yeah let's call the first case defendants there after and it became progressively larger more painful and nobody gun would be ominous when it was already too late to do anything about this lesion was in the same place on may fifteenth which is the first time dr tucker saw it and on august thirtieth which is  second time he saw it that's by his own testimony and according to his own expert dr hurst it was worse than august thirtieth it had been there more than two weeks everybody agreed that the standard of care required buyouts in a lesion that's present more than two weeks it was not k and two weeks later dr chin sees her with no documentation as records at that time as to what he saw any biopsies her cheek instead of her tongue with the reasoning given a trial that this was a continuous lesion and you could you could biopsy any part of it and get the information you needed factor chin's own expert dr galli disagreed with that said it didn't make any sense and he referred to this it would have to jump over the teeth in order to be the same lesion he also agreed that if you have two comparison of what was in their records i should say was not in their records in terms of the location of this lesion and so we now get to december fourteenth dr kelly dr todd his wife who also was a dentist working in the office is aware from the records that this lesion was present on august i'm sorry they fifteen and august thirtieth and it's still present now in december she doesn't talk to either of the other doctors she decided to send the patient out and rely on the it actually just as the would always respect this lesion was in the same place and until you do a biopsy you can't tell what it is the right spot if you're referring to when my client finally it was so big and so obvious that she could see it as a  and the evidence in the case was changing color in and of itself is even more concerning than if it stayed the same color because we had started out as a as a i believe of red white or whatever where the change color again this is this is a persistent lesion every time these defendants saw her after starting on august thirty two thousand and six it had been present for more than two weeks and it wasn't biopsy there wasn't even a biopsy suggested until dr chen finally does it in august of two thousand and seven when everybody agreed it was too late to get a better outcome and at the time when dr tower still didn't have cancer in his differential diagnosis even those own experts said he should help these defendants were were completely indifferent to the situation dr tower is concerned about the tongue he refers her for an oral surgeon presumably to have an evaluation and potentially a biopsy of the tongue and then he finds out that she has been biopsied and just says ok never mind  lesion the same spot still doesn't do a biopsy and the evidence was clear we believe that a biopsy was there earlier the better obviously got a biopsy back in two thousand and six into early two thousand and seven would have prevented that were taken before trial and these were treaters were also given discovery depositions and the gist of our motion in limine a number forty one to bother the key aspects of that which is what they saw what they thought should be done those types of things was three fold one is that in this some of these applied to some some apply to all you know whatever but they they fit where they fit we made the arguments in the brief some of these people had no duty to  k like for you know the g i guy who's going to call and ask you why would he look in her mouth ok that's a example that there were others that weren't qualified to look in fact except for dr gillerman arguably none of these people were trained properly that he answered a question that the problem with this whole thing with the traders is as i mentioned earlier and in my comments so far is that the defendants agreed every time she was in to see them they saw this lesion now there was all kinds of debate about you know what to look like and all this other thing or what they should or should have done about it but with that set of evidence if some member treated who doesn't have a duty is not qualified to look or doesn't even look there's an absence of a report so th these these these traders in washington but it's the jury would get the same kind of information out of this what did you see what did you think it was which by the way is not a fact that's a medical diagnosis and whether it needed to be biopsied or not motion the other thing i want to mention is the defendants were not aware of any us information about these other treaters during the time they are taking care of this patient so they could have relied on the ets it wasn't relevant to what they decided to do so that the trial judge of made it clear in his ruling that he was going to allow dissent for the purpose of letting these witnesses testify to what they saw and whether it needed to be a biopsy and i submit those or not they axles are medical opinions and you now have medical doctors who are not dentists and oral surgeons in good getting engaged in a discussion about something where they had no business doing it for up right here reasons in fact dr chin admitted on page forty of his brief that they three well correct than actually the defendants end up arguing in closing arguments that in order for us to win the b would have to show that not only were the defendants wrong but all those other tritos were wrong i mean that's a standard of care argument is that basically saying we have nine other people that are supporting us if there wasn't anything they need to be done about this and these are people that are not qualified to give their testimony in a case involving a dentist and an oral surgeon is that it was part of  persistent for two research longer you can't tell what it is and you can't rule out cancer without doing a biopsy and it's great you can think about thrush and you can think about like an planets but this is a classic example of why the biopsy has to be done and you can't go by just looking at it  shirt well first of all that was the next point i was going to raise of assuming they had time and that's that the defendants essentially violated the rulings on the motion of women a on her conduct there was a motion let me explain anything about can compare to fall contributory fall failure to mitigate damages the and there were many appart many times including starring for dear where they were asking potential jurors do you think a patient has a duty to follow the instructions of a doctor well that was ruled out of the case i objected to that there was a very beginning and then they sprinkle that's right the case and they were suggesting that somehow she was supposed to self diagnose this she was supposed to do their job for them and tell them what's going on the mouth when every time she comes in the legion is there there's no secret here this nation is there so they don't need her to tell them anything they just needed her to tell her she needed a biopsy which she agreed to have the wrong body part back in september of zero six then she would have been biopsy in my reading the record  time we started trial and then that based on the motion eliminate the judge that i had granted our motion and said it's out of the case there was no there was no causation testimony on it was the basis for it ruling so that it was not there wasn't supposed to be relative importance although they're all important is the third feature of the smoke and mirrors that were going on in this trial that distract the jury from from what the clear evidence showed is that the plane the finger at the plaintiff about other various medical in this case as to the presence of the persisted for more than two weeks the uncontested evidence that the standard of care requires a persistent lesion in the world cavity in this case the tongue to be biopsied if it's present for two weeks or longer there's no question that the standard of care was violated and there's also sufficient evidence to establish that if the standard of care of been followed going all the way back certainly to support her fifteen zero six we wouldn't be here because she would have had a simple excision of a very small lesion that would have prevented this outcome and so on until you have much now let me number forty one that's the one with respect to non defendant doctors why why would you argue that  case law that you see out there about the need for a contemporaneous objection after emotional in the days of the night and the reason for that and it comes up in the in this book a case which was a videotape animation is that it's fixed at that point we know exactly what it during the plane start stop start this video every time i had an objection to it go to rule van again he heeds clearly agreed that doesn't make any sense and that's not something that he would have expected and so i don't believe the judge today ed who denied the post trial motions believe this was waived at all he could seriously consider this and bites we respectfully don't agree with his his ruling on the up but what would be the purpose to object to this where are we going with that it was it was this is a one of the most comprehensive motions and women a i've ever filed it was very detailed it was specific it was directed toward a certain thing things we had arguments on it everybody knew what the issues were and the judge made a ruling that these videos were already done and we should respectfully suggest that there is a huge distinction evidence deposition and there is no case that says of the videotape evidence that position you have to object after it's been ruled that in fact why would you have the rulings on evidence depositions ahead of time if you're going to have to object again anyway i mean that's how the trial practice is these are edited and figure out so they can be played to the jury without interruptions so that's bet that's most of my answer that the last answer i would give to that is that  and i believe the record is clear the judge had a bad did not believe that there was a waiver of all that of that issue and he made it clear that an objection if it had been made that some other point during the trial would have resulted in the same  ruling so there's no basis to believe that the failure to object again would have had anything to do with the outcome so again with all due respect to the judge had it done and that situation i have to try the case with the rulings the judges me i can't just sit down and not try the case anymore and that i mean that's how trials work and so yeah i do was come in i figured i'd say something about it and whatever i want to say about it knowing what the defense might do case knowing what the rooms were and make some decisions about how i want to deal with that having lost but i thought it was a very very very key ruling thank you but i think my time is up isn't it or light doesn't  good morning again daniel litchfield representing defendants talking or kelly in their dental practice it's well established that the law gives two layers of deference to the verdict in the judgment here the first layer of deference is built into the manifest weight of the evidence standard that was viewing the appeal here the trial court in particular had the benefit of being there to observe the jurors and to observe the evidence that the jurors observed that's part of the reason we believe why the abuse of discretion standard is the one that's applied to the trial court's decision here the trial court saw all the things that are entrusted in this state and in this country to the scope of what the jury is supposed to do credibility evaluation the weight of the  e evaluation of inferences from the evidence that was done here by the jury that was observed by the court and the court with the benefit of those observations denied the motion for a new trial and an abuse of discretion standard there should be no basis to unsettle that decision it's very important to look at the types of contested issues that this jury was faced with it was clear to me classic stuff jurors have to sort out differing views of the evidence conflicting evidence expert testimony a great example is the issue that's already been discussed this morning the plaintiff's theory of the case was there was one lesion in one exact place that was there in may of two thousand and six and persisted and grew and became the cancer that she was afflicted with and it was discovered in the fall of two thousand and seven the defendants however presented evidence of a very different scenario that evidence that was presented by by the parties themselves dr toddler and dr kelly as well as by their experts that evidence was that there were different things going on at different times they were explained by the diagnoses that were made at those different times the prophy jet and the red spot and may the white spot that was seen later in august in a different place what was seen the next december by dr kelly and yet a different place it was my clients who testified about particular tooth numbers that were associated with where they made these observations now you'll notice that the plaintiff's approach to the case is to assume that this was one thing in one spot that was unchanging through the entire time and then the arguments watch off that assumption but it was the jury that had to determine whether that assumption was accurate and whether it was based on the evidence in a situation where there was can letting evidence and where there was conflicting expert testimony that takes us to the issue that the court appointed counsel to a moment ago the treating physicians from washington d c the court reserved ruling on this issue in response to the motion in limine i think counsel said that none of these people had a duty to look but the issue wasn't whether they had a duty to look the issue was what did they just testifies to what the alex saw or did not see what the plaintiff said or did not say that she complained it should not complain about something and then it's for the jury to weigh that evidence but if if  atmosphere or attitude that hears a professional in he didn't see him therefore it was not him and there even though he didn't render an opinion of it he is a medical doctor and an allergist typically don't get into this again judge goes to the weight of the evidence the jury heard the testimony and they heard the other side's arguments essentially to the effect of what what your author is saying right now is right for the jury to sort that out of the question is should that have been allowed in three times absolutely well i don't know if you believe it should have been allowed to do it in that you would agree that it was an important element of your defense of these washington actors properly admitted as to how important it was to do that to us is what the jury is there to sort out along with other evidence is it more or less important than what dr carter said he saw in her mouth when he made the examination well you obviously thought it time period when my client's one seen her go from december of zero six into that spring of zero seven time period she was not being physically seen by my by my clients during that period for a checkup or a visit with specialists would actually happen occasion either on the preferred sickle form where you check off all of the symptoms or when describing documentary evidence or testimony might have borne on that certainly i think a patient is entitled to believe that if if somebody looks in their mouth and sees something that they don't keep silent because it's not in their area specialty or because it was not something that was put on on on the issue of relevance and admissibility with proper guidance as there was here from the court as to what the purpose of the evidence is so you know he was telling them that the evidence was to say that these people made a mistake the evidence was these are the only people that observed what was going in their mouth other than she herself and her testimony was there for this time period and you know from our perspective they're fact witnesses who see things or don't see things and with proper guidance and instruction to the jury they're entirely appropriate for them to testify about what they saw or didn't see it respective of their specialty even maybe even if you are even if you are just submitting them for the purpose of showing what her condition was or what was objective lee observed isn't there still an underlying implication that if it's not listed in the chief complaint if it's not listed as a subjective complaint or a report by the patient that she's somehow responsible for not asking to have that check no again goes to the way to the evidence that might be indicative that she didn't have a complaint about that at the time and that would be relevant and per that evidence as well and it was argued to that effect here i mean there was a point in counterpoint on this again not things about which there were some sions of truth in that it was all one way this was all hotly contested and that sentiment was presented your comment about the jury being confused throughout the briefs we see this slow back and forth of various theories of what's occurred here rock or or well that i can that those were the at that that was what was the problem kept going on with other ideas as to what was was going on here including this these these two other overlays that when they looked in the mouth things when they kept pushing towards this it got to the point where d therefore and there's actually there was a there's a part in a record where they said well we think it was it was like this plan of all time and not malignant whatsoever so there were all these different opinions being bandied about well nobody was really frankly looking exactly at where the cause was the cause was in the time and it was according to the record as i see it it was noted as put possibly malignant when that white spot showed that that was a defining moment and even at that time nothing occurred now then you overlay that with having  doctors from washington d c and you've got the way this unfolded and the way the court healed it you had three three defendants and then when you had the six it's been part of our defense that there was no cancer the trial court asked defendants in return and you're claiming that these other doctors who looked at her at the time had an opportunity to see the very same thing the defendants did and failed to note that as evidence of a cancerous lesion defense counsel responded or didn't see anything or saw something that the defendant diagnosed which would be like an plaintiffs were thrust the court respon that the nine defendant doctors were negligent in their treatment of the plaintiff in other words it became biased towards these doctors who really didn't have the credentials they were internists and and that and they weren't world surgeons and so rather than three by having the other six from washington are the jurors supposed to translate this out after getting destruction like that from the court and allowing it in in the first well ju all the court was correct to allow it in in the first place for the reasons that i have articulated it was factual testimony about what was going on in the play to smell secondly with regard to the issue of juror confusion  i've seen no evidence and i'm not even sure i've seen an argument that these jurors were confused by this i think the arguments have been of a different tenor certainly have seen no evidence or indication of confusion moreover there's been at least today that i have seen there's been no attack on the various instructions jury instructions that were involved with regard to this sequence so i'm not sure why that wouldn't wouldn't be waived at this point it's with regard to the arguments that have been raised the arguments that that this was irrelevant evidence or should have been balanced in such a way as not to be  not to be presented we've responded to those arguments are briefs and in essence i think what the court is getting at is is what we would see is the classic example of something that goes to the weight of the evidence for the properly instructed jury to sort out we've seen no case law that would suggest that somebody who sees something is disqualified to testify to what they saw because of their profession or because of their specialty and i don't see why that would be carried over into this realm because again these were not present it as experts who were going to testify about the standard of care these folks were asked what did you see or what did you not see such as it was and then the plaintiff had all rain to take the plaintiff shots at what their custom when he was which is what jurors sort out who were you talking about when defendants in the search from washington it's an incredible thing they have to do they have to take nine factors in say they are just that's would you argue to the jury no from arguing to the contrary i used to love listening to the radio the paul harvey the rest of the story the rest of this story is that that comment was made in direct response to something stated in closing argument by plaintiff and we quoted it and pointed it out and cited to it in our brief that's a very different kettle of fish when we get to that point and the plaintiff has said something in closing we at that point don't have our hands tied behind our backs such that you know we can't respond to what he has said and that's that's what that was about and in context that's clear one goes back and reads through the argument from before through that passage and on and then plaintiff's negligence when it defended as being allowed to say what we did was within the standard of care and it was within the standard of care argued against judge no evidence that we have seen nor argument of such confusion moreover let me get back and get clear on one thing just so our perspective is crystal clear the quote that was just stated and the argument that was made was not in a context of standard of care was not presented as a standard of care matter it was factual as to what happened and when and then it was sponsored to comment in closing argument by opposing counsel who opened that door now to the experts in the case the experts address these these other witnesses they addressed a wide range of issues about them an example would be the c t scan which was done in the spring of two thousand and seven now that was c d we have our take on it they have their take on it that c t scan according to our expert could but did not show any cancer spring of zero seven important evidence for the defense now i  out of my role as an advocate and looks at all the evidence there was another side presented by the plaintiff about that c t scan notwithstanding the fact it was a c t scan later on in the year that actually discovered the cancer the point being this is what juries are for they need to sort out the weight of the evidence the credibility of the witnesses at the case was very clear from maple and york and otherwise from the supreme court that it's the juror that has to figure out what  the expert is saying and sort out what the expert is telling them where there is credibility issues about the expert they have to resolve it where there's issues about the weight of the evidence coming from the expert they have to resolve  it that's done time after time after time across the street it's something that i'm not i'm familiar with from my own practice and the important point is this case is no different this was a jury sorting out differences in the evidence as jurors always do they were properly instructed the judge who instructed them and viewed the entire trial gave them a proper basis to reach their in order to gauge whether a new trial was appropriate and i i think the judge took it very seriously pored over all of this and and reached his decision for the right reasons enough that should me address that the core of the plaintiff's case with regard to the biopsy and you heard it here a moment ago is if there's no change in two weeks you have a biopsy all right that goes to the core of this contested issue that i told you about earlier as to whether we're looking at one continuous thing in the exact same place or different things that happened at different times in different places the issue of whether a biopsy should have been ordered by my clients goes to the heart of that issue which was hotly contested it was contested factually it was contested by the experts and it was within the province of the jury to sort that out to reach their conclusions which they did and so that's the other side of that that that the biopsy was not call for based upon the standard of care articulated by the plaintiff based upon the case that we presented there were there were issues of differing differing testimony there were there were certainly credibility issues for the jury to support out one expert is saying a and the other expert is saying nay that happens every day that's what the jury is for and that's what the jury did here so with regard to the biopsy i think our point of view is that one should not invest that much significance to the sequence that happened in the fall of zero seven without understanding the case that was presented the evidence presented to the jury that would support the proposition that at those earlier way stations along the timeline there were good explanations why there was not reason to do a b there were good reasons why doctors toddler and kelly did what they did and all that counsel for dr chen speak in his behalf but i think it's true production as well these were presented to the jury and the jury had to make the decision and appropriately so so that's my answer to the observation that your honor has as made anything further i can address thank you counsel thank you very much a lot of discussion so far i want to address some of the specific questions first regarding the issue of the admission of the testimony of the other medical providers the illinois case law is clear  issues that are used in title to present evidence which tends to prove its theory of the case or show conduct that is inconsistent with the opponents that's the day i and spencer cases we cite  was president each visit and response to justice pierce comments regarding standard to cure this was an issue a proximate cause whether the that the cancer is leisure and was present on each of those states the treaters testimony went to a lot of issues not just the issue of what complaint she made and what she observed a lot of the address the comment about whether an orthopedics surgeon looking at someone's knee would be looking at the model these medical providers and light of all her medical issues he had reason to be your honor the issue of whether an expert of the same specialty is qualified goes to a standard of care issue this is not as they were called as witnesses on standard click here they were clearly call to say what their observations were and what complaints were made those that evidence tended to prove whether there was a cancerous lesion on those occasions these these were not doctors that were totally unrelated to the areas couldn't come to a conclusion that's with the death that's in this case the constant and is trying to find the real there what really was going on on her tongue and what it was and it wasn't it wasn't found very because it was the defense theory that it was a fast growing tumor and it was supported by a well qualified expert inc or law cancers and it may not be cancer and it was supported by the defense medical experts that more than likely than not that they have two more did not develop until months before it was diagnosed and it was not present during defendant's treatment that was a valid medical theory supported by a well qualified expert in oral cancer defendants were entitled at trial to present that they are to the jury if that were so they would do the standard which was applied throughout the case and that is the physician views the views the tongue and says come back in two weeks this was a this was a constantly progressive disease and you say it was a progressi yes and if that's so there shouldn't been a an intervention much earlier in the attempt to find out exactly what it was and that would have been through the biopsy with all due respect your honor i think the evidence that was presented said of the medical conditions at each of record this could have been done with a small c your honor plaintiffs i raise and we have brains and our brief the proximate cause issue that the the medical evidence from plaintiffs expert dr coach was not even sufficient to show the type of he did not have sufficient evidence or information available to even provide a bail and opinion of what the medical outcome would have been so what does that do to or jury that's trying to figure out in this record run with the time i have i'd like to direct my arguments to the issue that's playing to what is required to prove that dr chen violated the standard here at the two visits based on the information that was presented to him bad is what was required under the laws that they had to prove that the information available to him after the visits in september two thousand and six and april two thousand medical history that this guy your head that it also asked the court just to disregard the standard of care testimony of what goes into the doctor's differential diagnosis and what goes into the matters that evolved to the treatment plan i believe you made a comment to earlier that dr chen made a note that it might be cancer and that raised a red flag what d it's a proper analysis in a medical situation is he had differential diagnosis based on the clinical presenting them to him but top of his list with and other fungus type related at the bottom of the list based on the presentation was oral cancer that was not a red flag to him when he took the  was returned as by nine both the dr chen's expert background and dr gali clearly testified that that was within the standard of care based on the presentation he had before him to buy out see the cheek and he was not required to biopsy both  with doctor since testimony of that this was not substantially similar lesion that required a biopsy of only the cheek if you review the back or citations clearly his  discounted all the information regarding her significant medical background and just concluded she never had any of these conditions the only thing she had was this persistent cancerous tumor and tumor from may of two thousand best's of having the requirement of expert testimony on the standard of care issues i believe is high allayed highlighted by the very arguments presented in a poll and story they request this court to at the case in the back you home and to conclude that there was one post the stent lesion medical and dental treatment is not a precise science doctors are always presented with complex symptoms and medical issues by nearly framing the issue on this appeal opponent they asking this court to one ignore all of the evidence regarding the complex medical history and some tower g that points of head at the visits with dr chen and to the expert evidence regarding the thought processes that went into dr chin's the financial diagnosis and his treatment the jury weighed all the evidence assess the proud credibility of all the witnesses your honour's that the verdict was not against the manifest weight of the evidence thank you for your consideration i mentioned earlier today it's in our briefs dr hurst who was the expert for dr tague and kelly testified to that jury that this lesion was persistent at the second visit which is the august thirty two thousand and six visit that is what triggered dr toddler to send her to the oral surgeon the only reason to center an oral surgeon would be to get a biopsy and the fact that dr chin did a biopsy although unfortunately the wrong part at that time tells you that he believes there was a persistent lesion because that's what the all the evidence was and the only persistent lesion on september fifteenth when he did the biopsy was the tongue because it was an contradicted there was nothing on the cheek until she showed up to dr chen but the other thing i want to address as we keep heard a lot about this it well just goes to the weight so i guess the argument that we're now hearing is you can throw anything a wind of a jury and let them sort it out and i mentioned this earlier i want to say it again the weight if there was any at all to th e treaters and what they were doing with that evidence in order to put that in front of the jury is the roller minuscule and the the unfair prejudice your honour's addressed and some of the questions i think you asked of opposing counsel that was incredibly president prejudicial of the plaintiff under the facts of this case and these were not fact witnesses they gave opinions of diagnoses medical diagnoses and they gave opinions about whether a biopsy was necessary those are not witnesses they amounted to what justice pierce referred to as three plus six nine people had to get it wrong and they made that statement in their closing argument that's what they were trying to get the jury to believe that the plaintiff can't win unless all nine of these people are wrong wrong about what wrong about the diagnosis wrong about whether do a biopsy the closing argument that they refer to as they claim i invited is that at all what they suggested i in closing argument mention th cancer is deadly and the only way to know whether it's cancer or say i know it's not cancer is to do a biopsy and that's why the standard here is you give it two weeks if there's something still there it doesn't matter if you change color back to the change color it's worse if it changed anything to changed in it the fact that it's persistent means it's still there if you look at different times and look different ways at different times persistence is the presence of it and that what it looks like something that's there at least two if that's all they had to do here and the evidence is clear this was there the whole time they thought it was a bunch of other stuff that's been i but they were wrong and we believe that the evidence clearly that this verdict was against the of the evidence based upon all the evidence in this case and that in a major factor in this jury concluding what they did after hearing this case was that they were misled by the presentation of the six treaters from washington who should not have been allowed to testify to what they testified to under under the under the facts of this case so i have to say if anybody has any other questions i'd be have to address