appropriate is did the defendant fail to comply with the discovery rule or order in a way to prejudice the plaintiff's case in this matter that didn't happen there was no prejudice a understand the plan for argues primarily absolutely would have been found his preference that he simply produced that information unfortunately he did not do that however the fact remains that the information that was produced about his income and things like that came from his office in there the people who were tracking  an aggravation case and the question is what was what would the accident add to the problems the plaintiff already had before the accident occurred so the jury didn't see the entire picture had no way of understanding before and after picture possibly could and he did have the information when he came to trial that was available to them that they could have used to attack this guy's credibility and in addition to that you know it seems to me that if the purpose of this information i challenge the experts credibility the fact that he did respond to these people are certainly something they could have possibly i mean the mining man did you know that doesn't help our case and i don't think that that necessarily her staircase you know say but if anything i think what so at what point my question you know the trial judge is supposed to be making sure that both sides gets a fair trial discovery is going back and forth each side is able to information and it wouldn't change the nature of what was available to the plan for the cross examination that seriously because they already have the information about his earnings you know the information he didn't produce with the tax returns i believe that there was a discrepancy and information that we his office didn't include cancellation fees and things of that nature so you know these are all things that don't seem to change the material basis of credibility challenge which is  actual specific dollar figures you know down to the penny and discrepancies of that nature are less important for that because you know that the purpose of the question of the doctors motivations in charging is credibility it's not to appear for another deposition or for that someone from his office appearing for a deposition pursuant to the subpoena and producing this information and so i feel as though it may not have produced and with the fact that it was coming largely from the record keeping personalities office you know the information was handed over by this chamber who were able to get ahold of the tax returns who would love to produce those b the information on the tax returns where it was like the doctor's income for his medical legal work presumably insofar as that's what they were sorry for and that information was already in the plans possession and at the time this issue going to him for the court addition to the information that the jury didn't hear about what was really going on with the plaintiff before the injury occurred they also did have the opportunity to evaluate the credibility of dr the th and that you know the never i never personally had the pleasure of appearing before you but you know my father tom waits has many times so you know he'll be pleased to hear that you were here this morning and so obviously it's our position that the trial court denied its discretion in this case and the defendant is not entitled to a new trial in this case and i apologize i'm a little under the weather so if you can't hear me please let me know i will do my best to speak up mr schroeder is correct that this is an abus discretion standard and i think i agree with him that the essential point in this case that's going to determine the outcome is dr williams being barred as a discovery sanction i think the remainder of the defendant's issues and points on appeal has down from that issue so i'd like to primarily focus on that as mr thrower did so your honor you raise a question about at what point does the trial judge just say enough is enough you don't have time to do this and you haven't done it and your expert hasn't done it and therefore this is the appropriate remedy under the law i laid this out in my brief but the facts in this case  pretty substantial in terms of supporting the trial court's decision in this case so the initial point that like to know is that the defendant was actually given extra time to name this expert according to the case management that was granted by the court in a trial that was actually pushed back three months to give the defendant extra time to designate this expert witness dr williams right after that ruling was made by the court we sent expert in iraq the reason requests for production of documents and those responses were due about six or seven weeks after they were sent out the answers were incomplete the defendant objected to providing almost all the information that was requested we filed a motion to compel not even two weeks later on october th of two thousand and eighteen the court granted our she testified that she did not produce a bevy of documents that she could have produced and chose not to she did not produce cancellation fees a list of medical legal exams with patient names she had appropriately listed deposition charges five hundred dollars instead of two thousand dollars she agreed that her figures were inaccurate she didn't include charges for phone calls that the doctor had between attorneys she could not testify and she produced my client's entire  chart she did not know and did not check if dr williams had kept a list of depositions in compliance with the piano she could not testify to the grosser payments that dr williams received even though that information she testified would have been available williams but there was never any corresponding record from that doctor's office that showed a payment in the amount of two thousand five hundred dollars the most payment that was ever shown according to that doctor's office was two thousand dollars so in light of all that the day before we were set to proceed with dr williams evidence that position to judge the judge heard our emergency motion to bar dr williams and granted and i think the case on point i know that mr stiller cited discovery and not punish the dilatory part and that's what the court was i think trying to get at when he was telling mr schroer you know i know this is nothing you did it's not a personal ruling against you but this is what i have to do now  you and your expert have not done what they are required to do under the law and the court goes on to say we're pretty fails to comply with the provisions of rule two hundred and thirteen dollars the port should not hesitate sanctioning the pardon as rule two hundred and thirteen to me and strict compliance in frasier versus jackson it was the very same issue the defendant had retained an expert who refused to abide by several court orders compelling him to provide financial information including tax returns and some of that was and in this case the defendant like the defendant in this case argues that the tax information in the information that was provided was more than sufficient to tell the straight whether that was biased and the court rejected that argument and said that that  doesn't matter that's not the appropriate standard you're required to produce these things when you obtain a control expert witness in order to fairly allow you to approach the process and an expert because these expert to either of you have any questions point i think that that is the majority of what i want to cover with respect to that point on the trial court's ruling but i don't ok thank you so with respect to the nd issue  excluding evidence of miss phillips prior injuries i think what the the trial court actually did in this case it was more than fair to defendant into plaintiffs because what the trial court did it is ruled that type of knowledge is not generally within the kind of the average sure it's a complex issue and the boy can import made it clear because of this complexity we do not believe that in normal circumstances the later kind of assessed the relationship between a prior injury and a current injury without expert assistance and put the burden on defendant to establish why any evidence of a preexisting injury is relevant in this case and obviously they had no medical expert witness at the time of trial because dr williams testimony did not come in and they failed to meet that burden and they failed to show why the preexisting accidents were relevant because no doctor had ever linked up this phillips symptoms and conditions to this in order to be a collision to her preexisting conditions her presenting accidents rather and specifically if you look at the testimony of both physicians who testified dr coronet and dr patel they both attributed her symptoms after this more people collision two that were vehicle collision they never testified that any of her symptoms were related to any prior motor vehicle collisions and the defendant did not have any evidence to rebut that at the time of trial and interestingly even if you were to take the extra step to assume that dr williams testimony should com the defendant submitted an affidavit that they as an offer of proof at the time of trial and what dr williams affidavit says is he believes that basically suffered an injury as a result of this more vehicle collision but that he believed that some st symptoms work related to preexisting degeneration well that's consistent with the evidence that the trial court allowed this case dr williams didn't even attribute her prior irks me her symptoms absolutely supported by the evidence and there's no evidence that the trial court abused its discretion with respect to any questions on that issue  to have any questions for me in general any of the other issues those were the two issues that mr schroeder primarily had time to focus on so he didn't really get a chance to discuss any of the others with you but is there any questions you have for me on any of those that mr schiller citing in this brief on this issue to support that that decision was not appropriate to direct the verdict on that issue of the past medical bills baker versus hudson and in any case the appellate court overturned the directed verdict and basically what they said is that there was evidence that the plaintiff's attorney had referred the plaintiff to several doctors there was evidence that the plaintiff did not follow urgency room physicians recommendations and there was evidence that she completed a questionnaire that the purpose her visit was to find injuries due to the automobile accident and there was a a a significant gap in treatment almost a year after her doctor released her so there were numerous issues in that case that the appellate court said no there was enough for a jury to potentially conclude differently but in this case there's just there's nothing that the defendant i think could hang its hat on this woman such treatment immediately after this motor vehicle collision she was seen doctors that she had already seen before testified that her condition was worse in the knee and attributed to th more vehicle collision she consistently saw treatments and her physicians testified to that there was no contrary evidence at all going on by the defendant with respect to any of those issues so in this particular case i think that that was appropriate but i do understand you know i recognize the scrutiny that the appellate court needs to get to that particular issues like appreciate your question very much set up held by the courts in numerous cases i talk about several cases in my brief that just the distinction that the courts found between treating physicians and expert physician those cases and i think it's important to note that the court did allow dr grant to answer some of those questions at the time of this at this issue and there were questions asked about how many depositions he gives and how much he charged for deposition so those things did come into evidence at the time and i think that the jury was able to assess dr coronet as a witness with back in mind so i think that the trial court appropriately limited  that question those types of questions them don't accept blood transfusions so defense counsel attempted to question dr who twelve about blood transfusions and whether or not those would be required in a fusion surgery the court appropriately struck that evidence and i think thing is that another reason why i think the trial court's decision is supported in that regard is because that question wasn't even asked to my client surgeon dr cornet it was asked of dr who twelve who's the pain management physician who was providing her with injections so the basis for darker blue twelve's opinions on whether a blood transfusion would even be required for a fusion is not supported there's there was no proper foundation laid for that she's not a surgeon she didn't testify to her background as a surgeon or her ability to perform surgery so therefore the foundation was completely lacking for that line of questioning which is another reason why i think the birth appropriately struck that test and that reference case however i would like to point out that even if you take their ruling out off the table there were a lot of things in the case that the jury could use to question the credibility of the testimony about her injuries and damages and simpson and therefore about passenger in her vehicle these two women were friends they've known each other for a number of years they go to the same church after the accident that the plaintiff never form the defendant she thought she was her the record shows that the defendant dropped the planes back off  that you know witnesses credibility can be challenge based on issues of bias or prejudice simply because he's been designated as independent expert witness as opposed to the controlled expert witness so that i think is the issue tonight not all of the cases that are argued in the pelleas brief does affect credibility that doesn't necessarily mean it's out it just can't be introduced for the purpose of maybe a full on credibility attack like that so in this case you know there was a claim that this plan to meet a surgery in the future