fingertips and this happens a couple times every month sometimes once a month sometimes a couple times a month and it doesn't just go away you live with that all day long you take it home with you take be profound and hopefully hopefully in the morning have in goes away it was another aspect of this injury that really stands out you're the only one that experiences you work with a number of different imagine going to your doctor after the first year of employment by not oh you've experienced this trauma at least a dozen times maybe as much as two dozen times and you asked the doctor what's going on now how many doctors are go say you're ok keep on doing what you're doing there's not a problem it doesn't take an expert to tell you what about the say the doctor would say stop what you're doing stop it right now you're injuring yourself that's just the status and it's exactly what happened in this case when he finally did tell the doctor what he was experiencing dr triad told him stop what you're doing facts implicate to fundamental issues in this case the first is whether mitchell was put on notice of the of his injury almost from the very beginning of his who point in causing the well mitchell understood what was causing his injury from the very beginning he knew that it was caused by his quater slipping off spikes something that he said occurred regularly and constantly isn't that enough to create a question for the jury and that's the biggest question in this entire case the fact that the injury has not reached max was severely they continue to progress does not alter that analysis supreme court luke who held the plaintiffs must again at diligently upon experiencing symptoms the employee must investigate and that only makes sense mitchell was the was the only one he knew that experienced these symptoms at some point wouldn't you expect that he would say ask yourself why me why am i the only one why wouldn't he see a doctor to find out why it was affecting him this way and no one of the job the seventh circuit noted that yury does not provide an escape for players who are aware that some type of injury persists it choose to ignore it and fail to seek medical attention know that it wasn't true but one thing that we could be fairly certain of is that we put together a sufficient case to go to the jury and that's where the greatest lies of the the trial court took this issue away from so overwhelmingly favors the plaintiff that no country verdict that ever said just do not see how they could possibly have satisfied that standard a court has no right to direct a verdict if there is any of us demonstrating a substantial factual dispute it doesn't have to be much all we have to show is that there is an issue of fact and that should go to the jury the same is true underpinning for contributory when you experience symptoms you've got to check it out you have to rest and you have to seek medical care head mitchell sought out medical care at an early stage this injury may never have happened there may not have been any permanent nerve damage certainly the contours of this face with changed significantly now then i mean he did nothing to work i mean  usually injury one that had he told anyone and any person on the street would say there's something wrong here you should check that out pain rating not your fingertips this is happening a couple of times a month where you knowingly accept the risk of your own one and that's not what we're arguing here we're arguing contributory negligence contributory negligence involved in a bird's carelessness unintentional failure to exercise ordinary care for your own safety that's what we're arguing here i takes no great stretch of imagination to see that a jury could believe that a reasonable person experiencing the same symptoms that mitchell cases you get an award for pain and suffering and that he saw the funny the concept of pain and suffering states that it includes mental anguish so how do we get emotional distress in addition that i cannot imagine a single pose situation where would be considered harmless your honor with respect and and i believe what you have here is that the jury was encouraged to look at pain in the physical pain and mental anguish is two separate elements of recovery both of which were should be accorded their own damages i think that the mental anguish in this case was super emotional distress ward was  very significant of and i think that with out that additional recovery line i don't think of those damages would have been rewarded awarded in any event how can we know what the jury was thinking what we do know is that it was inappropriate it was inappropriate and to establish that there is a difference in a bodily injury case between the depression that one suffers as a result of bodily injury and anguish and emotional distress when they tell them that perhaps you'll lose your arm but will try to say that perhaps you'll go blind but will try to keep your eyesight you have to wonder why this ever happened to look at the decision the big big but bishop i'm sorry states without any authority that the only supreme court says damages for emotional distress earth bailable to plaintiffs in cases involving personal towards such as medical negligence and they they cite the clarke he's the only supreme court decision it's an interesting thing happened here court decision came down about the same time as the  and guess what you look through clark's case coming this is not mentioned it's not mentioned at all so how did that happen it's because the illinois supreme court revised its decision before it became final and here is how the decision reads now the nature of the error is evident when one considers that damages for emotional distress are available to prevailing plane as in cases involving personal toward such as defamation conversion and misappropriation of i corrected its ruling it left out medical of malpractise decisions or other bodily injury towards accordingly the big indecision is without basis it is created a dangerous precedent one that has to be corrected because from now on no matter what the injury no matter how minimal you're going to have it of recovery for pain and suffering and emotional distress and it doesn't matter how much pain you suffered you couldn't you may not have suffered any pain because of your emotional distress you're recovering for the few years of pain and that's the  this a trial there were expert witnesses and other witnesses that were brought in from around the country and it's important to note i think that as you carefully consider this decision of this is stange will judge that the railroad does not dispute that it's negligent on dogg caused george mitchell to sustain significant neurological spine injuries that necessitated two spine surgeries including the fusion of damages with respect to an economic damages were excessive even though there are a million dollars where that the noneconomic damages were not supported by the evidence what the road is presenting to you in it simply because george mitchell did not rush off to the hospital and to the court room within three years of the day that he very first hired on with the rumor and that is simply not what the law requires to make such a finding would reverse of almost one hundred years now more of f e m a case law as well as why in the face of the united states supreme court precedent he had no cause of action during those early years of work on the railroad are because he never missed a day of work as just so brain noted he never obtained nor require any medical treatment he that statement does not support the law and i was dressed up with respect to the record on that point but what the evidence isn't here is i think it's important to identify the beginning because this will frame the major and they knowledge is that he started having come this in his first three fingers and the rest of his hand in october of two thousand so there is no evidence whatsoever that he had an injury of sensible nature and to the f b i way outside of the statutory period what is the guiding principle in this case not necessarily the f b i stand you because just as a three year statute of limitations but the case in your reverses times in  forty nine decided by the united states report it does address these types of human of trauma injuries repetitive strain or occupational disease and that case as was pointed out by both sides there was a long term thirty year exposure to silica dust which resulted in what the coroner characterized as a progressive injury symptoms progressed to the point that the worker became disabled thirty years after he first started working for the railroad and so there were the reverend argued to have a case dismissed just like you're here today that there should be no determination by the jury or alternatively here that is this is justin but the supreme court rejected that type of argument and said that  progression of the illness to the point that that worker could no longer work and then he was diagnosed by a doctor with silicosis and his career was over and soon after that he filed his civil action with a cork in that case determined that there was no reasonable jury that could have determined otherwise and so that issue was never allowed to go in front of the jury and in this case of mitchell it closely tracks with the supreme court addressed in europe because whatsoever that there was an injury which manifested in a herniated disc which manifested outside of the statutory period that fact alone is dispositive of the statute of limitations issue and under race out of the courthouse and file it right away but then he loses the right to bring an action of later on the symptoms and exposure accumulate and then manifest themselves into eternity and certainly that would be irrational and that would be contrary to the humanitarian purpose of the f eleven and that disposes of the statute of limitations issue now with respect to this contributory negligence issue on which the trial court also properly disposed of there again was no evidence whatsoever to support the submissions of the jury of contributory negligence the basis of the rare roots submission on its emissions would be that george mitchell to see earlier medical evaluation however as a matter of law that is not a sufficient basis to support the submission of contributory negligence that isn't contributory negligence there was no one case sund part of the road worker which adds new dangers to unsafe working conditions it's not enough to say that he should have stopped working because that constitutes assumption of the risk which is the feeling by statute and even if this were to be submitted somehow or another there was no evidence whatsoever to support the assertion that the record makes in its prevent here today that mitchell should've seen a doctor and that had he seen a doctor that this injury may not have happened that was the argument that you just heard but there was no evidence of that whatsoever from the company's doctor who they brought in from out of town he didn't say that dr wilkie did not say that in the course of that was cited in the rever right away he did further testing and so certainly there is no evidence that before the statutory period which would have been in two thousand and six late two thousand and six if you've seen the earliest symptoms in the record is late  got late two thousand and nine there is no little evidence on record that any doctor would have told me he should have quit the job that he had a diagnosis o tastes the willingness of an industrial labor to continue working under what undisputedly at least in this form are unsafe or dangerous working conditions is not something that i see is contributory negligence that is natural understanding that emotional distress is a compensable damage and is distinct from pain and suffering damages that this man george mitchell undoubtedly had as reverence counsel has admitted those damages  experiences when undergoing significant surgery and rehabilitation i don't think there's any dispute that those are compatible elements and so i would disagree that there is any risk of pandora's box in open if there are elements to support those the distinct qualities that are of the efi only claim and substance of law because that is the overriding consideration as opposed to steep or procedure in jury structures because even though i p i has its own format or instructing the jury would not be appropriate to instruct procedurally if it is not substantively correct and of the your way and so your honor to more directly answer your question perhaps is to say that yes congress was very specific in affording redbird workers a liberal remedy to entitle them to full damages for all of their injuries and the consequences of those injuries and that has been made clear in more recent you're united states supreme court he says such as a again i think that in any case one that is present and certainly cases that i've argued across the country on behalf of our workers these elements are always compensable whether or not it's on a separate line or not and i think that that really is just an argument a formal over substance sure he understands that an entirely different standard applies in philo actions there's a wonderful case i'd look for i can't find the citation but it's by rule on the second circuit and she said in feeling cases we may increase the lower the standards so much as she put it she goes we settle cases to juries that are as thin as engine bone soup that gives you an idea of the standard we were up against there's a reason we didn't argue liability in this case because we're still under philo the standard is so incredibly high that no one would bother really wasting their time with it the fact that he was getting these symptoms of a serious injury is a question that's enough to trigger the statute of limitations that's enough to require him to act diligently and seek out medical attention the way he was using tools we never really set our we've never suggested that he was what's it's not his use of the tools that makes a difference here it's the fact that he was the only one that suffered this particular type of injury failure to act reasonably for your own safety can be used as a damage reducing element in the face of it certainly does with the bar of the case it just reduces the damages and it is injuries they can get companies compensated for are emotional distress in bodily injury cases you can you can recover of pain and suffering and virtually all of the case law interpreted that phrase pain and suffering states that it incorporates mental anguish of the notion that this is of providing a sucker verdict line is harmless error that we were supposed to put evidence on that we were prejudiced well there's only one way we can do that is sit down with the jury and say what was going through your mind when you meet these these this warning and we're not allowed to do that the  believes that we did not prevail on that issue the fact remains that it is an issue of fact for the jury not for judge gambro the same is true for contributory negligence he pointed out that no experted ever testified does that increase the risk of developing permanent nerve damage unless the patient can get to a doctor early in his response that question was absolutely i don't know that we need to say anything more about that issue