your briefs we've looked at them part in portions of record so we're familiar with your case you don't need to go into a lot of the facts but there are several interesting facts of this case so what each side is fifteen minutes but we don't are watching this division stretch since you're familiar with the case i will just briefly point out this is about an injury to a baby a newborn a cut on her hand and the way it's been described is that the cut was afterward just below hours following her birth i think there was no there was no dispute if it happened afterwards it's not going to happen without negligence it was a definite resume issue on the other hand if it happened during the c section with the scalpel then there was testimony that so we know that that means that was much of their thinking evidence was pretty closely balanced i would say in this case each side had their own expert saying you know neither i think it happened during the  during the c section dr simon who was the president who we actually did the surgery said you know it more likely it happened during the c section dr kraus the attending who was there during the surgery said defense it was the two physicians who saw the cot after it was made dr caplan needed to challenge just who was called in when the nurse discovered it and dr  did the initial repair surgery he was called in to that same day they both said this was a scalpel wound that it could not have been made by scissors or it was definitely a you know with lizzie carrick cut on both sides when the doctor did this demonstration or as you say experiment in front of the jury yes it was ok i want it that would cut to your advantage as well would it not normally if there's a that these were similar circumstances in the key areas namely the scissors that cut the baby we don't know we don't even know the because the issue what they were trying to refute was the testimony of the two doctors who actually saw that want who said that it couldn't have been done with scissors what we saw couldn't have been done with scissors unless honor if you look at some of the cases we cited in particular the thomas case what they said there was the problem is when you have conflicting testimony you know yes it is no it isn't it's so much easier for the jury what's going to happen since nobody and explain how this works and so then they had this made up animation thing which disagreed with their own expert said that animation is not one of her so that was a pretty easy one frankly for us to say no  no it doesn't prove there and he had two bases for that he said newborn sometimes the finger is a kind of stuck together i suppose with blood or fluids he said if the incision was not all the way have two point two million which naturally is going to be at the really high end reasonable and you're not talking about i think it is fifty thousand and they have this accounted for with the  disfigurement as bad as it is to say don't worry don't be an opinion thought you throw off the bench that's in my friend's house like works let's go back though a concern i have in all these cases so you say well two hundred fifty thousand is too low you can see that yeah and two and a half million is there two point two million is too high this is too high normally what happens in my experience is that the party sit down to judge before trial and they decide what they think is reasonable and the judges frankly don't like to do juries in my experience they want the parties to agree and so again not this will not be i'm not asking what the offer was or what the how far apart they were that doesn't matter but the end of the day when the two parties decide they are not going to meet they would rather twelve people because there comes a point i think when commonsense reasonable ness and fairness demand that when a jury is out of control when you when you've had them being told things like or hearing things like you did you know doctor that the hospital destroyed the medical record side to show that a cut could be made on the carrot without going as just as when he said no hot necessarily touching both sides and in fact the cut was made on the carrot simply to n to use a character when that when they first realize that you have a character back when i cross examine dr cross and i was put dr cross on as an adverse witness she was not up to thirteen witness that i couldn't disclose and i use this a demonstrative aid that when there was an objection popped it right from the beginning with writing that there was in a band leader yes i'm sorry there was a jackson on foundation and the hospital's attorney said we're not going to have a reenactment and i said that's not what i'm going to do i'm going to lay a foundation to use it as a demonstrative aid to see if it aids the doctor explaining her testimony to the jury if it doesn't aid her ice right now records i will abandon it and judge mccarthy said if you can lay that foundation three cuts on the carrot too and i said we didn't do it before she cut it i said would that explain your testimony as to how the scissors cut and the foundation also revealed that the scissors were used during c section and in labor delivery so was not exclusive to any moment in time of birth was only to show that it sharp instrument in the control of the defendants produces injuries so we this is who brought it this is this is were brought in opening statement our last witnesses in our case we called her as an adverse witness so i took the scissors that were there in evidence and had been used already in the case i didn't bring them out brand new wouldn't they said these are a she had such a problem from the hospital they were used throughout the case up to that point by women's health so that i just took what i was given it wasn't a coincidence i had a snap at me i was thinking what could i possibly use to cut one of the justice you know sort of back up i mean this medical record leading up to before the baby was born unequivocally shows if you and you get confused with the are always an oral piece that the baby was face style so looking with the top of the head at mom's tummy you know her face was down a she's a murder most babies emerge in the world like that and they they twist as they come through the pelvis this baby was face down without the hands in the surgical field by two separate doctors who did that assessment and the delivery note dictated showed that this baby at the time of birth at the hands of the surgical field but there was also a note the same that the baby face well she wouldn't go on record we gave her the opportunity in her deposition in a trial is that if you are you are you sure she said you know what you might be correct are you willing to go on record and change it go ahead and change she said i wouldn't do that i'm not going to change it i'm not that certain that i would change it so i argued that the jury shouldn't change and there was it was physically impossible for the hands to be in the surgical field and then she made all the stuff up that it was a baby she literally did this in trial like almost like a baby you know raising the roof bad hey i didn't violate the standard of care that was the only way the case was defendable my head to make a lot of different changes throughout to have that actually work but back to the carrot carrot cutting let's let's look at really what happened there so i lay the foundation dr cuts it says it will help me explain the jury my testimony we have to publish it to the jury calls for the house also can i just take a look at it before you show it to the jury there is no objection to my foundation laid for a demonstrative aid to explain the testimony that mccarthy certainly couldn't be accused of abusing his discretion where there is no object i objected won't aid the foundation isn't laid furthermore the hospital cross ripped at that time this tells me nothing about the timing he said then he explained fully about partial lacerations on the a fact of disrupting what he said was this is a disruption of the digital cascade if the kid digital cascades intacta what sort tendons there this is what you're going to see if it's not you're going to see disruption he explained that fully dr kaplan the neonatologist was asked also and again this is in my brief i won't reach a the whole thing asked muscles could lead to control in the digital cascade all that evidence was in and then the argument was advanced the hospital was not prohibited anyway from making the argument they're saying just this is we're prejudice we didn't get to counter the argument on this picture didn't get to explain about the digital cascade we didn't get to explain about partial less ration they did that's a value eleven page seventeen fifty one in the transcript itself but there's a l argument about what dr light said in the figure being down the hospital advanced there isn't any prejudice so that those are the the arguments that they would have to have said judge mccarthy abused his discretion he left out things that handcuffed us we couldn't make arguments is not true why should we grant or remember you shouldn't grant the remit or because the jury and many of the things you asked counts for the hospital are things that i would advance at the end of the day when we try any y here we got to see what we're up against are is that do they have an expert that's going to say something different the medical evidence in this case the disability evidence in this case and rebuttal we put in all the evidence was an expert saying we were wrong it was limited in some way every for dismayed disfigurement fair and reasonable when it exceeded your request by three hundred dollars absolutely nothing because it's and it's not an exact science and in fact what we're doing every time we try a case it means we lose control of that case when they say zero they say taxman nothing and gene for one dollar do they get it wrong because i asked for more i don't know what twelve people are go agree on it and the and the record is under a body and all of those things how do we say they're wrong i mean we look at the status of shock the judicial conscious well again i can go through as i did my brief over and over and over again of the evidence and rebutted that the jury heard when they said for disfigurement in this case they said eight hundred thousand dollars the hospital said to fifty for disfigurement the hospital never suggested a figure for anything  else and just as never you you said well you have brought them up you know and has a look a will to fifty for each it's the first time in the history of this case the hospital or any defendant has ever suggested to anybody what this child should've been awarded for for pain testimony what the child went through and what the child under but is going to go through for the rest of her life and that's what stirred them up so to speak but it in the guidance of the law everybody knew this is a horrible injury from the beginning briefs the the seven fifty number from the hospital comes from their most trouble in the brief they filed in the court they said well maybe you know maybe about eight hundred eighteen to one point three that's more fair and reasonable i mean it it shows you that there's a sliding scale there that they can avail themselves to is a such a sliding scale on our end as well as to where the value will fall and at the end of the day judge mccarthy said i'm not going to substitute my judgment for what the jury did i saw all the evidence the jury saw the evidence they saw the pictures the video the medical evidence they met the child they heard what her parents had to see her a grandmother had to say heard would how she's limited how she suffers and then the major decision could have happened whether she was face up or face down this was a closely balanced case on the evidence which is why these evidentiary areas to us made a big difference as far as foundation plaintiff needed to lay their foundation at the time this experiment went forward in front of the jury and he didn't do it and we objected to it and you know you are thank you so big you may do the briefs