is that one if all of these were admitted and you believe they are not they don't accomplish anything and so far with what the plaintiff can prove jenna got shot as an individual even witnesses in post if witnesses disclosed the tumult iacke people are disclosed and what i have presented in support of my response to the motion for  that on the back page of that report of ins it indicates again a power rival found patient sitting on the sidewalk next to construction fence where she put out in the reason for consultations later at c three forty five the information taken from her and i'm assuming her but it doesn't say she said she tripped over the route at a construction site which is where she was found next to it then on exhibit three page six this is c three forty seven this forty three year old female who fell today when she got her foot caught  photograph for not that's exactly what i'm saying judge exactly what i'm saying and what i said previously is this if you take all of the propositions they said without anything i responded to they don't accomplish anything they say that she that can come forward and here before and after testimony and the individual to that came in the e r had contemporaneous comments with her that she was coming through and felt the context in which is came up with the trial court has she couldn't present anything she couldn't testify she couldn't get what had happened  there present sticking out onto the walking portion of the sidewalk welby him well on to the walking portion of the sidewalk which circumstantially certain with grace a question in so far as this may or may not get off the wall we thought and do believe we had enough to go forward so that if they had denied the motion for s hearing on the motion for summary judgment counsel has come back with other things that this that's correct but there was no junction so the time comes at the hearing of the motion trial but i have to consider what you presented in the absence of course say when this has been sitting there in june and november and there have been no motions or nothing to strike no questions to raise if they have a right well i suppose it's because it's a question of procedure in the absence of a motion to strike the trial court is required to consider what is arguably otherwise inadequate evidence evidence without foundation however back it up  council against me he's going to say that these people who are giving you an affidavit have never been in the post we don't believe what they have there are supreme before the trial court  gave wasn't worth a damn he said as he did at the end of this you could have one of two ways you didn't get it kind of this way so there you go your lives if you file a motion after that asking to submit additional actual materials well i had some relationship with the presiding judge you were so and you know you've been working so you didn't do well you have to admit when you are sitting in the trial bar through here she herself could become so for mental state which by the way mental state wouldn't come up until the time of trial you know that she there's an affidavit from her that she doesn't know how it happened right y back and get certification for those types of things if they were great sat around you don't have any certifications on this you understand that test and why didn't you give them a taste that's beside the point mr brown we're not going to give anything on h miles every day to and from not being on this not falling on this time of day whatever i don't know all i'm saying and all i'm asking under th if the judge had said i'm going to take this under or if the judge said i'm not going to rule that there are going to give you thirty days if you've got some seven day if you've got something that you think you can agree us with what you back to defense counsel if i'm over there if these are factual and i think they can really kind of what's going on it will distract you and you probably do granted those types of things that i would be bringing in good me would be doing them on the basis of what i just insane i realize and you have a record not necessarily the three of you have a record door come down and if there are other cases though involving people that have slipped and fallen on sidewalks where the court has said we can't prove there's no proof here of why here in december of two thousand and nine we serve the request with facts who establish that the plaintiff has no memory of what happened us with the discovery responses as we point out in our brief before this court the rule of law right is that discovery responses are really information which is known to the attorney as well as to the what a council representation yet our reply we pointed out in the instant case no emissions deposition counter offer davis or swan materials of any sort of in file in opposition to the motion pipe that is shown in the photographs to the fall as the cause of the fall so we have to go back behind that and locate witnesses there are many  we have to go back then and say eight tan date identify what misses that would have had a conversation with her assume that they have the witnesses then identified who were responsible for the histories in the medical records at that point we would probably as you play the chess game of litigation have asked for the opportunity to go polders those witnesses because we don't know where that information came from and we have to be able to establish that that is competent to resist the motion for summary judgment so if the game were played out opportunity then to challenge the confidence of the witnesses because they would have to lay the foundation for that these were conversations with her the setting of the conversation with her you were furnished medical you have medical records we have the portions of the benefit of writers that he provided and those show the names of responders i don't believe that they knew i would portion of the medical records where she says i think that she fell over well i don't know that she says that but the history just given that she fell over a pipe we don't know if her brothers they're giving they just three or whether she is giving the medical records would be admissible based upon a year business a record foundation which was not offered to be here to support the records and we point that out in our preferred indeed there is in its records if you're going to use them in he didn't jump through all the hoops you need to jump through to get this evidence or i don't believe it so because it is in our prefer we pointed out the old way when we say that it is on fortunate here that we find ourselves in this procedural saturday we also point out and we sept fourth the gate case is under arrest similar facts or summary judgment have been allowed and have been a far because of speculation as to what actually caused the fall and i think it just as you pointed out that the she is a lady there walking w requires speculation so substantively we based our motion upon the fact that they cannot prove the causal link between the condition assuming that law how have you done that with regard to the celtics matter which is your bird in this case it's just the score explained to demonstrate that it's not just that th unfair to take us to task for propounding in the proper discovery and pointing out has it been admitted here and i think it was admitted in oral argument that there are any wit what was the discovery were you received the response saying there aren't any weapons there were no there was no response period we have identified any and all witnesses to which we got no response well but as opposed to requests to admits that's not a self effectuating situation from which the absence of a response means for instance a yes when you don't get a response to discovery just don't have response discover you can ask to enforce it you could response but i also asked the request to wait a minute and then the response to the request was that they said she can't answer it based upon the dead man's back now i guess i guess if we really know from looking at these that i think i clearly entitle the summary judgment because i have shown that she cannot a stablish because of her fall and i think that say where we are a unless unless there is a witness out there somewhere that is going to refute that and i think i have made my prime aphasia taste as far as the motion for summary judgment has been served by showing that she has no recollection and cannot say requests for production of documents saying if you did not at the request with him then provide us with the facts upon which that denial a is place so we have that discovery in there as well just to be clear regarding the else can show how she felt we've got a little old lady from across the street may do things with other witnesses with other pictures with other things i'm sorry you're going to say well you're saying may you want to tell me the evidence is there you're saying you might be able to well i'm saying this is the evidence there which you've al question about verification i believe is what you're saying we don't have someone who says yes this is what happened i swear somebody else says same but when you take the physical facts of the short period look at the he had no obligation to do this but he could have come in at that point and said i'm striking this motion to strike it's not verified it's not that's not that the judge said you're right second i'm glad you know my ig but you people say i should have done i acknowledge that when i'm saying is if i have done that and i'm not saying counsel had to do what i would have done i would have committed at that point still and before i was going to file a motion for summary judgment and said respond is it true that you said nothing when in response to the question of who are your witnesses well in that compactor granted i can't do it i can't myself do it i can't see on the basis of my knowledge and her which is zero so if i'm to try judges it was understand your client has this problem but this case goes to trial are you going to be able to provide this court or a jury with any witnesses who saw for summary judgment how are you going to be able to provide this trial with anyone who would this sex i'm going to be able to play with witnesses and interim he's going to be arguing as you would what caused the fall well they didn't jump the jerk here we are this is what we have to have wait sustained burden is there probable cause to believe that