judgment there were seven months between the time that we discovered the existence of additional documents which occurred on december th two thousand and eighteen to july rd two thousand and nineteen w titian we have i have had actually learned about it in the beginning of my trial against o s f in another case so we have to try that case then there were the holidays i tried another case in federal court feb try to thirty's in state court i think in more and there were just there were there was a lot going on and i was trying to figure out what we needed to do here  ruling that you had until jones notes are ok so it's there's nothing more to review either way on her decision on that issue right well i will i don't believe so i agree i don't believe so but i think also there's nothing in the record the judge who has addressed that issue and ruled d favorably or unfavorably she just didn't roll right no i i do believe that she ruled in phone that there was a tolling of the two year period there was a tolling of the statute while the information was not new and well as i go to due diligence a factor yeah i think it does because i think it does because we had two years to bring the the petition in and we're certainly within the statute  requirement is there have to be fraud there has to be deceit there have to be some intentional misrepresentation something more than just i made a mistake and didn't give the entire repeat that's a r fifty one then she went on to say i just think that at the end of the day there's not enough to establish fraud and that's really what i kept for that's it or fifty four it's our position that the court how does an element that is not required honor there is no dispute between any of the parties that the plaintiffs requested these documents in this information we did that by way of iraq or tory's request to produce an even supplemental it in iraq or tories and requests to produce and finally eventually we had to follow a motion to compel the production of the permanent report and when i did that i was have to not file any kind of response instead the day before the hearing they gave me a one page document and then when we wanted to the hearing the next day before judge jury judge corey started granting your motion the opposing counsel at that time answered well it's moot already gave it to him at that point entirely that was the time for the attorney to let us know there were additional materials or information available that they were also asserting a privilege to and that never happened it just didn't happen for the next several years as the case when on and we did until we thought we had everything before we started taking depositions of the parties and the witnesses and i can tell you that you know this just the defendant never disclosed this information to us and it's basically fractional disclosure they gave us some of the evidence but not all of the of the we only found out about the additional evidence what we were in trial during opening statements and they put two pages are actually three pages of a commander proport in a different case up on the screen anytime there's an oversensitive you're going to have a medical report done by the hospital so they put it up with they put three pages up and that was the st time i knew that there was additional information out there all reporters recommendation for prevention so in this case the reporter with the respiratory therapist her recommendation for prevention ought to have a question was there ever a hearing on this the thing to  that you were unable to prove intentional or fraudulent concealment right right actually she a judge whose rules i didna prove intentional concealment  motion and at the hearing before judge whose i did ask her choose to do an encounter inspection of the of pages two and three she actually asked the defense attorney you have it with you and they said no and they were explored that for a little while i felt that it was very important for the court to see what was contained in there i mean you know reporters recommendation for prevention look at have been done to prevent the case key summary actions and referrals and follow ups status these are all things that would have been contained and there is a suffering time you've ever learned about these conscious reports yesterday no other case or no other information you ever had showed there could be more than one page to one of these reports that got him in this case i want to say i want to make this record very clear judge in this case they gave me one consisted of one page and when i subsequently judge i sent them and erotic story asking them to describe the pramanik reports to me this is after the i produced a one page report the response i got back information i didn't know and i what what is it those are facts and yeah we know that till a cows come home but let's put it this way what is it that you have to have one do you have to show intentional concealment fraudulent petition show intentional fraudulent conceal there is no requirement the whole reason for my motion in the lower court and why i focused on the fact that there was concealed it was because of the tolling issue i knew that that was going to be an issue and i wanted to make sure that was clear it was my opinion that it was intentional but the court fellow just that she couldn't find intentional and so what was it and so the twenty one thousand four hundred and one should have been granted in your opinion on the basis of why it should have been granted because we sure that we had a meritorious claim that there was additional evidence out there that existed that we had no information of and didn't have the ability to to look into any further i mean these issues the reporters recommendation for prevention look at have been  case i didn't take any depositions on his case until after i received what i thought was all of the evidence or you're claiming has is newly discovered evidence right and so set aside the d judgment right yes or ok so where we didn't intentional fraud concealment all the time it it it does not matter that the issue of whether it was intentional is not relevant to this issue at all worst the trial court now that we've kind of focused and refined this order the court all wrong and not granting your four to no one on what basis your judgment i goes back to when the judge made her ruling for some reason she added an additional element she felt that she had to find if there was fraud intentional conduct and she indicated she could not come to that conclusion the reason tensional  dismissal to try to avoid that he has argued his case for fraudulent concealment but there's a substantial body of law indicating that if you have a reasonable amount of time with him a limitations period you could lose three months and you know some pretty expensive explanations for the delay in this case it's seven months and no real meaningful explanation for that delay so whether they found the two year merits it's for an abuse of discretion and understandably there was for a period of time some confusion about the appropriate standard of review the warren court addressed where it's a fact based challenge as it is here including consideration of diligence and meritorious nyssa of the defense the court's decision is reviewed for an abuse of discretion and the court have made any difference in the outcome we don't know why plaintiff voluntarily dismissed her case there's an indication in the discussion at the hearing on the titian perhaps it's because his causation expert conceded that even if all of the health care providers breached the standard of care the outcome would not have been different because ms fragment had had a terminal illness so in addition to the fact that there's nothing to show that you know the failure to produce the fall for the additional pages of from the system would have affected the outcome would have changed the decision to voluntarily dismiss there's also case law suggesting that the long standing illinois supreme court case law i should add indicating that you can't vacate a voluntary  that that's the law that is binding on this court only be illinois supreme court itself can say that no that doesn't apply anymore so based on that there's nowhere to raise claim because you simply never can have  i don't know that the problem here is that atomic system is what there's not a panic report it's at data base that's what's a variety of reports so in the sense case what we produced was the incident report in in the record we did the judge bring it up at the hearing you know could we produce a permanent member of inspection and said yeah absolutely i don't and i mean right now but i can absolutely go back to my office and get it and she didn't she said i can go back and get it but i would if you're going to consider that in camera i'd like to present additional discussion in terms of not just the medical studies portion of it and you know to be certain that nothing improper was being disclosed but also to sort of flesh out what had gone on in this case up to that point because you know what was or wasn't contained in th know has to be taken into consideration in context of the fact that plaintiff's own expert basically conceded that proximate cause can't be established that the outcome would have been the same for mrs have a little more time sure but from what was represented at the hearing that the expert did indicate that it would have made a difference in terms of you know how much more time she would have this yes thank you your honor st quickly i believe that the three peach a minute report that was produced in simmons may actually be in the record and if you're on a read like i don't have that site then i could e mail that to the court if you'd like to see that i'd be happy to do that because i recall inviting the court to just look at it because i did have it in the other case so do you know that all these reports are always three pages i don't know judge i really don't know prime you know what would relevance would be if it's a suspicion but you don't know if they're one page to page three page don't in this case you know i didn't know the exist or you thought were you told during the motion hearing by opposing counsel that there was more than one thing you know she she admitted during the argument that there were three page so that i just don't want you to think that i knew about this beforehand because that is not the case at all now i'm actually you remain aware that there is a likelihood of more than one page in this report from a case you were trying to correct right after i it's the st time i learned that there was more then another case all right but that was in december of two thousand and eighteen correct the gutter yes i'd like to address the not one case in illinois that says that if you learn about a project in conceal information that you don't get to take advantage of the actual language of the statute that says that the time period during about it that time period the time to read from a th two thousand and seventeen to december th two thousand and eighteen is not counted in the in the two year period so that i wanted to make sure i made clear that there was evidence that was not given or turned over even if biased of the plaintiff we didn't know about it and i think that equity and justice require that this court enter