qualified to give opinions regarding diagnosis and causation of one's issue is pretty simple but the pasha case is a bit unique in that normally if there's a chiropractor a challenge to a chiropractors qualifications to testify about some medical issues it's the defendant's making that challenges the plaintiffs who offer that testimony case is a bit different in that the plaintiffs in this case offer the treating physician opinions regarding the cause of the the wounds that they were burns and the prognosis of the diagnosis let me ask you use hold things he doesn't want to me there was never a downward here correct there was a double motion qualifications questioning by you i hereby offer him as an expert object and get some ruling on it is that correct is never he was never qualified meaning the district court never hailed that this is an expert in some field well it's if you if you look at it as it cited in the brief if you look at the jury instruction that the trial judge gave to the jury whenever there was a objection to his qualifications the judge said he can from that that in your view he was never accepted recognized as an expert i don't think there was ever expressed finding that he is an expert but i think allowing him to testify over objections to his qualifications is tantamount to saying he's qualified to give these opinions when you may read the trial from the us you made the first objection to his testimony after you testified for a while about how the machine worked or whatever else he justified to  qualifications she's read that would have been the point at which another run a daubert hearing outside the presence of the jury room or whatever else was situation whatever else it could be known has been pressed but you just said one word qualifications was not a sufficient objection you think to raise that this is an expert testifying about matters with that are not within his expertise or clearly there's a reference back to the daughter motion that we to limit or strike his opinions and i do think that that is a an objection to the qualifications of the witness to give the opinion of the question is just asked is sufficient objection under seventy seven to two talks about the witness has  qualified and that's that's the objection if it wasn't articulated maybe as well as it could have been but i don't think is an issue is preserving the objection that that that's there i mean i have no doubt the judge me what you meant but you did not explain what you opportunity to do that when i had a judge and the court overall a very quickly sort of question the witness and self it's tough to to do a dog bear challenge when the court is the one actually asking the expert type questions to the witness fact witness so there were some questions as a fact witness i guess he could answer about what went on him and how this functioned since he had he was the one given the treatment are supervising the  here and there's some testimony about that and what he saw that day i absolutely think you can testify to because that's his back with his personal knowledge it's saying what it was is the problem whatever he testifies that i saw those  and they're not burns they're diabetic ulcers now he's crossed well over the line a factor in this in the expert witness and how much weight do we give to hear experience of treating patients in his experience of treating people in similar situations some way beyond just not being a doctor and not being a physician and not having a doctor degree or education but he had this extensive experience he does he has experience only clear of treating neuropathy which is very different than treating diabetic diabetes doesn't treat diabetes and if you try to treat diabetes in the practice of medicine without a license so i don't think that w deference to the time because to do what he's doing to to diagnose and treat loons requires a medical degree the texas occupation code defines very distinctly what a chiropractor can and cannot do which is interesting as i think you know a lot of challenges to expert witness testimony in the medical field the line of where there where they are their testimony is blurred you know what can an orthopedic surgeon testify to regarding nerve biomechanical condition of the spine and musculoskeletal system and i think the key words there are biomechanical condition and the spine and musculoskeletal system so that's what you can do he can move joints  section two says he is able to perform a nonsurgical procedures including adjustments and manipulation to improve biomechanics of the muscular muscular skeletal system he cannot treat foot ones he cannot conclude that no common practice ever going to any circumstances can offer an opinion like this or do we just need to conclude that dr during this case given what it is he  us case out of the seventh circuit is to ninety one f thirty nine ninety three a similar situation happened where the trial judge instructed the jury that a chiropractor was testifying and it wasn't least in his field it was regarding a back injury but instructed the jury that the facts as a chiropractor goes to the weight of the evidence and not whether or not the evidence should come in and the seventh circuit said in one sentence that ruling is wrong it was wrong in this case it was wrong  the seventh circuit allowing dr direct to testify about these complex medical issues and it's more than just the i guess i'm getting back to where i think jack's out with gas going this may not have been the upshot of his question but i guess your point is he was offered up at some point although i'm not so sure i ever saw it in the in the transcript because typically in my limited experience as a trial judge typically you call you an expert witness and  go through first his qualifications to testify in the field of expertise and then at some point you actually offer up that this was a show on a week to lose witnesses an expert in the field of in this case characterized so he's limited in terms of the opinions he can give you is limited to opinions that have to do with that feel that area of expertise and so is that what happened with the  so these these expert qualification questions were definitely asked there wasn't that kind of tendering as an expert it was the qualifications and then it just led into his treatment and you didn't have any objection to any any any designat of him as an expert in that feat in the field of current i've argued that the interesting thing is he didn't do anything within the field of chiropractors to mr carlson and the opinions he gave the trial none of them would be in that field there was haven't he didn't give opinions in the field and i know i did the just to judge ever accept him as an expert in some sort of formal ruling in any field now that not in a formal ruling i think again what i'm objecting to is qualifications and the court  overrules it and then starts asking questions to the witness himself that are expert in nature that is a just give back which is greatest talk when this is just an unusual procedure and that was my initial question to you is about he was never offered up he was never accepted as an expert in any field be funny get to what you think is something outside his area of knowledge i would call an expertise though it would be outside his area of knowledge and you start objecting so this is sort of down the road from when these questions as qualifications to testify as to what he testified to the clearly he's a he's a mixed bag a fact witness and an expert witness aren't i guess i'm just trying to get it maybe i've been out of it so long nobody offers them up as an expert anymore you just put them up and then they engineering how this device works and frankly wrong with us not surprising because his training in that was to sell seminars that he went to for the people who actually sell the device he testified to things like it resurrect that's not accurate but that's what he was taught in the cells and are so clearly going to to sell seminars about the device is not going to qualify you to testify about how the device works and obama can a cool engineering manner how does it affect the body how does it help reduce purple peripheral neuropathy so i think at the at the end of the day would dr derivate testify to what he said he couldn't do in practice and if he can't do it in practice there's no way that he can come into court and testify as an expert witness on those issues may place the court the issue in this case is whether the honorable judge chipper abused his discretion by allowing dr direct to testify doctor to read gave substantial testimony that was not objected to by the plaintiffs that testimony by itself is the most important part of dr direct testimony or else there are really three reasons why this honorable court should have for the feet that's the issue in the case not whether it should have been administered not whether a doctor directed it correctly but what is the machine reasonably dangerous and was there to produce it cause the doctor of mr carlson injuries secondly what actually caused the birds on mr carlson speak and then finally as i said dr drew it's key testimony that the birds where he saw them were not in the area that the programmer or life was administered let me go through that doctor it testified without objection that from what he saw staff that did but dr direct examined mr carlson's feet when mr carlson returned like that takes me to a different different concerns but initially his testimony in connection with where the light should be applied is just i w was it was it may have been speculation on his part but even then he had been a chiropractor for many many years had treated diabetic neuropathy of the feet and it's a mystery to me it's conflicting facts and there was no definite testimony by dr direct that the programmer a light caused or did not cause the burns so that your argument that he gave an opinion that he may not have been  fied to give but it didn't matter because it was an inconclusive conclusion really can't tell whether that cause or some something else might go direct and over and above that but that's an opinion though isn't it yes but over  the one that you said had no real value you likely would have called him if you didn't think it had some value his opinion that you can't really tell what caused that testimony that i believe having were viewed the record what's more important connection was this is where it's supposed to be used in that right yes but there was no contrary testimony all right did the expert for the defense say that it appears that the pageant put in the wrong place and that's why the that doesn't mean it's a defective product example is a heating pad if you apply a heating pad and leave it on too long you can cause birds to people i think cases like that the far distan past but the point is just because the prone or a life was caught if it was hot does not mean that it was unreasonably dangerous and at this connection nobody was able to state with certainty what the temperature of the chrome or a light was when it was applied to mr carlson's fate he testified to that it only goes up to a degree above body temperature correct but there was no testing of the specific device that actually later i think it was tested and they found it it got to about eighty six degrees fahrenheit but there is no testing saying that this is the temperature to which it got and this is unreasonably dangerous and over and above that the jury had the pro their own life they had to want to involve them in some accident they took it to the jury room and the jury found a verdict in favor of bio remedy by klein so if you look at it even if you believe that dr direct should not have testified as to causation he certainly was capable based on his education and experience of test referred where he believed the programmer alive was or should have been applied and there was no testimony to the contrary at that stage you know you've got the testimony the printer a lie is where it was applied there were no burns dr grant said i can't say whether the promo lied caused it or did not cause it there was no testimony as to the temperature that the prone or a light reached and how do you get to a how to  sufficient to cause the type of burns experienced by mr carlson did they call an expert to say that i don't believe so you're a product of the fact that they didn't know and i think they did but i don't think they got the causation in other words that you've got to say if i have a heating pad and i apply a heating pad to the bottom of some wind speed and leave it there it is very possible that that individual could have burns on their feet but that doesn't mean that the heating pad is defective what makes a product effective is either it's a reasonably dangerous because it's just way too hot temperature of boiling water no evidence to that or it's applied improperly and if the prone or a light was applied improperly that legitimately should have been adopted or read store step but he was not brought in as a plant as a defendant to the case and i don't know why dr direct was number one in that i just don't know that but if you if i were here defending doctor the rat in a medical negligence claim then all of those things about well that should've been applied it doesn't do this it doesn't do this is the program why that might be where it very relevant but they're saying that the  because it was hot enough to word mr carlson speed and that made it a reasonably dangerous that was an issue that the jury decided against against the current since they could have decided elsewhere otherwise i suspect that the jury just did not agree with the pla again i think i think that the court and the lawyers were surprised when dr direct would not testify as to causation i think the court certainly was but you have to in order to reverse you have to they're complaining about part of the testimony of dr direct but that was later and over objection and that the issue is whether or not he should have been allowed to test by issues when that should have been allowed to just by some of the opinion his opinion as to causation which then he came out and said i can't say is kind of interesting but you'll agree with me that's better than a constant absolutely but i don't think that dr directs testimony was what defendant's trial counsel was expecting either i have a suspicion that both counsel were expecting dr grant said yes it caused it no it did not well i can't say i have conflicting dr telling me trial counsel for the defense an expert witness that he expected to say that the prime cause any injury sort of where you know but anyway but the question is should this be reversed no to reverse first you have to find the judgeship were abused his discretion and judge it there heard the testimony heard d directs testimony of testimony about his qualifications and allowed the testimony with an instruction to the jury to give it such weight as the jury decided as the jury determined appropriate and then d got a judge it never granted it on warnings but let the defect the design case go to the jury if i remember correctly biomechanical department at the university of texas for thirty five years and serves on the f d a is medical device advisory board he testified in detail about why the device is defective and how it causes burns and i guess  see she told me you know often look he was an expert in the field of medical device by mechanical engineer and correct i don't think we did do the right offer but he did he testified using their own internal documents of the defendant showing its device gets to forty two degrees celcius the f d a warnings and there are five thousand k hazard assessment documents that forty one degrees celsius can cause burns so we had the internal documents of the company showing the device can be up to forty two degrees obviously can cause burns so that was our general causation dr margolis is treating the dieters was our specific causation he testified that he met with his team of physicians obviously mr cross and had some health issues so he met with his entire team as vascular surgeon his cardiovascular doctor and of self and other specialists and they all came to the conclusion that these were burns caused by the device so we definitely had the general causation we had defect testimony and we had specific causation i don't think those issues are necessarily before the court but i just wanted to clear the record on that a bit and there was and there probably are reports now of the actual whenever we got involved and then years down the road it was found and when we tested it it got to eighty something degrees clearly something that happened to the device his old age maybe but yeah eighty degrees was going to do a whole lot for you to way the device is built it's designed to go in multiple places on the foot it is designed to go on the heel or go over the toe like dr grip testified so i don't think dr directed anything wrong in effect the warnings case which was not  dismissed by direct a verdict by the way but that the warnings case was strong because the warnings that the defendants had they never gave to their practitioners the practitioner actually had to make a special request for the warnings so our position was always dr garrette was just ill swindled i think his testimony about the cause of the barn was a little bit of self preservation but the guy just got swindled i were you able to i know you objected to things and the judge overruled and a llowed the witness to testify but were you able to cross examine him about his opinion or enchanter to the questions that he was asked on direct sure i was and that's the instruction that the judge gave was the fact is a chiropractor goes to the weight  evidence not admissibility which the ruling court in the seventh circuit said that that ruling is wrong but i was allowed to cross examine him that he didn't see it on his foot that he's a chiropractor and he's testifying against the treating physicians diagnosis and prognosis so i was able to explore those issues but dr direct was the only evidence that came in that said these wounds were not burns were not caused by the device and that the idea that he a that he didn't have an opinion as to the cause when he testified that those wounds are diabetic all servers and not burns he is absolutely testifying that in my opinion the device didn't cause those burns thank you thank you thank you gentlem