new trial this case we prove the bread stubblefield motorcycle had a defective front brake which resulted in corrosion being trapped inside the master cylinder trapping gas which caused his brake to fail and injured him severely every bit of evidence at issue in this appeal goes to prove those points more importantly suzuki's to expert witnesses directly contradicted those points yet we were not allowed to impeach either of their experts with what suzuki had written to its customers or to the united states federal government or what they had discovered internally in the have to overcome on the jury verdict form question rule one a roman numeral three the jury is asked and they failed to function they the brakes failed to function as expected now that's a finding of fact that one of two things is true in the opinion of the jury that the brakes either were not used and i realize that that contested but that's what the jury found it's that's part one of the question or that the brakes were used and that they did function as expected isn't that the st hurdle you have to overcome before we get to the issue of the admissi bility of the recall and some of the other assignments you've made well it's the st issue that we have to overcome but we cannot address that with al addressing the excluded evidence as i understand i guess what i'm what i'm suggesting is that is out you have some other assignments which i assume you're going to get to regarding the blog posts and some statements that that were made immediately after by mr stubblefield as are those i understand but when we get to the issue of the recall and the design defect that you are trying to establish you would still have to get through this question st before we got to that that he did apply the front brakes and that they failed to perform and that they failed to perform because they would effectively designed as opposed to being maintained it left the factory defective well that's one question but it can combines an awful lot of evidence and as discourse said in davidson oil persons clock no one the st clock or case it is absurd to even suggest much less claim that the admissibility of such evidence can be determined by the jury's verdict after its exclusion the argument that evidence is irrelevant because in its absence the jury reached the opposite result is facetious said bessie those are not my words those are the words of the school that only asked a question another way how does that particular piece of evidence that you're talking about that you started your argument with how does that relate to the fact finding in your ability to prove to the contrary well as to whether brad applied his brilliance obviously it's the hand gesture in the comments in the hospital which was one of the three minutes of it that all that's different you started talking about the recall information is subsequently provided information by the defendant and that's what i'm focusing on i understand the hand the hand brakes and that comment in the emergency room i understand the blog posts in their relevance to this inquiry my question is limited to you or you started out talking about information that the defendant itself produced but to suggest that there was a design defect and it existed at the time stubblefield had his accident yes or my question is how does the information regarding the recall pertain to this fact finding by the jury because the recall because number one bot suzuki's experts denied there was a defect both of suzuki's experts denied to corrosion could cause a problem with brake operation taught who were denied the key cumulation of gas in the master cylinder could negatively affect the braking power tom hoover had been denied that stopping distances could be increased increasing the risk of a crash they did not all of those facts and that's exactly what suzuki said in the amening in the master cylinder can affect braking power again braking power that's the exact question that was asked of mr hoover now they did not have power appears in the recall but it does so the recall shows negatively affect braking power  over time gas continues to slowly accumulate over the reservoir port the brake lever may develop a spongy feel and quote stopping distances may be extended increasing the risk of a crash there's no question whatsoever that brad's motorcycle had this defectively designed front brake on it at the time of the crash also dan stubblefield bratz father he testified that when he picked up the motorcycle that morning after the crash he squeezed the front brake and was able to roll the bike freely the brake did not work minutes or out yeah sure immediately after the crash and then we have the other comment from brett about we think that the totality of the evidence had the jury heard this evidence to impeach their expert witnesses we suspect or we don't suspect we believe we've had a substantially different trial in a substantially different verdict so i'm going to talk about three points those points are going to be impeachment which i addressed a little bit always interesting when we get u the big yes it does yes it does and the rd is going to talk about the patient causation and the hand gesture which i've already talked about so the st issue is impeachment taught who were the st of suzuki's to expert witnesses and we had two other jury trials in one of those cases in california he was asked about replacing the front brake on his bike which he did and he said when explained when explaining why he replaced a foot brake on limitation and very difficult to imagine the trial court used rule four hundred and seven as an absolute impenetrable wall repeatedly stating the recall is not admissible for any purpose whatsoever that's not the exactly what happened well what happened was just before trial we don't even know sions unlimited multiple times just before trial d we argued another motion in limine ear at the nd or rd time of the same motion to exclude the recall and other similar incidents and the trial judge agreed that discourse of published opinion in rutledge versus harley davidson head over the ruled this court's precedent of presidents river because presidents river clearly holds that subsequent remedial measures d and other similar incidents can be admissible when to prove causation when causation is dispute would get down to the where and as to court cut you off in the impeachment of todd hoover and in the impeachment of kevin brain both of them said there is no defect in the design of this for a bright both of whom said that gas can not affect braking power those two issues alone were impeachment also in frankly in opening statements azuki counsel said ladies and gentlemen you all need to know we stand behind this but in the performance of its bret's so this is right after the judge had just said that the recall is not admissible for any purpose and i submit they took advantage of that ruling once they open the door we should have been allowed to go through it so that you were not allowed or did you get to ask the question as to question mr hoover did you do you believe there's any defect in the foot brake that met the design of the front brake no there's no because it because it had a cascading effect we could not have ph witnesses we could not use other similar incidents causation was hotly disputed in this case and i have no doubt about them in this case you know kind of had to you know real other similar incidents the rules in this circuit in every other circuit is that other similar incidents can be used to prove causation when causation is disputed in a product's case and the focus on the analysis is supposed to be on the similarity of the products involved in the other incidents and here we found we found hundreds but we actually deposed nine different people some of whom had lost side port and who suffered a sudden loss of failure that should be the analysis instead the district court focused on irrelevant technical distinctions between the incidents themselves and found they were not substantially similar for example one person was turning right another one was turning left those or dissimilar one person was on an unfamiliar road where as fred stubblefield wrote this route every day there for those who are unfamiliar dissimilar one was that night that cetera those are irrelevant distinctions one which was particularly interesting  excluded for the sole reason that it wasn't a quote allegedly crashed and there were no witnesses to that's that's not the standard the standard is you focus on the similar is of the products similarities of the defect and the causation of the defect you don't count the witnesses to the other similar incidents you don't you don't distinguish one because it was at night and ours was in the daytime so those are two of those are the significant differences we should have been allowed to introduce those on the one other issue of impeachment which i think is important he taught hoover testified that when he tested the bike after the craft before the break the brake function perfectly he said and what he did was he squeezed the lever all the way to the grip in a measure good five newtons which is a measure of force as about seventeen pounds he said for an old bike i expect that that's functioning perfectly suzuki's internal documents one of which we used with mr hoover in his own deposition shows it says there's no difference between an old bike and a new bike likes don't wear out like that they work one hundred percent of the time and suzuki standard has to stop the lever five millimeters before you get to the grip and you're supposed to get two hundred dollars newtons and anything below one hundred and sixty dollars newtons is considered spongy here mr hoover jammed his force measuring devices against the grip and only got eighty five dollars newtons less than half of what is expected and approximately half of a failing grade of sponging but yet he was allowed to tell the jury that that is a perfectly acceptable test result and we were not allowed to impeach him with suzuki's documents to the contrary so add that to the stack of evidence that was improperly excluded for patent purposes documents extraneous to the recall yes we had we had dozens of investigation documents  one of which we cited in our brief the the post recall technical meeting minutes which were admitted in other trials by the way and the judge would not let us even introduced at unless we had a sponsor well that means a cohort of wayne drinkwater on behalf of suzuki motor corporation i'm like to follow the lead of my colleague and walk through some of the same things he did and try to do so with some fealty to the record with respect to introducing the voluntary recall as impeachment i think there are two reasons why that was improper the st was if you will look at they wish to impeach testimony of our experts to the effect that the break was functional it was say that they wished in other words to introduce the recall reported h seventy fetch nd one thousand and seven a judge rubin opinion very similar situation involving a bacon slicing machine and if you put on the witness company when this and says that this product is safe and it's no defect and if impeaching means anything you can you can confront them with it with with  you can't put on expert and say this product was safe and so what without opening that door itself and i read this record and you dance all over that your honor one small point i was to make too much of it i think not they did not testify contrary to the recall they did not take issue with the recall they did not deny that under the conditions described in the recall the consequences of the recall could occur or that is not what they said they said that under this circumstance those conditions did not exist for example what was their base of the thing to do with functional because they went out of mediately not immediately after the accident but they went out after the motorcycle had been in the custody of the players for four years and tests were run these tests were run by the players t is one a man named preston lind went out without telling us and he got the front brake to lock up and the testimony from their experts and our experts is if you can get the brake to lock the  dropping what did they show well we know what they showed he went out he slammed on the front brakes and every time they did it it stopped within about half the distance that the applicable federal motor vehicle standard said it should stop you now this is four years after the accident when the brake has been in their custody and the undisputed testimony is that after four years is only one thing that can happen to the performance of a breath of it's not maintained this was not maintained what's it gets worse it gets worse so the un contradicted testimony based on these tapes was that that great worked just fine and would have worked just fine on the day of the accident that is what our experts testified to your honor not that there was something wrong with the recall that the recall was inaccurate nobody takes issue with that what our testimony was this machine on january the th two thousand and twelve had functional breaks and the reason it didn't stop was branch stubblefield didn't apply at the front that's what the cases about that's what edge oh my goodness down he goes and you really couldn't come up with the jury verdict they judge englehart began his questioning with without finding that he didn't put it describes a condition on it and the facts of that condition are not present they are not present here but say if you read through that and ask yourself what what was going on on the ground here they weren't there ourselves was it abuse of discretion for the trial drives try to keep the case on the track with respect to the front right testimony here's how i take it st is no question that it's hearsay that is to say as they offered to prove the truth his father and his wife allegedly were in the room when he said it they sat right there and they watched him and they did not understand that the comments he was making or intended to convey a when you leave that for the jury no and that's a good your argument was well because there's a question about establishing a certain level of reliability for hearsay to go to the jury now what are the exceptions that could apply here their story that brass other feel thought he was in danger of them in advance and so that's throws us over into the residual exception well the same kind of is i see in vegas and imprecision that in the statement in the  st place would certainly support a trial judge or i'm exercising his discretion to say i just think this is too ambiguous to go to a jury i did is just too it's not clear enough and i really don't see that you could say with our respect that it's an abuse of discretion to keep out from a jury a statement like this when the very people he was saying it to had no idea what he's talking about  so that that's that's the the point i wish to make i think on blogs that say one thing and so forth from it is a little bit different scenario than we typically it is it would be i will tell you when i was reading the record here what struck this motorcycle in the break or at all times in the custody of the plaintiffs they had we never had tested the undisputed testimony was the only thing that could happen the breaks after four years of sit around as they get worse they go out with they are experts they're experts and they test it twice and it stops them a dime it works now what what is the what is the evidence that it didn't work there's no testimony even put the brakes on we've got lots of reasons why he wouldn't have and the jury found that he didn't put them out it's not that he had a death wish it's that he didn't appreciate that that ravine was over they are he didn't appreciate any peril so he didn't do it that's what happened but how in the world someone could say that there's evidence that could even go to a jury that they didn't work in light of the tests is just beyond that it really is that it did go to the jury was there an accident reconstruction immediately after that crime in that since the real skid marks that you spoke of was that snapshot in app you know immediately after the accident scene it just seems like a lot of stuff happened with no after excellent question here's what happened there on a fan's excuse me dan stubblefield the daddy and i think a brother went out to the scene and took pictures the day or two later that i think they would just do it you know and they had a terrible accident by a thing but other than that the answer is no there was no accident reconstruction that occurred immediately after the the accident in fact nothing happened after the accident until th and then lightbulb started going off i guess but there was no indication that anybody in that family thought there was anything that the bike did or didn't do that ca another thing that strikes me about the us and i think judging before began to weigh that is particularly with respect to the recall the conditions set up in the recall that are described own it's face with complaints about things that have not been raised as issues on appeal there is no for example issue raised own appeal with respect to any expert testimony about the plaintiffs that was excluded nine share one common ground they involve accidents to motorcycles but i see nothing in those other accidents that would give any rational person of the back of pickup trucks up ahead and all kinds of weird things happening and there may very well have been some issue or some break on some motorcycle but to say that any of those accidents were substantially similar to the condition call's by the recall fanciful it simply never happened i have exceeded my time i think and i thank the court for its attention if ya'll have any questions or with any other issues i'm certainly prepared to make was the result of the plainest put up to experts and they testified in substance about the claims that they now seek to pull out of the recall that is the jury heard all this they heard it through the plaintiff court judge wingate thoroughly and properly considered in guys in case motion to dismiss for lack of personal journey stiction including all of the arguments that the plaintiffs make of the waiver and he properly granted the motion there's no argument that there's no five months a protective order that was argued for over one year and the plaintiff since as zuki both move for four separate continuances these delays were so substantial that in december of two thousand and sixteen judge wingate restarted the case he issued a you case management order and asked the courts tooth state the position at that point in k again stated we continue our objection to personal jurisdiction in this case in the court required status report three months after the new scheduling  but it overturned a district court's finding of the waiver saying that were a defendant found no counter claim or defendant doesn't move on the merits lose then try to do a personal jurisdiction motion then he should find waiver and that's the situation we have here brooke would also just to try to help a little early as to nissin i will to simply say that nissen participated in this case for over twenty one months without raising a specific objection to personal jurisdiction in their answer they had a general denial just interested in there was not a separate affirmative defense minister emotion dismissed for lack of personal jurisdiction they waited twenty one months it was over one hundred dollars different documentaries they participated in discovery they attended depositions they service in iraq tours all sorts of activities so i would rely on the case of national union fire insurance company vs blasio which is a district court case in which blasio the defendant participated for thirteen and a half months far less than this and did in this case in the court apply the standard said they'd waive their defense on not raising it timely as to judging or her very st question about a rocket or in the verdict move on to other arguments st as to what todd hoover actually said question now in your opinion there's nothing wrong with this front brake design right answer as long as it's properly maintained i agree with that yes question so you have no clue what questions or criticisms of the design on the front brake or on that question the previous question or for that question so you have no questions or criticisms of the design equipment model lever on it but no the design i don't and what we're dealing with here  but what we're dealing here with here is impeachment after we've already injuries already heard testimony from two expert witnesses about the defect and about causation and all of this stuff so the risk of unfair prejudice by impeaching a witness with testimony directly contrary to what he has just said in the recall is lower than if we put it up on a poster board and showed during opening statement we've already established our case were tempting to contradict their witness and i think a submit different for seven the comments say it remains the case that if offered for an impermissible purpose it must be witnesses when they testify in defense and in this case taught hoover is suzuki he is he is speaking for them and if he says something directly contrary to what suzuki has told the united states federal government he should be held accountable for his now their option would be a don't put up a witness to refute or disagree with the recall that's a perfectly acceptable way of defending a case but if you're going to get him out on the end of the plan saying stuff that suzuki has disagreed with in writing to the united states federal government it's not my fault that i should be intitled to impeach  to correct rules if the court uses the incorrect rule it's not an abuse of discretion it's the no vote judge wingate did not apply the correct rule on excluding the hand in davidson the oil supply company admitting to it out of thirteen other similar incidences was reversed here we had zero of those should have been admitted to prove causation all right