when we file the case we have seen a lot of letterhead refer to decatur home health care services like they were separate and it turns out their own in whole by the king of the oil spill well when it was pointed out to us that's fine we invented the  would include an unnamed defendants we didn't argue that either that's great effect one of the things that runs throughout this case is that we never really think appeal we never disagreed with anything judge bolger said it's just that none of it had anything to do with the cause of like even if you decide that's a separate theory altogether we we have to leave it isn't cycles for that reason the rigor case says in plain english that if a cause of action is dismissed without allegations which must be proven to establish liability what we had to prove to establish lab building was negligence the death of nurses that caused our clients death whether unknown defendants or  whether the care home health care is owned by the hospital or not whether my client has been named administrator or not has nothing to do with the allegations of the case that we have to prove in order to prove liability so to me the defen of the reasons for that is it took us quite a while to get the a nurse's depositions done so that that count was dismissed almost a year and a half before the first person depositions of the the judge recognise that if something came up that showed that there was understanding because of the problem and that's why he wasn't being turned who was being monitored then you could read file an amended complaint so we did you term that we could grant the motion to dismiss the other counts negligence counts with leave the two of them now what does that mean is that what happened to the institutional something indicate that you are going to abandon it but again as i mentioned before with anything the judge bolitho did that we felt was wrong and we want to appeal those decisions were already this one other question and yet that sure about this case is it yours  don't have strict liability in a foreign country that's not coming back for emergency personnel ahead of unity and that count is gone it's never coming back that's to a man is granted then brazed judicata is not implicated and in my hypothetical a separate defendant was dismissed with prejudice and then the simply because lee to a man who was allowed plaintiff in that situation no would not bar the position from being able to climb race judicata here if the position was dismissed without leave to a to test by circumstances even if you look at the amended complaint that he didn't allow i mean that's what we're supposed to do it really really sort of does focus on what the issues have become to discovery one they didn't med that's why we did it and i had totally unaware of hudson because i was it never dawned on me i was filing pursuing two different claims of smiling a claim based on medical negligence based on that the nurses  twenty two letter has to be prepared by doctor but the testimony about nursing care has to come from the nurse of the navy the question of communication between one of the other so i mean we did i reveal six twenty two letter was  from a doctor but we have never included a physician negligence in this case if you look if you look through the pleadings and we had a straight never end up in this case it's always been just against the hospitals nursing staff  leave to file yet another version which judge dimond refused him because it was different in its allegations in the complaint counsel suggests that somehow just little was critical of judge time and i can only say the plaintiff's problems were multi factor old but to thirteen was a problem for him because he didn't make disclosures in this case because he made many different applications and filed many counts and he had no business filing in this case at all because they made no sense those little was not critical of judge simon the the issue in the case contrary to what counsel says was never the same it's true it's the same it is but it was expressed about one thousand different ways in this case there is there was a claim by mr word to brother individually for medical expense and there was no claim like that there  was in the second amended complaint there was supposed to to tional negligence count play for the first time and the court did dismiss those did give leave to file an amended complaint with the proper certificate which the plaintiff's lawyer never did and he could have done that but he would if he did it and if he intended to preserve it he would have had to take certain steps that he did not do which is to the well there are various things and we point out of our brief three think of different things that a plaintiff could do to protect himself under and i might say also in that second american plate for the only time in this case the alleged physician negligence which he any admitted to the judge i don't have any basis to say that but and so in the second minute complaint that was one where the court granted leave to follow of the complaint on some of them he did that's correct and if the plaintiff had chosen to go on and on and tried to file a certificate to sixty two certificate that was appropriate he might have been the difference in richter is that the court early on dismissed a complaint gave leave to repeat within i think twenty eight days the case goes on for three years and he doesn't let long last he takes a non suit well the difference in that case in the supreme court i believe in that said yes you're not that's not a judgment on the merits you can do that the difference is he didn't plead over as he did in this case every time in other words here in this case if we simply had one person and all these things were dismissed early canada yes but i don't think the met there are no magic words that make it somehow not appealable with prejudice pretty much answers that question but if he says if you doesn't say anything it doesn't in many instances pacifically said with right to to amend within so many days i mean thirdly so you think to yourself ok that's not final but it can be depending on what the plaintiff does it becomes f there is see how many of these in the first of many well i think only one or two of the counts complaining from the original complaint institutional disappeared distributional negligence claim disappeared  vast overstatement the case went on for seven years not because we didn't give him when he says or what about this hypothetical it just take a simple auto case two counts one based on negligence one the claim splitting is the fact that an institutional negligence claim is separate and apart from a malpractise claim against a doctor or nurse it's a totally different theory different things must be proven in the case against the doctor in the second the man who complained he never replied that that would be claim splitting because an action against a doctor is totally different from yours different things you must prove different  individual by the brother in the first case for family expense act and who are other recovery individuals he didn't have that claim it doesn't exist and it was dismissed and he never tried to replace it he couldn't have one apart from what the order said so the claim splitting a right almost any medical negligence cases involve the same injury here it is survival and the death of this man this middle aged man goes in for stomach stapling surgery he's dead two weeks later suddenly and unexpectedly this is a devastating illness very rare macon county has a hundred thousand people statistically one person in macon county will get this disease in a year so the claim is somehow that the nurses could have made a difference if only if only the nurses had for example come back that last day and seen what was happening if only the nurses had been more attentive while they were these are totally different theories against the defendants the injury is the same as always in these court cases injury generally is fairly single and so and and simple although the medicine may be somewhat complex but absolutely if it's that simple then why are there nineteen counts with a request filed two more and replete he was given twenty eight days the rationale of the core design understood it was look even though more than twenty days go by the judge might have allowed him later changes mind to proceed and i was standing you didn't early on him in the hudson case on the other hand there was there was in the case a dismissal of the negligence claim and there was no need then for them disposed of in the initial filing it could have been which is a rationale of how it's so in this case all these various really regimes of this complaint some of these things were truly address there but they could have been i mean it's it was there was there was a there was no permission granted the follow on to well that's right that's what the supreme court seemed to her that no i don't think so in hudson i don't think you know that goes back to my there was a suggestion that maybe we should have warned the plaintiff's lawyer that there were dangers in this matter and we included in our brief some of that conversation that occurred with judge time and plaintiff counsel talks about well judge you know maybe i'm just going to have to take an answer i don't know what the hospital wants for both through all this again and the judge under the circumstances will district here what about that you want to do that again to the judge look this case is going on worked out like that i'm telling you i would have been caught on this case like mr walker was i would hope that i would do file all these counts and have complicated to that extent but i mean it is it is i think little known i think it's a danger to plaintiff's lawyers i think it's something that you know it's it's harsh as i say ultimately in order for  nerve and adjudication on the merits is that right i think that's overly broad i don't think it really says that i think if it grants leave i think and you go on to lead over then i think it's becomes final by reason of the plane actions in the case can you explain that to have it because this is what we're talking about here it occurs to me that that would be an interlock a tory order that dismissal that allows plating over right and less it's improper venue lack of jurisdiction lack of an indispensable party that is on the merits when the case is dismissed is then appealable at that time even though i know in the normal course you know we go along and the judge says ok leave to appeal the two men within twenty eight days and you think ok they're going to do it sometimes they don't but if the party does replace yes then looking back at that order of the cases where the judge last for twenty minutes is going to rule against me he hasn't looked at the answers to the iran and to me this book months to go through and all that information is right in there if you look to our answers in iraq authorities full disclosure is right there and it was just a total waste of time  any time after in the case they say read it's dismissed with prejudice and the judge allows the filing after even with prejudice who wouldn't you need leave after twenty days runs i think her so but i think i but i think what this case say is you know we would sense and i just think the rictor language is very very clear maybe because they're not real happy with us and decision is if you read judge chill prices cent and hudson you can't but conclude that he and the judges that side with him correct i mean there's hundreds of cases on this now getting into these issues of whether it was dismissed without with prejudice and it was a terrible in the hudson case you couldn't bring back the e m s people because other possible meaning can that have other than that you have a year under the statute to refile refiled claim and if there had been any cause of action that had been dismissed with prejudice prior to that then i'd have an