insufficient we prove that mr mcdermott's conduct was not only negligent but was also but also that his neck gioconda was proximate cause is that as required by law despite defendant's repeated assured assurances and reassurances to the trial court over summer months that contributory negligence was not an issue a case that wasn't going to be an issue in a case and that they were not filing and had no intention of filing their from the f the trial or allow them to do so after the start of the trial you know can i just will it why don't we have a record when there is a record why don't we have a record report of proceedings there there there  have some of the specific testimony and i now see that and love is as i mentioned in my reply that was really an issue which i don't think that it's really are going to make an issue that this th trial it wasn't discussed it was never presented a jury i had made a motion to the extent that there the report was incomplete or the trial or the court wanted to see the specific testimony of the specific witness but this tried he says you've prepared your entire case based on several years of of no contributory negligence ever being pled the court's already made rulings of no contributory is coming in and now the court is going to allow them to defense counsel and then you zoom in on september fifth so the case was filed in july two thousand and eight the law requires that be a moving you have a good reason for a while why all the discretion is all allowed we are the defendants can show that there was a good reason why they didn't do it or rather they never offered they knew about the missing beloved ins arguably as early as two thousand and nine when they received the results certainly vice number of twenty eleven and their two thirteen expert dr kaufmann gave the opinions that mr mcdermott was a drug abuser and they out there were that he must have died from an overdose so if you're not calling now the no will call so now i prepared mikey certainly now i have to go in and shift complete theories literally as i'm picking a juror it and actually the formal pleading wasn't filed until after the j cross a line that will doctor isn't it possible that these missing pills might have made their way in and contributed to that so now the whole the whole case it's in play now and then remarkably after the case is you know judge we can't meet our burden on who should be tory negligence so you know what we want to withdraw we don't need it we don't want to well of course they don't want to keep as they haven't been able to prove it the judge refused to strike my  no longer an issue in the case and you should disregard for your deliberations that was an accurate statement of the procedural history of the case at that point the judge refused it refused my request for a mistrial again the procedural eleven and then they don't even file until after it literally after the jury's pick it gives is happily unfair it's it's procedural gamesmanship that was forcing me to jump through hoops as the state as the theories were shifting you know i have to go first i have to confront that contributory negligence i thought i did a good job of it i was prepared to argue the case and contributory negligence and ask the jury as the required to do to compare the relative all of the defen had things happen nobody laid those missing pills to the cause of power it's like throwing out while the plaintiff had a couple open beers in the back of his car gee we don't have an expert who's going to link those ears in order to protect the record after i had done everything which i believe i could do in terms of making appropriate objections is that at every point your honor if you're not going to if you're going to allow them to withdraw contributory negligence and not give them the of contributory negligence was predicated on a commitment in the court used that word i'm more than a few occasions own doctor often and dissipated accomplis on me and frankly i was looking forward to the cross examination because d kaufmann opined that yes mr mcdermott although he had no history of drug abuse was a drug abuser and that because of all these missing pills the presumption is he must have eaten him and that's why he died and i was going to look at look at that decisions on my part and maybe in retrospect i should have moved to strike dr hoffman altogether but i was actually looking forward to it and once the court allowed contributory negligence issue to be in play i really had no choice but to address it and i did address and i thought i dressed as best i could but that the table had tilted playing field itself so it tilted so much in favor that now i'm trying to backtrack while i'm jumping through these you know first there's no the accomplished indirectly what they couldn't do directly and that was showing that mr mcdermott without any supporting property test going to reasonably remember certain was a drug abuser and that these missing pills that no one pursue the lesser offense of simply challenging that of the plaintiff's case and they did so on two elements of their case both standard care and causation maintaining first that dr sharma did not reach the standard here in any of his actions and second his actions were not proximate cause of the seasons death and there was ample evidence to support both arguments and the plaintiff doesn't object to the evidence concerning standard here or whether d actions were a breach of that standard and with a general verdict that fact alone the fact that there is no objection to the evidence tending to stand care is enough with this court to affirm but that the plan focuses on the evidence that the students death was proximately caused by his use of pain medications in amounts greater than dr sharma prescribe and that is what the plaintiff is described here in court today as the missing pills evidence and we can call it served because that is what the evidence was it was evidence that this season had been prescribed a certain amounts of pain medication to control his pain and based upon what he had been prescribed in the descriptions you've filled there were certain amounts of those medications that should have still been in his possession of the time of his death they were bills missing from that couldn't be found and so that was the circumstantial evidence that he had taken more of his medication than he had been prescribed and that was what the defense put forth as the proximate cause that is that an alternate proximate cause even if dr sharma's prescriptions had been excessive now certainly the same evidence would have been relevant to an affirmative defens that's not what's at issue in this case the same evidence was equally relevant to the defendant's attack on plaintiff's elements of proximate cause equally relevant to the argument that dr sharma's actions were not possible cause of the seasons death and the withdrawal of to be tory negligence defense didn't deprive the evidence of any of that relevance what's at issue here is whether the missing pill evidence was relevant and admissible for the purpose of challenging the plainest case there is descriptions of what it was expected to be admitted the report of proceedings consists solely of the defense counsel's opening statement in closing argument which he described and he expected to be admitted and describe but none of the evidence itself is there all that we have is the general description of what evidence was anticipated and what evidence had been admitted and it's not enough the substitution the the pens on the contention that there was what mr check calls evidence of contributory negligence but what there was was evidence and has been described evidence regarding causation possibly relevant it to an affirmative defense and the defense did consider bringing that to the jury and even did file the affirmative defense certainly would have been relevant to that and they elected to pursue that and put it before the jury but it was no less relevant to the elemental question of what was the cause of the disease that the circumstantial evidence that he had taken more of the medication and even prescribe was admissible for the purpose of causation and it was properly admitted for that purpose this is not an issue that's unique to contributory negligence and whether the scenes conduct was negligence or not is beside the point whether it was bad conduct is beside the point is your take suggestions morning that the defense accused his client of being or his apartment the seat of being a drug abuser is simply nowhere to be found it's not in the record it is certainly not our at least on the record because the record doesn't have most of the trial but it's also not in those limited portions of the record that are there the fact is that the trial judge limited defense counsel to arguing only that more pills have been taken than were prescribed and specifically bar defense counsel from saying anything to the effect the scene was a drug abuser or that he was trying to kill himself that he was a bad actor in any sense of those words it limited the evidence simply to the question of whether bills were and when they might be gone and the record is that that was what it was a limit that the defense counsel respect in fact in the mr effective acknowledges in his brief that there was no statement by defense counsel to the effect that contributory negligence the plaintiff's actions were nonetheless relevant to the question of causation and that principle governs this case as well whether they were negligent or not is beside the point it no longer matters because the affirmative defense was not put to the jury  ultimately withdrawn the jury was never even made aware that contributory negligence was at ever then an issue in the case but despite that fact the question of what the deceiving had done with his medications was still sit considerable confusion and contradiction in the plaintiff's argument as to what role contributory negligence should have played in this case mr check insisted the defendant should not have been allowed to file the affirmative defense in the first place concern matters that are uniquely within the trial horse discretion and they are largely based particularly with regard to the amendment pleadings on the question of prejudice and the manner in which the plaintiff was prejudiced there is no nothing in the record defendants albeit in a lesser amount and the defendants shows to forfeit that the facts that's within their prerogative and they gave that up they gave up the hedge against the bad word but in any case all of that is relevant to one element of the minus case but this is a general verdict all we have is the jury's verdict return journey verdict in favor of the defendants and we don't know we can't know because there chad is absolutely correct in all of his allegations of error all of his allegations of error pertain to something that may very well have been harmless error it has to be regarded as harmless error under his usual because for all we know the jury general verdict was based upon his conclusion that dr sharma did not reach the standard of care it may never reach question was that's that's the principle that we take from the first is which decisions in a versus awesome tate in particular that's a case involving an error in jury instructions that concern proximate cause and the court concluded that even if there had been an error in those instructions it didn't matter to defendants on every element that was put to it one of those elements was the question of whether dr sharma breached the standard of care that's an element that the plaintiff had to establish it was a disputed element there was again we're hampered by the state of the record but there is discussion of evidence in the record and serving thank you there is a discussion of evidence in the record concerning expert testimony that dr from the ones he offers no reason to distort the jury's verdict and for those reasons the judgment on that r the general virtually ron's it's never been a basis to affirm verdict in cases where a party such as this that the fan that abused procedural rules resent highly prejudicial evidence this case well again as far as the record goes the op the record i believe this is sufficient in that we've outlined throughout that the my description of the evidence that went in means one or another we're going to get before this jury this notion that all these missing pills is white guy and they were going to get that so really what they're saying is it goes to proximate cause no is the truck were pointed out and denied them continually this is not proximate cause issue evidence this is not small proximate cause this goes to the conduct of the scene and you're comparing it to the  defendant and that's why the court i believe even abusing his discretion lpn said fine i think this should be plenty long time ago you go ahead and you know please contributory negligence that was the predicate evidence and argument and now you know what we don't need it we don't want it we want to take it away well yeah i objected got the jury just for forty five days of evidence an argument about contributory negligence i don't want to contribut it so i do to argue it without an instruction letting the jury know this is only all that stuff about missing pills and abuse and misuse is no warren issue so i tried i tried the best i could in closing but the bell been wrong testimony of these witnesses were all this missing eleven ins and the abuse and misuse issues was presented to them and i think i should have an opportunity with to the extent that it's not clear or the where the court doesn't take their or their lack of