well your honor there was it cited in our brief there's a specific reference in the record to the fact and i'll get that when i stand up again that indicated that it was perhaps one hundred volt a shock but it effectively was forty one to fifty eight volts we asserted that in our opening brief and it's never been contested by the pelleas in response to that and why was a fifty vote shocking to the one hundred ten it was the expert concluded that because it was brief and because of the nature of the shock it was was confused even if it were one hundred ten volts your honor it would be a very low volt shock a very low impact electrical shock but our testimony was forty one to fifty eight and that was not disputed in the brief of the pelly as i recall and i get the specific citation to the reporter's transcript when i stand down and get that to the chord the bottom line is from that from that event he claims in a ray of symptoms that go in various parts of the body outside the course of the current that would have it he would experienced the district court here erred both in instructing the jury on the turn over duty that was owed under section nine zero five b as well as it aired in connection with these issues of reliability of the expert testimony the trial court here failed to act as a gatekeeper as is required by delbert to prevent a fundamentally unreliable expert testimony on a new extremely novel scientific theory to come before the jury and for that reason that we've asked the court to reverse let me turn first to the instructional error issue the district court's instruction number fourteen misstates the vessel owners turned over duty here the plaintiffs decided that they were going to proceed under a turn over duty standard scindia talks about three different duties that a vessel owner owes to or you get to your argument as your own as to that instruction i read instruction number fourteen and i read what you objected to a trial it seems to me the only objection a trial was to the sentence defendants have a duty to take reasonable steps to inspect the ves that was part of it your honor but well but i mean you show me different it seems to me that everybody agreed with all of this part of instruction fourteen except you disagreed with his duty to take reasonable steps to inspect the vessel and its equipment and in further i understand what i read your objection that you said the instruction eroni asli allowed the jury to find a failure to inspect in and of itself was a failure to exercise reasonable care and therefore you objected that was part of it your honor but where is the rest i mean if you point me to the record i didn't find anything else in your objection the objections were also had to the proposed instructions from the defense here and proposed instruction seventeen in one thousand address the issue of the duty being owed only to the steve and also addressed the issue of the duration of the obligation of the turnover duty if you look at both instruction proposed instruction seventeen and proposed instruction one thousand they mirror the argument that we're now raising here which is instruction number fourteen trying to determine what your objection was because they're there first thing to me is well he's waived that and preserve it sure he did preserve it so i went and i read it and i said well you know that's pretty simple because now he's going he's not suggesting that this instruction is wrong because of what it might allow the jury to find but he's saying it's wrong because now there's a different duty different duty owed to a different source and i didn't find that in your objection your honor what mr murray would have you do is ignore the objections that were that were made to and the proposed that the failure to give proposed instruction seventeen and proposed instruction  made one hundred percent clear that the objection included the fact that the duty was proposed to be to this to the longshoremen directly instead of the stevedore and also the question about the duration of this the carrying on notion meant that it wasn't a turnover duty so much as it was an ongoing obligation on the part of the vessel owner with respect to hazards that might have eggs listed on the vessel and so all of those issues there was a specific  objection to to the district court's instruction number fourteen which you have to look at in the context also of the objection to the failure to give defense seventeen in defense nineteen which surface the issues that we're talking about here today if i look at the owners safety manual what does it say regarding inspections the owner's safety manual i don't recall off the top of my head your honor well it seems to me that the owner safety manual says that there that an inspection is properly part of an exercise of reasonable care and it and i didn't find anywhere here where you ever dispute that your client bore responsibility for the floodlight that you placed on the vessels catwalk well first of all we do dispute the oblate that we placed it on the catwalk because there was a concurrent duty owed by e the stevedoring firm that had responsibility with respect to lighting of the car lot of reasons and in other words you old one but they also well they owe a concurrent duty which is consistent with the notion that the duty is owed to the stevedore as opposed to directly to the longshoreman but let me point out that the placement of the light was something that we do dispute as to whether or not we did it it was something that was part and parcel of the responsibility of eagle with respect to cargo operations and it had nothing to do of course with the turnover duty so we talk about the light itself in order to understand the argument that they're advancing they're suggesting to you what it amounts to tantamount to a vessel seaworthiness claim that we have an obligation with respect to each and every piece of equipment on board this ship each and every aspect of the vessel before the duty is turned over before the obligation is turned over to the senator to endure i understand your argument now i want to look at what your defense it seemed to me that your defense at trial was the workman was either not injured or he was injured by his own negligence that was that was an argument that was involved frankly i don't see any other argument where there was an argument made your honor with respect to instruct proposed instruction seventeen but i'm starting going to about the instruction oh i understand that i'm talking about what was the evidence what was the effort expended by the defense and it seems to me there was nothing in the defense that ever suggested well this was the stevedores duty it was nothing in there that said well there may have been a problem but we didn't cause it which i've been on the defense a lot of times and i love to give other people a defense that fence was the workman was not injured or he was injured of his own fault now tell me what does this instruction in the way you want to change it have to do with those defenses well your honor if it goes to the general obligation that the vessel owner has at the turnover to minute talk about your defense what does it matter whose duty it is to this light if your defense is simply no injury or he caused his own problem that was that was part of the argument your honor but the argument that was where did you argue anything else at trial we argued about not in the jury instruction i asked trial i understand we we presented evidence with respect to eagles responsibility there was evidence presented with respect to eagles responsibility as the stevedore say there's a hero's ing your closing was all about this work one was not injured or if he was it was injured by his own negligence that was your total proposition the duty to inspect was a ongoing duty to inspect that was not ours and we argued vigorously that that was not the case and of the instruction but let me turn to the daubert issue dr let me let me tell you specifically that issue i'm interested in yes this isn't a case where just last night just said let it in he went through a number of factors about the subject about peer review saying it was grounded in science he cited the advisory notes so in in light of that explanation and kumo tires teaching that basically there are specific factors but the district court it's term and which may or may not you know be addressed or want to be addressed why wouldn't that be sufficient on an abuse of discretion standard well because the district court in this case did not go through the specific reliability factors but it said clearly you know you don't have to well you have to you have to at least make a make an whether or not you need to use those in a particular case is really in the broad discretion of the trial court so what is it that what further explanation do you think that judge us and for analysis he should have made well the thing here is the judge last and essentially punted the issue of reliability of this expert testimony dr morse in particular to the jury the jury gets all of these articles about the concept for it to consider but the bottom line here is this court can take as a matter of course here can the theory be tested no dr morse himself testifies that there are no diagnostic tools with respect to this extreme theory that he's cooked up i mean we're talking about let's say low voltage exposure we're talking about touching you know an outlet and from that outlet touch you have all of these die fuse symptoms that an individual can experience and then you can hear that to the literature and say there's a bunch of cases where they have low voltage the injuries are accidents and they have these symptoms and those cases often you're on or talk about low voltage being a thousand volts we're talking about at most if we're have a conversation about the voltage are one hundred ten but by our view forty eight to fifty one or forty one fifty eight it's a very low voltage shock to have this a ray of consequences so can it be tested no is there any science explaining how this happens no dr morse himself admits this he says no diagnostic tools so you can't replicate this and no science that does the connection he can explain how the science makes it possible for this type of exposure to result in the injury that we have and you think that their vision of some of the cases is not science it's not it's not anything that it's not anything that he has himself said is possible so you in terms of the reliable factors we look to you can't in his testimony absolutely not and then the i think the clinching factor is there's not a single not one not a single reported case anywhere in the united states of america federal court state court that accepts this theory of low voltage di few select trickle injury is something that an expert can testify to with reliability it's been pollutes the whole conversation with respect to the expert witnesses that the plaintive presented under the differential the differential diagnosis protocol for those reasons we believe the district court's decision was erroneous and asked that the court reverse thank you good morning may please the court howard good friend representing the a pill e s roger and lisa marie steve fury trial counsel is it counsel table with me let me address first the instructional  issue there's no issue here about stevedore liability judges laz nick found in his post trial order that the steve door was a non entity at trial that was not part of any defense there was no dispute and i reiterate that i think it's in the pretrial order no dispute that the light the floodlight at issue here was the vessel owners light under the vessel owners control and when it malfunctioned resulting in the shock that injured mr murray was inspected by the vessel ownership engineer who reported that it was in very poor condition and should not have been used for service and this was the condition that it was in this is exhibit two eleven it's in the excerpts of record the chord itself but should've put the vessel owner on notice that it was defective because it was spliced in several places it had clearly suffered water damage and salt them it and when the experts took the like apart they found in fact that not only had the ground wires been cut but there was contact with the live portion live wires terminals and the housing was charged was picked you have argued in your brief that there was a waiver with respect to this particular instruction and mr talmage has come back and said really need to examine that in the context of two other instructions that were proposed given seventeen and nineteen so that in effect there was a challenge to the instructions your response to that well there wasn't a challenge the instruction mean let's talk about the three arguments i think there there was a challenge to the duty to inspect and i'll address that at the end of the other ones the other arguments in the brief is that the turnover duty by its terms were choir's reasonable care by the owner before turning the vessel over in the jury somehow might have gotten confused that we were arguing for an ongoing duty after cargo operations commenced there was no exception to the admission of before and in fact you know had there been i'm sure we would have readily agreed that we could put it in there because there was no theory no evidence and no discussion or argument that the vessel that the hazardous condition here occurred after cargo operations began it was undisputed that this was a condition that existed at the time of turnover and there's no dispute that the owner put this defective light on the catwalk before turning the operations and i think judge lastic remarked on that as well as to the turnover duty being owed to the steve door as opposed to the longshoreman that was also not discussed there was a challenge i think in the post trial motion about the failure to instruct on the stevedores duty and that's the point at which judge last night remarked the steve doors negligence was not an issue here it was undisputed that this was your light and the steve door was not if if mentioned barely mentioned at trial second of all as for the so you're suggesting then that his argument terms of the error in instruction fourteen that it imposed a continuing duty was never addressed in the exceptions and the argument that there was a duty  that the state the duty is owed to the steve door and not the longshoreman was never accepted to and last until after until after and it's wrong i mean this court i think in thomas v newton  said that's a one thousand nine hundred four case while often framed in terms of the steve door the turnover duty runs to the longshoreman and scandia and how it talk about the exposure to the steve doors workers not to the company i mean it's a tort duty owed to an individual engaged in this operation so even if had there been an exception i think this court should reject it the duty of inspection there was an exception to that and to say that there's that these instructions you know allowed strict liability based on an seaworthiness not a finding of negligence ignores not only instruction fourteen but all the other instructions that were given including the two immediately preceding it twelve as the summary of claims that says the defendants were negligent but the plaintiffs contend the defendants were negligent because the vessel and its quitman were not turned over in a condition in an expert  experience long sherman would be able by the exercise of reasonable care to carry on his or her work negligence reasonable care instruction thirteen the next one the elements instruction the first element is defense turned over the a p o ireland and equipment in such a condition that an expert in spirits long term would not be able by the excess of reasonable care to carry on his work on the vessel and two defendants knew or should have known of the unreasonably dangerous condition and then you get to fourteen which talks about the turn over duty defendants have a duty to use reasonable care to turn over the vessel and it goes on to talk about an expert in experience long term and again and then the second sentence which is the only part  to in exercising such reasonable care defendants have a duty to take reasonable steps to inspect the vessel in its quitman it's clear that such reasonable care refers to the preceding sentence about the turnover duty court talks about the turnover duty in terms of what the vessel owner knows or should have known about the hazardous condition that it controls and if you limit  to no you could eliminate the duty of inspection but if there is tort liability as there always is for what the reasonable pam man should have done under the same or similar circumstances it's reasonable and in fact as you pointed out judge smith in the owner's manual that says there's a duty to make sure electrical current is in good working order there is a duty to find hazards like th that would put a reasonable person on notice that there is a defect and as the plaintiff's expert said that this instrument this piece of equipment was an electrocution weighting that let me turn if you don't have any additional questions about the variance i thought me turn to the downward issue there's really two i think issues scientific theories that are under attack here one is that electrical injury can be diffuse that is a person can suffer injury not you know along the point of contact or the point of exit but that electrical injury can cause central nervous system damage anxiety emotional problems headaches balance issues and yes it's true no one knows why no one knows exactly the mechanism that that operates all the experts agree on that and that's true with high voltage electrical injury or low voltage electrical injury the theory of diffuse electrical injury though is well established and even the defendant's experts acknowledged it so when they say we don't have any scientific theory to support how someone can be injured like this that it might be accurate that no one actually knows the mechanism of it but it's widely and uniformly recognized now the more i think the more disputed theory is that injury can occur from not only high voltage electrical shock but low voltage electrical shock and that was addressed by judge well as nick in his order on ballard he took to heart i would say this court's admonition a reversal in  where he had no hearing made no findings and the court told him next time do it right and show your work and that is exactly what he did he actually said on the record it is for seventy nine it's in there to the extent i didn't drill down enough and make the record sufficient i don't want to be in that situation again i don't have a three week trial where the plane of died well was on appeal and have to go back and do it over again so what did he do he continued the trial to conduct a hearing in court he allowed both sides to submit additional scientific literature and authority at the conclusion of the hearing whatever you want to see any literature that's out there i will read it give it to me and then he waited he read it and he expressed lee addressed the daubert factors in a written order finding dr morse's theory both scientific and relevant under seven o two he did that and here's what he found that it's dr morse was a well established expert in biomedical electrical engineering that he has published on low voltage electrical shock causing symptoms in peer reviewed journals that his theories were not developed for purposes of litigation and that they were supported by other studies of extended symptomology of low voltage shock a whole body of literature quite a few articles they've been cited and some of which were acknowledge by the defense own experts as by credible wit experts in the field so you let the evidence in any allowed the defense to cross examine dr morse on whether they're phenomenal one of elements which was to tell me discussed first of all what about testability there were no animal tests the referred to to show low voltage damage how can this theory of low voltage injury be scientifically tested what what is the methodology which we can apply it in the case well what what dr morse explain was the methodology is you you look at individuals so free ported front checked out reports true that it's injuries but there's nothing that uncommon how can you two not how can you determine an ever rate under that situation can never know whether the person referring the injury to the voltage is correct or not i would agree with you that you can't determine an error rate but let me emphasize again that the four factors that are that they rely on and that come from daubert are non exclusive they're not and the court said that repeatedly that this is vested in the district courts discretion different scientific theories will be result in different factors being used and what what he relied on was peer reviewed other recognized scientists recognize it not prepared for purposes of litigation and he's a well established expert in biomedical ect going to nearing that that the other academics in this field recognize is that an abuse of discretion to rely on those factors if you had to find an error rate every time a scientific theory came around you would you would result you would require human experimentation for all kinds of terrible things i think and it's unreasonable to rely exclusively on that factor in this type of of scientific testimony the second will be most who was a scientific explanation and i think dr morse was quite clear in that he said that it must be something with the cells and i address that i think that goes for the action the does is he didn't say it has to be he said that's the theory that people have a spouse you know he relied on neurological studies by britain you know people study the brain he will i don't histories of other accidents i won't know in terms of in terms of his trying to explain the mechanism for this i think you know he's read other experts and some of them are published on this neurological data but again high voltage electrical diffuse electrical injury it's i would submit that the fence wouldn't dispute that there is such a thing but they don't they can explain that mechanism either that's that's and that's not a diffuse injury that's the difference a few things are right so the question here is is the idea of low voltage injury causing diffuse injury generally accepted and what's the basis of that well the  mean it's it's not a fry test so you don't weigh up you know you don't but that is an element it is an element in and obey and i think what what the district court found and what dr morse's declaration and the literature that the district court solicited and read before he made that finding was it is recognised by other experts in this field apart from dr morse i'm s thank you have some rebuttal time mr talmage just a couple of points very briefly starting with the daubert issue first no diagnostic tools dr moore says so in his testimony that means that it's really a matter of impression it's an impressionistic standard that's being advanced here by the plaintiffs for the reliability of this test for the reliability of this theory and that's not enough to establish the necessary reliability that this quarter ticky lated environment council has accepted the proposition it can't be replicated the test he's accepted the proposition is not universally accepted in the scientific community in fact dr mor neurologist don't accept it as well you have reliability problems with this test that make it something that's unacceptable under d'albert lastly with respect to the instructional error issue let me remind the court of course judge last nick forgot about the fact that instruction seventeen in one thousand proposed by the defense were at issue about the stevedores duty in his post trial order in this case what they're suggesting has to happen is that the vessel owner has to literally rip apart equipment on board the ship to assert that the equipment isn't sufficiently safe at the turn over time to establish the standard this light that we're talking about was not something that was obvious unlike hedrick where the splice was problematic and was visible here you had to rip apart the light to make this possible you have an electrical officer that said i've had no problems with this he couldn't replicate the the circumstances of mr murray's injury post accident almost immediately thereafter you have no indication to the vessel owner that this latent defect one that had to be ripped apart in terms of this portable light was something that was known to the vessel owner that they had an obligation to tell the the steve about at the point of turnover and i would note as well that the cargo manual issue is something that council raised for the very first time on appeal that was not something that was argued to the district court below for all these reasons we believe the court should reverse th you thank you thank you both for your arguments this morning case just to give you a murray versus southern route maritime is submitted steel klein very says their national brotherhood of teamsters is submitted on the