rebuttal if you can see we're not strict about watches but try to watch your time if you're going on too long i will ask you to wrap up and try to get to your most important issue first because we really have regular materials and i want you to waste your time trying to educate us we read what you gave us so with that whenever you're ready basis of his opinions in particular the trial court would not allow mr barch up to testify as to his firm's health care specialist observations when they examined the sixty two patient files mr barker set forth in his testimony are people that he relies on in conducting some investigation into the matters these other people that have he had his health care professionals specialist specialists yes why did she disclose and why did you bring that monocytes friends at the drop well because one they want to offer his experts and they are not experts but rather they are people that an expert mr barker was relying on but they were rendering opinions that are what was going to rely on and this seems like this is different the field of expertise know i think that's where we have the disconnect here in part because these weren't rendered his opinion on gantz generally accepted audit and standards these health care specialist didn't make any observations on gas let alone render opinions and even if they had rendered opinions i believe even in the d case that is relied on heavily by me glad very you can't rely on an expert can rely on the opinions of other experts in another field so long his it doesn't it doesn't become calmest seven zero three rule seven zero three it does talk about an expert being able to rely on opinions of other experts even experts outside their field so long as they as an expert do not adopt that opinion in here there's no guilt in looking at medical charts and being able to figure out whether and upon a particular procedure was appropriate or not so those kinds of things were clearly outside the ex they the typed up report in the file is identical to the spacing within the within the report so you have sixty two identical situations you have sixty two people who come in and you would expect in some situations that some people would not get surgery and they would go to the doctor you fill up the forms and he said well you don't need to know me if you may have to come back in six months here everybody got surgery all of these were fanciulla observations influence what mark was oh ultimately conclude well it was within their range of their experience but if it's an observation and it doesn't it doesn't become part goes opinion he does not adopt their opinion eighty if if dr kern i had said to him i do not believe that this is medically necessary and then barco stood up and said i've come to the conclusion this was not medically necessary he would be adopting dr kerns opinion and that's not what he did here he didn't adopt mr overstates opinion and regurgitated heat said what mr overstreet told me were matters that as an auditor i got to drill down him get to the bottom of it before i have enough evidential support to issue an order of opinion the numbers may add up but you've got to look behind the numbers and that played into my gladness whole argument about how because it would have been beyond mr over streets opinion he doesn't he's not water he would know what in order was supposed to do he was tasked with looking at medical records if if the this means that in every case if i exists is different from several three is approved by the court by the owner springform wilson versus clarke and i believe the supreme court in this is not in the breach so in people versus i believe it's williams to cite last fall they declined to and they did they did not say what was going to happen with the additional language that is in the federal seven o three and now with the only rules of evidence that language is not it's in the federal seven zero three that you are on a referred to is not in the illinois rule so i think it's a different standard in illinois and i think we still have the standard of an expert can explain the basis of his opinion even if he's relying on other experts as long as he is not adopting their of pena and here there is no evidence that mr barker was going to adopt or did adopt the opinion of mr overstreet he had a different opinion his opinion what if the because of the health all of this revolves around the failure of these auditors to recognize these issues that well i think that later became red flags and the only way they can do that is by bringing in people who have health care expertise that would help them do that that's what this whole thing as i read it is about so you know even if it all gets back to gas later it all starts with ok whether the health care things that were missed at the at the group very granular level that led to this audit in completely wrong and i think this is the regurgitating their opinion it doesn't open the door to all of the requirements of of disclosure under our rules it goes to the weight and mr barker should have been allo testify about this and then he could be cross examined on it and just bring up the very points that they had to your honor has brought up here well you know you have to go into all these medical records that goes to way what was done here is the door was closed as witnesses then i have to comply with rule two thirteen and we had not made those disclosures so we were at the in the courthouse room when this comes up for the first time and if you if you follow the you know the walker case of the window case and the judge woods dissent i think all lay out what the format is you can render an opinion a as an expert and you can rely on the opinions of others you can rely on the factual basis of others as long as you read form your own opinion and barco formed his own opinion and there's no evidence that he that there were revealing the his expert opinion i think i've touched on most of them above a need we don't we doesn't need to disclose them because they really they want witnesses and it's also under seven o three getting back to seventy three the issue is whether this is material that is reasonably relied upon by the expert mr barker said that it was so then it became not in this ability issue but a process emanation issue fraud so we had to bring on these doctors they never reported anything to mr barnacle so there testimony could not be cooperative of a basis for his opinion i may have just a couple  minutes to address the other issue that we raised and that is that oversee banks objection the trial court allowed me gladly to take apart each of the winning decisions that citibank had made on prior loans to  three motions and women a were raised to bar mcclary from examining the loan officers about lending decisions there were two more beach loans it was a revolving line of credit there was a term loan that existed before the term loan which was an issue in this loan information in the loan and then it would give a recommendation of approval loam disapproval while this was in the witnesses testified this was in the experimental stage in two thousand to two thousand and three it wasn't used on the two thousand and four long yet from the very opening statement mcclary said that in june two thousand and two the risk model says decline and citibank's people say approve in january two thousand and three the risk model says a decline credit people say approved so this is the image pipe of irrelevant information that was used in the case to knock out prior relationship here the glad recruiting choir about that and one of the great things they raise is that well we brought it up well after the court had said they could bring up the prior relationship yes we  funded the issue with our loan officer yes you did have other loans but we didn't go into an analysis and we didn't rely on those other loans as evidence for why the two thousand and four june two thousand and four loan was an appropriate  passion is is his answer that because this relates to loans for which we're not part of the suit and cannot be recovered as part of the suit now magma glad we says that we did not preserve counsel's aware of and that's the good steve versus raj case where spoke out which is one of the cases we rely on was not followed by the court but i think even in the we had put linda butler on the stand as she's a relationship officer persist citibank she was examined and then before when we saw what was coming with her cross examination we brought another motion eliminated before steve arnold was put on the stand so we're in the course of trial and we raise a for the third time and it was denied so i believe we fall within the teaching of mcmath versus foley that it almost file a motion eliminate was really a motion to bar i think if i may just conclude here v the errors that we've been talking about here call for reversal and reversals call for if an erroneous evidentiary ruling rulings were sufficiently prejudicial to change or materially affect the outcome of the trial in this case mr barr goes he and was tied behind his back he could not be the all important explanation of how he arrived at a conclusion that there were more red flags that had to be resolved before the audit opinion could be rendered he if he had been allowed to give there at the playing field would have been level and it cannot be said that the outcome would be the same if this case were retried if you very much think you the last sentence which reads to evaluate their expert opinion substantially outweighs their prejudicial effect they shall not be disclosed to the jury unless the productivity substantially outweighs the prejudice through  clothing other correct draw and that's which is getting this whole yes your honor and through the other disclosed witnesses the properly disclosed witnesses all of this evidence came in it came in through three physicians two retained in one an retained expert and it came in through two late witnesses all of them testified about either the medical records and the defects they perceived in those not the records and or the effect of those  effects on the accounts receivable which was the issue which mr barker hoped to use them for the difference the key difference there you know why do we care who they come in through we care and the courts care because when they come through a witness who is competent to bring the men that we just can be like the two late witnesses ms jordan and mr handler also testified at length about the effect that the what they called the toxic issues in the receivables based on the medical records what effect that had on citibank's damages now counsel alluded to an argument that's been made elsewhere that the finals stands as of rule seven three shouldn't apply in illinois because they've been changed in two thousand amendment if one reads the commentary to the two thousand amendment it's not a change in the wall it's for emphasis the the rule was amended in two thousand and three to simply emphasize what it already meant there was confusion on this point as a court may have seen other cases there's a lot of confusion among counsel about whether something becomes invisible in evidence simply because an expert relied on it seventy three clarifies what's always been the rule which is that it is not one not disclosable and in fact the commentary goes on to say there's a presumption against disclosure the city make need to go into court and overcome that presumption against disclosure or as the justice he testified that he had in the past relied on medical doctors he simply could have adjusted his subhas to thirteen disclosure to bring that in they chose not to what they wanted to do instead was to bring in this opinion in his opinion i'll get to that in a second these opinions of out of court experts and protect those opinions from cross examination and we know that not just in theory because it actually came up during the case mr barcode in his thirteen disclosure indicated that one of the facts that his team of medical experts medical specialists found in the records was that with respect to a certain patient those specialists determined that patient carol f in her file there was no indication that she actually received the procedure for wish bill went out and he basis it is it is disclosure he says this is the kind of thing that medical specialists bring to me and this is what i do it at trial he just in his testimony a little bit examination citibank interpose the foundation objection saying that the document which i had in my hand that showed the procedure had taken place back foundation with this witness because he had interviewed them out of line in the clear jumped in and question mr parker when he said can you testified about this and he said no the files i gave to my medical specialist so we see in this very case the danger that rule seventy three job is to avoid to the testimony to be for mr barco was quote namely that there are certain questions of whether the surgeries that were the subject of the sample were medically necessary or even performed that would be my offer of proof so what these work were not observations about the file was an inch thick or it had a hundred fifty documents in it these were determinations of medical necessity by the only people who could do them now we know the only people because mr a barcode accountants do numbers not noses that's a basically a paraphrase of mr barker's opinion that accountants need to bring in experts experts to read these files and tell them what the files mean that's the only reason weight was a three week trial every day except three of those all of those three weeks was citibank's case they and they did a tremendous job with what they had but with all due respect this was not a close case  of whether this is a close case so he thinks witness mr barco is someone who's worked as a litigation insulted much more sensibly and he worked as an auditor he was caught red handed in cross conflicting with his videotaped deposition testimony enough times of the jury truckle that it got the fifth or sixth time he was caught red handed having changed his resume to make it look like he was a medical expert that he changed his resume for this case he produced in discovery his real resume which indicates mergers and acquisitions special specialization but for this case the resume that was attached to the cd that was from citibank over the years so that was the plaintiff's expert because experts essentially wrote the book this is the a i c c health care already guy one of the early authors of it was our expert bill tell it he's someone who has audited taxes like this practice is bigger than this hospital chains for years and years and years as the head of even wise health care practice he was formidable and first of all i think it's a stretch to come in here and say that if mr barco had been able simply to be the sixth person to raise the issue of medical necessity that somehow would've changed the  show that in cases where expert testimony has been allowed in there's been no ability to cross examine that expert because he's relying on out of court statements of other experts that reversals appropriate is that's the kind of thing that can really swing a case of the strickland case i believe that that city baker lives on where a police officer was able to come men and essentially parrot the one cross examine statement that kept the court held that was reversible so i think it would have been judges had discretion to make that call i think would have been the wrong call and what the basis work all she brings to the table is the history before the operative one she had left by the time the operative longin so citibank brings in their first witness and her testimony about two thousand and four i don't know anything about that because i was gone but i can tell you all about the fire lending relationship that's their first witness so at the end of her testimony oh they bring in they put in some documents they put in the two thousand and three loan agreement through her this is all over while we're under this tell me if you see something untoward and then to bring the judge's attention to the issue there's simply and he simply untenable to tell the district it's all circuit court judges that they need to make the objections for one party or the other trial that they object to now and time and again when a document was offered they didn't sit new they said no objection they didn't say reserving on the motion eliminated didn't do any of the things that one could do they simply said no just so that we're off on on the same page the objection to mr barco was not made pursuant to the provision of federal rule seven zero three that deals with facts or data that are gladly at their word this evidence was already entered through the doctors so what was the prejudice to them by having the health care specialist say this is the information or