on we are asking this honorable court of appeals to set aside the amended judgment and reinstate the original judgment and jury verdict and disc ace in deal turn it and we don't think it's necessary because it would again utilize unnecessarily the resources of the court both judgments and to end a verdict could be set aside in the truck court order to retry the case altogether concisely put your honour's in this case the  presiding over the case granted defendants motion in limine e on the day of trial excluding our expert witness life care plan or because we have reserved in the pretrial order the right to call opposing experts we herring that this child has an autism spectrum disorder which he does not have and which has never been the real logically diagnosed as dr katz stated that he deals with the needs of the individual not the condition natale just stated was that this child had brain injury brain dysfunction developmental delay motor impairment and optimistic like behavior but he  sometimes the service provider will mark up testing when in fact there's never been such a diagnosis for this child the child is brain damaged and it did he suffered a brain injury so it if i may continue your honor goes hand in hand with the not i don't want to call it mild because there's not but with the brain injury that is not present at the injury and and and because of that and because of that  i think i think it was more a defense the defendant's more than anybody were trying to compute the issues by are stating that this child was receiving services appropriate to one not just the child but as i good going back to the question how did this come up in the st place if the experts in the chow is displaying symptoms that may be associated with with  autism it in other words eye to stick behavior which as you say is that this is really a diagnosis of autism i mean how did this come up no your honor sometimes sometimes different conditions throw up the same behavior and more importantly that we're trying to figure out how it came up if you if you're telling us that your expert never see it this how did it come up it came up because in the end of documents that was submitted receiving and because of that to service provider it's easier to fill in the blank and just say well this is the kind of occupational therapy there's a kind of speech therapy and then by going down the line what they're doing and what they're used to is it is taking care of autistic children with dolls same services so with without a bag notices of any kind that child is autistic they would provide the services which were very helpful to him because it  what our experts said that it was that it was a code by none doctors just service provider there's that in order to get reimbursed they would have to fill in the code and then in those codes because the services were very similar brain damage often caused what this thick like behavior dr katz did unnecessarily mention autism and somewhat appear to contradict himself several times in this testimony possibly because he wanted to not hurt the defendants that hired him but that being the case if we look at the transcript a brief review of the transcript which we made reference to it page fifteen of our brief indicates that the court allowed dr katz this testimony and defendant attorneys agreed and that is the law of the case dr katz as testimony was presented to the jury based on that ruling it the jury entered a unanimous verdict based on that ruling and that testimony to have the court set aside the jury verdict that that they'd hear and substituted for an amended verdict by the sttng a year later that it made a mistake in allowing dr katz this testimony is a clear abus i read them and i think opposing counsel will have to comment on this it doesn't seem to me that there's anything in those motions to go to the issue of damages which became the basis for the court's ruling defendant's motions previously a trial during trial or at the end of trial and that's what we think additionally that the court's ruling in setting aside the verdict was wrong and we and based on that we we would respect reinstated why would it be more appropriate to order a new trial on the issue of damages on damages relating to future not pain and suffering not for the compensate for the physical injuries but why would the appropriate remedy be just on the narrow issue of damages  expenses over the lifetime why would that not be the more appropriate it very well could be and then we would be retrying a case only on the amount that this child would need for its future needs but it will be ruled that the jury already heard testimony and that it would be rehashing over something that that a jury already unanimously agreed on i think it would be unnecessary i think what problems you have the problem to put in a sly perhaps the procedural problems with the way the defendant handled this post verdict i mean there is the fact is that the judge was very concerned  in light of earlier rulings that basically autism was off the table as a source of future needs there was a doctor caps a testimony discussion of this so that when you had an up with was a mix of testimony about the possible link between autism and future needs or perhaps future needs unrelated to other deficit so it would seem to be contrary well keep in mind your honour's that dr katz was an adverse witness and although he was instructed by the court to enact go into that even used the word autism it kept repeating and repeating it in his you don't mean that well when i went when i say retry the case your honor i meant exactly within the parameters that your runner stated which is only yesterday at the future like your needs of the of the child that was that's the only think that's able right now and that's the only think that was appealed did the defendants did not cross appeal the amount that was credit for the damages and the pain and suffering of this child only the the only think that the only thing under the table are the future brief seem to suggest that he was called by the defendant when they put on their defense well if you if you see the if you see the sidebar argument which we list because otherwise there was going to be a an instruction which was not going to be it was which was not going to be helpful to them so i don't have it tested i thought you try to call them he was not he and others he would you would you putting on your cases some point you have to rest to signal to the other side that if they have something to say now's the time to say it it's my understanding that you've rested and that the doctor was called as a defense witness even though you had reserved the right to call i understand that but that you is it that there was an agreement that he would be called in their case and not called as a witness before you arrested it was it was a combination of things it was a matter of his availability which he was not available at the time of the end of our case and  clarify some of the questions that were asked of mr x wrong the presentation of dr katz was done during defend its case in chief and it was pursuant to an agreement that was reached with the court documented in a sidebar with the i believe judge times and had asked a question regarding how the whole issue of autism came up in the case and i think it's important to note that the reason that that became deposition testimony and also on her expert report that there was no causal relation established between the alleged negligence that occurred at birth and the subsequent manifestation at  autism in the child i also have to clarify that attorney after john stated which is not true that there was no diagnosis of autism as far as this child is concerned and that's not correct the father  and that she had researched this condition and she also testified that her son was diagnosed with autism by a neurologist who was treating the child dr met that those two referenced is to the record can be motions to make a ruling on the future need expenses to they keep their portion of the jury d verdict you never asked for the relief or all improper reading yeah i think it's incorrect in the sense that when the counsel for the hospital and the insurer made their for their rule fifty argument dr katz there had been no evidence as far as damages for future needs it wasn't a matter that could be addressed at the fifty a stage the rule fifty eight stage because simply there had been no evidence placed in the record regarding what the cost of those future needs are now if you go with that in the fifty motion i would agree that although the motion focuses on his deficiency of the evidence it does go to sufficiency of the evidence not only as to causation but also to damages and if you read that motion in conjunction with appellants rules fifty nine motion there goes into detail as far as the evidentiary ruling and the effect that it has now irrespective of the title that is given to the to the emotions i believe that the court when he went back and ruled on the fifty eight dollars in the fifty motions in a post trial motions that were that were filed it was so concerned with maintaining consistency in the rulings that it had made particularly the rulings early on in the case pertaining initially to limiting the testimony of dr crawford with regards to any damages that's down from arise from or related to an egg condition for autism which the airplane focused almost in its entirety on autism now here there were certain findings so did dr crawford and no causal connection between autism and the brain injury now she was not able to establish any causal relationship between the alleged negligence during the birth of delivery of the child and the autism that's why the court limited her testimony she could she was only allowed to testify reason that if the diagnosis of autism was important for purposes of dr katz his life care plan is that he specifically testified that he used the condition of autism to determine what the child's life expectancy was or minutes remaining yeah it was not a life expectancy that was specific to a brain injury now what what for the court was a porton was the fact that  these are viz which editions risk disaffect to an eck indication of autism there might be some overlap but even that overlap was never there was no evidence presented of that and since the court had already rule precluded based on the fact that her life care plan was based on the condition of autism the court i believe to reach to maintain consistency in his decisions determine that the doctor taxes of the jury there's no instruction to the jury to try to separate the future needs of maybe related to autism or some other condition so it goes to a jury under those conditions and then that he had that he had so i mean let me backtrack during when you take right before dr katz testified there are two very extensive side bars with counsel when the court at a court was very clear that he was going to hear that testimony conditionally and that that would be based on the presentation of evidence that would establish that future ne accusation certainly tell me but no that's that's the critical contextually actually the only problem that i have with that particular portion of that's that page i believe it's one thousand and eighty eight dollars of the appendix is that the court is asking whether there's any problem with the testimony of dr katz at's and then the defense counsel says no and then he asks what does no mean and one of the i forget if it was attorney  on or the court that says no means that you that the evidence is going to go in immediately after that if you keep reading the transcript it goes into another issue of whether the  katz says when he wrote down on the on the screen all the numbers of his computations for the future needs whether that would be marked as an exhibit or not and the issue of whether the testimony was actually going to be admitted or if it was acceptable the testimony of it kind of got lost because you can even see in the transcript of the trial that it says inaudible many people talking at the same time so at least i can glean i was obviously i was not personally i was not t counsel but i can't really know exactly what that happened in that moment but i don't think either even even that says the defense had maintained from the very beginning had objected to the presentation of d the autism that it should that dr kass should not be presented i think the court was correct in revisiting the issue when it actually received the transcripts to go through how it was that the evidence played out because the court was very clear that the presentation of that witness was always something that was we'll wait and see what happens so i think that's why and he did it more to maintain consistency on the evidence you are ruling and i have not yet seen any case to that perhaps he made an iranian evidentiary willing that has an effect on on the on the jury verdict that he is precisely the person to correct that error while the case to still before  him that's how i would respond to that there's any further the problem with that response though is that if there was discussion at the bench weary and defense counsel was specifically asked if he was ok with the evidence going in and he said no and that raises waiver problems ok thank you thank you very much honour's that it would have been any diagnosis by any doctor of autism it would have been entered into the record by the defense it was not the parents are not doctors the parents are working people who may have been told by their service providers for their child that this child may have a best effort i'm trying to understand you you didn't appeal the court's ruling court's ruling to exclude autism are causing no well this court's conclusion that there's no cause no connection between what may have been autism and the injury  there's nothing appealed on that point because the child did not have autism the child had a brain injury so there was really understand that but the court none the less limited your expert and precluded your other expert and that was appealed as an incorrect ruling so risk were christakis with what the court did as far as those exclusionary rulings are concerned i responsible for that for the child's need if they're if they're not causally connected to the injury sustained that's pretty much the court and once the court said that autism is a separate diagnosis and there's no connection between that diagnosis and the alleged injury and you didn't appeal it you we we sort of stuck with what we what the record that we have on appeal and on that  record the jury found that the defendants were negligent and were the cause for the brain injury caused to that child and that's why i think i think  that we now know once that testimony was allowed to go to the jury that was the law of the case because should have refused to reopen what had already been decided precisely because of that that does not promote efficiency it does not promote finality reopening a case based on having nd thoughts on a ruling during trial i think everybody all the parties have to live with what was with that ruling a trial he or she made it an incorrect ruling in allowing the evidence to go to the jury that the judge cannot try to fix that now there is a question of how you fix it and i think it's a serious question here whether you fix it by completely abrogating the jury verdict damages really the future need or whether you say well i did make a mistake i think there may be a failure to discriminate between