good morning all right judge rip and i are pleased and privileged to have with us as a colleague this morning judge peterson from the western district of wisconsin and you all right our first case for argument this morning and schieffer versus universal sc ation issue in this case it's not entirely clear the from the pretrial transcript which is pretty evidence that he made up his mind long before we ever got to the motions here but it's not clear entirely that from the transcript from his order exactly what standard he applied the parties all agree that the board case the illinois supreme court case is controlling here the board case states that the plaintiff must show that he's got a reasonable probability of success on the merits in the underlying case now th underlying case obviously is a products claim what happened was we will look to the evidence here judge is what i would i believe the best evidence and really the only evidence of what exactly happened here and how this bar is defective is from j he's the individual who was involved in the incident he's a retired army veteran of six years he currently works as an intelligence officer for the illinois department of corrections he's the most credible witness in this case he's an employee of brand one of the defendants here he's got some experience installing scaffolding his testimony i'm going to read some of it to you this morning and it's the most important evidence in this case and it goes to the circumstantial evidence of the defective bar in this case if you agree with evidence have to be to establish reasonable probability but if you look at jr's testimony i think that's that's what you look at and that's he testified that these boards were defective they were twisted they were irregular they were bent that the day of the incident he was having the same problems as i did and i got my question just as a general principle what is the standard of what is reasonable probability mean is that i get it to a corner j r s testimony he said he didn't knock it off with he was putting it together it was the kind of problem they had been having with this batch of scaffolding but the evidence goes both ways because there's the contemporaneous worker's comp report that said he dropped it and now the there's a dispute a fact you lying it all but how quaint did does the circumstances have to clue to suggest a reasonable probability what bent on the case i think the you would you compared the regional probability to probably more probably true the not which i think is enough here because the testimony from jr is the date of the incident circumstantial we wouldn't be in a spiral ation case like we are here the evidence here is that there was some issues with these bars no we don't have the bar but the day of the incident when jr was working with these bars he testified that there was there were there were there was an issue with getting the bar in place and that caused it to come loose no we don't have that particular bar he also testified that all the labels he saw on the job site were universal scaffolding labels and they all have and then wampler these superintend her brand says the same thing but to get your question judge i think what it depends on the case obviously but what we've got here is some some evidence some sort of this is circumstantial that that there was issues with these bars and when when when the defense want to point to the facts that you mentioned that my correct as to what the usual defective rate might be no that's true so we really don't know whether this was an unusual situation with a lot delivered today at your site was  off the charts in terms of defective material or not well what we do know judge is that these are brand new racks of staffing with made in china labels on them the j r testified and others testified and in this case the bar after the accident sure nothing wrong harms well well the consensus of all the witnesses is you're correct judge but they they all say you've got compared to another piece let's have another piece laying next to it are he in your hand and these laborers they're not allowed to inspect every piece for five minutes then it could be on the job very long if that happens we all know that what happens is they look at it pass it up that's what they do that's that's what they're told to do that's all they did here and it's not clear from that visual inspection with the obvious you can't tell irregularity and link from one piece you have to have compared to another one i mean none of the proffered expert testimony really filled with what kind of testing could be done to determine what the experts relied on jr's testimony part primarily to come up their opinions and that they stated that if the accident happened and j r is the only witness as to how it happened if it happened the way he said it happened there has to be a defect in this piece so th well i don't know i mean we don't know if it was because it was lost i mean we know when when they pass it up that they're not going to do it that i could do it no tests were done on it when they had it for over two years they laid it on the floor and that was it they didn't do any testing of it either and if you look at the boy decision there's language in there about the defendant's burden and they and they didn't do any testing either so they can't disprove our case either i know it's not their burden it's our burden but if you look at the boyd language that there's an important anguish in there about what the defendants are supposed to do as well now they didn't do any testing so we don't know for sure but there's circumstantial evidence from j r hudson he's the most he's the only direct evidence of this case and each spells it out very clearly that there were issues in the installation at the time of this accident of what happened with really tell us whether a variation of three sixteenth's of an inch would be enough to be effective so i guess a my bottom line is shouldn't your experts have done all they could to establish the defects given that they're going to  never have the actual bar to determine that but they should have done a little bit more to give us an idea of what the chances would have been if you had the bar possibly but they don't know exactly when and it wasn't one of those a length issue a bent issue are twisted here issue they don't know exactly what the issue was but i think based on what they said is that they can only go so far with what their testimony with without having the piece so it's impossible to go any further than that so it's hard to say what they should have done or should've done but there's a true dog here was never held in this case your honor it may have been and what may have come out either in cross or direct the on their opinions to date may have been additional testimony regardless of what your or the expert reports were pretty sparse and conclusory mean there i mean one might wonder whether they were really even really properly expert reports because they relied almost entirely on the testimony of the participants in the lives of the witnesses to the accident i didn't really see the application of their specialized knowledge to the field it was  mean i wouldn't quibble with their qualifications but their analysis didn't really go very deep i guess is what i would say either fearless to jr's word for it and said yeah that's based on what i know about scaffolding that's plausible well that comes out of jail testimony if you rely on those facts and they did rely on those facts from jr who was the only witness then they take that extrapolate that evidence to come up with their conclusions beyond that it's difficult to do any other testing i mean mr unger did have a piece he looked at and did some testing of that you  know he did and didn't go into great detail with that i would and that but he did look at that that bar did that sampler bar that he had a similar bar and he did look at that and do some testing from that he has the expertise in scotland to do that and to get to the duty argument just briefly i think the public's brought it up i don't know that that that the law of this case by judge murphy and reaffirmed by judge reagan and the district court level was that rand had a duty he established that in his order so that hurdle has been overcome any anything the plaintiffs did or did not do in regard to frazier's opinion were already addressed with judge murphy and judge reagan not in great detail but he had the opportunity to see all the haven't at that time what he didn't get a chance to see was steve lauriers deposition that was taken after and it wasn't part of the record unfortunately that's very telling evidence in that deposition mr watson told the rainer to hold on to the piece because of a lawsuit he directly said lawsuit this contradicts watson's own testimony because he went back and forth in his own testimony as to why he was keeping the peace but he told a third party employee and if an employee that was working at the job site to hold onto the piece it's there for a reason because of a loss because when did he say that he said i believe in september or october of two thousand and ten you know because this lawsuit was filed w nineteen months after the accident the products case yet we had and when was the demand made for the well we i was there was numerous communications we sent an ex an investigator down to try to find these pieces difficult all the employees were employees of brand our diet they would give us any information there was communications with their lawyers that was that didn't go very far we tried to get watson's deposition they they basically said he had nothing to offer that was that went back and forth there were to be attempted to do that we went down to red blood with the investigators to try to find peace the try to talk to these people that was never it was never accomplished obviously but they knew where it was they had the peace that responded in discovery lawsuit we filed long before the products case was filed asked them you know put brand on notice judge murphy said that in this order that they are on notice based upon a complaint discovery lawsuit we filed in st clair county they were aware of this that was put to rest by by what happened with judge murphy's decision heat and that's law of this case so that i would i would respectfully tell you that that notice issue has been overcome so any anything we are did or did not do as plaintiffs in this case to find the cases edge rested against diana g as well because they were really a were they were working with brand on the job site every day that other projects together so they could have been aware of it based upon the lawsuit filed so i would i would respectfully ask this court what we what we would ask for our day in day in court date opportunity to be in front of jury in this case there are factual disputes in this case as you've as you've pointed out all are asking for is are as i do in court in regard to universal briefly i believe that the evidence already to discuss with jr overcomes that that sp demotion at the lower court where they were granted summary judgment so i would suggest that you consider that as well and overturned a decision regarding the universe on the product case matt shafer have as over a million dollars in lost wages he's not work since accident  thousand and eight he's got hundreds of thousands of dollars in medical bills he's simply asking for his day in court his chance to prove his case to a jury and she's entitled to by the u s constitution that's what we're asking for and the fact that this is been decided before it got to court is a wrong that must be corrected i believe the standard on spoil ations been a correct and correctly applied here to look at boyd directly on point even some of the facts are similar we would argue that the judges respectfully made the council and that was in november of two thousand and eleven so three years after the accident and counsel had suggested that there was some back and forth with the lawyers for parties and that they were told that watson didn't really have anything to tell him think that's a misremember interaction what the record shows record which is outlined in depth in our brief shows that the first time dynasty was contacted about this matter was in july of two thousand and eleven and they were see the subpoena for a an inspection of the plant premises and it didn't mention scaffold or anything like that it just asked for an opportunity to come inspect the premises there was communication with the energy's in house counsel to set that up at which point there was a request to look at any scaffold that might be there again that was in july of two thousand and eleven and there was a request for don watson's deposition and rather than saying he doesn't have anything to offer you said tell us when you want to take that deposition and we'll make them available and there was it was scheduled and then plaintiffs canceled that and they wanted to wait until they received some scaffold pieces from universal none of that had anything to do with dining to not cooperate their response from maine the same tell us when you want his deposition and we'll make him available and that deposition suresh my recollection mr sullivan was the demand demanded within the statute of limitations well that would depend on which statute applies it was not made within the two year  four year construction statute of limitations applied then it would be ok that we raised actual imitation zx as an affirmative defense to the negligence claim but that was never let a good as to which statute would apply so i i want to jump in and answer that question and obviously this case ended when judge frazier in a summary judgment for dynasty and brand on the the last remaining claims were the spoliation claims and that is obviously subject to this course of novo review however before you can really look at whether that that summary judgment is correct under the law you have to go back and look at judge frazier's evidentiary ruling on motion in limine because only by looking at what is the body of admissible evidence in the record can you determine whether judge frazier was correct in entering summary judgment and that  is subject to the abuse of discretion standard so in effect that ruling in which a judge frazier excluded what he believed to be speculative testimony about whether this bar was defective or w cause of the accident that ruling stands unless this court can conclude basically that it was fundamentally wrong but no reasonable person could agree judge frazier addressed the testimony the plaintiffs want to try to present well couldn't couldn't judge frazier ha been right about the exclusion of the experts but wrong about the spoliation because the standard is different oh yes but i think before we can get there are there are proximate cause so his interpretation of what that means under boyd and martin what does what does that proximate cause element require would still be subject to this course to you but in terms of applying the record facts to whatever the court finds to be the proper analysis we have to go and look at what was it was judge frazier correct in his testimony from that record and i don't want to belabor it too much but he looked at the testimony the plaintiff proffered from two lay witnesses plaintiff match a for and his coworker jr hudson and determine that they it would be speculation on their part if they were to try and testify that this missing scaffold bar was defective in some way or was a cause of the accident and what he did was he looked at what was what has been their testimony what's the basis of their knowledge and what both of them testified to in their depositions was they handled the piece during the assembly process they looked at it they did not see anything that appeared about or out of the ordinary they both testified that they didn't know what caused the accident there's a lot of reliance being placed on  hudson but if you look at the deposition sites there are briefs he was specifically asked do you know what caused this accident and his answer was that i couldn't tell you i don't know so that was the  actually personally seen or experienced a defective scaffold piece ever at all so that's the basis on which judge frazier excluded their testimony of defect the two other potential witnesses proffered witnesses where the experts mr many jago and mr unger experts are subject to a little different amount of leeway as far as the basis on which they can express an opinion about a cause or a defect but they're not excused from the fundamental requirement that their testimony has to be have a basis in fact and again judge frazier went through what was it that they did and none of neither of them looked at any pieces from the bottom plant or from brand scaffold yard neither of them performed any testing on whether tight fit was a good thing or a bad just that they were tight so again asar briefs that's the basis on which judge frazier said they have not done and to lend a factual basis to any opinion that they  that the scaffold piece was defective and so from their bent and heart we just suggest that there is no way that that could be found to be fundamentally wrong or something that no reasonable person could agree based on the the evidence that he looked at and from there the conclusion was that without some testimony of the fact the players would be unable to meet the proximate cause element of the spoliation was it wasn't it premised on judge fraser's assumption that the standard for the spoliation was really the same as for the underlying claim which was a preponderance of the evidence that they have to show was more likely than not the defective bar he made that statement and i would agree with counsel that he didn't outline a a very specific analysis of just what his boid mean when the court and the only supreme court talked about this reasonable probability of success element talked a little bit about the causation they have to prove a possible asian plaintiff has to prove that the loss of the as it is cause them to be unable to prove the underlying case and then they went down and said what does that mean you don't have to prove with absolute certainty i think because no one knows richard well you don't even have to prove your claim with absolute certainty exactly so you know exactly what boyd meant by that it's all in this footnote to real it's in a footnote and boy it was a pleading case so i think it might be stretching at the matters a little to try and look at boyd to answer all questions about isn't there an inherent logic to is fully ocean claim and that is that if the standard were a show more likely than not that you would have won had you had the critical piece of evidence you make it impossible for there to be spoliation because if you could prove without the critical piece of evidence that you more likely than not could make that showing then you can't prove that the loss of the evidence damaged you because you have been able to prove it through some other means i don't know there can be a civilization case when there is one single critical piece of evidence as there was in blade where it was the heater which would either be evidence that supported the plaintiff or the defendant but you'll never know which that it was a pleading case but at least the concept is that you can lose the decisive piece of evidence and have a  that concept that that is the concept of boy it doesn't explain what was the other evidence that was alleged in the complaint or that might have been available to help bolster that that that issue i think what boyd means is if you have a case in which you've done everything else took to be able to put a viable case to a jury and that if you had that piece of evidence you would be likely to win but you can't because you don't have that evidence and you've made that proximate cause i think there are several ways you can fall short one of which would be when all of the evidence shows that the missing items would not have helped and the cases cited in our brief were that's exactly what only course is set well because you want to rule out the plaintiff getting a cheap victory or some inconsequential minor piece of evidence got just speculating that this part this piece might have made my case for me if i had even though nothing else i have make it out of the facts we have here we've got us a pallet full of defective scaffolding parts we don't know what percentage so there are some deficiencies in the in the plaintiff's expert case but you have a powerful of defective scaffolding parts of this isn't like a tire case where you've got the one potentially defective tire that's lost you've got a  please court david schroeder for defendants of hell the brand of the plant the plaintiffs main brief and the discussion today has gone to the proximate what we've been talking about for the past few minutes that last past two proximately cause the plaintiff's inability to reasonably be able to prove the case and then there have to be damage to flow from that with respect to brand we submit that the first two elements are actually dispositive of this case brand did not own possess or have  it is undisputed that brienne did not lose the bar and there are no cases in illinois and the plaintiffs don't cite any where a defendant has been held liable where it wasn't their evidence they didn't own it they didn't possess it they didn't control it and most importantly they didn't lose it so we would submit that the second of the four elements is clearly present is clearly not present here with respect to brand assuming there was a duty and i'll turn to the duty issue in a moment we didn't breach it because we didn't lose it and so the second element that set forth and a lot of illinois supreme court cases that you have to breach the duty by losing the evidence does not apply to brand now turning to the beauty argument the illinois supreme court has said that there are certain ways that a duty can be creat d can have an agreement a contract and a statute and then they threw out this lovely term special circumstances which of course they then do not defy now in this case we elements are all based on illinois supreme court cases so first you have to show that there was a demand or a request by the plaintiff that the evidence be preserved or that the defendant segregated the evidence and held it for the plaintiffs benefit secondly there has to be you have to look at whether the plaintiff had an opportunity to examine the evidence or to conduct testing on it and third did the defendant have to zeshan or control of the evidence and in this case all three of those elements are lacking has to brand now with respect to the first element it's a little bit unclear to me from reading their response in their brief but they seem to be saying that when they filed the improper discovery action that somehow we had notice that they were somehow interested in scaffolding from it was it was much broader than just saying produce the bar and that somehow given that knowledge we then had a duty to tell them what we knew about it now i would submit that when they filed a completely improper respondent discovery action the just name brand of the respondent discovery that we had no duty to do anything and so to base  potential duty to preserve the evidence on a duty to tell them that someone else had it in an improperly filed action over which the illinois court had no jurisdiction i just don't follow that logic in addition the cases say that mirror requests that you preserve the evidence alone with nothing more is not sufficient you have to couple that with something else  courts of that we said is that you have to have possession or control of the evidence so we don't think they can meet the first of the three now the second one the second test is whether they had reasonable access to it and it's clear that they did but they didn't take advantage of it they filed this improper discovery action so it was not not only to the illinois court not have jurisdiction over it but they didn't even ask the right questions if they were go use that route to try to locate the bar why didn't they serve a request to produce that said where's the bar or produce the bar but they never did that in fact they waited until over two years after the accident and i see my time is up you can call it that so they waited until two years after the accident before they actually served a subpoena on brand said produce all of the scaffolding and then even later than that they serve a subpoena on dinah g and ask them to produce it and so given that they can't meet any one of the three standards to establish a duty if brand had no duty then you cannot basis foliation of evidence claim against brandon and we submit that the trial court was correct in dismissing the claims against graham thank you  summary judgment primarily and is going to rely upon our brief in the cases cited the only issue i do want to bring up if i could is that the the question about what was known at the time of the manufacture was the piece defective the allegedly defective at the time of manufacture and there is clearly no evidence at all the submitted even by the exodus experts because when judge reagan issued his order the whole issue of the is no evidence without the bar that there was a deep back when it left the control of the manufacturer so it would all of been speculative and the cases that are cited all of them talk about that so again we're relying upon those cases in the argument and i asked this court to affirm judge reagan's or anybody has any questions firmly now thank you and so far thank you just briefly daughters if you are going to what mr sullivan mentioned about the boy decision and his speculation about what it says i want to read directly from the boy decision which is controlling here the facts are similar and it's directly on point the boy court said plaintiffs do not have to prove the bar was defective plaintiffs need only prove that but for the loss of the bar they had a reasonable probability of succeeding and the onion and the underlying suit put boyd is the only case that matters in this and you mention martin but board decision and explaining his position the boycotts he jested that defendants had the burden of proving that even with the missing evidence plaintiffs would have lost the underlying product liability claim here it's clear that plaintiffs could not prove th here is the reading of the facts and jr testified in the day of the incident and this is clear from his deposition and rebutted testimony clear from his deposition the day of the ensign he was only using universal scaffolding he said that his deposition the day incident he was only using universal scaffolding this is a new scaffolding made in china sticker on it right out of the rack but you would you answer mr traders kind of neat argument that essentially they didn't lose the bar so you can you don't have a any of that nothing they were on notice of this their employees wampler their superintendent a simple phone call from them would have said brian do you have the what's going on with this case there's a lawsuit pending we know there's a or comcast everybody knows about the worker's comp case dynasty and brand both know about that from the beginning so that's considered litigation already so they were on notice that ryan while player was in watson's office almost every day and saw the piece a simple phone call from their consulate chicago and by the way it was serv chicago it's a proper state action st clair county court of jurisdiction over brand in this case they have a registered agent in chicago to serve they were properly served with all these documents from the pleadings wampler knew it was in the office of don watson these were employees  donaghy we tried to get a hold of them they wouldn't respond to us so that's all all there if you read judge murphy's opinion he establishes duty it's clear from his from his opinion and the oral argument in front of judge murphy and he any the stopper he's wounded today but it's clear from the decision to underline court that they took that away from a so we don't have a products case that elam has already met judge judge murphy and judge reagan gave us the duty argument and inferred in judge refused decision that there's a breach they lost it that's the breach they were on notice they could have told dinah gee that's all it took so all we're asking is for a day in court gentlemen and we would ask that you deny and decide against judge fraser in his decision as you mentioned earlier it's not even clear from judge freighters opinion what standard he used that alone gives us enough to go back to a to a trial in this case before a jury of our peers thank you and this thanks to all counsel on the