you may will see with your argument very well trial are about to have what we all into some pate never wanted to space and that is fundamental fairness i really litigant that walks into the courthouse and asks for a fair fight at first blush when they look at this case and say the plaintiff in a personal injury trial received a three hundred thousand dollars verdict she must have gotten a fair fight all over when you take a look at the fact that she had over one hundred fifty thousand dollars of that and  her injuries were literally from head to toe which included ten fractures starting at the nose and going all the way down to the leg and then she had a traumatic brain injury and that and that unfortunate day of july thirteenth two thousand and seven when she left her house for a two mile we usually walk she had no idea that she would not return back to that her home until sometime in thanksgiving a lot of lonely turn with injuries that would stay with her and limit her for the rest of her life when we when we examine the rocker there were three phases of this matter in which we believe that mr sparrow was denied the fundamental fairness that she was entitled to in her trial first phase deals with the pretrial discovery the second phase deals with the instruction of the jury as to the law the third phase deals with the course trial courts  to control the lawyers that stop before it there are also two other facets to r p o which are lead to now the directed finding on behalf of plaintiff and that the jury's verdict was against the manifest weight of the evidence i'm going to take majority of my time to address the first three matters specifically the pretrial the basis of our appeal deals with the court's application of rule two thirteen and it's not the rule itself that we're quibbling with it's the application and in this particular case it's the context that it was applied and specifically with respect to a treating physician the rule takes into account when a party such as a plaintiff in this case has to disclose the treating physician specifically the rule states that you want to take into account the limitation on the parties knowledge of the facts known by and the opinions held by the witness  and then into their mission into the hospital and he was disclosed amongst other of his opinions to have an opinion eventually that the conditions for which he treated or were permit nature specifically there were two conditions that we anticipated and the disclosure process that he would form an opinion that there that they were permit nature she had a female fracture which required a painting and she also had a fracture in her hand that required or pending in the course of discovery in the context of these disclosures as usual plaintiff was to post at her deposition she testified that both of those injuries continue to present her problems the deposition dr patel was not taken by the defendants until fifty three days before the initial trial date which is was set in december this case was eventually tried just the following january we give it was given short continu fifty three days before trial defendant took the deposition of dr patel simultaneously to find it was asking the court to continue the trial court to continue this matter for trial so that they had the opportunity to disclose their own to thirteen f three medical witness leading up to the deposition the fun is had already at their disposal the testimony of plaintiff by way of her discovery deposition as we cite in a brace by the end of deposition he testified that based upon that those two injuries that i have talked about the leg of the hand injuries that it was likely that she would have some type of limitations however as of the last time he saw her she was still treating physical therapy she was still having those problems and by the very nature of the fact that he had not had the opportunity to see her again he could not uprising estar her current condition he was asked though whether or not those type of injuries are likely to result in some type of permanently limitations and he said it and i quote it enough in our briefs and at least as it relates to the like he says or it's probable tha oh well based upon what he had available to him i i believe that it's an answer the only answer that he may have been able to get it's a catch twenty two some doctors testified practice impractical some doctors can say that some doctors want to see the patient i believe it was an answer that put the defendants on notice that he believed that is the type of injury that she had likely could result in that but wasn't going to say so unless he had the benefit of seeing report after he had a recent examination because at that deposition i specifically asked him would it be necessary for him to have a recent examination for him to offer that opinion now given the fact that dock the doctor was not in position fifty three days off to say that the injuries were her correct so it really didn't make any difference when they took the well did they did make a difference between when they took the deposition because one of the our mess if you take a look at the sullivan as as surprise and also the good face of the parties and in this particular case as we are you i don't believe there can be any surprise because what's a comment upon the plaintiff is to make a disclosure again taking into account the limitations on he did examine her conclude that those limitations work permit and as a result of the injury so again when we when i say when i start talking about the pretrial face we escalate this are in a bit of a quandary we have to disclose what we expect opinions to be and right the fact that there's also a case law that says that if a doctor feels as though they need a recent examination you have to have a recent examination as you're travelling through the daily sun and plaintiff what are you to do until you get a trial date you don't know when your trial date is going to come as a plaintiff go and see a doctor a year before you think you're going to trial and then run the risk that a year is not a recent plaintiffs this is in the context of litigation what happened in this particular case is all the information the disclosures were not it was not a surprise that he was going to testify to this the initial disclosure the very disclosure that was made to the first time they actually set forth exactly what was offered a trial empowered by doc a by judge lynch no different there was no surprise it was all on paper it's just that the timing of it played out in our opinion part and parcel as a result of the federal selection to wait till fifty three days before the trial to take the deposition of dr patel upon after that we acted quickly soon as we got the report the same day it was faxed over to them moving on the second oh and one other point i'd like to bring up before i do that as the sole and factors that we address i would like to point out to the court that we in fact offered as well during the course after the direct examination at the evidence deposition of dr patel the objection was raised by defended as to exact his his opinions being untimely pursuant to two thirty at that point time we offered i offered the think it indicates a clearly misunderstand application of the rule when he said that instead of the term extract we should have disclosed that we anticipate or we hope that's not the that's not the import of the rule all we are to do is to what we  explicit and that we are to disclose what we expect second portion of that i want to address was the instructions and i generally we took issue with the fact that certain twenty one issues instructions were tendered by the defendant which were simply not supported by the evidence clued in that is the second phase of art with there's two facets of the argument as relates to instructions one is the issues instructions which is the twenty one the setting aside the fact that there was no no basis in fact that she suddenly stepped off the curb when it was placed into the twenty one is an issue suddenly was left out it didn't even track and that's supposed to be the issues created by the law the function of the trial court to make sure that the jury is properly instructed to the law the law not only the raw the law that applies to the facts in this particular instance some of the facts are one of the issues that they down twenty six street westbound was crossing with the in the crosswalk the defendant who was going eastbound and turning intending to turn left on kenzie was so in essence they were going to opposite directions and the same thrill for her that justified his given that he was the term that he wanted to he thought it was more appropriate to take the holistic approach and instructing the jury i submit to this honorable court that batson that the way it's to entire only motor vehicle code handed to them and let them decide what applies that's the function of the court and that's what the court failed to do in this particular instance and it resulted in a moment i don't usually negligent finally the last question is the attorney's conduct and this goes into the theme of what i believe was the defendant's closing in the court's failure to control the defendant  after multiple objections raised during the course of the closing argument you know plaintiff's always faced with a quandary one there's a closing argument and defended a stepping outside the bounds specially one it is suggesting that plaintiffs are hiding evidence continue to object but at the same time is playing right into the hands of the theme that's why it is absolutely critical that when it goes to trial judge sees or an objection is broad and there particular instance there was three eight instances and rush defense counsel did that the first dealt with it evidence that related to the police officers testimony regarding the telephone call we have ten telephone records that created the that was allowed into evidence that was not allowed in dab once the defendant's motion eliminated was officers testimony regarding his investigation because he didn't witness the exit in fact the defendant pleaded the fifth when he was asked any questions by officer defense counsel admonished in open court i quote it now briefs admonish in open court before officer wolf or said that he's not allowed to talk to anything other than his observations we call them for the sole purpose of establishing the time he was not cross examined about his observations yet in closing arguments they make reference to you didn't hear anything about officer wolfers well wolf wolf investigation you don't hear anything about that you're going to have bet against point if they also do it with respect to the telephone call itself whereas the person that he was talking to on the other end of the line there was a whole pretrial discussion saying that we tried to call that number and it was disconnected the only person that would have the knowledge of who the other person on the line was was the defendant himself yet the defendant standing there before defense counsel standing before the jury accusing us when there was an instruction motion in limine a on this issue barring any reference to witness that was equally available to both parties defendants stood there and accused the plaintiffs of not bringing evidence they should and then it culminates with photos rather photos there were no photos of this nobody took any photos at the scene you know it's like i was waiting for the next one will be worth the dominie there has to be evidence it worth a try to coach that house the terms is that we failed to prove our case but none of this had anything to do with the case it was designed because th gets to the heart of the issue which is the timeliness of the disclosure the original answers to f two a right tours were filed on december seventh two thousand and nine the plaintiffs noted that they expected dr patel testify that the plaintiff's condition is permanent and they expected dr patel to examine the plaintiff to the extent necessary to give an opinion permanency i'm about ten months later i told her two thousand and ten the discovery deposition of pin on her current condition testified that the last time you saw her he thought she had a good prognosis and would not need any further surgery again this is december two thousand and ten just a few months before the trial  next day a court order is entered giving the defendants three weeks to name an ex that was to be done by november eleventh of two thousand and ten the defendant's weight dr patel's testimony and chose not to retain an to two thousand and ten about a month after discovery closes just a few weeks before trial the results of that exam are disclosed on december twenty eighth now we're two weeks from trial in a report and they disclosed the new exam which provides a new basis for dr patel is new opinions which are that he does now have a opinion on her current condition and that she does every said will problems permanent problems and that she may need surgery in the future that's a stark contrast to what he testified to a few months earlier essentially what we have is a month after discoveries close we get a new exam new opinions and they're disclosed sensually on the eve of trial and your position is that was reasonable exactly i think rule two thirteen and the discovery schedule set by the courts seek to prevent this exact situation they talk about unfair surprise and prejudice i think this is the exact situation that talking about when you get a disclosure on the eve of trial after the expert discovery cut off its past the parties left with no way to respond to this new evidence and we're just a few weeks outside the trial i think the trial court noted that in its ruling talked about the lateness of the disclosure the surprise the prejudiced and the defendants were able to retain an expert to rebut this i think they made a proper ruling and they limited dr patel's testimony to what he gave at his discovery deposition just a few months before trial the plaintiff has argued that they're in a catch twenty two and essentially they're arguing that they're left with two choices either give an exam a few weeks for trial or the doctor can't testify  permanency they cite to the soto case for that argument and soto does discuss getting a recent exam on some cases in order to testify to permanency but they also go out of their way to say that's not a bright line rule it's going to be a totality of the circumstances analysis and i think what the plaintiff has done is presented a little bit of a false dichotomy here the only two options aren't given exam few weeks before trial or there's no testimony regarding  based on this exam that i just said these are my opinions regarding her current condition and permanency at that point it's in the deposition transcript of discovery continues defendants are afforded an opportunity to get an expert t rebut that testimony and that testimony comes into in the trial consistent with the deposition transcript i think that's a perfectly reasonable option as compared to getting the exam two weeks before the trial so i think when you look at those factors that clearly tipped in favor of the defendant i think it's pretty clear from the wording of the ruling that the trial court did consider those  instructions specifically there wasn't specific evidence for contributory negligence and briefly i'll go through the accident there was a four way intersection on defendant's traveling east going to make a left turn to go north the second was she was outside the crosswalk at the time of the accident third was she left the curb a place of safety when there was imminent danger and the last one was just obeying the traffic control lights i with regards to the proper workout the testified that she got to the corner loped saw the defendant ready to make a left and it turned into her path she testifies that the next time she ever looks at the defendant is when the impact occurs so essentially she's saying i saw that to make a left hand turn into my path never looked at him again and walked blindly into the intersection i think that's pretty sufficient evidence of failure to keep a proper lookout with regards to being outside of the crosswalk there was testimony that she was in the cross walk but there was also the plaintiff testifying that she was hit by the front part of the truck and the defendant testified that when the impact occurred the front of his truck was past the crosswalk so if you put those two pieces of testimony together i think you can draw the inference that the plaintiff was outside the crosswalk next category was leaving the curve a place of safety when there was an imminent danger again plaintiff testified she saw the defendant was about to make left in turn into her path and left and walked into the intersection the defendant also testified that he was keeping a proper worked out look out and never saw the point if in the intersection again i think when you look at that testimony you can very easily draw the conclusion that the defendant was already in this turn the plaintiff walked into that path the last portion is disobeying the traffic control lights and in this area the plaintiff simply testified that the traffic lights for east and westbound traffic were green and so were the traffic lights for north and south america for we know that one of those lights are both four sides cannot be green at the same time i think that's up to the jury to assess the credibility of the witness and to determine which light was green if the north southbound light was green in the plaintiff would have been crossing against a red light and she would have been disobeying the traffic light again this isn't the strongest evidence of contributory negligence i've ever seen but i think it's accurately reflected in the jury's verdict that reduced it only by ten percent less issue i'd like to discuss is the comments that were made during closing arguments and there's really two issues here one were the comments properly and two there's a plane if given a fair trial the plaintiff argued that based on circumstantial evidence the defendant was on the phone at the time of the accident they point to the phone records and the estimate of the time of the accident given by officer whatever and also officer wilbur testified that it's exactly that an estimate of the time of the accident i defense counsel argued in closing that there was no evidence of when the nine one one call came in there was no evidence of when police received the call but one officer wolf or was dispatched all that argument is doing is testing the weight and sufficiency of officer that first estimate the time of the  the last comment counsel made on that issue was that the plaintiffs could have brought someone in to testify that they were on the phone with the defendant at the time of the accident and the plaintiffs discuss the rubbish case which does creating the inference that he was adverse to them i think that's different than what happened here there's no specific witness that was identified there was no witness that the jury heard of and then counsel commented that no party call instead what happened here is that council was merely commenting that there is no witness there is no person on the other end of that line because no phone call was being made during the time of the accident and i think that's a big cites to our arguments about the defendant's negligence in the role which case the plaintiffs of taint an adverse verdict and the court said the plaintiff was denied a fair trial  because all these comments by defense counsel here the plaintiff opinion to verdict on negligence i think it's hard to say that she was denied a fair trial based on these comments with bad unless there are any questions i will rest on those start off in the part of this to it discuss the two thirteen issue again and counsel brings up an interesting point when he talks about the totality of the circumstances and when you take a look at the totality of the circumstances expect that testified the plainest prognosis for the future you know also discloses he is further expected to examine the patient to the extent necessary to comply with current case laws so as to offer an opinion as to permanency at trial that circumstances that they had a bailable to that when they stepped into that deposition fifty three days before the original trial date with the anticipation at that time that they were going to disclose that to thirteen at three because i remind you they asked for additional time to do so it was only after dr patel testified that i need a recent exam which was disclosed that they decided as a trial tactic because they started after to name a two thirteen  three the claim surprise and seek the bar of the opinions which were in fact the school ost as such we believe the plaintiffs complied specially because the rule anticipates this there are limitations on parties knowledge especially with f two witnesses so that as all doctors are happy that plaintiff's lawyers are picking up the phone me asking them questions or trying to get them on the phone or related to some litigation the limitations that's why the disclosure is done in this forum and i implore the score to consider that because this ruling could have a huge impact on every single case in which there is progress what do we do a year out if we decide that we're going to send it on a case takes three years and that i'm fighting a sotto motion a trial that the your recent exam was three years ago and they have to send another one a year after want to talk about unnecessary health care i mean  the old days we used their recent exams and really conference room the jury room out of the conference room in the courthouse before the doctor took the stand so they can comply with the rule especially when you have all the facts at the disposal that indicates there's a permanent injury this room like was a b so here's a woman who's going to have these problems for the rest of the life and i'm not able to present to the jury liaison joe marjorie her surgeon stood before you and told you that she's going to have these problems for us she's going to use a cane for the rest or a life can't walk up stairs without we were barred from presenting that next his analogy is or what i can analogize it to is if i'm driving down and there's a russophone a car and i'm going eastbound and i see that westbound car about oh a half mile up i see it coming i'm aware that it's common expectation when you're basing the law driving down the road or walking with an across iraq that you have every right to and we cited at the beginning of our facts the very first questions asked in the rocker of mr us as an adverse witness was she in the crosswalk at the time they struck or yes and they were getting instructions about people being outside the crosswalk about suddenly leaving curbs the light was green and the backdrop of the third comments that were brought out i want to read it all i know counsel is putting for lack of better words a spin on what was said and the import of what was side i want to read again exactly what was said with respect to what is a juror expected to believe when somebody says plaintiffs could have brought somebody in the test that there's what one inference for a juror to to come to that is somebody was out there that could have you i think all three are i really believe that the jury instruction i mean from a from a practical standpoint i feel as though since this court sits in a position to basically oversee what trial court still as a trial lawyer i like trial courts to have mandates to know what they need to do and not to do and to me i think the most glaring is that we have a trial judge that's holistically instructing jurors but the same time to thirteen is when you when you disclose it in good faith you do what you think you need to do to comply with to thirteen and you're getting barred when it's all out there on the table and there really were no surprises i really believe that's where she quote by my client was most prejudiced was in the two thirteen disclosure purpose and see where i think the most credible struggling problem to