i please the court i'm bill well concern on behalf of the appellant in this case against the american red cross and the good works of the american red cross are very well known and what's not well known is that the american red cross is the dominant player in a vibrant economic market in the sale of human blood products in which interns in which market are billions of dollars of profits per year a unique business in that its raw material for the human blood products that it sells is donated by people like us in the courtroom and people like the appellant in this  case and in the process of conducting this gargantuan business sometimes people get hurt and the appellant back in two thousand and eight went in to give blood as she had many times in the past a few minutes later she was crippled for life permanently disabled by a mistake made by the flood bottom asked at the donation center that she had ended up in columbus that  day for her injuries she doesn't yet have a remedy because she only got part of the trial she was entitled to and this appeal is about the part of the trial that she was denied i think the best example although perhaps not the most important issue of the parts of the trial that she was denied is the fact that the the trial court issued an order in limon a which  prevented the appellant from presenting evidence of f d a consent decrees and violation letters by the f d a that had been issued against the american red cross specifically on the issues of cement that evidence did not affect the question whether and how the flat bottom missed was negligent that afternoon in two thousand and eight per vase of throughout the trial from the opening statement through the witness testimony through the closing argument was the the argument and testimony presented by the red cross about f d a regulation don't worry about our practices don't worry about donor safety and health we are regulated by the f d a the f d a takes care of this so you don't need to take care of this donor safety and health is first and foremost in our priority it was part of a trial for the a palin is because her counsel did not get to impeach the witnesses who talked about this i expect as when i cross examine a witness be able to impeach them and to show that they're not telling the truth in this case the red cross witnesses weren't telling the truth about donor safety and health they just weren't in what way they said that it's first and foremost that it's the permissible testimony for the red cross to develop why the it's just a fact of life the fact that they are i'm regulated by the supreme court of ohio i mean that it doesn't prove or disprove anything the greatest issue in this case but i think it is exemplary of the fact that there's a simple certain fundamental right to impeach a witness to show that they're not telling the truth and the plaintiff was denied that right what was the consent decree about about failure to maintain records failure to conduct medical director reviews of actions taken by subordinates loss of records medical records all concerning donor safety  health so i'm kind of records that were lost in this case i think to move on to the topics which i think are the most serious in this case on the loquitur requested instruction which was repeatedly denied by the district court it appears that the akron general medical center case is the leading ohio case on the on the topic and i think both sides have cited it in their in their briefs but i think if you get to the essence of the ray steps argument does not apply it cannot be applied if the defendant presents evidence of a non negligent possible cause for the defendant's injury that is equally probable to negligence the defense in this case the plaintiffs claim negligence say we can't we'll never know exactly what the  so we want to race steps instruction the defendants try to avoid race steps of by saying no this could have been caused by non negligent conduct this this kind of thing happens even in the absence of negligence the problem with that is that's not evidence the red cross has only restated the law if something else could have caused the plaintiffs injuries and if that something is equally probable negligence or more probable than that what gentz the plaintiff doesn't get a race eps instruction but you can't just sit on the defense side of the room and say this could happen without negligence that's not enough you've got to say what the akron general medical case is the perfect example because the the plaintiff want to race tips instruction the defendant said no and brought in an expert who said the plaintiff's medical condition could have been caused by negligence but it also could have been caused by this series of medical events and conditions that may very well as equally well have occurred in this case  the nursing expert presented by the pallant said that however the c r p s the disease expert tendered by the plaintiffs said that this could cause because by a needle stick in the absence of negligence well in other words i can i can plunge a needle  had the plaintiff's nursing expert woodruff said that in the context of blood drawing flow bottom me this injury that is to strike a trunk nerve deep in the arm with a needle and missed the vein entirely only occurs in the in the in the case of negligence on the other hand a needle stick can cause c r p yes without negligence i can take a needle today and plunge it into my arm or my leg and contract c r p s because of nerves nerve damage without any negligence at all said as a serious the fact that the procedure is being conducted under the exclusive control of the red cross and ordinarily people not walk in to donate blood and walk out crippled for life well that's all that's required one second i mean that is all that's required when you've got somebody dropping something from a window i think when you're dealing with things that require specialized knowledge the law doesn't let you say ordinarily people walk in and they don't get that injury because i the question is whether maybe it could be that the fact that ordinarily it doesn't happen but if the reality is in the medical field that of one thousand people whose blood is drawn with or without negligent fifteen of them may end up with a problem that's not proper a situation for applying race ipsa so it's not the type of case that within the ordinary experience of people now if you have i agree with you that if you have an expert who says that this does not happen in the absence of negligence then it becomes a question but i'm afraid that the state of the law in ohio is inconsistent with what you just articulated akron general medical center says two requirements under the exclusion of a troll the defendant and doesn't usually happen in the absence of negligence period doesn't ordinarily happen in the absence of a no expert testimony is required that's a different type of case i mean when you it was a medical case it's ordinarily happen i mean i guess it's a definition of ordinarily and i mean that my only other response to your to your question judge is that if it's if isn't applicable here because it happens frequently enough that it's recognized as something that can happen then the part of the trial the plaintiff didn't get in this case the appellant didn't get was the failure to warn strict liability claimant all reserve my remaining minute if i may for you agree that why that expert testimony is required on this point on which point the point whether or of what the law is doesn't apply if it's equally greater probability that this could happen without negligence but you've got to to say how ok so the experts it's a different argument i think  started going there you're saying that none of the experts described how this might have been in the absence of  and then also you had a failure to warn claim that was we know the i'm the third lawyer on this case the first lawyer did not include that claim is complaint second lawyer took over move to  it was denied pleading deadline that expired before he took on the case and then i took over the case november two thousand and eleven and two months later moved i tried the case  i took it over and moved to amend to include the failure to warn claim also d motion denied and then post trial made the rule fifteen b motion concerning the failure to warn came out and then one other question in response in the dialogue regarding the race instruction did you make the point that defendant that no expert described how this could have been in the absence of negligence yes that the akron general medical center case was striking to me from my first reading of it during my representation of the appellate in this case because it sets out that the old two requirements that we all learned in law school from the barrel false on head case but it was also a medical case in which the defendant said look this can also happen without negligence of this this this and this could have happened which would have resulted in the same damage injury or symptoms and that so it's struck me from the very first time i read the case thank you  morning may please the court this is a simple negligence case arising from a routine blood donation and nothing more a trial the red cross defended a palin's negligence claim and only that claim the red cross presented evidence and argument that it met the standard of care and was not negligent it also presented evidence and argument that appellant did not have c r p s and was not injured appellant received a fair nine day jury trial on her negligence claim she presented a liability expert and a damages expert and the jury heard from eighteen witnesses appellant did not object to the district court's jury instructions except for the race absolute quitter instruction she did not object to any of the district courts in iraq or tories the jury's verdict and the district court's judgment is supported by competent credible evidence going to all the essential elements of a pilot's negligence claim the question that the jury answered was a combination of liability and causation did the plaintiffs prove by a preponderance of part of the jury determined in answering the in iraq a tory that appellant had not proved her negligence claim by a preponderance of the evidence so there was no specific finding if i understand your question judge white as to whether the district court did not abuse its broad discretion or as a matter of law with respect to any of appellants assignments of error here i'm going to address the argument raised by appellant and first i'm going to address the limited circumstances and where two requirements are met one the instrument of the injury was under the exclusive management and control of the defendant and to the injury would not have happened but for negligence appellants cause ation expert dr nobler testified in his report at page id number seventy two sixty five that c r p s can occur a properly performed needle with that testimony is he represented woodruff testified that a nerve should not have been struck during a flood bottom e we disputed and there was evidence in the record that there was no nerve injury appellant is claiming and kind of what i mr wilkinson i mean the only arguable bas could have been given was based on that testimony exactly that the district court judge reviewed all of the testimony in the record well i understand that and i'm not right in the observation primarily based upon dr noble or testimony that c r p s can occur in the absence of negligence and testified that something as simple as bumping a table could cause c r p s parties but it doesn't happen in the absence of negligence to get the instruction i'm saying that if they're that an inference of negligence does not apply if experts on both sides claimed that this is a condition that definitely can occur without negligence ok there's a difference between saying look people can break an arm with right on the other hand if you break your arm in a specific pontifex you may be able to say it doesn't if you if you if your arm is broken on the operating table then people might be able to say that doesn't happen in the absence of negligence so it's the same thing maybe you can get this condition in the absence of negligence but you could someone might also say that you don't get this condition from a blood draw in the a list there was negligence and so what i'm saying to you seem to be saying that in order to get this type of instruction the experts have have to agree but that that will never happen you're going to have a plaintiff that's bird who says this doesn't happen in the absence of negligence and the defense expert that disagrees and the instruction to the jury would be that if you find that this does not have been in the absence of negligence blah blah blah blah blah so i and sort of losing you because i don't i don't hear the response to the fact that the that would you have said you don't get this injury from blood draw and less before but in this was negligence mr wood dressed had no experience in blood banking there was testimony from the red cross phlebotomist and the medical director of the red cross that says that a nerve strike is i think maybe the point here would be not that the district court could not theoretically give an instruction limited to the testimony of mr wo limited to the jury making findings based on that however one that's not testimony that was that's not the instruction that was requested and clearly there was a big to speed about whether rights it was affable here and second it might be there'd be an argument that the quality of the evidence that was relied upon to clearly the court felt that on balance with all of the evidence that appellant had not satisfied the second requirement under ohio law to get a race of instruction  and that was what the court found repeatedly and that is why and the record supports that why the instruction wasn't given here there was al instruction was also not given because the district court judge determined that in this case there was a dispute as to whether or not there was even an injury and he believed that that was a really important factor here the defense experts disputed the fact opponents argument that there was even a nerve strike or that  had c r p s so based on those two issues the fact that there was a dispute as to whether or not there was an injury and the second element of the doctrine was not satisfied the court determined that the race absolutely loquitur instruction was not applicable because the doctrine did not apply i'd like to move on with my remaining time to address the issue of the consent decree the district court did not abuse its discretion in granting the red cross motion in limine e to exclude the consent decree and the two things are important to remember with regard to this assignment o and the red cross commitment to donor safety appellant was permitted and did extensively question the red cross medical director about the consent decree yells the red cross alleged recordkeeping problems and its commitment to donor safety second it's important to remember here that appellant never sought to introduce the actual consent decree or the a v o s at trial she never proffered these so the court did not exclude them and she has waived any right to appeal the polland oral motion during trial and said that he would permit testimony on that issue he believed that i opened the door on the f d a issues and permitted appellant to question the medical director about that specific issue that was covered in the motion and lemony so if the district court's original ruling on the motion in limine e was an error it was harmless error because all of the testimony came in anyway and i can direct the court to the transcript at pages eight zero four forty eight zero five one we believe that the district court's motion in limine the ruling was correct however all of the evidence that opponents counsel wanted in came in anyway the jury heard a lot about the consent decree heard a lot about that adverse determination rulings heard a lot about as well of red cross documents so both of those issues would be at best harmless error mr wilkinson started at the very end to talk about  this whole issue of strict liability and failure to warn and i want to make sure that the panel understands what exactly happened here appellant filed a pretrial motion to amend the complaint that was untimely and the court said that pursuant to rule sixteen before it was untimely and the motion could not be amended and one of those claims was on a strict liability for an inherently dangerous activity appellant never moved beyond that until after trial for a motion on a strict liability failure to warn claim appellant claimed that this was quote one of the tried but judy cade it claims and the district court said there was absolutely no evidence at trial that a strict liability claim had been litigated and beyond that appellant submitted a jury in iraq dettori or a jury instruction on strict liability under both it like turn morning i didn't mean to throw you off in my remaining minute just a couple of things with the respect to this  strict liability claim being tried by the consent of the parties in the opening statement the judge announced to the red cross that in this negligence case we are not going to be presenting to the jury the question of assumption of risk throughout the trial both the appellant and the apple e presented witness after witness after witness to talk about the what became an infamous exhibit at the trial the what you should know about giving blood brochure which is the warning which talks about a maybe a headache or maybe light headedness but it doesn't say anything about walking out the door with permanent disability and the only claim that could have been relevant to was a failure to warn claim andre said woodruff did in fact say this doesn't happen without negligence nobler of course said and judge white you stole my thunder with your broken arm analogy but given that what difference did it because the jury was able to decide the negligence question and if i'm making myself clear it got past m ok what was the practical effect of not getting the race of instruction given that the question of negligence went to the jury that the palin was placed in the impossible position that race was invented to avoid and that is an injury is inflicted upon her in this case it's a minute subcutaneous operation of some kind and she can never and will never know what the defendant did to cause that problem it's even harder or more impossible to to learn then why the barrel fell out of the up stairs window that's probably ascertainable but it's it's absolutely impossible position of never being able to prove exactly what did the phlebotomist do wrong that caused her to hit a trunk nerve rather than a blood vein we appreciate your argument about giv