kirk may please the court where here is a court nose on appeal of the district court's order granting a daubert motion in favor of the defendant finding that in the court's judgment  judgment order in favor of the defense because we believe that the court erred very seriously and not considering adequately the daubert standards for reviewing a question like this  thousand and eight by clark equipment through a distributor to the owner sterling steel and was a set sent at that time with the sixty two inch bucket larger  bucket and the prior to that that had a loader with a fifty two inch bucket and subsequently after mr kirk's injury they went back to a smaller loader with a fifty six inch buck for the obvious reason that it would not be as fro raised it and judge blakey it did not find that mr pichichero is not qualified he had a very extensive background in industry including with material handling equipment front end loaders the design of them buckets and so forth so i'll not address qualifications other than to submit to the court that issue is satisfied in our favor the nd issue always is whether or not the opinion by the expert is reliable and that focuses primarily on the methodology used by the witness or the expert and i would like to just really briefly just call to the court's attention some language from  dr hunter's approach starting from the known facts about the accident and eliminating other possible explanations until he left i was left with a hypothesis that was physically possible and that fit the evidence is a good example of the scientific method we believe that's just exactly what dan but chico did in this case as our briefs in the record show there was very extensive discovery  loader and he studied all of those including doing some of his own calculations to try to determine based on the two different sized buckets that we're talking about the sixty to ensure the fifty four inch when and where would a load  tend to cause the bucket to tip forward a very important aspect of the engineering has to do with the fact that when the bucket is raised in it's full forward position preliminary to that the rated operating capacity is reduced because if you imagine a teeter totter if you put somebody heavy on one hand and somebody lay on the other and one side is going to go down when you move that max and that's the place where mr pritchett go did calculations that were not done by anyone else i had forgotten to mention that i'd like to reserve five minutes of my time for rebuttal if it's not too late to do that  o you're on time counsel i will thank you and the the primary issue though is his methodology well he looked at everything that was possibly available to him and then judge blake that sterling steel and their engineers and sean work in team self from clark had done extensive examination found no other impediments no failures no mechanical problems with that machine so for mr pritchett got to go out there examine it again to find the same thing would be pointless nd the machine had been altered there's no it was not the same machine and it would not operate the same way because sterling still to extensive engineering done by mr pritchett having to do with the center of gravity of the machine he resides in some regard on information from stirling steel from clarke in that regard there's extensive information about the load in the bucket heap load and in the struck low they call it all of those things are well set out in the briefs and those are things that experts or both sides can educate a jury about my point is mr pitts he goes done everything that an expert could possibly do in order to analyze the case fully and present the evidence to the jury you see that the bucket between the parties as to whether tyler kirk's manner of operating a machine was a cause not necessarily the sole cause or even a contributing cause to the chip or whether it's due to the imbalance because of the large buck  the way to resolve that is for the jury to hear from both sides and to make that decision based on engineering evidence mr butt chico's work will help a jury and explain to them why the dynamics are such that a chicken curry even if you're within a rated operating passively certainly if your load is above the rate it operated capacity then that's this size of a machine and the should not have been sold by clarke at the time of the sale of the machine it came with the machine it was in parts of the customer order but it came with the machine and it should not have been for this kind of a low and it's one passage in the operating manual that's very important i think on page it's our next twenty five  and clark tells the operator if longer buckets are used now bear in mind it's machine would ordinarily be so over the fifty four dollars inch bucket if longer buckets are use the load center moves forward and reduces our o c it operating capacity if very dense material is loaded the value must be reduced to prevent overloading clark knows perfectly well when they design this and they sell this bucket with this machine that it should not be sold for this long should not be sold of dense material is going to be used and yet they sold it anyway it's not a negligence case a strict liability case and so they are responsible for the unreasonably dangerous condition of the product but that's the gist of the case and mr pacheco did go through all of tyler clerk mr working thing agrees that tyler's behaviors as he testified were appropriate later on he comes back as an expert and says he may have been speeding may have decelerated too fast all of these things are opinions of the defense expert a gear and good morning may please the court my name is john garside and i represent kark equipment company b f l e in this case they do business as a cad company which manufactures the very well known line of pop cap compact construction equipment this case is a complex product liability case requiring expert testimony to address the stability of a bobcat s one steer loader before i get too far into my argument i do want to address one factual issue to make sure it's clear for the court the employer of the plaintiff tyler kirk in this case purchased the s one  up steel scrap it and used the sixty two inch bucket with the s one hundred and thirty for about five years until two thousand and thirteen when the bucket apparently wore out and they replaced it with another dollars inch low profile bucket which they kept using until mr kirk had his accident there were no other similar accidents along the way which is an important fact that  to deal with but unfortunately for the pollens their expert their hired expert damped chico tried to do the bare minimum in this case and he identified it purported defect scale byproduct that the steel making process you claim the defect was that the sixty two dollars inch bucket allowed the operator to pick up too much more than the rated operating capacity of the lower for this particular load or configured the way it was with some additional options rated operating capacity was one thousand four hundred and twenty dollars pounds and that is half the weight of what we call the tipping weight which is that weight that will cause the motor to simply forward if the bucket is raised to the tipping point about chest high so half that amount is what we call the rated operating capacity replaced the original bucket after five years and then after another two years of use mr kirk had his accident so that was there was a st accident seven years you're saying there is that is correct chico did no testing of his theories he did not inspect or operate this accident loader he never inspected the scene he never went to the stirling steel factory he has never operated a skid steer loader at full capacity never used one to pick up and move materials he did no original research he used articles from a number of years ago they were provided to him by plaintiff's counsel and he does not know how fast mr kirk was traveling or how much weight was in the bucket now this last fact is really the salient one for purposes of the motion to exclude that we filed against mister if his report did not say  that he would give the opinion that the weight in the bucket exceeded the rated operating capacity at the time of this accident so i asked him and i asked him more than once in his deposition are you going to say that and he said no because we don't know he would try briefing and evidence took about nine months to look at the case issued a twelve page opinion which i think this court will agree meets the standard for applying the  rule seven o two tests which in turn means that this court should apply the abuse of discretion standard in reviewing the district court's decision and of course that means that even if this court might have ruled a different way cases set out things like well any of the things you know it is true that you aren't required to do everything that is listed under doctor but you have to do some of those things and essentially this expert didn't do any of you no testing there was no peer review there was no determination of error rates he didn't look at other similar accidents and he didn't exclude other potential causes possible to tip forwards gets your loader with only the rated operating capacity in the bucket if you operated aggressively enough you can the way these machines work they have two handles and you hydrostatic control system so if you if you let your hands off the handles very quickly the machine will stop short if you do that with the bucket in a certain position raised a certain way with even just the rated operating capacity and if you can cause the bucket bucket and that's because the skid steering principle operates more efficiently if the weight is only on the front or the back wheels it's evenly distributed between those two you can turn the machine but it's a more is turn if it's sort of balance closer to the front or closer to the rear that the center of gravity is shifted that way it's good steer operation works more effectively so the machine is actually designed that way relying on tyler kirk's testimony but he relies on a sort of an idealised version of the testimony tyler kirk actually testified that he came to a complete stop at that ramp that he know it's a pretty steep edge to the ramp and the loader itself doesn't have front wheels and rear wheels but you have a bit of a bump as you come off the ramp he he he was he we had him excluded by the district court you know ok so it's been the same expert for palance all along and the report and the deposition were both consistent in that he didn't say you can either place that defect he'd identified in this case which is that you can pick up more than the rated operating capacity with a sixty two inch bucket actually just to have the time of th so there was a gap an analytical gap as the court put it between what he wanted to criticize about the machine and what actually happened he could not link plants which they're experts not do but he also didn't do any testing of his own and it was not impossible or even difficult or even very expensive to do this i know because we did it for clarke equipment company we rented a an exemplar has one hundred and thirty loader we loaded it up with st the rated operating capacity to show that in fact you can't ship it forward with just that amount in it if you operate it aggressively enough and then we loaded it up with seven hundred pounds which was a little more than the plaintiff's experts estimate of what may have been in the bucket at the time of this accident and were able to demonstrate that it was possible to do the maneuvers that was supposed to be doing safely with that excess amount of weight in the bucket there's a margin of safety built in the rated operating capacity as i mentioned is half of the tipping passerby so there is some room in between the two where you can operate the machine you know safely if you move slowly enough and if you keep the bucket low enough and this is this all this instruction is included in bobcat companies warnings and instructions well there is it's true and we in fact believe that's what happened here because this scene with the same was perfectly safely or seven years by other employees at sterling steel company without ever having an accident like this occur so i you know that that tends to show that in fact what happened here was an aggressive overly aggressive maneuver or maneuvers by mr ker that caused the machines or on this day he testified himself he didn't below didn't look unusually large to him he couldn't remember much about it he could remember whether it was a heaping load but he didn't it didn't look unusually large and he gave certain testimony about how he maneuvered the machine up to the edge of the hour he was going to jump and came to a complete stop then raised the arms to dump the load  chico massage that testimony a little bit to say that he was moving forward slowly and raising the arms and that's because he knows that just as a matter of simple physics if you come to a complete stop and raise the load up to the tipping point the only way it will tip forward under that circumstance is if you have a tipping load and it was just two thousand eight hundred pounds i think he did not believe that would've been possible didn't want to have to be stuck with saying that his so he said that and they always have that the nine amec effect of operating this kind of a machine with the loads in the forward part of it can tip and reduce the rate operating capacity in the ordinary course of the machine as the center of gravity shifts forward mr chico did a lot of calculations and analysis to quantify what that is and to show that because of the extra load in the front of the machine in because of the large bucket those shifts of center of gravity and the tipping point even they admit it can be done within the rated operating capacity if that's load below the r o c so it won't tip and they know perfectly well that it tips at or above the orosi question or two about that ramp i do want to mention that the ramp has nothing to do with this case because tyler got to the top of the ramp he stopped there then on level ground he moved forward slowly he approached the pile he raised the there's no need for dan to test anything on our side because we're not doing a lot of all this is not novel to say let's use a smaller bucket that's been done long before clark long afterwards even by