attend to reserve approximately five minutes for rebuttal in this case as mentioned thank you you may but you need to watch your own time because if you keep talking after five your rebuttal time ok thank you as you mention my name is matthew c's and i represent the estate of douglas west in this matter today we ask that this court reversed the district d court and remain on for a new trial due to the admission of previously undisclosed expert witness opinion and factual bases which formed the basis of those opinions rule twenty six  amendments the rules of civil procedure they advise the committee recognizes that the purpose of this is to create a court mandated iraq dettori to disclose not only all of the opinions but all the facts and data that form the basis for that opinion and as the committee notes and cases have said that rule is given teeth by rule thirty seven and rule thirty seven says without even the need for a motion by any party a party that does not properly disclose testimony or expected testimony from a witness or otherwise shall not is not to use any of that testimony at any subsequent hearing or trial in this matter and that's exactly what happened in this case i want to talk just briefly through and go through the history in this case but i think it really  outlines what the issue is d we have a pretty standard exchange of expert witness testimonies in late two thousand and sixteen i'm sorry two thousand and seventeen through march of two thousand and seventeen and discovery in this case the not close for another nine months after defendants disclose their expert witness testimony and then a summary judgment motion gets filed by both parties to sort short we operate words defendants we also had a dog element to this where we objected to their expert witness testimony in that it was not actually an opinion on several factors and instead was relying on improper speculation  the district court ultimately denied that in the logic to go forward and deny our motion for summary judgment as well and the case was separate trial we filed a motion in limine attempting to limit that testimony of the expert witness to what was disclosed in that report and for the st time the defendants mention in their resistance the motion lemony that they intend to supplement this report to include additional d evidence and then we get to trial and entirely new opinions that were not disclosed in the expert report or in the deposition were attempted to be admitted through the use of hypothetical questions what is it in the hypothetical questions that you think is significant that wasn't conveyed in the previous disclosures to two things your honor st is that the witness was specifically asked to assume that a meeting occurred that was not listed in any document up to that point and in fact if you look at the deposition testimony and the expert witness report the expert witness says i'm not making an opinion he did testify consistent hypothetical and i have no problem with the use of hypotheticals in this instance at all that's absent totally proper way to do this the problem is that the facts that form the basis for that ultimate opinion answering that hypothetical need to and must be disclosed under rule twenty six and route twenty six in the advisory committee no it's talk about all of these facts need to be disclosed all the underlying assumptions have to be disclosed and that just did not happen and in fact if you look at the summary judgment ruling in page three hundred and thirty record of the joint appendix the court very specifically said in redress in our garbage issue in footnote ten the court interprets this as one group having no opinion on whether defendant's fully informed west not as evidence that they did so the district court is to state whether that's that satisfy the standard care he answers a probably that yes this satisfies the standard of care and not only satisfies it exceeds it again that that language that he exceeded the  standard of care was not in his report anywhere at all and in fact if you look at his deposition testimony that we have cited in the record mr wander says in my mind it doesn't matter if they talked about your revoke ability or not i just simply say number one that mark mccormack does not have the sufficient basis to make his opinion and number two who also that's required is that they advise him as a dissolution as a ability i still find a way that they did not breach the standard of care and that's really what puts this case on all fours with ten barge because in ten barge you have the defendant's expert witness saying here is a list of factors that i think could contribute to carpal tunnel syndrome and this and i have guided up i think the legal standard for ten budgets does the testimony sharply change yes and i think this court says makes a finding that the substance of what grows testimony was consistent with the expert report so now you need to address it with meaning whether it's what i said before in that the expert witness says st i have no ability and if you look at this report and it cited again in the summary judgment i don't have sufficient evidence to make the decision of whether or not they were fully advised in my opinion is that the standard here is that he has to simply talk about dissolution now obviously consistency is the standard i'm sorry i gave you a compound question you can continue to answer but i think you're right we are saying consistency is the standard i'm not certain that it is consistent i think that there is i think that you can do a natural extrapolation of the evidence if there is this and this is where comes into the it yeah i agree that barge says that but but it's not what's required under the rule of rule twenty six rule twenty six says that have to be a complete statement oh opinions and all of the facts and data are relied upon it and so i'm not certain that i agree that ten barges controlling and i think we are sharply different from from them i do agree that and that's enough where we get into this where we talk about what the district court recognized and followed our opinion entirely on our interpretation of wanderers report that one group had no opinion on whether defendants fully informed whites and now we take that short turn that you're talking about judge ben and in that it does now have an opinion so he went from saying there's not enough evidence to make that decision to now if there is enough evidence based on the assumptions you've given me and i see not only did they meet that  contrast and that's exactly what the ten time bothers case required and that's exactly the st analysis undertaken by the trial judge in this case but we're need to correct mr c anderson you know he eat what it was questions his st question on a hypothetical specifically said wasn't sufficient in order to meet the standard of care and then i'm sure the court recognized and i were using the word now and again it's not derogatory but the questions may become a little lazy reset assume what i just that asked you assuming the prior questions so the point that the district did magistrate judge sorry made in this case was but the hypotheticals asked the very same question except they occurred on a different date so it you know in reaching her decisions in this case that there they were not they did not sharply contrast she she was correct a judicial i would like if i could because of the time limitations and and again with the counsel for the plaintiff here in the reply brief having gone through it i understand why they brought up the headstrong tastes if it came odds after their proof was filed and obviously then we did not have a chance to address it after apparently is that position didn't go too well in this number crunching and the damage calculation that it did for these truck drivers who us you know slept in the berthing op you know in the back of the truck materially alter and did not clarify as the core pointed out his opinion and for that reason the court found that the little sixteen that been violated  judge's opinion related to the fact that the outcome in this case would have been not altered it wouldn't have been any difference on the issue as it relates to the op what happened and what she quoted  and the court recognized based on my arguments and frankly based on watching mr don the not he is a presence commanding in the core is just a fact on the jury was visible of the counterclaim where we saw where the where dissolution was sought and one could construe goes documents as they try to do out of context that the domino law firm may may have  they claim committed malpractise i have probably one of the best arguments i could use against mr mccormick their expert for you see as i did at the trial i argued to mr mccormick or questioned him how could you opine that three lawyers one who has practiced in the area this dissolution under the nebraska statute ever committed malpractise if you haven't heard one shred of testimony or statements either about their conduct the document is but i think the question here is whether you had to choose between using that strategy or using an opinion that was rather that relied on the forthcoming testimony that wasn't taken in the deposition the question is whether you could do both whether you could use the tactic you just described on the opposing expert but then have an expert opinion that's based on undisclosed what coming testimony i when i say met yes i believe  opp mr donahoe very detail i'm you know fifteen page paragraph by paragraph i stop statements to his client mr west that needed to be explained i knew there were going to be explaining op and we had disclosed him as one to explain those documents so i think that the court found we comply with rule twenty six i agree there was a lab  i i'm not disputing that based on a hypothetical based on trial testimony that occurred which is a rod under rule seven or three argument that you could throw out mccormick you can throw out winds roll but there's no way anybody sitting in that courtroom that lives even dominant testify was number one tossed out  testimony but number two i suspect every person that quit moon probably higher based on his knowledge composure is articulation and he steadfastly maintained what he discussed and said that they did not deviate from the standard of care so the jury had a number of options for reaching the decision that it did it up which is it which is  well if there's a flaw of the x i'm not saying there is or isn't a flaw of the expert situation but if that was one of the options that could have been a basis for their decision that we have to evaluate whether it was flawed that's my point  because you can't and we can't that's one of the very reasons why you can't overturn because there was a sufficient record here for the jury to reach a decision without truly am not trying to say toss it aside but i do what all we have to show is that there was a basis for the jury to reach this decision but we have to show the plaintiff so really the question should be asked to mr cease also how you ask him but i'm just not sure whether that's right if if he step which is that there was an error then you have to do more than show there could have been some other basis for the decision i judge pointed out there was under the circumstances that were presented to this jury norway and the jury and was instructed on a jury instruction number fourteen op i agree it was the reasonable person and mr last circumstances mr c's didn't put that in this reply brief but if you look at the jury in the way it was instructed and the magistrate judge's opinion in this case she specifically recognized that it's an up tick the standard of somebody initiatives number one he had turned down six million he did not want to retire to the not compete and number two mr fake and a powerful to a rd party for all those reasons we respect the request that this well for trial and the verdict remain person standard because you cannot make the decision based on what doug west would have done because you have to operate under the presumption that he wasn't properly informed so you then happening take the question as well would a reasonable person have done have they been adequately informed the nd issue regarding some of this burden of proof and would the result have been different the jury never even got to the proximate cause issue if you look up the verdict form in this case the jury simply said no as whether there was negligence that that occurred in this case they never got to the proximate cause question at all which we believe stablish is that they watching it on and these standard of care opinions that occurred in this case and not only was it enough for the jury to say no there was a question submitted in this case requesting if they could award attorneys fees as well and i think that the reason that that happened in this case was because there was under rebutted testimony from an expert witness in this if you look at mark mccormick's report  then his subsequent affidavit and his testimony our expert had something to say about that october rd team meeting and we believe that he would have something to say about these other five or six undisclosed opinions and we were denied that opportunity to present that evidence at all and i also take issue with the idea that the supplement was an extension or dollars but what is actually said in that supplemental is that the reading of the statute would give christian williams sufficient evidence to gain an understanding of the nebraska statute if such understanding was not already possessed and would have been sufficient to advise and communicate with mr west the potential consequences of filing for judicial the solution it does not say that they did give that information it prefers to communicate via telephone it is possible that the l g did express to mr west over the fall and the consequences of filing for judicial dissolution there's no method to determine otherwise exactly what is h e assuming there that that west was advised of the consequences he's just saying that it's possible and if you look at it it's just put it briefly in the district courts summary judgment ruling d on page thirty two and it's quote any sort of case there are verses that says expert testimony is you know best where it is excessively speculative or unsupported by sufficient facts so when he says oh d it's possible that it could have happened over a telephone call that's insufficient expert bases to form an opinion on it and that's why you see him in his report same in his deposition that i don't have any evidence other than what's in the documents and i just want to briefly touch on this idea that it was somehow our fault because we didn't take the depositions of these individuals we took every step of the overall to try to st learn all of the information and that was largely under existed when in this context except for their request to do the supplementation to try to limit and prohibit this additional testimony that was potentially going to occur