case involves product liability action out of michigan and it focuses primarily and michigan risk utility test the risk utility thomas is divine defined with six elements they talked about were the severity of the injury how foreseeable that was from this type of machine this involved in this case and the other element that they challenge was the likelihood of occurrence o a scan machine this but the machine is involved in our case is a overhead gantry milling machine it's a type of metal milling machine and you really have to see it to get a good mental picture of what we're talking about here it's a machine that's it's longer than this room it's not quite as wide but it has a huge gantry there goes my tracks th move up and down of a big parallel or due to parallel tracks that cover the main bed of the machine suspended from this kind of u shape over the tracks that is the milling head of the machine this is where all the cutting takes place in this sense it's not dissimilar from a standard milling machine in that it has a cutting head a conventional milling machine i don't know if you work in factories but a conventional milling machine is sort of like a drill press it sits in one place and you have a table that you move around while the cutting tool stays in one place this machine does the opposite you take the party you want to machine and you fix it in place very rigidly and then the machine moves all around it has had the can cut in all different directions you can change the kind of heads and the operator  standing on a platform that moves with the machine the way he operates the machine see it the least in lincoln park boring where this machine was he programs and codes set it codes to do a short computer program that hits a button that says start and then the machine interprets those codes and then runs that machine program for as long or sorties as he's written that little segment of code these kernel machines are also used in a different sort of idea where they're completely computer controlled where someone can stand back in a minute we're not even on it in the factory floor send the codes in and the machine will make different sorts of cuts usually these are kind of sweeping cuts where if you think about running edges sketch with your with your hands it's easy to make moves but if you want to make a diagonal move it's really hard can't almost do by hand so that's where the computer controlled to do that right there is a difference twe three two thousand what it is is a set of industry standards for how you go about assessing the risk of harm and injury from a and a stro machine and actually uses terms like likelihood of injury probability you're talking here about the matrix exactly which then leads to an answer you might say like  or medium or something low or medium or high and that's what you that's what you would least would call the likelihood of occurrence that's right that's what it is is seen an industry way of doing it you say it's a standard industry way do you have any cases that have accepted that as an acceptable way of meeting the standards for a case that says effectively i have no idea what the number is but i'll use  word like negligible or low because as i understand the standard it's not how great or how small that likelihood is it's whether the likelihood is for seeable isn't that fair that is it just standard doesn't turn on is it point one or point zero zero one it turns on whether is that likelihood foreseeable to the to the company that's putting the machine out there because obviously there are some kinds of things for which a very small risk is unreasonable and there may be other machines for which a reasonably large risk is still reasonable because it's the only way to do it i understood the reason the law is taken the way it is is that you have to at least have some ability to assess the risk now am i wrong on that or is that fair we have to assess the that's the task we're seeing that the foreseeability is there here because this kind of machine and the kind of accidents that could happen from this machine are the same kind of accidents and injuries that happen with all kinds of milling machines if almost every kind of milling machine or industrial equipment that has a turning shaft or a cutter it doesn't seem that in fact even including this one that the the proportion probability of accidents is lower than with other machines first off it was zero until this accident now you have what five hundred five thousand years of experience and one accident well isn't that lovely when he tries to go to the what the yes i see thirty three of all types into thirty five industrial machinery and equipment  that's that's rather a different different ballgame isn't it what he started with depor tickler as i see code but you look for certain kinds of injuries and incidents that involve rotating shafts and failure like out in guard energy which means guarding so if he didn't take every kind of accident involving industrial equipment but that's that's one part of what we did compile those kind of statistics and show here's how many accidents there are with these kind of comparable features that are the injury causing part of our machine but i guess that's the question of is it fair to try to do that if it is by analogy you're comparing if the kind of accident you're talking about is the wheels falling off your vehicle then it's the same for every kind of vehicle it's got wheels if you're talking about the faulty design of  bearing the axle every kind of vehicle it's got a bearing and that's similar to that is something that you can look at it is giving you information about how likely this occurrences to happen and that's what we're talking about we're not talking about saying that because the wheel fell off a tank that means that all the eighteen wheeler wheels are bad whatever but but wouldn't you look i mean the type injury that we're concerned about has to do with the operators com tact with the point of operation brett so isn't the manner of operating the machine relevant to look at so i wouldn't i would think that you couldn't lump together a drill or grinding machine or you know different types of machines based upon the cutting tool only if one machine is operated by somebody who's standing there inserting the wrong material operating it in another machine is operated by someone who is twelve feet away at to me that would you would need mirror than the fact that they are both using the same cutting tool we have to focus on the mechanism  happened in both of those kind of sort of the what mechanism the way the actual injury happened how the person get hurt by this machine like you're talking about someone feeding parts into like a punch  i'm saying that you could have two people who had a limb cut off by a certain type of machine get at a certain type of cutting edge and the one person works in continuous proximity to that cutting edge and the other person works in another room and i would think that those that you don't say how often do people get cut by a cutting edge  trying to turn address you're here because the person it's in a different room is obviously going to have much less opportunity to get caught by this machinery but if we're talking that they both had accidents and both lost their arms and somehow they did come in contact with the machinery trying to follow through and under the example you're giving it to someone standing right next to the machine on what the what the manufacturer of the machine where the operator is generally twenty feet away and the machine moves is much larger and moves at a much slower pace machine it's a yes and this is why if you have to get close to this machine from time to time you're exposed to the danger but this machine requires the operator requires the operator to go out on the bed of the machine while it's cutting them out all he used to do different tasks here it was use an air gun to spray away the debris that's generated by the they know used to be there the machine requires him to be there's no other way to get it done but then the question is how do you evaluate that likelihood as i understand the numbers from our flex al flick study and don't hold me to the exact numbers but as i read them there's been something like five hundred thousand hours they compute of men being out on the bed and this is the first time this has happened so if you're the manufacturer and nothing has happened in ten thousand hours and nothing's happened in twenty thousand and fifty thousand how can you  there is a likelihood that is foreseeable or how would you put it the other way around what was the likelihood that was forseeable the likelihood is that if you require your operator stand next to the operating cutting tool that sooner or later someone's going to get hurt by the likely from your view the likelihood is simply something greater than zero what i'm saying is using the n c standards which well what you call the n c standard you come up with an answer that is low or negligible or medium or some name not right is it time to look at the kit that's that's if you input to the very likely side ok but whatever it is because again my understanding of the law is the law doesn't depend on how bigoted the number is it's how foreseeable so at least for from my point of view  have a good case it would be just as good if it were low rather than high but that is your statement that the the prob the likelihood that is foreseeable is that number from that group that name from that not a number but a name is that right that's one of the two methods what's the other one is counting a bag ok there but that's not the one you want you want the one i want both of them i think both of them are suitable ok evidence i think your keep your rebuttal time ok you i think i'm the panelists essentially from the issue here that you cannot compare this machine to any other the size machine the functions it performs the manner in which it doesn't that go to the design feasibility as opposed to the nature and likelihood of the danger i mean it seems to me that you have this machine it has this is exposed cutting surface somebody is will be in although not constantly so part of the way it functions is that you clean the area off when it seems to me to be very obvious and very foreseeable that somebody might be exposed to that cutting surface and be severely injured and that if you want to talk about why you can't have a lock out of why this why that then you're just then you're talking about the design feasibility as opposed to the likelihood or for your probability of injury i think i personally agree with what you're saying obviously it is it is a design feature  jett testified you know when that you know when they were going through their risk analysis or risk assessment that they looked at whether or not they could use some of the guiding mechanisms that were suggested and they determined that they would impair the function of function ability of the functionality of the machine itself so is far is can we design this out of the machine no we can't have it still function the way it's supposed to be not the basis upon which you prevailed ok but i think it's part of it's part of  you need to look at and that's was mr off you know calculation is given the number of hours this machine operates and the number of machines that are in use and the number of hours per week in weeks per year and you know and then you take al tickets the number and then out of that what is the percentage that they're actually exposed to risk and that's where plaintiffs expert fails because he testified that he did not make any determination about the amount of time the operator of the machine had to be out on the operating platform he doesn't know what they were doing out there he doesn't know how long they were out there he can't say the amount that they were exposed to that risk he essentially equates any exposure with one hundred percent exposure and that's not the analysis going back to the matrix it whether it's likelier or minimal it's you know if he's out there you know two percent of the time and he's only exposed to this risk a minuscule part of that percentage that he's actually on the platform that's that's the risk that you're at that goes to the likelihood of an injury well but what if somebody what if you have this grave grave grave reus that is encountered once every five years when a certain procedure needs to be done but you know chances are you going to get injured and then you get into how do you protect against this risk and there's the hierarchy of what you go through and is it can it be designed out of out of the out of machine the answer here is no there actually a difference i don't think it is your honor because you're you're asking what do you do if there's this minuscule risk of a tragic  t and you know how do you guard against that means you'll risk well that's where you get into the first line of defense is you design it out of the sheet that can't be done the second line is you use guard and the the guarding provera on that you can't you can't argue that here you didn't big you did not win on the basis that there was no genuine issue regarding whether you could design the risk out of it you won on the basis that the risk was not sufficiently forseeable so we have to talk about that and i apologize i was trying to respond your question because you're part of your question related to how do we handle this miniscule risk that they're exposed to those discoveries that's a severe injury i think we mean handle in the legal sense not handle in the engineering sense open because here you didn't win on engineering now ok let me ask you about this matrix do you know either from your practice or from any cases where you're this kind of matrix analysis has been accepted as meeting the second  factor of foreseeability of likelihood of occurrence i'm not aware of any and i would just add that i don't think that it was properly applied given his lack of information about the way the machine function well although given that it's not numerical it's all wording i'm not sure that i take that on either side because if the matrix is acceptable does it matter whether the outcome is low or medium or high but because isn't the whole point of that factor is some prognosis that's where of what that person is doing how likely is it that they're going to be injured but in order to meet it as factor to the prima fascia case would it matter whether it was one in a thousand or one in one hundred thousand or one in a million as long as you could in fact foresee it and that's what i've been trying to get either of you or both of you to respond but i've had i think different numbers but the first element is the severity was foreseeable the second is the likelihood of occurrence was foreseeable ok because the severity means you know if you get in the way of this cutting head you're going to be mangled and the judge says they've met that one ok and you're not disputing that at least at this point so we're back to just number two that the likelihood of occurrence was foreseeable and maybe i'm simple minded on this but i read that english to be i'm not real interested at this stage in how big that number is that's what i said one in a thousand and one in a million but it's whether it's foreseeable at all that some way it weight of it and that's your best case which is there never had been an injury absence so it's very hard to to foresee the likelihood and of course you don't want to say every manufacturer gets one free bite but these had operated for so long that i thought that was your best side of it that's what i'm saying trying because my response is going to be better is going to go back to you know whether or not this is something that you can eliminate  it's it is but is a judge white completely correct that's a different stage of the process that's not what judge cooke ruled on you you may you may be innocent as the driven snow at the end of this process but in order to win this appeal at this time you mostly have to you know fog get up the what judge cook ruled on don't change i agree but i think if if you if you read judge cook's opinion he clearly didn't equate a likelihood of occurrence being foreseeable as any percentage because obviously even mr all flix calculation of one in ten million there's some foreseeability there that there is this occurrence could could it could happen he's only able to develop that number after this accident happens but if you had asked him to give you a report in advance which is the time they made that machine he wouldn't have been able to have the data a great answer i understand what i'm saying is a judge took him in ruling on this motion and in looking at his opinion he did not he did not view it in the same manner in which you are approaching it right now ok so what do you do when you have a fairly new product i mean how do you how do you if you need the accidents experience to be to be put on notice i mean how do you evaluate it again you go back to to the risk assessment which say that they haven't had this experience of no injuries and you were putting this into into service in you looked at it and you said w w that could be a really bad injury if somebody said we are going to have people around they're cleaning we should probably come up with something because we don't know how human beings are going to you know behave around this machine well the last part of that is what i would disagree with because obviously they do know how machine functions it's a programmed machine they know what tasks are going to be performed they know how fast this machine moves and how slow it moves they think they know how this machine functions and whether or not the that there's the likelihood that this incident or any incident is going to occur and that's where plaintiffs expert completely misses the mark as they didn't do any of that analysis they simply said there's a rotating spindle therefore it's there's a likelihood of injury and that's the end of the case and my point is if you look at the machine itself and you have to look at this is not a fast moving machine it is a machine that's programmed by the operator the operator knows the functions that are going to be performed it's used by experienced machinist all of these things are known and basically indicate that to operator error yet we know that you have to design for them to design in anticipation of that right  if you can design it out yeah i mean we keep coming back to the same spot here right but again you from from the manufacturers perspective you know they're looking at the functions of this machine and the way that it's operated who it's operated by the manner in which it's used and and obviously all of those things and this wasn't just the first machine that these these machines are you know unique in character they've been in the business for a number of years they had no prior history history of any type of accident so you know there was no you know the likelihood of the occurrence for it wasn't foreseeable to them given their understanding of what was to be done the manner in which it was done and their past experience on how things have been done in the past  and then just the last point as far as play of talking about other incidents that really aren't similar their expert didn't look at any of the facts or circumstances of in order to support the claim that this was somehow foreseeable they need to have similar circumstances they didn't look at any of the circumstances they just said if there's a rotating spindle then it's the same and no nothing else matters insufficient and that is in their brief they mention that this it's only a question of evidence question if it relates to be offered for negligence rather than a design defect we said in our brief cooper versus firestone tire which is nine forty five f second eleven zero three one circuit case that indicates a showing of substantial similary is required when a plaintiff attempts to introduce evidence of what i want to point out what's in the matrix of that standard we're not just plugging these things in randomly what's defined as likely under a probability of occurrence of harm under section some point three is it may occur that the what are you reading from now my answer the eleventh year three two thousand section seven point three it actually goes through i did determine the probability of occurrence of harm and how it's defined by industry standard what they say is you use that likely or very likely or unlikely or remotely likely they define g s likely is defined as may occur it's a variation on murphy's law if so but is that does that override the michigan cases that talk about in most cases repeatedly evidence concerning the magnitude of the risk of how likely it is that to me i say we may just have a difference of opinion that requires something more than just kind of broad terms like lower negligible actually they address this peripherally in reeves versus cincinnati michigan case it's four thirty nine north west second three twenty six you know the case and we were there at least well maybe different pages it says a plaintiff may introduce considerable evidence that the product is in general unsafe due to a product defect which sounds a lot more like you know wheels are falling off cars repeatedly well there is a power press case and they're saying power prices are known to have this problem of unintentional cycling in general so there was a lack of guarding on this particular and at least in that case the person you know if you're if you had a power press that was in the general run of what the industry used you would have a pretty good case right because this particular kind of general machine cycles accidentally right right ok but they're saying that's a general characteristic of power prices i'm saying in general characteristic of milling machines they have cutting tools and that's the danger that we have here and that's the same analysis i think is they talked about it reached is there a general kind of danger  as the plaintiff produce evidence about that and that's what we think we have presented in this actually ties in with the point that you were telling my judge way that we do with a brand new product or a rare product in this case you've got to compare it to other similar products that have similar hazards in that whole process of comparing certain kinds of machines to each other is also right part of the standard of what your government standards if you got a brand new machine you hire someone to do the analysis this is how you do it what does he compared to other machines and you figure out how likely is it that someone's going to be somewhere where they get hurt and how can we fix that in that thomas case i haven't read it you say it adverts to and see standards does it does new jersey law have the same factor and in the case that at that you're referring to did it use this matrix analysis where he comes up with the word yes he used the matrix analysis and trying to remember i think new jersey allows strict liability girl is usually much more liberal than most any other state at least that's what i learned in law school that's what i'm thinking too ok but that the whole point  that thomas case would had to do with likelihood of occurrence that's what the whole analysis was about in its it goes on for several pages goes into real doubt into why this is a good way or is an acceptable way for the pla expert to judge them up let me ask you this another reeves's one of the seminal cases miller versus ingersoll rand is cited a lot and in miller vs ingersoll rand it says the burden on the plaintiffs is to produce and i'm quoting him at this point proof sufficient for a reasonable jury to balance the magnitude of the risk versus the feasibility of other design ill terminus and that's the reason you have this factor is because you have to allow the jury to balance the magnitude of the risk and i guess you're saying that low high and medium is enough of a magnitude for the jury to understand yes ok it's used by the industry for exactly that for us ok the other festoons judges so you're saying it's not scenes with similar qualities it is one way of getting the data that you don't have on a brand new machine and would mean yes the machine was slow and i haven't read the whole opinion but the your analysis of it seems to go to admissible or your statement as to what the court had been front of it was about admissibility the thomas court said it may be an excellent tool for cross examination but  not preclude admission of the expert testimony so it doesn't sound as though it had to do with whether it met a michigan factor to kind of test that  i mean i read it definitely to thomas case was a dollar challenge plaintiffs expert whether that the will to use this is a way to come up with rights and at least at this point we're not accepting their view that we can't even look at your expert because judge cooke looked at it