he was vacuuming up sanding residue after you applied about eighteen hours previously mean works which is a polyurethane be sealed for wood floors and it really doesn't matter what we call that substance that he was vacuuming because the question here is whether the plaintiff presented sufficient material  to allow a fact finder to hear the case and the case is whether this use this vacuuming up of this material is a common use or for knowledge that the substance he was backing up whatever we call it was flammable or combustible he acknowledged i can't answer it exactly yes or no because he didn't answer yes or no he answered that he knew that don't pick up flammable materials right that's true if you can have a sufficient warning it's not because this this use everybody uses this vacuum to do that the initial investigation he did not believe he was looking for an outside ignition source he was looking for a cigarette or a lighter or something and he threw out his testimony he kept saying things like oh i often see i always see this much when you do this particular sanding the pieces are off in this shape or this size and the amount of dust in the vacuum was something i this kind of vacuum in this particular kind of dust is the most common use of the shock of that shot back and i asked you how you establish that material and i need to withdraw that's the name because it's not even relevant also so you're withdrawing that assertion no it's the most common well that's what you said i know and i spoke ok incorrectly it is a common use not the most common use but it is a common use or a foreseeable misuse which is what we'd need to even even assuming that's true that it is a common use and foreseeable the warning say do not pick flammable materials do not use near combustible dusts why aren't those warnings adequate they're not adequate because there's a first you've got to piece together two different things the vacuum says don't pick up the flour bowl dusts it doesn't include polyurethane does which is since it's such a common use or a common use acknowledged it was yeah he knew that but he was taught what is this water why would this warning even make a difference then if he understands that this is a flammable dust he understands the warning he says don't use this vacuum to collect flammable dusts what difference would it have made if it is said polyurethane dust because in this instance this is a man who has been doing this for ten years he was taught this is how you do the floors you late you're late i get all that but if it's the warning said polyurethane dust he would have done the exact same thing it sounds like is what you're saying right now because then because then he would have known he would have been taught for the past ten years in the ten floor least that he'd previously were finished but that's not how you collect this dust you have to do it in a different way but even the flammable dust he knows it's polyurethane dust he knows the warning says don't use this vacuum to collect flammable dust but if the warning said polyurethane dust he would have acted differently and many other people would act differently what happens if people don't have the can right if you're getting your wood floor finished and sometimes using a bank with water  he knew that he wasn't supposed to do this because in prior occasions he used the bag with water and he was told that he should use a can with water and to once you take it out of the vacuum his testimony right so what wine you put it why isn't he picked up by the knowledgeable user at the fence because that's because he did not know of this specific known of the exact danger that you're talking about when you're talking about a knowledgeable user so in this instance something he'd always done for ten years nothing ever went wrong fire marshall says this is what i see this all the time but heat the fire marshall didn't even think it's the dust when it's compacted together that's why when you get it out of the vacuum you put it in a bed with water because it's not supposedly in the vacuum very long it's in there you take it out you dump it into a bag with water and then when it's being stored or before you throw it out that's where your danger of combustion thank you save some time for a please the court leonard lesser for the appellate let's let's clarify some things here counsel says it doesn't matter what we call the material so let's talk about what they called material this is their own expert report this flame that injured this plaintiff was uncool word polyurethane sanding residue that is what they call it it is no nothing else no sophos tree is going to change that characterization untoward polyurethane sanding residue is indisputable ie a combustible substance they admit that in their fifty six one b paragraph three the expert report makes clear that the flame that injured this individual was the result of the continuing curing process of the polyurethane dust combination he is the professional this is the purported ten year for fo refinisher that was doing for refinishing projects in new york city which obligates professional flora finishers to make sure they read the warning labels on the products that they're using this individual it mitts that he purchased the min wax polyurethane that he utilized to out his decades long career and there couldn't be nor is there any dispute about the clarity of what the men wax morning say about  s polyurethane sanding residue again all undisputed in their fifty six point one b that sanding residue may spontaneously catch fire most importantly and this is right from the m warning which they concede quote accumulated sanding residue may spontaneously spontaneously catch fire if not immediately disposed in a water filled container that's the m they don't take any issue with the minwax morning so there is no dispute as to what this individual was warned against moore this individual made it very clear throughout days of deposition testimony that in addition being able to read and understand the specific warnings about this particular combustible product that he was taught repeatedly about the dangers of the combustibility of this polyurethane both in terms of how it's applied and in terms of how it's discarded he was given examples of horrific burns that happened to people in his industry that were careless and reckless in not following the instructions that these professionals are obligated to follow both pursuant to the new york city fire code and their professional responsibilities there can be and there is no dispute about the sufficiency of this very accurate and a very sick fish at least severe warning you can not use this on any combustible or flammable product and it went further this warning was right on the vacuum so you don't have to have the manual when you're using it because it's right there and he admitted he saw it but it also says right on the vacuum read the matter and when you read the manual the manual is even clearer don't use on  dusts and that's what the district court focused on with respect to the adequacy of this very clear warning so the only question usually a question for a jury right adequacy will morning it can be unless the record is that a potential user might misuse it with if that was the case this warning would be a thousand pages long the court can take judicial notice go on to the osha website you will see thousands of combustible dusts that are used in various industries plastics pharmaceuticals agriculture the list goes on and on and what the district court did was it focused on the case law here judge chin your case  the the kant case which says that if it's clear and it's concise and it's accurate and it conveys the severity that's sufficient if you have to add all of these examples you're going to dilute the warning and it's going to be a problem and that's what happened here there is no dispute that this professional who does this work with this particular combustible product knew exactly the dangerous propensities of it he followed that practice according to him by making sure that he immediately disposed this combustible substance in a war to fill container he didn't do it on this day why that's his choice why was or the filter from the back i don't i don't know what he oregon and what he what they argued was and their expert report says is that ok you have a way to arrive at that has this general broad warning but you also sell sanding machines to floor finishing professionals that has a specific warning because they have receptacles with their for finishing products that has a specific example of polyurethane sanding residue that may be the case when you're selling a specific product for this particular industry in any event he knew about that warning with respect to this general product we have a broad warning that says don't use it against with any flammable substance any  broader range of views absolutely that's the whole point but let's get back to the key issue because i don't think there's any real legitimate challenge to the district court's finding that the particular warnings on the shop vac were adequate but even if there was even if they could lead jimmy argue that there was some dispute over that which i don't think they have we have the most knowledgeable user here this knowledgeable user goes to absolutely and i mean generally in new york i think cause an issue of fact but there are instances where proximate cause as a matter of law and knowledgeable user happens to be one of those  and here we have so many admissions at all possible use it doesn't go to the adequacy of the warning and that's why i say if the court if the court had any question with respect to how the district addressed the adequacy of the warning then we moved to the second analysis which is the proximate cause of the knowledgeable user so that's why i just shifted there and i would say that one there's no real legitimate dispute over the adequacy of this warning but even if the court found that this is the most knowledgeable use of both in terms of his knowledge of the warnings on the men whilst knowledgeable user what's actually the most knowledge well i would say that the most knowledgeable user with respect to this for finishing polyurethane product based upon his own testimony his knowledge of the minmax warnings his knowledge about what he lists ten times over the course of ten years i mean not once a year would you forget what you did a year earlier no because he was trained an specifically repeated that in his deposition about the dangers of spotting your thing sanding residue you gotta put it in water you can have her injuries if you don't that's the essence of the knowledgeable user defense and there's no dispute that he knew all of  even if he wasn't the most knowledgeable user would you not agree that he was a knowledgeable user not regarding this specific risk because if he had known what a person with any sort of common sense and a jury could decide that questions why would you pick it up if it's if it smoking not a different question i said yeah i mean it doesn't i don't know that that's not to smoke while he was doing correct and he knew when he was also known not to run the electrical or a foreseeable misuse that there should be a specific warning because it depends whom assume the answer it is a common use water is there are tribal issue as to the adequacy of the warning absolutely it should say you don't because this is forty years you know there's a whole host of things i mean the list to be so long i'm not out of cover all the whole of the device itself you have it'll be longer than gone with the way it will be sort of like those drug commercials that we all see that you have to put every single thing in that's my reinstalls because it's got it's got thousands of items in it and this particular use is we can demonstrate a trial it's common it's foreseeable this only respect thank you will reserve