a paragraph seventeen of the third amended complaint that really had nothing to do with the case itself by operation of settled law out of the ninth circuit and everywhere else  a final pretrial order is entered that is the instrument that governs the conduct of the trial the final pretrial order supplanted paragraph seventeen and we discussed that on page thirty eight and thirty nine of our brief opening brief where we described in the final pretrial mordor describe the incident that mr john mr clarke suffered was an underwater incident us the lower court fixated on a paragraph seventeen that was litigated from the outset and paragraph seventeen itself was a disjun that it is your position that he's or a lifeguard or a video manager would have been sufficient video monitor would have some fun iced then i have some difficulty seeing that there's evidence of causation i understand how every person is there presumably your argument is  out immediately which is what dr r c says immediately was his first formulation but that night i did not see evidence of how long it would take a reasonable video monitor person to get from where are they were monitoring the video to the pool and whether that would have gotten them there any sooner than the two to one a corner minutes it and i may be missing something in the record so is there evidence and if so point me to it that a that it would have taken a lesson to in a corner minutes to get firm a reasonable he discussed that somebody had to observe the pull on the what he described as that twenty rule under the n c standard that applies to all resorts with area of the correct that tells you that's visual but that isn't present so my question to you remains working or anyone else testify as to how long it would take to get from the place where you were looking at the video monitor to physically to the pope i believe that was testified by the hotel employees who describe that they were doing freeman was at the security within one minute may have been the time limit that's for a judge great first point seems to me there's the there's the transit time for the emergency response but in this particular accident which is a terribly unfortunate incident of if it's if it's really a minute according to dr rafi that it takes to get somebody out of the water or that's the best amount of time you have to get them out of the water without potentially having neurologic injury and there's no signs of struggle it's it's  difficult to understand what it was that was supposed to put the defendant on notice of the onset of an emergency that's tied into the standard of care that the defendants are under and because they're in jeepers they're under a heightened standard here to look after the unit that's there has to observe them think they have to observe something so that if you had had with me excuse me even if you had had a lifeguard right there and i fully appreciate that that's not your position but even if they had a lifeguard right there and there were people around the pool you have to be able to to perceive that there's an emergency ongoing before they respond and seems to me if there weren't just the way it's played out here it looks to me like there were not obvious signs of struggle swam one lap and took another one sent on the water and did not come up and that was the critical time that was lost and what will happen leander this individual is their testimony about but about how long he was under for  a reasonable security system should have detected that he was in distress a regional security system should have detected that he was under water promptly and there was no specific reference to yes one minute is the limit for having saved him where's the conversation well the causation is that there was no apparatus in place that enabled any employee any one of them enough of the hotel or the swimming pool operators to pick up that the stress within a minute with thirty seconds or ten twenty or even under two minutes it would simply did not matter was no struggling if every time somebody goes underwater is that is the hotel security obligated to send somebody out there or not but when somebody is under water for thirty seconds or for forty seconds under the ten twenty observation rule that person would pick that up and that's the way to model two things in at least two model two things in my head so what you told me the ten twenty standard was what they are required to be able to observe every ten to twenty seconds what's going on in the pool ok that means they should be means that they should be looking at a monitor that monitors the pool about three times a minute ok that didn't say anything about what the n c standard is for response time is there in n c standard for response time  a response time so all right so so i think the answer to my question is no there is no and c standard that prescribes a response time to a resort ok so now we're down to the question of you know what's a reasonable time if they saw something and what is it that they that they have to see in order to trigger a duty on their part to respond the reason we get behind that is because nobody on behalf of the pool operator would lose the hotel picked up that fact it's a fact the fact that mr clark was drowning it's what the but there was no struggle there there was no there was nothing he was underwater nobody around the pool picked up on it it was missing for a very substantial time well how was the how are they supposed to know that he's missing but precisely by observing the pull that because it is a dangerous instrument wait a minute they're supposed to be monitoring everybody on the pool deck and counting noses every twenty seconds that's what the energy standard college council that's ridiculous i  within a minute a minute or half a minute ten seconds when somebody can be salvaged and all the cases that are deal with a minute and ten seconds from what minute and ten seconds from the time that when he was observed as dean of the are there obligated to send somebody out to the pool every time they see somebody go under water they're obligated under water all the time they're diving for things they prop that it drop them half the kids are playing with things they're racing across the pool underwater what's the obligation your honor we're not dealing with a case where we had fifty people diving in and now right dealing with a pristine pool where one person took a lot and then came back and took the effect because it seems to me are much stronger argument is their response time and their response time has to be anchored to the onset of an emergency well i don't know how to anchor that here hence my problem with the causation argument two to your question judge christian both mr lekan and mr dworkin testified that had they been actively monitoring the employees would have picked up the fact that mr clarke went on the water when  at some point within the first two minutes but that here's the problem your your expert said they only had one minute about one minute to get them out well that's just that start to rossi who right least minute is critical but he did say water for over four minutes we can't undo that because mr clarke was allowed to be submerged for a prolonged period of time that the hotel operators should have avoided  pool it's almost olympic size ok and how many people were in the area at the time what time of day was it already was about four o'clock in the afternoon and there were a bit earlier a handful of people handful of people how many  possibly two to four we know there are four when the commotion occurred but other than mr clarke's companion teacher there's another teacher was on sabbatical with them he was in the hot tub which was on the onto a side when it's when he got out and looked for his friend one of my friends know that he saw a body simply floating at the bottom of the pool and two people who turned out to be and they were neighbors upstairs jumped in and fish them out that's exactly what the hotel of greater should have done in the first intervening moments the minute he sank in was not responding it was not swimming very should have taken some measure of protection the reason they didn't do it same below the surface but is it the observation that he was below the surface and not movie i think that's the fact that when did that happen there are police reports emergency reports filed by the witnesses and one of my questions as well when where when was it that he stopped moving and we had no we don't know that because we cannot know that the only way we would know that is if somebody was observing had somebody been observing what we saw that he went under a minute thirty seconds ago and he seems to be swimming we don't have that and nobody was looking at the pool so we don't know whether he stopped swimming within thirty seconds or four minutes ten seconds or thereafter we do know that when he was brought out he was alive he was brain dead effectively and therefore three days later when mrs john came to to to the site to the hospital she agreed with the doctors to stop the respirator but he was not dead so whatever incident occurred whether it was cardiac whether it was drowning whether it was lack of energy that occurred at a time that we don't know in the reason we don't know that you're dismissing it there there's a video and maybe maybe i'm missing it but there's a video that allowed you to determine that he was underwater for two minutes and sixteen seconds and then comes a time you know i'm sorry in terms of time we don't see very much in the video it's murky so that's my question if you could just close this loop for me is it is it is it the problems of the quality of the film is so poor that you can't tell that well at what point he was but you can't tell for it doesn't it sounds like you don't have the degree of resolution that would allow an observer to know that he was below water and not moving is that it that's correct ok thank you thank you sam so i don't know that issue right and that's not an issue that we should be charged with proving because we can never there's the mention at e r and sixty two about the lack of observation of struggling and at your fifty four the judge makes an a mention of not having evidence of this issue that we've just been discussing discussing about the response time but the bulk of her ruling isn't focused on then i'm sorry the bulk of her ruling isn't focused on that what i'm trying to get at is if there is i'm not sure you're going to back up and talk about the death out there issue or or or or not but the bulk of her ruling it just makes it a sort of a glancing blow at this at this point if she covered when the motion was made it was not just argument by consul and she ruled it was an exten to plaintiff's one expert gerald ford can nine people eating ice none of them seeing him go under he did not struggle he simply sank to the bottom of the pool swimmers a respite from other people playing in the pool there was nothing like that and neither was it required by any type of statute or rule part of the judge's problem is that there was this really difficult time trying to pin down how long is too long right and she made that clear seventy three she said quote if there were any evidence it would it would have been better had help come sooner such the jury was not right right you know this was a liability in part of his liability testimony that plaintiffs couldn't introduce was his testimony that if this individual had been extracted within about a minute then it's possible that he could have been removed without stopped he stated that cardiac event occurred at some point however he could not tell when that occurred he could not exclude the possibility that there was an initial cardiac event it doesn't matter why he went below the surface but one of their one of their staff for one of their theories it did but there are other theory is simply the failure to rescue theory and for that it seems to me it doesn't matter whether the deceased and had a heart attack or not in terms of gave to rescue someone if he has any type of cardiac murmur rhythm in terms of the issue it would make a lot of difference but they have a much broader theory than a the right getting to the qualifications of me if you if you're if your life expectancy under water is about a minute that's a doctor basi seem to say at least that's the length of time a person could stay under without suffering some brain damage then it seems to me that a an adequate full response this time has to get you out of the water within a minute otherwise you're just retrieving a damaged or deceased person the problem was it was still struggle no one even those people that were in the pool or nine single right and that's so that gets to the other point that we discovered discussed pretty thoroughly with opposing counsel which seems to be a much tougher problem that in this particular tragic case there wasn't a sign of struggle so there has to be an onset of an emergency before we start the stopwatch on adequate response time right correct ok and so his response is that the what they these folks were defendants were doing was using a video camera that was pretty grainy pretty poor lots of little images one of those split screens with a lot of little little images and so they couldn't see that he was in distress if and the judge talk to the judge the most talked about that and what she indicated was that there was nothing in terms of the c c t v system the minute mr freeman saw that there was a bunch of people gathered at the edge of the pool he realized that there was a problem there was no evidence that had mr freeman's staring at the image of the pool one hundred percent of the time he would have realized it was a quote was drowning regardless of how clear or unclear if there's no indication that there's and in terms of the people who were at the pool no one seemed to see him going quander he did not he was not under for four minutes it was about two minutes fifteen or sixteen seconds when he submerge and then he got pulled not bring this man it sounds like i have for this kind of a situation if somebody went underwater and wasn't thrashing around his kids argument is it's the absence of thrashing that's the problem he slipped below the water and wasn't moving so anybody right there once they notice it would see that this person was in distress you can't be underwater without moving for an extended period of time but it sounds to me like if i'm understanding the representations correctly that the monitor the person monitoring the pool via the video screen could never activity going on or actually going under water very difficult all in terms of all again the issue regarding all the people in the pool  they didn't see it there was no notice given such that all this this man a mystic was in danger all if there was evidence that could link that had he  dead rescued taken out of the pool between a certain amount of time and efforts made to revise in you there was no evidence to show causation that any negligent conduct of defendants caused his death if there was as the judge indicated she would have given it to the jury but there wasn't in that was what she wished for going with and she went over the evidence and she couldn't find that link that causal link between negligent conduct and damages all the other issue that the council just mentioned was paragraph seventeen in terms of the motion to a man all that something happened as opposed to saying that he just drowned but what was the order was to strike all of dr ross's liability testimony and dr ross he didn't need to testify about the cause of death in order to testify that which seems to me judge made a comment to the effect of one not going to allow that as though there's been an earlier ruling and i in my in my missing an earlier ruling where she she had limited his testimony perhaps his report or to his deposition testimony i minute and maybe that would have for all helped him but other than that he couldn't really say specifically in terms of all in terms of  i'm sorry in terms of whether or not you know it it's i'm sorry y wasn't go so far as to say that oh that he would have avoided death or neurological injury it's some point more than a minute he wasn't he wasn't comfortable saying and in this case it was no evidence that all he would have been recognized as being in trouble within a minute minute being recognized that he was in trouble is basically what i want to point out i also have counsel who are we talking about the other issue concerned have there isn't time that when we didn't set the clock about one minute the next question becomes even if mr kwok had to pulled out in one minute what like saving measures were there that would have caused his recovery dr ross never talked about that the only things that would have been available to whoever was there situation if there's fibrillation ventricular or atrial fibrillation if there's no heartbeat it doesn't work in the facts of this case we don't know what what what condition mr kwok would have been had it been pulled out one minute later and that's the key to paragraph seventeen of the complaint because if in fact mr kwok went under because of a heart condition then the next question is what was that heart condition and could that heart condition have been remedied by the a v or by c p r that's not in the evidence that's not a doctor rushes testimony that's not in the evidence so even if you take dr ross's testimony about he probably could have been saved if you had brought up within one hour within one minute of the submersion you're still the question of what could have been done to save him that was the key causation issue that wasn't proven by evidence or by even dr rush you know if we look at also the idea that your honour's have raised what was the emergency that would have trigger somebodies mind even if they're looking at the pool to pool mr kwok out and i think judge by the makes an interesting observation people go into pools all the time to go underwater diving all over the place people don't pay attention to people in the pool under the water for certain periods of time because people do that all the time and in this particular case i believe in the fact there was a mother and her two kids who were no more than maybe a quarter of the pool length away from mr kwok didn't see anything didn't care  ivanoff the reason why we don't rely on lay people by the pool so to see what's going on and to observe for safety purposes is because they're busy with their own activities a mother with two kids would have no existed in what i was talking about the ten twenty rule i want to clarify the fact that the twenty portion of the ten twenty roll is to react you have there for ten seconds and if something looks are right you read that they have twenty seconds to react twenty seconds they have to be from the monitoring station to the location of a problem i don't work in testify that that person should be there at the poolside and not roaming are please just answer the question i'm asking i'm trying to understand if you're saying something completely different now about ten twenty rules and you sent her words i want to understand your position earlier you said that an observation have to be made every ten to twenty seconds now you're saying make observation has to be within every ten seconds and then from the moment of observation of a problem the person has to be onsite s and already taking action because the person is is not that different from what i understood you to say just a minute ago so i am and this is quite different from what you said earlier but now this is quite different from what i understood so i understood you to say that there to be monitoring this thing every ten seconds to six times a minute they're supposed to be looking at this at this screen and if they see something amiss they're supposed to react within twenty seconds they're supposed to call for help that i thought that's what you said just a minute ago that is what i judge ok now that now that doesn't tell us how long you have to get out from either the station to the pool or to get somebody else from someplace else to the pool because your honor's question assumes that the person monitoring that sent twenty is at a different place observing the observing the pools observing the poor if you're observing it on a camera it presumes that you are not poolside because it would be silly for somebody to be poolside and looking at a camera that's watching the pool well the reason we say somebody made earlier since i started out by asking you whether you found that there have to be when her position was that there had to be a lifeguard or attendant onsite or where they're monitoring where fashion and you answered monitoring confession so that and that is how i understand your position in the briefs and also so you know if you keep changing your answer and it's very frustrating because we can't figure out what your p circumstances of the case requires facts for the jury to decide the jury had what she describes as a constellation of facts she'd this decided to extract the case from the jury by by which twelve to fourteen tiny tiny video feeds from which nobody observed anything thank you council we appreciate the arguments of all three of you and my case this argued and