[00:00:00] Speaker 03:
24-3009, Leonard versus HMG Park Manor.

[00:00:31] Speaker 03:
Mr. Steele, you may proceed.

[00:00:42] Speaker 01:
Good morning, Your Honors.

[00:00:43] Speaker 01:
My name is Jonathan Steele, and I represent the appellant, Cana Leonard, in this case.

[00:00:49] Speaker 01:
The district court's grant of summary judgment here needs to be reversed, because it is one of the very rare cases where the district court excluded expert testimony without providing notice to either side that it was going to consider the admissibility of the expert, let alone consider excluding the expert, and that the district court is wrong.

[00:01:17] Speaker 02:
Even if they had included the expert,

[00:01:20] Speaker 02:
there would be no connection between the facts as set forth and the expert's testimony.

[00:01:30] Speaker 02:
If the expert had testified that the staffing was totally wrong and you needed six people on a floor to help move people, this guy said that he was walking fast down the hall by himself when he fell down.

[00:01:47] Speaker 02:
So there's no, unless the expert was going to say,

[00:01:50] Speaker 02:
that a patient cannot be permitted to get out of his room or out of his bed by himself, then there might have been a connection, but the loop is not closed.

[00:02:04] Speaker 01:
Well, there's two versions of the story, Your Honor, one being that Mr. Doherty told EMS personnel that he was running down the hall

[00:02:14] Speaker 01:
that version of the story saying that Mr. Doherty then at the hospital was talking about his deceased wife and for that reason that version of the story should be discounted.

[00:02:27] Speaker 01:
There is lots of evidence in the record about Mr. Doherty's daughter providing testimony that she received a phone call from nursing staff that said Mr. Doherty was dropped while one person was transferring him.

[00:02:43] Speaker 03:
directed to the attention of the district court during the summary judgment proceedings?

[00:02:48] Speaker 01:
No, Your Honor, because the summary judgment proceedings, there was the only issue regarding expert testimony that was raised by the defendants at summary judgment.

[00:02:57] Speaker 01:
Well, first off, let's back up.

[00:02:59] Speaker 01:
There was a summary judgment deadline and a downward deadline.

[00:03:03] Speaker 01:
There were no downward motions filed.

[00:03:05] Speaker 01:
There's a summary judgment motion filed.

[00:03:07] Speaker 01:
And the only issue raised by the defendants in that summary judgment motion

[00:03:12] Speaker 01:
was a legal question of whether a nurse can testify regarding one version of causation, whether a nurse can testify that violations of the nursing standard of care caused the resident to hit the ground.

[00:03:28] Speaker 01:
That was the only question presented to the district court at summary judgment regarding Nurse Toss's expert testimony.

[00:03:35] Speaker 03:
I'll turn to Judge Kelly in a second.

[00:03:38] Speaker 03:
They weren't arguing lack of causation in general, lack of evidence of causation.

[00:03:42] Speaker 03:
Wasn't that the ground?

[00:03:43] Speaker 01:
So Your Honor, the headings in the defendant's motions for summary judgment talk about lack of causation.

[00:03:54] Speaker 01:
The substance of their actual arguments do not.

[00:03:58] Speaker 01:
Nowhere in their briefs do they cite to Daubert, Rule 702, Kumho, or anywhere else.

[00:04:04] Speaker 02:
You don't get to Daubert until you get

[00:04:08] Speaker 02:
And you mentioned the telephone call from somebody to the daughter that was never followed up.

[00:04:15] Speaker 02:
There was no evidence in the record from the nurse who supposedly made that call, which is hearsay at that point, to tie it to what actually happened.

[00:04:29] Speaker 02:
She said, I don't know what happened.

[00:04:30] Speaker 02:
I just have to read the notes that the nurse made.

[00:04:35] Speaker 02:
And it was not said in there.

[00:04:38] Speaker 02:
uh, that he was being lifted from one place to another.

[00:04:43] Speaker 02:
If it did, I think you'd have a good, that you would have a good shot at it.

[00:04:48] Speaker 01:
Well, your honor, uh, nurse Tosh is entitled to rely upon here, say, as an expert witness.

[00:04:55] Speaker 02:
Uh, and, um, the, uh, you didn't have an affidavit from the, from this person that made the call.

[00:05:03] Speaker 02:
Did you have an affidavit from the daughter?

[00:05:06] Speaker 01:
was that the daughter provided that testimony in her deposition.

[00:05:10] Speaker 01:
And none of this was presented to the district court.

[00:05:14] Speaker 03:
You're saying the district court didn't handle things right because it made downward rulings without notice.

[00:05:22] Speaker 03:
I don't see this as a downward issue.

[00:05:24] Speaker 03:
The court was saying, as I understand it, this woman's an expert.

[00:05:28] Speaker 03:
Everything she said, she can say as an expert.

[00:05:33] Speaker 03:
There's no causal connection shown between what the expert says were the failings of the nursing home and the accident here.

[00:05:45] Speaker 03:
That's a causation issue.

[00:05:46] Speaker 03:
That has nothing to do with Dalbert or whether the expert was qualified as an expert to testify on these things.

[00:05:53] Speaker 03:
That's saying even with this evidence, you haven't shown causation.

[00:05:57] Speaker 03:
And you might have had a better shot at it.

[00:06:01] Speaker 03:
You would have had a better shot at it.

[00:06:03] Speaker 03:
if you raised as one fact showing causation that the decedent was being lifted at the time of the accident.

[00:06:15] Speaker 03:
But that factual issue was never presented to the district court during the summary judgment proceedings.

[00:06:24] Speaker 03:
And a district court cannot be expected to search the record to find out everything that

[00:06:31] Speaker 03:
might be there to suggest summary judgment is improper.

[00:06:36] Speaker 03:
That, to me, is the gist of it.

[00:06:38] Speaker 03:
So now tell me what I'm missing.

[00:06:40] Speaker 01:
Well, in the pretrial order, Your Honor, the pretrial order in the District of Kansas supersedes all the pleadings, and it outlines all of the allegations that are being made in the case.

[00:06:49] Speaker 01:
And in the pretrial order,

[00:06:51] Speaker 01:
On page 220 is where it starts on volume one of the appendix.

[00:06:56] Speaker 01:
On page 231, it talks about Nurse Stika as one of the plaintiff's factual contentions, dropping the decedent, and then under the actual claims being put forth, is that the nursing home failed to ensure that Mr. Doherty was safely transferred from one place to another.

[00:07:13] Speaker 01:
The expert is entitled to rely upon the deposition testimony of the daughter as hearsay testimony

[00:07:21] Speaker 01:
in coming up with her conclusions that the nursing home failed to complete a comprehensive care plan that directed nursing staff to know that Mr. Doherty required a two-person transfer.

[00:07:37] Speaker 03:
But did the expert testimony say that the decedent's accident was caused by these failings?

[00:07:46] Speaker 01:
Absolutely it did.

[00:07:49] Speaker 01:
In her deposition, she says multiple times.

[00:07:52] Speaker 03:
Go ahead.

[00:07:52] Speaker 01:
In her deposition, she says multiple times.

[00:07:54] Speaker 01:
It is cited in her brief.

[00:07:55] Speaker 03:
Without explaining it, did she say, because he was dropped while being moved, we can attribute that accident to the failure to have certain safeguards on carrying people?

[00:08:12] Speaker 03:
Did she ever say that?

[00:08:13] Speaker 01:
What she did say is that her opinions were applicable whether or not Mr. Doherty was dropped.

[00:08:21] Speaker 01:
was hit the ground in some other mechanism.

[00:08:26] Speaker 03:
She said that.

[00:08:26] Speaker 03:
She said that's in her testimony.

[00:08:28] Speaker 01:
That's in her testimony.

[00:08:29] Speaker 03:
And that's testimony that was presented in opposition to the motion for summary judgment.

[00:08:34] Speaker 01:
The motion for summary judgment, Your Honor, was only asking the court for a ruling about whether or not a nurse was qualified.

[00:08:41] Speaker 01:
A nurse, not even nurse Tosh.

[00:08:44] Speaker 02:
Well, Undisputed Fact Number 33 stated that the plaintiff's expert was

[00:08:51] Speaker 02:
only designated to provide causation.

[00:08:59] Speaker 02:
And I couldn't find where the connection was as to based on what the nurse said actually happened.

[00:09:09] Speaker 01:
So are you referencing Dr. Kirby, who was the medical doctor who was only designated on causation?

[00:09:14] Speaker 02:
No, your undisputed fact number 33 was that the plaintiff's expert

[00:09:21] Speaker 01:
was only designated to provide causation.

[00:09:39] Speaker 01:
brought up the fact that nurse Tosh was only designated to render opinions regarding the standard of care and the deviations from the standard of care.

[00:09:50] Speaker 01:
I agree that a nurse under Kansas law is not allowed to opine that a fall caused a hip fracture in somebody's death.

[00:10:00] Speaker 01:
And that was one of the issues that the defendants brought up in summary judgment as their

[00:10:05] Speaker 01:
as their causal argument was that a nurse can't opine that.

[00:10:09] Speaker 01:
Nurse Tosh never opined that.

[00:10:11] Speaker 01:
Nurse Tosh said the deviations from the standard of care caused Mr. Doherty to hit the ground.

[00:10:17] Speaker 01:
Dr. Kirby, the medical physician, then comes in to close the causal link.

[00:10:23] Speaker 01:
Your Honor, I would respectfully disagree that

[00:10:29] Speaker 01:
It's the defendant's burden to raise the issues they want to raise on summary judgment.

[00:10:36] Speaker 01:
And the causal issues that they raised were only that of whether or not a nurse was legally qualified to testify about whether the deviations caused Mr. Doherty to hit the ground, not about causation

[00:10:52] Speaker 01:
on its whole.

[00:10:54] Speaker 02:
I mean, they said there was no causal evidence, but in their actual... She said she could only look at the notes that the nurse made and the known nurse said that he was being lifted and we dropped him.

[00:11:08] Speaker 02:
That was a hearsay phone call by the daughter and it was never, never backed up by depositions or affidavits.

[00:11:19] Speaker 01:
Well, it wasn't... That particular issue wasn't

[00:11:22] Speaker 01:
raised in summary judgment.

[00:11:24] Speaker 01:
And so there was no affidavits that would have been necessary.

[00:11:27] Speaker 02:
Sure it was raised.

[00:11:28] Speaker 02:
Pleadings, answers, everything on file.

[00:11:31] Speaker 02:
And the judge saw no connection.

[00:11:34] Speaker 02:
There was a break in the connection there.

[00:11:38] Speaker 01:
Well, so Nurse Tosh in her report and in her deposition says that there's evidence from the daughter that Mr. Tosh was dropped by a nurse.

[00:11:51] Speaker 01:
The daughter said that in her deposition.

[00:11:53] Speaker 01:
Nurse Tosh is entitled to rely upon that in her deposition.

[00:11:57] Speaker 01:
The question you're talking about when she says, I can't tell you exactly what the circumstances are regarding Mr. Doherty's fall, was in response to a question saying, do you know exactly how Mr. Doherty fell?

[00:12:09] Speaker 01:
And she said, no, I don't.

[00:12:11] Speaker 01:
I can only rely upon what's in the records, but I can tell you that my opinions don't change whether he was dropped or whether he got up and ran across the room and fell.

[00:12:22] Speaker 02:
Well, she was a staffing expert.

[00:12:25] Speaker 02:
so that her opinion wouldn't change.

[00:12:27] Speaker 01:
She was not a staffing expert, Your Honor.

[00:12:28] Speaker 02:
But you've got to show something other than you showed how that accident happened.

[00:12:36] Speaker 02:
You didn't do it.

[00:12:39] Speaker 01:
I would respectfully disagree with that, Your Honor.

[00:12:42] Speaker 01:
Nurse Tosh, this is exactly the case.

[00:12:49] Speaker 01:
Judge Rattle made a reliability determination as to Nurse Tosh's testimony.

[00:12:57] Speaker 04:
Well, but why is that error?

[00:12:59] Speaker 04:
We have said that in the context of evaluating expert testimony, the district court has wide discretion as to how they go about that analysis, but no discretion as to whether they do it at all.

[00:13:10] Speaker 04:
So here, when the court is faced with a motion for summary judgment, wherein they can look to the record overall to determine whether judgment is warranted,

[00:13:19] Speaker 04:
for one party, why would the court then be acting erroneously to say, well, part of what I'm evaluating are these experts, so I'm going to look to see whether I think they're reliable.

[00:13:29] Speaker 04:
Why was that error?

[00:13:30] Speaker 01:
The court committed error because this case stands on all fours with the Procter & Gamble case that Judge Kelly was a part of that panel of.

[00:13:39] Speaker 01:
In that case, it was a sanctions motion and it was not regarding the admissibility of certain expert testimony.

[00:13:47] Speaker 01:
And just like in Procter & Gamble here, we had no briefing regarding reliability.

[00:13:53] Speaker 01:
Sorry, but you said that was a sanctions motion?

[00:13:55] Speaker 01:
I believe that was a sanctions issue.

[00:13:58] Speaker 01:
It could be mistaken, but it was not.

[00:14:01] Speaker 01:
There was no briefing regarding reliability.

[00:14:03] Speaker 01:
The court cited to that.

[00:14:06] Speaker 01:
There was no request from the defendants to make a downward determination.

[00:14:10] Speaker 01:
That's exactly what happened here as well.

[00:14:13] Speaker 01:
The court was not presented with expert reports or depositions.

[00:14:18] Speaker 01:
Here, the district court had to go get the expert reports themselves.

[00:14:21] Speaker 01:
But according to the court's opinion,

[00:14:23] Speaker 01:
There's no reference to her deposition at all, which under many cases, the expert is entitled entitled to expand upon the opinions that are contained in their expert report.

[00:14:36] Speaker 01:
And there was no expert testimony that the district court ruled upon.

[00:14:41] Speaker 01:
So if you look at Dodge, Your Honor, Dodge says that one of the district court's obligations as a gatekeeper is to develop a record so that they can carefully and meticulously determine whether or not the expert testimony is admissible.

[00:15:00] Speaker 01:
And this court has said the reason that that is a requirement is so we can determine then

[00:15:05] Speaker 01:
whether or not the district court applied the law appropriately to the expert testimony.

[00:15:11] Speaker 01:
And there's no evidence here that the single paragraph that Judge Rattle gave to this issue that she carefully and meticulously reviewed the proper expert testimony because in no way, shape, or form does it reflect any review or even acknowledgement that Nurse Tasha's deposition existed.

[00:15:33] Speaker 01:
And that's because it was not put forth

[00:15:36] Speaker 01:
in the summary judgment motion.

[00:15:37] Speaker 01:
I'm out of time, Your Honors, and I appreciate it.

[00:15:45] Speaker 02:
Ms.

[00:15:45] Speaker 02:
Baxter, just take your time.

[00:15:50] Speaker 00:
May it please the court, I'm Mackenzie Baxter on behalf of the appellee defendants.

[00:15:55] Speaker 00:
The district court's decision sustaining defendant's motion for summary judgment should be affirmed.

[00:16:01] Speaker 00:
Here, the district court refused to allow a witness, expert, or jury to speculate about the circumstances of Mr. Doherty's fall.

[00:16:10] Speaker 00:
This case does not turn on expert testimony, but rather a lack of evidence about the reasons and circumstances for Mr. Doherty's fall.

[00:16:18] Speaker 00:
The court reviewed the plaintiff's expert reports in their entirety.

[00:16:22] Speaker 00:
the depositions of Ms.

[00:16:24] Speaker 00:
Tosche, the pretrial conference order, and found a lack of connection between Ms.

[00:16:29] Speaker 00:
Tosche's criticisms of the defendants and the unknown circumstances of Mr. Doherty's fall.

[00:16:37] Speaker 00:
There was not unfair surprise to plaintiffs on these issues or a lack of an adequate record for the court.

[00:16:44] Speaker 00:
The district court properly considered the lack of causation evidence presented in its entirety

[00:16:52] Speaker 00:
in response to the issues being raised within the summary judgment motion and briefing by all parties.

[00:16:58] Speaker 02:
What about the comment by the daughter about the thing was dropped while being transferred from one chair to another?

[00:17:12] Speaker 00:
Here the court looked at various versions of events.

[00:17:16] Speaker 00:
from where Mr. Doherty told the hospital that he was walking down the hall full speed to the nurse's documentation and Nurse Toshi's expert report, which references that very version of events.

[00:17:28] Speaker 00:
Whether it is version one through five, the pieces as to causation in the negligence chain are missing.

[00:17:37] Speaker 03:
So you acknowledge that the expert's report referred to the

[00:17:43] Speaker 03:
the daughter's statement that a nurse told her that the decedent fell while being transported.

[00:17:54] Speaker 03:
That was presented to the district court at the time of the summary judgment proceedings.

[00:18:01] Speaker 00:
I will acknowledge that it was referenced within Ms.

[00:18:03] Speaker 00:
Toshy's

[00:18:04] Speaker 00:
Report, however, Ms.

[00:18:05] Speaker 00:
Toshi did not rely on that version of events to reach her opinion.

[00:18:10] Speaker 00:
She specifically testified she did not know what happened with regard to the fall.

[00:18:15] Speaker 00:
I didn't say he, Mr. Doherty, was being transferred at that time, no.

[00:18:20] Speaker 00:
And most importantly, we have no idea.

[00:18:22] Speaker 00:
This is important to also note that what was referenced within Ms.

[00:18:26] Speaker 00:
Toshi's report

[00:18:27] Speaker 00:
was the statement that Ms.

[00:18:30] Speaker 00:
Leonard was told by nursing staff that, quote, they were transferring him from one chair to another when they dropped him.

[00:18:39] Speaker 00:
This is not the same statement as one individual, specifically Nurse Sitka, performing that action.

[00:18:45] Speaker 00:
It requires speculation.

[00:18:46] Speaker 04:
Yeah, but isn't that getting into weighing the evidence?

[00:18:48] Speaker 04:
Where here at a summary judgment stage, if we're to interpret the evidence in a light most favorable to the plaintiff,

[00:18:54] Speaker 04:
Why isn't there a genuine issue of material fact as to why Mr. Doherty fell?

[00:19:00] Speaker 00:
The court took up this very issue in describing where, regardless of the version of events, there is a lack of causation and evidence to support a lynch.

[00:19:13] Speaker 04:
The court specifically said... Well, but let's say that the statement that the daughter received from someone at the staff, let's just assume that's accurate and that's true.

[00:19:24] Speaker 04:
She says it was during a transfer and they essentially dropped Mr. Doherty that led to the fracture.

[00:19:31] Speaker 04:
Does that fill that gap so that then, at least for purposes of surviving summary judgment, a jury can look then towards causation by using expert testimony?

[00:19:40] Speaker 00:
No.

[00:19:41] Speaker 00:
In this situation, the court explained that the deviations of the standard of care, specifically the staffing, the failure to implement a comprehensive care plan, it didn't have a causal link to Mr. Doherty's fall.

[00:19:56] Speaker 02:
Well, if she had testified that you needed at least two people to move somebody, and she was an expert, and if the evidence showed that nobody tried to help him,

[00:20:10] Speaker 02:
Would that be sufficient?

[00:20:12] Speaker 00:
In this situation, there are not facts to support how the fall occurred inasmuch as whether it's zero individuals assisting in

[00:20:21] Speaker 00:
his fall or two individuals, which was the amount of individuals on the floor at the time of Mr. Doherty's fall, Nurse Sitka and Ms.

[00:20:30] Speaker 00:
Mercado as referenced.

[00:20:32] Speaker 00:
Whether it's two or 10 individuals on the floor, that doesn't mean that the fall would have been prevented just because there are more individuals when we don't know the circumstances of the fall.

[00:20:41] Speaker 04:
But the district court's order, the line that jumps out at me and I think was highlighted in the briefings,

[00:20:48] Speaker 04:
Judge Rattle said the record is totally devoid of evidence about how Doherty fell or why.

[00:20:54] Speaker 04:
But is that true?

[00:20:55] Speaker 04:
Because I think we have two versions of how he fell and why.

[00:21:00] Speaker 04:
And really this comes down to whether or not one of them is more credible than the other.

[00:21:04] Speaker 04:
And if that's true, then why does this factual dispute warrant summary judgment?

[00:21:13] Speaker 00:
I don't think that the fall, how that fall occurred is explained by the different versions of events in as much as Mr. Doherty testified that he fell while walking down the hall.

[00:21:26] Speaker 00:
A fall in and of itself is not negligent.

[00:21:28] Speaker 00:
Dropping an individual in and of itself is not negligent.

[00:21:32] Speaker 00:
It requires support, factual support to reach the bridge between

[00:21:40] Speaker 00:
the fall, and the deviations in the standard of care.

[00:21:43] Speaker 00:
Here, we're missing that link.

[00:21:45] Speaker 00:
If this matter were even to proceed to trial, we will continue to miss that link because an expert, counsel's testimony, or fact witnesses cannot describe or fill that causation gap.

[00:22:05] Speaker 03:
What was argued in the motion for summary judgment?

[00:22:08] Speaker 00:
The lack of causation.

[00:22:11] Speaker 03:
Well, opposing counsel said the only issue was the admissibility of the nurse's expert testimony.

[00:22:18] Speaker 00:
I respectfully disagree.

[00:22:21] Speaker 03:
Well, tell me what was raised.

[00:22:32] Speaker 00:
Within the motion, it was specifically briefed that this court was to consider the issue of proximate cause

[00:22:42] Speaker 00:
It was raised as to both of plaintiff's experts.

[00:22:48] Speaker 03:
There are two proximate causes that are at issue here, as I gather.

[00:22:53] Speaker 03:
One is whether the fault ultimately caused his death.

[00:22:57] Speaker 03:
And second, whether the alleged deviations from standard of care caused the fault.

[00:23:05] Speaker 03:
Was the motion for summary judgment addressed to both causation issues?

[00:23:09] Speaker 00:
It was to the latter, specifically

[00:23:13] Speaker 00:
I noted, plaintiffs cannot show sufficient evidence of negligence in support of the requirement of causation between Mr. Doherty's injury and a lack of documentation on fall-related interventions and precautions.

[00:23:27] Speaker 00:
That's within the appendix on page 256, 263, 274, through 277, describing both the law and the analysis of those facts.

[00:23:37] Speaker 00:
The law regarding causation was cited on Appendix page 274.

[00:23:41] Speaker 00:
Support for the arguments as to both Dr. Kirby and Nurse Toschi being unable to, quote, causally connect the dots between the documentation and fall of preventions or interventions and Mr. Doherty's fault was raised for the court's consideration.

[00:23:56] Speaker 03:
Was there an argument that the standard of care was violated because things weren't documented and you were saying the failure to document

[00:24:08] Speaker 03:
has not been causally connected to the fault.

[00:24:11] Speaker 03:
Is that what your argument was?

[00:24:13] Speaker 03:
Because it sounds like that was the argument, but the argument that we've been focusing on here is not the failure to document, but other failure to provide additional assistance to the deceased, you know, in bed, to help them get out, whatever.

[00:24:31] Speaker 03:
Things like that and the fault.

[00:24:33] Speaker 03:
not just the documentation.

[00:24:36] Speaker 03:
Was there any discussion of those other?

[00:24:37] Speaker 00:
That's with regard to the fall precautions and interventions, documentation and fall precautions and interventions.

[00:24:45] Speaker 00:
Ms.

[00:24:45] Speaker 00:
Sticka specifically testified that she did not need any kind of documentation

[00:24:50] Speaker 00:
to tell her to perform fall precautions or interventions as such were part of her custom and habit.

[00:24:57] Speaker 00:
This was an uncontested fact within the motion for summary judgment, uncontested fact number 34, appendix page 262.

[00:25:07] Speaker 00:
as well as noting that any staffing argument would be extremely speculative when Ms.

[00:25:12] Speaker 00:
Sitka and Ms.

[00:25:13] Speaker 00:
Mercado were likely involved in care to Mr. Doherty as they worked that unit or hall based on the uncontested facts, the uncontested staffing sheets on appendix 318 through 323.

[00:25:28] Speaker 00:
From April 9th through April 17th, it is uncontested that Mr. Doherty had no falls.

[00:25:42] Speaker 00:
The district court notes that a failure to prevent an accident or fall is not sufficient to find liability.

[00:25:49] Speaker 00:
Plaintiff's experts acknowledge that not every fall is avoidable or preventable.

[00:25:55] Speaker 00:
It requires careful consideration of the facts involved in the fall and the causal link to the standard of care violations.

[00:26:03] Speaker 00:
Rewinding this case for an evidentiary hearing on this issue,

[00:26:06] Speaker 00:
would not be helpful to the court.

[00:26:08] Speaker 00:
The parties and the court know from review of the information presented, the material facts, and there is no issue for the district court to reconsider.

[00:26:17] Speaker 00:
If the court allows plaintiffs to bridge gaps in fact with speculation from fact

[00:26:23] Speaker 00:
expert or counsel, then the court is imposing strict liability in negligence cases.

[00:26:30] Speaker 00:
It is axiomatic that an expert, no matter how good or credentials, is not permitted to speculate.

[00:26:37] Speaker 00:
When a matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendants.

[00:26:47] Speaker 00:
Do you have any other questions?

[00:26:51] Speaker 03:
Thank you, counsel.

[00:26:53] Speaker 00:
Thank you.

[00:26:53] Speaker 00:
For these reasons, we request that the court affirm the district court's decision.

[00:26:57] Speaker 00:
Thank you.