corking morning your honor sir i have very little to say to you this morning because i think everything was was aptly covered in the briefing that was sent but to me the issue presented here is that the trial court judge judge wilson in this case i think he overstepped his bounds in the ruling on this because it may very well be that if the case was to proceed to trial maybe a group of jurors decides not to find the testimony of mr thius credible here but what judge wilson did is he went to the weight of all of that and i think it was improper for him to do so counsel don't you agree that in order to have survived this motion and you needed to present admissible expert testimony on the issue of causation i do and i think that i did it how did what you presented explained to me how what you presented survives the supreme court's analysis and daubert incommode attire well i think that mr thea's and he's been working with this product for going on twenty five or thirty years and he might have given what i would call a perhaps an exuberant explanation of what happened but the deposition testimony that was submitted in the opposition to the summary judgment shows that he went through a very detailed play by play on what he believes had happened and what caused the gun to get out of let's assume for the sake of argument that your client at this stage of the litigation should have been looked at as an expert let's put that aside for a minute how does your client's testimony as to how he think how he thinks the missing czech ball caused his injury how does that line up with any of the factors the supreme court mandated lower courts look at in deciding whether it survives a daubert income ho tire challenge she was he was saying this is how he thought it worked but but where are the how did  allowing that as admissible evidence well perhaps i just think we have a disagreement on how it would fit within that i think he what he described and based on his knowledge of the product  that it does survive an analysis like that and i think that it like it may very well be i don't believe what he has to say as opposed to a different expert but i think to throw it out at this stage was wrong but to be an expert don't you have to have sufficient data to support your position i understand he's worked with this for twenty years but what's the data other than his twenty years of using i guess and i quite sure what that and you would be references he has worked with these guns and he's purchased probably as many of these guns in the course of his work as anybody in the country and he can take these things apart with his eyes closed i didn't run tests a need and there was nothing in the record that indicated that there had been any sort of research or anything substantial more substantial than him taking it apart and putting it together over twenty years you are one hundred percent is that in your opinion that sufficient data on a percent yes it seems to me counsel that's exactly the methodology the supreme court specifically rejected in kumo tire where there was an expert who basically said i've seen thousands of tire blow outs and i can tell when the blow outs are caused by a defect or not in the supreme court said daubert applies in full force to that in someone's someone simply saying i know it when i see it doesn't survive analysis and it seems to me this is sort of on all fours with what the supreme court said odd doesn't work in cooma tire i would disagree because i think what makes this case different than that is that after the incident happened and mr c s had the device in its parts there it had this check ball that was missing and mr experience with this gun is such that he actually explained at least in my opinion in his deposition what the purpose of that ball was and when it was there and had blown up i mean i guess blow up is a bit that might not quite be the right term but as he took it apart in that piece was missing he could say i have i have these parts before me right here and this part right here is missing and that's why this gun backfired on me and that's why this had happened so i think that perhaps is the distinguishing factor at least in my mind isn't there some issue about whether it was actually missing or not last i mean or parts my understanding is there were parts that were lost for a while but then found that part was never found but but there is some sort of issue of even whether that was missing as you're saying right that that is absolutely correct there was an issue on that and i think that that issue it's important but i think that issue is one that should be weighed by a jury when they're assessing the opinion testimony of these people here they say well maybe mr thius is isn't right about this because that that ball was gone but i think to say at this stage no no had no experience whatsoever designing manufacturing working in the design or manufacture of this type of product this is a high pressure spray gun it is highly engineered there's no dispute about that but you don't need that kind of training in order to at least at this stage of the proceedings qualify as an expert or even to testify at trials using something for for decades it can qualify you as an expert can it in theory yes let me give you an example though we all use computers every day we all use smartphones every day we'll drive our automobiles every day that doesn't mean because you have used them that you know how things work inside of those products why they work what they do or don't do  not mean that you have sufficient expertise to know why it works how it works how it will or will not work if something is there or not there so i agree that in theory the case law says that you can through experience be qualified but your initial question judge that it was exactly on point here even assuming mr tice was an expert which the district court did for purposes of this motion he basically said i'll give you that i'm not even going to because he made a manufacturing defect claim that claim required him to prove a number of elements or at least to submit sufficient evidence to get to the jury one of those was was there a defect when i left gray ghost possession he didn't do any discovery of what the condition of the gun was at the time it left in council my understanding was that the for the accident occurred he had taken apart the gun several times and put it back together so it was undisputed that things had happened between the time it left the factory and the accident absolutely he had taken apart three times according to his own testimony he talked about an unknown or an identified person taking it apart a fourth time he had used it had obviously left the factory in minnesota gone to a distributor in california and it up in his shop had been used taken apart three times taken apart a fourth time then he says i couldn't find what is essentially a very small ball bearing counsel one of the arguments that plaintiff makes in his brief is that you had no admissible evidence of expert opinion before the district court statements from your experts isn't counsel correct simply attaching a expert disclosure it doesn't work under rule fifty six to know he's not for two reasons one  is we attach the disclosure which were rule twenty six pleading disclosures and opinions when we made our motion they subsequently took the depositions of our experts they did not submit those transcripts during the summary judgment process they did not object to their testimony they did not contradict their testimony all of which was available before they filed their brief and before they argue to the district court now the reason that it is not important your honor is that undersell attacks and under this court's decision and you some fire in marine versus fruits which we've cited to ten federal third to ninety nine on an element on which we do not have the burden of proof we do not have to submit any admissible evidence we have to point out that they have not submitted to your position is that under sol attacks even if you fail to submit expert testimony you still have the right to put them to their proof exactly so attacks and the sunfire both say if the if it's their burden so we were not moving on defenses available to us we were moving on the failure of the plaintiff to develop sufficient information to justify going to trial before a jury and under those cases it's very clear the nonmoving party does not have to show one does not have to submit admissible evidence affirmatively what we did here was we pointed out that the plaintiff doesn't have it the plaintiff does not have evidence of causation the plaintiff does not have evidence of a defect existing at the time that the product left our factory as we sit here what the argument is now on appeal is very different than what they argued at the supreme court she's been at the district court level and i would argue that they waived that argument they've conflated the two standards if we were moving affirmatively on an issue on which we have the burden of proof we would have had to do more but what we submitted was mr tice's own testimony the testimony of other witnesses we submitted our rule twenty six disclosures which are pleadings and i would argue under rule fifty six are sufficient for rule fifty six motion but ultimately there's no methodology here even if you were an expert that's what judge wilson said i'm especially going to grant you that you have enough experience with this product he did no testing there's no data there's no report he actually several times in his deposition disclaimed knowledge about how these guns actually work why they actually work we asked in an inner raga tory essentially contention in iraq the tories tell us why you think there was a manufacturing defect mr tice responded i don't have sufficient foundation he did that in a pleading and then later comes back and says i'm an expert you can't do that federal court is no place for somebody to come in and just say i've worked with this thing i'm an expert therefore i get to tell the jury all kinds of things i haven't tested i haven't tried i haven't replicated i don't have any data i don't have any peer reviewed information to support this that's not how it works it's not how coupal tire works you're exactly right that's what the expert in kumo did i've seen this enough times i know it when i see it that's what mr tice claimed he could do here at the et the  keep in mind what happens here this is like in a poxy there are two different materials that come together in the front of the gun and they harden very quickly and it becomes very hard so what he says happened was some of this material went over to one side of the that it wasn't supposed to go to and therefore it hardened he then says id pressurize the whole system unhooked it from its pressure system i started to take it apart and somehow it exploded on me well you better have some evidence or some testing to show that could even happen which our position is it doesn't happen it was harden material that comes up the inside of the gun needs to be cleaned out but it doesn't create this mysterious pressure development that he claims happened when i asked him to explain that at his deposition he drew a picture which is in the record the church a bully a two year old child could have drawn that's the best he could do there was nothing that shows for a product that is highly engineered and judge warned by you challenged me a little bit there but this is a serious piece of equipment it's a twenty six hundred dollars spray gun in and of itself it operates at high pressure there are fluid dynamics there's engineering there's a lot going on inside this type of gun he loves the gun he told us he loves it he just thinks that something happened badly we have a different view but ultimately he had to have an