happened in this trial is the line from the movie for rules we don't need no stinking rules if you were to put the transcript of that the defendant test will be offered on the wall with your darts added i suspect that four out of five dollars would hit parts of the testimony dealing with her prayer medical conditions this whole case was about her medical condition there were hours and hours of testimony about things like back pain she had when she was pregnant fifteen years earlier what if good that had to do with a shoulder injury of men or the case is about a lady that goes into an art and looks at a dishwasher and it tips forward off the shelf or she thinks it's going to get forward off the shelf and she reaches up to catch it and there isn't any question that the dishwasher wasn't bolted down because after it tips one of the employees goes over puts the bolts back in to hold it on the shelf that really that really was an issue the whole case is all these medical testimony about her pregnancy about things that happened ten years earlier about all kinds of stuff that is absolutely in no way related to this into the parts of the body aren't even the sa if i were to ask you if you have a cavity and you say you know yes i do i have a cavity and then i call your dentist and he says well actually he has six cavities and therefore on the guy who impeachment i can now offer all  medical testimony about any health care that you've ever had on the grounds that impeaching it has nothing to do with the case impeachment has to be on a material element of the case and whether or not she had back pain when she was pregnant or she had a sprained ankle ten years earlier doesn't have anything to do with an alleged shoulder injury that occurred at the at the store and the interesting thing is and in here's what is really interesting and this was an issue before the court there is not one word not one doctor not one witness label or otherwise that said what the spring court said you have to say that somehow those injuries are related to the current complaint no one said that they produced absolutely no evidence that that was in any way related to the issue that was before the court on that ground alone the plaintiff should be entitled to a trial without all this clutter without painting the picture well this lady's got lots of problems so she shouldn't get anything in this case she's had pain for a long time so in this case she shouldn't be able to recover and the other issues the court should consider is the testimony defendant's alleged expert he testified that he has evidence deposition that in every case without limitation in every case a person who has a soft tissue injury heals within six weeks and if you don't heal in six weeks you're faking from the get go you don't have any injury and therefore the stent didn't campaign and i filed a motion to bar that testimony on the grounds that it's junk science it's not consistent with mainstream medical literature most injuries healed within six to twelve weeks but not all of the medical literature the deposition here other doctors would say that somewhere between five and twenty five percent of the time people don't feel it be nice if we all did there never be any doctor's yeah it's not really all it's really most and but i still think she's fake and then we go to trial and the trial judge doesn't bar the testimony of it's everybody but further tha know allow us to let the jury hear the second half of deposition that was supposed to clear this up where the doctor said well i didn't mean all i meant most how how important it can't be i mean what's the point of going back and taking the further deposition if you can't say either one it is junk science and it shouldn't have come in in the first place or to at least allow the jury to see the whole thing and so that you know even this guy doesn't really need it's everybody it really is as medical literature as the science that we know it's most and that you can't say at six weeks you draw the line if you're still hurt me after six weeks you're fakery we believe the court erred in either allowing that testimony any alternative not allowing the jury to hear the whole picture of which would have been simple to do simply by allowing us to read as we asked to do the supplemental deposition that the court ordered us to take for those reasons we're asking the court reversed the  complained of pain want all different kinds of body parts she therefore must just be a complainer and you shouldn't give her anything and that is what the argument was that's the only reason the supreme court says we can't do that so if we can't do it we can't do it honor in the he opened up the door on the lack of pain that she talked about having after this accident as a result of the accident one thing that i would make very clear is this plaintiff did not walk into court and simply say i have a shoulder problem and therefore i want damages for my shoulder it was much more than that in fact it was the school that she said was related fifth digits and low back she basically covered everything the first witness that mr heller called was his client and he got into and her did you have any problems with pain in your arms before the accident and she said no clearly opened the door and we are talking about the same problems and pain she was talking about in this particular case and asking this jury for so we weren't going all over the place at all in fact i think it's important to note when i when i read the appellant's brief and he talked about all we wanted to talk about was the pregnancy i wasn't certain that we were actually talking about the same case it was mr heller in his questions with the plaintiff and during the evidence depositions of the treating physicians that talked about pregnancy in fact he brought it up being the plaintiff mr heller at eighty five eighty six of the record one hundred one one seventy seven and one seventy eight i didn't ask questions about pregnancy now going back to the supreme court case of boy i brought that up to the judge and said here here's our guy two thousand the supreme court issued its opinion in boykin and then in two thousand and three in two thousand and fourteen the  i agreed to void in case says evidence of prior medical didn't jury has to be relevant it really threw out the same part of the body rule that we have exercised that we had previously and explained it really as really is more of a relevancy rule the same part of the body was more of a bright line test and it said certainly evidence of prior injury or medical condition will be introduced for example it can negate we had the luxury and the benefit when i say we i'm talking about everyone in this case he treated this plaintiff before and after this accident he treated her four days after the alleged incident and thirteen days after the alleged incident he ordered an m r i and reviewed an m r i dr leventhal there orthopedic treating physician there witness testified that i looked at everything i saw what happened here before she had a herniated disk going to want she had to generate this disease i looked at the m r i and there is nothing that happened at menards on october twenty two two thousand and five that caused an injury there is nothing that happened on october twenty two two thousand and five that aggravated and or exacerbated injury these matters related to her prior problems very compelling their the witnesses but even more than that prior to mr heller's involvement in this case under supreme court rule two fifteen the defendant and the plaintiff agreed that at two fifteen the impartial medical examination would aid the court to determine what is happening with this plaintiff's medical issues the plaintiff agreed it would be necessary the plaintiff agreed it would  the poor the plaintiff agreed that dr richard laymon orthopedic surgeon in st louis missouri only after dr layman issued his report did they start complaining about whether he should have whether they like the report or not dr layman examined the plaintiff he looked at all of the medical records he read the plaintiff's deposition and basically the part of her saying dr layman tell us where these planes are these pains and complaints are coming from and he told us he said it has nothing whatsoever to do with the alleged incident at menards it has everything to do with her prior complaints and keep in mind when i cited the record quite often we see that all the time oftentimes you'll see an aggravation of a preexisting injury but i point blank asked dr layman dr do you have an opinion with the resort of your medical certainty whether anything that happened other than our story on october twenty two two thousand and five aggravated than to be able to talk to and have the plaintiff's own treating physicians who treated the plaintiff before and after and also having an impartial medical examiner saying i've looked at all of these things she had prior problems and this thing that happened at menards had nothing whatsoever to do with her pain and complaints impeachment again i very much of the planet testified about out of the chute that she didn't have any arm pain back pain shoulder pain for this accident so of course i'm allowed to ask her oh wait a minute isn't it true that on may fourteenth two thousand mere five months prior to this alleged incident that she went to the emergency room you were in such pain you had to go to the st anthony emergency room and why i was there having that pain seven on a ten scale i had arm pain all the harms eight on a ten scale and this is after she just told the jury that she didn't have these pain and problems at all before this x and this is a mere five months so course it goes to impeachment of course it goes to negate causation and of course it goes to negate and or reduce damages the complaint was initially filed that if you look at the medical records concerning the history provided by the plaintiff to the doctors you will see she says a dishwasher fell on me and i didn't say it fell on the floor plaintiff's counsel made an oral motion for a bride hearing well and i stood up and said your honor l o l courts are pretty clear on the wall it's pretty clear you don't get a fry hearing unless and until you can convince the court that something the doctor or the expert is saying is new or novel since the friday hearing on the scene expert correct the one that they agreed to the one that they said that yes we need this absolutely so i said judge there has been shipped here we are the day before trial there has been absolutely no showing that what dr laman did or didn't do was new or novel people mind dr lehmann very  didn't rely on anything any junk science in fact here's the discovery that here's the evidence and here's the supplemental deposition read it please she goes back in her chambers and she reads those things and she comes out and says i agree with the defense there is absolutely nothing in here that was a jest anything was new or novel in fact if you if you really want to get into it if you go back and look at the other stuff position that i put i didn't say a word about whether or not all soft tissue injuries here within six weeks that came out of the blue from plaintiff's counsel and if you want to go look at those depositions you'll see dr layman says that's not why i issued my reports i have a lot of experience i do a lot of exams i review the medical records i reviewed everything in this case my opinion the opinion that a plane to end up not liking was based upon my examination and my tests it had nothing whatsoever to do with some notion that soft tissue injur the plaintiffs basically told doctors galatz and doctors dr prager i didn't have any of these problems before the accident i didn't have any symptoms before this incident and all the problems are related to this  the treating physicians concerning this and i actually put a lot of the testimony in my brief doctors dr dallas for example said i asked if you had any problems and she said no i have to assume she's telling the truth now i don't know why the plaintiff didn't tell her this to the doctors yes but i don't know why the plaintiff didn't tell the doctors the whole story or that five months before this incident she went to the emergency room complaining pain in her neck shoulders arms and having pain on the eight to ten scale taking by couldn't but the doctors did say yes i assume that she was she didn't have any problems because they asked her she said no so again that's just another way to explain and what the other doctors are saying so again we had dr leventhal dr shu the chiropractor who also treated  before and after who said no i don't think anything happened as a result of the october twenty two of five when art incident i was treating her back shoulders and arms beforehand from one nine hundred ninety four to two thousand and four the same parts of the bod was was not given that i think yes i can ok first of all i don't recall players counsel asking that the supplemental deposition be read to the jury i made it happen i don't recall that but i did what i do recall is prior to the deposition i wasn't going to take another evidence deposition mr heller could have and had every right to have that deposition be his evidence deposition he chose not to for whatever reason but in my opinion what judge cody said about perhaps resolving the issue was just to a dentist by the basis of dr layman's opinion as opposed to eliciting the opinions who addressed some of these issues and said ok why don't we go ahead and if if you can go examine what dr laman did or didn't do in another and another supplemental deposition was a supplemental deposition evidence deposition was not it was junk science that mr heller want to do that he certainly could have done that but again once you read the supplemental deposition you will see that it was not a factor there  junk science there was nothing whatsoever to do or novel about anything dr laman did or did not do and i've heard the red herring work once today this indeed is a is a red herring the jury had multiple reasons to find that there was there should be no damages i have really talked about the facts but all in the couple minutes i have remaining i think it's important to note that after this to the hospital what did she do she went back to the dishwasher aisle and she admitted and there was another boy he was there she started checking all the other dishwashers to see if they were screwed in because keep in mind you couldn't you walk in any way or push your cart any way that would indicate that she was somehow injured in any of the parts of the body she didn't go to the years later the same day she actually finally did later that day after going the camera design area going back to the dishwasher while going to the front desk and spending ten or fifteen minutes talking to them which was caught on surveillance after walking picking your kid up out of the the car taking your purse carrying your child right on to the car putting him in the car what your grandmother's house and later the day went to the emergency room and left so yes and i think it was a very poignant moment to moment the trial there was actually surveillance of the pla while she was at the front desk set the lights off in the court room and we watched it and i can tell you that there was nothing at all on that surveillance which would indicate that she was at if you in reverse order judge cody's ruling that was in regard to the evidence that was issued his words were we can solve this let's reopen the deposition and the depth of this that we were supplementing was in evidence deposition there is no reason why i couldn't take and ask questions that evidence deposition there's no reason that that supplemental deposition should not have been read at the time of trial and it certainly would have been fair counsel suggested to me in the evidence i did and the supplemental deposition but the jury never got to hear that now counsel says to you none of these previous injuries were aggravated leventhal and the other doctors say it was an aggravation of a preexisting injury then what's the point of putting in the preexisting injuries simply to prejudice the jury counsel can can argue his view of the case that she wasn't injured but she still entitle to a fair trial and the point of boy can was that you don't get a fair trial if the defendant  his past injury in front of if counsel version of that case is right that in every case where plaintiffs have a prior injury that injury comes in and the case means absolutely nothing because the defendant says well have you ever had a prior injury if the plaintiff says no i wasn't having symptoms immediately before then under their theory all this stuff comes in because it's empty and if they say yes then they've opened a door because they've been to do a prior injury that cannot be what our supreme court meant when they restricted as opposed to expanded the rule we can't get around it that easily because if you do then that case means nothing  it isn't impeaching because it's not material i mean if any of the doctors had said and none of them did not even the ones that he referred to not even dr lee if any of them it said i think that there's a relationship between the problems that she's having now and these primaries i would make this argument but they did dr lane is that there was no injury whatsoever it's not an aggravation we believe