is not the same as the empty chair r case and i think that whenever we're looking at an order involving a grant of a new trial i would i would say that virtually every case you ever see i can't think of an exception see it when the case is going to be set down for the new trial it's something about is going to be different in the way that it's tried and the problem the fundamental problem that i had with this transcript the first people no question about it there's no question about it the players trying to get it till three days before trial there's no dispute that he had it for about eight my recollections about nine days before the  there is no way to discern from this transcript what would have happened if he had it and the sooner you know in the few cases where the evidence is with health not given to somebody on time comes later whenever you make an offer you make some showing of what you would do differently how defective yeah in the standard in every case where we're talking about the grant when you know because something went wrong during your original trial is you and he said you know did you paraphrasing did you find anything in those that list of cases that you finally got something new or different information that would have helped you in counsel's answer was more now that seems to me that that was a significant amount of time with the last significant opportunity to marshal whatever it is you could pinpoint those transcripts and say you know here's further indications of where this defense this defense expert contradicted question still boils down to well we've had a trial the jury reached a verdict if we sent it back for a new trial what's going to be different and you just find out in this case you can't there is nothing that articulate so you know there is a heavy reliance both by the trial judge and counsel briefed on the federal rules of procedure twenty six you know and that presumes precious resumes prejudice when you don't produce a list saying that you know what this is an egregious thing under the it was its result of the british will there's a reason why it's handled this way in the federal court system and i think this was bad and he said i think it's as if there was no production of this list at all goes both ways i mean there are plenty of experts in the fence and no question about it but i do think that it's fair to both sides that if that's the situation you need to make a record of how you're prejudiced there's just that's great i do want to hear make clear the meeting and it was the stuff that was hard on well no it certainly wasn't counsel had a fair amount of it already i mean that's kind of indicated by the record that we had transcripts from other trials he counsel was one hundred this with transfers that's clear on the record he had transcripts and when you read the cross examination the expert two thirds of the cross examination is entirely based on questions it's totally questions about his testimony in other cases how illinois that presumes that this was harmful i think it's fair to both sides that if this is going to happen you have to make a showing of what you didn't get and how it affected your crops or how it affected your case you we don't have any idea what the evidence would be and to me that's the problem in this case and we do have a further problem because the other problem the case is that the judge approached this from the standpoint of the discovery section absolutely no evidence of misconduct by the defendant or his attorneys it was the doctor he was after and as a result not only consider the doctors conduct a third party not that a party is the rule requires he considered the doctor's conduct in two other cases not even this case now you know maybe there's some reason to hold this doctor written hold him in contempt or something but will tonight he doesn't authorize a sanction against the party a legal error so even if you step out of the just the question of does the record support an exercise of discretion here when there's no showing of the prejudice or how it would have affected the outcome of the case what council would have done differently if you but i think that the that the record has to support has to to answer your question one the record has to support the exercise discretion you know we keep the case law says you have to have demonstrably prejudice interest and that yes you would think that somehow the defense lawyers were involved in this and i'm not saying the first words were about no and i'm saying you know you can't witness you call your expert you call your that's true but in this case the judge you know it's unusual but he makes an express finding on the record that the lawyers and party have nothing to do with this it's all the witness i don't i don't think it's fair to tag a party with a sanction based on the conduct of a nonparty wit emanations always based on the discovery that you get i could agree with you more judge but that's why for example when you sanction a party for two thirteen violations or something hasn't been disclosed you can identify what it was that wasn't disclosed and how not grant a new trial as a sanction for dr holmes his misconduct rather he made a finding he made a specific finding that the plaintiff did not get a fair trial and that's the stand timely manner despite repeated requests by plaintiff to do so placed the plaintiff at an unfair disadvantage the disclosure that was provided occurred at a time when the plaintiff had it as a practical matter right i certainly disagree with that i mean of of course that's of course the position yet of course at a time when we had a verdict against us and we were asking for a new trial we're not at that point going to chase down every plaintiff's attorney in every defense attorney in every case that dr holmes has testified in and tracked down that evidence and read through it and go to the expense of that when when we were in the process of trying to get our new trial the  this point out of the two thirds of the cross was based on the witnesses inconsistent prior statements in those cases which we had the ability to under oath on our own certainly underscores the point that this stuff is relevant and occur trial shoulder produce no no we didn't we did not on earth that our position was then and is now that there should be a sanction and that the witness should plaintiff get a fair trial and the second one is should there be a sanction namely barring of the witness and our position was look he's violated in this case and i want to touch on this just a requested north multiple to a one k letters ignored multiple deposition writers ignored multiple court orders and then never misrepresented all of the above to the jury an overt attempt to avoid court fashion remedy to the extent that a new trial was created was created because the trial judge who heard the evidence in the case who heard the referees and patients the offense counsel and who sat through that testimony that i was the one who had come on prepared that i did not been seeking this stuff for months and months and months the judge immediately recognized the prejudice of that and he granted a new trial so so really the question now and court may consider the impact of witness misconduct in assessing whether a trial was fair and in this case the judge determined well it's not fair that the plaintiff was unfairly disadvantaged and for that reason he granted a new trial one one thing i want to say to rest real quick because then this repeated allegation and i think maybe because  sides of the fence when the judge took that under advisement both parties thought of making wise to craft some sort of an agreement to allow him to testify for the defendant in exchange for the fact that the fact that he'd consulted with us would not be re the evidence but like he was a consultant to us this is not a situation where we retained him in this closed in his our expert and then they took his deposition and chose to use them is there that that's just flat out that finding it if if he is allowed to testify in the new trial all that means is that my client's path to justice has been delayed by already two probably three years by the time we get back to t actually the case is suffer a trial in the spring right now so you know whether there would be additional discovery or not you know who knows what next week through i mean either you have this witness right retest a fine and then you want to make sure you know all the information or you've got some other with us for them but that's yeah that would be presuming that the court would determine that they get another witness i mean it strikes that that this court is being asked to determine whether the witness should be barred as a sanction for his misconduct you know and  the defendant it was disclosed on all of the exact same points in the rule two thirteen disclosure is dr holmes we see the point my question is i do i understand the point of your question with the issue here becomes if he's allowed to testify then who has suffered as a result of us having to go through the entire first trial which was the unfair trial the question wasn't what's the cost  second trial the fair trial the question is what expense did we have to go through to get through the first trial which was a sham because that of dr holmes but that never happens that that's a human you want a new trial post trials try to make a record i mean that's what we do is to assess you know when you're when you feel you've been prejudiced by something you make a record and so you didn't make a record it only took a few days to get the information you needed for a trial with the with the late disclosure made an extensive argument about will two thirteen here control witness and everything else and this does fall within and the judge also sanction isn't cycle to nineteen years and we can see that he does all the sections and he does do it in the context of a discovery when he h know i i didn't want to suggest to the court of the whole sequence that mr melton laid out in terms of what happened in hiring this expert first whatever it wasn't specific about that i don't know what the original is all i know is that a page or two of two of our record  there is a stipulation indicating that he was at some point plaintiff's expert and by stipulation was to be our expert with solving expert whatever expert i don't know what we're not down  say that he was unduly surprised prejudiced by the party production when you can't say what the production would have revealed but it would have revealed any admissible evidence whatsoever and that he could track anything down for six months even though i could find plenty of stuff within three or three is a little bit of what my cake and eat it you know he wants the witnesses are on remain and i think because there isn't anything to me that's the most telling aspect of this would have been any different if that list of been produced you just can't identify any and that was you asked me the question judge jury asked the question what do you got what would you used what did you find and i don't think the the schools there's no to be there's no out of pocket expense to conduct that investigation i mean that's you're not hiring experts to do that i mean where expense comes in has cost of depositions cost of hiring experts with us to to go out of what  you all to offer up with the public use your time well that's true you don't know question about that but i think at this point you know the investment if i had you know was the seven hundred thousand dollars invested in the case i think i would spend a little additional time to see oh there's a list of eighteen cases that's what was produced in that list eighteen cases in which that i can test if you didn't have time during the trial pretrial that three days before the trial in the days with an i q test by the track those things down and certainly i don't think we've taken a great deal of time to look at the ones that and see make a record i don't think that's an unreasonable burden present for this courtroom of lawyers already have so through with about fifteen cases well he never indicated how many of them on the list that he