totaling six hundred thousand dollars on this appeal we raised three questions the first question is did the district court err in allowing the plaintiffs to read into evidence the deposition opinions of a retained against officer john moten even though plaintiff was unable to identify officer moten as one of the officers who use excessive force or cause any injury and third we asked did the court err in the unavailable expert is it appropriate to allow a plaintiff to read is experts deposition testimony and evidence without producing that expert for cross examination  and i think as a sub issue to that is there a distinction between an expert witness and facts witness or lay witness who was subject to cross examination was  distinction between cross examination at a deposition and cross examination at trial even if it were to take place in court or outside a court video feed or audio feed and that is there is a discover deposition and that is the cross examination that your honor refers to i think there is a distinction to be made where after you take a deposition you then have questions to at trial that would be developed a trial that's exactly correct your honor and i i i do agree with you that the term cross examination yes we that opportunity was given but i see your point at trial thank you in evidence now your honor i apologize we did have on the trial started on august eighth it was scheduled to begin on august eighth on on august force we received a letter i thought there were trial was not right both of those possibilities were raised i bowl i believe i believe so although i don't specifically recall the second but i if that's it said what you're recall from the record i'm not going to dispute it and i do want to expert you have to do more than four days before trial send a letter saying i'm too busy i can't come there there has to be an opportunity i think to make other arrangements and as judge friendly pointed out in the second circuit opinion that i mention my brief there's also a think a distinction made between laying fact witnesses and and the expert witness and the expert witness in this case in the fall just a liver expert that can provide the same review the records provide the exam analysis and testimony so that's different i think in proving or showing on availability that the court did give you the opportunity to present that i'm too busy because i'm in chicago practicing medicine we received this letter on that date august fourth two thousand and sixteen and fifteen minutes after receiving that we immediately objected to the reading of that deposition at trial without producing this retained experts across examination now again i  we object to we object to the inability of the deprivation of the opportunity to cross examination this cross examine this witness live in front of a jury and we should that th e the expert retained expert it's a different situation than a fact witness accuse unavailable they didn't have to have this what's your best case on that because you and here's here's what judge really says in in his opinion the expert witness is different the expert witness generally has no knowledge of the facts of the case check this witness had no knowledge of the facts of the case instead the expert witness  called upon to express a professional opinion about the facts there that are given to him that's what happened in this case thus even though one expert one particular expertise on available unlike a regular fact witness there is no need to use the experts deposition testimony because there are in that instance other experts who can be available to give their testimony live a trial that's why we think that there is a distinction and we submit that a s the analysis that should be applied now here's the kabi out there judge friendly in the car a while his opinion nevertheless allowed the deposition testimony but it did so because this particular expert in that case had unique knowledge and had just written an article directly on there was a patent case directly on on the money there was no other expert but i think the analysis applies in this case because there are other involve the experts testimony in the same case were in a different case i believe it was in the different it may have been in a different case in the court of wallace decision that's what you're asking i believe was in a in a different case  was attacked by four white officers in his second amended complaint four white officers and then a trial he was attacked by white officers and a lady cop i asked him can you and if you look at the expert testimony of all the damages took place to the head in the upper body there is no evidence that officer john moten struck or injured the plaintiff that proper in ruling under rule thirty two of the federal rules of super procedure the deposition was admissible and as the court is aware this deposition was taken in january two thousand and sixteen it was an august trial i'm the one that noticed it up but caracas and the attorneys for caracas and are the ones that retained the expert we both had that report almost a year before trial saying what the doctors opinions were and the opinions were that the kidney failure and the near death was caused from an assault or a traumatic event and that was no surprise to anyone i took the deposition by consent and m libby's office travel there i paid for the entire thing and she infected this sixty page cross examination and three more pages on recross and they asked virtually everything you could imagine trying to shake  designation of him as our expert i actually did that the day before not knowing what he was going to say in a deposition so the argument wouldn't be raised later i disclosed him as an expert that we may call it and that was what the order required the order didn't require us to call and tell each other who work on trial list who you will call and who you may call and that's exactly what i did and then the order also said any party that objects to a portion of the deposition may either object by filing a motion in one many or make objections to questions or cross next designate portions of the deposition did nothing they were silent on that and didn't object they didn't consent they didn't cross designate that so when this issue came up i had talked to the opposing counsel about  our order of trial and i and i think we sent an email saying he wouldn't be coming live i'd be used in the deposition and that's when they objected and they waited to file something told three thirty seven p the last day before trial on a friday when our staff was gone and i scrambled around all weekend i got a letter from that doctor i gave it to mr libby i did a motion in opposition that i typed myself and any purpose as long as the party had notice of it or they were there and tenet both of which i reserve onto the argument that experts different well i think theory will be able to i think rules or the comments on the rules of evidence or federal rule of civil procedure thirty two or any eighth circuit precedent treating experts and lay witnesses differently so that would be a departure from our jurisprudence for the past hundred or more years if the court were to read that into it so i don't think that would be proper your honor did the district court take any view on the timeline of the defendant's objection to the deposition testimony i actually pointed out that they hadn't objected to it in their pretrial but judge white wanted to take it up anyway and so we took it up and he did not say well used he didn't say waved it i did argue i thought they'd waved it by not stating it in the pretrial compliance but he took it up anyway and that was fine i'd done everything possible when they objected to it i tried to call that doctor right before the weekend he's a great nephrologists in chicago and amazingly he replied sent me a letter saying need be in chicago or does office practice in medicine and unavailable i showed that to the other side to judge white and he found a man available in so they can the both sides got a fair shake but we think it would have been admissible without me even trying to do that because rule thirty two doesn't require you to try to make them available if there are one hundred miles or one way or more and you don't procure there on availability then it's admissible but i tried to do everything i could to get in there and  simply couldn't get there he wasn't under subpoena power under forty five c of our rules because he's one hundred miles away or more he's actually i did a search on syria just to see and it's two hundred ninety was cross for sixty pages almost maybe longer than i directed them and they did everything possible asked every possible question they would and they didn't identify anything that the court they would have done differently that if you're objecting to the insufficiency of the evidence and that's what they did here they filed a written motions for a directed burning for judgment as a matter of law on other defendants but nothing on m said was they thought it was improper it was a generalized instruction that gave the judge why nothing to rule on he had heard the evidence he heard the evidence of the violence the excessive force that identification of jail doctor dr geiger they all found a lineal wound that was twelve inches long around crosses back i'd never heard that term and i asked what that was and dr arkin to justified that's the type of one that's made by getting hit with the spiel but tahn just like mr morton must have had a more that was found by the jail horizon expert or treating doctor right after he was put in me and firmly there was no evidence that had occurred any time but the time mr martin was setting in so the jury had ample evidence just like judge white to consider for punitive damages and they actually they merited the liability instruction on excessive force was proper so most of these arguments that are being made now are made after the fact after a trial when they when we submitted evidence of that right correct your honor and so at that point later they raised it in a post trial motion motion for a new trial and tempted to raise a rule for the motion for insufficient evidence and judge even review a rule fifty motion for a lack of specificity it's under a manifest in justice standard and that's a very very rare case rare situation and the eighth circuit didn't ruled properly he ruled properly on admitting the deposition it was properly disclosed under the rules they got to cross examine him for sixty pages we disclosed them the day before the deposition they never asked to read oppose them as plaintiffs expert they never even read train their own expert then when we disclosed them and pretrial they didn't object they didn't say anything tell the last minute and i scrambled around got the regarding the reduction of the award and light of the settlement with cries and can you what is your view on how that was presented to the district court because it seems a little unclear whether it was properly presented and the district court failed to address it or whether it really was improperly in front of the court judge kelly that argument at the same time  any fees on our work for the settling defendants and judge white ruled that way he said they were separate and destroying stink they are like joint toward peace or is so he reduced our fees by twenty or twenty five  he considered sending it back to do that we would ask for an order to have judge white reinstated or re evaluate our attorney's fees for the whole case to take into account the twenty to twenty five percent reduction time remaining i've had expired john or i should look if you heard something in the apple presentation that you feel the court needs to be corrected concerning i'll give you a minute to particular the respect to experts who can be cross examined in front of a jury where they can assess credibility based on the way they answer their mannerisms and under the federals preference to live testimony i think and the injury and i think that the neurologist testified to those are the same injuries whether they were occurred by the police officers whether they occurred by the cries of doctors that was the same injury that's what the damages went to to the extent that they received compensation for those damages on the other defendants it should be reduced without regard to the attorney