directing the appointment of a court appointed expert witness those orders were issued after the conclusion of the bench trial in this case sue is spawn today and in response to the defendant's motion to strike the expert testimony of the government's retained expert if you look at the record we had a bench trial in october from october fifteenth to october seventeen and at the click conclusion of that trial the district judge issued an order that afternoon saying the evidentiary portion of the trial is concluded and i'm ordering the parties to submit a post trial briefing as to what has and has not been proven and so forth that motion but instead of ruling on that motion one way or the other the district court sue a spine ten issued an order to show cause under federal rule of evidence seventy seven zero six day as to why the has discretion ever under seven zero six but it's not absolute and it's an abuse of discretion in this case for at least three reasons number one because the order was issued after the conclusion of the bench trial after all the evidence had been submitted and so the judge ordered that if that's it you know is assessing the evidence that she's received and decides that she needs help because this is technical medical matter about universal precautions and so on why does the timing of that make it beyond her discretion well because in this particular case the information the judge said she needed assistance with was the very testimony of the government's retained expert this was information that was offered in impeachment on rebuttal and was not central to any of the liability or damages issues in this case what happened was we moved to strike that testimony and the court appeared to say well maybe i should find another way to get this testimony in and so the second reason why this is an abuse of discretion is because the court appears to be using the time of the well it's only it can unring the bell kynge it's not an adequate remedy in full because when the court appoints an expert it requires the parties to pay for it and this money back if if we reverse you worried that the united states government will reimburse i respectfully disagree i don't know what mechanism there would be for the defendant to get its money back if on appeal first court reversed that decision you don't know if you're going to have to the court has indicated that both parties are participating in this puzzle but you're going to have to pay specifically no but we know we're going to have to pay a hundred my own view is that would be an abuse of discretion wrong issue i think it would be an abuse of discretion for the district court to charge the government with the full or substantial cost for this court appointed expert in ohio the government so the court is going to likely split the costs unfairness in this case you then had to prepare your case without knowledge of what this expert was going to sack and you rely on whatever the government's proffer from its expert twofold that the order was issued at the conclusion of the trial after the district court itself recognized that all the evidence had been submitted and secondly the order is expressly intended to provide substitute testimony for the retained expert of the government and so in that case it's unfair but why is this our proper subject of mandamus relief well the specific issue for mandamus is whether there is real is harm that can't otherwise be remedied and the harm in this case is going to be the amount of money that the defendant is going to have to pay for this because there is no mechanism just whereby that money will be reimbursed seek a stay of the well i suppose you have to well i think that would be a very difficult thing to do because like court appointed expert is entitle to be paid the judge is going to order us to pay it now it would be unusual for the judge to require a court appointed expert to do work without getting paid and so we could refuse to pay it but then we have a contempt problem that's not a required to requisite to seeking mandamus with the district i'm sorry if you raise the payment issue i raised yes we raised the payment issue in our objections to the original order to show cause in terms of it was unfair to require the defendants can subsidize that and at of this shouldn't be done but in any event the government should be the entire us if that's your principal we could we could take that position then the government is simply going to argue that under the rule that would be an always open for business thank you i think we have the arguments we'll hear from the government they have asserted is cost of litigation which is never a irreparable harm and on that basis alone this court should deny looking you could you could you address the issue of cost though i mean these could be significant costs and we have no idea how much they're going to be counsel doesn't typically my understanding is that they are shared by the parties and that you know if your adversary were to prevail  later on with his argument that this was an abuse of discretion what remedy to see have to recover those those costs which could be significant for an individual so though the cost could be significant we  am not sure at this point what the remedy may be given the fact that the district court can order the splitting of the fees in any particular way however if that is an order that is appealed by up to this district to this quarrel with proposition that all fees can be shifted to the go depending on how the order is structured and how things transpired or as an abstract principle as an abstract principle  don't see with all the cabinets that can come from the for the application of an abstract principle to a specific set of facts no the government doesn't does well the question to it's a simple question if the judge worded split the fee and i don't blame your partner for complaining i mean he's got a client and he doesn't want to have to have his client pay those fees i don't i don't play i've offered to be upset about it especially since it's your your expert that seems to have generated the need for there's no wa to take it easy take it easy i hate i could see so say the district court says fifty fifty fifty and and it comes up here and this court says now that was a should all lie in the government's it was abuse of discretion or the expert can be issued all a cause should lie with the government or you have the view that we're without the authority to do that no i think are you of the view that the government somehow has the the defendant's defendant dr provided testimony which was effectively expert testimony that we had not been disclosed to us our expert was in the room listen to that testimony and proceeded to take the stand to take issue with statements that the testimony that  the defendant had made on direct and cross we would held them in abeyance for specifically for that purpose and that's what he testified to after the close of discovery i mean start after the close of evidence at trial the defendant made a motion to strike that testimony as not being disclosed ahead of time we have you know our opposition papers include was granted it was not granted there was no that that you had that  she should not point an expert under seventy six to give her guidance about the issues that were debated between the plaintiff's expert our position witness and your expert is that correct your honor so the procedural posture is that we have two sets of expert statements that are being made and the court and the court hasn't ruled whether our expert is getting excluded or not but the district court has now is planning to appoint a seventy six fellow gets on the stand or your witness gets on the stand and says no that's not the standard anymore because of precautions that can be taken with regard to surgery blood typing in the presence of a child the orange i v and it's are no longer  relevant with regard to invasive surgery the type of surgery that plastic surgery was be performed correct correct if the court has no other questions for me i think we have the