exclude expert testimony or expert evidence and also to grant of summary judgment the case arises from personal injury sustain by the plaintiff using a handheld circular saw that was manufactured by the defendant mickey the what's interesting to note is on this dog bert analysis which was raised by the defendant on the motion t exclude motion to exclude together with a motion for summary judgment it was raised right after the close of discovery no evidentiary hearing was held with regard to this essential only that what they argue with regard to the motion to exclude pursu daughter is that mr barbee mr lewis bar b who was the plaintiff's expert was not qualified to testify as an expert witness in this case and also his opinions were not reliable in opposite to the liberal standard to be applied though and in the cessna qualifications here the district court went to great lengths and making a finding that he that mr barbee was not qualified for example  barbee has about five decades worth of experience in safety engineering his degree is in safety engineering and sabbatical or science degree from one thousand nine hundred fifty four the trial court in this case for example went and challenged the b s degree finding in its decision that it tried to go back in a look at the coursework that that degree and tailed and went on the computer and references an internet search that the court conducted in terms of assessing the qualifications that part may well be qualified but what he presented to the court in terms of his qualifications was remarkably thin and no i  was generally when you get an expert to invest kind of situation big come in with a great deal more that speaks to the particular issues and so on and  puzzled and i just wonder whether vis isn't responsible for viscera of a remarkable thing that about half the courts in cases not unlike his have held his expert to be qualified in about half a cour well i think what's significant though with you with reference to how other courts have treated the sexpert is specifically in schroeder versus mickey the corporation which was a district court case out of a month that the court the specifically found that mister was qualified to testify as an expert witness as not only was he qualified to testify as an expert witness as to him a key the product but it was the exact same model circular saw that's at issue in this case that the court found he was qualified to testify about and he's indicated throughout the deposition his deposition also in his report that he's a member of numerous industry standard committees including ul committees and that the committees that these members of include committees relating to the the safety standards of handheld circular saws so with regard to the qualification aspect of this matter where the court was in error here i think the court analyzed mr barbie's qualifications i think improperly under a scientific standard rather than  examining his credentials and qualifications as in the method in his methodology also as based on his experience and knowledge and experience well i understand it's the decision we have the discretionary standard involved but it's our claim that it was you know obviously your claim right but just how far do we go in a situation where different courts have decided differently to say well this is an abuse of his is not much well it's can we really say would i have analysis that she performed and term in the terminating the qualifications of the expert in this case so again that's based upon the liberal standard that was supposed to be applied in the qualifications simmer away in this case in assessing the reliability of mr barbee mr barbie's opinion was excluded based on the district court's challenge as the reliability of it and again the district court improperly examined it and they're an analysis of the technical analysis but again it's not a scientific  technique which was at issue here it was an industry standard that exists in terms of a riving knife in this the theory of the expert witness in this case was based upon an existing safety device that it's the plaintiff's claim was not you on this circular saw that with the previous prevented the injury the reliability issue in this case as exam by the district court the in the expert's opinion was also exclude under the rely bill under the reliability aspect and we challenge that on appeal here because of the fact that marketed and that this safety the market in europe correct and also there was on the record testimony also or evidence as you say that the safety device was also previously used in the united states going back to the one nine hundred seventy one by the singer company and with regard to the reliability standard here again it's based upon prior knowledge in existing safety devices which have been that is in the existence in the marketplace now what the district court then did a nice almost of time here but on the summary judgment summary judgment but that use the exclusion of expert testimony as a crutch in granting the summary judgment and what's significant the no i think on the summary judgment though is the fact that the district court and analyzing  the at the safety defect there to safety design defect in the saw indicated that there was nothing in the record to support the claim that there was an alternative feasible safety device and is the fact that on the record as presented in summary judgment there was deposition testimony of the defendant's expert witness and also of the defendants field training a representative who both district in the district court as to the it was somewhere in the record but that you rely on that we did and that's we provide the full transcripts with our briefs to the trial court in support of our objection to the motion for summary judgment so the complete and complete deposition transcripts of both individuals the defense expert witness was presented together with the deposition transcript of the pointed out that precise issue as a reason to defeat the motion for some yes yes and and we also see in its cited in our brief also  judge that's correct and that's why that's why the entire that's why the transcript was presented and also the transcript deposition testimony of mr hyde also thank you very much refuse the surrender thank you your honor is may please the court i'd like to begin with the where my brother counsel began and that is on the lack of an evidentiary hearing just because we don't get a reply i just want to point out that that was raised for the first time in the reply brief that there was no evidentiary hearing below also not raised below quest for never a quest for an evidentiary hearing on the admissibility of the expert testimony i think the  first place i'd like to start is on the reliability because that is i think where the district court was on very very firm ground and if there is one thing but there's been references this morning to peer review and maybe not all the factors are appropriate in every case when you're doing the reliability assessment and you know fair enough maybe a peer review is not the be all end all this sort of expert but what is the be all end all in a product liability case usually especially when you're applying a risk utility balancing between two products is testing that you would have testing of the product and even without let's just take testing off the well let's see i want to cut through that because we're talking about kinetic and we're talking about connecticut risk utility which is very different from risk utility in any number of other states i mean if you read lift law and if you test which is far more favorable to plaintiffs than almost any other state you know if i were to hit a product manufacturer much or ever be in new york or never been in connecticut in visit as you well know  risk utility so the question really is is fair evidence here of an alternative that without worrying about cost because connecticut is expressively said we don't need to worry about that is for evidence of an alternative on the basis of which the jury could say that a product to be fact was i but i would dispute a couple of the premises of your question i do think in a case like this you do have to have expert testimony because of the background principle this is this is something that defense attorneys are trying very very hard with the help of restatement to convince courts in states which have rejected and you've gotten that far in medical and you've gotten fairly far in in in pharmaceutical but you haven't gotten that far yet is some evidence to suggest that you can get a circular saw with arriving life in europe and in the united states you basically can't get a circular saw with arriving and so i don't without that fact does not mean that it  defective you know the fact that it isn't a very low ball here because your producer chooses not to make it available here doesn't mean that there isn't a in not making it available so in a state like me and you you read what what the soon to be chief justice of connecticut who wrote the opinion in blood flow and so on said and summary judgment would be to point to some evidence that would permit an inference not just that there are two alternative designs in the world that exist but rather that the one that is used here in the united states is unreasonably dangerous so where is the evidence of that if the expert is off world their alternative argument summary judgment even if the expert was properly excluded and then there's a bunch of citations to the expert report two things that are in the actual report and then in the next paragraph and counsel mentioned it there was a discussion of the defense expert that the defense expert made certain statements at his deposition that would raise a fact question two points on that as your honor noted that is not in the fifty six point one statement there is no reference to the expert in the fifty six point one statement that's not just a technicality that has a real purpose for judicial management which is district judges busy district judges are not required to comb through the record to find factual disputes that aren't going it up to your friend i made it generally available as part of the response so i think think i it was well short the whole transcript was there maybe that we put it in for in a completely t many years later visas are a very then when business or was prepared that these saws with roving knives are available in europe which i think is relevant to wherever they could have been made available and whether there's a defect it's not directly there but it just it is i think the court was wrong in saying that because it's it's fifteen eighteen years later or fifteen years later it isn't relevant  w but what evidence is very in this case at all that the saw with grieving knives is actually safer than the saw without  he is and what i hope and rebuttal opposing counsel will come to because connecticut has said we're willing to look at things we're willing to look at things without expert who are listening to look at things without knowing cost but they're still wanting to say is this defective because we're is something which would be better so to put so to get down to brass tacks no there is no such evidence the evidence that is cited to support that proposition is our expert if you just read the full two pages of the deposition transcript that's cited it's our expert saying well sure they're arriving knives in europe those are the reason why products are not made these circular saws we're not talking about stationary table saws but circular saws that are portable that people are carrying around are not made with driving knives is that on balance they make the product more difficult to use and less safe so that is the you know if we're in a world where the expert is properly excluded that's the only evidence of record on that point and so there is no evidence to permit an inference of unreasonable dangerousness if i could just go to the the kind of broader connecticut  point very briefly your honor i don't think it's true that you would read by folk and by faucon is a really should be read to mean that it's just sort of a get to the jury never need an expert witness a state of the law never need an expert witness they said an expert witness may not be needed under the risk utility test in could it be good if the circumstances are right if the circumstances are right and i think that's the standard that you would apply there is is this an issue that is beyond the ordinary now this is just sort of bedrock connecticut tort law is the question one that's beyond the ordinary knowledge and experience of a late jury that's what this is because  evidence in the record is you can get on with driving europe you can't get on with robbing knives in the united states how is a jury supposed to do that balancing how is it supposed to assess whether the product is unreasonably dangerous without the  riving knife without an expert to help on that issue would perfectly well have statistical evidence that shows that there are fewer accidents in one without having an expert  you could have evidence that showed that one was over i'm not saying that it is here that that's a fair point i guess in a hypothetical case where you could get that in without an expert you might have that again that is not the case here  unless the court has questions on other aspects of one claim which my brother counsel did not get into in the opening argument unless the court has questions on that claim i think i'll just take it on the papers and thank thank mr booker in response to the question as to what's in the record as to what makes this saw the fact of because there is something better so that's essentially is there an alternative feasible safe design there was plenty in the record obviously we look at it in two ways one from what mr barbee presented which was excluded and in which was  that we cannot reverse that so what's in the record is the admission on the part of the defendant in the manual that went with this particular model saw that there is a safety concern of kickbacks so they acknowledge that a dangerous condition exists when the use of the saw which is kickback the saw coming out of the cut and striking the operator of the saw so i mean the  safety manual which may or may not have been read or may and followed said it's dangerous so that's the first right that's correct but that's the first part of it the second part is under examination of the products liability law was it unreasonable dangerous and therefore and therefore defective defectively designed i should say because the field to incorporate additional safety features such as in this case arriving knife and that's where  that this saw in the presents a question of fact let me just there are two ways in which you could show that you could show it in could it but showing that it is sufficiently dangerous i mean really so dangerous that it doesn't matter if an alternative is very there connecticut is very strongly bro plaintive it allows that were valid having an actual turnitin exists but i don't see the record safer given the dangers of driving what well i i in the record there was presented the defendant's own documents from their source that they market  indicates that they have riving knives that prevents that's an anti kickback device well that's exactly what we're that this is intended to do is to prevent kickbacks yet the defendant on the other hand says that look you have to be it's a dangerous condition caused by kickback so on the flip side of it you have their own admission that they market saws which was presented such as the very end yes and we presented that riving has a riving knife watch is an anti kickback device so based on that particular in the summary judgment stage looking at the planes favorable to the plaintiff that is something that's on the record that could be determined that there is something better out there to in terms of the design of the saw to prevent the injury which they acknowledged could occur something out there that reduces this risk i don't believe the record is sufficient to claim that a riving knife would create a risk that they acknowledge exists which is kickback and that's what we're talking about here is the risk is kickback so there's nothing that was presented again on the moving party on summary judgment that they would have the burden of proving the earth stating that that there is no question of fact that riving knives causes risks in terms of kickback it's well it's the opposite they didn't satisfy the burden on summary judgement to claim that the riving knife which they incorporate on their own products causes kickback in fact their own statements in their marketing material the district courts goes to the internet to challenge the educational credentials of the expert witness mr barbee by attempting to go to the l noise institute of technology website which it cites in its brief and its memory and the decision in terms of trying to determine the coursework that he took in the might be more slanted towards fire safety rather than safety engineering so so i believe that's in