in the request for a new trial plaintiff devoted quite a bit of his brief to arguing the standard of care issues but there truly is arguing apples to oranges because our only channelers to the sufficiency the evidence was not the issue of cross route but where was the point of no return dr smith by his own testimony had no idea where the plaintiff was with this horrible and that was his word disease on the morning of july twenty first  smitty the defense expert thought that it was over nothing could be done when he woke up that saturday morning and plaintiff conceded that there was no deviation from the state of cure before standard dr smith he had to admit and this usable vision with treatment by around ten or ten thirty those are his words he was very candid frankly and this and they have plus the plaintiffs own testimony about experiencing pain all week was which went and basically gutted the foundation for this brain after us the money because dr smith started with the idea according to dr smith to diagnose the infection probably a retinal seared in to treat it so here we are saturday morning he's in the emergency room at seven ten am dr crystals in chicago and nobody said that she couldn't go to chicago and and when she was supposed to do it because dr astin never said under these unique circumstances with this perfect storm with this virulent fast moving infection and saturday morning small hospital no of a mile just and stay off dr smith he had to fill the gaps to provide a factual basis for his opinions so that the jurors could hear something from which to draw this on the post trial motion i think are very revealing he seemed to have a misconception that all he had to do was to look and see the doctor smith utter the word study under the conclusion about they either pertain to causation or they system the plaintiff and masking the lack of causation and again as with the g o p argument i will start with the comments of the trial judge and it's clear from the transcript is in volume ten of the record of the transcript of proceedings the judge gave a lot of thought he looked at the at the transfer very carefully and he said at the hearing i made a mistake i should not independent doesn't owe anybody anything observed and he also obviously had knowledge of the case because he was the treating physician the judge said i shouldn't have stopped defense counsel from questioning this crucial witness he said i was wrong i was wrong on direct examination i was wrong and redirect examination so again i i apologize if i'm repeating myself but i can't i can't overemphasize how important dr fisher is testimony was the defense because already the plaintiff is on an ice with the causation testimony so we have dr smitty who is a very  d retinal surgeon and he comes then and heat he does i well he gives the causation to us and with that articulate the defense that there was nothing that could be done on saturday about this infection of course the what dr kishor would have that and it was very clear from his deposition that he agreed with dr smith that the patients who are unfortunate enough to have this particular bacteria do not do well and it wasn't just that he said vaguely they don't do it he said they lose their act he said he thought this patient this patient not just the general patient would have lost about this at trial  know he does on the stand he equivocates and so the question is the x do you have an opinion as to whether earlier treatment about ten thirty on saturday morning as to this particular patient would have made a difference in the course  instead of giving the same testimony that he gave his deposition then he is sort of oh in general earlier treatment is better we see that well that's not me answer the question defense counsel comes again what about stress variance given this patients this patients character resistance and then again be active the general a lot of times when you have aggressive if you're like the does not very good defense counsel try to make his question more specific again he goes to ask it objection yes me answer it's a steam ok so when the plaintiff goes through with his questioning he asked mr rather dr kishor among other questions very very helpful to the defense but i don't think in a sense face a new trial that's exactly what he said i don't i don't understand how the first one's up with the second who kluge him because isn't that the definition of conjunction with everything else that was going on shows the defendants were entitled to a new trial there's other significant issues i'm mindful of my time i want to dress the mother fully addressed her brief i believe that the issues the repetitive issues instruction over emphasize negligence and told the jury don't worry about causation all you have to do is be convinced that this doctor did something wrong the way she managed the case we don't care about causation and that's another smitty first of all i appreciate the compliment about my cross examination of dr mitty but i believe more and more importantly if cross examination went beyond the twenty five thirty thirty five thousand dollars that he charged for his services my cross examination and your record with reflect this talk to dr snooty about is offering a publication that was right on point with the issue involving in dopamine us and it was doctor smitty's position that there were certain red clades that occur as a result of the media p p p do you remember and that was a question do you remember making that as a part of your written article answer i honestly don't remember that but it doesn't sound like there is anything reprehensible or disagreeable about that statement question well that well what i would like to know is how do you answer the fact that as opposed to the either article that mr writer did in probability that doing the kind of treatment necessary would likely give him a potential at least of evidence and good visual ockham isn't that true and then he says in his answer is spite of what the article indicated and was read to him i don't think that properly represents with what you just read and i said well that's up to the jury to decide not while said important it's important because he starts up in his or testimony originally when called on by the defendant to suggested it for fifteen in the morning and that was it there was no basis for treatment that would do anything to do when to take care of the fragments that were left in his eye she had left fragments in the anterior portion of the eye which was not a good thing if  was a gateway for bacteria she knew what she said and she knew it before static because it was done before saturday this was a gateway to bacteria up why is that to an optometrist not that's the facts that you must listen to because the morning of that saturday at four fifteen what happened was this man walked up in severe p severe pain he didn't know what to do and finally decided he would claw say markets hospital bit to see if the e r was was was available he went to the e r at six o'clock in the morning now one of the comments made by counsel is is is rather ironic she says this is a small hospital that doesn't have the facilities well if you look in the emergency room of six thirty or seven o'clock he's tree os there is a doctor there doctor in seattle he immediately realizes what the problem is from the history that he aids from them from  had a good way to bacteria complaining of pain at all of those the soup those of something going on that wasn't exactly right with with her patient  keep in mind that the first surgical procedure was fine she didn't have that problem first or was she it's now the second procedure that she knows asked and all there's something going on what does she do this she would come back to iowa and that she was going to set up an appointment for this man to meet with her not on the second phone call the plan this is all within seven thirty they provide that ocular pressure medication keep him there to see what the impact was it went from forty eight which is significantly higher than you should have the forty one home and waits nothing happens the entire day here's a man who has some inflammation obviously that is extremely painful and even dr smitty indicated that he green with my own statement to him that if there was bacteria at four o'clock in the morning with mr right until eight o'clock that night he made a phone call to his home and at that phone call indicated there how are you doing now there's this is there's some in he had he had the power to do this if he felt that strongly about it apparently he didn't feel that strongly about it felt immediately it was something that should have gone the other way but not that strong enough to give a new trial let's get back to your question the questions were placed by mr potoroos in direct examination ok if i didn't ask a question consider this what if i said i waive cross examination where was mr gore's where was he going to go the answers had come to mr pistorius girly direct examination and he didn't do anything about it he didn't take the  honest man and put the limitations on the basis that he didn't do with he should have done he made a mistake by not impeaching that witness and the rest of them i wish i could talk almost all of the argument here just like in the briefs just like at trial the standard here i'm trying to talk about causation all right well on then but could you trespass requires argument that there was no a objection that was not it should not have been well taken and on he was trying to set it up and that's exactly what the judge recognized when he regretted the transcript and commented on it at the post trial motion and i take issue with the with the notion that eat the judge that is didn't really think it was too big of a deal because he makes it clear in the transcript that he thought it was a big deal house i was trying to get here and the idea that the issue was not and i can't say what would have  we should have you have the ability to revisit it i'm redirect and we're staffed and that's why the trial judge i believe said he was wrong and direct he was wrong and majora was not peons i think it's very interesting that we didn't hear one word i don't believe i heard one word about dr smith or addressing any of my discussion of dr smith's testimony and i and i i believe i've been very measured in careful and not over word about special iraq atory didn't hear one word about issues and i think that's because those rulings were defensible as this business about the the rents in the fragments all of those things were established b expert as well of the defense to not be negligence but it was a working in the context of what dr crystal was doing that because she had seen a fragment in the interior portion of the eye that's why infection so i couldn't help myself i had to comment on that one stand here as far as dr cumple was concerned it's that and as far as the treatment that was given during the day on saturday it was not just and that's really what this record shows so i will conclude unless the court has any other questions by saying i i do believe are entitled to a judge and a verdict but at the very least my client is entitled to a fair trial and i think mistakes were made she did not get a fair trial she held to a perfect one but she's entitled to have her testimony her or her case brought forth and causation she was entitled not  should have had issues instructions that truly define the issues in a in a not argumentive way and one that didn't last the jury with negligence negligence negligence and gave the jury a fair picture of what they would consider thank