defective gas cylinder that almost killed my client is what this case overturned into at the district court and all throughout discovery proceeding it was nothing more than an inquisition in my client's personal lives as  embarrassing aspects of their sexual practices well except for i have to say i've been a judge for a long time and i was a trial attorney i was a trial judge all of those i have this record of lying is pretty incredible here that's so i mean that is not the usual line that you see in the case i mean i think is i sort of have felt as judges i probably hear perjury every day because people say mutually exclusive things or when i was a trial judge but this was it went on for a really long time there's and and it's pretty incredible and the meth use is certainly relevant to the device  and i'd like to address your honor i mean it's tragic what happened here clients but if your clients were in fact you know using meth with there certainly is a lot of evidence before the judge that the district judge when he finally dismisses the case that he that your client may have been using it for you know to smoke meth out of it like that burning for an hour or hours at a time i mean it's and they say that they smoke meth every day that they've been doing it for years and there was lots of evidence to that effect and that they probably that they had told their lawyer would that be you that would be my firm they're on our case all right well some time earlier and then still continued and they were in the middle of the trial when it finally got to smith right right that's right your honor two weeks into tr and the court essentially found that in june two thousand and thirteen the court entered an order denying a nap location motion on behalf of worthington saying despite my discrediting and disregarding the pla testimony the plaintiffs have presented substantial evidence of a defect in the cylinder and all court to this case is due process and in the light of  service the evidence was days of expert testimony by r x expert metallurgist doctor remeasured carr who pined that phosphorus used in the construction of the cylinder essentially leeches into the steel body causes it to be brittle steel under normal circumstances should be able to stand and it is a war of energy and which is what makes steel so strong the cylinders were made very very well what so ever intended to be used as meth pipe very very interesting question your honor an employee of worthington's said that it was foreseen by him that persons would use cylinders like this even for the act of using it to use as this was actually a foreseen issue by worthington not simply a foreseeable one and i don't want to take the court's time with the idea of superseding cause and all of that because i think the issue really is proportionality in materiality that if the court can look at all the evidence before it and say yes even setting aside the plaintiff's testimony i still find substantial evidence the court has indicated that it can sever apart those issues and still render a verdict  sanctions dismissal is that is the highest sanction it is but so what sanctions would have your clients have no money right and under this sanctioning could only be of your client's right not it could be that the sanctions against as misuse even go that far to ascribe you know i'm just going to say that there's fifty fifty liability based on what i've heard so far even seventy five percent liability there were four million dollars in medical bills even the twenty five percent finding of liability against warrant and what it meant something to my clients and was a proportional and available remedies for the court for what happened below is a well is it's a bore and there's something called sub or nation of perjury which i'm sure that you've heard of and i mean defense attorneys particularly in the criminal sense are very familiar with that and when they know that their client if their client has told them that what they said is a lawyer and they're going to get on the stand and by and it seems that there was a indication that sutton the accusations of worthington that are from did anything to suborn perjury far but that whatever happened in camera we don't know what that is right counsel went in camera about when  his dismissal was going to take care of everything right exact was just i've imposed the ultimate so nothing more can happen yes your honor it was the district court decision that he had rendered the ultimate sanction and then nothing no further sanction either my firm or my clients was appropriate do you think that's wrong and then plus you think that they shouldn't be able to go back and get some sanctions against your firm to write a separate issues you're wrong and as to worthington's appeal i do believe that that is a dead issue that our firm no bad faith was ever intended to the contrary and as the district court found we worked for months to ensure that nothing but the truth was delivered at the district court level that well didn't they say did they ever say that they were smoking meth out of this device cylinder no no they just said they were meth users they were meth users and they have continued to continue to maintain and that has never changed that they were not using that cylinder to smoke methamphetamine on the day of the answers and to the contrary my client would not use map gas to do this because as a separate further in the proceedings is not not useful for the purpose for dirty burning fuel that wouldn't made sense to use in that situation any people do a lot of things that don't make sense it can't if you've been in a courtroom present when that comment was made and my comments about that not necessarily evidence but that comment was essentially made in the heat of the moment while i i go i recounted remember which comment was made made of the moment or maybe i was under the influence at the time of the at the time i was under the heat of cross examination as opposed to the heat of the moment no it was the heat of the moment you're on anywhere with any backcross examiner yes ok yes it was regarding confidentiality and i think this is an important point to make the state bar this is codified in the business and professions code says that our firm in each of our individual attorneys are required to maintain our client confidences at every peril to ourselves and not to the extent that we're going to do anything on behalf of our client whether it's withdrawing or disclosing confidences have to do with minimum extent necessary wasn't the least coaches possible and the  ask any questions or get any information about that right and they got significant information from our client and in the representations of orders from our firm on the record well i guess i guess the whole thing is your client has no money all right so the sanctions would be against you and they've and so even if they can get attorney fees on this case they're never going to get a dime out of your client so sanctions if if let's say you should have gotten out of the case a year ago and you continue this and they have to continue you know defending the case because of the positions that you take how will they ever be made whole on that they could certainly be made whole by a credit against the judgment against worthington possibly reducing its nothing possibly was or reducing it to a negative well but you didn't win anything oh our position we certainly could have in the district court indicated that there was significant have it substantial evidence of a defect in the  morning morning have please the court i'm kathy hong attorney for pelleas the worthington in the teeth and since the court has a lot of fifteen minutes per side i'd like permission to split the fifteen minutes with my co counsel nature ergo and i would like to take seven minutes to address responding to plaintiff's appeal from dismissal order thank you in deciding plaintiff appeal from dismissal order to score only to answer one central to the pivotal issue in this case how did the fire happen in plaintiff's bedroom six am in the morning on a monday morning such that the district court finds that it is now impossible to believe anything plaintiffs have to say about how the accident happened can i tell you something that bothers me about this the relation the fact that this is a non jury trial the judge was free to disregard completely the testimony of the plaintiffs possibly even believe the opposite of what they said cement the resolution of mother evidence it just seems to me to be strange when he the judge recognizes dismissed by a judge who could have decided against them on the merits if he wanted to and he's sort of avoiding that marriage decision which he could have found for your client and is imposing a what seems to me to be a fairly harsh sanction if i may or be within his discretion i'm just telling you what bothers me and give you a chance to respond hey i like to say that in the ninth circuit is a well founded in  could address a very issue in valley engineers and has of course that in a situation when the court finds that cannot believe anything they say and that there's no assurance a trial can be had the true facts then the dismissal is warranted and it is not enough to simply strike played his testimony given though the judge is the only child back here because without playing this testimony as to how the accident happened how do we know that they were using how they were using the products whether they were using the product in an intended manner in the reef mostly forseeable way what will what was your theory at the time at the onset or what of what caused the under the influence of man subjected to torture and cylinder to excess to force therefore causing the branding steel cylinder to fracture and in fact the metal even bend by more than fourteen degrees and this is a the defendants where they did that if they denied it the judge was perfectly free to say i believe the opposite is so what bothers me is that i meant what is an otherwise meritorious case in which he was trying non jury in which he could could have decided in your favor based on the disbelief of the plaintiffs he nevertheless chose to terminate it in dismiss it without the signing and that's what that's what bothers me it may still not be an abuse of discretion i'm not incident rate was near zero point zero zero zero zero seven percent white all accounts this was a very durable products the consumer products safety commission even conducted its own testing of the product of exploded and they had and they had their own expert testimony who talked about the defect in the design and manufacture correct earlier you asked about what stage of the trial with this case terminated and it was before the defense had the ability to put on any evidence so the fact that there's this determination that this case is meritorious that's incorrect i was never found for the reason i wasn't concluded it was because you want simming the judge this believed that i would've adversely affected your defense but you were going to put in for example how strong this pipe was and what what degree of  sustain may have the question again i know how did it adversely affect your defense in other words they had met they why and so how did it adversely affect the defense you were going to put in was i assume scientific testimony to support your position that's right your honor so how did their head of their self confessed perjury by the time by the time you start the defense case how would it or prejudice your  and in fact rich carney highlighted this business order why the dismissal is the only possible sanction this case is because there is no assurance even going forward from time of trial that we would have  sufficient to say ok i will now this believe every word they have said so you know they can go forward but let me just tell you you know i don't believe a thing they say now you could at that point say you know we want you know since since you've now your honor you said their testimony doesn't count for anything we want as a matter of law because they have met their burden you know so if their testimony is key to their case  but from what i hear opposing counsel say says look we have experts that said that whatever happened on the cylinder should have been able to withstand whatever force they put on that even under reasonable force  ok plumbing correct yeah and sometimes plumbers drop things sometimes it's a single sometimes they have a big monkey wrench isn't following the sound there so you know that's supposed to take some stress right that's right on and in fact plane  pretty a witness is an experienced climber who testified that he dropped multiple cylinder height as high as and twelve feet and never had calendars close maybe that's that shows that this was th of this was one that was affected because it should have been able to take whatever stress to currys math hads could do in their bedroom with it if even a plumber can drop some human twelve feet and it worse than dropping it for twelve feet just angry at just angry at the plaintiffs for for lying i mean what he i'm gathering you know found that they were lying and probably was good justification and you know the question we have is is the fact that the judge is angry at the party for lying enough to pu given the size of the room the height of the room how much how far could hear about that let's say he had sort of flung it up how far could that most storms are something less than twelve feet because slab the slab i believe let's say you had gotten you know day what would your phone i don't know what we were shown we would have known at some point in time before the trial plants counsel was aware that their clients had perjured themselves and they well that's all we have we don't have testimony from counsel as to when they want to credible witnesses but we know they learned it before the trial began and even if they disclosed it right before trial began we could have absolved with two weeks of trial and we could have gone directly to the evidence or hearing and found out that their testimony the false testimony went to the core of the accident that they didn't just merely drop this from bike the that the force required to fracture the center would been taking this on that's how this accident happened that's our theory of how this accident happened and we would have gotten every injury hearing before the trial ever started in the court would have found out then that there wasn't a thing he to believe about how this  what kind of eventually healing this well we would have completed the evidence or you're ever going to be hearing that we started we we had the evidence you're hearing as to plaintiff's no numbers i'm sorry you said if we have found this out before trial they had plain scandal had disclosed that their client had committed perjury the evidence you're hearing would have been as to the scope of their quid perjury were doing discovery when would they have committed closure they committed perjury during discovery during trial and during the evidence or hearing you see you're not listening to yourself you said we wouldn't have the time so this is before trial so ok so put your mind will i'm asking you a question i want to listen to the question answered i've not just spew was of me ok you say you would not have had a child you would have had a hearing tell me how those come about and what the hearing would have been involved before trial yes we had brought a motion two years before trial dismiss the case based on perjury and that was without point of concessions that they committed perjury so how could i my understanding is the hearing that you didn't get was that you wanted to go further at that particular time but not but the trial restarted you're saying you could have avoided a trial i don't i thought that this came to a perjury and that's when it the scale tipped for the judge and that's when the judge after his testimony concluded said we're going to suspend the trial we're going to have an adventure hearing as to the scope of the perjury and as to when counsel learned as to counsel's role what they learned and when they learned it but that was that was happening after the trial had already started true yes ok thirty days of the past thirty days that her preferred methods of taking meth was smoking and that she lived with a person who was a have been to all drugs or alcohol it was impeached men evidence to prove perjury yes when but when they admitted it on the stand that's when it really crystallized that's when the crystallized in the in the court's mind yes i mean i think everyone's got that that's the whole purpose of getting ready for a trial is to impeach people and but i would think find it very perjury two weeks into trial when they couldn't disclose that before the trial of you even begin and i submit that the ethical duties of lawyers the inherent duty of candor and the obligations of attorney officers of the court in that they need to disclose when a client committed perjury when they find it out not years later or months later or even weeks later you know professor friedman micro friedman takes a somewhat different any development which may conceivably affect the outcome of litigation and that the system can provide no harbor for clever devices to divert the search mislead opposing counsel or the court or cover up that which is necessary for justice in the end but it's all true but let me tell you what troubles me about this is that he have a lawyer who apparently was trying to get his clients to tell the truth and he was ultimately successful and he suffered because as a result assuming the dismissal was proper there was a dismissal of the case that had merit according to the judge not withstanding his client's perjury and probably cost him a substantial amount of money and it seems to me that wasn't just why isn't that enough he tried to do the right thing doing the right to to to to expose your client when you're a  did tell the truth and it cost him the it cost him ultimately the sanction the direct effect of the dismissal was possibly a substantial amount of money and terms of what the judge said was a meri is it fair is it can pour with the ideals of fair play and a level playing field to hold on to that information and spring it on to counsel on the court two weeks into a trial the spring of one i'm sure you were happy to have it ice i mean that's one thing if you didn't if he hadn't disclosed it all together that's another story but my team and i spent hours and hours and hours preparing for this trial you know and the paramatman right you know i'm not sure that all those i don't want to go into an argument about how you spend time but you found that you found that seem to me significant evidence rather quickly in terms of the math pipe in terms of the records from the rehabilitation center i think even had a toxicology report look you have a client who had the pocket and so you could go on and on and on looking for what you already know nevertheless my team spent time trying to prepare for the shroud to prove an issue assertions that day or contingent pretrial it turned out they were going to concede i  done exactly what it would have done this was discovered it would have gone to all of the doctors gone all these records gone to all these friends because there's no way where the pin is going to say he told us everything i trust him now they don't trust him  how it's just it's incredible it's not worthy of but there's no prejudice no to that factor underhill ako i think that factor weighed against dismissing this case the materiality issue i think especially so given that even the under california law if the conduct is criminal when the product fails that's going to bar the liability and as far as the this being a surprise the trial i'm just you know for the panel and in november two thousand and eleven counsel in open court indicated to worthington and and the court itself we don't dispute they were using methamphetamine in the weekend before the fire two days before the fire fifteen months before