>> OUR LAST CASE FOR THE DAY IS SAUNDERS VERSUS DICKENS. >> MAY IT PLEASE THE COURT, COUNSEL. I'M DOUGLAS EATON ON BEHALF OF RUBY SAUNDERS, PERSONAL REPRESENTATIVE OF THE ESTATE OF WALTER SAUNDERS. IS THAT BETTER? >> THAT IS MUCH BETTER. >> THANK YOU. YOUR HONORS, I WAS PLEASED TO SEE THAT THERE WAS A LOT OF AGREEMENT BETWEEN APPELLEE'S COUNSEL AND MYSELF IN THEIR BRIEF. THEY AGREED EWING WAS WRONGLY DECIDED. THAT SOLVES THE FIRST THING THIS COURT NEEDS TO DETERMINE. THEY AGREED WE DID NOT HAVE A BURDEN TO PROVE THAT THE SUBSEQUENT TREATER WAS NOT NEGLIGENT, WHICH INDICATES THAT THEIR BURDEN-SHIFTING ARGUMENT WAS IMPROPER. THEY AGREED THAT A PRESUMPTION WOULD BE APPROPRIATE UNDER CIRCUMSTANCES WHERE THE SUBSEQUENT TREATING PHYSICIAN WAS A FORMER DEFENDANT IN THE CASE. SO THAT SOLVES I THINK A LOT OF THE ISSUES IN THIS CASE. THE AREA WHERE WE DISAGREE IS WHETHER OR NOT THE FACT THAT EWING WAS WRONGLY DECIDED AFFECTS THIS CASE BECAUSE THEY CONTEND THAT THE PROCEDURAL POSTURE IS DIFFERENT AND THEREFORE IT IS INAPPLICABLE. ANSWER TO THAT IS VERY SIMPLE. IF IT IS AN IMPROPER STATEMENT OF LAW THE COURT CAN NOT DETERMINE AS A MATTER OF LAW THAT THE CAUSAL CHAIN IS BROKEN BY THE TESTIMONY OF THE SUBSEQUENT TREATER, THE JURY CAN'T DO THAT EITHER. >> WELL YOU, IN THIS TRIAL, DR. PASARIN, WHO HAD BEEN THE DEFENDANT BUT JURY DIDN'T KNOW THAT, HE TESTIFIED THAT HE, THAT HAD DR. DICKENS ORDERED A CERVICAL MRI AND THE RADIOGRAPHIC FINDINGS WERE IDENTICAL TO THOSE HE SAW IN SEPTEMBER, HE STILL WOULD NOT HAVE PERFORMED NECK SURGERY IF HIS EXAM DID NOT FIND UPPER EXTREMITY DYSFUNCTION. NOW, WAS IT PERMISSIBLE FOR THE DEFENSE COUNSEL TO ARGUE THAT, YES, MAYBE THE DOCTOR SHOULD HAVE ORDERED THE MRI BUT IT WAS NOT CAUSATIONWISE, IT WOULD NOT HAVE BEEN A BREACH OF ANYBODY'S STANDARD OF CARE TO PERFORM THE SURGERY AT THAT TIME? THAT WAS DISPUTED BUT IS, AND THEY ARGUED THAT OR DID THEY KIND OF SHIFT IT A BIT TO THE IMPERMISSIBLE? >> I DO UNDERSTAND YOUR QUESTION, YOUR HONOR. >> WE KNOW PASARIN, EVERYONE SEEMS TO AGREE HE WAS NEGLIGENT AND BUT THE QUESTION IS, YOU WOULD, AND EVERYONE, I THINK WOULD AGREE THAT HIS NEGLIGENCE, THE FACT THAT HE WOULDN'T DO IT, IF A REASONABLE DOCTOR WOULD HAVE DONE IT, THAT'S THE KEY BUT WHAT IS A DEFENSE LAWYER ALLOWED TO DO WITH THAT TESTIMONY FROM DR. PASARIN AS FAR AS ARGUING IN CLOSING ARGUMENT? >> I BELIEVE I UNDERSTAND YOUR QUESTION. WHAT WE'RE SAYING IS THAT THEY CAN NOT ARGUE IT IS OUR BURDEN TO PROVE THAT. BUT WE'RE SAYING IT IS AN AFFIRMATIVE DEFENSE IF THE COURT IS INCLINED TO ADMIT THIS TESTIMONY. WE GAVE THE COURT SEVERAL OPTIONS. >> BUT HERE IS THE THING. IN MUNOZ, WHICH IS A CASE THAT YOU RELY ON, JUDGE KOCH SAID THAT THE STATEMENT MADE IN MUNOZ IS IN CONFLICT WITH GOODING IN THAT YOU STILL HAVE THE DEFENSE THE PLAINTIFF STILL HAS A BURDEN OF PROVING IT STILL WOULD HAVE AN EFFECT ON THE OUTCOME. SO THE PLAINTIFF DOES HAVE TO PROVE THAT THE ORDERING OF THE, OF THE MRI WOULD HAVE LED TO A DIFFERENT RESULT, OR IT COULD HAVE, CORRECT? >> YES. >> AND SO ISN'T THAT NOT WHAT THIS ARGUING IN CLOSING ARGUMENT? >> NO, THAT'S NOT. >> OKAY. BUT YOU AGREE WITH THAT, THERE IS THAT BURDEN OF CAUSATION IS ON THE PLAINTIFF TO THE -- >> ABSOLUTELY. I SAID THAT IN MY BRIEF THAT GOODING STILL APPLIES AND WE CAN APPLY THE LAW AS IT STANDS TO THIS FACT PATTERN AND GET THE RIGHT ANSWER. WITH GOODING WE HAVE TO ESTABLISH THE NEGLIGENCE WOULD HAVE A LED A REASONABLE TREATING SURGEON TO PERFORM SURGERY GIVEN THE PROPER INFORMATION. >> RIGHT. BUT DR. PASARIN, THEY DON'T KNOW HE IS NEGLIGENT OR NOT NEGLIGENT I'M SAYING. SO HE TESTIFIES, I WOULDN'T HAVE PERFORMED THE SURGERY. >> CORRECT. >> SO WHY CAN'T THEY ARGUE THAT DR. PASARIN STILL WOULDN'T HAVE PERFORMED THE SURGERY? >> BECAUSE HIS TESTIMONY ALONE IS NOT COMPETENT. IT IS NOT MEASURED AS JUDGE KOCH SAID AGAINST THE YARDSTICK OF THE STANDARD OF CARE. THEY CAN ARGUE, YOU ASKED BEFORE, COULD THEY MAKE THIS ARGUMENT? THEY CAN MAKE IT IN REVERSE OF WHAT THEY DID. THEY SAID WE HAD TO PROVE THAT HE WOULD HAVE DONE SOMETHING DIFFERENTLY THAN HE SAID HE WOULD HAVE DONE. THAT IS NOT OUR BURDEN. ALL THESE CASES SAY THAT IS NOT OUR BURDEN. WHAT THEY CAN DO IS TAKE, AND THEY CONCEDED THIS. THEY SAID WE AGREE WE CAN'T RELY ON THAT ALONE. WE NEED A EXPERT TESTIMONY FROM THE SAME SPECIALTY PHYSICIAN TO COME IN AND TESTIFY THAT HIS TESTIMONY MEETS THE STANDARD OF CARE. IT IS THEIR AFFIRMATIVE DEFENSE. IT IS THEIR BURDEN TO PROVE THAT TESTIMONY THAT EVEN IF HE HAD RECEIVED THE INFORMATION HE SAID HE WOULD HAVE GOTTEN, WHICH IS UPPER BODY FINDINGS AND RADIOGRAPHIC FINDINGS, SO CLINICAL AND RADIOGRAPHIC FINDINGS, THAT EVEN UNDER THOSE CIRCUMSTANCES IT WOULD HAVE BEEN OKAY NOT TO OPERATE ON THE NECK. THEY NEED TO ESTABLISH THAT WITH EXPERT TESTIMONY. THEN THEY CAN ARGUE THAT AS AN AFFIRMATIVE DEFENSE. THEY CAN SAY WE PROVED THAT HIS TESTIMONY IS COMPETENT, SUPPORTED BY EXPERT TESTIMONY AND THEREFORE IT BREAKS THE CAUSAL CHAIN. >> BUT -- >> FORGIVE ME, THIS IS COMPLICATED. ISN'T IT YOUR BURDEN TO PROVE CAUSATION. >> IT IS, YOUR HONOR, AND WE DID. >> HOW DO YOU ESTABLISH THAT THE RESULT WOULD HAVE BEEN DIFFERENT IF THE CERVICAL MRI HAD, WHAT EVIDENCE DID YOU PUT ON TO SHOW THAT IT WOULD HAVE BEEN DIFFERENT? >> EXPERT TESTIMONY. IN FACT THE DEFENDANT'S EXPERT EVEN CONCEDED HAD THE SURGERY DONE EARLIER THE OUTCOME WOULD HAVE BEEN BETTER. THERE IS TESTIMONY FROM THREE SEPARATE DOCTORS IN THIS CASE THAT EARLIER INTERVENTION -- >> THAT IS A LITTLE DIFFERENT. BUT BASED ON THE CERVICAL MRI, THAT THE RESULT WOULD HAVE BEEN DIFFERENT. >> THE CERVICAL MRI, HAD IT BEEN PERFORMED WOULD HAVE SHOWN THE PROBLEM IN HIS NECK. WHICH COMBINED WITH HIS CLINICAL FINDINGS REQUIRED A REASONABLE SURGEON TO PERFORM NECK SURGERY. THAT TESTIMONY WAS IN THE RECORD BY THREE EXPERTS. THAT'S CAUSATION. THAT'S THE GOODING STANDARD. WE PROVED THAT THE TREATMENT, REASONABLE TREATMENT, HAD IT BEEN PERFORMED PROPERLY WOULD HAVE CREATED A DIFFERENCE IN THE OUTCOME HERE. THEIR ARGUMENT IT WAS OUR BURDEN TO PROVE THAT DR. PASARIN'S TESTIMONY WHEN HE SAID I WOULD NOT HAVE DONE SOMETHING DIFFERENTLY WAS FALSE. WE HAD TO PROVE AN IMPOSSIBILITY. THERE IS NO WAY TO COUNTER THAT. >> YOU'RE REFERRING TO THE ARGUMENT, BUT FOR DR. DICKENS NOT DOING THE MRI, THE MRI, DR. PASARIN WOULD HAVE OPERATED ON MR. SAUNDERS' NECK? >> CORRECT. >> THAT IS WHAT THE PLAINTIFFS CLAIM MUST BE AND IT ISN'T, DOESN'T REMOTELY COME CLOSE? >> CORRECT. OUR BURDEN IS TO PROVE WHAT A REASONABLY PRUDENT SURGEON WOULD HAVE DONE UNDER THOSE CIRCUMSTANCES AND THERE IS EVIDENCE IN THE RECORD THAT WE MET. THAT IS OUR BURDEN. THAT IS WHAT MUNOZ SAYS. THAT IS WHAT GOODING SAYS. THAT IS NOT TO DISPROVE WHAT THIS SPECIFIC TREATING PHYSICIAN WOULD HAVE DONE UNDER THESE CIRCUMSTANCES. TO PROVE A WHAT A REASONABLE PHYSICIAN WOULD HAVE DONE WHEN PROPERLY ADVISED. >> WELL YOU ALSO MAKE AN ALTERNATIVE ARGUMENT, AND THIS IS AN AREA THAT IS CONFOUNDED ME AND I THINK IT IS CONFUSED LAWYERS FOR AT LEAST 25, 30 YEARS AND THAT IS WHAT EVIDENCE CAN GO IN WITH REGARD TO, WHO HAS BEEN PREVIOUSLY BEEN A PARTY, THAT IT WOULD ADDRESS WHAT, WHAT THEIR ROLE IS AND, REALLY THE BIAS OR, OR THE TRUE STATUS? WHAT WE'RE DOING IS HIDING THE TRUTH FROM THE JURY AND, BUT AGAIN, THAT'S A DOUBLE-EDGED SWORD. A CLAIMANT DOESN'T NECESSARILY WANT SOMEONE TO KNOW THAT THEY HAVE SETTLED WITH SOMEONE ELSE IN A CASE. DEFENDANT DOESN'T -- HOW DOES THAT ALL FIT INTO THIS SCENARIO? BECAUSE YOU CAN SEE, I MEAN AS A PRACTICAL MATTER, AS A PRACTICAL MATTER, YOU CAN SEE THE ATTRACTIVENESS OF THE ARGUMENT, WELL, THE TREATING SURGEON SAID HE WOULDN'T HAVE DONE ANYTHING DIFFERENTLY. THAT IS COMPELLING, KIND OF COMMON SENSE ABSENT SEPARATE FROM THE LAW. SO, WHERE DOES THAT ALL FIT TOGETHER? HOW DOES THIS FIT TOGETHER? DO WE, SHOULD WE CHANGE BECAUSE WE HAVE AND IN SOME AREAS CHANGED WHAT IS ADMISSIBLE, WHAT'S NOT? >> WELL, IT DEPENDS ON WHAT REASON YOU'RE RENDERING IT INADMISSIBLE. IF YOU'RE GOING UNDER THE DRACKETT LINE EVER CASES THESE CASES SAY IT IS SPECULATIVE, REAFFIRMING DRACKETT. MUNOZ CALLS IT SPECULATIVE BUT CALLS IT INADMISSIBLE. BUT YOUR QUESTION RELATING TO THE SETTLEMENT IS A LITTLE DIFFERENT BECAUSE WE HAVE A STATUTE RIGHT ON POINT SAYS YOU CAN NOT DISCLOSE THIS INFORMATION. WE CAN'T GET AROUND THAT. THIS COURT WOULDN'T ELIMINATE THAT, AND THE LAW IS THE LAW. WHAT THEY PROPOSED AND WE AGREED ESSENTIALLY. THIS TESTIMONY IS INHERENTLY BIASED AND YOU CAN'T EXPOSE THE BIAS TO THE JURY. WHAT DO WE DO? WE HAVE TO TELL THE JURY THAT THERE IS PRESUMPTION THAT IT IS BIASED AND BURDEN IS ON THEM TO REBUT THAT PRESUMPTION. THAT IS THE ONLY WAY TO DEAL WITH IT BECAUSE AS IT STAND IT'S A FRAUD ON THE COURT. THAT IS THE PHRASE I USED. AGAIN I'M NOT IMPUGNING DEFENSE COUNSEL. >> NO, NO. THAT HAS BEEN USED BEFORE. >> THAT IS WHAT IT IS. YOU'RE PRESENTING TESTIMONY OF A DOCTOR, THAT HE IS A NEUTRAL PARTY WHEN HE, IN FACT HE HAD TESTIFIED OTHERWISE HE WOULD HAVE BEEN ADMITTING HIS OWN LIABILITY. >> RIGHT. >> WE CAN'T HAVE THAT. I MEAN THAT IS JUST, THIS CASE IS ESPECIALLY DIFFICULT BECAUSE WE'RE DEALING WITH A FORMER DEFENDANT, NOT JUST A SUBSEQUENT TREATING PHYSICIAN. SO -- >> AND THEN THAT, THAT IS EXACTLY THE PROBLEM WHICH I, REFERRED TO IS THAT DR. PASARIN END UP TESTIFYING THAT HE WOULDN'T HAVE DONE THE SURGERY ANYWAY AND, YOU'RE NOT CHALLENGING THE ADMISSIBILITY OF THAT TESTIMONY, AS FOR US, BUT SEEMS TO ME WHEN THAT TESTIMONY COMES IN, SOMEONE GETS TO BE ABLE TO USE IT SOME WAY? >> WELL, YOUR HONOR, WE DIDN'T, WE HAD NO BASIS TO OBJECT TO IT BELOW BECAUSE THE LAW SAYS -- >> WELL THE LAW IS MUNOZ SAID IT BUT THIS COURT HASN'T SAID IT, HAS IT? >> WE'RE IN THE FOURTH DISTRICT. MUNOZ SAID IT WAS ADMISSIBLE. AND WE DON'T HAVE ANYTHING THAT SAID IT WASN'T. >> I NEVER HEARD OF A PLAINTIFF'S LAWYER OR APPELLANT, NOT THINKING AS LONG AS THIS IS GOING UP I WILL RAISE ANY POINT THAT I THINK IS, AGAIN, JUST MUNOZ SAID IT DOESN'T MEAN THE FOURTH DISTRICT IS GOING TO SAY IT. BECAUSE THE FOURTH DISTRICT IS GOING TO SAY IT DOESN'T MEAN THIS COURT IS GOING TO SAY IT. >> WE TRIED TO PICK OUR POINTS ON THE LAW AND HERE THERE IS NO CONFLICT. >> WE HAVE THAT, AN OPINION THAT GIVES DR. PASARIN'S TESTIMONY AND NOW WHAT YOU'RE ASKING US TO SAY, THAT TESTIMONY THEY SHOULDN'T BE ABLE TO ARGUE ANYTHING WITH REGARD TO THAT TESTIMONY. >> I THINK THIS THE COURT HAS ABILITY TO CRAFT RELIEF WE'RE SEEKING HERE. >> WHY SHOULD WE? WHY SHOULD WE, IF HE HAVEN'T CHALLENGED THE UNDERLYING RELIABILITY OF DR. PASARIN'S TESTIMONY. >> IF THE COURT FINDS EWING IS WRONGLY DECIDED AND TESTIMONY CAN NOT BE DISPOSITIVE, THEN THE ISSUE BECOMES HOW DO WE IMPLEMENT THAT FOR PRACTITIONERS? >> ONE ISSUE, EWING AND THE OTHER CASES DIRECT WITH A DIRECTED VERDICT. >> BUT STA-RITE DID NOT. >> WHICH ONE? >> STA-RITE VERSUS LEVY WAS VERDICT FOR THE PLAINTIFF. THE PROCEDURAL POSTURE HERE IS NOT RELEVANT. >> SEEMS TO ME THE PROCEDURAL POSTURE IS ACTUALLY GREATLY ENHANCED BECAUSE THOSE WERE DECISIONS AS A MATTER OF LAW ON DIRECTED VERDICT OR SUMMARY JUDGMENTS. AND THAT'S THE LAW AND LAWYERS ARE NOT ALLOWED TO JURY TO ARGUE SOMETHING THAT'S NOT THE LAW. BECAUSE OF THE PROCEDURE, I THINK THAT'S A VERY MISLEADING KIND OF ARGUMENT THAT. IS TAKING THE CASES YOU HAVE TO HAVE A RED TRUCK AND A RED TRUCK BEFORE YOU CAN HAVE A CONFLICT. THIS IS A CLASSIC, CLASSIC KIND OF CASE BUT I MEAN, REALLY IT COMES DOWN TO THE REMEDY. AS I SAY BECAUSE OF THE COMMON SENSE NATURE. WHAT DO WE DO, FOR EXAMPLE, IN A HERTZ VERSUS McCLELLAN KIND OF SITUATION IF A DEFENDANT ARGUES, IT WAS THE NEGLIGENCE OF THE TREATING PHYSICIAN LATER AFTER THIS ACCIDENT AND WE'RE NOT RESPONSIBLE FOR THAT. IT IS ONLY WHEN WE KNOW WHAT HERTZ SAYS IS THAT THE DEFENDANT IS RESPONSIBLE FOR BOTH? >> RIGHT. >> IS THAT KIND OF TESTIMONY -- THIS HAPPENS OTHER AREAS, WHAT ARE WE DOING IN THAT SCENARIO? IS IT, YOU'RE SAYING WE ALLOW IT IN. >> THAT'S DIFFERENT BECAUSE HERTZ APPLIES TO INITIAL AND SUBSEQUENT TORTFEASORS AND THIS IS JOINT TORTFEASOR SITUATION. WE HAD THE ISSUE AT TRIAL COURT LEVEL AND OUR ARGUMENT, MORE OR LESS INDICATED THESE ARE TWO ACTORS CREATING A VISIBLE INJURY SO TWO TORTFEASORS. YOU HAVE TWO SEPARATE PEOPLE MAKING TWO SEPARATE INJURIES. >> YOU COULD MAKE THE SAME ARGUMENT. COMMON SENSE ARGUMENT TO ME IS I'M A DEFENDANT AND I WANT TO SAY, WELL IT IS THE NEGLIGENCE OF THAT DOCTOR THAT CAUSED ALL OF THIS. >> STUART VERSUS HERTZ AS A MATTER OF LAW -- >> IF YOU SAY EWING IS WRONG ARGUING THAT THE ACTION OF TREATING PHYSICIAN HERE IS IRRELEVANT. >> ARGUING THAT THE ACTION OF THE TREATING PHYSICIAN HERE IS IRRELEVANT? >> RIGHT. THAT'S WHAT THE DEFENDANT WANTS TO -- HE WOULD NOT HAVE, DONE ANYTHING DIFFERENTLY. THAT'S WHAT THE ARGUMENT IS. AND YOU DON'T WANT THAT ARGUMENT BECAUSE THAT'S NOT THE LAW. >> CORRECT. THAT'S NOT THE LAW IN THE THIRD AND FIFTH THAT IS THE LAW IN FOURTH. >> I UNDERSTAND. JUST SEEMS TO ME THERE ARE SEVERAL AREAS OF IN THE LAW WHERE THE COMMON SENSICAL APPROACH TO IT, THE APPROACH SEEMS TO ME THAT CAN LAWYERS ARGUE TO A JURY THAT IS NOT THE LAW IN FLORIDA AS A POSITION? >> I KNOW THEY CAN'T. ACTUALLY THE FOURTH DISTRICT OPINION IN THIS CASE SAYS THAT, SAYS THAT VERY THING. SAYS THAT YOU CAN'T, A MISSTATEMENT OF THE LAW IS BASIS FOR A NEW TRIAL. SO YOU CAN'T COME INTO THE JURY AND MAKE THE ARGUMENT THAT WE CAN RELY ON THIS TESTIMONY TO EXCULPATE OURSELVES. IF THAT IS NOT THE STATE OF THE LAW. IF I COULD TURN BRIEFLY TO THE PRESUIT ISSUE BECAUSE I THINK THIS IS AN IMPORTANT ISSUE THE FOURTH DISTRICT DID NOT GIVE SUFFICIENT ATTENTION TO. WHAT WE HAD IN THIS CASE IS AN UNDISPUTED RECORD WHERE THE DEFENDANT DID NOT PERFORM AN INVESTIGATION, DID NOT GIVE THEIR INFORMATION TO AN EXPERT. AFTER COMPLAINT HAD BEEN FILED AND 250 DAYS OF PRESUIT, UNDISPUTED. THEY ADMITTED THAT IN THE HEARING. WHAT THEIR ARGUMENT IS, AS LONG AS THEY COMPLY THE WITHIN THE STATUTE, WITHIN THE STATUTE OF LIMITATIONS THAT IS OKAY. THAT ARGUMENT THEY MAKE IS NEGLIGENCE. WE COULD FILE PRESUIT AFTER SOMEONE DIED AND THEY COULD WAIT TWO YEARS BEFORE CONDUCTING AN INVESTIGATION. THAT IS NOT WHAT THE STATUTE SAYS. STATUTE OF LIMITATIONS ARE IN DEROGATION OF COMMON LAW AND THEY ARE AGAINST PLAINTIFFS. SO WHAT THE COURT SAYS, LOOK, WE'RE NOT GOING TO TAKE AWAY PLAINTIFF'S TIME UNDER THE STATUTE OF LIMITATIONS UNDER THE MEDICAL MALPRACTICE PRESUIT SCREENING STATUTE. BUT WE'RE NOT GOING TO GIVE THE DEFENDANT MORE TIME TO DO WHAT THEY'RE SUPPOSED TO DO UNDER THE STATUTE WHICH IS CONDUCT AND INVESTIGATION AND HAVE AN EXPERT REVIEW IN THE 90 DAYS IF YOU ALLOW THEIR ARGUMENT TO STAND IT COMPLETELY GUTS THE PURPOSE OF THE STATUTE, ELIMINATES IT. THE STATUTE SAYS YOU SHALL CONDUCT AN INVESTIGATION WITHIN THIS TIME FRAME AND IT DOES NOT GIVE ANY DISCRETION TO THE TRIAL COURT TO MAKE AN DETERMINATION AS TO WHETHER OR NOT THEY HAVE NOT COMPLIED. IF YOU FIND THERE HASN'T BEEN REASONABLE INVESTIGATION CONDUCTED AND THEY ADMIT IT DID NOT OCCUR IN THE PROPER TIME. >> THEY ADMIT, HEY THERE IS NO PREJUDICE HERE. >> THERE IS NO PREJUDICE STANDARD IN THE STATUTE. >> WHY SHOULD WE NOT LOOK TO THAT? THERE IS NO PREJUDICE, NO HARM, NO FOUL. >> THE STATUTE SAYS IF THE COURT FINDS THE INVESTIGATION HAS NOT BEEN DONE IT SHALL STRIKE THE DEFENDANT'S PLEADINGS, NOT MAY, SHALL. >> WHAT DOES IT SAY WITH REGARD TO CLAIMANTS? >> SAME LANGUAGE FOR BOTH PARTIES. >> THAT'S WHAT I THOUGHT. HASN'T CASE LAW ALLOWED CLAIMANTS IF THERE IS NO HARM TO GO AHEAD AND PROCEED WITH THEIR CASE? OR HAVE WE, IS THE LAW SO FIRMLY ESTABLISHED THAT THE -- >> THE PREJUDICE, WELL FIRST OFF, I THINK THE PREJUDICE CASES THEY READ IN SOMETHING THAT IS NOT THIS STATUTE. McPHERSON CASE PREDATED THE CHANGE IN THE STATUTE. IF YOU LOOK AT THE PLAIN LANGUAGE OF THE STATUTE WHICH COURT IS REQUIRED TO DO, IT SAYS SHALL. >> BUT THERE ARE YOU DO AGREE THERE ARE SOME CASES THAT LOOK AT WHETHER SOMEBODY'S REALLY BEEN HARMED BY THE DEFAULT? >> THERE IS McPHERSON CASE AND OTHER CASES. I CONTEND THE CASES ARE ABERRATION AND THEY DON'T APPLY THE STATUTE PROPERLY. THERE IS NO, IF THERE'S A MAY IN THERE YOU CAN APPLY PREJUDICE STANDARD. IF THERE IS SHALL, SHALL IS SHALL. IF THERE IS NO INVESTIGATION YOU SHALL STRIKE THE PLEADINGS. I LIKE TO SAVE MY TWO MINUTES FOR REBUTTAL. THANK YOU. >> MAY IT PLEASE THE COURT. NANCY GREGOIRE FOR THE RESPONDENT'S WILLIS DICKENS. ON THE FIRST ARGUMENT THAT WHEN WE SUGGESTED THE COURT WAS WITHOUT JURISDICTION, WITHOUT CONFLICT JURISDICTION THE CLOSING ARGUMENT AT ISSUE HERE WAS NOT BEFORE THE COURT. IF THE COURT LOOKED CAREFULLY AT THE CLOSING ARGUMENT, THE COURT WILL NEVER FIND ANY ASSERTION, EXCUSE ME, BY DR. DICKENS' TRIAL ATTORNEY THAT IT WAS THE PLAINTIFF'S BURDEN TO PROVE NEGLIGENCE. THROUGHOUT THE CLOSING ARGUMENT HE ARGUED THAT IT WAS THE PLAINTIFF'S BURDEN TO PROVE CAUSATION AND HE HADN'T DONE IT. IT WASN'T ONLY BASED ON THE TESTIMONY OF DR. PASARIN. IT WAS BASED ON THE TESTIMONY OF ALL OF THE EXPERTS THAT THE LUMBAR MRI HAD TO BE DONE FIRST, IN JULY 2003, THE LUMBAR HAD TO BE DONE FIRST AND DR. DANIELSON TESTIFIED THAT IT WOULD HAVE MADE NO DIFFERENCE IF THE CERVICAL MRI WERE DONE FIRST BECAUSE THE PROBLEMS THAT MR. SAUNDERS WAS HAVING WERE WITH HIS LEGS AND THEY WERE CAUSED BY A LUMBAR STENOSIS. AND SO THE ARGUMENT, IN A VACUUM IS PURELY AN ARGUMENT ALLOWED IN FLORIDA LAW. THAT ROLLS FORWARD TO THE TESTIMONY OF DR. PASARIN AND I THINK THAT'S THE COURT'S CONCERN. THE COURT'S CONCERN IS, CAN A SETTLING DEFENDANT, WHO SETTLED IN A MED MAL CASE AS IN THIS ONE, TESTIFY TO WHAT HE WOULD OR WOULD NOT HAVE DONE WITHOUT ALLOWING A JURY TO HEAR THAT THIS DEFENDANT HAS SETTLED? THE PROBLEM WITH THAT IS IT DOESN'T MATTER IF PASARIN WAS RIGHT OR WRONG IN HIS DECISION. IT DOESN'T MATTER WHETHER HE WAS NEGLIGENT OR NOT NEGLIGENT IN FAILING TO PERFORM A CERVICAL MRI. ALL THAT MATTERS IS WHAT HE SAYS IS, HE WOULD NOT HAVE DONE IT. THERE WAS NO CHALLENGE TO THAT TESTIMONY AND I THINK THAT'S CENTRAL TO WHAT THE COURT DOES GOING FORWARD. IF THE COURT FINDS THIS A PROBLEM AND I THINK JUSTICE LEWIS IS CONCERNED THAT THIS IS A PROBLEM, THIS SETTLING DEFENDANT ISSUE, THEN UPON PROPER OBJECTION AND UPON TRIAL COURT'S DISCRETION, THEN MAYBE THERE SHOULD BE SOME SORT OF AN INSTRUCTION. BUT THAT IS NOT THIS CASE. THIS CASE DOESN'T HAVE THOSE THINGS BECAUSE THERE WASN'T A SORT OF OBJECTION. AND THERE IS NO CASE IN FLORIDA THAT SAYS A SUBSEQUENT TREATING PHYSICIAN CAN NOT TESTIFY. AND AS FAR AS HE WOULD OR WOULDN'T HAVE DONE. THAT'S, YOU KNOW, THE CASES THAT TALK ABOUT SPECULATION, THE PRODUCTS LIABILITY CASES, DRACKETT VERSUS BLUE, IF I READ THOSE INSTRUCTIONS I WOULDN'T LET MY CHILD DRINK THE LYE. JUDGE COPELAND SAID IN THE CONCURRING OPINION, THIS IS A MEDICAL MALPRACTICE CASE. IN EVERY MEDICAL MALPRACTICE CASE EVERY PARTY PRESENTS THE TESTIMONY AND THE OPINIONS OF EVERY EXPERT ON WHAT WOULD OR WOULD NOT HAVE HAPPENED UNDER A CERTAIN SET OF SPECIFIC DETAILS. THAT'S, THAT'S WHAT HAPPENED HERE. >> THEN IT SEEMS THAT YOUR FIRST CONCERN, I MEAN I UNDERSTAND YOU'RE TALKING ABOUT JURISDICTION, BUT WOULD BE THE STATEMENTS THAT THE MAJORITY ADOPTED THAT SAYS, ONLY SPECULATION CAN SUPPORT THE ASSUMPTION THAT AN ADEQUATE WARNING PROPERLY COMMUNICATED WOULD NOT HAVE INFLUENCED THE CAUSE OF CONDUCT ADOPTED BY A PHYSICIAN. WHAT THE DOCTOR MIGHT OR MIGHT NOT HAVE DONE HAD HE ALREADY, HAD HE ADEQUATELY BEEN WARNED IS NOT AN ELEMENT PLAINTIFF MUST PROVE AS PART OF ITS CASE. ARE YOU DISAGREEING WITH THAT STATEMENT OF THE LAW? >> PLAINTIFF HAS TO PROVE CAUSATION. >> BUT, AND THEY, WE ALL AGREE TO THAT BUT THE ISSUE OF WHAT THE TREATING DOCTOR WOULD OR WOULD NOT HAVE DONE IS NOT PART OF THE PLAINTIFF'S BURDEN, CORRECT? >> CORRECT. >> OKAY. SO, WHAT I, AS I UNDERSTOOD THE ARGUMENT OF WHAT WAS IMPERMISSIBLE THAT WAS DONE IS IS THEY ARGUED IN THEIR CLOSING ARGUMENT THAT THEY HAD TO PROVE THAT DR. PASARIN WOULD STILL HAVE, WOULD HAVE OPERATED IF HE HAD THE CERVICAL MRI. THEY OBJECTED TIMELY AS THAT BEING A MISSTATEMENT OF THE LAW AND THE JUDGE OVERRULED IT. SO WHY, THAT TO ME IS THE CONFLICT WITH MUNOZ. >> THEY ARGUED THAT THEY WERE BEING FORCED TO PROVE THAT DR. PASARIN WAS NEGLIGENT, NOT WHAT HE WOULD OR WOULD NOT HAVE DONE BECAUSE THERE WAS TESTIMONY FROM ALL OF THE EXPERTS ABOUT WHETHER DR. PASARIN SHOULD OR SHOULD NOT HAVE PERFORMED THE CERVICAL MRI. AND THE DEFENSE EXPERTS SAID NO. SO IT WASN'T THAT -- >> SO YOU DON'T THINK STATEMENT OF THE LAW, REPORTED IN THE FOURTH DISTRICT OPINION, DEFENSE COUNSEL ARGUED THAT PLAINTIFF NEEDED TO PROVE BUT FOR DR. DICKENS NOT DOING THE MRI, THE NECK MRI, DR. PASARIN WOULD HAVE OPERATED ON MR. SAUNDERS NECK? THAT IS WHAT THEY CLAIM IT MUST BEEN AND HASN'T COME CLOSE, THERE IS NOTHING WRONG WITH THAT ARGUMENT? >> THAT'S RIGHT. BECAUSE IT IS NOT SHIFTING THE BURDEN TO THEM TO PROVE NEGLIGENCE. IT IS SHIFTING THE BURDEN TO THEM TO PROVE THE CAUSATIVE LINK. DR. -- >> AGAIN, YOU'RE, SEEMS TO ME, MOST RESPECTFULLY YOU'RE DODGING THE ISSUE BECAUSE THE COURT BELOW, I MEAN VERY CLEARLY SAYS THAT DR. DICKENS, THAT'S THE DEFENDANT, ARGUED THAT THE PLAINTIFFS FAILED TO PRESENT TESTIMONY THAT HE WOULD HAVE DONE ANYTHING DIFFERENT THAN DR. PASARIN. RATHER THEY ARGUE THAT THE PLAINTIFFS FAILED TO PRESENT EVIDENCE IN LIGHT OF DR. PASARIN'S TESTIMONY THAT EVEN IF HE HAD ORDERED IT HE WOULD NOT HAVE DONE SURGERY. THAT IS EXACTLY WHAT THE COURT BELOW IS SAYING RESPECTFULLY. >> AND LATER IN THE SAME OPINION, IT SAYS, WE DISAGREE THAT DR. DICKENS MADE ANY IMPERMISSIBLE BURDEN SHIFTING ARGUMENT ON DR. PASARIN'S ANYONES WHEN THEY ARGUE PLAINTIFFS FAILED TO PRESENT TESTIMONY FROM ANY NEUROSURGEON THAT HE WOULD HAVE DONE ANYTHING DIFFERENT THAN DR. PASARIN. >> RIGHT. THE STANDARD IS NOT WHAT WOULD HAVE BEEN DONE DIFFERENT FROM DR. PASARIN. IT IS WHAT A REASONABLE PHYSICIAN WOULD HAVE DONE, A SURGEON. >> EXCEPT THAT WAS THE ARGUMENT MADE BY DR. DICKENS TRIAL COUNSEL AT TRIAL. ANY REASONABLE NEUROSURGEON. >> THAT IS NOT WHAT, I JUST READ DIRECTLY FROM THE OPINION AND THAT'S NOT WHAT THIS OPINION SAYS. >> I KNOW, YOUR HONOR. I UNDERSTAND THAT'S WHAT THE OPINION SAYS. >> WELL THIS IS, WE'RE DEALING WITH THE FACE OF THE OPINION AND LOOKING TO, MAYBE WE DO NEED TO GO BACK INTO A LITTLE MORE DETAIL INTO A CLOSING ARGUMENT BUT WE'RE LOOKING AT WHAT THE DISTRICT COURT DECIDED. >> CORRECT. AND THAT'S WHY AND I ARGUED IN MY MERITS BRIEF I WAS KIND OF HAMPERED IN MY JURISDICTIONAL BRIEF BECAUSE THERE WAS LANGUAGE IN THIS, IN SAUNDERS, AND UNFORTUNATELY, IN EWING, THAT, YOU KNOW, EWING SHOULDN'T HAVE BEEN DECIDED AS A MATTER OF LAW PROBABLY. THAT'S WHAT MUNOZ SAYS. THAT IS WHAT GOOLSBY SAYS, BUT THIS WASN'T -- >> THE PROBLEM IS THE FOURTH DISTRICT SPECIFICALLY SAYS THAT TWO OF OUR SISTER COURTS HAVE REJECTED THE REASONING OF EWING AND SAID WE DISAGREE WITH EWING IF IT MEANS THE NEGLIGENT FAILURE TO DIAGNOSE THE CONDITION CAN NOT BE THE CAUSE OF DAMAGES IF A SUBSEQUENT TREATER TESTIFIES HE WOULD HAVE SHRUGGED OFF THE CORRECT DIAGNOSIS. THEY FOLLOW TO SAY THAT'S WHY IN THIS CASE THE ARGUMENT WAS PROPER AND I THINK THAT'S WHERE -- GOING BACK TO HOW WE RESOLVE IT IS ONE THING, BUT WHY THERE IS A CONFLICT BECAUSE YOU CAN'T READ THIS OPINION AND THINK THAT THEY HAVEN'T REJECTED MUNOZ AND THE FIFTH DISTRICT CASE BASED ON EWING? >> FOCUS ON THE WORD, CAN NOT. MAY NOT IS ONE THING BUT CAN NOT -- >> HERE'S THE ISSUE. TO ME THERE IS APPARENT CONFLICT AND THERE IS AN ISSUE THAT IS CONCERNS WHAT THE SCOPE OF ARGUMENT. IT MAY BE WE GET INTO IT AND SEE THE WHOLE ARGUMENT AND FIND THAT PARTS OF IT WERE PERFECTLY PROPER. THIS PART WAS IMPROPER BUT IT IS HARMLESS BUT AT LEAST, YOU HAVE IT LAID OUT AS TO WHAT IS THE PERMISSIBLE SCOPE OF ARGUMENT IN A CASE LIKE THIS. >> IN THIS PARTICULAR CASE -- >> I KNOW I'M NOT GOING TO GET YOU TO AGREE IT WOULD BE BETTER FOR TO YOU TAKE JURISDICTION. >> AND LOSE. >> YOU MIGHT NOT. YOU MAY WIN ON HARMLESS ERROR. YOU MAY WIN ON THAT BASIS. >> IN THIS PARTICULAR CASE, IF YOU HAD BEFORE YOU A SET OF FACTS WHERE ONLY SUBSEQUENT TREATING PHYSICIAN HAVING SETTLED OUT TESTIFIED, THEN I CAN UNDERSTAND WERE THERE WOULD BE THIS OVERWHELMING CONCERN BUT IN THIS PARTICULAR CASE THERE WAS SUBSTANTIAL COMPETENT TESTIMONY FROM OTHER EXPERTS SAYING, WHAT DR. PASARIN DECIDED TO DO WAS CORRECT. WHAT DR. DICKENS DECIDED TO DO WAS CORRECT. THE ISSUE WITH MUNOZ AND GOOLSBY AND EWING IS, CAN YOU DO THIS AS A MATTER OF LAW? AND IF YOU LOOK CAREFULLY, AT, FOR INSTANCE, JUDGE SCHWARTZ'S OPINION, HE SAYS THIS IS A CLASSIC JURY ISSUE. WELL THIS WAS A CLASSIC JURY CASE. IT ALL WENT TO THE JURY. >> I DON'T THINK ANYBODY'S DISAGREEING THAT IT IS NOT, NOBODY IS SUGGESTING THAT A DIRECTED VERDICT BE GRANTED IN THE PLAINTIFF'S FAVOR. >> EWING DID IT. THAT IS THE PROBLEM. >> NO, IN THE PLAINTIFF'S FAVOR, RATHER THAN THE DEFENDANT'S FAVOR. I JUST THINK THAT THE PROBLEM COMES MAYBE IN WHAT, AND JUSTICE LEWIS HAS KIND OF PUT THE FOCUS ON THIS. IS, YOU ALLOW THIS TESTIMONY IN THAT THIS DOCTOR SAYS I WOULDN'T HAVE DONE ANYTHING AND THEN THEY HIGHLIGHT IT IN CLOSING SAYING, LOOK, THE GUY THAT TREATED THIS PERSON SAID HE WOULDN'T HAVE DONE ANYTHING DIFFERENTLY. THEY HAVE GOT TO PROVE THAT HE WOULD HAVE DONE SOMETHING DIFFERENTLY. THAT IS WHERE I THINK THE ARGUMENT BECOMES IMPROPER UNDER THE HOLDINGS OF THE THIRD AND THE FIFTH DISTRICT. >> THAT IS WHERE I CONCEDED, DIDN'T CONCEDE EWING WAS WRONG. JUDGE KLEIN SUGGESTED THAT EWING WAS IMPROPERLY DECIDED AND I SUGGESTED THAT THE BASIS IT WAS DECIDED AS A MATTER OF LAW BUT THAT IS WHY I CONCEDED IN THIS SPECIFIC CASE I WAS CONCERNED TOO. I WAS WITH THE TRIAL ATTORNEY, WHAT DO YOU DO WITH THIS SETTLING DEFENDANT DOCTOR? THERE IS THIS INHERENT QUESTION ABOUT, SHOULDN'T THE JURY KNOW? AND THEY CAN'T KNOW THAT HE SETTLED BECAUSE THE LAW SAYS THEY CAN'T KNOW. SO THERE SHOULD BE SOMETHING, SOMETHING. ON PROPER OBJECTION, IN A CASE WHERE THAT IS THE ONLY TESTIMONY I AGREE, THAT COULD BE INAPPROPRIATE PLACE TO CRAFT SOME KIND OF A RELIEF FOR THE PLAINTIFF BUT THAT IS NOT THIS CASE. I STILL THINK THAT THIS CASE IS NOT A CASE WHERE THAT THE COURT HAS JURISDICTION AND I WOULD LIKE TO MOVE TO THE SECOND. IN ORDER FOR THE COURT TO DECIDE THAT THE TRIAL COURT ABUSED ITS DISCRETION, AND BY THE WAY I STAND ON MY GUNS THAT IT IS AN ABUSE OF DISCRETION STANDARD, THE COURT HAS TO READ OUT OF THE APPROPRIATE CONTROLLING AUTHORITIES THE WORDS, IF THE COURT FINDS. BECAUSE HERE IT WAS THE JUDGE IN THE FOURTH DISTRICT WHO SAID I DON'T FIND THIS IS A CASE WHERE THIS, THIS WAS A FAILURE TO COMPLY WITH PRETRIAL. AND IF YOU LOOK AT THE TIMINGS, I THINK THERE IS ALMOST BEEN A CONCESSION NOW THAT WE DID COMPLY WITHIN THE STATUTE OF LIMITATIONS. >> BUT IT WAS AFTER THE LEGAL ACTION HAD BEEN FILED? >> AND IT WAS AFTER THE LEGAL ACTION HAD BEEN FILED, RIGHT. >> ALL RIGHT. >> AND OUR POSITION -- >> SO YOU DON'T HAVE TECHNICAL COMPLIANCE WITH THE STATUTORY TIME PERIODS? >> NO, WE HAVE TECHNICAL COMPLIANCE. THE QUESTION IS WHETHER THE TECHNICAL COMPLIANCE APPLIES TO A DEFENDANT OR ONLY TO A PLAINTIFF BECAUSE THERE WERE, THE STATUTE OF LIMITATION WAS TWO YEARS, WHICH TOOK THIS OUT TO I THINK, FOUR, I FORGET THE TIME PERIODS BUT THEN THERE WERE TWO 90-DAY EXTENSIONS, WHICH TOOK THIS OUT TO BEYOND MAY OF 06. SO IT WAS, SO IF YOU ADD THOSE TWO STATUTORY EXTENSIONS TO THE TIME THE DEFENDANT HAS TO COMPLY WHICH YOU ALWAYS HAVE DONE WITH THE TIME THE PLAINTIFF HAS TO COMPLY THEN WE'RE WITHIN OUR TIME FRAME. QUESTIONS ARE TWO. NUMBER ONE, DOES THE DEFENDANT HAS THE SAME RIGHTS UNDER THE STATUTE THAT THE PLAINTIFF DOES, DUE PROCESS? AND NUMBER TWO, CAN A PLAINTIFF CUT OFF THOSE TIME PERIODS BY PREMATURELY FILING SUIT? I THINK THE ANSWER FIRST HAS TO BE YES, THE ANSWER TO THE SECOND HAS TO BE NO. AND THEN -- >> I WAS UNDER THE IMPRESSION THAT THERE WAS A COMPLIANCE BY THE CLAIMANT WITH THE STATUTE TO PROVIDE THE NOTICE OF OUR CLAIM BUT THEN, I MEAN I'M SENSING AN ARGUMENT THAT THE DEFENDANT JUST IGNORES IT UNTIL AFTER THE TIME PERIOD FOR RESPONSE HAS EXPIRED, AND THE LEGAL ACTION HAS BEEN FILED? >> WELL, THAT'S -- >> IS THAT INCORRECT? >> I THINK, I THINK YOUR CONCERN IS THE WHOLE X-RAY SITUATION. >> YEAH. >> YES. IF YOU LOOK AT THE CHRONOLOGY, WHAT YOU WILL SEE IS, THAT THERE WERE NOTICES TO THE, AND I HAD THE CHRONOLOGY HERE A SECOND AGO, THERE WERE NOTICES TO, THE ADJUSTER, CAMBRIDGE'S ADJUSTER AND THE RESPONSE TO THOSE NOTICES WERE, I'M CURRENTLY OUT OF THE OFFICE, I'M CURRENTLY OUT OF THE OFFICE, I'M CURRENTLY OUT OF THE OFFICE. THERE WAS NEVER ACKNOWLEDGEMENT FROM THE ADJUSTER THAT SHE KNEW THE X-RAYS WERE AT BLACKS READY TO BE COPIED AND READY TO BE PICKED UP. THAT WAS TRUE THROUGH THE TIME OF I THINK MAY WHEN THE TRIAL ATTORNEY TOOK OVER, PICKED UP THE X-RAYS, AND WITHIN 30 DAYS OF PICKING UP THE X-RAYS, COMPLIED WITH THE PRESUIT OBLIGATIONS OF THE DEFENDANT. AND THAT WAS THE 30-DAYS THAT THE ADJUSTER HAD ORIGINALLY ASKED FOR, COULD I HAVE 30 DAYS UNTIL AFTER I PICK UP? WE DON'T KNOW WHAT HAPPENED WITH THE ADJUSTER. I DON'T KNOW WHAT HAPPENED WITH THE ADJUSTER. ALL I KNOW IS THE ADJUSTER NEVER RESPONDED TO THOSE EMAILS. THERE IS NO EVIDENCE THAT THE ADJUSTER GOT A TELEPHONE CALL. NOBODY KNOWS WHY THAT BLACK HOLE OF NON-RESPONSE HAPPENED BUT THAT'S THE REASON THAT THERE WAS A FACTUAL ISSUE HERE ON, WHAT HAPPENED, WHO DROPPED THE BALL AND WHY. BUT TRIAL COUNSEL PICKED UP THE BALL AND WITHIN THE 30 DAYS THAT THE ADJUSTER ASKED FOR OF PICKING UP THE X-RAYS HE FILES HIS PRESUIT COMPLIANCE. I THINK UNDER THOSE, YOU KNOW THERE ARE TWO ISSUES. THE FIRST IS, DOES THE DEFENDANT GET THE TIME PERIOD? I AGREE. THAT'S A DENOVO STANDARD. IF THE STATUTES DON'T APPLY TO THE DEFENDANTS AND ONLY APPLY TO THE PLAINTIFFS, WELL THAT IS THE COURT'S JOB TO DECIDE AS A MATTER OF LAW BUT THE SECOND IS THIS FACTUAL ISSUE, DID THE DEFENDANT MAKE A GOOD-FAITH EFFORT TO COMPLY? WE DON'T KNOW WHAT HAPPENED TO THE ADJUSTER. I DON'T EVEN KNOW OUTSIDE THE RECORD WHAT HAPPENED TO THE ADJUSTER. >> SO, ON THIS ABUSE OF DISCRETION STANDARD, WHICH I GUESS WE APPLY IN STRIKING PLEADINGS BECAUSE THAT WAS WHAT WAS BEING SOUGHT, HOW, WHAT WAS THE BASIS FOR THE TRIAL COURT'S FINDINGS THE NON-COMPLIANCE IS EXCUSED AND NO SANCTIONS ARE APPROPRIATE? WHAT RECORD DO WE HAVE TO GOVERN HOW THE DISCRETION WAS EXERCISED? >> ONLY ARGUMENTS OF COUNSEL. AND THE EVIDENCE IN THE RECORD. THE EVIDENCE OF WAS OF THIS CHRONOLOGY AND OF THE -- >> I THOUGHT WHAT THE JUDGE SAID THERE IS NO GUIDANCE EVEN WHAT SANCTIONS SHOULD BE GIVEN, RIGHT? I MEAN -- >> WELL, THE RECORD SHOWS THAT LOTS OF SANCTIONS WERE ASKED FOR AND IT WAS -- >> I GUESS CASE LAW HAS NOT ESTABLISHED. WE DON'T HAVE, HERE'S LIKE, IF SOMEONE DOESN'T RESPOND TO DISCOVERY, I MEAN THERE'S LOTS OF CASES WHAT HAPPENS, FIRST, SECOND, BEFORE YOUR HEAD GETS CHOPPED OFF. GOT THAT. WE HAVE NO GUIDANCE ON THAT. SO WE HAVE NOTHING TO GUIDE A JUDGE'S DISCRETION. >> THERE IS, THERE IS GUIDANCE. THERE IS GUIDANCE. YOU MEAN IN THE PRESUIT CONTEXT? >> I MEAN FOR THE DEFENDANT'S? >> OKAY. >> LOTS FOR THE PLAINTIFF BUT -- >> I AGREE BUT I AGREE AND IT WOULD BE, THESE ARE THE REASONS THESE THINGS COME TO THE SUPREME COURT BECAUSE EVERYONE FROM RESPECTFULLY YOU ALL BELOW NEED SOME GUIDANCE AND THAT'S, I WISH PIP WOULD COME UP HERE BECAUSE WE COULD USE SOME GUIDANCE ALSO. YES, IT WOULD BE VERY NICE TO KNOW WHAT HAPPENS WHEN A DEFENDANT ALLEGEDLY DOESN'T COMPLY. IN THIS CASE I THINK, I THINK THERE IS NO BASIS ON WHICH YOU CAN FIND AN ABUSE OF DISCRETION. THAT IS THE STANDARD TO THE FACTUAL QUESTIONS. AS FAR AS THE STATUTORY ISSUE, THAT'S, OUR POSITION IS IT WOULD BE A VIOLATION OF DUE PROCESS NOT TO EXTEND THE SAME STATUTORY TIME FRAMES TO THE DEFENDANT, THAT YOU DO TO THE PLAINTIFF UNDER THE STATUTES BUT THAT'S FOR THIS COURT'S DECISION. IF THE COURT HAS NO FURTHER QUESTIONS, WE RESPECTFULLY REQUEST THAT, IF THE COURT FINDS A CONFLICT THEN, THEN IT'S APPROPRIATE TO DEAL WITH THE SETTLING DEFENDANT'S TESTIMONY BUT THAT THIS IS NOT THE CASE IN WHICH THE FOURTH DISTRICT'S OPINION SHOULD BE QUASHED FOR THAT REASON. THE FOURTH DISTRICT DID THE RIGHT THING IN THE CONTEXT OF THE FACTS OF THIS CASE. AND AS FAR AS THE STATUTE OF LIMITATIONS ISSUE AND PRESUIT COMPLIANCE, I THINK GUIDANCE THERE WOULD ALSO BE VERY WELCOME BY THE LOWER COURTS. THANK YOU, YOUR HONORS. >> THANK YOU, REBUTTAL? >> JUST WANT TO CLEAR UP SOME BRIEF CONFUSION ON THE CAUSATION VERSUS NEGLIGENCE ARGUMENTS. THERE WERE TWO, WE REALIZED TWO IMPROPER CLOSING ARGUMENTS. IMPROPER EWING ARGUMENT WHICH IS CAUSATION. THE SECOND IS BURDEN SHIFTING ARGUMENT WHICH IS ON PAGE 40 OF OUR INITIAL BRIEF. WE EXCERPTED EVERY PLACE WHERE THEY BASICALLY FELT WE DIDN'T PUT EVIDENCE ON. NEUROSURGEONS DIDN'T GIVE WITNESS TESTIMONY TO OUR NEUROSURGEONS ESSENTIALLY ARGUING, IMPLYING WE HAD A BURDEN TO PROVE SOMETHING WE DID NOT HAVE TO PROVE. THAT THE NEUROSURGEON WAS ALSO NEGLIGENT. HE SAID, THEY SAID IN OPENING, THAT DR. PASARIN WAS ALSO NEGLIGENT BUT THEY DIDN'T PUT ANY EVIDENCE ON OF THAT. THAT IS THE BURDEN SHIFTING ARGUMENT ON NEGLIGENCE. THAT IS THE SECOND IMPROPER ARGUMENT AND THAT IS THE SECOND QUOTE MISS GREGOIRE QUOTED FROM THE FOURTH DISTRICT OPINION THAT WAS NOT DEALING WITH THE EWING ARGUMENT, THAT WAS DEALING WITH THIS IMPROPER BURDEN-SHIFTING ARGUMENT. THAT IS THE SECOND BASIS WE ASK FOR REVERSAL. IF YOU TIE THE TWO ARGUMENTS TOGETHER IT MAKES IT VERY DIFFICULT FOR THE JURY. WE THINK IT IS A BASIS FOR A NEW TRIAL. I WANTED TO GO BACK TO THE PRESUIT ISSUE. THE RECORD EVIDENCE IS UNDISPUTED. THAT THE, THEY HAD THE X-RAYS AS OF JANUARY 27th. THE ARGUMENT WASN'T MADE BELOW AT ANY POINT THAT, WE HAD DONE SOMETHING IMPROPER AND FAILED TO COMPLY WITH PRESUIT. THE ONLY ARGUMENT THEY MADE IN THEIR MOTION IN THEIR RESPONSE TO OUR MOTION FOR SANCTIONS AND IN FRONT OF THE JUDGE WAS THAT YEAH, WE HAD ACCESS TO THESE RECORDS BUT YOU KNOW WHAT? DOESN'T MATTER. WE COMPLIED WITH THE STATUTE OF LIMITATIONS THAT IS THE ONLY ARGUMENT THEY RAISED. THAT IS THE ONLY QUESTION BEFORE THIS COURT, IS COMPLYING WITH THIS OUTSIDE OF THE PRESUIT PERIOD BUT WITHIN THE STATUTE OF LIMITATIONS OKAY FOR DEFENDANTS? IT'S NOT. IT CAN'T BE. THIS STATUTE IS IN DEROGATION OF THE COMMON LAW. IT RESTRICTS THE RIGHTS OF PLAINTIFFS. IT DENIES ACCESS TO THE COURTS. IT IS TO BENEFIT DEFENDANTS. THEY DON'T THEN GET THE BENEFIT OF STATUTE OF LIMITATIONS AS WELL TO FULFILL THEIR RESPONSIBILITIES UNDER IT. THE PURPOSE OF THE STATUTE IS TO ACCELERATE THE PROCESS, TO FIND, IF THERE IS MERITORIOUS CLAIMS TO DO THAT WITHIN THAT 90-DAY PERIOD. IF YOU ALLOW DEFENDANTS TO DECIDE TO COMPLY WITH THE REQUIREMENTS OF AN INVESTIGATION AND EXTRA REVIEW AT ANYTIME PRIOR TO THE EXTENSION OF THE STATUTE OF LIMITATIONS YOU'RE DEFEATING PURPOSE OF STATUTE. >> YOU'RE OUT OF TIME. IF YOU WOULD SUM UP. >> THAT'S ALL, YOUR HONOR >> THANK YOU FOR YOUR ARGUMENTS. COURT IS ADJOURNED. >> ALL RISE.