allow this case to be decided on its merits and not on this procedural technicality because this is not a novel issue it's not a unique issue it's an issue that arises time and time again in the context of personal injury litigation in  particular we as the travel tourney's who try these personal injury cases that deal with full of medicine medical records we have only this appellate process to obtain guidance as to how we are meant to conduct ourselves during the process of discovery an act trial and we need this court's clarification guidance on this issue because this issue is a common issue  defendant only has the subpoena responses that specially in this case upon which to make any further decisions regarding discovery when the plaintiff's does not obtain plaintiff's own medical records and does not disclose kind of some medical records it has the practical effect of saying to the defended as a disclosures did state that this doctor we anticipate that this doctor is going to testify to the information contained in the medical record it's no one you defended to go in subpoena those records and see what's there the defendant did with the  records for not produce apparently this particular doctor practice was to take the films and put them where we put them in his practice but keep the important part of this is that he made no notation whatever in his records not that next rate w this i were of the actual film be it during the hearing on motion let me that and even at that time i would argue it's still unclear whether or not dr de locker was going to show up on the following day with x rated films but that was the first time that i reason why just as holdridge is because first and foremost in the context of persons relation plaintiffs get the medical treatment wrong all the time it's understandable given the fact that the treatment is usually rendered years before we get to the point of the discovery deposition by virtue of the  you have to witness the only actually witness being called was a chiropractor so i given what i know now i do understand that given him what i knew then i did not believe that to be the case i thought that at the very least  that arises in a personal injury suit is that oftentimes for sure tejas reasons or to say because the plaintiff's attorney decides not to go and i paint their own medical records certainly they have the choice to do that but when they played for sponsor discovery  and provides no medical records in response to a two for us to produce and simultaneously gets to thirteen disclosures that are identical from doctor to doctor and say this dark is going to testify to any and everything within their records that puts the burden squarely on the defendant to go and obscene that medical evidence for the plaintiff that's where the discovery became slightly one sided but it became compounded when dr de la her didn't properly comply with the subpoena and then ultimately the trial court shifted the burden to the defendant and made the defendant pay the repr question of those x rays not being produced so in essence the plaintiffs have to take advantage of the fact that dr leifer didn't produce the x rays that made it one sided that's where the trial court heard because it didn't apply of the warrender or actors i mean tim that is the reason why this is so important is because there are certain policies that underlie our process of litigation first and foremost is that we as counsel have an obligation to fully defendant has to go on to to make a decision if you look at the responses pina for one hundred thirty nine visits roughly eighteen months of treatment this chiropractor doctor rendered the same three things were copied throughout iraq and there was no indication the doctor had anything more than brief we did raise the issue that we were denied leave but i think that how this court can reach a remained in this case would be to apply the warner park factors which is what the trial court should have done and that the request for a leave to depose dr goes to the fifth actor which was the diligence of the adverse party defendant subpoenaed the records defendant tried to depose dr to laager defendant brought the motion let me that the six factor in good faith of the party seeking to use the evidence or call the witness that what's lacking in this case and that's what was never reached by the trial court the in this particular case the plaintiff had the opportunity to access the doctor to locker the plaintiffs admitted during arguments emotional ltd the plaintiff had only the subpoena responses that the entire drat the first objection was nearly forty pages in and that related to when he was going to provide an opinion regarding disability the entire time that he was testifying for the next race there was no objection as required reserve the issue for review this was also explained in the illinois supreme court by your annoy supreme court in illinois state highway authority vs heritage standard bank and trust company one sixty three disputed evidence later introduced a trial party remains obligated to object contemporaneously when the evidence is offered a trial well there is not always and willing to repeat the objection each time similar evidence is presented following denial of emotional lim one must nonetheless object the first time the evidence is introduced absolute requisite objection the right to raise the issue on appeal this way if there was no objection first then this evidence was introduced  policy behind that is so once the judge actually hears the evidence that's being put before the court and in front of the jury the judge can make a decision that makes sense i'm going to try to hold casey in this case that could have been the judge saying you know what i'll let him testify about the  copies service for medical records now those subpoenas i did not specifically request x rays and what they requested were any more clinic or doctor's records notes memoranda medical reports x ray reports index cards history notes and records medical bills in all of their records and reports in the possession or control relating to the examination and treatment of amanda include omid not limited to charts notes nurses notes  reports correspondence and memory and there was no specific request for the actual x ray films and that's a very common in most cases because x ray films are often expensive to reproduce and part is not always want those so you know your back to see if you want those he records and then they put including but not limited to and the types of things being requested certainly did not include films and they asked for x ray reports kind of if i understand them but we were not the party and the defense never went out and made a specific western blot those films in a trial never had their expert review so what happened was these subpoenas were sent out they got a phone company copy of the records from dr gallons or exclude all reproductions of the  point the defense took the deposition of the plaintiff at which point she testified they guessed he took excerpts now if they want to use x rays and they wanted their expert doctor or so to look at the x rays before provided his opinions in fighting his deposition they could have correct now in hsing wary of two thousand and thirteen was it happening that the judge said do you want to take in you have to depositions do you want to take any readers depositions and they made a tactical decision not to take those that positions and two deaths he need to do those before we get to retain expert disclosures they chose not to do that they didn't disclose their expert the deposition spankin and they changed their mind and it's not like they don't know what their own routine expert was going was well that relates to the handling of the case you can't object to lack taking that position at all so when it comes to issues of evidence in the case you have to object when that evidence is submitted to the court f two witnesses intriguer that's it closed they were coming to court that day actually yes that day the motion of the notice that for the day after which the court made the decision on that day they were coming court to set the tri deposition of dr gallagher despite the fact they will be taking that deposition only months earlier before and the only change between that time was the disclosure of their own expert who they had every opportunity to talk to before his deposition let me rephrase  it was that order i don't have the exact pick for that order i'm just going back to the issue of waiver of the introduction of the x ray evidence the cases that have been cited by the defendant in this are the hudson case in particular is a criminal case and the criminal standard there is some dispute over what the standard is and factors there's disputed rulings within the circuits as to whether emotional woman in a post trial motion is sufficient but there's never been a civil her hand in pinion that it simply doesn't exist x rays don't help me because i don't believe in that diagnosis so i don't do them in my practice and i would normally look at the x rays for potential herniated discs that were done in the e r that this should  examination of dr gallagher so if they were so surprised they were certainly able to keep him on the stand for almost a whole day and question him about all of his opinions and records which was really the main issue how long she treated with him and the and arguably i left the order to enter but the plaintiff had prepared the order that i had waived any right to depose any treating doctors there but there was no order closing discovery and i made that clear in my motion for leave to there was guilt or closing discovery nor had any trial date been set at that time we were showing up to set a trial date i fully anticipate that we'd be able to do that the one question i didn't hear you now say that rays that question wasn't addressed during the appleby's argument and that that's really what strikes at the heart of this is that as what i was trying to lou too is that this comes up in personal injury locations time and time again and it doesn't really matter the reason the plaintiff decided not to go up to run medical records but it does matter that we have a policy that the drafters put in place when they enacted our rules of discovery and her just to participate in good faith and if the plaintiff makes the decision not jumping the records and put that burden on the defendant to go without taint the records for the plaintiffs then the plaintiff assumes the risk if not all of the records were produced in this case not on the record for producing the defendant was ultimately surprised  responses upon which to make that decision in this particular case those subpoena response as it wasn't just about x rays the subpoena responses those records essentially can't contain the same three words are three or four words four hundred thirty nine visit so it was a tactical decision at that point that of what i believe i can drop from doctor to locker on cross examination concerning what if anything he actually provided to this  i think justice schmidt is overlooking is that when when the conflict occurs when you've got it witness sued or sorry a party hussein i think i had some x rays but then you subpoena the records and the records don't contain any mention of x rays and i think that's important that there was nothing in those records and again x ray but when you have that natural conflict there's only one party good opportunity in access to the doctor to find out what was going on and there's only one party who intended to use those x rays at length in their case  chief that was the plaintiffs that's what's missing it was it was then it that's why the warner court factors are so important because they get the trial court a mechanism for balance in equities i honestly i don't think it really matters whether it was intentional or not intentional the point is that the trial cour had an opportunity to balance everything and if the trial court had employed all of those factors as it was bound to do and not abuse its fraction it would have found in favor of the defendant because the think that had the opportunity to clarify this the defendant did not it was not the defendant's burden to go and find the medical evidence for the plaintiff and with that i would ask that this court remand the case for a new trial or alternatively remand case for trial and damages only with the instruction to exclude the x ray films and the opinions regarding the x rays