good morning welcomes the united states court of appeals for the six circuit if you represent the appellant please let us know how much time you want to reserve for a bottle even if you crane became a runaway crane causing a ten ton chunk of metal to hit him in the foot and meat rendering him on crutches for the rest of his life in america before this co controller itself there's also a cd and there was a video showing the bridge the crane move i was told i was not able to show that to you live and they brought that so you can watch it instead not otherwise  now this is in the record this is the record the video of the crane moving was taken at the time we all visited the factory it is not necessarily in the video on the c has a big old bridge that connects from one side to the other it's a big old bar like a beam on it runs a trolley that runs up and down and there's a motor that pulls straight up and down called the and it is the remote control in your brief be arguing primarily that the problem must have arisen from the  connect these are contact or sin when they are that's this and these are dirty contact or so they are sort of were in there in the record and or at least in the discovery which is this the one that says the in the machinery on top these are pictures of not the contactors that we don't have but of some that are in the record showing the ridge quo bridge contactor well these contactors would be the switch to turn on the motor and any motor this happens to be the bridge motor is the one that turned on and we couldn't turn it off and because of that it pulled a big ten ton thing on to mr bones foot  so these are the contactors they had they are activated magnetically once they come into contact to best understand how this works there's the transmitter as you see here has fo is these are the those are not the contactors but they are contractors that as exemplars and they those are the actual dirty ones those are ones that needed replacing and there in the record and somewhere this is the controller it is worn on the belt with a belt here and frauds and you have the four paddles where he's kind doors those contact orse will be all the way up on the bridge right next to the motor that they turn on what happens is this sends a signal which is on an c radio proof signal like your like one of the the old telephone feasted have horrible telephone it also sends a signal that is recognized by handshake you know with a special code there's a antenna up there so that it can be the whole device can be moved around direct and then that actually sends a small current signal to the contactor which closes to and it has a much stronger amount of electricity so that there's anyway but yes straight up and down this is a remote controller for your t v and you think that the problem in the case it caused because of the of that accident is is whether the district court was correct to exclude your expert yes and i'm sure that is to determine if would you agree that the initial report doesn't really high his  ground work to his ultimate conclusions there and giving rise to this final report i would agree with that if we ignore them and the initial reports we've we've read these reports i mean we have them and i i'm trying to figure out where what part of this would you direct our attention to that you think remedies the defect that resulted in the district judge excluding this report  first talk about this is a rule twenty six report yet a stand a question a do just tell me what page or paragraph you think satisfied the deficiency that the district judge what do you want us to look  whether or not this report was required to satisfy the obert is something that needs but it also to be used in connection with the summary judgment i mean this is what you offered to create a genuine issue of fact yes and so if the if it was not if it was inadmissible the new didn't have anything in so you know the district court has to make a decision about admissibility based on the summary judgment evidence you have remedy this problem i don't and if you can't do it now and you want to do that while she's talking and you tell me when you come back that's right ok i will tell you that the report says he didn't inspect the cookies didn't spec the contactors the standards so you have to inspect the contactors and figure out yeah we're talking about we're talking about standards in the industry that the judge chose to ignore when he threw me out he did not complete standard here that says you have to inspect these contactors every month it's the it is a but there's no evidence that the defendant didn't do that there is a sense that the defendant didn't do that and that is in that yes they have evidence that caused any problem excusing where's the evidence that caused the problem that occurred on the day your client was injured that the contactor stuff yeah ok well what you're dealing with the fact that they don't meet some unspecified standard is irrelevant unless you can connect that the plaintiffs injury when will we have is we have a close circuit it's a very simple thing the circuit closest in other words the remote control turned it on and then it got stuck how do we know that happened we know because of the actions of the know only that the day that the circuit closed that the components in the circuit are really very simple we know only that those components are switches we know that those switches stick we know that those that one stuck you can't earn stickum if they're not in working order we know and we are limited to the fact that cranes came to this scene they took these parts and took them away they have never been found to get these they eliminated those parts we've been unable to evidence huge they were instructed to get have them tested they took them away per testimony of their employees they took him away and then they're gone by the defendant i'm talking about the defendant  disappear because we've been denied the right to test them does not the long give us some leeway some deference to a circumstantial evidence to be put in play this is a really not a very hoard concept it is a closed it is a circuit for those that welded itself shut it kept going until the power of the whole thing was turned off this is basically your spoliation argument it is the way you can show or hopefully causation is through a sort of presumption based on spoliation of the evidence that's base basically that's right and why would the law not also allow a simple circumstantial evidence argument that says we've only got four par specifically the case that people who are not allowed access to certain dead experts who are not allowed access to evidence argument this is not in evidence about what circumstantial it's it's in satisfactory at that point then the fact that the evidence is it's missing it needs to be further needs to allow further deference to the now i guess what do you what are you going to put on before the jury to show that there has been causation here the only thing you're missing is assay i guess is the element of causation got to show that i didn't know how you know show that i'm hopeful i will be allowed to have an expert explain the parts of a crane which are not that complicated and say that this is these are the points where it could fail these are the points where we know it did not fail by post accident testing and therefore it is most likely this point and it again this is not a very it's a pretty simple machine for evidence that the defendant had anything to do with whatever the failure was the defendant had absolute control over the maintenance of all the cranes in this factory well you know sometimes things just happen  clarify some of the factual issues to do with that crane first of all the contactors mr marshall's intense focus on the contactors this is genuinely and truly misguided the photograph that he provided man and when he brought in was that's actually a little component part that they were was that the actual contactor is he brought in this little component part that he had maintained its khana cranes position and there's they burned out and caused it to lock in motion yes your honor it's these theory that's the first thing they checked because that's an immediate that would be an unlikely reason for the event  evidence in the record is they were normal they were not burned they did not fuse they did not cause for contribute to this accident in any way they were immediately ruled out that's why someone at c n n usa there were their property disposed of them they were looked at they c m w way that was their property they owned it there were lots of component parts that were taken apart that day and looked at they were left with c m w i once it was determined that didn't cause the accident they are they were in good working order everyone moved on if that didn't cause it what else could cause it is a isn't what we're missing here is the request for an adverse inference instruction against kind of cranes when you say that it was the employer that had the contact or so let's assume that the employer did dispose of them even if there was the basis for that inference would it be valid to apply it against cota cranes not based on the evidence in the record thus far but he seems to think that there's evidence a cone of cranes got rid of the contactors and therefore should be held against another twenty thing is a record support that now the record supports that c m direct that that to me the most compelling evidence about who had possession the contactors was the gentleman who produced the photograph possession no because they were deemed not to be significant or important because they examined them and they were working fine they were in good working order so they were immediately ruled out as the cause or contributing cause to the accident they moved on in their investigation the focus then came to the radio transmitter and perhaps all in the record yes yes your honor it is so the evidence in the record shows that after this accident they actually tried to utilize these contactors again in a test and they work but now you open them and these particular contactors are in a close sealed box on the bridge and so they meet in one of their open that sealed box looked at them have they feel used are they burnt and two completely inspect them and ensure they have to take them off  say this after the accident they attempted they worked the crane attempted to get it to malfunction and again they tried and it did not doing all kinds of things into my question i'm sorry on tended to be pretty narrow pretty sad if these contract contractors had fused together they wouldn't work if you try to get right correct or if they were somehow otherwise defective presumably one work critter higher after the accident did they try to make this create did they test the screen to see if it worked as it was intended to do yes it did numerous times and it worked perfectly ok so i'm just curious nobody ever seems to say that that that that by definition rules out the fact that these contractors were these contactors were non operative and if they had done an inspection on a timely basis they would have seen that and they would have replaced that's the theory here and think your honor he just summed it up perfectly yes that that's the exact evidence necessary to refute the  is your club's position about what caused this to occur have an expert report and i've provided you guys have numerous photos up there i won't mock my constitution we hired an expert crane expert his that it was improper working order they tried the crane ten times twenty times that day it worked perfectly fine after the accident so this thing on our bench that starts at the top apple the one that your yes your honor and i try to put some in order here that would be most helpful but by industry standards as a safety protocol this is to be turned off the energized when it's not in when it's not in use the plaintiff admits full well of minutes against his own company safety procedures against his own knowledge about what was safe he left it in our job was turned off when he handed it over to his coworker now the problem with that is and there are some photographs here that show when you do that these levers they put a metal bracket around it seemed seemed w a had done that when you handed over these levers move very easy there they move almost fluid and and one of the pages i took from expert's report his theory is when you hand when he handed it over energised which is why you don't hand it energized you could potentially move one of these levers their hands are in gloves because it's very orderly in there and they're so they've got big hands that come down his theory is when he handed it over he inadvertently hit the lever that moved the bridge and he let go the testimony is when the bridge starts to move and you will see there's this extremely heavy dye what seemed to be a determined was poor doll a out story here in a very confined very narrow spot this very heavy does hanging down the bridge moved slightly by the inadvertent touching of the energized lever he let go but there was enough with gravity gravitational pull with the weight that that swung just enough from that movement you've only got like a twenty four inch space in here that it's one just enough momentum to pin his foot what happened kept moving and the guy with the controller quit it and it wasn't ultimately stopped until somebody had a master stop it it was moving again the theory is that it was moving because of gravitational the ma father so many minutes later people had all come on the fact the master stop the evidence is kind of murky about it's not like it was swinging they had to stop and stop it's not going to stop it's ten thousand pound thing and forty feet off there were people around in motion what kept it from moving could've been any number of things besides that master stuff a gesture in the brief is that this thing kept moving tell the third employer wherever was hit  override those out supported by the record no it's not it's not they said they did go hit a master stops which i would also say there's a lot of evidence in the record that there were other activities that contributed to that ceasing to move as much as it was just simply that gravity just just lowing down but people coming around pinning it and would have kept the momentum from continuing on there's no evidence at all there's no evidence in the record at all that anybody that's investigated even seem to be why they did not implicate khana cranes in any way for any cause or contribution to this accident the only evidence in the against policy and procedure they passed the energized transmitter and it would been very easy to inadvertently hit hit that and as you said your honor afterwards the fact that the crane did not malfunction they tried repeatedly to get it to malfunction again after the accident to see if they could could figure out what had occurred and it worked perfectly years ago who only got to rely on those only ation theory to get somewhere here to get to the jury on the some theory but your answer to that is that your client never had possession or control over is that your theory correct correct your honor martin the evidence in the record indicates that seem w i had that virtue of their own employees bringing in a component part of that so i suppose somebody could argue  theory that the employer was acting is the agent of kata cranes but in fact it's the opposite isn't it got a cranes is a sub to the employer so they're the agent if the if you were analyzing it  in principle agency yes so can you just tell me conceded that yes they conceded that they knew that was against safety policy and procedure they both the plaintiffs conceded it and that they said they were in the habit of doing it and when you're there in the facility you know it's always helpful to do the inspection which again mr vaughan's expert was did not attend the inspection of the facility but you see i was surprised at how how easily those levers move and that is the reason and actually the reason c m w a fashion the metal bracket about it and they come from that manufacturer they don't have that this metal bracket this is another picture which shows you again how easy it would be to hit this lever and honestly it moves flu they fashion this on there to keep these levers from moving you're wearing it on a belt around your waist and when you're moving you're a very tight space and since this accident they did move their dolly answered she weren't so confined but in that tight space you number that's on your waist you could those levers could get hit and cause a crane to move in and burn back even without manual touching absolutely which is why they fashion this on there was an effort to help prevent that from happening so they knew that was a problem so that's why we know that it was not and we don't know exactly how it happened but we know it was not our my expert's opinion is that that caused an judgment when there is no other evidence in the record let me ask you a hypothetical question if i could is that is that theoretically or hypothetically possible that if heath was to say not only i'm a cr guy because apparently you have some experience with brains but i've investigated a lot of different crane accidents and based on my education training and experience the characteristics of this particular accident i've seen lots of other times and it's always been the contactors so i'm making this up as i go along the course but had he said something like that is at least hypothetically possible that that could survive dawber based on his experience no your honor there's he'd have to show something to substantiate that and based on my knowledge and my extra was well versed in the grain industry that's that does he's investigated one hundred train crane accidents and ninety nine percent of the time it's it's these contractors and he explains why you don't even think that would survive governor as you as your honor aptly pointed out early on the fact that this kind continued to work perfectly after the accident completely refutes the fact that that's a little bit of a problem with my  figure out we know this guy says he knows something about cranes but is there anything in the record that he's investigated crane accidents before and therefore he can validly say i guess his argument would be we should infer that he has the experience to be able to testify these points even though he doesn't tell us how he ties things together in the report that's kind of the argument that's the argument read actually mr to quote mr marshall i think in his brief he said he's got a lot of experience in quote lifting heavy things but he doesn't know that nowhere in there does he correlate his experience to how he reached his conclusions you didn't take his deposition no don't really know what other experience he has or doesn't have it just based on the c v other than a c v yes yes you're right that's it that's my question thank you mr marshall you'll have your two minute six and seven page ten and eleven the bottom bullets i'm hearing over onto page eleven of heath report and page fifteen the a direction until the guy ran over to the main power switch which is way over there and we've got three with this is that all that in given the summary judgment that has to be taken is true problem here council is an unusual problem in that you're having difficulty showing what caused this curve and there seemed to be least more than one explanation the contact tours and their four could not have spun we hated him the last witness taken in the reason we had to have a supplemental report man named chris campbell came in find that he was the guy that went there he worked for kona cranes at the time he was the last guy taken because he didn't work kona creams in the mall that he removed the contactors and that he took them back in that he was instructed specifically the guy for kona cranes that showed up after this accident and he's the guy that invested that investigated that also and then to go to have one more thing what does he say happened only only one of the but you're telling me is i do have one other quick question i'm looking at these parts of the report that you've directed our attention to and your expert basically says that something either stock or it was fused basically yes now if something was fused that means that it was it was essential he joined together and then the electrical signal couldn't break apart right yes how could something have been fused because of these defective conditions of these contactors when it apparently continued to work flawlessly afterwards the issue does he explain how it got i get stuck i think but once something is fused the thing won't continue to work isn't that at least logic want to want the theory in intermittent fusion is  circumstance stick a nonstick those which are so yeah and then that's because it's those clay close magnetically and so it takes electricity to close them initially and then the big bunch of electricity flows through and then a big bunch of electricity fused as opposed to being stuck it isn't going to work again that is meant for human about the meaning of the word fuse it the metal does milton come together for a period of pop apart or mean anything that an expert would normally do he's own safety boards for question instead he do any exponential experimental testing of any similar contractors at all  contrary to all testimony he's one of the lawyer out of many your honor and i would say that he did testify in a very i'd have to go back and look i don't remember him specifically saying that i without looking on i don't want to be dishonest to the court he said a lot of things that weren't accurate what i do know is that this is opinion but our question is were is a material dispute a fact about the evidence of a case in of he said this is what happened then there's a witness who says this there may be one who says the opposite but that's the problem let me let me help you out here so we just finish this up i think if people read forty five of six there is some testimony about what should have happened to these contractors and who should have done it but this guy doesn't