recent order and then has the jurisdiction of the court i say i'm going to briefly address that because the court should have received from the defendants and emergency motion to a man the  some guidance the only one usual aspect of this case i would suggest vs the fact that the court initially was presented with an ruled on a motion to of the evidence contained therein and at that point be there there there was no contradictory facts for testimony on that on the question genuine issue of fact we believe that that ruling was in error because yet impermissibly substituted the judge as weighing of the evidence and decision concerning the facts for that of the that something's one hundred eighty degrees can cause a severe burn is probably something we know without the experts testimony that the machine could be built differently to something we know without the experts testimony seems to me what the district court with doing was making court not for an expert so for next spring to offer off what is it i mean the expert really isn't supposed to called upon to offer the ultimate opinion expressed it that way even if the decision is to last one for the courts i'm not sure the fact that somebody is offering up expert one i think you're probably right in saying that the consumer might not appreciate certainly wouldn't appreciate the possibility of third degree burns in a fraction of the sec and so forth but even might not appreciate how severe injury could result from very hot liquid walk i also think it's true that the consumer when i anticipate that yes an injury could occur from very hot liquid and perhaps most to the point anybody who's used hot beverage dispensers should anticipate that what comes out of there at the beginning is very very hot what's different about this the use of the consumer would not have expected what happened here well for one thing your honor as you pointed out under washington law yet it's not simply that the the likelihood that the product will cause harm but the seriousness of the harm to be const and i think that's a distinction i think the primary distinction here and the one that that that the district court did not acknowledge was the fact that i think there's a different standard when you're dealing with products that are available to children and that's and i've cited several cases to that effect that's the difference between putting a self service coffee bar which is one of the cases i gather height which was accessible to children in a place that was accessible to children rather than for example putting a stop service coffee bar their finger if they cut themselves that's a pretty much expected risk if you put a table full of nights in a location that's accessible to children your duties are different than they are in a hospital corridor you you have a mixed makes crowd there might be some children there may be there may be some people that are handicapped through in wheelchairs or what have you  make a difference your honor because i think you have to design your product or your product dispenser for the foreseeable vulnerable person who's going to come in contact with and that's like my my analogy of the night case and i just like cases that's going to be in a general store everybody is going to have access to it adults are going to have a different understanding but if a child can walk up to it and pull a knife out and can cut himself realizes it's not so he backs off and nobody else is there watching the twenty two month old who now has access to something because the money is already in the machine ordinarily the person with the money machine machine does something so it's an unfortunate combination of gradients but that both hoping to address the court in equal amounts of time let me begin by addressing jurisdictions but only in so far as to ask if the court has any questions or valid it obviously there was a jurisdiction there was a problem with the cleveland case the ninth circuit case that we cited in our motion there the document being amended was a complaint not a removal petition but nonetheless the question was whether the jurisdiction  interest i came across after i wrote that motion the mcmahon case which we cite and discussed at length concerning the merits of this involve the very same removal defect problem that we have and there although s presentation let me begin by addressing the contention that the mcmahon case apply in indiana a lot in the mcroy case applying to kansas law are different because the products liability laws of those states don't twelve seventy three of the croix case from the district of kansas where they were applying chances law and they explained that kansas also applies to consumer expectations therefore whatever basis upon w actually wasn't the eight year old who put the money in the machine it was the thirteen year old which only further shows our point which is that this machine can't be operated by fire twenty two month year or month old it has to be operated by someone considerably older tall enough to put the coins in and that's what happened here in fact the plaintiff focuses on the fact of the injury here was to a twenty two month year old twenty two month old child but this project  product created designed marketed it wasn't to children it wasn't either purchased by a child nor was it purchased for her consumption it was purchased by a thirteen year old for consumption by an eight year old it's entirely fortuitous that it happen to be hot chocolate as opposed to something else the plan is trying to turn that into basis to argue this was a child product one further point the plaintiff argues that this this case is different and should be viewed in the context of products used by children and that there is a child standard for evaluating a product's defectiveness as opposed to an adult standard in that respect i draw the court's attention to a case of the pla sold them marketed them for use by children and then that case the b b gun had been purchased by an eleven year old without the knowledge of his parents the players urged the court the washington court of appeals and novak to view this as a plaintiff just here in the good morning i'm very spline and i represent the crane company the manufacturer of the hot beverage dispenser to address your question first of all your honor i think that there perhaps is in the circumstance where you have manufactured a product that is easily acce to children of tender years that there may be a different standard because they are you've targeted the machine for those children but that is not the facts of this case as the court's already pointed out there were any number of factors built into this machine that made it so importantly their expert did not identify any temperature at which it would be safe and in fact opined that even at one hundred thirty degrees the hot chocolate could cause third degree burns in less than thirty seconds so that we have temperatures that are getting so low that ultimately it wouldn't be hot chocolate if in fact we dispense with those temperatures and no one has said the reasonable consumer expects that in fact temperature will be or that much talk will be dispensed of the temperature unsafe or not we simply say given that you know i'm saying that to the extent that the ohio court in a very cursory opinion said we think that the temperature is a question of fact for the jury and