and this is in the case of krinsky versus chase number sixteen attend ninety good morning oh my name is michael flynn huffed if i can put aside for a moment the rule seventeen  think would be very helpful to the panel the first is that it was plain error for the district court without which it emits substantiation and the under the guise of credibility inject its own personal opinions to denounce every single medical and scientific evidence witness sensibly as high guns and a label on contradicted expert testimony and objective studies as biased as if it's a bench trial and this is in fact the motion of it was originally made then the court can make credibility findings just as a jury good so it seems to me that the thing that you have jumped over is the key to the whole thing that is correct was it error to decide this as if it was a motion in which credibility is taken against the move and in no words in your favor and instead decided under a motion in which credibility can be taken into account because your credibility can be taken into account you know she has an awfully long say or we should read you to be saying that it was a motion in which credibility could be taken into account then you would have witnesses because in fact at the moment none of you were focusing god i mean you all we respond to that issue i mean you can see in one page eight seventy three the first statement that mr raven made to the court before he made that motion was i spoke to mr sloan have to bow about this we discussed the motion of we were walking to the court room the motion we regarding credibility or in my favor on its face you agreed to have no more witnesses in the face of a motion which would decide credibility in your favor but  i think that on the face of it is there what you actually said to the court was we have no witnesses were perfectly father and the question is how do we read that what you read i mean every everybody early but it was focusing on the everyone was mistaken i mean there was no mistake here ever was talking about a directed verdict motion what would like to ask you about a slightly different assay of this point which is that it seems to me that you have a strong position with respect to the question that you've been discussing so far when the emotion that's on the table is labeled as a directed verdict motion you are saying i have no further witnesses doesn't necessarily mean that you have no further witnesses that might bear on credibility as opposed to a directed verdict motion but my question is why didn't you raise this with the district court after the confusion became clear i don't see why it seems i if i understand correctly you are for the first time making this argument in our court it seems to me you should have said to the district court what you are now saying dust you should a sad look when i said i had no further witnesses that was which back to a directed verdict motion i didn't have more witnesses and there was no need to have because i had sufficient evidence but now that you're dealing with credibility i have more witnesses why should you be able to raise not for the first time why didn't you tell the district court because if you had told the district court i mean it was it was an obvious error for the district court to convert a directed verdict motion into a motion that day and that would involve credibility findings and you could have said to the district court we have more witnesses on credibility matters that you must take into account the district court could have cured the error at that time but there is a three things response that your honor number number one with respect to the credibility issues that the court really relied upon number one the issue of texas texas and skiing and and the e mails that those issues those issues were argument that you're making to us here why didn't you say those things to the district court say you know i when i said i had no further witnesses that was about a directed verdict motion we certainly have more witnesses for the issue to be  question when the district court said made credibility findings you head an opportunity to say your honor you're making credibility findings under this motion on credibility issues we had more witnesses and you should listen to them before you make this kind of good reason but i'd like to hear it in my reason my reason was that i viewed the decision as a directed verdict decision and i view the statement we're going credibility as the court's editorializing about her opinion regarding the witnesses the court have been disparaging of every single witness during the say that you read what the court was doing was being a directed verdict motion which vend the cord was making comments which you could not make when it was clear what she had done why did you go and say judge you can't do that we had we had we indeed had no further witnesses on the directed verdict motion but we definitely have more witnesses on credibility matters and you have no right to do that without offering us the opportunity to put on more proof so please hear our witnesses what i mean what was the point of that where the over the options of the court at that or they will options for me in the quarter that juncture when the court already broadcast its position about the case she was you going to do know if i just you're just asking us to descend back to her no do it or you mean you want to send it to a different judge yes of course you're not going to get that so forget about that i  in every which way disparage everything you're saying to us you're saying to us essentially i recognize that the courts have done something illegal by converting our motion from a directed verdict motion to one that would bear on credibility and th court had urged by not allowing us to put on the witnesses that we have on that matter but i'm not going to raise it with this judge because this judge has shown she doesn't like our case if i raise it the judge is going to hear my witnesses and rule against us so i will hold off and raise it in the court of appeals in the hope of getting a different judge on remand that's is that what you're thinking was that that's what the strategy was there wasn't that wasn't what thinking my think it was close to my thinking my thinking it i had it what was different what way was it not that it seems to me that's what you have just told us you know what we wouldn't want this judge to hear are additional witnesses because i already knew how she would rule isn't that what you just told us close judge that you have more witnesses and say listen when you were say no you were saying you had no one and you're just where you would look at the problem with that which would have been you know as it seems more plausible argument is bent at that point if the judge had said no then you would have had an appropriate appeal i mean then you would have said the judge was wrong it should have allowed me to bring in via witnesses that you didn't give a chance the judge could make the chance make the decision which would properly give us something to reverse or oh there was another consideration and they're on page if you see on page seven seventy in the middle of the account can taro's testimony really towards the beginning the judge said listen you two and basically said your two and a half days are up you have ten more minutes to finish your case there was going to be no more time for the witnesses she was cutting she was cutting me off she was cutting me off by m given oh those are the kinds of things that if you had given her a chance to make that decision then you could properly appeal because we can perfectly we'll say ten days to five days is well within her discretion but it is not within her discretion to cut out credibility witnesses when she is now deciding credibility where she had said no and you know that's an easy thing for us to say but you didn't give it a chance a pause i saw a sore different i thought i mean she told me that she told me on seven seventy i ten minutes left to finish my direct case regardless and in terms of terms of credit i mean regardless of what you think of the propriety of the conversion i think the probe the credibility determination still have to be substantiated to fifty to see talking about something you would have told the judge after you saw the judge's written opinion with a footnote that express fully acknowledges that the judge had converted the motion from a directed verdict to add to it to a two another motion and relating to credibility which the judge had no entitle meant to do that was the point at which you had to say to the judge you have made an error you've not allowed me to put on my witnesses i want my witnesses to be heard and here they are you know i didn't i didn't see it that way you should already ruled that i address causation issues that were raised by by defense expert why wasn't that part of your prime with a she case why didn't he testifies part of your prime fish case what you said to the judge was that you would reduce all the evidence that you had with respect to  shown causation but but i don't understand that i didn't see any evidence of causation at all well first of all dr dr weapon if you look at ten if you look at ten thirty five probably the most important exhibit in the whole append your argument is that if your to make one point the bears on that i think your seven minutes over are like no no eight minutes estranging to me and i've given you seven minutes over that red lights going on for seven minutes to go ahead go ahead finish up and then you'll have two minutes rebuttals this one one point and then on one page eight fifty three and four the defense bar mechanical engineer engineer to bow who was credited by the court for the proposition that the creche could not of course brain injury conceded two things you can see that his analysis only applied to the deep structure of the corpus callosum which had nothing to do with the injuries claimed in this case and it also also conceded there's analysis only applied to injuries that occurred at the moment of the accident w be ok if i just referred to certain specific language because i think it deals directly with what your concerns or if you look at page eight seventy three of the record of it here i'm sorry it's seventy three of the record  sixteen this is mr raven the defense lawyer and he says with the judge dot dot would your honor entertain a motion for a directed verdict and a motion to dismiss at this point and the basis of that would be one proximate cause there's been absolutely no proof that this injury was a result of an accident that occurred on february twenty sixth two thousand and five there is absolutely no proof in the record whatsoever at this point i just want to emphasize for you the term directed verdict and a motion to dismiss a parrot back to an afterward the mr foreman opposite ferry very good lawyer very smart you s try to case this is what he says and giving his actual anguage i just want to say this judge although i oppose the motion i do not oppose the motion being made at this time i agree with counsel that what if approved i'm going to elicit whatever proof i'm going to elicit to support proximate cause and threshold i know that's the court's concern causation i've already the suffice to do that vent you can i think one can we vet as being misled as to what credibility findings record would be permitted to poring over them one way or viewed other involve i think they can be read your way i don't think it's necessary and read on to the end of the paragraph that you're reading on page eight seventy four council says so again i want to pose a directed verdict but i would welcome resolution of that issue sooner or later one hundred but you have absolutely no disagreement from me but now i want to go to the second part which is where i want  to turn you to after because this is going to be important in judge calibra see it deals directly with what you said stuart wants eight seventy seven one eighteen and we're going to go to it seventy eight  line thirteen this is the george i'm going to cut off where she is because you don't need the prefatory language on that one eighteen judge i understand based on what everybody has told me that the plaintiff has introduced all of the evidence that he intends to introduce on this questions that correct is to form an office that's true your honor the court all right and that the remainder of the witnesses would be related to future earnings and things like that which the foreman of that's true your honor the court and witnesses and my assessment of all the proof i have determined that the plaintiff has failed to sustain his burden of establishing that whatever happened in this crash was the proximate cause of the alleged injuries i am therefore directing a verdict for the defendant i will and i will issue a written decision to follow at that point with the coolies do is say since the witnesses that he would bring in do not have anything to do with great ability and i am making creative ability five days i will direct a verdict the problem is that she is not permitted to make creative ability findings  to raise that inappropriate time is what we've been well i don't you know i understand you and let me give you a hypothetical maybe it'll better better serve my purposes and let's just take the easiest thing in the world let's say you make a motion for the lawyers make their arguments and the judge says at the time listen i'm going to grant the motion because i assess the credibility of this witness i didn't assess the credibility of that when it's i like this witness i didn't like that witness any experienced lawyer any good lawyer is going to stand up and scream and say right then not even at the time the judge how you can't do it now you just say that what we have been say could have done leisure and should have done leader when the court in a note specifically said what he did he might have done before even if they had but we don't really need to reach for that because we do have the leader let me ask you a completely different question and that is the judge excluded neurop originally presented he wasn't presented as a causation witness the language specifically was he's here to show something else it never got to hear again and so my question is should we read what the court did as this was excluded because initially this wasn't presented as a witness on causation in their fruit would take the other side and could have spoken and i think mary could have spoken to causation and effect a grid that might be a matter of some significance i think the way i read the record and i agree with you it's not one hundred percent clear was in qualms with what you said originally that the witness was presented for a different reason and i read it and i may be wrong that the question was overall too broad i have a better answer for you go on all of that when you look at the judge's decision whether she considered that particular piece of evidence or not would have been immaterial to her ultimate decision because now you can say that because we don't know what that is you all are just had the physiologist been allowed to testify   the result of her neuropsychological testing of the plaintive that is how she was originally presented and the question is is of that sufficiently a presentation that allows them to commune in sage should be for cozy action as well or not we would say no but if i may just in response to something that you said judge helen we see when you look at the judge's decision and i know you've studied it very very intently the judge makes no pretense about the qualifications of mr foreman huffs witnesses she says in her decision they are exceptionally credential they have very very very good educational characteristics and they're really terrific doctors she didn't time is up i asked for permission is it ok if i respond to judge here ok i just i like to ask these go ahead she disregarded the testimony of all of their expert witnesses every one of them it's in the decision she says that what happened was this was a minor accident he goes to a chiropractor immediately afterward and then within two days this is before there is any diagnosis of any brain injury with an m r i that is completely normal he after you after being referred to mr foreman enough in your mind decided that you were not going to be able to work anymore and that you were going to put this matter in the hands of your lawyer correct answer yeah question indeed you tell vivian bell the wife that you were going to do that answer yes so i get the argument all i'm saying is it didn't matter in the context of what this judge found in the context  this evidence as her as her in her role as a trier of fact in addition to being the judge i see my time is up if you don't any more questions i'm happy to sit down and you'll see me and question i'm sorry you know no i'm nobody has appointed as the guardian what about that i don't think it's it's it's actually relevant to the issues of guilt which was why it's the issue that i'm talking about no no no i'm not i'm not i didn't mean it that way i meant that it's not raises questions you could just look at the order and explain to me which i had and i had difficulty reading it because much seemed to have been scratched out in the version we have in the record whether the appointment at the guardian of his is as his wife pray limited purposes i see it was for anything more than the purpose of substitution in this suit or whether it's for general purposes i thought it was i thought it was for more for a substitution in the suit and what i was going to say t laval is when you look at the start of the case i would think that that would be the time where this issue would be broached when the judge says we have the trial if there was a problem with respect to the fact that the wife wasn't a named plaintiff in the case that was the time to bring it up i would also point out to the court that mr krinsky himself gave very very very detailed testimony relative to the case relative to how he was feeling tremendous cross examination well i  just think it's not a it's not a situation where a court that has not have jurisdiction of this matter declared him incompetent and made a very explosive ruling that a guardian was appointed for  expressly referring to this case but i just that mean that the guardian is the appropriate plaintiff in the can it may well be and the order eighty one the article eighty one is not necessarily a complete as to its to provide for a certain certain leeway of certain things it's not that he was completely incompetent i'm not agreeing that it would have been a better situation to honor the article eighty one what are all i'm saying is that years i thought about this issue with first i thought it was a fairly serious issue and then later i thought a little less because the plaintiff's counsel was certainly aware that his client that that that  had been declared incompetent and that damned it's the wife is it that was appointed a guardian and so he knew who was the plaintiffs for this case wrecked so my my recent thinking has been along the lines that yes there was an error a failure due to acknowledge the request to substitute the name plaintiff but that can simply be accomplished by substituting the name of the plaintiffs there's no reason to thank that the attorney wasn't taking instructions from the person he knew was the appropriate point f because he know that the court had found his client his earlier i have found krinsky to be not competent to be the cause yes that that's true and that's what i was trying to say probably not as elegantly as you did when you look at the beginning of the trial there's no statement there judge we can't proceed because we haven't ordered a lady one order and this isn't a proper or preferred tropi plaintiff so i just don't see how it would have had an effect one way or another on the ultimate determination in the case and if it and certainly at least under you know new york law not a much a federal law but on the subsidy new york law that can be accomplished in proton so that could be subject to a a waiver analysis as well i'd like to already decided that none of these witnesses were believable the problem with that argument is that that is the mirror image of what plaintiff's counsel made and is the reason he didn't bother  to two to raise the question of credibility if say it's all been decided so that if what you're saying is true something which we were really pressing him and saying you have no right to do for may have more legs and so i'm a little surprised by your make it better argument well but your judge held views of i don't think i'm conceding anything that you think i'm conceding i'm saying that based on the judge's decision we know how she felt after the fact that you can't divorce my argument from its temporal relevance because they are a completely different times and actually believe case i think in new york on ever we do a decision by the supreme court will always court in new york that that's why purcell that's fair enough but this is all and this is just one harmless error and the quote that is used all the time it's in all the books is absolute perfection in trials will never be accomplished as long as human beings or conducting them so again that's that i don't think that given what we know the judges credibility findings were well after the motion was made that that it seems to me it's mixing apples and oranges or maybe i've got the wrong metaphor and maybe i should not talk metaphor at all but you say that because the the judge assessed the pla pursued into the plaintiff's conduct where the plaintiff mediately sat and gravy now i don't have to work anymore i'm turning this over to my lawyer this is this is crazy i don't see how that precludes the possibility that a doctor cannot molest find that the plaintiff's illness or whatever it is his deficiencies are attributable to the accident the plaintiff may be maybe the worst scum in the world and devious and lie hang and and everything else and none the less it may be that his injury his his his defects are attributable to the accident and a doctor can testify and you'll get no disagreement with me  i didn't i wasn't going even i wasn't limiting myself to that i don't know you are saying that that the that the judge's failure judges refusal to hear a witness was excusable because the judge  decided that the plaintiff is a scheming liar about only only important when you read and i know you've read the judge's decision because you've cited it forbade him with the judge said was that right after the accident there was this plan on the part of the pla take this injury which was originally a minor injury and converted into a major injury she assessed the credibility of the defendant chase after the accident saying it was a minor accident he didn't seem to have any problem he drove his car away and she looked at the t estimony of our two experts the biomechanical and the delta force person said that that made sense and then looked at what happened with respect to each of the medical witnesses put on by the plaintiff and and for reasons that she set forth came in and gave credible testimony then the fact that the plaintive may be a terrible crook and actually think that the accident had nothing to do with it doesn't matter because a jury if it were a jury could believe the witness that came and said despite what this fellow thinks this was what was going on that's why we have to six or seven who did testify as to causation they said that this was caused by the accident so it's not like this was the key witness the only witness who was testifying as to that and she rejected or did not believe any of you have read so it's not like it's the only evidence we can get to the answer to judge calories is going to start when are you going to hansard judge calibrations question what my argument is that it's i don't think they were presented properly and i would think that any error would be definitional a harmless given testimony or causation and the court says listen i don't believe them because i don't think that this is the type of accident that could have caused this particular injury given my acceptance of the testimony of the defendant i don't know what th as someone who would testify to something that was different from not cumulative to the others because the district court can perfectly well say i've heard enough experts you don't get to call them without limit but you would have to you would have to be you would have to present an argument that this witness has something different to testify to i would just say again and i say i'm really over is that the the generic claims were all the same and the rejection of those claims witness was present it was presented in totally generic terms without any specific reference to causation so we always go back to the question of was this the judge ruled a look at this is cumulative because you didn't stay on the this is the only neuropsychologist testifying the other causation testimony which was given on one eighty two by doctor by dr lipton with absolute certain absolute certainty that the brain damage occurred from this second and explain to me the guardianship order because the version we have is quite marked up it looks it's difficult to ascertain what the guardianship was with respect to i v it seems to be limited guardianship was it only with respect to this case or it was with respect to other functions that mr krinsky needed his wife to be able to perform when to stand it was with respect to the sc this particular case though for the purposes of this case he was deemed incompetent and his wife respect of this case be a drug which may be why a crook for pathological reasons which may be why a district in a state court would say he can't properly bring vias case because he's gotten himself all in a tangle to someone else but you knew that so how did that hurt you when you could confer with his wife we respected any of the issues which were relevant but i think it's it's speculate