name is lisa cohen and i represent the plaintiff in this case carol holloway still works at the er rica plant in bloomington illinois which is a factory where they made vacuum cleaners from nine hundred sixty two to nine hundred seventy six later in life she developed the disease as best whosis and filed a claim against franklin the defendant in this case regarding its  motions in limine they were ruled upon and one of the motions eliminated that both parties wanted the court to address was whether or not evidence of other exposure to his fest sides would be presenting to the jury testimony and evidence about the manufacturers of these products and the fact that the products contain this process and the identifying these companies but they would all be companies associated with ts at eureka from another exposure that she had when she works there namely the parties to scouts who work in this part of the plant called area w which we don't know a lot about  it was an area of the plant that was associated with the federal government and they used as best this paper that was in the shape of disks like circles shaped as best as paper for fuses mates and that was one of the areas of the plant was used for that and that was one of the she testify she worked throughout the facility but that was one of the jobs that she had there in the third entered in order denying spring motion on that point and said you cannot introduce that evidence at trial because you have no witness who will offer any testimony that the so proximate cause of  purchasing is is this exposure in the area w and otherwise bayside basic toward principles the fact that you had another exposure is not relevant it's no defense that's consistent with that key that's consistent with i it has to be a sort of proximate cause defense you have to have some testimony or some evidence that you are responsible for this entry because this other exposure is the sole proximate cause of that injury and plane that had a similar motion and then they also based on no way in which the court allowed saying you can't introduce the advocates of this exposure under no it so prior to trial the court ruled that the parties could talk about the manufacturers whose products the opening statement counsel for spying violated the court's order and then the day and specifically told the jury and opening statement podium in front of the jury during opening statement after the plaintiff had already given their opening statement and of course not mentioning anything about the six preacher and area w because it had bad correctly precluded by the court and i objected and the jury was taken out they were taken out for proximately thirty minutes while the parties argued about whether or not the order had been violated and whether or not in my opening i had somehow opened the door in the trial court rules unequivocally that nothing that i had done in my opening opened the door and further if it had the correct procedure would be to approach the court and to say i think this story has been opened rather than below this order eliminate all of the roger during the opening statement and the court said what relief do you want and i asked for some time to think about it because another unusual circumstance we had in this case was that mistrial would actually have benefited the defense in this case because the defense experts had not then videotapes and defense counsel could not persuade them to come to the claim county to testify in this case and they had actually filed a motion to continue which had been denied which is also in their record in their recent ride but the corner and i argued to the clerk that  which would be the typical relief would actually benefit the party that had engaged in the misconduct in this case because if the trial was moved back in time that would give them an opportunity to secure the testimony which the court had proceeded with them not having and they would actually benefit from their own misconduct further our expert was already en route from philadelphia and w available the next week to testify so i asked the court to enter and order to fact things franklin on the issue of exposure and causation essentially finding that plaintiff was exposed to as frank brent's products and that was the cause of as best ptosis i think it's important to know in this case the severity of this violation of the order and women day this was a case where there were no defense experts the testimony was completely one sided as to the fact that carole had asbestosis i had a  b reader come in who testified that she had asbestosis she testified that she was damaged and that she suffered damage and she talked about having to have her sister move in with her and care for her and shortness of breath and that defense counsel's misconduct that carol had this other exposure and that that was the core issue and the most significant issue in the case default judgment and go to trial only on the issue of damages in my peers trial motion i asked the court for a new trial and it's not the same really if i'm seeking here which would be a new trial where these witnesses would not be permitted to testify suit because i didn't want to have i i would not have been able to proceed the following week to trial because my expert was on the available that week  basically we would have had just you know started it would be the equivalent of a mistrial where we would scratch and start over and again if that was if they were permitted to bring their experts at a mistrial i would have to look at the transcript exactly but i think i argued consistently that they shouldn't benefit from their misconduct in fact i took the position that sprint men had intentionally tried to get a mistrial  based on what i observed occurring in the room and the intentionality of the remarks and i would just point out for the for i know is frankly in their briefs of the curve made a reference to i believe you that it's unintentional that was as to my allegation that they were trying for the mistrial there was absolutely no testimony or evidence or representation ever that this violation of this order was anything but intentional trial and its end of the pretrial motion transcript to everybody was on the same page the order was very specific the violation was clear that the cleared found there was a clear violation and so we get to the issue of prejudice which i've already touched on counsel gets up and says hey here's this you know you're an aide here's this dynamite abbot is that's directly on point that you haven't heard from plaintiff's counsel and in that case the court said even just trying to introduce the advocates that way is grounds for a mistrial because it hurts the plaintiffs credibility and in this case my credibility was hurt on the very issue that the case was going to revolve on because i stood before the never told about that also that case talks about causing undue attention by objecting i objected i have to a hex i objected that the jury was taken out for thirty minutes rate at that moment when that prejudicial testimony that side that prejudicial remark was made they then sat you know for about a half hour right after that happened they came back and defense counsel was like nothing further there and then they were sent home for the was a limiting instruction however this court has has indicated on multiple occasions and we cite the cases that sometimes limiting instructions are not enough and i think you have to look at the the gravity correct the error it wasn't sufficient because of what occurred the second basis that i am asking for a new trial is because once we started the trial  harmful effects of exposure to asbestos and he talked about a date in the nineteen eighties and he said that that's when i would ship him out and that was relevant because one of our allegations in the complaint was about failure to warn and failure to tell people about the hazards of as a process and the fact that they knew and they had claims going back to the one nine hundred fifty s it was all sort of tied together with him also destroying the records the way he testified he learned about the hazards of as fast as he learned about he was trying to buy the company and he ordered the destruction of all the records all at the same time i asked him when he was on the stand that he thought he could be off when he testified about ten years or something like that because he said i might be off by a year or two and i said you think you could be out by ten years and he's like no no i could not and then and he was hostile adverse witness apparent from the transcript and then we had a parade and the way judge the judges do it is when you're on break the juries excuse they go back to the jury room and the parties are free to go you know to the restroom to drink  into the side room to get a drink with after we come back then and i start questioning mr summers again and he volunteers to me when i was asking him about a bait meant that by the way i think i was wrong came in for force in one nine hundred seventy two and i thought it was odd that he had volunteered that especially since he had just testified he couldn't be off by that number of years and so i was asking him what happened at the break to make him change testimony and of course he that admitted that he had conference with counsel in the side room during the break and that that had caused him to change his testimony and the clerks at this time and this isn't my brief five page twenty one the curve found that the conversation had impacted his testimony i'm reading from page twenty one of my brief the court said certainly from the court's view that conversation took your hand to the fact that he might be wrong because there was a comment made for him to think about it and that's what he said that he was told and she said that has led him to change his testimony and we took the break again at the end of the day to go back and research it and i can't find a civil case where this has happened before but i did find a criminal case where the pendleton case where the court said you can't talk to a witness unless there is a legitimate need for it and certainly this was not a legitimate need as a court noted because witness to change his testimony get impacted his testimony and i might just be a better researchers and there is a case out there but this is the first one i've seen in a civil situation where this has happened and i couldn't find anything to present to the trial you know where someone had this this sexual scenario had happened in criminal case of course the defendant got off as a result of this inappropriate conversation and they just didn't retry the defendant it was that's how they handle it in the criminal scenario but again in the civil case i asked the court for relief and the court the next day said ted she wasn't going to give me any relief so that was the second basis but i believe i'm entitled to a new trial carol holloway's entitled to a new trial is because of the witnesses changing their testimony based upon contact they had with defense counsel during a break the third point basis directed verdict and the verdict being against them in that best way that that evidence there was no contr testimony i should have had a directed verdict on her asbestosis a had no witness says the cross examination of my expert in no way impacted his diagnosis of her disease and there was no one that said that she didn't have it there was no it was it was uncontroverted they had no case they didn't even put any witnesses i let her cross examination of my expert didn't impugn his testimony whatsoever i didn't even cross him on his  and it was just me by myself i person who is two alleged to have done the things complained of so i would like to start with the comments that were made lanced buying  is my client he was on the stand and he testified during several times during his test him and he said my memory is not good we are going back some story yet years so on during the break i did meet with him as is my wife i am his attorney i did not tell him what to say he was nervous i said just think about it that's all that's all i said basically this last thing about what you're saying when he went back on this day and he did say that he told the judge she told me to think about it there because i'm sitting deposition or trial that mr climbers had given throughout the year was one his day twirled around sometimes he said seventy two sometimes he said eighty three sometimes he said other dates i had no incentive to try insulation contractor which sold in stock insulation at commercial and industrial settings so wanted it wanted any exposures not just the products that it may have sold saab so this was the first thing during opening statements miss corner one again heading izo on which she had waited sprinkle one and i believe there's also couple things here one if you're looking at backyard to do a substantial factory task that shows cause impact you still have to get into the legal cause ation back and they say so  year so it's a two pint tabs you know constant back legal causation so if you're trying to prove so proximate cause you're trying to prove even know that it may have been someone else's spot and a known course says you don't need expert testimony to do that any competent testimony can do that i for instance any lay person would be able to know that a person who had been stuffing gre as this may have been exposed to them so offer group would that be part of an offer of proof that was judge and not even try we were i wasn't allowed to do anything like that because they just said i didn't have an expert witness to do that what's wrong with that given that there's been there was no testimony that mrs howe way ever worked in any area where they were there explain exactly why she worked all over the wire right and one of the affidavits about somebody that so if i may proceed thank you once again it gets back to the basic issue and that is this point man was not allowed to put on a defense and the supreme court and all and said the deprived of evidence critical to a cause ation determination even if this court assumes that spying man was and correct the in saying what it did during its opening statement the error was harmless because there was one sentence given at the beginning of what turned out to be five days worth  well during the period did he get his tire overlap with the period of time that she worked there we don't know that your honor there was no testimony about when  you real quickly on a couple of the other things that she said and i'll get to the last thing that the court referenced the court specifically found that there was not opened counsel was not reprimanded in front of the jury at all who worked in the plant testified about the pipe covering being damaged and forklifts heading it and things like that even carol testified about that someone had she didn't know that she was exposed to as best this entire she was diagnosed orderless it's tasteless and you can be exposed without without knowing it the proximate cause question and i want to address no lynn it doesn't say what counsel says that it says it doesn't say you don't need expert testimony on causation you always need expert testimony on causation and in fact the macdonald case which is the case that a scrape by cites in this brief that says just competent testimony is sufficient they left off the first half of the quote the first half of the sentence says that that's only in medical negligence cases and that the ruling is restricted to medical negligence cases that as to cause a show and you don't necessarily have to have expert testimony so that's the case that they cite for the proposition and they cut the sentence in half and only cite the second half of it so proximate cause an asbestos case is a way that the clear ruled in nola in the way that the trial this insulation or this other exposure that caused the maze so the only element in that instance the trial for will allow that expert to testify and that testimony will come in because that defend it with a few breaks or and while mclean they are a boiler manufacturer we have a quick manufacturers now that have the same type of experts that will say gaskets and pump manufacturers will have experts that say the gaskets contained believe should be applied and that's how it says it in nolan every reference and no link to other exposures every single run even in the quote that counsel read said in connection with the sole proximate cause defense because otherwise it's not relevant otherwise it gets us back to the i p i in long standing torah law that it's no defense that something else may have also been a cause so it's not relevant it's not admissible you can't point to another def as it was paper and there was nothing tying there is nothing tying that exposure to her disease even if their expert witnesses would have been allowed to testify and none of them know for that opinion none of them were going to say even if they came to trial that in fact what she did in area debut was a proximate cause of her injury and so the plaintiff still has the burden understaffed of proving frequency irregularity in proximity but i defended in this fast this case or in any other case under general principles of tort law it's not a defense to that that something else may also have been a cause and so it's not relevant and then well that's what the that's why it's not admissible because it's irrelevant that she was exposed to asbestos an area w unless they can somehow tie it to her disease and her diagnosis i don't know of any court that said that we just let the jury