us mr black whenever you are ready just be prepared for me to pull the book thank you honor good morning may it please the court counsel as i was preparing for this it became more and more evident to me under our st issue which is the issue of the comment during closing argument that the the whole foundation for what we're talking about is commentary that is goes outside the facts and evidence that's kind  of the base point the bottom of the totem pole and this is what the spring board we're talking about there shouldn't be a reference a financial condition there shouldn't be a reference to insurance or shouldn't be an appeal to passion prejudice or b  relevant where it's a nonparty so if you take that foundation that it's facts not never has this becomes even more pronounced here because this is an effect one  removed from effect in evidence we're talking about nonparty it's it's just it becomes even more prejudicial more pronounced there's a quote from the rush case that we utilized the jury favors those least able to bear the the loss and what we're talking about here is the nurse for the hospital i'm not sure what the references were quite about i don't know if it was about that the we we had t assumption that it was about the nurses going to have to pay it back i suppose it could have been that the nurse ruled to flee speaking as opposed to the attorney who was going to getting this money how long would take her to make this kind of money i'm not sure but either way there is a significantly prejudicial statement to curse some sort of bias or or some sort of sympathy we had  several commentaries here although objected to that had a cumulative effect here despite their objections and we had one of them that violated the so called golden rule of placing yourselves in the position of the party being referenced here the nurse we had a violation of the eliminator so all of these together are showing the fact that this is a good situation where the statements in closing argument are highly prejudicial and constitute reversible error i'm looking to at the actual allegations here of the nursing care in there are essentially three allegations three categories one is a failure to utilize a two person assist team or a gate belt or rerolling walker the nd is a failure to properly communicate to each ensure appropriate procedures followed prevention procedures and rd priority failure to properly instruct in assists during the playoffs attempts to turn and sit down on the so the defendant's expert says the nurse that a proper assessment all right but the nurse nurse pegler after this property's assessment disagree and her implementation was different her implementation was well i don't i don't i'm not going to do a two person i'm not going to do the gate belt we're going to do this this so called standby assist and then there's an issue of whether or not she's got a hand on him when he's when he's moving in and turning in front of the commode there are expert also says you can't prevent a heart fall well then there's still this duty to protect the plaintiff so he isn't in the position of a heart fall i thought i close the deal he is in the position of a hard fall and that in are still this duty to make sure that he is properly instructed in is going about the turn in the sit down in a proper weight and my question to the pops into my head him from the facts the nurse had to assist him in standing up from the bed she had to put her arm underneath his shoulder so this is what four to five feet from the evidence from bed to commode so if she had assist him in standing up i'm wondering how she thought he could sit down by himself which almost sounds like something that jury but ok both experts agreed to this is including the plaintiff's expert that if it was the the standby care meeting standing by to in within range there so to speak so if there's a problem you can hold onto him or grab him that would not be reasonable in a proper nursing care here in and nurse bigler did admit that that was the type of  whether you called it minimal or sister stand biases that she was providing here so the while the nurses were in agreement that it was a the wrong state of care this is what she was providing  there was a comment in the defendant's brief about the causation issue in that their doctor identified causation and their doctor identification identification of causation tromped all and their doctor dr drew she basically said that the st surgery that caused everything that everything springs from the st surgery dr metter i guess however the treater said they had the st surgery lead to some trace weaknesses in the left leg left quad that was being treated with physical therapy and some of that witnesses that were incident to the st surgery were being you know a little stronger but  surgical intervention which was the nd surgery so from our you know the issues we have raised therefore are the improper closing argument by those four separate statements but more particularly the two that are talking about the nurse having to work a certain amount of time to make the money that would that the plaintiff is asking for  the one about putting themselves at nurses shoes basically saying that to the jury well look how long is nurses going to have to work and you don't want to be her end the issue of the a motion for a directed verdict where they are directed verdict was requested on the nursing standard nursing standard of  care where if there was no issue here that all agreed that the standard of care was not met on the standby assist being given and with the causation issue where the  doctor was we had evidence in the record that rebut it doctor the defense doctors experts doctors characterization that the st surgery just caused everything  and our rd issue of course was against the manifest weight of the evidence so this is a strange experience i must say but i think that i am done with my primary presentation under ten minutes yes this is a strange experience that you're going to decide well i will ask justice jurgensen did you have any questions in this case that is absolutely correct but i don't think the trial court ever really took it upon itself to do it the trial court basically in ruling on the post trial motion said the case law says if it's a nonparty then this issue about the improper statements and closing argument doesn't arise so it doesn't look to me like the trial court ever even tried to exercise its discretion here and take a look at this because it just concluded all the remarks really focused on the nurse in question they talk about the nd surgery as well why are why was the nd surgery undertaken the doctor believed that from a cat scan and from the way he was reacting there was a concern over the there and look but he felt that there was enough reason to go back in there and go back in there quickly all right but when he did that in found out that in fact this nothing had moved they were not able to tell that does it matter that the trial you know it's going back to the closing arguments does it matter that he doesn't directly jury on every occasion to disregard those arguments yes it does the st objection that is raised he instructs the jury to disregard the nd one he just says strike that as i believe his words and i think that does make a difference because  everything talks about is object and sustain the objection and instruct the jury all three all right that was that is that there was not specifically raised in the is why shouldn't there be a distinction drawn when that comment in a closing argument refers to a non party why shouldn't that be the rule that that that is not something that the court considers i actually think that the distinction is it's it can be in this circumstance perhaps more prejudicial that you're going to garner more sympathy if you're talking about this individual nurse and you are the hospital so in this case if it does it is a distinguishing feature and it is significant but when they get wet my point is though that when the jury gets to the ver form her name's nowhere on there it isn't and that becomes i think even more of a mystery to the jury why the nurse is being referenced here about in closing argument about why she has to pay this off this is a fact that's even more removed from the facts in evidence ok all right fair enough i have no furthe have i mean there was some reference in your briefs that this nurse is basically maybe not listed as a litigant but is basically an agent of the hospital correct but the jurors could certainly infer that and and i want to talk to you about the distaste meant that she made with respect to the walker it looks like in the two thousand and twelve deposition she indicated that there was no walker at a different time she indicated that there was a walker and in new york lyon indicated there was not a walker correct correct just one of the side that clear  well in terms of that that water issue just also to follow up in clarify well i'm sorry oh yeah i'm sorry i'm on the answering your direct question so that's no no that's ok if you had still something  it was never charted never part of the chart if it had been a part of the chart obviously somebody would have inquired about it or asked about it and the response about why didn't why did you wait until two thousand and seventeen to raise the issue of the  or bias from the closing argument involving the nurse the jury asks a question about awarding damages but finding no liability i think or something of that nature how does that question fit in with the fact that you're arguing this is improper improper argument  no that's not it well they in this instance i suppose that they did not want to have any liability ultimately upon the nurse although the question whether they could still award damages i've must confess i at a loss about how or will the jury would be viewing this ok not a cop out i'm sorry i just  that's that's fine in this closing argument if there was a good deal of discussion about money which is obviously be awarded requested yes and the not naming this nurse but saying just think of a poor nurse how many ships how many hours how many years it's going to take isn't another cardinal rule of these types of cases that yes we know that they're asking for some sort of monetary damage but it it's important not to talk about the source of payment if such payment is to be made absolutely and that's one of the instances when we spoke about springing from how commentary should be limited to the facts and evidence that there shouldn't be a reference for example to whether there is or is not insurance and how this is going to be paid or what the source of name i right didn't that the nurse nurse expert for advocate is that disagree with you or wasn't there some confusion and maybe that's the way to ask the question ok between the two nurses the expert and the treating others about the difference in minimal assists and standby assist yes how does that affect this particular circumstance it affects it in that the treating nurse basically felt that minimal assist was the same thing as stand by a sister right or maybe vice versa but essentially that minimal assist took in standby assessed whereas the expert felt that there was or said that there was a difference but that standby assist did not meet reasonable care under the circumstances so when the nurse was doing what is essentially standby assessed that that was not reasonable care according to even to the defendant's expert ok now leslie the question of how this injury or circumstance heard and why the nd surgery your client was undergoing physical therapy as you indicated because of some weakness and was  and the fact that he had just had back surgery correct astronomy prior to the hard hit incident that we're here talking about and after the surgery so in that window which wasn't very long had he ever cried out in pain as was indicated in this record not from the record no and he said he thought didn't he say he thought he felt or heard something pop disruptor he thought he felt something cupped all right i don't have any other questions at this time you will have an opportunity to reply if you choose to ask if after mr behalf of advocate good samaritan hospital thank you for this opportunity i listened with rapt attention to mr black and you know my normal procedure is to work off of what he said but the justices did the same thing so i'm just going to try to just go through briefly my argument we all know that attorneys are permitted wide latitude in closing argument and  that the trial judge the trial court makes the assessment of whether that argument is prejudicial or not and here and judge black are here the judge judge short's concluded that the argument was not prejudicial and that decision and that terminations is reviewed for abuse of discretion and clearly there was no abuse of discretion here we heard a lot about how plaintiff perceives the comments that were made but there were  prejudice is a party whether it references a party talks about a party's financial situation here everybody knew from the start of this case that the defendant here was advocate good samaritan hospital and back at the beginning the trial meant johnson in his opening states my client here advocate good samaritan hospital and he said there would be represented here and named representatives because the tailor who was not nurse pegler and that this is the representative for the hospital so from the get go the jury knows the defendant hears advocate good samaritan and so now we go back and nurse pegler came in and testified and laughed she wasn't back again she so they don't see her again they know she's a witness and she's not on the verdict form she's not mentioned again other than as a witness so when we talk about the financial condition that's not what mr johnson was doing here he was basically just the plaintiff was asking in this case for eight hundred thousand dollars an enormous sum of money for an incident that occurred where and so the court after mr citied objected the court sustained that objection and the st time i believe she told the jury disregard that comment and then and this and we have to put this in context this is a forty five minute closing argument and i think it was like forty two dollars pages in length so this comment comes up there's an objection sustained and and the jury is ordered to disregard it it supports no that the court at the beginning of the trial also during right before opening set statements paid by counsel are given by because all counsel you could disregard disregard them and then also in the instructions to the jury that if the statement of the attorney or one of the counsel there was not consistent with the evidence just disregard it so they the jury was very well instructed on this issue as well the next remark is as mr johnson is proceeding with this closing he says somewhere along the way put yourself in the shoes the statement put yourself in respect worse than say shoes just put yourself in objection to staying stricken the next comment is openly mocking them it's very clear it was in our brief you know that when his counsel  haranguing nurse pegler conduct and haranguing that she was lying implying that she was lying lying that this whole walker issue was a lie and when mr johnson just was kind of talking about that objection and then the court said remove the phrase mocking or something along that line so these comments all of them were either they were all objected to they were disregarded or stricken and so therefore that cured any prejudice here then and the cases that i cited the case where it says that these comments need to be directed to a party because it's all the question is testifies the next issues if we get to the next issues everything and as best as i heard mr mr black when he was commenting even he understood that a lot of these issues they revolve around questions of fact and so those are jury determination and so when we get to the walker issue for example whether the jury believe that she used to walk or not that's a question of fact they heard the evidence the fact is that nurse pegler at the time this came out it came up after the st counsel that was represent the plaintiff never asked the question about the walker later on she was in conversations disclosed it didn't happen at trial didn't happen right before trial was it was disclosed answers to discovery requests and the jury heard the evidence and they weighed it and presumably believe she was using a walker that the point that the water was there in the room so i really i'm open to question but like i said normally i would have written side by side the judge's questions the place answers and respond but at this point i'll just cases that i cited i thought at least one case there's other cases that it was and i'll read into the record i've got i'm going to read this just answer the question about the nonparty while references to a party financial status or general generally improper  think i mention say that it must be a party so at but i disagree with also so regardless it wasn't just the party he considered all the statements and said i don't find that this constituted an improper  believe that he did it i did i think that let me see what he said here i think he instructs the jury on the st statement and does not do it thereafter and does not matter i don't feel well i mean it certainly helps that he does but it doesn't mean that he has to do so he already instructed the jury the st time no it doesn't it if you if you actually say disregard it then yeah that cures prejudice for the most part ok i agree with that but i it's not absolutely required it just means that it itself it cures broadens it's an objection a sustained that's evidence that a jury should disregard it but if you actually say stricken strike it were just regard it that's better than actually cures the prejudice yes right then and there i'm trying to see say i actually have a rebate i'm right but that's my my point is that i believe the trial court in the  instance directs the jury to disregard the question or the i'm sorry the statement but he does not do that there after so he strikes it i think even  sort of in a it's hard to pick up tone but you know sort of says mr johnson afterwards the objection is sustained somewhat of a kind of a warning don't do that again because that's your nd shot at the same no he actually in fact those two those two most offending comments that were made ok i found here the st time he goes the jury will disregard the comment that's on page are fifteen dollars to one dollar and then the nd time he says are one by five the court says that's the but i would say no because it's stricken from the record i mean as a juror you're sitting there in the court says object st it was said objection is it's just the jury will disregard the comment nd time it's even more strenuous it's that sustained and stricken from the record and then i disregard and that cures the prejudice my concern when i was looking through the record here was whether he actually said disregarded or stricken for both those comments and yes the trial judge did thank you ok you've suggested that comments directed to and now i'm already i just doesn't there is no prejudice period because it's a nonparty correct isn't ok but here i mean she's clearly the agent of the defendant he's not just some random witness does that matter i would say no courting to the case law it must be a party the court case law says must not only recently be understood referred of final y cases through their agent but your talk at forty five minute closing argument couple references made i mean the jury is is taking this case very serious this evidence is very serious here and so you know to you know a comment that stricken a comet's told to disregard the jury that's not going to cause a prejudice this jury didn't go back to the room and think oh i mean we don't know what they were thinking but we can assume they're not thinking the nurse there think about the hospital evidence that came in i mean it was the distinctions that were made i mean i'm you know for experts or some like twelve or fifteen witnesses over nine days of testimony and a couple statements that were made in an oral argument about a nonparty and that somebody was going to be painted judgment everybody knows that this insurance companies advocate good samaritan hospital everybody knows hospitals have the money the resources to pay these judgments i mean i just don't think that that a jury of twelve people are going to be you know wondering about a couple errant statements that were stricken from the disregard of stricken from the record when they're considering the weight of this case and the allegations that were made against the hospital and mr canoe goes for injuries and mr canoe goes you  know that the cars ation testimony to harold boyd she says you know he didn't have the they did improve the screw mood and these are just general conditions that happen to a person that has a surgery i mean it's a snowmobile system attached to his nerves that when you sat as a trial court judge as well of us did and you heard cases and you heard in particular criminal cases during closing arguments in both criminal and civil cases trial court judge just sit at the edge of their seat because closing argument is the last like you said forty minutes or half an hour or an hour of a trial that took you seven to ten days to try and the last thing you want is some lawyer to screw up the past seven days in the closing argument and so that's why i think we're all very conscious of the closing argument as is the case law you had for improper prejudicial if you will closing statements in a forty minute closing argument so you could argue you think forty minutes isn't that long but an improper presidential or prep prejudicial or sympathetic statement one every ten minutes is not that small of an argument when you're sitting there as a trial judge thinking oh boy we just we just put on two or three or four experts we just st of all take you how many days to pick a jury closing arguments are a huge part of what we're doing this trial court judge you know in this particular case you have a trial you have an attorney a defense attorney who came in and said to himself and said to his team she is a nonparty therefore we can go forward with the statements  just because she was a nonparty did did he feel it was acceptable to garner sympathy from the jury oh isn't that a proper i'm sorry   well st of all it wasn't said there was no intention for mr johnson to make the statement to to and to or sympathy or to try to use her as somehow you know letting the hospital off the hook for this as as as as he said in his argument before judge forbes during the post from motion it was just what he was trying to do was put it in context he's saying the plaintiff is asking for eight hundred thousand dollars here a think of how long it takes somebody to earn eight one hundred thousand dollars that's all he was saying he wasn't trying to get her sympathy from anybody he was just telling them in context putting in context there's a different way to interpret what he was saying he was saying right is that you know in retrospect  did the jurors know eight she was a nonparty oh well they knew st of all when they come in to the court the st day of the trial mr johnson is there with his client and says my client advocate good samaritan hospital i've got my representative here at the table  and then at during the during the trial she was only came as a witness she was not sitting counsel's table she disappeared she was not referred to again other than an argument and so if it weren't if it weren't for a nurse yeah there would have been a case because they had also criticised the physical therapist but back to answer questions she also wasn't spangler wasn't on the verdict form it was only advocate good samaritan hospital the jury knew that when they were awarded whether they would  or not it was against abigail because american hospital nurse pegler was nowhere on that verdict form she was mentioned and maybe in an instruction regarding agents that jaycee sales of physical therapy and ages the hospital other than that there was no nothing the jury would have seen would have would have told them that she was going to be responsible for the judgement is that not about what wasn't there wasn't there motion in limine a with respect to making statements about insurance or finances the work and the sympathy quite honest with you and you know oftentimes you know i don't really show my hands but that's a little insulting i mean when you say everyone knows who's going to pay for it how do you know that you have twelve dollars jurors sitting there how do you know every one of those jurors know where the money is coming from and as a matter of fact you're for clued from letting the jurors know where the money is coming from aren't you correct if so how do you know that the  know where the money is and well that's a very determined nation a lot of these issues were questions affect it's a jury determination correct but if the jury it was sympathetic because of verdict form she's not a defendant nobody's asking her for the money he should not mention and that might be why did he mention that it would take her a long time he'd say he didn't he he didn't but he didn't he said he said he did not he said nurses and physical therapist could you imagine a nurse or physical therapist how long it would take to pay he didn't mention years back either right had nothing great it didn't mention her he just said nurses salary he was putting it in context say this is what a nurse this what nurses make this a physical therapist make now he said exactly that in the st thing that popped into my head was how many ships how many years another's and a physical therapist in their life would have to work to earn eight hundred thousand dollars yeah isn't that suggests that she would be personally responsible for the money judgment i don't believe so because you didn't mention her name he's just putting it in context you are how many nurses do we have testify here counsel we believe so he says basically just he was putting it context how much money the plaintiff was asking for and saying that just think about how many ships you'd have to work to get that i mean if he did not mention their names he was not saying they're going to pay for they're nowhere to be one certainly after number two how do you want to ring that bell and did the judge do with your well i mean you know the two of those comments dealt with what we just talked about and then one was a fragment of a statement putting yourself in the shoes put yourself in respect objection he didn't finish that thought it wasn't there's nothing connecting it but he started to put yourself in your spangler's objection sustained move on and he didn't go not prejudicial and then hopefully mocking them was in response to plaintiff's counsel openly this lambasting nurse pegler and just talking about how she you know implying that she's lying that she didn't write and everything i mean hours basically over the mocking objection you know it was you know they have checked it and then the court told you no said remove the word mocking and then they moved on i don't think that these are just you know so many different statements made where it's just overwrought here there is for about the forensic case where there was one i believe that was mentioning insurance that the party w the split reference that the defense got towards this was reference to a button topic the clients right to practice medicine by reason lost to the client the defendant not a nurse who's not even a party to the case completely well they say they the jury's going to know it because as the beginning of the trial you introduce the parties mr duke over the plaintiff advocates good samaritan hospital for the defense as the defendant they know that right when you say they also i'm fine for the plaintiff not for the defendant how does the jury know those are the quote unquote party know this case is about an injury to a to somebody whether the hospital was responsible and we have so many witnesses so many days testimony that's what the jury was focused on when they go to a jury you're asked your absolute you're absolutely correct you're absolutely correct and that's exactly what i started out with you have how many days of testimony how many experts that you've brought in the cost hundreds of thousands of dollars and then you you you the line or used to over the line on a closing argument is it worth it that's what my question was to you would in retrospect you do that again that is the problem with jury trial it all comes down to whether you like it or not closing argument and that's why john just sit on the ends of their seat i mean in the in this case both parties agree that the nursing standard of care was not met with respect to stand and sit correct the nurse the stand care was met according that was a prior shift but our but nurse pegler came in and assessed him several hours later and gave him the assessment test got a mutt from the bed with her arm under a shoulder walked into the commode had a hand on him the whole time providing middle minimal this even at the point of turning the filling to sit on the commode she was she was inviting minimal assist according to both her testimony and there's no schreiber the expert testimony so know that the stand of compare compare it was completely complied with here absolutely ok and that's what we should be talking about nothing but the standard of care nothing but the evidence but as opposed to that we're now talking about a closing argument yes and i'm not i'm not coming one way or another i think it's just i think it's just a warning to attorneys both points of defense both criminal criminal and defendant that closing arguments are a huge part there not just to wrap up the jurors are sitting there with bated breath waiting to hear what you're going to say in closing arguments and as i say the judges are sit near the end of their seats saying pray god that this doesn't screw up because i just spent two weeks of my life on this trial so to say cut the hair and split a hair and say was she wasn't really a party i mean how does the jurors know that in closing argument we have to be very careful what we say because we're not dealing with people in the jury box that are the legal minds were dealing with the across sections of your society your jurors so that's what we're looking at when we're talking about a closing argument keep we're keeping in mind what those jurors the minds of a jerk who is not a boy or what they are thinking or what they are interpreting by what with that that's always trying to say to you but i appreciate your arguments i understand where you're coming from and i thank you for your time today and i think you just this is ok mr bixby i just have a couple of questions that a follow up on one just a shot sticks point you said is that mr johnson introduced a representative of advocate who was sitting at the table with him i think you said it was a gentleman but i can't remember his name and then there were other witnesses but who was the real space of this particular incident other than the plaint were the two faces everybody was probably looking to were looking at jury in this case yes the two faces were nurse bag were police a bag were and and physical therapist j c sales and the person introduced at the table as christine christine taylor ok weren't they weren't that jurors also concerned about the plaintiff who was of course sitting there as well oh absolutely the plaintiff so the main main the the juxtaposition of the plaintiff's recollection of the incident and the nurse who actually was there when the alleged injury occurred those are the people that are the targets here whether they're parties or whether they're whether they're you know people of interest they're the the people don't you think that the issue or don't you think that the question then that was asked of the trial court by the jury shows and this is of course after after or are or after closing argument and it somehow show  sympathy or a confusion at a minimum about what their job was and who they were supposed to be actually thinking about and  well i think that they they wanted to give the planets the money they wanted to cover some of those expenses and were wondering how they could do that yes so that would yeah i think that that question was basically is there a way that you could cover his expense for whatever that nd surgery and nothing more i'm not sure but by the same token they really didn't want to according to the question i think they said without finding liability or something like that correct who are they going to find liability against i don't care whose name is the jury verdict but who are they thinking about as they sit there and try to make this decision i think they're think but boy is it the two faces that they have been most relying on during the course of these difficult trial basis i would say although there was testimony about it the testimony about the incident probably was the most the most compelling he cried out in pain she you know assisted him i mean you know it was this was a bit of drama wouldn't you say yes yes ok so that leads me to probably my last question i realize that the your position is that this nurse is not a party and we know as a matter of law she is not however this reference to how long would it take and being in her you know most people know that statement is in her shoes could be a lot of other things but shoes is probably likely she may not have been a party but didn't those comments whether they were furring to the fact that he wanted eight hundred thousand dollars that that was a lot of money or not wasn't there a sympathy that was introduced by the statement which should not have  i don't know how the jury perceived that statement it was perceived from mr johnson perspective as a to put it this context what what the amount of money the plaintiff was asking for and i also want to say that the special  torrey puts to rest the issue their liability so the special they answer the special roger were the the physiotherapists or the negligent no so all this the talk here it be the jury is doing its job it's not fettered by these ideas a couple statements during closing argument proper improper context or not i mean the context of it from mr johnson's perspective is that it was putting putting this whole melanie's asking the context it was object know well what about the they now believe the eight hundred dollars that wasn't there some comment about look how much money was spent in this case on experts and wasn't that pointed directly at the plaintiff because and the inference being well he's got a lot of money anyway again it no i don't see it that way and i think that's the problem with the that the statement has to be clear and direct i have to clearly be interpreted by that by the jury this way and no it's not interpreted that way that's not it again it's just showing that how much money has been spent on this case and and and and that's all it is minute conversation they have in closing argument i don't think that it rises to the level of extreme prejudice and tainting the jury the jury answered that special rog tory there was no negligence here i mean they didn't reach issue damages that may have been an issue they didn't get that far but i thank you i have no further questions and now i will return to mr black do you have any reply that you wish to offer yes your honor just briefly after listening to that portion of the argument i believe i now can answer the question about what the jury meant when it said or asked if it could award damages but find a liability and i think there's two answers number one is just sutton sometimes just talking about confusion they were confuse they wanted to give the plaintiff some money but they didn't want to you know that while they wanted to give them a plate of some money some and this was before justice shot six questioning to the to the effect of everybody knows ospital has the resources to pay that kind of judgment that's kind of the pales into that so that would be the two pronged answer to that question that i did not have a easy time answering before and the cases are talking about you use the language about needs to be directed to a party and that's what's in the language but that doesn't necessarily mean it's restricted by that language we did cite the and i reply brief the monday versus checker takes a cab company that the spirit a distinction based upon a person is being discussed or looted to is an agent of the party and her conduct is directly at issue i don't think it gets any clearer that's how directly that is and what we're looking at here counseled said this case is about injury to somebody and that's exactly correct it's not about the st thing popping into somebody's his head is how many shifts a nurse would have to work to earn ten thousand eight hundred one thousand dollars and it's not about asking with all the expert witnesses that made all this money in this case and then a word to get some of money to the plate of how many years it would take a nurse to make that potentially or it's not about  telling mocking somebody that by putting them on the witness stand for so long and and it's not about putting yourself in somebody these whatever that is shoes or position or place i don't know how else you can interpret that and just going back to these comments yes the st one the jury was admonished to disregard the nd one the court said sustained and stricken from the record and did in the commentary please mr johnson the rd one about mocking objection sustained withdraw the phrase mocking them and the th one which is the put yourself in lisa beggar's the court just said strike that and that's it and i think those absolutely do make a difference beyond well if the court  because just a shock stick do you have any final questions you know nothing right and i know you will say thankfully mr black i have no final questions all right thank you counsel for your argument this morning it was very helpful and very candid and we will take this matter under devise met and issue a decision in due course at this point we will leave that meeting just as jorgensen will you initiate