courts heard earlier this morning this is a safety appliance act case the jury made a factual determination and found that the safety appliance act was violated by the burlington northern remote at the time this case deals with the jury was instruction instructed as to the damages that were involved we represented to the court that we believe the jury was misled into not awarding anything more than what they want was suggested as to the wage losses of mr shaw we believe that the evidence is clear that the trial judge in this case was in error and determining what the factual basis for damages were i've pointed out in the brief of pages eleven and twelve the various sections of the transcript that relate to the damages that were proven to the court and to the jury pool we believe that the jury was misled in that it appears quite clear that the jury only awarded a figure that represented mr paul's claimed wage losses and by giving the generic f l a instruction the trial judge erred and abused his discretion and that's the standard that he applied to himself after the case  tried and after the party submitted documents supporting and and i both strong emotion on those particular issues we believe the case law is established that if a trial court fails to prop plane struck the jury that it is warranted to appeal that decision and we feel that there are is sufficient statutory authority to support our position  necessary for mr hall to have offered a modified instruction in order to in order to preserve that argument under the circumstances that we had your honor i don't believe so there was an alternative instruction that was a model th circuit instruction that was submitted after the initial generic f e m a instruction was submitted after we objected to it following the testimony in the case that supported giving the more detail instruction we submitted that instruction from the court but the court laid out clear in his order denying our motion for a new trial that there was insufficient evidence to support the allegations that we were suggesting and the specific instruction both instructions or i believe eighteen point seven of them missouri model instructions the way this developed i believe well can i ask difference that the court's instruction omitted a reference or the omitted the element of future pain and suffering is that what was that what we're arguing about here certainly that was something that was discussed at the time of the trial and was taken into consideration by the trial judge yes your honor so while is there anything else what is the element of damage that you think the jury was not instructed on the strongest element of damage jurors not instructed on that there was evidence in the case of was the future payment was pain and suffering up to the date of the trial and ensure pain and suffering as well yes is that both parties were instructed by the trial court to submit a proposal instructions before the case even began and after the nd day of trial with the jury selection and the testimony of the plaintiff given that the judge conducted a jury instruction conference at that time after the evidence had been submitted to the court relative to the damages of the mr hall money and from testimony of his surgeon is nurse practitioner and the records of both of those individuals that were submitted and made a part of the record before the court the jury was not instructed that pain and suffering was an element a specific element of damages in the generic instruction that the court fell back on when he refused to give the modified version of eighteen point seven that was suggested by the plants of setting forth the various elements of damages that are allowed under the safety appliance act and the federal employees liability act we feel that mr ball was clearly prejudiced as a result there of what we're seeking today is that this court fall in line with other courts that have determined that if a party is not given the opportunity protect present a complete case and their thirty's are the case  that in an f e l a safety appliance a case one of the theories of the case is that a person is damaged as a result of some failure on the part of the railroad to provide a safe place to or so we feel that because the judge well what where would we find the evidence supporting the element of future pain nurse practitioner that provided a great deal of care and treatment to her and i have cited a transcript preferences page and a line in the in the venner last summer when we tried this case made it nowhere with respect your instruction what he did certainly didn't constitute an abuse of discretion and we believe this court ought to affirm the judgment below to the starting point where i'd like to begin which this was and it states the law concerning the damages that can be awarded and i'll want to read the st paragraph if you find in favor of the plaintiff and you must award the plaintiff such as you find will fairly and justly compensate the plaintiff or any damages you find the plaintiff sustain any damage it's a broad instruction so there's been discussion in the briefs and there's been discussion today about specific purses generic construct as we've correctly stated the instruction but you would agree that those instructions are not law you're correct your honor the court trial court is not bound to follow the instructions what the court is bound to do is offer instructor read instructions that are consistent with the law of the state and i don't think that your papas argued i don't think there's been any suggestion that this statement is somehow inconsistent with the law so this distinction between a specific instruction versus whether it's time to let mr papas arguing is that the court should have added two additional paragraphs to the instruction but what he's saying is that the court should have added language that frankly would have narrowed the scope of what the jury would have been allowed to consider the optional language and again all of those paragraphs that are in fifteen point s comments make clear that those are optional provisions that the court may give at his or her discretion by including those what the court is telling the jury is all right i told you just seconds ago you could give all you can award the playing of all in any damages that you find the plaintiff sustain limited to these so what he's essentially saying is the court should have limited hit the instruction which is counterintuitive and i think contrary to the point he's trying to make here today counsel isn't the real problem here is that without a specific instruction saying that pain and suffering damages are permitted that the jury could have understood that they were not allowed because of their instruction saying that they couldn't speculate i don't believe that's the case honor during the instruction conference and the instruction conference here actually went over a period of a couple of days as mr pollock pointed out we submitted instructions very early on and coincidentally his proposed instruction substantially mirrored the language of instruction that was actually read by judgment but during the course of the conference actually it was that after the nd day after all of the evidence had been presented we didn't object to them raising this issue at the time but at the end of the nd day question i think it's important to point out the paragraph two is the earnings the plaintiff has lost today and the present value of earnings the plaintiff is reasonably certain to sustain in the future so he has proposed instruction which as you pointed out a moment ago he's required to do to preserve this objection spoke directly to your economic damages which are lost wages there was zero evidence at trial presented about future lost w and i think if you ask mr papa in rebuttal he'll believe knowledge so if the court at accepted his proposed instruction and read it the court would have there because there was you absolute zero evidence of future lost and go back to the question that you lost wages this instruction was it was inappropriate now he could have modified it he could have removed section two he could have frankly removed paragraph one and maybe put some language in in the introductory paragraph speaking to future damage but he didn't do so and i think counsel the reason that the waiver question is a little bit difficult here is that it's clear that the district court was on notice that mr hall was willing to accept a modified instruction on pain and suffering so it's slightly different than maybe some of the case law in that he didn't offer a modified instruction and yet it was pretty clear that the court was on notice that they would have accepted understood but i also believe  was his obligation to properly preserve the issue and before you today to argue that the court made it ehre to have presented an instruction that was appropriate and proper and that is not what he did in this case for that reason we think reviewing a did a number i'm quoting this is a case that we didn't cite in our brief because it came out after filed it but it was the worst her opinion and that were of two thousand and nineteen when reviewing a district court's refusal to adopt proposed instruction we consider a three give the instructions seriously impaired the parties ability to present an effective you have to demonstrate demonstrate prejudice now if when you read the discussion that occurred during the instruction conference judgement or made it abundantly clear the plaintiff's counsel that he had free rein to argue damages however he won bound of course by the evidence that was presented and he did make art he spoke to and suffering beyond and begin to argue for example that there would be lost future wages without any evidence to support that it would have been my job to object but he didn't but the point is he had free reign to argue whatever he wanted with respect to damage and the fact that he did not do so or chose to do so in a particular way is not be an s s fault it's not the court's fault but it's that is how the jury came to its conclusion based on the instruction and his argument so we believe put the jury was well informed about the issues involved in the case and nothing in the jury instructions including the very broad instruction number thirteen the damage instruction precluded mr hall mogens brett now as i think i understood that at least part of the claim here by the appellant is that the evidence was sufficient to support the element of future pain and suffering and counsel has referred to pages eleven dollars twelve cents of his brief which describes kind of generally describes testimony from dr jamison and nurse practitioner trip back if we go to the transcript or we're going to it was neither one of those witnesses testified live it was deposition opposition testimony sure so are there references to things that might happen in the future if you can going to continue to hurt was or expert opinion testimony within a reasonable degree of certainty no and judge better pointed that out there was no expert medical expert testimony sufficient to submit that issue to the jury so direct answer question how was their testimony deficient well i don't believe that the magic questions were asked to establish true medical expert opinion yes i think that bothered judge better it's not on the record i can't  again which there was actually no it also true but his comments yes if you look at it very narrowly he was referring to this but it was i believe his intent it was broader than just focusing on the human suffering element was also focused on right you have to minutes your honour's i would ask the court to review who the closing arguments of the parties attorneys in this case you will find that it was as  truncated an argument as i think i've ever given in a case because of the instructions or judge found her that he wasn't going to allow certain types of evidence into the case oh s o please look at that you also see that counsel for the railroad indicated and i'm going from memory now and i believe this case was tried two summers ago not last summer but as i recall also for the railroad asked the jury that if they were going to give anything to the playing of just give lost wages thirty five thousand dollars and that just happened to be the amount of the verdict in the case we feel that that's much more than a mere coincidence but it shows that the jury did not consider any damages about which they were not given particular instruction or that they heard arguments from the parties about thank you your honor thank you counsel with respect your arguments this morning