unduly affected the outcome this morning i want to discuss two of those issues first plaintiffs remarks in opening statements and closing arguments six and all and second the truck court's exclusion of rachel your rose relative he is retained virtually exclusively by the defense and i remember when i was in a lot of vision that was very detrimental once he got over sixty percent well it was my common sense that the that's not what this case is about at all the problem that we have with the council zero is that in the deposition plaintiff's attorney in cross examination said you were hired to retain and next thing you know this witness who  out of it i mean i'm sorry not anymore he is a mayo clinic trained board certified neurologist over the course of a forty five year career he's taught at the university of minnesota has published and learned journals  for the state of minnesota he has been on staff at a number of hospitals i think as many as twelve at a time he stopped seeing patients as of two thousand  i'm sorry he had no clue what a suspect was as i said this cross examination and we're talking about what goes on to be an expert that now is the most recent things in the field is that you can be was a closed case so therefore we're to look at the all of the alleged errors and say if there was a substantial error that it should be reversed yes how was this a close case in what way i'm not i'm not disputing that i'm not just n the beginning she had a head injury and over the course of time here treatment that was meant to deal with a head injury and the defense basically said she was either exaggerating or her factors were making it up and he had an expert come in and the defense side to say that there's nothing to this claim of a lingering head injury does it make a close case it's a close case because you head this case turned on the medical testimony the jury if it believed dr galbraith would have been entitle to who disputes the testimony oh we're witnesses and experts on the other side it becomes a course case i'm saying that you had substantial evidence and both sides and the jury could have believed i mean i mean what other evidence to the difference well i mean we certainly had the fact that she didn't we had objective examinations that showed a cat scan the that that was a close well i think i agree it's would not have been conclusive it would have been for the jury but the point is that instead of simply making an argument that's based on the evidence ok on either side of the question we had a strategy and it came to bear especially in closing argument i talked briefly about the opening when the reference is made to the fact that he's made a career out of being predictable and made a career out of predictable with a factory owner somebody going off the fence a pizza report i don't know where that came from i think the testimony was he did four or five a week that's become a factory on a somebody line and then of course you have the defense trained comments about he's gone you know from coast to coast from maine to san diego back and forth again raking in millions of dollars counsel i used to try cases like this and you know very often on one side of the v you had people who did almost all their work for plain and he had people on the other side of the v that that almost all the other over worked for defendants i mean that's what you guys brought to the dance floor here you have to dance with the guy that you brought well you know i can't speak to i  understand in terms of experience but if you look at cases going back looking go back thirty or forty years to reagan versus visit overseas so persist gibson there are certain remarks maybe it's like george carlin seven words that you can't for hire they have no place they have no place at a trial and the worst i've said one of the witnesses the one who said it all the lawyer said was you were hired or retained maybe he'd made a career rocket made a career out of it elected not to use the trial court ruled that we couldn't use it because your own had not been disclosed as a rule to thirteen fact witness but rule two thirteen didn't apply when plaintiff was the one who took the effort cross off she was in the cross walk if we were to accept your position that this was here even to the abuse of discretion standard to bargain for rule two thirteen then we get to the issue of whether it's harmless or not and we have again your expert dr galbreath testifying that the circumstances of whether she flew through the air air and your own witness says it doesn't matter why is that not harmless or i don't think it's harmless error because look even putting aside what dr galbraith said ok how are they surprised how are they prejudiced in any way by having your old testify instead we have a trial lawyer who has to sit there during the trial and there's no way to rebut the closing argument when plaintiff gets up and says and and flew through the air the way that that's testified at least it would be a discipline problem counsel saying here experts testimony diminishes the believability that this was really harmful when he says it doesn't matter to him i don't know why it should matter to the jury i think but i still think that would be up to the jury to decide that once again it's we have to say something about dops we have to try to  one question from your brief they are seen you're trying to a trial they're trying to make it a demarcation of the medical treatment they after a certain point that the treatment wasn't related to the accident was that right i believe that there was medical expenses were fourteen thousand but if trial your trial lawyer stipulated that the medical damages specials were actually twenty five thousand dollars it doesn't that doesn't  the stipulation though may have been to the fact that that it was we were necessarily siblings of causation but simply stipulating c it was a stipulation just for the foundation objection to trial but he was cumulative the only objection the trial had to do with whether or not he could be revitalized not no one at no one ever objected at any point during dr cohen step testimony that he was cumulative and in fact if you if i had the pleasure down although obviously at some was a man that was a hired gun as a witness this was this this was this witness if you bring somebody like that into the court i'm sure you're going to have him cross examined then surely counsel is going to have a field day i thought well signs there are clearly lines and in this case he was not called the thousand here for ten years it's two and half million he called that he called the factories at what he was referring to at that point by the way was not the doctor but rather the various businesses that the doctor worked for that he identified that furnished expert witnesses who whose business it that the defendant's counsel get for trying to have ya is evidence deposition introduced was that she was going to say that the plaintiff had crossed on the green and i think by her argument she was hoping they used to say that the card had the green li find some reason to find why her testimony should not have been admitted she never saw anything all she did was run ten feet forward with the s u v behind her does indicate in all likelihood the point that was tossed some distance as everybody said but she never said she never saw resus correct when he raises the fact that if you have a fact that somebody actually was airborne for ten feet or same thing as being tossed through the air i think that's in my preferred specifically but the bottom line is the if the hour had taken the stand she could not do anything about that because she didn't see it that she didn't know if she was knocked up back sideways all she could say is i ran ten feet forward and the v was behind me when i started that was the i was deposition testimony it's hard to see how that would have changed anything in a case where the evidence is all stacked one way unless the court has some specific questions for me we've made all of our arguments in the brief and i would stand on the p we weren't offering we weren't withdrawing our motion to bar because we wanted to present evidence about the colorful light we want to present her galbraith and all of that look there are rights that are drawn in the courtroom there are certain words that are beyond or certain arguments that i submit are beyond the pale they have no role in the courtroom they are demeaning to digital process and to the medical profession the judge is the most important person in the courtroom the jury in the jury's eyes the judge is a person that commands authority and respect this might have been a very different case if the trial judge sustained some of those objections in that event maybe the point of wouldn't have gone over the line and i think he did go over the line and to the same  and to the extent that he went over the line and of course if any of the objections of the sustain it would be a different case because presumptively sustaining some of those objections could have cured at least some of the harm but by air was every bit as prejudicial here as it was in the reagan and cecil cases that are good law today as they were the day they were entered for all the reasons sub within our brief again