctor's flames direct about the purview of the jury were correct statements of the law and while the instructions were substantially similar they did not place any  to not have any specific dollar amount for the loss of earnings at this time at the point that russell knew he was going to listen to ten thousand dollars amount for mr black shows the material respects his that what constitutes a reasonable time is up for the court and in this case five years passed for amounts paid to a company not the individual were simply not relevant to a lot of earnings claims because the amounts paid to north swain testifies quote i don't recall whether he had any official work restrictions let me give up my question so the doctors put on any official work restrictions is that correct answer i don't have any record of that question you didn't indicate any in your report isn't that correct answer i did not put down any specific restrictions at that point i see in this case the jury clearly does not believe that he had any future damages they were instructed injuring struction there were times that they could work damages for the need to an extent of the injury including whether there was any permanent injury the reasonable value of medical any permanent injury coupled with the other statement that proof of an actual loss of earnings or wages is not essential for the recovery of loss of earnings past how i read the cases is that a racist does not have to have an actual los wages a jury trial were future damages from loss of earning capacity but there must be based on some sort of competent evidence and i don't want to call the exercise academic but it's almost academic because if you look at the cases that were cited in the brief for example washington which involved the wrestler who was a parole officer at the time there was evidence put in about the permanent injury as well as what a attempted to put in that evidence which track was the site a professional wrestler with earn a certain amount of money and the court said that they did not have to take that into account but in other cases they really do offer the evidence as tacit wages whether it was a welder from three years past or whether everything a nurse and in this case the only evidence that russell was not allowed to put into evidence was the ringback ten thousand dollars frankly he was allowed to sudden evidence and everything else of the court that you take into account on a lot of earning capacity the claim which is a our habit occupation talent experience training industry so he would not preclude it in any way from putting in that other evidence either through themself or doctor something why couldn't you give instructions to the court ha have the ten thousand dollars everything else we can put into evidence and he could have brought that objection to the court to give the court time to change its opinion and put in that instructional masa burning capacity elements that the jury could have considered and that's why we discussed it in the instruction conference and then you go on the record and you have an objection the plaintiff would have been an opportunity to object to the proposed jury instructions and make a record of that that  instructions would have been i don't believe that the jury instruction conference when you go back to the records and make a record of any objections i don't believe that that was transcribed and given to the court on this matter but you said he made a proposal earlier in the case to which you objected when that event or a written submission that was filed on the docket yes that would have been a well that would be in the record yet before you run out of time could you address these instructions that were given about dr swaim you know it's always the case of course under the law the jury can choose whether to accept or reject the expert but i think the concern here is that the judge emphasized with due respect to the doctor it's not up to him and it's not the doctor's decision and so forth that quickly whether that signals something  meaning and on a number of patients pointed out that it was the school's possibility of the jury to determine the credibility of the witnesses and the weight that should be given for their testimony in the case that is what the court was doing i i don't recall if i cited woodring in my brief or not i mean some pretty sure they're going to get may not be like the judge did this throughout the trial though apparently he did it three times with respect to one witness sure he did it three times with respect to one witness on dr swain and it was during his direct the st time was after doctors had testified that if you're standing in front of a chicken coop and your brother holding a match he clearly was the person that my nd point that i like to made relates to the instructions given by the judge related dr swain you're exactly right it was three in structure and about a single witness during the testimony part of it is a legal you know is it up to the jury yes that is correct or when you personalize it to the judge by repeating it when you personalize it to the witness by repeating it by saying things like he wasn't there it was it was prejudicial thank you for your argument thank you to both of the cases submitted and the court will file an opinion in due course excuse you may either dis