doctors in the case both famous live in the defense say going to defendant doctor him self and his experts agreed with the standard of care set forth in the plaintiff's the basic principles one through twelve so the standard here i was not the issue in the case was really well with all respect or maybe it's better phrase but in my view let me say that they had the evidence focus very heavily on the testimony of coworkers and we're not saying we never alleged in this case the doctor might need to interview the coworkers need to interview a mad mel case verdict for the defendant and the court overturned it because of the overwhelming evidence in favor the plaintiff just like this court this case and the court said the defense correctly asserts that assessing the weight of credibility of testimony is exclusively province of the jury when conflicting testimony exists for the jury to resolve a conflict however the jury cannot accept expert testimony arbitrarily the jury must consider the facts and the evidence upon which the experts base opinions now in this case you had  are the finders it's for you to decide whether the plane is the incidence of negligence right correct but the jury cannot sit there and and base their verdict on testimony that find that in that case they said they must examine the reasonable this sort of testimony offer we have presented a mountain of evidence and there's over one the evidence is one sided except for the stockers naked unsupported bald assertion that he claims now ten years later for patient doctor asked about are those questions other than his naked assertion that he did so ten years later based on nothing so it's completely unsupported as his own experts agreed that it's all real time only everything in this case furthermore if you take the doctor at his word it's absolutely unbelievable because why because we know that the dissection had to occur before this basic came to the e r and on the loading dock exactly the coworker said in the rebuttal contradicted testimony i situation he should have been dead within forty eight hours as i recall no that he would not have heard days later if the tenor was the type of that they were talking you know there was testimony that you know there's no no in fact the evidence is that the some disagreement among the experts doesn't mean that you're right as long as the experts testimony is not based on conjecture and surmise in this case you're referring to dr job and he changed again changes testimony from the first trial but  says he does not it's not clear to me the very difficult decision the very least and he said clearly that you have to have severe pain this is pain you don't miss it has to be covered by severe pain there's not one shred of evidence of any severe pain that this patient head was closely watched and monitored b d family members and friends after it i went to the e r there's only one run and only one instance of that and that's on the loading dock as witnessed by the coworkers who were not his friends who had no stake in this place case and who testified truthfully as to what after the e r visit based on some fabricated a make believe stuff that he's making up so to say that there's more pain that something testified in a deposition somewhere that can identify that there was more pain a fight didn't happen it's not true there's nothing in the record about that no one testified to that it's not the case and that's the basis for his causation testimony now we have to get into five a one which really mandates that this verdict be overturned i mean that's you know no question on that in my  furthermore the remedy quote unquote that this court offered was completely inadequate and inappropriate under the law kersey and all the other cases that we've cited in fact we weren't even titled this judge said you cannot make  transcript that's in the record you can see that he said you were not permitted counsel to talk about that there's an adverse inference in this case or that there's a missing witness in this case nesa whole point of what is what we're missing with this instruction we weren't entitled to case because if anything they can tell the jury that these guys are really hiding something as we all know their highest doctors testimony that was so just favorable to them in the first case and that's why they did mean what it was the first case and that's why they want to get rid of this guy we all know that and without being having the force of law behind us to get this jury instruction that that's what was going on here that change entire course this trial and led to the wrong verdict so that's a completely inadequate remedy in my view and i think it's inadequate under the case law that is extremely clear another thing they asked the court to look at is there's an issue as to we had asked the court to allow us to read dr it's twenty seven last paragraph so i think that's a very very important point we've made our points in our briefs about the improper closing arguments that were really allowed to happen in this case  just that that if that even if we take doctors a short taking doctor see shown at his word the doctor alighted did include new york they section it in his differential that's another one of the basic principles that's what i was going to say that that if you have a section in defense in this case they never addressed any of our arguments and he did other issues instructions just the one issues instruction we've been talking about which is did the doctor ask about the time of hindsight we had several other theories in this case none of that and that evidence is again severe abdominal pain just going off abdominal pain which is what this doctor guy got from this patient we know it was acute that's one of those things are in question the only question is was it severe but if it severe everybody agreed including defendant doctor and their experts that you need to evidence in this case shows that the pain was severe enough a thirty five year old man taken from his place of work in the middle and in front of all of us coworkers in the middle of the day and rushing to the hospital so it's obvious that we've been just on that  defense in this case an understatement there are several comments that i feel i ought to be responded to about the basis for a new trial which is not before the court but i think the record needs to be corrected in that regard judge  ride granted the new trial for one reason and one reason only and because it was his belief that he saw the most gross misconduct during closing argument it is doctrinal might as testimony and of course and we set the sound in detail and on page thirty one of our brief there was no there was no offer of proof there was no specific tender of any portion of  this doctor was submitted to two days of examination by plaintiffs counsel first by mr right and then recross examination in the first by mr all of those questions to the very best of his ability and i think it was very forthcoming before the jury i would say just stepping back a moment this is not a case where and as both of your honor's have commented on this where anything was was left out from the jury there's not one argument here that there was an argument that judge all right preclude the plaintiffs are making every bit of these  challenges in the whatever it consistencies of plaintiff a suspect there are the problems with one person's testimony for says another that all went in judge al rod in his own words and this is in the record post the argument in the post trauma motion bend over backwards to allow the plaintiffs to make their case and i think the record really and truly bears that out and the what appears to be the key it's primary argument which is the  coworkers testimony being on rebutted it seems to me fairly clear that the court appreciates the defense argument that is does this testimony by no means was henri bought it and i think there's a possibly a little  bit of an issue as far as the plaintiff reporting to the court that the paramedics did not were not at the scene until some long period of time after mr hamilton came down with these symptoms in fact the record shows that and that the record also bears out that the pick the paramedics were there within minutes and so what would have to hit a crew of course for this for this court to overturn this verdict based on the the testimony of the folks  the loading dock would be to say that no physician or other health care provider could defend himself or herself unless he had a specific recollection of all of the events and obviously that's not the case in the  that's not the roger or no i no expert could ever testify unless the expert also personally witness all of these events and that obviously is not the case every day and in the courts there is testimony that's based on medical records lengthy the adverse examination and the at and the doctor reached a conclusion because as a as he admitted he didn't have a specific recollection of asking this specific question but he reached a conclusion based on the  notation that the pain was constant that it became to be began at two thirty and from that he was able to determine and based on his own custom and practice that week he would have determined from and he testified to this at great length he would have determined from the patient himself who i submit is a better reporter of how he was feeling and how he had been feeling than his coworkers and that's clear based on the testimony  my constant pain beginning at two thirty and based on those notations and based on the doctor's custom and practice yes he did obtain a history of the pain from the outside so i don't think there's any there can be any dispute that that testimony is in the record a specific specific words exactly but clear import of the medical record and you know and then as far as there being a basis for reaching a conclusion that the court should just regard all of the expert testimony because it was speculative the so so forth all of the other attacks on it there was  objection to the foundation for the testimony of these experts so to the extent now certainly there was plenty of cross examination but if if the testimony was so unfounded then it was examination of all of those experts but certainly no challenge to the foundation i think that's a very important point so for the plaintiff to say that as a matter of law dr johnson and dr schumann based on the testimony of the folks at the loading dock must carry the day i think simply is just not supported by the record or by any basis in illinois law dr johnson was really almost more supportive of the defense and that was that was our position at the trial and that's why we emphasized dr johnson's testimony so much at the trial and mrs reagan emphasized arguing to the jury in her closing argument and that's one of the reasons that the argument that we take issue in disagree with the argument of the plaintiff about the moloch and versus c shine issue first of all this was not a substitution of experts of switch right before trial it was a matter of doctor that of dr martin who had testified at the at the first trial before the second trial with a month to go plenty of time plenty of notice probably even more than what should have been a five on one instruction as the plaintiff admitted and i would use when this issue was brought before a judge our the witness wasn't missing the entirety of his testimony was preserved and testimony would be cumulative and one point is that it would be cumulative at one point he said it would be cumulative but it either would be or wouldn't be regardless of of what the ruling could be and it certainly i don't think ever could be that it would we're in a five hour one struct having the dramatic impact i don't think the record bears that out at all run run example is that the claim of sights of this impact is the closing argument of defense counsel defense counsel during the closing early on the issue of the standard of care she didn't even mention dr c cheyenne and the issue of causation and clearly the testimony of dr job which was discussed during that closing argument and the testimony  be present and usually is president present in approximately ninety percent of cases that wasn't shown and they ask why dr johnson was almost a defense expert because he was very forthcoming and he said even though it was his opinion that he testified to that the patient had to report it to session that the section in the emergency room but in ninety percent of the cases you see a change on the x ray and in this case there was no such change and that's right dr johnson's testimony alone under lee in ninety would meet the slight evidence standard to merely travel five instruction so there's really it's really not an accurate recitation of the record to argue that dr c sean's testimony was the only testimony that supported the twelve o five instruction that's just not the case and that certainly is borne out by mr rico's closing could not carry the day it did not carry the day as far as the jury was concerned it certainly could not carry the day as father's a ruling as a manner of raw especially when one considers that there were there were two crucial experts in this case  areas of radiology in cardiology and guess what they only testified on behalf of the defense dr johnson by his own admission couldn't say what would have happened in the cardiac work up that he said that he thought should occur that would have diagnose and were picked to section in the emergency room it had to happen through a cardiac work up dr johnson being an emergency room physician wasn't willing to speculate what their cardiac workup would have bet and he thought it would have led to it but the one cardiologist testified a sector share said that cardiac work up was not called for and if it were it wouldn't have gone in the attraction in any event i think that it's  lengthy if first examination the jury heard the plane a special that they evidently found the witnesses for the defense more credible and more convincing and the judgment was a is clear doesn't have anything to do with whether the doctor sitting there or not you are entitled to introduce that evidence as an admission this judge denied us from doing that it was an incorrect decision that needs to be overturned and that we absolutely submitted the testimony from the first trial to this judge and asked that he allow us to read that testimony i believe if that was an offer of proof i believe that was that was adequate with respect to again if the co worker's their own defendant dr might or in this case and dr joe both testified they have no reason to disbelieve the testimony of coworkers once you get  were the medical records don't say that all the medical records said the opposite that medical records say real time only the court has them in the record they can check that out again the only thing it said that was at the third at the second trial for the third go round whatever doctor might have to make a decision  see shown there's only one remedy for that and that is the jury instruction five point zero one in this case the only thing that could allow a remedy when the defendant fails to produce their own retained expert that they deliberately would gave to us here is that you can mention that there is some conflict between the one doctor and the other he said that i'm specifically barring you i'm prohibiting you for mentioning th adverse inference in this case if they fail to call anybody i think there's a mis missing witness or anything of the kind and that's what we were entitled to that's what the instruction gives and that's what would it change the outcome in this case so i think it's clear that that would been totally inadequate in this case defendant told the jury something completely opposite of that and that's not a fair comment on the evidence that's an improper argument to the court to the jury in this court doesn't need to be to object to that in my view i think the court can look to the waiver record evidence stephy states to be a testifies that this starts at one forty five pm the paramedics may have been called by telephone but they don't arrive until two eighteen pm it's thirty three minutes later all the stuff that was going on with michael that she talked about was going on