fails the product liability standards under multiple theories and these are been addressed in the briefing but but to emphasize a several points on the manufacturing defect it's a rather simple standard that is just the product as you well he the judgment was entered dismissing our entire third party cross complaints are going to be appealed we did serve our notice of appeal on both of the third party defendants that had been active in the case you know he's the case and it's final was well we appealed from the entry of the judgement so to the extent to which that judgment would get him out of the case we have appealed from it and therefore we served our notice of appeal and i don't i wouldn't say he's out of the case i hearing date and so on so i i know the case has been going forward in all purposes treating him as a party and said the opportunity to file repair i know the practical reality is nothing's going on in the district court the district court case is over so y reality is there's no case going forward in the district court against anyone this is this is it the whole the whole case is right here right now so going back to that the ruling the motion that was brought in to judgment is eisener so we addressed manufacturing  ninety feet per second and that in fact in testing this product our ballistics expert found virtually all tested products greatly exceeded that muzzle velocity many by a factor so how can you fired from one foot away from the injured party whether the velocities five hundred twenty or eight hundred ninety what difference does it make causation that is in the  more damage and i think to some extent to say it is almost to state the obvious because you all know from from from childhood that if something hits you're going slow you know something hit you're going fast it does a lot more damage going fast you know we've used the example of a baseball in our brief a car someone punching you velocity per se it creates more kinetic impact more damage more injury so just say there's two to make an inference that there's no difference i think is the unreasonable let's just say there's no difference between something hitting us five hundred ninety feet a second and something hitting you at a thousand feet a second that's the only reasonable inference because as a matter of physics and calm experience and common sense something hitting you faster does do more damage just a lot more damage we're talking almost three times here you know but baseball is spray for and the arrows if it had been fired right so if it had been fired at the stated velocity would it on the same damage he said that because all of the cartridges he tested essentially didn't perform at the state he couldn't say he tested he was only able to test the cartridges he was able to find and if the product is so defectively manufactured that it never comes off the assembly line at the state  cross defendant has the burden if there is forseeable misuse of this product that it will be used at close range then i mean your honor mentioned is there an aerosol dispersal i think in traditional pepper spray yes you expect an aerosol dispersal this is a gel being propelled out the narrow bore of a gun at extremely high velocity and at one to two feet at the range that mr wyatt was looking at he agreed actually with with solid projectile and that's absolutely his expert testimony and it comports with picks on experts testimony and it makes sense so at one to two feet still you've got to even even if i feed the gel is nothing like an aerosol spray it this is a getting shot out hundreds of miles an hour from the gun and it's got a lot of weight behind it other than just the pepper and that's that's a different product but certainly at the one to two feet range where if that's a foreseeable misuse which we think is at least an issue of fact for the jury here given both police officers who gave declarations and depositions in this case said that that was to be anticipated they would be expected once it was put in use it could be used you're drawing it presumably on someone that you're in close quarters with you're arresting one to two feet it behaves as i sell a projectile they never testimony it could blow off a fingertip or it could destroy bone it could certainly blow apart and eyeball and that's what happened here and therefore for those reasons if the misuses foreseeable it is an inherently dangerous product when you look at the design test under we talked about consumer expectations test under a case called mccabe does this document violate its own product literature about safety standards on product literature said you can safely aim at the face there is no kinetic impact no kinetic impact that's what the police officers are being told when they're trained on this product no kinetic impact and that is false that is simply false and it has a lot of kinetic impact even at any distance as a gels hitting you propelling hundreds of miles an hour certainly one to two feet is having a devastating kinetic impact and to have a flat misrepresentation affecting product safety under the  what they're not was was a warning that this isn't like the pepper spray you know essentially if you fire this at close range it has such a powerful kinetic impact it can destroy an eyeball it will blind the person don't do it and that's what i want know if foreseeability misused within the warren range i believe that my very own you're saying there has to be moved to i'm saying forseeable misuse is something that a manufacturer has to account for both in their design of the product and the risk benefit test and in the failure to warn forseeable misuse is absolutely something a manufacturer has to account for and that if that's a foreseeable misuse which is an issue a fact it's also an affirmative defense meaning the evidence in the immediately halt the use of this product after this incident you're correct that it's not in the record and the answer is yes they were immediately taken and put in a safe and as far as i know the it's never that's never been countermanded so so yes they horrified to see that this could blow apart someone's eyeballs and again we're not just talking about the eye on the temple that got shot into the opposite eye socket two and again you're saying what difference does it make if it has a five ninety feet per second or a thousand feet per second well it's a reasonable inference that does more damage at a thousand feet per second it's not a reasonable inference that it's no harm no foul and for the district judge to engage indulge the read the inference  favor of the moving party and say well you didn't this prove that it makes no difference basic physics it really i mean and you can say there's a difference in solid and liquid but it doesn't matter the solid or liquid hitting you if it hit you faster it's doing more damage so to say i'm going to give the moving party the inference that it makes no difference there's no evidence that made no difference where's the burden there you've got an reasonable inference being given to the moving party as anyway just as it was with sophisticated intermediary and with the second part of the risk benefit analysis which i haven't gotten to but the risk benefit analysis says even if this was manufactured as designed in someone if there is basically an excessive preventable danger in the product that is all we need to show is that the design caused the injuries not the defect the design the design of this product is to propel a gel at incredibly high speeds that someone's face the targeting slide in their training says aim for the nose you're supposed to aim for the nose but if you had an eye you by the way you can blow it apart and blind them you know that argument is correct why isn't a glock twenty one banned under the same theory is a it's a firearm shoots a bullet it's intended to do what it does your theory is well this is a dangerous article so there's a glock twenty one and then you get into the wrist minified analysis and if you lock the chavez versus blockhead of course it does exactly that and it may well be if the defendant shows that for its purpose and for its needs it would not be practical or reasonable to modify this create an alternative design that's the risk benefit which is the less lethal device the glock is meant to kill if it fires too fast this is not meant to kill this is less lethal less meat they pose that when he doesn't want to kill or maim her right so for that product to be doing two or three times the intended damage video no that's part of the record right after this suit was commenced the city of beaumont settled with mr hernandez for eighteen point five million like they should have of this clock was clark was wrong there was no excuse to present their case the trial court tons of depositions a lot of paper discovery a lot was done down there just purgason review the whole record and said they didn't do it they didn't sustain their burden so what do we see in the lower court we saw the legions of warnings about this product that came from p x on they came in law enforcement uses manuals law enforcement uses power points law enforcement instructor manuals law enforcement and structure power points instruction safety manuals that came with the with the product as well as warnings directly on the product it was clear you have a minimum safety distance of five feet discharging at the ice at the face closer than five feet cause serious and common injuries significant injuries and everyone deposed in this case understood that there's no witness that came in and said oh my i didn't know that that could cause blindness if fire a close range now we're not talking about five feet here on ars the video is clear we're talking more like six inches there were no exit in circumstances here he had missing and is on the front of the car he had her hands behind her back he was holding our hands had his cuffs on one hand and took out that product turned around pointed at her face and pulled the trigger he was warned not to do that to be a master instructor any notion that the exxon didn't rely upon mr back to lead to put forth these warnings is not in the record that's why the effect manufacturing defect and design defect you know and they said that the that boma did not prove their first case they didn't sustain their burden to show evidence of his judgement loyce says there was no evidence of causation on any of them as far as the warnings no evidence that if the warnings were different off the clock would have done something differently every person and every witness that testified to the interest of those warnings and what they meant to as far as the  negligent manufacturing number one why it got it all wrong he doesn't even know how to measure this type of a product and what's interesting about the case about why it is that your  talked about a glock twenty one forty five caliber pistol well that's what they're likening this product to if this is like a glock twenty one and how come expert why and wasn't able to rupture an eye when he went past twelve inches in all of this testing he wasn't able to do that all he was able to say is this could rupture an eye within twelve inches he didn't talk about anything past that he didn't go to the five foot mark here forseeable misuse there were two people deposed on that and they say well in the exigent circumstances you may violate a rule you may cross over that five foot mark that's not what officer clocked it offs a clark had missed her hand is by her hand took the product out of his holster pointed to right her face and pulled the trigger from probably six inches away that's not forseeable misuse but we didn't even get there because the previous in found after looking through all the records that they didn't prove their case they had holes in it and they couldn't prove it with the evidence on the record so there was no failure to warn nobody was confused nobody came up here and said these warnings are insufficient connecticut kinetic impact theory is a new one as presented to the court for the first time here the j p x is not a kinetic impact weapon that's like a beanbag or of the time used appropriately is there some force of course there is but it's negligible this is they point to one slide in one power point and somehow extrapolate from that that somehow the exxon didn't warn appropriately when every single witness testified said they are used to the warnings as far as the product defect case below i still don't know what it is if it's the fact i agree with judge lawyer and as we raised here there's no proximate cause it was six inches away from her face but is that really the issue the issue is they will he was warned not to fire this thing within five feet so he was told not to fire it within five feet we're going to make try to make a case on product defect we're talking about six to seven inches away and where there was one hundred eighty meters per second or something more found there was no medical evidence there's no scientific evidence this is not an inference there's no inference there you've got to provide the court with some kind of testimonies of kind of evidence and there was none nonetheless you still should be firing this within five feet so if if why it was true and he was correct in his testing well then p x are put in a four foot safety room if he's only able to rupture the eye within one foot well they had four extra feet there that he could have used on the consumer expectation test you know the judge previous and found and i think the record supports that there's the general public does certainly doesn't have enough experience for consumers to for minimal safety assumptions with this product even beaumont required that their officers do five hours of training before they they were able to use this in discussing this product you need to talk about flux density jools kinetic energy fog tip streams fluid properties i submit those even properties the planets expert didn't understand he just looked at  so this was a bullet traveled like a bullet and that's what caused the incident so i'm going to follow up on a question that judge jones asked and this may be not it probably isn't in the record but counsel responded to judge john saying that the city immediately stop using this particular device do very many law enforcement agencies use this device i think it's a fairly killer device i think it's is if you speak to some of the trainers out there everyone is analyzing it it's it has a certain purpose what's the purpose of this as opposed to o c which the city this is not oh say so but that goes into the consumer expectation of analysis but it's for a particular purpose it's for when you need to go hands on or you want to subdue someone but you don't want to go closer i  further back i want to subdue him and then i want to go hands on as opposed to pulling out my glock twenty one and it's doing that and they all so it's got a a spot in the hierarchy in law enforcement yes as far as how many agencies out there are using your i apologize i don't know that so is brought up by this panel won't this isn't an air assault but judge fisher you're absolutely right as it travels through space it opens it dissipates what happens at six inches is clearly different than what happens at five feet and that's all the testing that p x on had that the presented search purgason and the court found not enough evidence to sustain the plaintiff's case thus there is no kinetic impact you want to deploy the o c to the area with the greatest reaction nasal passages and mouth about they are training users that there is no kinetic impact shoot them in the face and those are simply false and under mccabe which is the california court of appeal case essentially failing a safety risk representation in your own product literature is essentially per se a defect product on the consumer expectations to cope i think we'll all agree that a warning was given it shouldn't be given used inside of five feet what they didn't say was if you use it inside temple blasts apart their eyeballs and permanently blinds them so it's a less lethal device i get the hate of locksmith to kill someone so what if it kills them a little harder ok if that's your theory that's not a less lethal device like this that this is your gaming low so delivering the projectile two to three times the published velocity delivering excruciating and severe kinetic impact when you've told the officers in training there is no kinetic impact is a defective product and several of these  you know i i mentioned the case several these are affirmative defenses sophisticate admitted intermediary forseeable misuse and whether the benefit outweighs the inherent risk in the product are all affirmative defenses that a moving the friend has to definitively prove with their