some people at nearby restaurant saw the smoke coming up fire department showed up put the fire out and from there the insurers sent three investigators to take a look at the situation and make a determination as to what caused the guy he's a marine surveyor and then the second he realized that this is an electrical fire immediately so he contacted a cause and an origin expert who is a determination a later time i was possible what lightning i mean just to cut just the times tight why isn't this a sort of situation where judge vance heard the evidence and said you know i credit nataly it's indeterminate i just don't see the proof by preponderance that the pigtail corrosion caused the so fire why would we disturb that other than less and sorry less your first argument has to be she committed error keeping little and plays on is out was so they were our position is that there was no barrier in keeping both of them out that should have been a determination is not essential for you to prevail no of the case law indicates that you don't need an expert in order to prove a reservation claim but what do proof would you point to that was in this trial the cause and origin was undisputed the wires which were factory installed melted and caught fire and set the sofa in the frame or on fire which were also factory installed that's the starboard side but who did jones or nataly did anyone say the fire was caused by the port side pigtail wet bar situation is there and that would be troy little's but right so therefore we're back to my position which is we wouldn't reverse it unless we found that the excluded little testimony was error or my wrong but i believe that read a bishan does not require that level of proof basically wh but who what proof did you have that would show what proof would you point to from anyone that testified or would have to be that the use of refs ipsa to get there well that the core pacing treated this particular case not as a reservation claim but as a product liability claim even at the pretrial conference he said this is a product liability claim it's not about a patient client i said it is about a patient claim it because in a situation where the product destroys itself that's bishan product liability is if you have secondary damages as a result of the destruction of the product is manufactured by the manufacturer so we got that's why we briefed but she still wanted to handle this is a product liability case where we had to show which of the appliances or devices or elements of the boat they were all manufactured factory install failed to cause a factory installed hiring to bypass the factory installed circuit breakers short was that the water dripped down from the wet bar you know what shouldn't actually leak like that unless there's something wrong with it so the water came down onto the pigtail that was directly under what are best red wheezy and that would exist in spite of a prior owner i don't know how long kelly had this boat two years yes that's correct so what's your best case that still assigns exclusive control to the manufacturer in when there is a prior owner of that turn well there's always been a supreme court has relaxed the exclusive control issue and that the spa case even though it is it's not favorable to in terms of the outcome of a spot does indicate that you do not have to say that the manufacturer maintain complete control over the repair or mean to retain complete control those cases go just the opposite way and of the also was a middle district case williams which actually used in relied upon spot to say that you look to not exclusive control in the literal sense but whether under the circumstances a call to the court that the  control requirement is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the cause of the accident in this situation and origin expert gary jones went out to the scene and had made it the established that nearly every other possible cause was out so what he did was he said that there's no lightning there's no control owner now it is bringing in a potential for source well potentially but at the same time the heater had a thermostat on it but only kept at a certain level the reason why he had it there was to keep it dry and to prevent the type  so that the judge found that to be an indication of negligence which makes absolutely no sense none of the findings that the court made as to what was done wrong with the boat or what went wrong with the boat supposedly were based on any evidence so they said that there were maybe this guy over in tampa did some repairs where we got the repair records and they were irrelevant so we moved to exclude them the judge granted that and then said that there may have been repairs but we had the repair records and we presented  repair records to the opposing counsel they reviewed and they tried to use them but they were just distracting because they had no indication of any type of repair in that factory installed sofa where the factory install wires were there and supposedly protected by factory installed circuit breakers and some factory installed device somehow triggered and bypassed the circuit breakers that's all factory install and that has nothing to do with maintenance as nothing to do with any third parties and  again so your your answer to their experts comment that there were circuit breakers on the portside pigtails is that there was a bypass of the circuit breakers that was missed a little us theory ok i know what's a little and that was excluded right and i was excluded but what we're saying is for that charge to get to these wires and melt them some circuit breaker on the boat did not function correctly and allow that to happen in addition this particular model had a prior  history of a circuit breaker failing and other equipment on the boat and that caused an engine room fire and they were made at the manufacturer's response was to immediately do a recall and a whole different approach you know that's your stating that and you stated that but they responded in their brief that the facts are that one other fire had to do with a light that had been brought on is there a characterization of that one of the fire wrong know that what it it's correct in the sense that it was within the device itself but the circuit  did not protect the boat from a another engine fired so what i'm saying is no connection there's no suggestion that one other fire and one of these other boats originated in the pigtails below the what are known this is the only the incident the prior incident was related to another device on the transom but that was one incident in isolation yet they did a total recall on the boat as to that particular equipment and then the the vendor that supplied it fixed it but the that particular device which did not protect the the boat from an engine room fire there was no circuit breaker protection here we have no circuit breaker protection the problems in the wiring i thought the judge said to their work circuit breakers with the work but they didn't work obviously if the wires melted there's no circuit protection but was there evidence that the circuit breakers did not function or are we just all i mean that because of the because they're not that far right that they should have been those wires should have been protected by a circuit breaker and what mr little's theory had been is that the circuit breaker had been bypassed and that was the only plausible theory but other than the fact that the only other way that this could happen is that the circuit breakers failed and didn't protect the metal the what's your best case the district judge abused her discretion in excluding little's testament well in his particular situation she appeared to not like his conclusions and felt that he sort of used the n f p a nine twenty one and essentially with that particular standard that is not required to be used but it certainly can't can be used to rely upon in fact gary jones used that in his cause and origin assessment that she said that in his deposition he admitted he wished he could have tested it further x ray metallurgical e what was the opinion well he did after after the opinions from the opposing experts came out then he said well if that were to bring this up he was ready to participate in more testing before the opinions came out and then they decided they didn't want to do that so i think we're getting to a point where experts are simply used for tactical purposes these three guys went out there to find out exactly what happened  it's reaching an extreme it seems these that i guess my question to you is what's your best case on seven o two that it's abused that discretion to exclude an expert with this level of cognitive testing well this case he's fully qualified law but it the point we're making is that the cognitive we had actual citations where cognitive testing was accepted and those cases say that what he did was sound and she just threw that out she said we're not going to do that he also should have used the n f a which he's not required to do either we cited case law to that effect as well so we show that the n f p a is not binding cognitive testing is fine and he actually did a physical hands on examination his opinion when we say cognitive testing what he did was he went on the boat these guys didn't do anything they walked around the boat for an hour and a half two years after the accident these guys went out there right after the accident and reach their conclusion from doing a hands on examination using their experience they drew conclusions as to why this could possibly happen and so little was the only plausible explanation again gary jones ruled out everything else so that there's no spontaneous combustion there's no are soon there are any number of causes but he ruled all of those out including the shore wiring they took readings in troy little was there for all of these you match up judge dances alternate possible explanations each one was rebutted by john to drop the bomb jones that reported most of them but what she did was she came up with explanations that are not in the record there's no evidence to support and that's the clearly erroneous part what about the fact that there was a prior owner we just don't know but it did that to have to prove she's creating a new law she's saying this is a universal negative it the plaintiff in a repetition case has to rule out every possible cause so she comes up with this idea that a prior owner did something to this boat there's no evidence of that and we got the repair records they were excluded but they were available so that they are part of the record but what we're saying is there's no evidence of the repairs she just made it up and so she kept adding different things she said that the after ruling that gary jones an initially was correct in saying that the  peter was not a cause since it was not affecting her work to after the incident then she said that that was possibly a cause which makes no sense she had an emotional moment she had specifically found that he was had correctly rule that out so it was like we we went backwards into the record and i guess we didn't see that coming as far as because she had already ruled these out repair records that the heater were not a fact it was on a fact and not one of those were a factor yet that's what you base your opinion on and there's no evidence  the record to support those thank you vance misapplied the law that she committed legal error by requiring them to prove the existence of a specific defect they took the position in their briefs were not required under louisiana law to prove the specific  i'm gonna string side of cases i can provide to the court if you're so inclined where louisiana courts have dismissed red a bishan claims because a plaintiff failed to prove a specific defect i think the taste it's most appropriate was cited by judge vance in a written ruling so it's the commercial union case or fifty seven vote catches on fire sitting there in the in the slip tells me very powerful a lot of failsafe devices examiner is it the case that a circuit breaker would have would have prevented these fires or not and we know he said we don't know well i believe i believe you're wrong again i don't if if if the c and he testified at trial and he was done that didn't fail well he was asked to but but she posed the question why didn't the circuit breakers well i think one plausible answer to that yes and let me be careful what i want to back up thirty seconds a correct something i just said we don't to acknowledge that there was a defect anywhere on this vessel we certainly acknowledge that the the ship caught fire there's no negligence on the part of my client porter under the doctrine of recip so now judge vance ruled that recip so which is based in tort is not available to apply enough to help them however there are multiple louisiana court decisions that say a defendant in a read of bishan case cannot defend that case by claiming the affirmative defense of comparative  because comparative negligence is based in tort and is therefore not available on a read a bishan contract claim so judges vance to excuse me judge advances analysis if it's conceptually the same they should not just as i cannot defend or read a bishan case by pleading comparative fault because it's based in toward they cannot prove their rather bishan case by relying on recip so because it's based in poor so i think she was for them and put it in the slip farm and it'll be very very very mar bring your family out here they can and it burns up that night now what if they get what they've got to come in and prove that that this thing was the fact of that in your hand if you might in the commercial union case which was a car far it wasn't a boat far the plaintiff in that case had the car for three days now that's different from what you proposed you proposed in the immediate transfer of title but in that  case and if you would allow me to read what the court said in that case there's no question that the car burned and there's no question that the owner was using it for her own affairs and the car certainly looked all right to everybody concerned the problem here is that the plaintiff has some duty to suggest the calls of the fire some defect lighting or obvious no defect of any kind has been suggested or proved by the plainer than  one seven eight four just a few months before this fire occurred mr gonzales brought to rock the boat to cosat a ban marina and had the batteries the d c batteries replaced on this b they introduced that evidence at trial i didn't introduce it were those batteries defective did those defective batteries cause the fire a few months later or if the batteries weren't defective or where or where  by joe which alternate plausible theory independent of exclusive control of border that she list that wasn't refuted by x there june the prior owner to buy him with to begin with the prior  years of prior ownership there's no evidence in the record whatsoever to eliminate anything that happened when the b s when the vessel was owned by the prior owner this court's decision in wines i  it's seven o five fed second fourteen forty nine makes it clear it's the plaintiff's burden to disprove what might have happened on a prior owner as a cause of the fire they didn't do that there's no evidence in the record at all the second thing she referred to in her list of decisions that they did not refute is that it might have been caused by another piece of equipment on the boat no mr wilson when he stood up here and argued said factory installed factory installed factory installed as though everything on this boat five years after it was purchased and owned by a prior owner was still the factory installed equipment there's no evidence of that that's their burden to show that alternative causes of the fire could not have caused this mr boyce testified that there were four conductors passed through that pigtail and passed through the wiring harness on the other side of the boat where the fire occurred so you would think those would be critical pieces of evidence that they would want to investigate as a potential cause one of them serviced the galvanic isolator one of them serviced a stereo one of them serviced the builds blowers they didn't do anything to a limb and they those their response is that well they were factory sorry i don't know how the appellant's get around the louisiana supreme court case opinion jealousy judge higginson several times during arguments today in this and the prior cases you've asked the question of attorneys what's your best case what's your best well on the rest it's an issue certainly can jell o see is one of our best cases and the reason why is that in that case the louisiana supreme court said the doctrine of rest merely assist corroded the pig tail over time it eventually short circuited energized the conductor on the other side of the boat and started a fire under the sofa and all of those items were preserved and survived the fire this boat was structurally sound after burned it was totaled because a smoke damaged but the parties were able to go on there and remove this evidence the pigtail the breaker boxes the fuses the wiring harnesses the wet bar all of that information all of that evidence is still there of vailable to them they chose not to do anything to test it they can't tell you today whether or not there's any short circuit at all anywhere in that pig tail connector because they never did anything to test it they can't tell you with the corrosion that they observed on that pigtail connector was always by the fire or of the record doesn't contain that but i thought little was willing to give his expert opinion that it was caused by that i don't know that no i don't think that's with all due respect you're taking some in fact if i might mr little's testimony one of one of the one of the panel members asked earlier about what higginson said this is what he against an innocent i'm sorry about what little said this is what mr little himself s actual y rs as to how they relate it back to the pigtail he did acknowledge that he would have done more but i thought it he independently also said what he'd seen he could then give the opinion that it started with the pick tail corrosion under the bowl well my characterization of that john yes he did say that i think his testimony was that's my story and i'm stickin with it i didn't do any testing but that's my opinion and i'm sticking by he did he absolutely  harness was cut out trace testing might not it might it might not have shown which specific conductor caused this fire but what it would have done and what he testified it would have done was it certainly would have ruled out what did not cause the fire and by process of elimination help to refine theories about what did cause as far unfortunately when the plaintiff's experts cut this wiring harness out of the boat before doing that trace testing that option was lost to us the valuable trace testing that could have been done on this wiring harness was never done this same scenario similar scenario occurred in the louisiana case of law which was cited by judge lance lawson's versus mitsubishi nine thirty eight southern second thirty five and lost an airbag inadvertently deployed and injured the lady that was driving the car and the lady a few months later brought the car to a mechanic who she later called as an expert at trial and he disassembled the airbag system he took it apart he expressed some opinions about what he found but by taking it apart he prevented the other side's experts from ever having an opportunity to do their own testing and in that case the louisiana supreme court said we do not believe that the plaintiff should be able to take advantage of the doctrine of recip so since direct evidence of a possible misalignment was available prior to plaintiff's experts disassembly the supplemental restraint system it's the same thing that happened with this wiring harness we would have loved to have gone on the boat and done that trace testing but once they cut it out well you say that but what's the chronology here i thought your people just didn't get there for a long long time well what happened is what happened you honor is that when they before my client was ever contacted their experts went on the boat and they opined that this was an ac far not d c that they are the opinion was that this was an alternating current fired originated at the molex connectors that it's just a connection board where ac wires are coming in and ac wires are going out when they invited or mellow to the fire they told formula i think mr boyd testified about this a trial formula did not go to that original inspection having any inclination that anyone was suggesting they had done anything wrong they already were led to believe that the calls had been a did a falling it was this third party molex connector board the molex representatives were also invited to the far so you are correct when when the porter team originally responded to the invitation to attend that inspection they did not bring experts with them but it wasn't because they simply beery their heads in the sand they had no understanding at all that they were suspected of a defect that originated with them in fact they were led to believe just the opposite that the calls had already been identified in these molex connections so that that's my response to that i've got a minute left i think upset about all i want to say i'll be happy to answer any further questions thank you very much first off like to respond to the contention that they didn't bury their heads in the sand they did exactly that they were told that there was a likelihood that this was a problem associated with the manufacture of the vessel that's why the porters representatives were invited that didn't make any sense otherwise so they had mole x as a polemic or a finding until troy a little looked at what the situation was but it they invited porter right out of the box because they knew this was some type of wiring issue and most of the wiring would have been factory installed and so order was certainly implicated so that the same is simply not true that they didn't bury the business and they did exactly that and they waited for two and a half years to request the opportunity to go on the vessel which was a few weeks before the deadline for experts that's the reality of the situation and then basically at that point we were in the process of trying to do some joint testing because you could still do all the testing on the wiring if that's what was really desired but they had no intention of doing that in addition mr floyd i'm sorry i missed a little head cut when he cut the wires he labeled everything so you could match it up with those any issue on that so all that is not true is well so what we have here is a situation basically we're we felt that we had done what we needed to do on the louisiana laws to write a bishan because we were entitled to build a circumstantial case and in addition we could use phrases normally to do that judge bantul that you can't use race in a reservation case which was wrong and that was what started her reasoning and then she went on to say why she was right in reaching that conclusion that was an error of law then she went on to say that you can't use race ipsa because of the exclusive control issue and the exclusive control issue was is basically thrown out by that spot case as interpreted by the middle district and williams so we have situations where you clearly can use circumstantial evidence in order to establish a reservation claim or products liability claim or general manufacturer liability for instance in another case we cite a bear versus big jim's two forty one southern second eighty four and that case there was a receptacle underneath the trailer that caught fire and caused this particular trailer to incinerate so that the whole case although they don't mention race simpson and basically it's a circumstantial case and they established liability on the part of the manufacturer because this receptacle on the bottom of the of the trailer failed from known reasons but it was a factory installed and no one had to take it apart and wanted to bring out all the repair records and specifically goes to that type of circumstantial case they're all over louisiana law in addition we cited the lion case which where am i wrong if and he was a bench trial so judge me it's heard it all she just decided you didn't meet your burden of proof well she brought in other evidence that doesn't exist in order to justify her findings yeah but but but he just said that there were two points that did the prior owner and other equipment but we had the prior repair records and we they were provided to opposing counsel we moved to exclude them those were all the repair records there in the record but we've moved to school because they don't say anything so there's no indication of any type of repairs that could possibly have disrupted the factory installed wiring which melted or circuit breakers which melted and there's no indication of any replacement parts judge gonzales testified that he never did any type of installation of any new equipment that that was never his position never did anything like that he maintained it well and they did hose it down a lot not least the cap in place on so doing a recreation of what went on a regular basis because china gonzalez had hired somebody to go out and hose down that particular area particularly around a weapon or where you get mud love bugs and all the bugs like run drinks and whatnot so they would hose that down on a regular basis so they would have the powerful spray and that's why we thought kept in place offices just when it was important but the the big issues that we had with the cited on those lines he should've been allowed to testify and to bring out all these issues associated with his analysis and his investigation and that he came up with the only plausible theory so we have jerry jones ruling out any other cause we have a little coming up with a whole theory as to how this happened and there is no other plausible west explanation that the porter experts show up two and a half years later walk around the boat for an hour or stare at a few things and then conclude that this is concludes this panel's arguments for the day