good morning your owners again karen degree and on behalf of the defendant cohen the chicago housing authority may it please the court as a as the court is aware the c h a request the court to speculation and i'm sure that the the question that the court has for me i'm in the so this is what i will begin with is why isn't the expert testimony sufficient and my answer to that question is it has to be based on physical facts in a reasonable certainty than the fact that she was residing there and just to set out the factors that were important to the plaintiff's experts that the exposure continued if it time and that the child continue to have time to be the  child grows more susceptible as a fetus but also that the injury continued after the child was blind and was residing in the acquirement with the mother and that the the according to  dr given the injury continued during the first years of life but presumably as flake of hay fell from the wall and fell from the ceiling and givens testimony that the injury continued over the first few years of the effect of the chase sure going into what circumstantial and what you don't find acceptable or circumstantial evidence because basically i look at this and i'd like to make is that the plaintiff had to go beyond showing that the rad as a cause was possible the plaintiff had to prove proximate as to a reasonable certainty and the experts testimony could not be accepted merely because the experts declared that they were giving their testimony to a reasonable degree of medical certainty but it was the court's job to look at the foundation for the expert testimony and determine whether he had a sufficient sufficient foundation and and and that the court as gatekeeper should allow that testimony to go to the jury s the medical test being one of the chief electors that the experts rely on the back to not get them to the to the lead lab because they said it wasn't the lead matter that they needed it to be  cause but can come up with no known genetic disorder that would be consistent with the symptoms that were demonstrated by this  individual if that's the best you can do and i i respect all the mourners in this case and believe me from my experience i respect people as a former public defender who have to get up there and argue things where the facts aren't necessarily in your given that the chromosome and the reality is the most commonly identified characteristic with severe mental retardation as we have in this case but your doctors couldn't really distinctly come to a two thousand and four your honor so it was pending for some five or six years before trial correct and was there ever a request i assume the record to have genetic testing done by the defense didn't request genetic far from it and add defense counsel made that statement also in his opening statement that there's never is blaming anybody for not having the test but the fact of the matter is and the legal burden is to prove proximate cause to a reasonable deficient as to bar a jury from considering this issue and that's really what you're you know and there really isn't anything persuasive in any of the factor that the plaintiffs relied on yes i think that the court is identifying a number of factors that say yes there was rad in the apartment there was that exposure but we we never finding to have some basis for calculating an amount of exposure because if you have a level as dr goodman acknowledged as dr gabriel acknowledge of in the the nineteen i'm going to call it units because i stumble over the circumstantial so is that not more probable and more possible than your cause so therefore you've defeated yourself you can't you keep your almost coming up with a double negative i have to acquirers testimony and there wasn't any testimony that refuted this it is it's not unusual to not find a and b the both there was no question i don't think that that would be the and then the child of bad accounts has achieved an early head sadies by the time he's three weeks old when he's in the very environment that supposedly is some praise unless there is an inconsistency we contend it did not certainly there were issues that affected the sea ha's of dirty to share the jury that the testimony of the plaintiffs experts was speculative in that there was a disconnect between the assumption and speculation that there was a high enough level to cause this problem and i think one of the key facts of the in this is that the the trial court allowed to allow the plaintiff to emphasize the negligence stipulation to the point that the jury likely concluded that proximate which that there is a statement in there that correctly he says that the moon is that we have that we you know we have a number of statements that repeat and repeat and repeat the remote matter came from the plaintiff there are multiple references to putting the child in danger to the dishonesty of the defense i mean with all of those statements coming out i don't think that you got the stipulation that was read to the jury by the jazz at the outset of the trial it was really read to the jury by the judge when the c ha objected to the questioning and to the elicitation have to have the same to show why the underpinnings for the experts testimony as to what factors there were in the environment and in the evidence of the child's condition to demonstrate what that cause was and it becomes subject was brought up again and again and the testimony from where the first witness emphasized it again and again and the jack ass cell and you know i had for the jury to hear the jack emphasizing  that's not on the table so let's talk about simply the matter of whether you can be proved to be proximate cause i mean i'm not you're arguing and i understand why the this is that there's a negative impact from reemphasizing but i don't see how would you have any other in picture honor when the jagjit is a person and we're not talking about a witness making these statements are not talking about a lier making these statements we're hearing it from the judge we're hearing it from that the person who is who is running the show we're hearing it as a jury from the person who is telling the law this is absolutely in chad just not the manner of an advocate so yes i understand that it may be appropriate when there is an admission that negligence versus admission of raw ability for there to be certain discussion certain testimony and not the emphasis that we had in this case you know if there if there had to be if there had to be a description run time but do we need to have it after it was set out very clearly in the stipulation two and three and four times and then the repeated questioning during the other there are others that we that we raised in brief that i think i'll say all right to it in a quite damaging rain hamper the ability to challenge the testimony of the experts for the plaintiff if if the if the emphasis on the c h e's contact was not it certainly made either errors more damaging more obviously harmful is our position and one example of that is the cross examination of dr gabriel that was fired because the key the plaintiff acknowledges in their brief the condition of the apartment was the an essential factor for their case it was the bedrock of their case that's where the problem arises that's where that's what the culprit was ok so we get to cross examination and from the from the first finger prick i was twenty five to nineteen with with no medication that's a robber and then quickly drops to ten never goes back back and he's living in rat the experts was being presented to the jury by the plaintiff's experts in fact i'd like to reserve a few minutes for a better if the court does not have any further question i'm not going to go through a lot of the proximate cause of evidence because court obviously knows it has recited it excuse me but one point i would like to make however is that it was on contradicted that the level of twenty five which was measured when the child utero and the effect of right after the child is born and that comes from the mouth and defend its own expert the defendant says that we emphasize the defendant's negligence and th no such thing happened it was vitally important in this case that the plaintiff establish that mrs turfs took in the lead during her pregnancy without that there would be a real proximate cause problem and this is turks was the conduit for taking in the life and passing it to her child the stipulation afeard not a bit of evidence to support that nothing as the defense argued opening statement just because there's lead in the apartment does not mean that you're of road in the back of one closet or resit road throughout the apartment on the grounds and on the ceiling and failing and requiring that she clean it out every other day or every third day as she testified creating best and breathing it in without it one more time but did not read it and it was invited and required by the objection that the defense made that frankly should not have made the defense says that i it's that the defense did not tell mrs hall about lead being in the apartment but i had to because the defense emphasized over and over again that lead testing had not been done i ha and that is what i put in evidence the defense argues they should have been able to ask dr ricardo isn't it true that donald howell is not michael's fellow that would have been as risk a violation of two thirteen as as this court will see when i  birth and he answered as you saw here i recall his head size being smaller than two standard deviations believe me i do not recall it being more than two and a half standard deviations below the me at birth which is the definition standard deviations below the mean the child however although he said he would use it the child talks about two standard deviations from the average rather than the me so they say it's apples and oranges however that child is you will see he has because she kept asking to negligent they could see that which the comment says should be given with ten o two for i q at ten or for defense said they didn't see that it was being given they did not see where it gets us and that's the quote that ensued where it gets us they never objected to it being given and they never ever told the judge that they thought that this would cause a damn prejudice and the proof of that is at the end of the case and i said to this in my  instruction they complain about was given without  that the jury awarded for lost income which is obviously comes out to fifty thousand dollars a year i put in the evidence that i want my case law has required i put in that the child was by putting the child would never be able to work i put in evidence that this child had and hence a dedicated and devoted mother involved in his school participating in school that's all i can give a jury so i have a child with a missed opportunities and a devoted mother and the truth and the jury took that and translated it into what i believe to be a very reasonable long amount of money fifty thousand dollars a e plaintiff he had to be protected from that and friends especially given the emphasis by the judge in the acknowledgements defense counsel and to the extent that plaintiff's counsel makes a statement that the defense counsel admitted that they understood there was a danger there something that was left out of that because the records the record shows that that's not an issue in this case and it wasn't an issue in this case because there was no contributory balance the had any place on this record and there wasn't there shouldn't have been a need to to be protecting the plaintiff from some type of blame because that just was never raised by the defense instruction issue yes but that was discussed prior to the preliminary instructions that were read by the court and defense counsel indicated it's objection to the instruction i saying that the instruction was not relevant given the admission so to say that there was no objection i think is not an accurate than a critic out of the record your honour's as far as the the issue of the plaintiff's argument and closing argument th statement there is a statement that accused the c h f dishonesty it appears that fine fifteen page nineteen and ninety run that were that the plaintiff sad when when you're addressing the child's right you have to the jury that you claim was a bit of explanation of his position that the child wasn't like this and we're giving you the same freedom to make that argument to the jury as you did to the judge i have to say that that the the crux of this case is that notwithstanding this admission the plaintiffs remained unchanged and the plaintiffs have the burden to provide evidence not speculation that could establish to the jury that their case had been proved approximates price because proved to reason a certainty and we  ha to be able to establish their case and that involved the sympathy and the passion of the jury said they overlooked an insufficient cause ation case