tractor at the time severely impacted ms briana parker's automobile severely impacted the hood the side and it punctured her automobile and cause a total loss of her car the truck burnt the trailer and the three forklift that were on the lower part of the load and the second thing is that her treating physicians all testified that her injuries and her discomfort was permanent so the first issue segregate the damages by type as would have been done and texas court in required texas court so it's hard to see if there were no damages made for future meds i don't we we don't know if one hundred ten thousand includes future meds or not do we but we know it doesn't include the undisputed amount of feature medicals which were over a million dollars so we know for sure that it does not include the again the undisputed evidence of what those what those costs would have been but you were correct we don't know what they might have given five dollars for that i mean i'm not saying that your client really is that would be anywhere in the ballpark but we don't know whether they gave or not and i'm wondering this would be error in texas law to not give blanks for all the damages when you made a timely objection as you did but is it an error in the federal court trying a case under texas law and do you have a case that says it is the owner of the the cases that we're relying on for the failure to provide judgment as a matter of law that that's the dawson case you know again just the basic propositional law that says that when the evidence points so strongly in overwhelmingly in favor one party that reasonable persons cannot arrive at a contrary conclusion and so  again the evidence is that ms parker's treating physicians all gave testimony that her damages are permanent they gave specific cause for those damages  or reputable neurologist who testified that she suffered traumatic brain injury and that he testified about the cost of her therapy that the well this was her pain management physician he's a diplomat of the american academy of pain management he treated her fall over a year ahead and he does i mean i have had this problem before as a state trial judge where they gave zero for pain and suffering on a torn rotator cuff and i was granting a new trial and the parties went out in the hall and gave an editor so i again for stan the problem if you give a zero when the undisputed medical and the under skews shows that there is actually some number but the problem here is where the damages are not segregated we don't have an itemized that we don't know whether they gave something or not and so i'm wondering you talked about the judgment as a matter of law i asked you about the jury charge is there a case that says they have to do more appropriate texas pattern jury charge on damages do you know of any laws that i was looking for it myself i'm not aware of it ok it's as if the along that line independents contend that you failed to raise this issue in a proper roof fifty a motion and under our rule where you're challenging the sufficien is excuses technical noncompliance and it identifies two basic purposes for for that rule and it says that the two purposes are to enable the trial court to reexamine the question of evidentiary insufficiency as a matter of law and also to alert the opposing party to the insufficiency before the case is submitted to the jury and you honor the record shows that that the defendants were late alerted to the insufficiency of expert testimony on future medical expenses when we objected to their medical expert having any opinion or issue any opinion at trial other than what they testified about in their expert reports the expert reports were limited to two whether they the past medical expenses were reasonable and necessary that's that's what their reports were limited to so they were notified then we went to the trial court and we said we don't want them to testify about anything else in other words we don't want them to testify about future medical expenses if you did that in a motion and let me correct all right we're talking about a rule pretty a motion at the close of your evidence yes your honor at the close of the evidence  we made a rule fifty motion as to liability if that motion of course had been granted then we would have moved for damages the undisputed damages both as to the past medical as well as the future medical so says that rule was not granted we never got to the second step which would have been now that there is a liability finding and it comes with that a finding us and him has turning again to the charge is there a part of the charge that was le a type of damages that was not included in the instructions because of the different format that the district court chose are you arguing are you arguing that when the court combined them that in the list they left out  the responsible third party there's you you're not objecting that an federal court you shouldn't do the are the r t p are you your argue you object to that that the timeliness is that your only argument is that correct well you didn't argue that that's procedural or substantive and have we didn't have that disc a caressed and so again on the  future medical expenses there were simply no disputed testimony in fact the defendant's expert testified that that the the care that was provided to ms parker was reasonable and necessary the evidence is undisputed the court should modify the jury's verdict to correct the manifest arab law and in this case you know granting a judgment as a matter of law on the undisputed medical expenses would have been the appropriate thing to do right now on the dar and triple ied that were dismissed your contending there was supposedly ation of the evidence and all sorts of claims attorney misconduct i've to show that you were entitled to sanctions or anything of that nature as you noted to begin with a couple of weeks after the accident we submitted a preservation of evidence letter to the defendant i'm aware of that i'm asking you what discovery did you do by way of iraq to tory's mission whereas depositions what discovery did you take well we didn't take any depositions because the owner of the trucking admission a lot of those were not enter they objected to it and they said they may object because there's no one available at the company who can answer these questions without the motion to compel with the court the court sat on it for over a year in a court filing room on it and rule that they are to produce that information unfortunately the production would have come after the crowd so by the time they got to the motion to compel it was what did you do when in your two words the court quote sat on it close response to those discovery would have come up a month after the trial the second was no allow for equitable tolling it does you're on it so the a clear instance where we tried to get the information we tried to get the identity of the lower carrier and that information was not supplied to us it wasn't supplied to us and in iraq the tories we didn't find out about that until two thousand sixteen long after the statute limitations had expired awar some amount for every element of damages that is proven jackley proven and again we believe that if you look at all the damages for past lost wages future lost wages paid and suffering out the witness said yes i have medical insurance and just as we were objecting to it the evidence was already out in terms of all the other allegations that the defense were making that this was a lawsuit that was that was initiated perpetrated by counsel those things just came out suddenly unexpectedly when it came out we were left with a couple of options neither which is attractive one is to to ask to strike the information on which case it draws more attention to jury the other cases ask for a mistrial in which case we'd have to try the case all over again and we've already been you know waiting for trial for four couple years since her injury you know that's a difficult spot but agree with you that the shouldn't be talking a med of medical insurance and they shouldn't be talking about the financing of the medical care those were two things that are totally out of bounds to be talking about and they know better they're experienced lawyers  a common defense strategy it's an ad in texas court on soft tissue cases at it's not a it's it's i'm sure your client could get very angry about it because she has all these doctors and actual conditions pointing to injuries and that didn't even get into the removal we're talking about now where they're saying it was driven by counsel but in that case there was no evidence of that and again if you look at the testimony from the defendant's own expert the their own expert said that they saw that he saw nothing to indicate that she was exaggerating her injuries that was from their medical expert who reviewed her medical record to listen to her testimony at trial right now it jury got to hear that so they got to hear that they're on ice saying that it's lawyer driven when the expert says that it's not loike that she really does have all these injuries and if you said twenty times it was driven by the lawyers and if you say it that it was paid for by the lawyer if you say that she's got medical shores twenty times then i would suggest that that the jury could be impacted by that and again the organic acts are modeling but could have lawyers jurors as a whole do not like lawyers criticizing other lawyers at trial that's one of the most popular things they say so it could backfire it's a dangerous strategy you would think are on it but you know unfortunately in this case it appears that it did not because of the number of comments again that were made it appears that he did not like company will be arguing for the other two apple is in his reserve five minutes of our time and before responding to some of the specific issues that have been raised this morning i have a few general observations about the  ppellate complaints that i believe collectively resolved all of them or or should resolve all of them the first is that the sheer number of complaints being made is a sure sign that there is not one good one the second point is that there are no that can we go through them all elderly and so let's go through one that might be a good one and let's talk about the failure of the court to written objections from plaintiff's counsel and there are objections from defense counsel that this charge is wrong under texas law and we're here with the problem about whether every category of damages awarded and both of you agree that the judge charged it wrong so my question is what says that we should ignore that and just move on down the road your honor and i apologize for this because when i read through the trial transcripts i did not see the passage you're referring to i'll be happy to take a look back at it and he may dress that you don't believe  the truck council made an argument that the charge was wrong is that what you're saying oh i'm not saying that i'm saying i'm i missed that in the in the trial transcript and that could have been my mistake what i saw in the trial transcript was that page thirty one of the forty three it says you should consider the following evidence of damages and then if there's something about heat in this a gamma just says question we believe each of these should be separated out they should be separate this is your trump him so saying separate from middle anguished upper for actual damage so forth it doesn't track the texas patterns are in charge of the civil practice rico states there must be a separate category or separate element here for actual damage and that's not here and this is these and it's interesting because the judge is trying to move the counsel along because counsel going on and you've got the jury ready to come in for you know what i'm talking about and counsel keeps on and on making these objections because the judge parent wanted them in writing books and said and that's what plaintiff's counsel to put the defense skill to do their right by making these on the record objections and so they made the exact same objection to both of you objected to the charge i'm asking as a legal matter does it matter if this charge does not conform damages to texas law or is that a matter of federal because it's in federal court  have to what's the legal answer to the question i'm not aware of any federal cases that in federal court in a diversity case you you have to do that and i apologize because i was  as being timely and appropriate and i know that you're making that and they're in the plaintiff's written version of the exact same objection that's right well i will say that in the right i did not say where they made a specific objection that you have to have separate answer blanks what i saw is that they made some objections and then says here's what we think you know here's a proposed alternative question questions which are an accurate statement of the law is applied to that and it's got the same it's got the same damage blanks there to protect this p j c which is the same thing the defense lawyer relied upon in its objection their exactly the same and i'm not sure that that is a little similar argue indo it is because that's what the district court said it wanted was not an on the record going through to begin with the juries in the district court said no i want to have this in writing let's move along and so what is the answer legally to the question and under the federal case law they haven't cited any case law saying that you have to have separate enter blinks in federal court if we are in texas court do you agree that this would be reversible error the sides asked for it it's not done and they argue that they didn't know board for it they must not have awarded for a category because it's so well it depends on what the it depends on what the evidence is a trial and whether you can establish harmful error in here the evidence was that there was ever although there may have been evidence to support the damages award they want the evidence was not undisputed and if the jury believed our evidence and cross examination of their expert witness in past minutes and then they had i think about ten to twelve in past last earnings and you know the jury would could well look at this l as you noted they may have given her some future medical expenses but they but they may have they may not have what we don't know what did your experts say about it where do your experts say that chiropractic evaluation and treat and some of the initial treatment was reasonable but the rest was not its future well it would have if it would have been future because he was talking about at a certain point that had already occurred before trial the treatment beyond that was not reasonable but he's saying you mean it's past now he's saying that at some point before trial there became a point where further treatment  three page one twenty of the record dr pries who was a psychologist testified she testified specifically about an allegation that there  was lower brain functioning that was caused by depression and she said and she disagreed with that was it volume three page one thirty but the other evidence that was brought into play on the future medical expenses  necessary no she was just talking that she didn't think there was a permanent brain injury which i think goes to some extent to past and future musing supposed disability terminology you're saying that your expert said she would reach for medical recovery that i think that's correct and the other key piece of evidence on future medical expenses is the cross witnesses who testified at trial indicated that she was not treated after by them after two thousand and fourteen which was more than two years before trial and that comes in in the testimony of dr willis volume two page seventeen volume three pages sixteen and twenty three i think dr nas a lot and transcript script volume three  forty that was the testimony there chiropractic expert dr harding so based on that the jury could have looked at this and they observed this parker at trial to and could have taken into account that she was back to work full time that she drove away from the accident scene and could have taken all that into account and determined that no medical expenses were no future medical expenses were necessary but again they may have given her some we don't know what they did and they've only got four minutes left and i would like you to address the question i asked plaintiff's counsel about the claim that there was a failure to make a proper objection on to route fifty a about future medical expenses and i have a little problem with that because normally you don't know what's going to be awarded for future medical expenses until after the jury returned a verdict so what was the necessity for established as a matter of law that it shouldn't even be submitted to the jury and to give you that b b i was that in about iraq fifty fifty right there was no rule fifty a motion to alert the district court to the fact that the evidence was supposedly undisputed as i've just gone through that evidence was not undisputed and so we think even on something like  future course you never know what the jury's going to find on anything damages or negligence and it is very rare that you would have situations where medical expenses or at least future medical expenses are undisputed and proven is a matter of law so i we believe they were required to call that issue to the to the district courts and issue the issue the claim that the  future medical expenses were essentially established as a matter of law and should not have been submitted to the jury  showing the harm on all of these issues when you do have a jury finding of liability or you do have a jury award of a six figure sum of damages that's not what they wanted but is within the realm of the evidence that was presented to the jury and back on the issue about it and there is also a question we think about whether it was it was presented and understand the judge specifically said he considered it preserved well then bit but i don't need to read it and i don't quarrel with you that that was the procedure the judge ordered it i'm not saying it is a specific written objection in the objections they filed that that would not have counted i just question whether it is what they did was specific and just proposing an alternate question counsel we typically want separate answer blinks the plaintiff skeletal never does it turns out in retrospect that they do in this case because they think it would it would award of damages that occurred here so it's not a situation where the jury failed no liability and no damages on i see my time is up and i don't want to eat into  was a personal injury cases is pretty common tactic that you see of questioning whether the damages were exaggerated and whether counsel is involved  in referring to doctors and things of that nature i don't suppose to say letters of protection but we didn't say that that was said by either one of their witnesses raise the whole issue about letters of protection there was some subsequent discussion of that that was not objected to by thank you sir thank you for good morning your honour's job mass so on behalf of dark whitman in tripoli brokerage with regard to the equitable tolling of limitations there are two important elements and judge barksdale had a good question in during plaintiff's argument about one of those elements which is the diligence that plaintiff undertook to find out who the correct defendants were and so i want to talk about that one briefly first on them having to take it happy to take any questions of course at any time the plaintiff did not undertake any discovery in this case the eleventh hour the limitations period is two years they filed this suit exactly one year and eleven months after the accident and not until then did they undertake any discovery there was a believer quest for disclosure that was served with the lawsuit but even though the lawsuit was filed within a month of the close of the limitations period the lawsuit wasn't served for a couple of months after that so there was no diligence even if they had served there in iraq or tories or course reproductions request for admission all of that came after limitations had already expired and so it is impossible to say that they undertook any effort legally speaking to discover the identity of any other parties before limitations was already gone but of course diligence only matters if they can actually fit the merits of any of these theories which they can't the district court went right through their pleadings just as we have done in our briefs and looked at the fact that the theories don't fit the allegations there's no allegations that they initially sued the wrong defendant on the claims against us and there's no allegation that we undertook any inequitable conduct to actually conceal the cause of action itself concealment of an identity even if that did occur it isn't enough we had to conceal the cause of action and there's no claim that we did so i think our briefs adequately outlined the remainder of the law on this i don't want to speak any more than i have to and waste the court's time but if there are any questions i'm happy to take them testified about future medical expenses not one as a matter of fact dr mcmaster i didn't i hadn't they some of them at least testified that she had reached will medical recovery no more she did not she was not receiving any additional treatment  they did not and as a matter of fact you then i came here because counsel said read read the comments of his one of the doctors saying that the no medical treatment   tickle one was there was a misrepresentation that she wasn't receiving treatment the link to treatment they falsely stated that she had not received treatment from a doctor since twenty fourteen that's in the record i'm page thirty four twenty but the evidence demonstrated in the record and page thirty three sixty seven if she was being treated in twenty fifteen or twenty sixteen so that was another misrepresentation they misrepresented that she had an alleged create existing injury which she did not they hear you covered that in your attorneys were misrepresenting things about her expenses or her treatment and getting back to their expert dr mcmaster amount of fact he specifically said that all of the services provided to her and he included dr nozick and dr willis two of the gentleman who gave testimony about future medical expenses he said it was all reasonable and necessary he only had a problem with the cost of the billing of it whether it should have been five hundred dollars for some treatment she was supposed to see sorry she was supposed to see dr willis again but because of insurance issues they were not willing to pay the cost for her the treatment was twenty thousand dollars a year for pain injections and again dr price testified that he's another one of their experts he said he saw absolutely no evidence that she was faking org saturate her injuries so not only did he not testify that there were no or he didn't and then said in all medical probability and again they tried everything they tried to argue that she had a preexisting injury they told one a doctor this well yeah but that doesn't you don't know if that was from a preexisting injury or not was she didn't have a preexisting injury  so under roman versus west manufacturing that the court should allow an increase of the jury's award for the uncontested amount of the damages dr pryce also testif that he didn't examine to treat miss parker and if he had his opinion might change he was a guy who talked about whether she suffered from depression or not and again had nothing to do with her future medical expenses he said whether he thought she was depressed or not in that he treated her he might have changed his opinion jani you had a question about the separate jury instructions that the plaintiff on three different occasions submitted to the judge that there should be separate jury instructions they reiterated it after the judge came back of none the less that still could have been done before the jury was discharged did did you say your honor the damages are not in line with all the elements we need to the questions answered about the damages because i think they forgot to ward for future medical did you do anything to keep the jury from being released so you could get the information not saying that that was necessarily requirement but it could have been a last ditch effort to bring this to the judge's attention and we did not after you know pursuant to procedures after the final submission a jury charge we objected to it and we submitted that you can look at whether there was any evidence to support the jury verdict and again that there was no evidence that there were no future medical expenses so therefore there was no evidence or even on the plane or of the the force should