and that the breach this duty by failing to maintain or inspect that elevator which was a proximate cause of the injury the facts which it don't seem to be in question this case is that on june thirteenth two thousand and eight which are still got her and her daughter went into the felt it drop what she believed to be to the first floor and then finally raise up to the second one it was during this dropping that they were knocked around in the elevator and sustained injury it was plain his contention that the elevator malfunctioned something and the defendant's ruthless the witnesses including that one him brennan who went out there three days later to look at the elevator and they all seem to pass the elevator nobody can really determine what if anything i don't i don't think so your honor i think i don't think it only requires that you produce an expert just because the fender produces an expert that says this actually cannot happen in the way described by the plaintiffs and part of the contention what was being are you doing summary judgment is this term freefall the pla term being used and being presented to this expert witness without their two and a half years later it's saying it is impossible for this action to occurred in the way the plan is to describe well actually it wasn't because he said it could  occur in that way now he described to be catastrophic in that way so was it impossible for it to happen he was just saying that these things would have to be evident at the time and this expert went out there i believe it was two to three years later and i think back the other question people produce all gave circumstances they said that elevator valves leak all the time now that it wasn't a catastrophic leak and it will cause a freak not a freefall would cause a fall one witness testified that it could drop ten to fifteen feet if there's a power failure  speed and distance and that was my point is that they all seem to admit that there are situations where over there is no fat function and things happen not catastrophic and let's be clear a plane is never claimed this was a catastrophic no matter that's harsh i question what questions there's a question effect they have in duty to maintain inspect that they didn't even inspect the elevator afterwards to see if there were any problems three days later they inspect and there's a question of fact they even looked at the right  created about what they look at a lot of them just so they did i test them we asked about the hydraulic pistons or valves i believe they're called to where the leaking could occur and in fact after the accident in november sometimes they did find some packets leaking and these are called sort of drop levels in an elevator so why would these things notice afterwards the world noticed before it all you had before in an inspection was just saying passing a little small ticket she had no real detail or in the guy couldn't really explain what exactly had to do  if we didn't follow receipts that counted first and maybe it was hindsight that the time is that one we did we thought there was enough there to prove a private fashion case too with an elevator service company we weren't sure about the control issue and if we looked into it deeper there were any there's not a good reason why we didn't file it just we didn't think that it was necessarily at that point and even judge maris in during summary judgment sort of they did to the fact me this case needs to take a different direction and it was why it was done in the midnight hour is that we believe the case was a negligence case we had at the time a summary judgment was still the service company and the own property owner in the case and we were really sure about the control issue which is necessary for race if the count but upon further review we realize live it the best answer is an oversight of the timing and there's no good reason for i'm not saying that there are i can't give you a good answer or the right answer why it wasn't played at the earlier stages until you know the summary judgment hearing when it seemed that that was the only logical outcome at that point and i believe that's what the second amended complaint would cure and i think that that's why we did buy a second many complain alleging racists and i don't think that it should have been denied at that point just because of the late hour the race if the count wasn't going to change anything in the case of what i mean it's not really a new theory the word could be new witnesses it would cure defective pleading i don't see any prejudice to defend it's the same witnesses would be used the same testimony would be used somewhere correct but it doesn't really change anything in terms of the discovery process the wasn't going to be something brand new they still had their expert who's going to say didn't happen they still had all these witnesses that basically did it a sufficient enough job to maintain  my argument is that the hard side case takes of a much stricter approach and that the supreme court of illinois has an adopted it and in fact the hard side case in itself does go to a loyalist standard and uses that standard really in the basis for the now i think the hard side case makes an indication that maybe there should be a movement in that direction on this sort of situation but that has not been made the law in illinois and i don't think that it is applicable to the situation i think you have to use the iowa factors and i think hard side did that as well while making mention to the fact that maybe a more defined standard should be used when the case is being all timid we decided on the summary judgment to leave to amend and that's why i think they were indicating there without making that the law how much time that day but it had been close for a while we were coming up on a genius or a third or fourth trial date at that point was about nine days i believe was in the brief prior to trial that the motion was filed but the last factor i guess one that they would say i mean i court still granted saying that that was their first opportunity to amend the court didn't really go into an analysis of why they did it considered early on in the pleadings and so that was a standard that i was using is that after the summary judgment at the at an appropriate think one of the first issues that plane it touched upon was that the only evidence plaintiff provides in this case is a description of how the accident occurs they don't have anything to get to causation that was about we had to mechanics from the elevator inspection or two mechanics from the repair company an elevator inspector and a building maintenance person from timmy park library that looked at the celebrator they testified that happened according to the plaintiffs and like i said they provide a description of what happened but there doesn't seem to be any testimony that the library failed to maintain repair or  something happened since this is an elevator and i think there's a lot of case law that talks about the elevator being a common carrier in normally elevators just don't drop from one poor to another list something we had the repair company the plaintiff needs to show that there was exclusive control they can't do that the other reason i don't think it sure is that the fact is they still need to show that the library had notice of the danger or there were cultures i think this is different is because they are based on all the facts and evidence in this case there did not appear to be a defect with the elevator it was inspected and passed inspection we had a maintenance just i don't think they show that the library was negligent and anyway there's no evidence showing that we failed to do anything with this elevator there's no advantage showing there is any kind of cases judge i think in our particular case yes and experts need it because there is nobody to testify about causation in this particular case and welton and as well as the rosenberg case that the actually i and the maintenance folks yes their testimony would have been very similar however we adopted our co defendants expert an elite elevator we would have gotten our own expert in this particular case because we would have been held to a different standard of care if we were a common carrier we would have been held to an elevated standard of care elite as a repair company would have been held to an ordinary negligent standard of care also a leak we filed no counts also i'd like to note that plane have never sought leave to a man's discovery had been closed for six and a half months they had our motion for summary judgment for two months they decided to amend ninety's before trial after judge maris had made her ruling there were plenty of opportunities to a man's we're left ninety's before trial with a completely new theory and also going to ask you on that issue as far as the cases the ards accused which is why all of you claim that hurts i in the whole it correct it does say it it seems that the standard would be more restrictive but they do apply the loyalest factors in is number one that was yes it was negligence was negligent negligent manufacture design was the claims there and you also had a situation where this was you know a power tool that was bought by a consumer and was twelve years later there was damage to it there had been things done to the product by the plaintive in that case was very different set of facts and circumstances and just because it was negligence it's a very different circumstance than an elevator case and i don't think it applies where they are saying then that kind of situation with negligent design jurors can understand this elevators are supposed to go up to a floor open the doors and you step out or go down before you step out and get down if they shake or they drop or something that shouldn't happen in the expert testimony isn't required for that so i think that when you apply that you take a look at that summary judgment issue that's the point of other witnesses as valuable harris mentioned read what other testimony was going to come out all you start to do if race if there's a budget you see it doesn't change the burden but you're supposed to tell us you know what did you do or the defense of you know maintain an inspection where they have all that testimony that they go out there twice a year with the state inspector that they do most the checkup said if there's an incident on such and such date they do it i mean all their testimony was there i don't see what new a little i don't really think there would be need for any additional experts maybe some additional time we're talking maybe a month at the most i would see to prepare for trial i don't think you need the extra time but i'm not going to tell a judge or a counsel what they can or cannot do to prepare their case but i really don't see what an additional expert would say that would be different than what was already presented in the testimony