will respectfully say that this court should reverse the judgment in favor of the defendants and remain for a new trial because of the reversible errors in the case follow the first reason for that is based upon dr with that came out obviously before the motion to fire was file and was he at that prior to that motion being filed was he disclosed that the two thirteen expert witness that was going to provide testimony at trial actually with all due respect right of the record is clear that that or lack was not disclosed as a witness who was going to testify at trial until after the motion to bar was the night ok who was he disclosed prior to then as a consultant right rather he was initially learning to be a doctor who treated our or it almost served like notice because at that point the motion to bar was denied and he would be allowed to testify as a test as it has an expert witness at trial even know he had no t loyalty of the do sherry duty and it involves a duty of confidentiality and there's no question in this case of the fact or lack of been contacted by the defense after he was already treating physician every one of those would have been violated they would have been in this situation which you characterize as somewhat unique that focuses on the impact on to try or a fact when the trier of fact has an expert witness come in to testify with what might be described as a foot in each camp that it puts that expert witness in a different light than the expert witnesses doctor who happened to have some of a treating doctor the defense had improperly contacted i'm not saying they did but that's the usual situation but in this situation he showed up as a treating doctor whose main goal at trial that his exclusive role was to be he an you indicated that part of your argument is that this witness was initially disclosed as something expert deep read order related to him being a salting expert and you indicated that the motion to bar came up before he had been disclosed as a test my second right yes did you really knew any motion after this two time leading up to trial motions in limine are of what now we addressed at with her and at least a pro forma way and she said she was going to change her opinion and as you know from the post trial motions she made it clear that she wouldn't have changed her opinion all right all right all right i believe that we  satisfied ourselves with the court that there was no point further pursuing a formal model what was the what is your understanding of what you had read to in that order that she signed off  to retain consult with and communicate with his retained consulting experts is with the verbiage and it also excludes such communications with dr black regarding  allowed them only to communicate discuss with him a consult with him about things that occurred before there it does not explicitly or implying plea in any way talk about him showing up as a witness at trial testifying against  come out that he treated it the the patient had to die at the trial i mean who brought out the fact that he was he had performed surgery  and yet he was still he was more an advocate for the defendant actor that's absolutely correct but the jury was aware he had treated luis that he was and they heard his testimony that he was there saying that she denied a motion for reconsideration of the supreme court the divide that i supervised the request and i think the record is pretty clear by their point that you know the you know but they're still cases out there that hold that you have to right and as we've addressed in our brief and i would reiterate if i have an opportunity here is that that the order specifically does not allow him to testify it's an agreement between the parties that he can consult with them on things not involv that there's a court have to step in and say that a special b that is characterized in the and in i p i in a professional malpractise case can be defined by a limited number of people the profession as opposed patients that are sixteen or younger that didn't switch on the skew to the informed consent issues of the same regardless of whether it's a child or an adult the only difference is informed consent is given to an adult when the child isn't bought but otherwise the standard of cardiologist is my view and maybe an interventional cardiologist but the plight of any of the pediatric ward in there from the defense standpoint was to level the case so that it was in essence a directed verdict based on the instructions to the jury because a confusion actually our number one argument there in the case was that this procedure should have never even been discussed with this patient under these circumstances and that's what i want what kind of standard of care is that i don't understand that when the  is a doctor it's a within the standard care for a year you're right you're right in that it's an extreme example that doesn't help me at all but that's exactly what the evidence was in this case including objective evidence the publications of lack in this group that this patient with his that this was a surgical case he shouldn't have the stenting procedure and it was too risky that's what he said he said nobody proper it said everybody had him saying the exact opposite and that's what he should have said what he did and  his entire book that he this involved the statements in his book that related to this specific circumstance in order to give the testimony that he gave right there you have a couple more minutes for thank you recognizing specialty by virtue of the claim of the expert that he falls under that specialty where's the line to be drawn i mean how many how many individuals can come into court and say i am this type of specialist and therefore i want this sort of jury instruction to needing this specialty to the jury where where where is that stop and what sort of is it is it just experts and when the plaintiff's expert does not identify himself as that expert identified in the jury instruction that's sort of you know makes the plaintiff's expert start ten hours behind the defense expert and then it's a question of who gets to the finish line first and the jury determines that and you know starting behind makes a little difference sure  designation based upon experience rather than some third party's record what kind of experience a doctor ruiz have regarding this very same specialty if you're talking about experience what that he testified to he's been training physicians in this area for twenty five think that it is in a general sense that someone who had performed one intervention all procedure such as that in general people would consider that and he's aware that other people are doing it do you think in general that would qualify him to say i'm an expert in this area have or the question is this is not the only pediatric international cardiology procedure this is one of them had to testify well that he had done multiple that expertise to his former students and that seems you know that the experience doesn't quite make the grade there it's if either it's experience or is who you've been taught under experience educational sure but at the other end of the spectrum we know for sure that it does not require a board certification mr morris but let's talk about the difference if there is between the into why he was retained to be we don't we don't we don't even even concern ourselves and i don't know that he considers the result he only concerns of sauza what you're going to use the expert for that's why i just want to make that clear because there's a suggestion that there was a transition somewhere along the line stuff for well then why was he called a consulting expert in the agreed order what what what does that word mean it has some meaning and so to retain x consulting what is it does it constantly up to the point that he began his treatment with the patient bot they weren't expecting him to come in and beat the heat expert so to speak the testifying expert at trial and when they that it necessarily leads to the judicial ruling that the expert that is the subject of that waiver can now committed testify as an expert witness for the defen consult because he in fact was retained by the defense to act or before he treated was was that the agreement that you know he was he was the back now what i'm trying to grasp is was this an agreement that he be allowed to continue to consult but there was really never off ot that he was going to come in and be the expert testifying mean i don't i guess what you're saying is there's really no difference between a doctor this consulted on a case for the one who will come in and be tested by an expert in tr it's a trial of our working self and does not appear in this or what appears in this her is that we're allowed to use back or walk as a retaining expert we're consulting is in there because he wasn't testifying at that subpoena your two thirteen disclosure down the line and use that agreed order as some sort of a waiver of the disclosure that you're going to make down the line on a two thirteen  it i find difficulty and i don't know why because remember this isn't a case where the i'm basing it on your own position that you say that you know we retained him as a consulting expert we didn't know whether we're going to use him as a testifying expert and so how can he use that very same agreed order that you interpret the way you just described it as one that down the line bars the pla an expert sensually who has treated the patients and at the same time to see to the jury that what the doctor did was he absolutely within the standard they did object but i'm twenty six months after the agreed order was entered when was that in relation to the closure i don't recall i don't have that so that's really more important than the twenty six months  were or was it simply that he simply testify regarding the disclosure that the parents simply weren't informed enough i don't know ok and i think this is a unique case i don't think that we have any other cases that come anywhere close to trying to apply but patrol in a situation where there's consent and that's really what we have here there's when when other parties find themselves in this very strange situation if the plaintiff wants to continue treating which is rock the home they were being forced here was luis had a chance to be treated by the best doctor in the world the message should be that heart center therefore we were responsible for what he did the issues with the same evidence was the same my argument would be the same as mr horseman's i'm not going to really add anything more to that other than to point out that purpose of this order was because of that rule and that's why it was central dr lock had been retained two years before this treatment started by him well let me ask you rob do we read the applied strict some cases have a plaintiff strictly other cases have not in this situation i think everything was done to comply with the patrol decision that's why this order was entered in fact the order reached that that releases attorneys can continue to retain consult and communicate with dr locke about the case as long as they don't talk about the treatment and in the order it even says that he can communicate with his retain consulting pediatric cardiology expert dr james lo as you come away from this argument number one is the agreed order was answered there were no proceedings that's why there's nothing in the record this was an agreed order that was negotiated between council there's no record missing from iran this was an agreement and it says what it i can't explain it but i think this is very clearly where i think it's very carefully worked but we're testifying is not in it but we're consulting as his treatment was distinguishes the patrol think the prior relationship consulted before the treatment is distinguished differently what about disclosed this to the family ok and that was the thing that put the whole patrol thing together back him up completely as an expert as he has now admitted the thing that he's prevented from doing by patrol is to do this without disclosing to the patient that was what the motion was brought for we didn't know that so we took his deposition and it makes it ok he had not been disclosed yet it makes no difference that he had already been retained i attack i don't think that the point is that he had not their intention was unknown to plaintiffs that they were going to promise an expert a trial they never said that it's not in the work there's no record of there we brought three of the medicine to prevent that if we find a deposition that he had flat out i think it is it has some bearing on is it dispositive no so whether he whether this was yes and i think that that's basically what i thought about this quarter and the fact that we didn't know about the intent of the defendants they never disclose that the word there is no record to go along with it the order is what it says and we believe the order is clear and it does not