there was unable to be done located or found by either parties sense that time approximately five months after after the accident the daughter itself actually disposed of and the final issue is as the as the hell you presented any evidence that without a kid has been prejudiced in its defense in the first the first issue under two nineteen mr chance it but mr jansen is is is is not was not a sophisticated party for this case it's not like it was destroyed by an expert retained by any of the parties destroyed by any type of insurance adjuster destroyed by that's correct when it was up it suffered extensive damage during  i thought his report was any any kid from this manufacturer designer would be was head of design back   the weight of such opinions are you know obviously the wealth with this is being judged accordingly based on their how they were you know presented it and then retained it and everything it would go into the judge you know the way the witnesses surprise because any kid can be examined in two or three there is no prejudice because you know the nature and the defect of the kid his is evident by any kid not the one used in this case with access pacifically convincing evidence standard i've been on the ball to locate any case law supporting that argument all of the case law i heard from states that this is so true to the abuse of discretion standard which is the highest most deferential standard available in our courts review so the issue before this court is whether the trial court's ruling can be considered arbitrary ban simple principle or so on reasonable suggest that the trial court's ruling could be arbitrary or fanciful a little closer to get his argument by saying that the motorcycle was destroyed evidence was destroyed by  johnson who was not a sophisticated party to this case it's true he was not used not a party to this case we understand that we also understand he's not sophisticated nevertheless he did have so authority to of dispose of that property you know the plaintiffs have cited the adams case and it's a good case it's almost almost directly on point with what we have here we have a fire that occurred in a department they thought it might have been a lot of lamps that caused this fire so they they they secured the lambs later on they realize that no it wasn't a lamp it was a comple while they went back to the apartment and the lame lord a third party unsophisticated unrelated party to the litigation had disposed of that evidence and the court naturally asked well how can we sanction the plaintiff in this case when the disposal of the destruction of the evidence was caused by this unrelated third party of what i said that the case is almost all fo that the critical distinction between adams and hastens bar is that the landlord did not have power of attorney he did not have authority to stand in accident has sole authority to determine whether or not to pursue litigation sole authority to determine what to do with her property of a disposable whether to dispose of it now we submit that whether or not he actually made a declaration one way or the other his conduct of profoundly affected the outcome of this case and he had every right to make a choice as to whether to pursue litigation when there was spite action or inaction he made that choice he chose not to litigate this case he chose to destroy the evidence oh and i'm afraid that  unless we can see how this was mounted what additional cards three years old was a law and how this thing was actually installed oh we have no way of interesting that so it oh it in plain is brief they suggest that we suffered no prejudice i strongly disagree with that notion i believe that we suffered extruding precious years we have to take it on trust that the modifications made on the second hand it was in was installed by somebody but no evidence at all that this person was able of his story it correctly and where is to say that the photographs taken by a non expert it's sufficient a lot of questions that you can raise if they introduce this expert about the photographs and you could raise all these things that the company president is talking about and we have to have your own expert to see why that's not true in all these other problems that no one was ever know and if you don't have a bike you don't have rights yet you don't know exactly you can't tell from these photographs exactly what condition right was in when it was installed  in manufacturing defect claim that anytime you have a claim for strict liability you have to be able to prove proximate cause and the cases have said that when you lose the evidence when it's entirety it affects important thing here is this and that again this is also based on the case law is that a by destroying evidence of a plaintiff should not be allowed to decide what type of defense we're going to put on and then it in a sense when we don't have the physical evidence that's precisely what they're doing they're there to king control of our case they're saying you have to assume and the th expert when he when he says that the modifications to the bike that the installation of the bike the truck it was all appropriate he had no impact on the performance of the of the the product the that's a decision was made in this case and it's a decision that our courts have found that a reasonable person would understand that if you're going to claim that there's been an accident that the involving a motorcycle vehicle or anything else you're going to have to retain that evidence you're going to have to preserve it it's unfortunate that larry johnson chose not to pursue in this case but he had that right as matter of fact he had this so called right to make that determination and for our part of for the part of a motorcycle to versions why didn't they find tactless why didn't they file suit  here she received a miss nobody received the power of attorney five months after the accident perhaps perhaps if she could file suit or give them whatever cycle to work in versions i made some notice  that they were pursuing litigation in this case perhaps we could have located that to try to get perhaps we would have been able to get some evidence here and that's important that's a significant issue here like to point out the stone you know i mean obviously if we represented him at the time we were of instructed otherwise i think any anybody who's who's experienced in litigation would i can't speak for what he was or wasn't thinking my concern ok but what about the children i guess they would have a mother claim maybe i guess they would have a claim so where do we end the line it is far worse how does it stop the who's the who stuck hunnish him for his bad choice expert to discredit them would be when did you examine the kid itself just like if you're if you're deposing an expert in a in a personal injury medical case you want to know what records in this expert review and if you didn't or you saw then that it's open for the defense to attack the but the you know there's an assumption that they could probably retain one as well and then the experts would argue amongst themselves and then the jury would decide whether or not the trite it was unsafe or not which is to be providing the players are getting more and there's no furthe