we have two fundamental rules applaud issue in this case the first is that we all know that to preserve the issue for you jury trial must file a post trial motion and the reason for that is simple public policy favors correction of errors at the trial level the second is that there is no need to file a post trial motion of where the court where an issue has been disposed of by directed verdict and the reason for that again is also simple because once a directed verdict is issued the judge affectively takes this case out of the realm of the rules of the jury trials the plaintiff would have this court adopt an entirely new rule of law one that has never been recognized by any court they claim that no whose trial motion is required no post from motions need to preserve and issue for root for appellate review if the trial court disposed of a separate issue a separate claim by directed verdict and we submit that adopting that rule lies in direct conflict with public policy of the state as well as directly contradicts the of those section two dish twelve zero two of the code of civil procedure as matter of fact i believe that this court would have no choice but to rewrite section to dash twelve or two of the codicil of procedure and the question  postpones here is why why should the court do that in this case of there's another question that is directed to word of a place counsel why not why not file a post trial motion following a jury of verdict food verdict if you believe that there have been errors that that gave rise to a jury's verdict and why would you not want to bring those errors to the attention of the trial court why would you not want to give the trial court a chance to correct those errors in the first instance is that asking too much is that placing too much of a burden on a party to merely ask the trial court to review  partial directed verdict on the plaintiff's theory of informed consent that statement is true they never raised a single argument anywhere in their brief success in the trial were aired in or the jury of the child to be born to the doctor this regard that information that leads to some negligence of doctors heart but the jury finds this record  maybe the jury could have viewed this instruction say no in this regard all prior to the birth itself that's that's my concern here and i'm just wondering you raise an of alleged made a number of allegations regarding creek delivery tests that they believe should have been performed me and that those tests had they been performed would have led to results that would have the doctor to more accurately inform light of the risks of natural childbirth and that's always been their contention they have never suggested anywhere at the original trial that these allegations of a failure to perform tests had any connection at all with the actual delivery of the child and if you'll note the to allegations involving delivery involved of inappropriate traction t which arguably the judge said you should disregard in my brief i argued that they never once argued that that there was any error in the jury's verdict never said it was against the manifest weight of the evidence they never said that there were trial errors they just they the they just completely abandon the issue and i was wrong to say that if you look at page eleven and twelve  brief and they clearly lay out at precisely what you're talking about here your honor the state that was briefly referring to the epperly spree where for the very first time they think the failure to by depriving plaintiffs of the necessary underlying evidence they were unable to fully argue the remaining theory to the jury but hey that's that's how they can clear that where's the other big trouble you'll find on page twelve so when i said that they have never called into question errors that were that occurred in the jury trial of that sets in correct your honor now you may recall when the great research would say that's appeal now for the very first time we have played just suggesting that there were errors in the jury trial that affected the the jury's result his virus then it correct that they first appeal they attacked single issue is expert testimony required and that's from the st john case and i really very much appreciate this for clarifying that issue once and for all i was so tired of dealing with that a waiver getting back to the point  from when the trial court granted directed verdict he dismissed sub paragraphs eight through j and two of those mentioned failure to inform but the other paragraphs tests and had always wondered what is that part of the you that they'd always taken the position that those allegations were part of the failure to inform now you look it's page two of the brief filed in this that we're dealing with right now and they confirm that they say these were the allegations we made to support the claim for informed consent so we're hearing this from now for the very first time and here's the question i asked when the court said i believe i have your honor i agreed that you know i i disagree with your ruling that expert testimony is required but nevertheless we still need these allegations to go in front of the jury why didn't they say that and when the jury they objected to the directed verdict on the basis that expert testimony was required never once if you read the transcript i have it sitting right housel table never once did they suggest that your honor you you to that instruction did they in a general instruction basically that you're in or objection it was a general objection i'm sorry there was no specific objection saying that we want to maintain the allegations for failure to perform and it's at your request that the court then instructs the jury with regard to the this missed out the evidence pertaining to it i don't recall who made the request but i do recall that the judge agreed with th still must retain the failure to conduct tests that should be the jury should be allowed to consider that so this is a forfeiture argument essentially based upon their their failure to file post trial motion motion oh ever that's up to the trial court to determine whether or not it was general or specific or not in either case that they should have filed a post trial motion stating those allegations that a failure to perform tests should have been maintained in spite of the fact that a directed verdict was issued we need those allegations to support our claim or that went to the jury so fire stand your argument  of favors resolving these issues at the trial level and they objected when that the jury instruction went out specifically saying we want to maintain some of these allegations don't strike them all that's one point trial jury trial on the negligence issue in either case had that post trial been more motion been filed those issues all would have gone up to this court and this court could have decided whether a specific object  statement to the that they that they were not going to get addressed any issues involving professional negligence that's why there's no oversight no it was well it was an intentional voluntary voluntary and they gave us every indication that they were abandoning that issue and they were going back to trial on informed consent only why should we file a petition for rehearing it just there was no reason for it as from a from our point of view had they raised any kind of argument at all in their brief certainly your honor we would have asked for clarification now they really have a trial court angry at this point is dietrich complied with the standard of care well then we're back up here for probably a third on that an issue that should've been resolved in the very first appeal well i was trial and means it's a trial to know which in essence means the first trial never happened and as a result your order requires the trial court to have a new trial as to all the issues the good news though is  retry i'm sure there's a keen case and there is  then i agree and we agree that we had an obligation to bring a post from a motion on that issue to stated the judge from and you made an error with respect to the instruction on the professional negligence thing it's a different issue when he enters then issues and instruction that was suggested by the defense counsel and objected to by us specifically saying we should be entitled to present all of the evidence to the jury even if your brain taking away the lack of informed consent claim is that objection was made to that instruction and at that point to say to say to the judge in a post trial motion while you're directed verdict motion was an error and so everything you did as a result of that an instruction which by the way it's a two or three instruction and the two or three instruction is meant for when one party is directed out and not one issue is directed out so counsel for the defendant revise and modify the instruction happened that changed forgive me if you've ever watched back to the future of the time space continuum changed ok and as a result and i can't tell you that there's going to be a defense verdict or a claim just verdict when you send this back down say that we're just challenging the directive birth and if you look at our original brief i have the copyright here and there's a whole section that says each and every decision and order which were further steps in the procedural progression of enforcing or otherwise remaining consistent with the court's order granting in part the defendant's motion for directed verdict should be reversed and in that we specifically said centrally what we're saying now which is the whole trial ended up being changed and as a result the judgment of september twenty third two thousand and fifteen needed to  but i guess i'm not making my point clear i don't think we need to have said well there was something wrong done with respect to professional negligence claim what we're saying is because of the directed verdict in the instruction that went with it fact that the would be directed verdict and instruction took place and as a result everything to happen after that was affected that's what we argued and presented to this court in the first place and then we requested the relief of a brand new trial on all  council in the initial appeal made these arguments this was before this were all right and whether it was your father or whomever you enter in order for manning for a new trial and under the clemency case that means that the trial court is then supposed to interpret what you mean by that and just drummond did that we think appropriately he did that for the same reasons of what i'm presenting now and is a result i think ahead so what should happen is they should have brought up a petition for rehearing or a motion for clarification or something instead of waiting to go back to talk about lack of judicial efficiency the most efficient thing that would have been done particularly since especially since we've argued the way her and forfeiture issues and you didn't specifically address them but you entered an order that under illinois supreme court cases requires a brand new trial de novo and my position on that would also be not since it's a trial the novel based on the court's own language that it didn't happen it's just is if it didn't happen which is why when you have a trial to novo an order for a new trial without specific instructions you can even amend a complaint we can amend the complaint based of the jury verdict to include other allegations of negligence so long as they arise and they meet the porter requirements for being able to relate back under the statute of limitations back to where we started and do this right the first of the second time and make sure that it's done right i have no idea whether or not there's going to be another deal he could be that the case goes in perfectly and there's no error the second time and there could be a jury of her for the defendant or there could be averted for the plaintiff i've had the misfortune of and good fortune of having cases that go to trial on early i try cases that don't get appealed because one side or the other i've had  not appeal and pays a lot of money because they figured out there was nothing to appeal and i've been in situations where i've tried a case and the judge unfortunately for my client and for my so didn't make any errors here we have an error in the middle of the trial after the presentation of last several days you can only consider this narrow aspect of it and by doing that he changed the course of history so to speak and what this court did and what you did with and i think correctly so w we have to start all over again and because of what happened at the trial court and under circumstances like this it doesn't make sense for us to have to go back to judge strawman and say your directed verdict was error and as a result your jury instruction was  and as a result we're going to try and get you to say well there should have been a new trial as to the professional negligence what good does it do us to ask him for a new trial professional negligence heavy verdict on that and then have to come back up here on the informed consent issue because even if we win in a post trial motion assuming that we have to file one we're still stuck with only the professional negligence claim and you've already ruled that the informed consent claim needs to go to the jury as suggest here on earth if you look at pages twenty eight and twenty nine of our original brady well how about the conclusion and with your skin your conclusion i think it was first trial to great kate to reverse that no that's not true we asked for vacation of the of the director her and we asked for a vacation of a final judgment we asked for first of the final judgment and we asked for a new trial all those things were our conclusion specifically asking for all those things and i'm you and say you made a mistake we need you to clarify your mistake we need to know what it is you're going to do and i'm sorry i don't have a case that i can get to a mediately but i can get to the case and i can give you language from from the supreme court case but once an issue has been raised on appeal and the opposed court has made its determination it's richard catto i mean it's already been decided and their obligation is to come back to you and not to go back down to the trial court and get the trial court to rule on a motion and women and all they had to do was come back to you in the appropriate period of time and say we don't understand your ruling can you please clarify was your necessity for motion or aren't or not and was or necessity that is the argument that we have in the brief sufficient or not and they fail to do that once they fail to do that the trial court then is in a perfect position to say send it back assuming that you send it back her own new trial on all issues you know it's possible that there's going to be a claim this verdict and it's possible that they want to appeal it it's pretty likely it's going to be a court of appeal is you know what well we know it's not going to be be so must judge from him commit some sort of error which i think is highly unlikely there is a sharp crack i think there's a really good chance it won't come back or appeal and no matter what there has to be another trial and we're waiting for this court yes the court to reverse each and every decision and order entered the trial court which were further steps in the procedural progression of enforcing or otherwise remaining consistent with the court's order granting the defendant verdict in other words they were asking to reverse any and all orders related to the directed verdict now had they said in their in their conclusion we are asking for a new trial on all issues we would have jumped on that we would have addressed that it would have been a major portion of our brief as justice of turner mention why didn't you file a petition for rehearing the reason is we looked at their conclusion they never asked for a new trial on all  heard that's all they asked for i think it's also important to point out that there is no case what directly on point so there have stood scharner one reason for accepting this appeal is that we may very well have a case of first impression the another point they never linked the failure to perform tasks with the actual delivery of the child they never did matters that's the way we took it that's the way we of of prepared our defense and it's only now here in the second appeal that they have linked these failure to perform the allegations of with professional negligence it's never happened before didn't happen in the trial court and if this was an issue they should have filed a post trial motion and let the court figure that out get that thing that problem resolved at the trial rea