good afternoon again my name is elliot turf and i represent the defendant keri phillips in this case and the police report and council i would like to start out arguing or even number one in our brief and that is the error in denying the defense motion to present a medical witness to testify as to the injuries involved in this case so as to express an opinion on possible placement of the of the parties inside the vehicle the time as a core knows  read the record this is case which at least from the state's perspire perspective was largely circumstantial there were no direct witnesses who testified that they saw the defendant driving and the state attempted to prove that mr hillis was driving a vehicle on the basis of circumstantial evidence and i mean we consisted of the opinion of the accident reconstructionist expert mr shit in burma who did testify as to his opinion based on certain injuries that he was aware of based on his examination case the defense sought to present the testimony of dr earnshaw who was have been a medical doctor from one nine hundred seventy four through two thousand and seven would be able to testify as to his conclusions based on the injuries sustained by the parties in the case and as of course where the hell my role of evidence seven o two indicates that if this type of expert evidence will assist the prior back to understand the evidence or determine it back to issue a witness who is off i was an expert biased knowledge skill and experience may testify in the form of an opinion or otherwise and in the  thompson vs gordon case which we cited on page twenty eight of our brief the only supreme court indicated a person will be allowed to testify as an expert of his experience office patients for him knowledge this is not common to lay accident reconstruction witness he's permitted to testify all you wish about his medical expertise and the cause of death right well at first of all i don't know that the cause of death is really at issue i mean i don't think there's any question that testimony would have been was for determining placement of the people inside the vehicle based on the injuries that were that were suffered if you fear all around or the state's accident reconstructionist was allowed to but again i think that it was a terror to not allow the testimony as to the accident reconstruction aspect of it because i his competence as a medical doctor what allowed him to make certain inferences from those injuries i think that you know not allowing him to allowing him to testify that well yes this person had these injuries but they're not to be able to base any opinion on that into really wasn't a question as to what the injuries were what was sought was testimony of you know placement we don't know this that well i think the state you know in their motion and let me to take this you know a step forward and said ok this is what we understand this guy's testimony to be and are going to do that i think that there was i  not maybe a formal offer proof in the sense of calling the doctor to the stand and objection his testimony being made taking the jury outside the courtroom and then putting an offer proof in the form of questions and answers while he was under oath god that was not do but i don't think there's any question i think anybody has any doubt as to what they expect a doctor who just testimony to be but aren't there requirements in regards from an offer group when there's a challenge  evidence that was being proffered was either appropriately barred or who the order barring was and there obviously is a i think the case law supports that that is the preferred method at least stand so you understand that the bell curve understand what evidence is supposed to be presenting here or are you satisfied based upon the arguments presented seats motion that you understand what he would be testifying to if you were proof right exactly and i mean obviously that would have been the first method and it again nobody seemed you know nobody you know the state's attorney didn't seem to have a question as to what the testimony was going to be but again that  that we were seeking fill out the trial level and i think in light of the fact that state's case circumstantial and that there are expert was allowed to give an opinion based on injuries and whatnot that that's why it should have been allowed for the state for the defense to put on similar medical evidence from their perspective with respect to argument number two that kind of segues into that  obviously a and experienced accident reconstructionist however the opinions that he gave us support notes were based largely upon his interpretation of the injuries that ha the the other the accident reconstructionist expert that was presented by the defense you know came to the opposite solutions that kind of shows how nebulous this kind of testimony would be and how if someone is going to give an opinion as to who was in a car and what position they were in a car that they need to base that opinion on facts with which they are not only comfortable with which they have knowledge and skill there was absolutely no evidence  and saying based upon what the medical people phone here my conclusions is to where people were in the cover of i think that there was no testimony that he had the requisite knowledge and question that he was testified as an accident reconstructionist but to base at least part of his opinion or as some significant amount of his opinion on it has been clues of a person's injuries when he has no medical training he didn't  his to what their injuries were he was full with their injuries were all saying that your honor is that he was taking that information saying ok here's what the injuries were and saying and therefore this had to have caused those injuries and given the nature of these injuries respond by the medical people would have they mean as far as where people were sitting in the car when i said he qualified to do that well because again i think that if he were to be an expert in how certain types of objects when they strike the body will cause certain types of injuries i think you have to have some type of medical training to do that and i know this you know his opinion was based on a number of factors but a substantial part of that was the injury sustained by the people involved now for i can see from a commonsense standpoint you know we might say ok well you know a person sustained an injury on such a side of your head or such and such side of the body they're apparently struck there b had training on that type of thing but again what what what is he going on and does he really have any expertise on that particular aspect upon which is given him that's our position and that without that medical expertise then he wouldn't be qualified to bases opinion in a substantial way on the injuries that were just received or sustained by the parties inside here as well what's your best case is to an opinion that he gave that trial that he was unqualified to express i think that looking at when he testified looking at the injuries that they had to have been caused by the body striking a certain object or certain or part of the inside the vehicle or something outside of the vehicle anything that was based on a has a trigger taishan of a particular injury i think that is where his you know his testimony was should not have been allowed because he didn't please court good afternoon again your honour's my name is john zimmerman as just a seidman fleshed out this first issue i will try to go briefly through it the first issue is regarding  this further there was no really no real need for an deaf medical analysis in this case one individual passed away in another up there they really weren't any issues regarding the injuries so why does there need to be a medical expert testified of these in depth injuries i think the injuries in this case were pretty common sense if there's an individual who is in the passenger seat and that passenger seat gets struck by a pole at sixty seventy mph and that person has parts of that hole in their head it's somewhat common sense of what occurred here and so going back to the medical expert it was defendant's burden to properly qualify their expert they could have just stated we want this expert to testify regarding the injuries in this case and the state said that's ok but instead dr i'm sorry his report was talking about protracting angles certain amount of degrees assuming highway speeds although he is a doctor the state's position is that he did not have that type of training to do those scientific formulas with that being said the trial court did not abused its discretion in denying that medical experts testified going to the second issue the state's accident reconstructionist the state properly qualified them as defense counsel noted he has years and decades of practice in this he was an expert in occupant placement and accident reconstruction and his testimony assisted the trier of fact in determining who was driving the vehicle again going back to the injuries the defendant contends that sugar murs statements where he said fatal injuries related injury patterns that one was comparatively uninjured and that a passenger would have the sense to their injuries concern constituted improper medical opinion but as your honor stated that was more of him basing the medical condition that the medical doctors examined and analyzed at the hospital about what occurred did dress serious issues and i think it even conceded that he would be able her qualified to testify regarding the medical injuries but the fact was that he was going to testify something he was unqualified so the question of all right you might proceed on the a probably has addressed several issues and the court has raised several questions that i would like to address it be notion that  somehow caused ation as to injuries is not medical testimony to me it doesn't fit the bill in this particular case doctors are always testified are always asked to testify indicates he has medical expertise and more importantly the issue he was called to testify to he never testified about and she had to show no training which is occupant placement he specifically said i have never testified to this issue he volunteered for pay to do so so the cringe additional nature of the exclusion i understand the issues with the offer proof of the medical doctor here has to be considered in light of the medical testimony test causation of mr shapiro mr sugar a provided the only medical testimony that was presented the theory and extensive medical testimony of finding that the injuries were caused by these events accordingly the passenger was placed here and offer proof aside the order from the court specifically denied the witness of the medical doctor the defendant was going to be so had the state not proper medical evidence maybe this would be less prejudicial but when the only thing presented to a jury by the state is with its causation medical testimony and that's the sole basis or the main basis of his opinion and the defense is not allowed to put a doctor on to testify or causation that concerns me and that shows the prejudicial nature of this the constitutional challenges here are of you didn't know and i understand you know the end of the day if you actually read specifically the motions the motion of women have up a medical doctor it talks about the accident reconstruction but the only thing in mr in inductors shows in court that he was going to trial work and for the council involved in the case that his testimony was going to be about causation as to injuries and what caused the injuries and so they were reading the defender the state's motion is granted motion limon it for denial of witness i could easily see how a trial counsel would based on the motions the details of the motions in the report submitted would immediately assume