more your honour's rob robert j mandela for the appellant david missionary i'm going to use ten minutes of my time and they are there there is one plaintiff why do we have two lawyers we are doing the case together honor because of the nature of the case and i have to say it is not common for argument to be divided you know laterally when there's just one party being represented i was only going to allow it but i'd suggest in the future you want to be careful for that to be permitted yada aspiration three in court will never let allow you to divide argument like this we don't do it very often our apologies your honor i mr sullivan came to kansas city missouri and i wanted to give him an opportunity to be heard before the court he was going to take the rebuttal argument and i was going to do the main argument but if it please the court we won't do it that way i have ok we believe in essence your honour's that the lower court fashion a broader rule out of the tritone case than was ever stated in that case or ever intended in that case and that this broader rule that says triton prevents the court from relying on the testimony of an expert witness who did not have access to the allegedly defective product collides with california law as stated in the cases that we've outlined not to mention the supreme court case of campbell by tryin well i i believe the ninth circuit is bound by its precedent but there's nothing in triton that says what the district court says in his ruling the tritone court was looking at a particular photograph under a is that they really didn't know and i think they were trying to suggest it was a manufacturing defect and they were going to go back twenty years and they were going to base that solely on this photograph and they had no idea what the history of that breaker was in the entering intervening twenty years unlike our of vehicle which we know from testimony was perfectly maintained over its eight years correct that you were only making it for on appeal we're only looking at a design  argument that for act i think we can make a manufacturing defect argument based on the evidence that we have what argument have you made not what you can make what did you present to us i think we present we have presented both you evidence to support a claim of defect and of the risk benefit us that's that's the design type time isn't but we're also saying that it does not meet the consumer expectations test that's also a design look at both but well we don't ask we don't look at something you have been briefed and if you haven't briefed manufacturing defect i am i sure why we should look at it we don't do your job we appreciate that and if we didn't brief brief that properly then we will submit it as it is so even if we agreed with you that trite was limited to manufacturing which is one one interpretation of that case  why how did you provide enough evidence to create a genuine issue of material fact even under the design defect i think you have first off we don't claim that tritone is limited to saying what evidence have you set forth regarding the cars design for example what evidence is there in the record regarding the state of the interior of the expedition or any expedition after a comparable  you have to put some evidence and what evidence did you put into show a tribal issue principally we have the c h p photos which show the path of this vehicle in the accident the tree strike how it continued in a straight line and therefore the tree strike was not enough to stop the forward motion of the car we have the crumpling of the car we have the side rails bent we have the interior being pushed in and all of that evidence is was before the district court including the observations of the paramedics which confirmed that the interior had collapsed and the exterior had collapsed so we have numerous photos we have crash tests video that show it's not supposed to do that rush tests video of what vehicle of both the ford f one fifty and the expedition that is that in the record it was at just part of dr diller cars opinion is part of his opinion i believe at least one of those videos was submitted to the court and on the if there was a video of a car that wasn't involved but i understand his opinion was based on videos of cars that were of the same bracket model right and there was have his opinion right and then of course we have his expert opinion and he's been a crash test engineer for some forty years i would look for in it so i'm mystified as to what his opinion with regard to a de video for that and where does he talk about that in his declaration you know well ok where does he talk about but i have to add this is more editorial one of the things i found difficult here is that it seems to me you're submitting to the court reporting  stupid us lots of stuff that wasn't what the district court so we have to weed that out because that's not properly part of us of the record we did make a motion to augment the record oh well you don't get to do a do over here for summary judgment is going to be based on what was before the district court and not only was there a motion of some point the records my sense of some of the things you attach to the excerpts of record before the district court either so when you give me a record reference i hope it is something that was before the district court well i know the entirety of dr goodall cards declaration was before the court your honor and that is brief for the court  beginning on page twenty of our brief and continuing through twenty most of twenty two getting back to judge questions question can you point us to language in the declaration which says that he looked at the vehicle i have to confess i don't remember that he looked it crashed right actually look at vehicles of the same make and model i believe he said that he was well familiar with this making model of the ford yeah i don't have that exact paragraph i do apologize but i think he's going to pull that all right but that bet that is the essence of the evidence that was presented to the district court my understanding is that in salt the court did leave the door open for the use of the consumer expectations test in a crash in fact said that ordinary consumers expectations are not irrelevant simply because expert testimony is required to prove that the product failed i thought so they said it was applicable because it was complex it was a slant obscure components it was i don't know what the hell or if i may address that in saw we had a tire that or a wheel that the tax knew had no idea why this thing detached and it went underneath the vehicle and smashed the underneath of the vehicle it was a much more unusual accident and if the court recalls we brief the panel on their own mind case which says that a rearing collision this was frightening collision this is not some unusual circumstances is the corner of a bumper hitting an object and an entire car collapsing because of that at a relatively clo so that is a much different circumstance than a wheel inexplicably coming off the car and doing some damage to the undertaker as a consumer i'd be real surprised if we all just came off a car i can't say that i'm real surprised that a car crumples up if it hits at thirty plus mph an object that doesn't move a tree so i'm not sure i understand why why i should decide this case is such that that based on what you've told me there's there's a violation because you're honored reasonable people can disagree on that fact and it's for the trier of fact and that is our point i would reserve the rest of time for vital  whether the district court properly granted summary judgment of plaintiffs design defect clean in forward favor and i have a little bit of a problem i have to admit with the reading of triton that's done by the district in that it you know it it can't it's just in my mind it can't be the rule because you can't examined you know the original vehicle that that you can never make these allegations that can't be that tritone can't stand for that proposition because by the nature of some a car could blow up and so then you're going to say that all it blew up and you couldn't look at the actual car and so we're not  liable so i think if you take it to the extreme that can't be the rule and i agree your honor that that tritone doesn't go so far as to create a bright light rule and say whenever there's not a vehicle present that one can't make out a claim for design defect and that's not the argument that ford is advancing here however trying to make knowledge is that the court can consider both direct and circumstantial evidence which is what california law consistently exactly and that's why i'm here why i'm wondering in terms of you've got visionaries photographs the witness statements of the accident the c h p and the first responders report testimony from and the expedition's owner a crash test video showing an f ford f one fifty and a printout from the national traffic safety administration showing four nine hundred ninety nine forty exposition crash task couldn't that none of them raise how can we say that none of that all of that together doesn't raise a tribal issue that there's a for his opposed to the motion to supplement and pointed out that it's ok so with risk and the answer is that in short that a plaintiff is required to prove both defect and causation to essential elements of a claim for design defect when we're looking at the police photographs the police photographs while they depict some damage to the vehicle and i would not disagree that it's don't you know there's some significant damage here there's only three police photographs  actually depict the interior of the driver compartment which is the area that plaintiff's challenges are targets in his complaint one of those photographs is obscured by a shadow of the police officer another is despite its poor image quality obscured by the vehicles floor mat and there's no way to discern from those photographs certainly triton supports it a case for a california case steven versus ford motor company which relies on titan supports the fact that photographs amateur photographs taken do not support inserted fission to create a genuine trial of a material fact as to defect when we look at the medical records and the witness statements and the police report itself there is nothing in those documents concerning injuries so that was the experts testimony why isn't there after creating a human issue well the basis on which dr caryn i'm not sure if i'm pronouncing his name correctly arrived at that conclusion was based on these other materials that i'm referring to none of which he's an expert and he says those photos are in for me to determine that the question was excessive so would we say that's wrong as a matter of law expert could possibly determine th trial in support of his opinion but the defendant's expert in that case actually inspected the police motorcycle at issue and the component part before testifying and the court of appeal noted that in allowing or affirming the trial court's decision to allow the defendant's experts to testify as to those photographs was based on the fact that his testimony was consistent with his opinions based on his actual inspection of the police motorcycle theory can't be faulted for not inspecting his vehicle right i mean it that it doesn't belong to the point if it got crumpled and the owner of the vehicle once sold it for scrap and it got destroyed so it's not is we're not like talking at a situation where someone crash tests and a list of testing concerning the axe addition while the crash test video is in the record it is as judge clifton pointed out of a completely different vehicle with a different body and structural design contrary to dr who deal cars declaration where he states various components of the vehicle structural components that are similar there is no b pillar on the ford f one fifty that is shown in that video whereas there is and door and then you have a c pillar and sometimes in the pillar depending on how many rows of the vehicle but there are all the the pillars that hold up the roof of the vehicle and so this is a completely different scenario and for dr could yield hard to say that the expedition in this case and the f one fifty shown in the video apart from being completely different the vehicle share the structural components is an accurate with respect that but is that a travel issue i mean he's saying i mean doesn't he get some sort of i mean they get some you know when you rule against someone on you know motion to dismiss or a summary judgment they get you know they get certain inferences in their favor at that something to find out at trial whether having the a in the b you know exactly respond to the same when there are other factors that issue that neither party can evaluate because the vehicle no longer exists and the list of crash tests that plaintiff's counsel referred to can that do address the expedition are not part on his opinions or how they demonstrate that website we can go i can go look at them right can go look at what i could go look at the ones that experts said you referred to that why isn't that something in the public domain  the list is contained even as exhibit two to plaintiff's motion to supplement the record but i don't know i'm not aware that the you can actually visibly see these crash tests they are just a simple list of what he reviewed  apparently in support of his decision i'm sorry well i know that the one video that was submitted is a video that to be able on youtube i don't know that every single crash test video  but with respect also to the medical records and the police report your honor the police in the police report concludes that plaintiffs caused the accident by engaging in an unsafe turning movement and the deposition and witness defect or whatever the police officer you know any that adjudication is saying that another vehicle didn't push him off the road that it was his you could still make an unsafe turn a maneuver but have a did defective design in your car i don't disagree with the point that you're making but what i'm saying is that the fact that the police report concludes that plaintiffs caused the accident there's no evidence that as to a defect in the design it's not sufficient evidence to in a police report that's pushing credit they don't do that in police report they did they were what what the plane have said was there another car rushed me you know caused me to take evasive action but there was another witness apparently that the police interviewed that said there was no other car and so the police officers conclusion was essentially that he wasn't run off the road and it was driver error that caused him to hit that but i see that as which reports don't make a determination of design i'm not sure i understand because he's arguing that the design defect caused the accident due to the design defect the accident caused excessive crushing of the vehicle and caused injuries so we're just focusing on the design defect not on the cause of the accident right your honor and i'm sorry if i was confusing my point was simply to say that the evidence the doctor  including the police report and the photographs and the statements and medical records of plants do not create a triable issue of fact as to design defect the question is if a car is going at thirty miles an hour and turns into a  tree is is the amount of crushing that dr bill carr said he could discern from the photos evidence of a design defect or not and he says it is because the crushing of the vehicle was excessive that's his expert opinion so the question is is there why is that not enough to create a genuine issue material fact as to whether there was a design defect the as plaintiff's counsel pointed out and it is in play it's opening brief in reaching that opinion relied principally on the photographs and the photographs are not enough enough themselves to create a genuine dispute of material fact that the vehicle was defective this to apply in that case to establish a defect and that notably the court stated that in ordinary consumer cannot reasonably expect that a car's frame suspension or interior will as i understand the argument or at least one of the arguments is as a matter of whether the car is designed safely risks versus and a fits and  purportedly and expedition in particular that was designed in his mind properly to compare to we just have to look at ford expedition for that right i mean he's relying on his forty years of experience whatever he's saying it's a design defect to the extent it's a design defect that means that all ford expeditions are improperly designed that's how i understand design defect as opposed to manufacturing correct that's the distinction in terms of production versus the design of the vehicle itself but i guess my point that i'm trying to make is these these cases that we've cited triton and brown and steve and and others say that reliance on photographs which is the crux of what dr relies on in forming his opinions are insufficient to create a tribal issue because they're mere speculation there is no way to determine that there's not some other basis for the cause of the accident like plaintiff's driving the speed of the vehicle there's there's no way to determine it merely from the damage caused to the vehicle that that in and of itself is a design defect and that's what tritone which does your honor address a design defect it's not merely a manufacturing defect there was a design defect claim in that case is why i try to is on point here and should be followed by this court is there any other questions please the court my name is rob silva and i'm going to try to address some of the court's questions and specifically are you were asking about the declaration of dr patil car in paragraph paragraphs twelve thirteen and fourteen if his declaration i think answer some of that makes reference to seeing four crash tests conducted in one thousand nine hundred expression vehicles but the rest of the neck ration never mentions that his his conclusions all appear to be drawn from a crash test the witness videos of f one fifty s i can't figure out how his opinions based on anything to do with ford expedition other than the photographs of the vehicle involved in this accident and you know what i'll point out obviously they're not listed out here extensively been in paragraph twelve one of the things that he reviews is the discovery responses in documents produced by ford which are literally numbered in the thousands if not tens of thousands in the case that he doesn't think is opinion what's it found on well it's odd to me that the only explicit references he makes are to crash test videos of a different kind of vehicle and to photographs of this particular crash there's no i mean there there  without much explanation but none of the explanation references a ford expedition other than the photographs of this case i don't see much i've looked at photographs a lot i don't see much there so what's this opinion based on well i think it is opinion is based on on what's listed as extensive photographs and photographs have been called amateurish or amateur an amateur photograph they're taken by the highway patrol show me what photograph the story gives him a basis to offer up the opinions you saw for well your honor essentially comes down to if you assume that this is a thirty mile an hour crash and a glancing blow to a tree right where the vehicle continues some fifty to one hundred feet down the road after it hits a tree so it doesn't it's not a thirty mile an impact mile an hour impact with a tree which is why you need to ask for testimony if it were thirty mile an hour impact with the tree it would have stopped there at the tree but it's less than that because it continues on not unless it's had on of it hits the side and you look at the photos it's obvious that branson look at the sky it's not going to stop the head it's got momentum it's going to keep going you know what i'm saying is to call it a thirty mile an hour impact that means a vehicle hit something and doesn't go any further when a vehicle goes further that impact is less than thirty miles an hour effectively it's an engineering issue which is why expert testimony is is required for that but when you have a crash like this in sea damage like that he has an expert having crash test vehicles can say that that is excessive damage it's not meant to do that it never should do that it has to be defectively designed we have the report that i looked at he said he looked at four ford expedition crash just videos he report that and this happens in forty expeditions there must be a design problem there right and you say that no he did i don't believe he did say that in that i've already cited basis for an opinion what's this opinion based on it's a the opinion is based essentially on the facts of of the incident is what i'd say your honor one issue to look at and don't start something new year over time so if you have something specifically need to tell us please oh i'm on the read i'm sorry i'm