granted fifty one emotion yes your honor that's it that's the only remaining issue on the on the on the money if you're right right and what that boils what that boils down to is really whether whether mr griffin should be allowed to recover and amounts after the comparative fall reduction of ninety five thousand dollars you have the problem in this case with no special iraq doria or special verdict right there there was a there was one line the verdict form in this case and our position is that despite the fact there's only one line here based on the party stipulations as to two of the three categories of damages and the court's instructions that the jury that it must accept those amounts has proven that we can take the general verdict in this case and we can find out with certainty we know a certainty what amount of damages the jury awarded for the three different category well what i'm assuming you didn't try this case as a right now accept any of the stipulated figures well actually if you have to award any of the stipulated figures right it's true that counsel said that your honors but i think when you look at that the transcript as a whole and i'd refer the court to and i apologize because this wasn't specifically noted i reply brief it in volume seven which the trial transcript page forty three is the plaintiff's closing and pages sixty four through sixty six of the defense closing that all occurs before the remarks that mr griffin cited his brief amount i believe the court is referring to and i believe both in isolation and in context there is no suggestion here that the jury did not have toward her or that it shouldn't award the stipulated amounts the first the first thing i'd like to call anneli you know more fundamentally we're trying to get why we are here i think you would agree that if we had had a special birth not a general verdict but a special verdict that broke out categories of damages including medical expenses we would have a problem we know what the jury had said the medical expenses were that in the set off principles could be applied but we didn't we had a general verdict and why because your side wanted a general verdict is i understand the plaintiff asked for a special verdict form and the defendant opposed that so why in the world should we be doing all these mental gymnastics to try to try to undo essentially what your client caused to happen well the we did object that's true through the multiple lines of the verdict form but the basis for that really if you compare where we are now to where we would have been w multiple lines is with multiple lines we would have had an amount that the jury was required to enter on two of the three lines and then we would have one amount that was within the jury is a stretch and and here in from our point of view there was no need for multiple lines we would end up in the same place because you had us playing the main line if you had a form where the jury had said medical expenses are x pain and suffering loss of income why would we be in the same place well because the plan is if you look at the plaintiffs have raised in their arguments plaintiff is saying that there's been a waiver here plaintiff is saying that this bill it issue was not included in this amount in these arguments of the plaintiff would still be making even if the jury had written in the stipulated amount on this on a separate line so we would still end up in the same place and in our view in this case that we know in a better place would we wouldn't have to worry about all the other to get us to the way or argument but we have one we would have one less issue to worry about it but here i think we have if you combine the stipulations and the court's instructions it has to accept those numbers as proven and the presumption that the jury follows its instructions i think we get to the same place that we would be in with multiple verdict forms and well i don't i don't see that because what the judge instructed was that the jury was obliged to accept the numbers but the judge didn't instruct them that if they found for the plaintiff has to lie billet in everything else they were obliged to award damages including the stipulated medical expenses he never said that right now that was not that was not in the instructions or so jump ball right well whatever they did they did it well i think i think they had the jury again i go back to the case what was the words used by the court to the jury about the stipulation the words you used were you must accept the stipulations as evidence and regard these facts as having been proved but the jury doesn't know what that means does it while the jury knows that there's that there's an amount of it that amount has been proved well there were very what don't what it means of us you look at the oral argument closing argument the lawyers of counsel tell the jury to award that amount of money in its verdict yes the plaintiff's counsel told the jury that those were the amounts that it that it should include in its verdict for the medical expenses in the lost wages and i placed it was slightly more ambiguous than that as i read it you're referring to page forty three of funny seven right yes ok so what he says the plaintiff's lawyer is this if you find that we've proven our case and you believe that these are the economic losses of earnings and medical bill and you accept what the party to put in a stipulated amounts then you know i paraphrase you the jury should award x all predicated on one word if and i agree that that's what he said and i think that in that if if you look at the defense counsel's argument you know th defense counsel is also pointing out that the mere fact that there's a stipulation doesn't mean that damages have to be awarded because there are these prerequisites you have to get to that point and then the concern i think of for example of plaintiff counsel had said you must avoid these damages defense counsel stands up an objection says well that's that's improper argument because they have to find engle class membership they have to find liability on the claims first before we get to damages so both sides have a little bit of a coffee out in terms of you don't you have to award these if they're proven they're undisputed amounts but you may not get to that point and your argument to me sounds like a terrific terrific argument for why we can't tell what the jury did well i think you have to go back to the instructions your honor and that the trial court was very clear in its instructions counsel's arguments of course are not evidence and that if there is a conflict between anything that counsel says and the law that i'm instructing you on you have to follow the law and the instructions are very clear that these facts have to be accepted as proven sure they have to be accepted as proven but that's different from saying that the jury is obliged to award them if they find liability that different is it i think i think in this context where both plaintiffs counsel were arguing that these facts were that these issues were undisputed and that it was there was no question as to the what the amount is of these expenses then i think it has it has the same effect if it would have it would have certainly been clearer had had there been an instruction in retrospect saying that the jury must award that amount but i think given the jury's instructions that was the only thing that happened especially to do here wanted and you know there was no objection to that if that was really what counsel thought was going on in context it's simply just it doesn't really it doesn't read like that it's a response and that's why i was referring to the other aspects of plaintiff argument for hand because the plaintiff in the context of pain and suffering damages had brought up a laundry list of damages including a hospitalization that none of the doctors had testified anything to do with it is so when defense counsel i coming back in his closing and saying look mr griffin seeking to recover for items that aren't related to c o p d he's contract he's he's taking plaintiff's statements and responding to them but then he's making very clear that we've agreed to a certain amount we've agreed to these bills of a lung transplant and we've agreed to these lost wages but this other stuff that's not related to c o p d is not compensable so i think when you when you read the entire closing in context the fence counsel is responding to the argument pla counsels made on pain and suffering and indicating what is not in dispute which are again the stipulated amounts of the lost wages in the medical expenses including these contractual discounts which it's not in dispute were never paid by anybody and never will be paid the on the issue of the of the multiple lines on the verdict form just to put a finer point on that if we had if we had had multiple lines on the verdict form you know we would of course take one issue off the table we still have the issue the other issues a point it's raised that we'd still be here if the jury had disregarded its instructions and entered a different amount i think we'd also be here because plaintiff would have moved for an added or or plaintiff would have been claiming that we don't know which which medical bills were included were included in that lesser amount so i think the contrast between the cases that the district court relied on in what we view as a blanket ruling that whenever you have a general verdict it's it would be speculation to try to figure out the amounts we think the fundamental difference here is is the stipulations and the plaintiff let's suppose you have a general verdict like it is now if you have the money paid into the judgment of the clerk's office to satisfy the judge but and the hospital doesn't appear to collect its subrogated amount what happens is that because of the hospital that want there's a battle of the money right if the hospital this let's deal with my hypothetical that and that's what i that's what i'm trying to get you there with my hypothetical there's a judgment for x dollars it's a general verdict and presumably includes the hospital's expenses and the hospital doesn't seek to recover the expenses you follow me yes it's leaps on affright well and then it is that the fed that is or time that goes by it and i and hospital doesn't appear so now the defendant can reduce the judgment by the amount of the expenses well as long as the  here will reduce the total award by that amount but i'm not aware of that being in the law the only thing i was trying to point out is that the contractual discount we would be entitled to regardless of whether the hospital or anybody reduction assumes that the hospital is not seeking that money it no it actually did actually doesn't now that's what i was trying to clarify is there's an amount there's a full amount of the bill that was three hundred forty five thousand and i understand that but your assumption is that the amount of money that the university of wisconsin hospital expended the expenses they're going to swallow that they're not going to greek compensation so therefore you reduce the judgment by that i'm out to keep the plaintiff from having double recovery well because the hospital has a contract with the v a under i know that the hospital the hospital is not going to be paid out of the judgment therefore you should have yours reduced by the amount of the hospital forgives well in this been this case the hospital made all i am you're on about what i'm what i'm what i'm trying what i'm the point i'm trying to make is that if the full amount of the hospital charges is there it has been it will be paid by it will be paid it's not something we're trying to get trying to get back to how is the hospital going to be paid well the hospital has a contract with the v a under the i know that let's just let's take it my hypothetical let's take the be out of the picture the hospital kurt expenses that have not been compensated but it only has the right to one hundred fifty four thousand and we're not touching i understand that you want to reduce it by one hundred fifty four thousand other the assumption that that's all the bill seek because there's no there's there's there's the contractual this kind is not an amount that they can see in the assumption of your position is that the v a hospital are going to come back and change their positions they are bureaucracies but that is pretty much written in stone that they're not going to seek amount it's not even trying to see nor could it seek an amount that it never is never paid so there's really from the four corners the documents here we don't think there's any there's any reason to dispute as to what it's to morning my name is fred baker the counsel for plaintiff mr griffin and we respectfully request that this court affirmed the district court's order regarding the collateral source set off we think that philip morris equate the collateral sources that offer at least three different reasons first of all by virtue of entering into the stipulation why where where and they did not preserve their collateral source set off rights secondly by requesting a generalized rather than itemized verdict and third by the comments that i made in closing which they encouraged the jury to that they told the jury that it did not have to award the amount that was contained within the stipulation so i'd like to go through each of these three waiver arguments first of all the waiver by stipulation the way to the stipulation is simply for eight dollar amount of expenses that's the entirety of the agreement between the two sides the does not say this is for the specified bills it doesn't relate back to those specified bills in the substance of the stipulation there's no reservations or rights made in the expression with the agreement stipulation simply stands for the words in that stipulation and nothing more had philip morris wanted to preserve its right of collateral source set off in that stipulation there's a couple things that could have one it could have said when it was injuring the stipulation they could have had a line subject to collateral so sore set off as set forth in the in the billing records or it could have probably the best way to preserve its argument whether or not we would agree to this i don't know but it could have stipulated to the admission of the rule one thousand and six one thousand and six because of it but i have a lot of trouble with this argument you stipulated to a number you had an answer that pleaded the collateral source set off the pretrial statement or pretrial order whatever it was cool preserve the point as well and presumably as your second  presupposes that stipulation could have gone into evidence and philip morris could have asked the judge were special verdict that would have made clear whether the jury had awarded that number or not or what part of it they had awarded and as your second argument presupposes they would have been entirely within their rights to do so right they would have been within their rights to do so i don't think though have solved the problem because that's a different question they would have been within their rights but if they had and by entering into the stipulation all by itself waived any collateral source set off then the logical answer to my question is no they couldn't have asked for a special verticals they already waived that that ship has sailed so i don't get your purse organised rule well the second one is a lot better well if you've heard the s substance of my first argument and i understand your position your honor but we believe that i'm wrong about it i'm here to be educated the stipulation serves as only proof and these are in the alternative they don't have to stack that stipulation and a stipulation the law holds it is simply what it reflects on exactly how you and your colleagues haven't touched on the point the standard to review as abuse of discretion how does a judge abuse his discretion in this instance i don't get it there are two ways in which you get abused discretion happens the judge abuses discretion so the first question is what the law require the judge to do i think and deciding that this motion with regard to the bunny the law required the law would require the court to honor a preserved collateral source set off claim and here that didn't occur and so when judge lisi looked at the the motion and our response that motion she went for the lowest hanging fruit which was florida law requires that if you're going to do a sort of collateral source set off then you argument that uncertainty in the laws and under sagal thing and what we want in these in these verdicts is certainty and you can look at that party can say this is lost wages this is pain and suffering itemized verdict arthur third argument is that in the closing philip morris because counsel did indeed state that the jury did not have to award the stipulated sum but to wrap up during the course of any trial attorneys make decisions and those decisions have consequences we think they made three decisions and the consequences of those three decisions interested collation without reservation of rights requesting generalized verdict as opposed to itemize verdict in their statements and closing all of those have consequences and they are taken individually and collectively they amount to a a waiver of the collateral source set off claim and that's a situation of philip morris is own making they invited the situation and they should not now be heard to complain therefore we'd ask that you a firm the district single one of the cases that kind of cites they're all situations where you did not have a stipulated amount and we think that that's the difference we're not for you know i we're not asking for speculation but it's dealing with a general verdict so what would it say an exception to the general verdict rule it would say that the real for the general verdict rule is because obviously you don't want to speculate do you agree with that right right and that's in our position here i understand that we're different positions but you agree with that that we so our position is we're not speculating here florida law you have it we have to write an opinion if you if you prevail so what do we say this gusset the general rule that we don't speculate there's an exception for this kind of case why there's there's an exception to that because it can be determined from the record exactly what the jury awarded for each category of medical expense category of damages and so in a of florida so so writing the pin as if we were the supreme court we would say in a general verdict setting whether it was a stipulation that is the medical expense we'll assume that the verdict no matter what side includes out about i think we would say where it can it can be clearly determined from the record what that area got it yeah and squeezing it that we got a stipulated them out of medical expenses case the general verdict god make a difference well in it then if that's the case it doesn't matter that it's a general verdict your argument is yes ok i understand  determination of the amount that is actually paid for the hospital bill thank you thank you we're going to take about a ten minute recess