and feb twenty fifth the bus driver was making a right hand turn and he obviously didn't see the pedestrian the plaintiff here who sustained grievous injuries there's no question about that and the plaintiff was struck by the side of the spouse right around the you know the front door somewhere near the front door when she was fifteen than one thousand feet in the intersection and based on these facts the trial court entered a partial s after that ruling the defendant kind of rethought how one did not try the case and it cited that it would have and met all liability issues because you know the issue of comparative was still open p i one point zero two which says the court has found a defendant is liable so that is not an issue you will need to decide in the defense objected that instruction because it goes really also encompasses the question of the carriage of fault and that's why the defendants objected and that's why they tendered an alternative instruction which which stated i have here somewhere fs and there are other issues court will need to decide which was a more accurate instruction of white the case involves was it accurate well it wasn't the court effectively directed all liability issues out of the case and taken the taken to the point of side on all liability issues which was you know which is and whenever the whenever court  favors gives an instruction like this favoring one party over another does have an influence on the jury and that's why we so strenuously objected and that's one reason why we're pursuing this on appeal because of the effect that it had on the jury potentially had on the jury  because you know there's it's pretty pretty striking how this you know didn't make it sound like we made no concession at all that's my only point here and as far as this instruction goes ok so you're basically arguing that you didn't get paid to say it of making that contributory damages and so i'm not i understanding where it would have been appropriate for the charge to bring those issues back in that case would have been by how much or would you mean by the judge to bring the issues back and with this instruction for instance do you think that it would have been more appropriate for the court to say something along the lines out of the court found mass transit district liable th mass transit district was liability though and compass is more than negligence a compass is proximate cause and encompasses the issues such as has the comparative fault in this instruction was incorrect and you know the issue there is an issue here i understand is to whether we tender the best alternative destruction we could have tendered but it was more accurate  statement of the law based on the facts of this case then their instruction was moving on to the other instruction and the other instruction is actually i think it's really a interest it's an issue that really was not it was addressed in one other case in the first district and it's only been addressed once and it was given no real extension in that case whatsoever because it was the it's the issue of whether pain and suffering is income it encompasses emotional distress and really there's no question that it does based on this line of cases that i've cited in my brief and this is the big key in case which was authority for the giving of the instruction in this case didn't go back didn't even decide that issue it decided the issue of it your argument in that case was the issue in that case was can you recover emotional distress in a medical negligence case and of course you can i mean that's pain you can do that i mean that's and these old cases that we've cited to talk about what suffering as the pain and suffering it recognize you can recover from mental anguish anguish going back to what and it's basically this how many times can you put in you and you i mean what happened what happens when you did what we're doing what happens when you divide this up here if you're putting emotional stress on  how much i don't know how many much you never know how much i did i know how to however here we have one point five million for one and you know million for another i can't remember which is which form and the instructions the back and forth between the court and the plaintiff's counsel they they recognize that if they didn't put it if the court wasn't if the jury wasn't instruction on the  instructed on the item of emotional distress then the plaintiff's counsel could still argue that the plaintiff suffered emotional distress is part of suffering and of course that was our point that it's the same thing and so what all you're doing is you're saying twice on the verge of farm twice on the instructions that the plaintiff and that cover recover from most of the stress and that issue was never decided and that they can and we're presenting it here and and we're saying it's improper to put it in effect on the jury form on the verdict form twice for the jury to be instructed twice for the same item of damages and it drives up unnecessarily the the amount of damages and you know it's it's an eight point seven or eight million dollars verdict in total and i just you know i questions i have a couple questions counsel first of all i'm with respect to the jury instruction that you're talking about do you agree that you have to be able to point to or show supporting that there was a double recovery it's not enough just to say well it was pain and suffering on there in the end also emotional distress don't you have to point to something in the record that would demonstrate that there was a double recovery do you agree with that well he quite well i pointed probably for him i mean i am not sure that i'm not i don't know help i don't know what else i can point to but that and that's my next question we look at the verdict the jury awarded her one point five for emotional distress but only one million for pain and suffering so doesn't that suggest that there was not useful never know for sure well way i would write a two point five billion dollars a year total and it just seems to me if i were talking about a lot of money here and that we should be having the jury when we're talking about this much money properly instructed in the first place now refresh my recollection because i'm most definitely could be wrong in front of the trial court didn't you agree that you had to follow the court had to follow  even i think that the one instruction on one or two of the was one of two was it misleading and and because it did not really accurately reflect what happened and since it was the court giving the instruction that was it was prejudicial only six was the court favoring one party so much one way t and it was an abuse of scratching to get both of these instructions for those reasons because those instructions that are misleading or are incorrect statements wash and i think evan and i asked the the judgment to be reversed for these reasons your honor the defendant has made two separate challenges to this through the trial court's exercise of discretion when starting to the jury both of these must fail must only reverse if they're misleading or actual prejudice has been shown both components are not met in this case defendant wants a new trial defendant received fair trial in this case the instructions were part of the after trial let's look at both of those issues separately the first issue addresses one point zero to which the plaintiff gave an instruction to a number five then make a summary determination of negligence which is part of what you can do with a hearing like that occurs but rather the documentary clearly states as well as to courts only wish the court allows the plain motion for summary judgment and finds the defendant liable what does that mean that's basic tort off duty breach of duty approximately causing damages means liability that court didn't reserve for the jury what you don't get to speak to that game's over there is no such thing as partial liability what is partial liability i've been trying cases from in thirty years i've never heard that term what happened in this case the defendant was found liable and the court was kind of allowed the jury to decide if the damages should be agreed to sunder comparative negligence principles but we never got there why because defendants attorneys and i think it was a very big tactical mistake they decided oh wait the courts found this liable well no we're going to say we're liable now it was a no they didn't matter at that point and we made the argument our brief and we made it a court it's like in a criminal trial and appropriately and where there is a motion in limine a on this or we're so sorry for what happened we've been mid fall they were given that opportunity so their strategic decision of their trial attorneys failed and now we're trying to miller's the defendant's instruction this one point zero three b is not in any way accurate and there's no case all the support we've heard again we heard nothing from costs about no proof in the record that because of this instruction one point zero to this somehow the jury inflated damages and we cited the mckale case which went through that same period analysis where there was an item is asian you remember for this the next of kin they said well the amount how can we say it's inflated there was no abuse of discretion clearly by judge jones when he gave one point zero two and the jury verdict there's no proof in the record that it was somehow affected because of that instruction so let's move on a second issue that involves the giving of thirty point zero five point zero one which is the emotional distress and structure which was decide that case simply by application of supreme court ruled three sixty six and ja time case the on our supreme court case no real instruction was ever tender by the for the first time in this case in the brief i saw cabinet well we just asked the court to strike that was just said use it i guess use a sharpie marker it out well first of all they never even suggested what they wanted they just subjected to the inclusion of emotional distress we have no idea now how this we said here what they were proposing so the court could look at the two hundred terror which one needed to be given to the jury that is appropriate exercise of discretion by judge jones giving the plaintiff's instruction number eight and deferred form seventeen and plaintiffs number seventeen again supreme court rule two thirty nine it's interesting in this case and we've heard it here the defendant is a power does not say you can't hit a motional distress when there's physical injury in a positive the argument advanced by the border when he is controlling they specifically consider every argument to be inspired to defend that you get it when there's physical injury it's a separate our men damage they're not saying you can't have happened station or and they're not saying it didn't occur in this case if you look at this record if there's ever a case in the history of personal injury cases were emotional distress damages should be awarded it's this case you have to from the devastating physical injuries with the loss of both are limbs that she suffered defending has suggested no authority that suggests that and anyway but are there is not a double recovery in this case and it's just this one pointed out there's nothing in the record that would support that but rather what's in the record supporters it was a well thought out decision different amounts were given i'm ok on the stress one point five million and one million for the pain and suffering the pain she suffered in the physical therapy the pain she suffered every day putting on her prosthetics but you know motion all consequences the emotional distress she suffers every second of every day of her life it would be pure speculation to say somehow there was a double was specifically addressed in the beacon case that said there was no special in iraq and for how do we know where the jury was thinking but we could have had it built into the record it wasn't  absolutely no showing a prejudice rather what we have is an instance when a jury went through each and every element never asked the question never asked anything of the court for direction his  distress within the suffering of course there is physical pain it was so much evidence about physical pain and physical injury and it was so much evidence sacramento apart from then about the emotional injury and the emotional distress again no abuse of discretion by the judge jones and given plaintiff's instruction number eight and the verdict form seventeen and i honestly believe it was way it's so simple as a trial lawyer to make five motion you must take that seriously you have the pen case which this district and when they do grant three seventy five sanctions look at it there's two things to look at a prejudice it's an objective standard you must apply it doesn't matter then mr suave or his law firm they thought well you know what subjectively we think it's got a shot it's a good appeal why would a reasonable attorney you just pay good judgment more by there's no reason to appeal but i think if we look at the second component that you can consider a three seventy five motion improper installation foresman of the judgment and we do have some proof in the record why i think that's true if you look at the record there was a partial satisfaction of judgment by the first insurance company and that's all record this isn't me speaking out of turn it's in the stipulation file i believe it's october thirty one two thousand and sixteen so the national had the first two layers of insurance they tendered their policy limits a five million dollars plus interest th occurring through that day there's two other insurance companies involved one is called starke and then to do one's called cap now in the stipulation it doesn't tell anything further about this i won't speak to whether the precise roles of those companies hire but what's important to note isn't of their own well only what's important to note is that there was a partial satisfaction which would say well mr hay goes in and true to stop the clock and interest  family and pay the judgment that they when they get the money back true and that in this case why if you read that stipulation it was specifically stated by their insurance company the plaintiffs could retain the money even in the event  person so what does this tell us about the way it tells us that someone else whether it's it's star kaplan or defending itself why are to delay paying the money that is oh so they have the benefit of the use of that money you can use your common sense i mean they got a six percent interest but one could also look at what the market did away with investments are doing in the past fourteen months they've had to use a one point seven million dollars sole was objecting soley to the inclusion of emotional distress in addition to pain and suffering on that instruction and two for him to tender an instruction that said exactly the same thing same thing as instruction five without that one line would have been a pure formality and mr hale's in his brief one of his own cases mickael which made a big deal about another issue sates of parys failure to tender a paper copy of a proposed instruction or verdict form is not a forfeiture of the record shows that the trial court would not have submitted the instruction or verdict sacking what was going on and would've taken struction five instead of the instruction that we wanted which was the same instruction but without the why for emotional distress and we have never argued that we could not recover for emotional distress it's quite clear from the record and the cloud way that i quote in my brief that you know that everybody in that and that in that conference researched this but in this case that i don't think it's possible to submit especially in derogatory on an issue that does not determine issue a liability so i don't think that argument made goes anywhere dionne is the third panel member here today and he is unable to be with us but he has received all the materials and he will be listening to your argument as it is recorded and we will be conferencing with him regarding the cases so