admits that the defendant engaged in between condo and that this condo proximately caused injury resulting in damages but in calculating those damages the question naturally arises as to which of plaintiff injuries were approximately caused by that negligent conduct if there is only one injury such as a car accident slip and fall then the child becomes fairly simple it's just a matter of determining the reasonable medical bills  damages for pain and suffering disability and so forth but in cases involving multiple injuries issues of proximate cause are by necessity interwoven with the issue of damages the ok so if you're challenging proximate cause then that isn't that different from conceding liability i'm trying to determine what we're talking about here we are certainly contesting a yes as opposed to saying we're conceding everything but damages which was your original statement which seems to me to be saying we're conceding both that we were negligent and proximate cause but we're claiming that the damages that the plaintiff is seeking are too high and we want to challenge th question is the difference which you point out when you started your opening remarks the fact that we have multiple injuries here that's correct so how does that play into the inquiry just tightened  is a pointed out if we have just a single injury then the speed of the trial and damages only becomes very subtle it's very straightforward but where we have multiple injuries at some point the court must by necessity  only you could you have been more specific in saying we do not agree that the damages represented by plaintive on all attributable to our negligence would that have been clear in hindsight  yes your honor it would have been much clearer however we believe our trial counsel was operating under the assumption that a court would never work damages for injuries that were unrelated to the mid  n to do so would seem to fly in the face of the fundamental tenets tenets of tort law how can you award damages or injuries that were not caused by the negligent that and i think that that's perhaps motion at liberty state and this is from trial counsel that we have the burden of distinguishing which of mr sloes post negligent conditions were related to make judgments and which were related to his underlying condition of  now that's the admission of plaintiff's counsel the trial court agreed with us this is all we ever wanted which was that response if so that was fine with us the judge said the jury has to decide what are the damages for the chemotherapy versus the cancer the gentleman suffered already this is a quote they're not going to get to argue that we improperly confuse the chemotherapy is correct on that but they will be allowed to argue what damage that caused to a person who already had cancer so then what happened in trial that's the same question that we asked because after that statement was made when on the day  trial it was on a hearing on the on the limited to bar all causation evidence we thought the matter was resolved in terms of you know its progress in terms of the start of the trial with that motion in limine i heard that morning the day before week before i can't off the top of my head give you a chronology there dates however the issue came back out of the blue resurrected itself if you will when the court gave the statement of the case to the jury and out of the blue e c said well i'm going to use the plaintive statement of bass and this is what he informed the jury he said the fence have admitted that the infusion of chemotherapy caused william snow's death while i reviewed that testimony and his remarks are very short he doesn't really offer an explanation we have checked it be over ruled the objection and we moved forward and from that point on of throughout that point from that point on the trial court sustained objections to all evidence from our point of view as to causation which damages rection which injuries were actually caused by our negligent cotta remarkably plaintiff's side were we're allowed to explore this in detail we had to put up an offer of proof the jury never heard our side plaintiffs put up a substantial amount of evidence  chemotherapy contributed to cause snow stuff i prepared my remarks here i've read it right off the the transcript your honor so if i made a mistake i apologize to that but i pulled  directly from the trial transcript and what's the it's an established rule of law that by introducing evidence at trial pertaining to an issue that had been previously deemed an admission by introducing tardy waves and the right to rely upon that admission at trial causation for all damages from any cause for from any conduct whether it was related to our a negligence in the chemotherapy or not  evidence what i'm saying here your honor is that the trial court should have allowed us to put on evidence of causation we should not have been limited to an offer of proof for our causation expert what did your offer person or offer proof said that there was absolutely no connection between the negligent infusion chemotherapy and a decrease in the plaintiffs or the end of the se that our experts said that as of i believe the date is december tenth twenty second two thousand and ten the effects of the chemotherapy had completely passed to play the system that he no longer suffered any damaging effects from this we concede that these infusion cause him pain suffering and perhaps caused him to enter the nursing home afterwards but we  not concede that it had any effect beyond that so there would be the survival basis the proper they were to be spayed and suffering before he died yes yes no evidence of cancer in other words our expert would have testified and even allowed to that they became with the chemotherapy and radiation worked in this case was a success now even plaintiffs expert admitted that even in a successful treatment of a sufi geale cancer that it can recur i think that that's common knowledge in almost any cancer and that's what happened here it had nothing to do there is no causal link between the recurrence of cancer and the infusion of chemo there are so what in your position should have been the appropriate measure of nation fusion plus the care he received in the nursing home we can see that he was severely debilitated as a result of this infusion however by the time he will he was released from the nursing the their expert dr rose suggested that chemotherapy it's the whole point is to eliminate microscopic vestiges of the cancer and that the chemotherapy as a given was ineffective and therefore that there was a causal link with the recurrence that is his testimony however i think it's important to point  his testimony is geared to references to percentages of loss of chance now the last chance of survival and in fact this is a super other testimony this reasonable degree of medical certainty of might or could mr stuart survived between three and five years had he received normal therapy answer yes yes there was he did not have that chance of the we've sort of this in our brief that there is a complete failure of proof the defendant's conduct actually caused mr snows that the question was never asked and the question was never answered that to a reasonable degree of up another point which is the medical bills themselves this is an issue controlled by kilby foster the supreme court has held that plane of fails to meet their proof burden of proof where the medical bills related to the that's start of but the you look at the diagnosis codes for some of these things are the bills that we're certain we have charges for diabetes peripheral vascular disease spinal degeneration  we have a number of bills here that are not causally related in related in any way to the cancer itself you know dr rose was allowed to testify without ever having tried the same thing they brought in the head of i believe a vice president of the finance department of the hospital and he said well you have these fees those are pretty reasonable the trial court bill said well that's not that's not enough just to look at these bills as a whole suggests that we have a lack of foundation here is a bit of an understatement you know idea what is talking about he looked at the bottom line he said now that sounds about reasonable and that under bill the foster is insufficient that is a complete we have not fully both worked through how this applies to our case we have questions as to whether it applies to the supplemental insurance provided by a r p and we further may please the court i'll address each each of the issues that seem to be of most interest to the court i'd like to start with the real issue first since it was the last issues referenced by council the clear distinction between the kill situation in this situation is there is absolutely no evidence that mr snow would have been hospitalized or answer none whatsoever the only evidence is that and i believe the other side  that he was hospitalized because of this megadose or overdose of the chemotherapy is still eat you know how that steak was made the how how did the nurses and that's how you how were they able to deliver four clear from the amended answer that all that was being contested in this case was the amount of damages and understand that i think you need to first look at the language of this and i did answer and if you clearly states that and then when  a that and ok judge smith who was on this case from the very beginning was aware of the way this case was being litigated by the other side and by that i would refer the court to the failure to respond to discovery on their  part the failure to very angry to respond to discovering what were well we never were able to take the depositions of the nurses for number one and then there was a failure to respond to some of the written discovery this cause ation with regards to the wrongful death claim not until i believe august of well it was august of two thousand and fourteen when was the trial the trial was in september we're talking about thirty days or was before trial we're talking about thirty prior to trial just prior to trial didn't judge smith say i'm this is the issue that the this is that would tend to cause all these him to say i think if you if you follow judge schmidt throughout the trial the message she sent was i think he said something you have to dance with a person you provide i think is to say that again i think judgment made a comment that you have to dance with the person go out or something to that effect and by that he was referring to the fact that they mean we can we can i guess you know debate that but my point is after that had been filed it still seemed to be john smith's understanding that he would allow them to contest what damages actually stem from the conduct of the rapid infusion do you agree no i don't agree i think that the judge made the comment that certainly mr o'mara indicated that the judge may so why is that comment mean to you i think what it means to me is that the judge but the judge has indicated those words but the judge did not intend to suggest that the that defendants would be permitted to proceed in a manner contrary to the amended answer which they filed this case and so are you suggesting that the judge ruled the way he did or conducted things the way he did during the trial as a means of punishing the other side for inappropriate behavior lack of change that subsequently they did they did ok well leaving this all side as a matter of law isn't it correct the pair able to challenge the wrongful death on the basis that the proximate cause off for instance challenging your causation testimony as to the wrongful death would have been properly admit it or not but then that would never jury question the jury would decide whom to believe on th falsely response that that really should really have misled you record why should that have trumped the subsequent trial efforts well i would disagree with the court that it it luck if you contest only the amount of damages on a wrongful death claim you're you're excepting the death because that's hype that's one of the elements of one death claim so  if you're if you're contesting only the amount of damages you're contesting only be amount of damages for that that otherwise you would not be conceding the liability right meaning to liability unlawful that it's much different than a survivor action brought here as well and it's hard for me to understand how you were misled or the court was misled by this statement at one point in presence when that i'm not sure of dr role and also can correct me if i'm wrong but i'm not sure dr i was designated as an expert he was treating doctor and what would happen with regards to that there disclosure expert which is another indication of the way this case was was that there was a discovery cut off for expert disclosure that was best defendants came in and requested an extension of time to submit their disclosure judgment granted them the extension of time they missed they had also believe he's the one who said the chemical infusion would i believe that was dr route as i don't recall seeing any ok well that's for proof regarding any other expert that was well tried but once you heard that testimony me that should have put you on notice that they're not conceding the wrongful death claim it was an offer of proof made by during the very last witness indicate now was that was the first time this was that the chemical infusion the not cause or lead to the death of mr snow that would have been a pretty clear indication that the defense is not going to be conceding that aspect of this case w in their mind they're the one conceding the aspect of this case but in the judge's mind the it mended us answer that was filed by the defendant did in fact conceded here i want to ask you about the motion schmidt rule we're going to allow arguments that the damages claim to see were not caused by the improper infusion of came up there the jury asked the b side what are the damages for human therapy versus the cancer the gentleman suffered already that's going to be in my mind that's going to be the trial and then he said defendants are not going to get to argue riprap properly infuse the chemotherapy they have said they did but they will be allowed to argue what damage check cost to a person that the judge concluded that that's what the amended answer indicated that they had admitted everything but the amount of damages in this case where the parties put on notice to that change well i believe the court made me a liar to their rulings during trial i don't throughout the trial i mean from the very beginning the opening statements there was there were statements made and objections of nature statements regarding it meaning liability as to  to causation and only the amount of damages being filed and so from the very beginning the parties were aware that that in fact was a judge's ruling the very beginning of the trial or of the parties trial it came aware that the judge was ruling in contradiction to the ruling to have previously made in that motion and i mean well you know it you know i think you have to view that statement in the context of everything you know between august and september there was not a great time period so it had to be somewhere in between there as far as the other issues in this case are concerned miller decision or as addressed the reduction issue on the only thing we had with regards to the reduction issue is cases this is not a two twelve o five situation if anything gets to dash twelve a five point one situation bad thing because the defendants in this case were not a licensed hospital or a physician it was a illinois corporation there was absolutely no our expert had knowledge of the services that were rendered and the usual and customary charges for the services he did testify that he had hospitalized people at patients in the past for the very conditions that mr had he also testified that that he had been practicing for twenty six years and had done so he also testified that he was familiar with the usual and customary  a clear distinction between the case in our case is there you had an injury that needed to be taken it taken care of in the hospital there was a need to prepare her to hit its stomach and there was absolutely no testimony in this case that mr snow would have ended up in that well it would have ended up in the hospital simply because he was being treated for cancer what put him in the hospital and the other side conceded is what put him in and that's bill was the overdose  or the mega dose of the came off so that's the clear distinction between the two cases you know in this case thank you counsel thank you and again we  damage is sure deliberate indifference the it granted in hindsight the sixth and pleading could have been more specific however the reason that this was included the exception for deliberate indifference is because that could potentially be directly related to the infusion of chemotherapy there could be a claim made damages however as i've argued we believe that simplicity that a court cannot award damages for injuries that are unrelated to the negligent conduct and that suggested by opposing counsel that we need to look at this in the context of how the trial will or and i don't really understand that and are we missing something was the ruling the ruling is there something else we should be considering with respect to when mistake i don't see how that could possibly affect the judge's ruling on an issue of law and if it did it shouldn't have prior counsel made a number of mistakes and  or perhaps it better be better said that he was not diligent and i think that that the record stands for itself there all i can say is that he's no longer with or from when opened the way counsel did make reference to a quote from the judge the judge i believe his exact words were you have to dance with the person you brought to the ball i think those were the words he use and at that time what we were trying to do was to do precisely what this court has suggested that we were trying to clarify the two days sixteen six ten the admission we are basically saying that no we do not admit proximate cause for any injuries or damage is unrelated to the infusion plaintiff earlier on the panel asked whether plaintiff was misled by her to death six ten  leading and i would submit that they were misled that as i pointed out earlier in their reply to our response to the motion in liberty that sought to bar all causation evidence they admitted that yes we do have a burden here to prove proximate causation as to those damages that relate to infusion and those damages that relate to surgery so i respectfully suggest that there not possibly be they could not possibly be misled there was also a question about dr rao's testimony and i think you're right he was a treating physician we made an offer of proof our expert was dr steven interrupt you but is there a deposition of either of those positions by the printing absolutely doctor dr alan stuff position was taken and certainly we had to disclose his opinions in advance of trial but he was not allowed to testify and we did make an offer of proof that offer proof is in the record so to conclude i can't imagine how they can possibly have been misled by this pleading when number one we have we disclosed an expert stating that we can trust causation and also we have the ruling not only of the trial judge but