recovery when it is not proven likely to occur and in fact in the bill instructions plainly provide a paragraph to be given or plaintiff seeks both damages likely to occur and not proven likely to occur and so if it is a situation that disagreed the undisputed test morning he said slightly but if it was reasonable for the jury to find that it was not likely they should have received their instructions so they could determine just how  to you that there's no authority for that in your side you don't want cases and i don't believe that there is anything out there that says that this is intended to force a plane to find a doctor that says no i don't think you're likely to have surgery the evidence is what the evidence says if it's free so for the five prior back to find that it's not likely to occur then they should be able to determine the probability that then it should be remanded for a new trial for injury to find a reasonable decision within what those facts are made the right point it is true that i am i p i thirty point zero four point zero four discusses when a paragraph can be used when a plaintiff is seeking both filon type future damages and future damages that are more than likely not to occur however the paragraph right above the state's care must be used in drafting instructions for some of the future damages are established by greater than fifty percent likelihood of occurrence and a less than fifty percent likelihood of occurrence what i would take this to mean what i i think is correct and what the trial judge that would mean let's say i get an axe and i heard my handy on my eye doctor says i have a twenty percent chance of infection in my hand but it's more probable than not that my foot is going to become infected well then we would have a situation of two different types of damages we would need to instruct the jury that with a hand you can go ahead with these done type instructions but the fight would be a more future he's getting along nicely he tolerance the pain of it would really be more of a personal choice that assess to be so we think it's less likely then you're both destructi really think that's what this all boils down to and he's playing well you know already claims boarded fifty back but you through the presentation of evidence proves that there is some likelihood some possibility but less than fifty if you don't get both instructions you would get zero right whereas if he was willing to say it was only forty nine percent  believe my factor but if you don't believe my doctor go ahead and assign a percentage of press anywhere from one to forty nine percent and there's a couple rounds with that first of all the fact of having to use both instructions if that was going to be the case i don't know why the separate instructions why isn't there one instruction i mean why would never plaintiff want to do this if you're not going to believe my doctor here if you don't believe him go ahead and sign something lower i don't think that's the case  fifty percent still involved future injuries which were not reasonably certain to occur there for the traditional all or nothing approach would still fire when a plaintiff proves that his future injury is more likely than not to occur and that's what we have happening here he's saying it's more likely than i have to occur now first of all or i guess moving on i think that my first point is clear that the the instructions should not be used together it's an either or it's not you can't both  basically what he's planning to do and have them pick a percentage like i said from one to forty nine percent but he has given no evidence whatsoever that there is less than a fifty percent chance i'll think that's the second point let's say he doesn't get the instruction also that i have said that things that he has trouble doing now you also have difficulty doing that maybe they would say that his pain isn't isn't something he's going to it's maybe it's not more than what he had in the past where it's not letting him and then he's back and the surgery i do feel the evidence does not establish that he would endure increasing levels of pain and that he was like that it was necessary that he's going to have the surgery goodbye briefly make a point about the jury instructions regarding the act speculation by the jury and i know that players are going his reply brief that there is no speculation because dr gratings testimony and this fifty percent there's no evidence for that whatsoever all of the evidence is over fifty first time there's there's nothing under fifty percent we're just going to throw it to the jury and without any sort of medical evidence with the under fifty percent well asking them to just completely pick something out of the blue and i don't i don't think that that's proper i also know that an the players are viewed that you should be permitted to recover for all speaking back is that prior to the gun case if it was a life then fifty per sac and risk of a future injury if they weren't allowed to recover not now they are but if you either way he is allowed to the lack of any evidence to the contrary for the jury conclude it's not proven likely to occur these instructions would have assisted them in determining the proper  reading st i think it is likely to happen he's going to have it done something done at some point that is testimony of a proc probability if it was with in the purview of the jury to discount th probability these instructions would be a system of properly determining those damages and deep point of view on is that this is a plaintiff's one shot their one chance to recover damages the doctor thought he's likely to have surgery he thought he was likely to have surgery evidently the jury disagreed notwithstanding that had they been instructed on this they