thank you john de stefano for the plaintiff the issues in this case are number one whether the trial court erred by excluding evidence of similar accidents and failed safety tests that showed that the latter was defective and more likely than not to cause mr museum's injury to whether the trial court erred by excluding relevant impeachment evidence including the other accidents in the safety tests and the arbitration over the super la that showed the dishonest testimony of the defendant's lead expert mr kwan including his claim that he wasn't aware of two versions of the latter even though he had evaluated the differences between them for an arbitration that regal lost and rd whether the trial court erred by excluding evidence of hellriegel past off the super ladder to defeat cosco safety tests as evidence to show that wriggles misrepresentations were a cause of mr  i'll begin with the prior similar incidents and i need to ask you a question about the prior similar incidents because i'm not sure i can tell from the record i take it you want to introduce those incidents through your expert  yes you are now which is no separate offer of proof in this record that i can find that we would like to put in evidence of these for the truth of the matter of them rather you wanted your expert to be able to say he had considered these what the expert testified i'm just trying to fight i can't find in this record any attempt by the plaintive to say here's an offer of proof your honor without respect to our experts testimony the offer of proof was through the expert right and so the x and the expert can the expert testimony would be as a basis for his opinion right the expert would say the reason that i've reached my opinion is i've looked at these things the expert couldn't testify about that that these how these accidents are occurred he can only testify that he'd examined the latter's somebody else may have told him how the accident occurred he wasn't a witness to it so it seems to me your objection has to be to the exclusion of it from your experts testimony not because you were somehow prevented from putting in rebuttal evidence that's what troubles me so tell me tell me where i can find it offer of proof of rebuttal evidence that you would put it well it would have been as support for the expert testimony but the basis of the court's ruling wasn't you know what the the substance of the nature of the proof as much as the how what of the experts testimony have changed or been more persuasive to the jury than having isolated case that this happened more than once in addition it would end it would bring home the fact of notice the defendant two of these incidents occurred before mr moves eales accident and rd the  video evidence on the security video for mister incident was extremely powerful extremely powerful evidence and of course this is not only relevant to you know as substantive evidence of the defect but also relevant to impeachment of mr kwan who maintained throughout the trial that this binding and release behavior of the latter did not pose a risk or reflect the defect or you're expert was allowed to testify about one previous incident correct correct that occurred roughly the same way before this incident occurred correct so that he what i don't think there was any doubt in this record that the defendants had noticed that these kinds of incidents had occurred on his ladder well who would it make any difference if they knew that they had three times the notice that they had i think so yes because the you know just as a matter of of risk management a company that's a notice of repeated accidents as opposed to just one you know exceptional case would have a different level of responsibility and need to pay a different level of scrutiny to the design of the ladder and  it should continue to be marketed in design the way that it is when i read the ruling on the motions in limine a judge seems to be saying these latter is evolving to other accidents because it's just these two that you're talking about now were manufactured at different plants than the one your client ladder was manufactured at and they were different models or even know your expert would have said the models are essentially similar were i guess we review his rulings for abuse of discretion i read into that his concern that we'll get into a separate trial about how the thing changed and who did what when and i mean let you get one in but not three why is that an abuse of discretion it was in the st place because there was evidence that the design of the letter had not changed since cases you have to pay attention to the fact that these accidents are similar in all the material respects you have the design of the ladder the warnings the lack of visible locking indicators and this flexion binding release behavior that makes up the scope of the risk and so be judged he was especially focused on the fact that he couldn't determine the exact mechanism of the way the lock lever released in each case essentially requiring a level of identical circumstances and it's i mean that's that's a legal ever that's the case at least it is a discussion where the circumstances of simon incident the same as the circumstances of the other two whose names i for get at the moment in other words was was the basis on which the district court ruled that two of these should not be an admitted also true of the one that was admitted which would make it seem quite arbitrary why i'm asking the question well the there were actually are all three set alike basically simon and the other two i think i have a similar concern isn't the test substantially similar and there was a lack of evidence offered to show that they were the other two are substantially so that that's actually not my question but yes i mean to say well i'm trying to determine whether the district court criticized two of the incidents and said i'm not letting them in because of these factors but he let in simon and so what i'm trying to figure out is whether simon is the same as the two that were executed meaning that there were three things a lot i the judge excluded two and allowed one that's what i'm trying to figure is that what happened that's what i'm trying to figure out what they were they were the same in the material respects of a a single wrong collapse and but i think that you know the facts of each case vary in the particulars in rungs of the ladder trimming his palm trees in the same way as mr musi all when the ladder suddenly gave up and eat him which again you know provided proof positive of the binding effect in the idea that the you is that i don't know that these other ones were one wrong collapse i don't want to try that issue in this case i just and so your expert says they're one room collapses but i assume the defendant would then be able to introduce egg evidence that those other ones weren't and i think his concern as i read it and record was i only want to try one case here so i'll let you get evidence if this happened before so you can show that they knew about it and it had time to change it but i'm not going to retry each of these other cases here assuming that was his thought pattern he didn't say it that way but i read that into the record what's wrong with that well i think the swift is the answer is the lack is the fact of notice to the defendant that you have this recurring pattern again and again of a telescoping ladder that gives under its users mr corbin climb the ladder twice and then it gave out and then you back up to the the issue of the visible locking indicators the lack of locking indicators by which a user could be certain that each wrong was locked because you know if the user sees visibly that a lock is not functioning or has been released in a but you were a that's evidence you were able to to put before the jury you were able to tell the jury there weren't there weren't indicators but it's set or you just weren't able to tell the jury that there were two or three other accidents  judge i worry now if i let you put this into the other side get to put it evidence about those other cases and the circumstances of them and so get back to judge skylines question out how can a judge be reasonably sure these are substantially similar accidents we know some if there are one person falling off the ladder accident but how can you be sure how does he get assurances for stage with him because i think that the fact that there's liability for a failure to give for no for  failure to warn which includes a visible locking indicator shows that the scope of the risk is broader than the particulars of these accidents if they all fall within the scope of that failure to warn and  here you know the substantial similarity accidents runs through the fact that if those ladders were reliably lockable and they didn't support the weight of a user above an unlocked wrong  and then the accidents wouldn't have occurred so counsel i have one more question that i know you're running down your time but i understood the jury's verdict to find that there wasn't a one wrong collapse that caused the injury that in my reading that st answer incorrectly because if the jury found that this was something the cause of his injuries then how does any of the rest of this matter that the verdict form is not specific to one rung collapse the verdict form was about whether the defect caused if the jury said no to the question whether the latter was unreasonably dangerous as outlined injury instructions seventeen to twenty such that it underwent a one row collapse that  constant injury so i read that i mean it's a complex sentence but i read it to be a finding that this that there wasn't a one row collapse to two points with that your hon the whether the jury found the letter was defective or not also bears directly on causation because if they don't believe that a defect exists then they could find that the accident was less likely to occur that way so the evidence of the defect runs through and so for here is in particular the lack of a visible locking indicator if they you know believe that that and the and the excessive flexion in the latter if they had believed that those would have made unreasonably dangerous that's not what proximately caused the injury to your crying so how do we read this for the question of whether they believe the run collapse it kurt is inextricably intertwined with the question of whether the product was defective and likely to cause a one run collapse and if so the two cannot be separated to question i think deterrence is asking is causation what is what's the showing that whatever happened with the one wrong that that was the cause of his falling off the ladder isn't that isn't that the problem yes i think but i think i think they're there there's no way to distinguish between the two there's no way for the rest to have been said and figure out what they found evidence of the defect as evidence of causation and so you know that the problems with the proof on the defect including the n c testing etc also taint the verdict on causation and if you don't mind i'll remind reserve we i don't have much time we asked a lot  good morning it's an honor to be here and may please the court my name is reno rye and i represent telus steps inc dial industrial sales inc and regal aluminum products inc will refer to them as  regal cumulatively today beginning up on what your honour's questions were i did want to start today with refreshing or summarizing some of the evidence that the jury heard in this case  as mentioned by counsel in their brief cases involving products liability in cases involving product liability expert testimony essential to a product claim under arizona law that is andersen versus nit nathi kelso let me focus you on the thing that concerns me which is related to that expert testimony is everything in these cases and what's troubling to me is that there is not what the jury heard but what the jury didn't hear and it seems to me that if i understood the pitch that your clients were making to be this didn't even happen the way he's claiming there wasn't a collapse he just fell off a ladder and of course people do just fall off a ladder sometimes unfortunately and so the jury if they knew that a number of people had had one wrong collapses causing accidents and severe injuries wouldn't that bolster considerably the strength of the expert assertions and the believability of the plaintiff's description of the accident yes your honor to address that we really were talking about the three other incidents would be johnson and it because i don't find it substantially similar he he actually said he excluded it because he could not there was not enough or sufficient evidence provided from which he could conclude that the incidents were substantially similar where how how were those reports different than simon that's what i'm trying to figure out we never were sieved those reports and i think that's not that's not my question  focusing on substantial similarity which is what the district court was focused on how were those incidents different than the simon incident on the merits i don't not notice or no no right so the way that the information on simon and corbin was provided and the only way it was provided was through their expert who dr morse who said johnson nineteen  one run collapse corben two thousand and one run collapse and simon what did what was said about simon well the simon case the expert report was provided so there was subside don't want to  well but it provided the basis and more facts related to how that accident happened we had in that information we didn't have information on how the incident was alleged to have i don't i'm not worried about you i'm worried about the judge so that you won you can't complain about unfairness here here's something that i want to follow up with judge graber is asking about so did the judge say something like i couldn't find it in the record look at this one since i got complete information or a report about how it occurred i'm going to let it as to the other two i don't have complete information about how the occurred so i'm not going to let it that might be a rational reason they just say that yes so in the where during the process the judge held that the expert was qualified to test about other incidents so long as those other incidents were otherwise admissible because there was information about the simon case and  fence had the ability to cross examine the expert relative to similar similarities in that regard the same incident was allowed in with respect to is that what the judge said or is that your yes standing yes or on if it's hard to find you guys later you can support that i will supply it later sorry your honor but i would i would submit to you what the court said was that the information that was being sought to be introduced was not addressable by cross examination and therefore crossed the line it was not admissible in other words to allow the expert to testify about the korban case and the johnson case in the court's view would disarm the defense because we had no benefit of information upon which to challenge the experts dr morse's opinions that the one wrong collapse even occurred in those cases so in that case what the court really held was the evidence was very scant with respect to those cases and what the court additional court did additionally was he performed of what dear of the expert at trial and he asked the expert specifically if he could provide additional information about the causation related to those two cases and the expert could not provide additional information and therefore the court on why deer continued with its original ruling that those matter should not be presented to the jury and this cases should have been precluded as well one is the disclosure issue that the that we want to is important with respect to with respect to me at st the court ruled that it wasn't substantially similar because according to  dr morse there was a substantial distinction between a collapse involving a one wrong and a collapse that was called a subset of sequential collapse the expert in the pretrial discovery process and the court  cited two that indicated those are two different mechanisms of failure they involve different set up and uses of the latter one wasn't fully extended is that what you're saying that's correct so in the end the evidence in this case was mr musial successfully fully extended his latter that was his testimony and that was dr morse's testimony or a foundation for his opinions in the case in the isle yani matter the latter was not fully extended and if a user uses the instructions to fully extend but doesn't fully extend the latter it creates that danger where the rungs can collapse by operation of how the ladder works in that case it was concluded by the experts that it was a sequential collapse meaning it was never fully extended in the st instance so the court held the record held that he did not find that those incidences according to plaintiff's own experts framing of the issues and framing of whether those were different accidents and to the extent that any of those were precluded at trial and constitute error which view the court was within its wide discretion to preclude evidence of these cases but to the extent it could ever be viewed as error i believe that this court should view invited error because the framing of this case was all dependent as judge graber you mentioned upon the experts testimony and the expert testimony that was provided to the district court judge was that this the cause of this accident was a one wrong collapse a one run collapse was a separate and distinct from a sequential collapse the n c testing standards do not relate to a one run collapse i think the expert says ansi completely blows it off and therefore the court in its rulings held that anything related to testing doesn't answer the call of the question for the jury which is whether there was a one run collapse by virtue of the experts framing of the testimony so judge tucci carefully analyzed the case and limited the testimony based upon what the plaintiffs chose to put in front of the court as being the sum total of the experts opinions in the case i'm looking at the transcript of the motion limited hearing which is in your excerpts of record begins on page two  and judge tucci talks a little bit in there about some evidence that the locking mechanism had changed over time how does that pertain to these excluded incidents yes think that's another important distinction in their moving papers claim that there was testimony that the locking mechanism was never changed and therefore regardless of where they were manufacturer when they're manufactured the design defect in this case meaning the locking levers were the same and so that afforded credence to their claim that they were substantially similar but that was predicated on on a citation e that they could only state that the locking mechanisms remain the same from two thousand and four to two thousand and seven the agi on the latter was manufactured in two thousand and we know the korban and johnson accidents occurred in nineteen  ninety two thousand so what the court and when and when was the letter that mr b as you manufactured in two thousand and seven so there was evidence on the record that from two thousand and four to two thousand and seven there were no modifications made to the design of the latter including the locking mechanism but there was no evidence that as of one thousand nine hundred and nine or two thousand when these other incidents occurred that the locking mechanism was substantially similar to the one  issue in this case was there evidence that it was dissimilar there was evidence that it had changed well  gradually specific evidence of the design of the locking mechanism a change there was some evidence that there were modifications made to the locking levers throughout the course and there were some locking levers and modifications actually showed to the jury so i believe that the court was well within its discretion but again by the time we are here on appeal the appellant's are urging that horizontal  has a causal connection to the one run collapse that the lack of lacking in locking indicators is the cause of a one run collapse and to the extent that they do that now i think there's a change in position   really because of this change in position i think that the trial this court cannot overrule judge to choose rulings because any any error if there is new york we should be shouldn't  because any error is error that they invited because of the change in positions that they urged now in the appellate briefing that was substantially different from what their expert was urging at the time of trial so that really goes to  that issue i also wanted to address an issue relative to whether or not the testing data and or the expert opinions related to other incidents would come in under some sort of impeachment the e and i wanted to address that the appellant urged that there was an opening of the door to bring in these additional similar and dissimilar incidents as well as the testing data based on cross exam approach to cutting and pasting what the experts testimony was to get to a statement that it was generally safe opening the door to this other information and evidence but we would urge the court to go back to the  review the record because it is clear that the that the expert was hired specifically to analyze the subject latter that's contained in the experts  thank you just a few quick points of clarification all sequential collapses involve a one the difference only lies in which rung initiate the collapse and if it's several rungs below the user there's a chain reaction up the ladder but the binding effect is still demonstrated in the video because the ladder apparently was or became unlocked before he climbed it he was standing up there for a while and then it collapsed the simon instance also involved someone who climbed the ladder twice before it fell emphasizing that binding effect which i think you know was even stronger proof than the simon instance because in this i mean is this the person never reached the roof these are people working with their ladders which later which later collapse i'm still having trouble with the record here so i need you to help me with it when the judge issues is written requirements for admissibility will be substantially similar for purposes a rule for a one for two and we properly before the jury so and so therefore the motion in limine is denied he must then later collapses to the extent that you meet the so we're looking for the record for the subsequent reason given subsequently and your time has expired as i understood thank you thank you counsel the case just started just submitted and