all of the attorneys that are going to present oral arguments in this case step up to the podium and identify yourself for the record claim and i'm going to start there because i really think it touches on all of the all of the substantive issues of the case and kind of brings us full circle there were some components to count three and the ones we so we never know what the jury would have cited as evidence and whether edwards conduct costs or contributed to the outcome here you're saying there is really no evidence presented to that jury regarding this issue or he just saying it wasn't presented against him it wasn't presented renowned somebody who has never aberrated even on a cat she was about she was not a surgeon but she was a world renowned heart feel my allergist who knew by the way was a cold walker and i mean you were suing the legend here summary judgment there's going to get back to the forms yes so the fact that your client agreed to be part of the study is that in any manner shape or form have an impact on the forms that were introduced use of that way and if i can get back to one of the meta issues here is um is up you know edwards claims that he had to write just a touch and briefly in order to bring a device to mark what the what they claimed they these are regulations these are the we have the papers we have the standards we have the hardcore regulations and we also hear dr bar closing biomedical engineer covered that we also deposed at edwards expert michael some of the real significant evidence of edwards and his conduct in edwards role in this and the hospitals misconduct in the hospital rolling that up we were we were we couldn't bring that because those were part of the ca you know what these and they were dismissed so the jury essentially heard a small part of the case and the jury never heard what what he big factor argument could the jury would have heard that we have a major factor that did not comply with the f d a requirements in every poll the f d a if you did not know this device existed so if a manufacturer fails to take advantage of males to follow the basic steps of the down there briefly or one of the defendants was northwestern i am not going to be specific as to their actual height ok now this woman works for that and city at some point  bias you're saying that under no circumstances could any reasonable person ever conclude there might be a little biased going on when and she said she  great that she got suspended but i mean are you saying that this could never be interpreted by the back finder as a possible bias motive or interest the witness may have i mean if that is what i'm saying all right that is that is what i'm saying  employment or previous employment with one of the defense in the case i'm saying that none of her employment disputes with northwestern should have been allowed into evidence him saying her involvement with media should not have been allowed  she was consistent from day one she testify consistently the st day she made one point pace who you say that says when you i say i mean for generations before you and me were even conclude there might be this year against northwestern but the rules of evidence require courts they require words to recognize where certain types of evidence are sole regis we prejudicial hey so that's how every argument your argument is is really different now that were improperly weighted and because of these horrible sort of things that went on between the witness and they pushed the envelope too far and any impact of the whole case and that's that's clear in in the trial judge's opinion the impact this evidence here was was overwhelmingly to living any opportunity my claim here for fair trial why didn't something happen there these are all trials in and of themselves and they left the impression with the jury that well certainly something would have been done how come we didn't hear that that something was done or like couldn't get in that i mean that left me with no choice but to feel that the issues in my client's case were were not had nothing to do with it and he just set up a section have any hackery evidence from the f d a to really establish from this governmental agency that all these things that should have occurred ring is it is a disease specific risk you can't use if i think a process you certainly can't use the internal but they call the g t s where their ports get together the people get together in a row and decide we're not going to tell the hospital policies and your edward said policy so so you know certainly there's case law that extends these duties to chronic pain you factor into the hospital under circumstances a and and  including seven times in the two days of hearings before judge homilies that this is not a product liability case and there is no product defect as a result but there are there were two judge not so well what about the issue that i'm sorry what about the issue that edwards has registered with the f d a yet the f d a did in the open rob well that is what we maintain was the preemption issue and that was his com three if you look at his complaint you will see the count three incorporates count the allegations of the st ten leading paragraphs in count one every one of them depends upon suppose a violation of the medical device amendment of nine hundred and seventy six and his claim for relief is based not a policy on reasonable safety of the device but rather how reached the marketplace so his claim is founded about how the device got or whether it was proper and she used a justification to file which is based upon an regulations are implicated here that is he claims that edwards misread and misinterpreted the decision tree in the garden stocking that is preeminently a matter for the sole action that was taken by the f d a with regard to the release of the device not now the device is substantially a level and to prior to vice so it doesn't require an extensive f d a proceeding such as with a free market approval it is like many other rings with modifications that's the reason the substantial equivalency test with math that's the reason the f d a says it was the stance the equivalent and frankly that's the reason the company use an unreasonable risk of harm that had been created that what resulted in personal injury of course we have a duty if you have noticed that that's right but in this particular case everybody agrees that this is a not defective device and if we repeat it over and over again that's correct that's correct so so it is a very unique set of circumstances probably not likely to be repeated in which someone is same even  device that i am suing about is non defective and even though the device i'm suing about resulted in the complete eradication of the condition for which my client was going to be treated  namely mitral valve regurgitation which is fun treated progressive and ultimately fatal it's going to wreck it that's what the brain was designed to provide treatment for and that's why the ring was used and the ring was used by products liability case simply do not exist here but what we do know is that everything about this case is based not on prediction of tort theories as against edwards but come slowly all  the f t c a and that's what bachmann versus united states the bachmann case talks about by the supreme court because we no longer have a traditional torch here but when you read clients when you read violation of federal regulation now quite apart from all of that we also have the issue of the fact that this was all resolved by the jury this was a properly instruct which have to be made and the jury was instructed with regard to that and the jury found in favor of the defendants with regard to that this was litigated extensively dr barch low testified with regard to this representatives edwards now no longer in the cases that defended him and testified with regard to the fact that this was a not an investigatory device that this was a substantially equivalent device and this was not a matter that was that  in which the company had at newark the applicable the stock humans and the regulation in the company standpoint it had put the device into the stream of commerce in accordance with the f d a the council council's case and of whether or not there's been compliance with the regulations is hoping for relief which was created with regard to that and that is the type of kind of case that is that is preemptive with regard to bottling the court further instructed the jury basis of a stop of life order we maintain we're entitled to this case to take advantage of pat because of course that was an issue which we should be able to say you've provided and you've lost it that's the nature of says that preemption doesn't apply here and the reason for it is the f d a didn't know that the device i had been put in the stream of commerce and therefore preemption doesn't apply you didn't comply with yet you regulations but of really had even a chance to review your device very similar councils argument here yesterday all work dismissed yeah legations against the manufacturer of the orthopedic device and the representative who we've been responsible for getting through the f d a appear process it case then goes to the united states supreme court and the court says no that's not a traditional tort just like this isn't a traditional tort if you're going to pursue that you have to pursue it at the f d a because we want uniformity of the force and the problem the fundamental problem with the type of issue we have here is with the non defective devices is to have illinois or indiana or wisconsin have different jury determinations about how our device that's regulated by the f d a should ultimately get to the consumer when there's nothing the matter with the device it is that lack of uniformity that would be that that would that would destroy what the f is all about and so that's the reason we have the preemption now with regard to the two cases the two counts in which their work dismissals before the summary judge several years ago the st one is the agency  be collateral stop with regard to the other so we maintain we're entitled to rely upon that determination or dr mccarthy and if we take advantage of sellers yes and i'm here i'm particular case there was more than adequate consent and again the jury in this case rejected the inform seven thank you very much for your time and attention nobody in this case testified that it was more probably true not true that there was something peculiar about this rain as opposed to other rings that were on the market that caused any injury to th case testified that the sutures are placed without regard to what ring is you know placed the same way and they also said that what ring was used would not impact the placement of the sutures therefore the suture could not the way the sutures were placed could not be associated with this ring and dr roger monic knowledge that that was a potential cause of the narrowing of the circle flex at trial at the th hour she came up with another theory that there was something odd about the shape of this ring as compared to other rings on the market that she felt caused pressure on the circum flex artery on which comes in around the valve if you picture the ballfield or circle it's not a circle a picture is a circle and the nd flex artery comes close to the valve at six o'clock on the border of the valve and follows up around k the evidence in this case showed the only evidence in this case showed that the near the narrowing was not at six o'clock it was at eight o'clock and more significant is the fact that  mind on never testified that it is more probably true than not true that the shape of the ring was what caused the narrowing of the circle flex her testimony was it was a suture or the shape of the right not that one is more probably true than the other there is no leaning towards one versus the other and in the law with respect to proximate cause i submit it's clear that one possibilities are equally balanced plaintiff has failed to meet their burden with respect causation the other issue that i would like to raise which permeates a lot of the issues in plaintiff's appeal is the idea that physician is responsible for that there are two appellate cases that set up an exception and those exceptions are very narrow and those exceptions are stated in terms of being limited to the facts of those cases and both of those cases involve situations where a hospital had an acknowledged f d a study that was proceeding at the hospital that is not the case and in this affirmative undertaking according to that evidence that plaintiffs present it to ensure that a certain consent form your honour's asked whether the jury determined that this a that this was not an investigational device counsel just read for you that the verdict for the jury was asked whether this was an investigation device which would mean does it require special informed consent they found in favor of the defendants on there the defendants being northwestern memorial hospital and dr patrick mccarthy and they were asked whether this was a human research study and the verdict was in favor of the defendants from which we presume they concluded no it was not again something account that had that was levied against both dr patrick mccarthy and northwestern memorial hospital if point if wanted to try to bring an institutional reform consent claim against northwestern memorial hospital after this whole trial has helped this three week trial the evidence would center on the precise same issues was this an investigation of this was this a human research study the hospital's policies and procedures were in evidence at trial actually northwestern university's policies and procedures were also in evidence at trial and they were not a part of the case but we have for purposes of a stop by verdict identity of issues we have identity of particles in northwestern memorial hospital space and for there reason plaintiffs cannot be evidence of hospital misconduct after years of discovery in this case i'm not sure what he's alluding to there was ample opportunity for plaintiff counsel to develop the evidence that he needed to develop to bring his institutional informed consent claims within the scope of the case law that permits him to bring those claims and he did not he did not present evidence at trial regarding those issues did not attempt to amend his pleadings to conform to evidence before trial to resurrect that issue and that's simply because the evidence to support those claims wasn't there irrespective of what he alleged in his original thirty minute complaint the basis for an informed consent claim against the hospital or a battery claim against the hospital the evidence that was a deuce during discovery and the evidence that was presented at trial demonstrated that there is no basis for such a claim against northwestern memorial hospital switching gears i'd like to address this bias issue which i find to be confounding we praise we presented evidence for that doc that dr rush from on again there are sensible expert was dismissed from northwestern memorial hospital and m f f because it showed bias contrary to what plaintiff's counsel says the case law recognizes that bias relates to hostility prejudice all will i submit to your honor that the reason the bias is important big is not necessarily because it means somebody is lying although it could mean they're lying because they have an axe to grind against somebody but i believe it's also human experience that bias causes us to have a lack of objectivity the supreme court in this state has has a caution th counsel must be given the widest possible latitude during cross examination of experts to demonstrate any interest bias or motive of the expert witness to testify counsel has suggested that beef is that we overdo it i'm not sure in light of the decision and for our versus jones which i just quoted that we could overdo it but i will suggest to the court this when we presented she was this mess not why not that we had a good reason to do it and believe me we had evidence assembled but the trial judge concluded he was not going to allow this to become a mini trial and why should i but he agreed that it was relevant to bias for us to say she was dismissed because there's your honour's of observed common sense tells us that when somebody fires you there can be hard but again we were not allowed to say why and i submit your honors that is a double edged sword for us because dr rush from my mom's position is yes i was fired because i told people what was going on that there was human experimentation and to shut me up they fire and it was a calculated risk on our part because a jury could just as an easily concluded that she was fired for the reasons that she said as for the reasons which we weren't allowed to  patent filed that claimed forty unique differences from other devices it was larger than other devices three dimensional and it was specific to any ology all of that is new different from any other device that ever been on the mark on the me factor to label devices and give them information that these are investigational devices or light and if they had done that in this instance it would have been a completely the nurse i would have  all of the opinions offered at the summary judgment stage and a trial by our witnesses were based on a reasonable degree of medical certainty the qualifications and competency of dr russian mining to express our universe except maybe dr mccarthy and she was uniquely qualified to comment on it and how it fit and work hard felt that was her expertise and she didn't actually did studies or part of the initial paper and her opinions were northwestern there was the institutional informed consent complaint that dismissed early on in the case so we didn't develop it wasn't my fault for not putting evidence together the plaintiffs fault for not putting evidence together and not presenting it we could not this evidence for what purpose and yet we stood to to to to make her look like she was being emotional i think the time for that is over i think courts need to step up and not tolerate