We're--I want the record to reflect objections to hypothetical questions that have been asked, that Mr. Kelberg will ask a question and then get an answer if something is possible or if it could be, and then he will put in the hypothetical as if it is a fact. For example: "Could this injury be caused by a shoe? "Yes.
"Now, assume the shoe was worn by a 210 pound male." We believe that is highly improper and prejudicial and want the record to reflect that. Regarding the hypothetical of rigatoni, the Court has in evidence a bill from the restaurant which does not indicate any rigatoni was served to anybody at that time, and, no. 2, there is no evidence that I am aware of that any waitress has offered any testimony about rigatoni. There is testimony that a waitress heard somebody else say that rigatoni was served, and that would be foundation based on hearsay.
In reverse order, that testimony came at a time when I don't think I was involved with this case. But from a legal standpoint, I believe this objection to it being hearsay is a tad bit late to have any significance and that the jury may consider it for the truth of the matter asserted because of the failure of counsel to object to it on any appropriate ground, assuming it was objectionable, no. 1. No. 2, the bill does in fact reflect a pasta. Mr. Shapiro I'm sure is familiar with pasta having different types of shapes and content, and rigatoni is not a dish. It is a type of pasta. So that if you order a dish, having ordered many dishes from places like Viva La Pasta, has 500 zillion selections of different pasta dishes, when I order a no. 40, they will ask me, "And do you want it with spaghetti, linguini, rigatoni, fettucini," and I'm sure I left out a few of what they offer. As far as a practical matter, Mr. Shapiro is wrong with respect to the bill. With respect to the hypotheticals, your Honor, there is nothing improper with any hypothetical that I have posed. Of course, this is an untimely objection. If counsel didn't make the objection when the question is asked--
I'm not sure he did with every one. But on a more fundamental point, it has been made clear to the jury with my hypothetical, assuming for the sake of argument, that this was done by a shoe worn by a person of 210 pounds, and then I'll ask whatever I asked, and he's certainly--if Mr. Baden wants to come in and deal with these, he will, and we'll deal with him on cross-examination. But as far as any impropriety, I submit to the Court there is none.
Your Honor, may I further state just briefly in response, the bill indicates the type of pasta as penne, which is a type of pasta, not a sauce for a pasta. And second, we believe the Court's rulings are very--that Mr. Scheck's hypotheticals were all objected to and all sustained by the Court.
Not all, but many were sustained based on the grounds that they assume a fact not in evidence and not assuming arguendo. So I wanted the record to reflect that.
I would like to point out one other thing. No. 1, my hypotheticals are based upon circumstances from which the evidence permits the inference that the circumstance exists. No. 2, even if that were not true, I don't believe Mr. Scheck cited the Court to a case that is a venerable, but still California Supreme Court decision in People versus Busch, B-U-S-C-H, 56 Cal. 2D.--I don't recall the page number--which has as one of its propositions the right of a cross-examiner to offer a hypothetical not based on circumstances in the evidence to test the credibility and qualifications of the expert. I raise this not because I'm here to say Mr. Scheck got a bad ruling, but to indicate that if I have to--I love being down here with the Court and counsel, but I would be very happy if I finish these two witnesses and I am not to be seen in this case again. But if I have to be seen in this case again, it will be as a cross-examiner, and I will submit to the Court that that is the law on cross-examination. I will also submit to the Court a different view on 721(B) because no one has indicated--
Could this injury be caused by a shoe? "Yes." "Now, assume the shoe was worn by a 210 pound male." We believe that is highly improper and prejudicial.
rigatoni is not a dish. It is a type of pasta. So that if you order a dish, having ordered many dishes from places like Viva La Pasta, has 500 zillion selections of different pasta dishes, when I order a no. 40, they will ask me, 'And do you want it with spaghetti, linguini, rigatoni, fettucini.'
the bill indicates the type of pasta as penne, which is a type of pasta, not a sauce for a pasta.
I love being down here with the Court and counsel, but I would be very happy if I finish these two witnesses and I am not to be seen in this case again.