please the court here we believe the trial court erred by a lot of warding attorney's fees under the nursing home care act based soley on the lawyers contingency fee green but with a client case ruled that because there was a contingent fee agreement and he was satisfied that that was for a reasonable amount of attorney's fees he did not have to go into the lodestar method or plaintiffs reconstructed by time or time records and that in terms of those reconstructed time records  the the plaintiffs in their reply brief in support of their feet petition for the st time came up with some reconstructed time records which we believe were completely unreliable one attorney for instance lumped an entire year of time for correspondence and e mails into one single time entry attorneys from play for plaintiffs billed between fourteen and twenty two hours in a single day preparing for depositions there was an associate who built exactly twenty hours increment of point five and the reason associates we've been billed twenty five hours in a single back and we feel that we should've been entitled to some limited discovery we'd served in arriving tori's and requests to produce for the backup materials from the reconstruction time records again which came to on the attorneys fees and costs that would be awarded would last no longer than the morning so we were given a a very brief amount of time out of respect for the trial court we obviously tried to comply with that but we believe that that was that that that was improper and we believe that we should have been granted limited discovery to determine the bases of the recreated time records in order to meaningfully cross examine the witnesses and to determine how much time in fact was spent on pursuing claims that runs excessive or against non court to conduct a hearing and determine what fees would be reasonable under the circumstances based on the tasks that were performed and claims against norton nursing home act defendants if you want to skip ahead to the i'll over the wrongful death act case law and i'd like to move on to costs here of the trial attorney or the trial judge excuse me awarded a one hundred and fifty thousand dollars in costs against claire oakes it's our position that the code of civil procedure the the supreme court has interpreted that to mean court costs filing fees subpoena fees stretch for witness fees case was clear in the are violated so they used the same term costs we did on a fight a number of cases in our brief where there were a few shifting statute to just the shifting statutes that only used the term costs and under those circumstances the courts had interpret where there was a broader definition of costs some of the cases we cited to sit costs expenditures and dispersants and under those circumstances the plaintiff would be entitled to much water costs so here if costs me anything it means what the code of civil procedure says it means there's no need to read it's possible it's redundant your honor but but it would be redundant in dozens a few shifting statutes which likewise provide for the lyons respectfully awarded a wide array of impermissible costs nearly one hundred thousand dollars an expert witness fees trial x trial exhibits medical records depositions  expert witness fees incorporating fees are not to be recovered as costs to prevailing party judge lines even went so far as to ward a forty eight thousand five hundred and fifty nine dollars expert witness t the plaintiffs in to the agree that the cost of an expert witness was such a proceeding as this might be prohibitive if it pointed here to incur or bear the burden of i i understand exactly what you're saying but that is not what the that is that is not what he does not what the statute allows for the statute just refers to costs in the going to cost means anything it means the same thing as in five dash one away and the supreme court for whatever reason has been very parsimonious in terms of the cost that can be recovered that there are provisions for you know the prevailing part of the prevailing plaintiff to get attorney's fees but just the term cost in the nursing home care act doesn't open the door to the wide array of damages the remand the case for us to do some limited discovery and have a full evidentiary hearing thank you and that is what we're asking for they had a new trial and i think i'll start by asking the the question that i would ask which is what sets this case apart from the typical appeal a challenge should jury verdict in a denial of a post  motion and i position on that is the not a fact of evidentiary error and proper argument diverted the jury's attention from the relevant facts and liability and deny clear ochs a fair trial substantial witnesses and through the closing that told the jury clear oaks is a bad place for you know from the outset of the closing argument where there was a reference to a built in problem with the system that caused it to be in then continuing throughout the trial was fair oaks doesn't care about its patients at the station there are no rules was another was another theme an argument of the staff is a different  patients now talking again about this patient and this was an inflammatory emotional right asli indignant and frankly effective strategy the strategy continued through the improper impeachment references to accidents and major injuries that had nothing to do with this case and this theme was hammered in the closing argument again asking the jury not to consider the care of this move but it not for that i think there was there is testimony that there was there were problems with the recording of orders in terms of where exactly it was going to be recorded into the chart your honor and so i guess however despite that the focus should have been limited to the nursing staff who folk who cared for this asian and not all staff led the charge with her personal outrage and there were there was extensive evidentiary or during her testimony you know and i think any fair  reading of the record of her testimony was that her inflammatory language and testimony told the jury and this was this was the thing she knew what the doctor should have done so the message to the jury was i'm a nurse i knew what the doctor should have done and therefore clear ochs nurses should have known to and then you know this follows the inflammatory language even when the judge tried to rape her and she would not stop she comments that the that nurse martinez was just plain dangerous that the care was mind boggling yet that nurse began to tell i was astonished that the nursing director kept policies in  here's what the nurse picked a towel expected a physician to order so i think one of the one of the arguments that was made in response to claire oak street was that her testimony couldn't be harmful because it was humiliating of of of physicians who were as follows ing those opinions but i think frankly that argument misses the point because again the fact that this testimony criticizing dr gahl came from a nurse this is what's what's telling the jury this is i know i'm a nurse i know what the doctor should have done and i and therefore the clear ochs nurses should have overrule who was not making an order that he should have made and you know of course there's more and i'm not going to go through every point that we've raised in our brief but i do think it's important that the court know that th this was not the kind of testimony that should have come in and they had unlike situations where an expert relies on the consultation or the opinions of another physician or in this case another nurse i think from the kim case i would argue that this court should be skeptical of the assertion at this juncture that nurse picked a tell all relied on nurse argument that plaintiff's counsel made in the pretrial fight over this issue in urging the court to permit the testimony wasn't that her or her expert relied on it it was that we should be able to use his very favorable testimony so i think reliance is not borne out by the record so just to sort of recap nursed digna tallow she can times the entire operation without foundation there's no review or other patient's chart chart charts or other aspects of her ochs operations she used stream really incendiary language to express views and she gave medical opinions only w within the purview of physicians this is substantial this is pervasive but this this nursing expert also presented herself as an expert on the law pertaining to nursing homes and there was a as a challenge in the response brief that this was she was only reading portions of the law but that's not borne out by the record there was there was that that there were very few have objections and so that and that the statement said she made that were objectionable were few and far between is simply is not  the geriatrics expert and frankly i don't think this is this is fair the way this played out just to clear oaks and and frankly not fair to the trial court the plaintiffs persuaded the court during extension of extensive hearing and motions these motions yes it is the same thing in standard of your testimony i mean that's exactly what it is frankly and plain as in their response to the post trial motion change you know took a change from the position that they've taken in the in the of care testimony so to the extent that there was an objection when trial counsel said expectations which judge lyons knew exactly what trial counsel is talking about now plaintiffs arguing well that there wasn't an objection to standard of care letter from the cardiologist doctor and i you know this is a discretionary ruling i'm certainly cognizant that by judge lyons but i would say if if and any case  latitude and that's in every medical malpractise case wide latitude has to be given to the ex to the cross examination of expert witnesses certainly one of the court restricted clear oaks from using that letter based and frankly based on misconceptions of the law very near narrow view of relevance and in this the issue came up repeatedly that if a finger is pointed at another cause there must be theory against fair oaks being that the it's it's nurses are not adequately question the doctor about the order or chart the order and all of the places that it should have been and that way prevented the doctor from from finding this here and the letter clearly undermine this theory and it was the medical records and clear oaths trial counsel should have been able to use it it was discussed several times primarily defense counsel attempted to use the letter to make the point that others sought and raise questions about the coumadin order which call into question the testimony of the physicians who overlooked that aspect of the medical record  it's you know this kink came up several times judge lyons on several occasions sustained the objection of you that the plaintiff or doctor but also attorney and it was very clear honor and i would say that this is a case where in looking as the court must at the testimony and the air is not in isolation but as a whole in the context of the record i think it becomes clear that these errors are significant and prevented a fair trial and may have caused the jury to reach the verdict that it did and that in for those n the only real objection that was raised by defense counsel with the method by which the point was seeking to enforce the fish shifting provision of the nursing home care act was he defended attorneys belie it and the fence counsel agreed with that that that was proper that even mr chapman who was clear oaks expert said yes your honor if you are in fact looking to use the contingency fee contract is the basis for the fee you do not have to look at the law at the hour spent because that's the host our message when you're not going down that path the judge did not just rely upon the contract the judge had mr livest description of the case the judge had all just turns involved the judge had the stipulation that live in a park county has great expertise in this area the judge had the testimony of mr chapman the defense expert that this was a fantastic result great result everybody seemed to agree with that and the judge more particularly specifically said not only am i from the year with this case because i'm the trial judge but before i was on the bench i try cases like this i know what goes into a case like this and i know i can take my experience and apply it to what i see before us and that's what a number of the courts have said the u s supreme court in his the case said you know that the outcome is judge gave him a hearing and he didn't cut them off there's no indication that anybody stood before the judge as such i need some more things to do after and it's more time the judge was more than patient with them they complained that their discovery was not allowed but there's no one has told this court at least not told me what they were looking for in terms of discovered that they couldn't have gotten out by talking to the witnesses or calling other lawyers in and in fact the discovery i think i  in terms of the fairness of the contract i'm not sure that was part of the argument this morning but it's in their brief they and the clerks at this point insist that even though it's a contingency based contract it can change the face be that court should in fact look look to the hours for reasonableness and that brings me into a separate point it's related to that st of all of a court of course always looks for a reasonable fee we don't disagree with that the the answer to that here is the trial court judge on two occasions specifically said i know this to be a reasonable fee i understand that my job is to make sure the fee is reasonable he said at another point i will not in fact provide a windfall feet to anybody and the other prong of that argument is that when you look to the reasonable this of the feet the killer case on which to light specifically noted that when the  point the court obviously understood our fairly simple argument that when they passed the statute they put fees and qwest if costs in this statute were to be the same as class in the cost that there was no reason to put that in their responses well there are other fish if the statues were quests have been allowed and in those cases the costs were limited to what were the more typical quite fast the answer is twofold one appellate lawyers in this and those cases did raise the arguments we have here and secondly as far as i'm aware this is the only fee shifting case that comes with such a history in the judicial cases but why there's a fee shifting statute it's to level the home cases i think are probably more significant percentage wise to the verdicts than in any other case logically if you don't allow quests to be recovered in the full sense of all the quest it's going to make it very difficult for counsel to take these cases to the criticisms of what happened the trial they accused point the of i guess a bad tactic in its criticism of what happened the brief set forth all of the evidence about what went wrong and what i can add to that is that nobody stood up for the other side in this case nobody stood up for claire oaks and said it was ok not to challenge an order from a doctor that  rebuttal regardless of the words used to criticize the conduct of the of the employe specifically nurse mightiness the cases was always going to come up the same way interesting  witness was in fact clues just as the trial court judge said as to nurse pickett tell her expertise was remarkable she runs nursing homes she takes care of everything in these homes she has a wide experience and she said these are the things that i expect the nurse to do she really never did say what she expected doctor to do what what the doctor expected of the nurse the testimony about what that big off expected than from the nurse came from dr beagle not do that the bottom line is that everything that you tell testified about that was wrong is something that at least one other witness testified about and i've not seen anybody show otherwise in the course of the briefing in terms of dr pops a letter it's not correct to say that the trial court would not let defendant use the letter the judge was very clear he had all kinds of arguments about this and he said you can use a letter if you're if it's long as a witness understand relied it or even look at it you're going to be able to bring that up you just cannot do one thing with that letter you can't use that letter to suggest that the actor pop should have done something by himself at that point and that was for a multiple reasons one no one was going to provide that testimony the only person the thought dr pao was responsible in some way for the ultimate problem here that stopped and that restarted was defense counsel he admitted that the judge said you have anybody to testify there's something else than that somebody was negative you have anybody to testify this that someone's going to say that dr pop should have done something at that point  than that i think i've covered all the points are raised this morning unless the court has questions of me i understand it's been a long morning already for the court appreciate that we simply ask that the verdict be affirmed th on cross examination on when we called him as a witness and judge lyons refused to allow him to enter and said that he would make sure that there was no double recovery but that certainly we believe a legitimate inquiry for a party who's being asked to spend an additional one point three million dollars characteristics with a regular personal injury case in terms of the liability circumstances in the damages to make it very attractive for any plane of personal injury lawyer and then mr levin it conceded it during his testimony that this was th was a a strong case for them and had they had this accident happen at a hospital or a rehabilitation facility plaintiffs would not be entitled to any money cities at all because the nursing home care act opposite would not apply it was mr handling of civil rights cases in the federal court system and that he always emphasizes with his the people who report to him the importance of could keep of keeping contemporaneous time records irrespective of whether there's a contingency on aspect of medical records if they if they've been given and reviewed it is absolutely fair game for cross examination as one point in the business about the secondary reason for raising that was could this possibly be a small price because situation nobody had to say that that was a cause it's a very slight standard as we know from leonardo the mcpartlin and that entire line of case law so again i'm hearing today in court the same things that were respectfully wrong with with judge lyons reasoning as for this case was always going to come out the same way i have to i have to disagree with that there were there was a there was a defense there was a rebuttal proximate cause is a huge question mark on this record i respectfully submit and there was plenty of testimony to support the defense that it was dr beigels job to handle the issues thank you mo it's quite interesting oh i'm glad you didn't go through all the details of the briefs here for three or four hours but what you did he needs a total different