where here as i've pointed out in our brief i think it's important to note here that there's very good significant circumstantial evidence that this deceased elderly driver body six years old at very significant difficulty staying awake during the day so we start with that point and then we have a driver mr de may who is not only not feasible has absolutely no difficulties leading up to the seconds before the there's really no dispute between the public and i'm only here from the standpoint of what was argued before the court clearly the elderly individual from the standpoint of what happened to him was not properly or hours made the statement that while i nap and i sleep and i dozed off from time to time in the afternoons how's that evidence negligence what he didn't consider i think on that point very closely at all was very clear in significant circumstantial evidence but nonetheless the testimony he would be able to proffer goes up until the second before he came on the rise and that people in his lane before before he's within sight right right but the was asleep or income here at the time so that's i mean that's the significant question i have here today from from anna is no case describes the circumstances of the scene being asleep or earlier waiver pieces concerned about my driving because i've been known to fall asleep but there's never any statement that i all asleep while driving or that they said i fall asleep if we want to go into your say upon hearsay ok there is nothing here to even suggest that and never fall asleep while driving so that that's not stark are those three leading coroner in this case and those photographs do show the majority of the of the debris him my client's lane of traffic which was the restaurant actually at that point on thirty fo that's right around here is there is there is no witness there is no no was credible reconstruction testimony everyone has it admitted that they're not able to  sure the supreme court rules i believe it's the supreme court ruled to warrant a deposition even if it's not for the purpose of perpetuating destine testimony can be used for any permissible per purpose allowed under rule and this case your honor i don't him the rules of evidence now it used to be i think before everything was you know more or less about the at issue is here this would be if they were systematic and if there was some testimony or if there was testimony from an expert witness say that this guy's medical condition  coughing can cause him to fall asleep suddenly you know potentially calamitous situation i think that would be a mess but we don't have in this case is no expert testimony  all there is is a statement by a robber that did not say that because i for sleep while driving my family asked me not to drive it doesn't say that all this as there's concern i'm concerned about the elderly members of my family driving also because of the possibility that they might someday fall asleep while driving but that's not only ever half and they've all died you'd be in a position to refute what the what the other side's dobson careful happens i mean it is i mean we're not putting on careful careful happens evidence of him we're putting on evidence of his propensity to fasting during the day i mean it's a physical  i think this is established evidence of a physical propensity as a fall sleep where we call pattern not i goes to his it's what his physical situation is how is this any different that he's listening tonight and he has any has a restriction on a driver's of i appreciate your time and i ask you to consider the purposes of the academic ruling and considered summary judgment standard and i think here we have very significant circumstantial evidence that tells exactly what