right i'm pretty good with names i understood that that one so i don't know what it means but fan pembroke means yes your honor thank you so i'm there and then pembroke your honors along with my co counsel rebecca bright well on behalf of mrs smith and her report do you have any way to when oh yes absolutely are ok maybe you should address that thank you i will the first question is is the testimony of chrysler's engineering employees that the t o c and p s t of the apple once jeep violated their own safety spacing requirements and then their further admission that they changed the t o c from steel to aluminum but left that aluminum next to it too close to a steel piece sufficient to create a genuine issue of material fact that the plates of jeep was in fact defective the second question is whether multiple engineering expert mr andrew webb who did opine that for the reasons that i just described as were minute by chrysler's own employees there was a defect spacing defect in a mere material defect in the smith's vehicle and then described at length his conclusion that those defects caused this fire or human caused this crash or because it was a design defect or are they were all the same design and that's exactly what so the answer both those questions we believe is unequivocally that the smith family presented more than sufficient evidence create genuine issues of material fact over defect causation and that that compels the reversal of  jeep suffered from day and twenty eight recall that i think that was it it mission then in the context of the jeep was as you may know from the briefs not available for his inspection to be clear i see that but instead he relied upon all of the circumstances that i was about to recite to conclude that in fact it was his opinion more reasonably than not that the crash because of the defect and that's what experts are supposed to do in a summary judgment stage to submit your honour's the nonmoving parties entitle to all reasonable inferences and that's exactly what these these were i'll take for example just to give it a contrast you've heard cries for sale lot about well mr smith must have committed suicide they have no direct evidence of that right there is no suicide note there's nobody to watch mr smith drive directly into the pillar instead they say the circumstances suggest that he may have committed suicide you know that we we would argue that the circumstances suggest just the opposite you know of that if it's case and one into one of the very obvious reasons that we say it with a restatement brief that we know he wasn't committing suicide he was wearing a seatbelt and when that when that car struck the pillar wasn't head on to him it was on the passenger side or it so those are easy obvious compelling reasons we know that the the theory of the the price was put forth does not require the grant of summary judgment but you can have defective vehicle that catches fire in an accident you can be and so then that issue here is whether the defect even assuming argue and that this recall information is good now from the discord had doubts identified by the eyewitnesses along half of the grass mr smith's grossly elevated car boxy haemoglobin levels and the burn damage at the pillar all supported his our we believe very strongly that the district court abused its discretion when it refused to allow mr schultz to supplement his report after chrysler which had been withholding documents for a very long time was compelled to produce  it's forty two sixty two and forty two sixty three my hand t honour's those photographs that had been withheld but then produced by chrysler only after mr schultz's first report was drafted and after mr schultz was deposed specifically show fire emanating from the very location that it is been conceded the recall failure mode will produce that fire and you might recall the other point that was made and was made by mr shaw was that's not your truck of course is not because the same model is the exact same model problem i have is it does seem like there was an extra test there was extra evidence produced after shelton's original report and it also seems like in his supplemental report he doesn't sufficiently ta i i've now changed my mind and i've become less wishy washy than i was before because that instead he keeps relating back to you know the zimmer photos and whatever else it was all sort of old news and this is not to take away from i mean i'm very sorry for the loss of course and for this family but is far is the legality of the legal issues we're dealing with it doesn't seem like to says once i received this document you know forty two sixty two it brought me information i know what mr schultz said is i've looked at all of that information and i see that the bird damage on the vehicle in the circumstances around this vehicle is unique it's not the same as fires caused by other effects or for other reasons it's caused by this doesn't tie those things together i mean you know when you're issuing a supplemental report after the deadline for of course and certainly want some motions filed to exclude it you know this is an issue and it seems like the expert has to say i couldn't have reached this conclusion i didn't have the information i needed until bates number one thousand to two thousand hit my desk and in looking at that i found this pattern of i mean this is the kind of information i know this from having seen it as a judge crosshairs made is why did he attach all the documents we produced and point out exactly how each of these changes opinion and as i tried to articulate it was it was by exclusion it was i've looked at all the other fires i won't repeat myself here what i said  honor requires that you resolve differences in the in favor of a nonmoving party that's the district court judge didn't do them all she said there is no evidence of defect the two ways you should focus on the testimony of mr against it let's take one example you're going to hear from presser that the the adult children mr smith went took some photographs of the grass and there is a those are good photographs we can see the burn damage the reality is it's their eye witness observations that that alone proves that there was that the underbody fire along with the location that mr schultz has identified that proves it doesn't prove it creates a genuine issue of material fact i think your honor that  forth very substantial evidence by multiple experts and they're just not our experts they're the experts that chrysler designated they're the coroner who is completely independent all these things show that we have created genuine issues of material fact that allow us to go to trial while i was to go to a jury and my clients who never had that chance never had that chance whatever price or view of the evidence may be whatever their arguments might be those create factual to me at your honors given the limited amount of time my argument today will focus on three of the reasons you have plenty of time to properly grant summary judgment and i'm not saying because of your case twenty minutes  circumstantial evidence there's been a lot of argument that hey this recall notice said your vehicle had the video well if you look at forty nine c f r section five five seven seven point five beat it mandates manufacturer must include the statement quote this notice applies to your vehicle and include the vendor section five seven seven point eight m but they don't require that you do that for a vehicle it doesn't include so if you had type a and type b and only type they had the fact that you don't need to write the tybee people well five seven seven point eight does say you need to use the word defect five seven some point five when a manufacturer determines that the defect may not exist and each such vehicle it may include an additional statement to that to that fact which is what f c c did said some vehicles may include this edition so that's one point the second designer and the seller of any factual at still a little weird to me seems like this is a knowable fact that joe would have a duty to produce well i'm sorry i don't understand the question here saying we don't know if this jeep had the defector who thirteen model was tested at the end of that task one of the vehicles developed the lead now there was no fire there is no evidence in the record that any fire has ever occurred in any vehicle related to this condition what about this well to go back to my first point i am actually surprised that they doubled down on that because that is exactly why circumstantial evidence is not sufficient in this case dismissed cited the certain documents not just the wolfgang documents related to three other fires that they apparently but mistakenly believed were related to the republic they were not and there is conclusive proof in the record on that on page sixteen of their pellet brief they have incorrectly referred to those fires as other instances spacing the fact the most important is obviously the walking fire and they argue again here today but also to the district work on page forty three for one quote the flames shown in the photographs of the wolfgang g are impinging a pillar suffering the recall ferryboat with the expulsion of planes in the same location as the burn damage in this test cheap is a telltale sign of the recall vote ok he is correct when this fire first occurred the walking's did report they believe it said caused by the recall and have three involved a jeep traveling down the highway how he develops a fire and that is engulfed in flames although extremely similar we know for a fact it was not caused by the recall because if you look at the records that was a manual transmission this recall on this condition only relates to automatic transmission transmissions so at bottom these three other similar incidents establish a very very important point it shows th fires exactly the same business by opponents own admission exactly the same can and do occur in jeep wrangler as that are completely unrelated to the recall and that is why opponents needed an expert by the jury needed why the judge needed an expert to come in and say this condition existed on this particular jeep and this condition caused a fire turn my second and turning my second point regarding mr west with respect to that issue  his testimony regarding the lack of adequate spacing between the two lines did not establish an unreasonably dangerous condition which is what is required under texas law for a defect it also didn't establish causation in that respect and deposition when he was cross examined by dismissed counsel miss counsel asked do you have an opinion about whether at this mess be able contain the rubber elbow i haven't discussed in detail yet it's  a rubber elbow on the steel line if that vehicle was nevertheless defective his answer was quote it didn't meet their design criteria it reduce the gap which was against the guidelines that's what they now refer to as the spacing defect one six seven and four three five four and they explained that the spacing between those two metal winds was exactly the same between two thousand and seven two thousand and thirteen however between the two thousand and seven model and the two thousand eleven model both of those lines were made from steel so as the smiths explained on page five of their brief quote f c of guard against any damage by an adequate spacing between the t o c line and p s t line by ensuring that both t steel so they could withstand contact so before two thousand and twelve there is that same space that mr webb talked about so it's not defective per se as on recently dangerous per se because the spac however after that two thousand and thirteen durability testing that i referenced the f c a then came up with the fix it rubber elbow you would put on the steel line in the work prevent hard contact if you look at pages one two hundred percent of the vehicles beginning on august twenty second two thousand and twelve that is the vehicles manufactured on august twenty second two thousand and twelve if you look at page three five seven zero and also there's t of caution which is i think exactly what the public at large and it's expects and wants from its manufacture so considering those facts the dispositive problem for the smith is that they are going to show the jeeps that have the rubber elbow  like the smith vehicle remained capable of developing at least much less a fire all the evidence in the record is that it was affected so in other words one of the problems is that no expert including but not limited to web performed any testing to and still develop the lead consequently wets conclusory testimony regarding a lack of casing is not sufficient to establish an unreasonably dangerous condition and then asked a causation he testified quote at the vehicle caught on the smiths cannot establish defect or causation so that leads me to my final point and that is that the district court acted well within its discretion when it struck the untimely causation opinion of plainness fire expert that was provided after f d a file the motion for summary judgment after f d a file the motion to strike and after discovery close it was in fact included in a response to the summary judgment motion as the court is aware there is four factors a district the record on appeal shows that is just simply not true in a district court knew it and if you look under cap six that includes all the representations to the district court on that issue what the record shows if you look at page three files for one and they had if they really needed which i think the evidence will show they did it but if they really need that information they had plenty of opportunity to request at that point in three years since the crash occurred if you look at page one six nine one it shows that by the time it's short issued his first report the smith's expert deadline had been extended two separate times for a total of three half additional months you look at schultz's report page six began page sixteen forty one at no point  on the smith motion to compel those other documents related to other fires not to mention anywhere whatsoever that they need them for their expert and so you know all the other you know the other factors are addressed but very briefly before i conclude all head on an important factor you know that's the one factor that the district court concluded way in their favor but they argued on page two nine zero four and they've argued here it doesn't matter if you strike his opinion we can still proceed so that given notice of this crash just dismissed out years before the current story so the claim that chrysler wanted to go out and look at this instrument what happened is not accurate they did not follow their own policy of investigating any fatal crash in a recall vehicle and they did not take advantage of an opportunity that they were entitled to one other thing i'll mention about plaintiffs doing neither the plaintiffs did that well we don't have the experts didn't get to i beg your pardon very beautiful but then why couldn't you all hire an expert to go inspect it as well at that if i wasn't at all the case i don't know what was going on with these but these are people with very limited means they don't understand the litigation system should they have acted more quickly perhaps but the other point i want to make is this idea that but we're sort of making up the notion of the recall failure mode can result in firing their recall notice as exactly that says that there can be an automatic event held at this meeting about it was manufactured after they started with the l the there we asked them to produce a bill of materials that showed that the swiss cheese had that they can't do it they've never produced it nobody has testified in this record that they installed such a rubber elbow or that they every twenty five days and you know a bunch of guys sit around and make it remember it it's a factory heat and a lot of chips are being manufactured so if they have a custom and practice that as if this state we were doing this why isn't that sufficient evidence to rely on because there we created a genuine issue of material fact by asking them to prove what they claim there was only there is only testimony that that was their methodology there's no proof that the the elbow was installed on the smith's car but let me just get off if you get off that for a second mr your honors i would answer any other questions but i think i think it's important as you asked the justice what is what is important focus on and it's really the summary judgment standard have the plaintiff created a genuine issue of material fact you heard the chrysler lawyer say we can't even prove there's a defect when you know the record contains testimony from two chrysler employees saying we violated our own safety spacing requirements and we changed one too from steel to aluminum which mr wilkins admitted was a design error and then also testified that it made the car defective yet you're hearing from chrysler of claims haven't even created a genuine issue of material  that's not credible with regard to causation mr webster has to fight as an expert mr schultz has testified importantly about the origin of the pre crash fire being at the same location as the recall failure mode would occur and then the all the and all the additional factors that show that the recall failure caused this fire the sporadic burn damage along the brass that doesn't happen with a massive failure of a gas tank it happens when automatic transmission line is being all that proves is that that that is consistent with your theory but i understand texas law requires expert testimony about the design defect so you're saying that satisfied by