three fifty six jessica frye versus the x x transportation incorporated at all oral argument not to exceed fifteen minutes per side mr parrish for the pla morning please the court counsel i represent the family of cheyenne frye who on april fifteenth two thousand and eleven was a thirteen year old girl who was struck and killed by a freight train being operated by defendant appellant happily see ascetics railroad over a crossing that was maintained by apple e conrail the owner of the crossing was comments this morning in the limited time available will emphasize the first two points that we say are errors that were committed by the trial court time certainly happy to touch upon any answer questions with regard to the other issues as well but beginning with the first error that we allege is that evidence was admitted at trial with regard t side effects of medication that was found during the autopsy of cheyanne frog now the medication was called the reason why it was error for the trial court to admit this evidence is because it first of all was not relevant it did not go to prove more probable or improbable any fact at issue in the case when i say that because it is clear that the record is void of any evidence of any effect or more specifically side effect that the presence of this medication found during the minute call examiners report had upon  cheyenne along with our all with regard to a t h d the side effect of that then was emphasized in the underlying case after over counsel's objection they were allowed to proceed with the testimony in the admission of information from the pharmaceutical manufacture of dozens of pages of possible things that might be associated with this medication not unlike you for watching a t v commercial we see take whatever medication with the healthy happy people that we see in the commercial which is probably an accurate reflection of what the there is a question of whether of how she ended up on the track and why she didn't move then couldn't this be relevant and then come in and then you did exactly what she should have done you cross examine let me get the names dr hepler and dr somerset and elicited that they did not diagnose cheyanne they did not upon her psychological condition and doesn't that mean it's relevant evidence which you have shown to a jury does not matter in this case i believe the distinction is and and certainly with regard to losing the objection then then proceeded with the cross examination as your honor has identified but i think the differences here is that you have to have something on a threshold basis for l r for evidence to be admissible beyond conjecture why is why isn't the toxicology report finding that in her system sufficient to make the testimony relevant but a jury question that is defined by what else is alyssa tid on cross examination i think one indication of why it doesn't get there is even identified by the trial court order which even in denying the motion for a motion in limine e reflected that it may i have some indication and i would submit that for evidence to be admissible that it has to be something more than a mere possibility or a or something that is nothing more than speculative because otherwise that would mean and we've cited in our brief a couple of examples of where simply like reading through creates a basically a panoply of all possible things that that might exist that don't have the the basis the basic reliability that is necessary for evidence to be n was identified in a study that ended up in the official paperwork through the f d a that i believe as part of that process i just can't say exactly but that's where the information came from the identification of the study that was discussed foundational fact pretty reliable that this is a site this is a potential side effect i don't believe there's any dispute as to whether it's a side effect the problem arises when it is then being attributed to a side effect she was on the track she had your buds in listening to music struggling with her bike and that was as was identified by officer been ours reporting officer with the trunk or reported mediately after the wreck that she was that her bike was hung up in the crossing and that's what she was preoccupied with and she was struck and killed by the train and so wasn't there also some contradictory testimony that she stood back it had not crossed her arms but it had flashing lights it's wrong if there is that testimony that she st back and then stepped guy out there is there is contradictory testimony that occurred at trial and the contradictory testimony was that sharyn was straddling a bicycle at the of the crossing and did not proceed across the crossing surface itself into little immediately before impact now at the but what was reported to the police officer at the time was that about a quarter mile away approximately twenty five to thirty seconds away she was seen struggling with her bike on the crossing surface in the end doesn't that make it a jury question it makes it a jury question as to what the maybe the train crew could or could could not have done or what cheyenne herself did i don't see how we make the leap to saying that this was  that this was a side effect of a medication that's kicked in i think that that play into that specter into the case that it was clearly unfairly prejudicial with there being no evidence that she had ever suffered any side effect there was no testimony there was no evidence of there ever being such a side effect on the other prejudicial point the key thing he cited seem to involve instances of  there is a there is a tread separation case there yes your honor that is eons or to your question but i think the distinguishing fact and in those cases it was being argued that it was a that the condition was a contributing the court joseph mcdonnell on behalf of the defendants since mr parrish wanted to emphasize those two arguments his first two i'll also address those almost the court has questions on some of the other issues as to the drugs there's no dispute that she had this a telegram going to the system we had the toxicologist come in we laid the foundation for his opinion for the tests that he did and he testified that it was in the into the person we then brought in the medical examiner dr happier her doctor somerset around and he testified again that it was an anti depressant based on his knowledge of the drug and his review of material at the f d a website that it had as a side effect suicidal ideation and there were warnings against prescribing this to him and of us really increased possibility correct of suicidal ideation not that that was a given from i agree or if i overstated that i apologize but your honor's question supplants counselor right on point here it was relevant we have a situation where a woman young woman for no reason steps in front of a train at the last second who is being treated for any h d one of the lack of focus which was why this drug was prescribed other facts that would play into a potential inference providing the relevance would be  was failing in school she was in danger of being held back she was struggling with her weight she there were other problems that were discussed with the trial so the it's was real and has to provide an explanation as to what why this may have occurred that we know how long she had been on that particular drug that i guess i call it the likes of but i know it has a and that was why it was prescribed as i was just wondering whether there had been any history of suicidal ideations anywhere along the way or is this just apparently possibly the one as that's when we what we know about is what happened on the day of the incident and plaintiffs were free to bring in her primary care physician or whoever else they wanted to but they chose not to i mean she stepped in front of a train with bells ringing horns from the train sounding the flashing lights sound the sounding the court exercise discretion in this regard the case is sated by plaintiff the nice case the testimony was allowed as an explanation for what might have occurred with regard to the drugs in radnor the x that was unwitnessed unlike in this case there was no evidence as to what happened at the time of the accident and additionally in ratner they provided as i read the case it was not clear that the expert was ever allowed to testify but that counsel was allowed to read from the p d are which is a little different than dr somerset relying on information that he obtained from the food and drug administration website that would be one judicially noticeable and to the type of material relied on by an expert such as dr somerset but both of those cases would be the concepts in both of those cases would be applicable here wouldn't  know the the idea that the issue is who is at fault what caused this accident in these products liability cases it might be a defect in a product and here it might be a failure to take appropriate or timely yet action so i'd i don't see i think your brief argues that these cases simply don't apply because their products liability but i don't no evidence because i believe they were wrong and witnessed as to what plaintiff was doing at the time of the accident whereas here we have evidence of what plaintiffs to see that was doing at the time of the accident and it was  relevant as an explanation for her actions the saliva case too i mean that the only reason the testimony was not allowed in saliva was because they were able to raise  to their expert said that she could determine that the person attacks skated by marijuana based on some level and that was shown to be defective and that opinion was kept that's not what we have here so the concept of the case is applicable you ask yourself is this more probably do have or is it more prejudicial and you're just saying that you're the facts of your case distinguishing making this relevant and  the doctors testimony was not excluded because of any dog or challenge or defect to as a ranter we did lay the proper foundation for all the documentation and everything which was not defendants the jury was instructed that there could be more than one cause and you know the there's the factor next in here and there's no evidence that anyone was cau excuse anything that might have been caused by conrail i would this agree with mr parrish that there was no ever evidence that her bike was stuck on the track the record is clear on that and the officer testified to that whether it was because she stepped down at the last minute or didn't get off it's still supports the position that that may have been a cause and i guess the bottom line is under either scenario the extant was unavoidable given the fact that there's unrefuted testimony that had the brakes been applied a quarter of a mile away she still would have been struck by the train and the second issue had to do with the jury instructions and while that mr perished in the dress it i'd like to address them as the court has more questions on the first issue he's mixing apples and oranges there the instruction that the seed could be relied on to act as a fourteen year old girl or could be a year or that the seed standard of care was that of a fourteen year old girl is different than what the duty of the railroad was under the circumstance the railroads duty is described with regard to braking or slowing a train by michigan case or the crew realizes someone's not going to get off the track there is no duty to stop or slow the train because a train crew can rely on the fact that children even as young as seven under michigan case law will recognize the danger of a moving train and get out of the way or not step in front of it to me that mr corker had to instruct before one was sort of general regarding a person of her age the instruction that he wanted the plaintiff's counsel requested was that the railroad head of duty had some increased duty because she was a minor and that's not what the law in michigan is because she was thirteen years old first of all there is no indication that they could even tell how old she was as they were approaching a train at forty three miles an hour secondly the law is that they can rely on the fact that children even as young as seven will either not go in front of a train or get out of the way of a train the cases that he cites all have to do with judging plaintiffs contributory negligence and that's not what the instruction that the court gave dealt with it dealt with the duty of the train crew with respect to the operation of the train and  stated what the michigan law was the charges the hole in this case was fair and i think there's no basis to reverse the verdict in favor of defendants in their regard  are other arguments with regard to the what we believe is a somewhat belated raising of the summary judgment in favor of alan gallacher especially given the facts in this case except forth in the brief i mean he agreed to an instruction that said that the jury can find anybody know i would say because of anything gallacher did because he had obtained summary judgment but i don't think there's any evidence that he violated any duty under michigan law given the same law we just talked about with standard  event i'm not saying the court would do that but if that happens i've never thought about that happening because given the fact that the engineer was found not to be negligent and he's in the same position as mr gallacher  and record entry one fourteen page twenty nine twenty seven to twenty nine thirty you'll see that he explained that he had misunderstood the question that mr parrish and asked him in the prior trial and explain the basis of his misunderstanding he thought there was any underlying or using the word i apologize your honor  a foundational fact in the question that it was readily apparent that someone would not get off the track and he said that that was never the situation which he saw and explained that at the trial and i don't believe he was impeached at all but i just don't see under the facts of this case i'm not presuming to say what the court will or will not do because i know that that's not my place but i just if the engineer was not negligent mr gallagher couldn't be negligent either under the facts of this case and in any event the accident was unavoidable because the unrefuted testimony is at the time that they saw first saw her it was already too late to stop the train to avoid the collision whether they saw her outside or whether they saw her on the track and they had a right to presume that she would get off the track before they got here so really their decision time was only when they made that decision which they'd be even closer than a quarter mile as unfortunate and sad as this case says it was not the fault of the defendant and unless the court has any other questions any of the other issues or anything i'll sit down with that red light just one perfect timing thank you i like to touch on something that was toward the end of the councils of commons with regard to the time and distance there is evidence in the case that when cheyenne fry was first seen she was on the t rails there is that evidence in the record that was approximately twenty five to thirty seconds before the crossing there is also evidence in the case that under those circumstances a train crew is to throw the train into emergency which is hitting a special brake that dumps all the air out of all wheels and loss of all wheels for it to slow as quickly as possible takes a very long time for a train to stop but the point is is that had that been done then you change the the impact at the time to something that is much more likely to be survivable then forty three miles an hour by a freight train touching very briefly with regard to the first point the evidence of trial was that she was a very happy loved girl she was killed by the train on the first afternoon of spring break i would submit that that is not when a child would try to take her own life she was on her way to get together with friends for the afternoon the evening this is the evidence that the jury heard this is the evidence of what was in that case the mere presence of like how a premium as indicated in the medical examiner's report has very little probative value but the then turn that in say oh she is now someone is going to commit suicide is incredibly prejudicial in that is why we believe that that was there also this is with euro congo was found negligent for the condition of their crossing but the next question the jury answered no it was an approximate cause of her death if this what we contend was in a miserable evidence that came in with regard to suicide is what misled or confuse the jury to find conrail negligent but not the proximate cause is all the more reason why there should be a reversal on that error switching quickly to the jury instruction michigan instruction ten point zero seven is what we're talking about and my understanding of the standard is two in which that it is reversible error for this not to be given was is ten point zero seven an accurate statement of the law it is and what it is saying is that if a defendant knew or should have known that a child was in the vicinity and you see a thirteen year old girl with a  the defendant is required to exercise greater vigilance so now we're switching to with regard to defend it c s x is operating the train the jury should have been structed as to the greater vigilance not a little bit inconsistent with the pretty new composite case law in the michigan court system about train accidents and the duties placed upon those who operate the train which seemed fairly deferential to the train operators there  are the many of these cases are cited back in a time that i believe was well before comparative fault in was dealing with contributory negligence but also and we cite in our brief case law that it does take that into consideration but i do agree with you your honor that there are a lot of those cases from that time period that talk about what the particular child was doing or not doing and what the train crew could have or should have assumed i think it is also fair to say that they they are looked at on very much on a case by case basis but but to your point your honor yeah there are cases as cited by the railroad that really agree with you on the issue regarding summary judgment to gallagher thank you and what would that new trial look like and i had not thought of that specific question until i had to dance to it and so i'm glad i had a few minutes to think about it here's what i believe is that there was an instruction that the court gave that specifically said you're not to consider alan gallagher and i believe that if the if there was the reversal because the summary judgment was improper then there would be a trial with regard to the negligence of alan gallacher was there evidence that was not admitted that would reflect on the corporate parent liability that was excluded i believe there was your honor and most significantly it is in this is not a disputed fact that within the railroads operating rules it talks about the time period in which a conductor is supposed to take action if they see something that is not being addressed by the engineer and matter of fact if i recall correctly i think it's identified in our brief that were you would throw the train into emergency was  a little quicker access from the conductors position as opposed to the engineers position and so i believe that there are things that mr gallacher should have done even if mr fischer the engineer did not that could have for making those arguments the case will be submitted and you may call the next case