the next place on the calendar is metro north we have reserved three minutes for rebuttal well we're ready to go ok this is a very sad case in many respects because mr cologne as we all know and i believe mr hickey agrees i was tragically electrocuted at the met at the metro north railroad track specifically the can't marry which was an electrified pole and i sincerely believe this was an avoidable tragedy mr combs had a lot of bad luck in his life unfortunately he was born and shortly thereafter contracted meningitis so he had a limited mental capacity and he's a person who unfortunately because of a sign that is unreadable and completely undecipherable he simply could not read the sign which would have said do not come here it's it's a danger of electricity if this case of course has many different labs and flows to it but i simply believe this case comes down to a sign  no person could read this sign that's why this man did not understand the danger that was in front of him this sign is not readable by any measure or any person now with regard to the jury i think the jury got it wrong because i think the jury got the wrong a jury instructions and let me explain to you why i scoured the united states every every circuit court every state court the restatement three hundred and thirty five dollars does not say dangerous proximity anywhere in any state court any federal court and certainly doesn't say that in the restatement this judge concocted his own legal standard despite the fact that in summary judgment in his prior ruling which should have been the ruling that controlled the parties i just start the dangerous proximity and the jury made three determinations that your client failed to prove his injury was caused by a serious danger that the defendants had knowledge of constant intrusion in the area and that the injury was because of the fail reasonably to warrant in this particular instruction if i'm understanding it correctly only relates to the nd of those jury findings with all due respect it's found in instruction special instruction number two free in five to the wrongful dangerous proximity instruction in facts every single instruction and including the special interest because they underlie the wrongful instructions and let me explain to you why i think it's so dangerous so the dangers proximity instruction  to simplify this you're all federal judges so you're all pretty smart i imagine but i'm going to try to simplify to going to show you a picture and i'm going to show you a mental image i have three hundred and thirty seven is like a triangle dangerous proximity is the higher point of the triangle but you don't have to prove const hidden danger and the element is put to the jury is that the date in question mr cologne suffered injuries that were caused by an artificial condition on the property that metro north created or maintained access to that metro north new was likely to cause death or serious bodily injury and that presented a hidden danger that metro north had reason to believe the trespassers would not realize or discover and the jury found that not proven now where does the dangerous proximity issue come into whether metro north maintained access to the property that metro north knew it was likely to cause death or serious bodily harm i would think that's an most likely that it wasn't a hidden danger because it's high voltage electric wires that you're climbing up into well st of all with the dangerous proximity your honor if you read the instructions in their totality he constantly says they had to prove constant intrusion into dangerous proximity which the judge specifically said i don't know the wires that goes to that goes to a constant intrusion where does the constant intrusion have to be and i believe the constitution would be at that would be where the judge said initially which would be a one mile radius prior to the case on that's what the judge wanted them to prove at the end of the trial it's absurd because what happens if if if that was the only thing the jury didn't find maybe that would be if you read if you read my brief the instructions on the special had read your brief constant intrusion has to be that would affect the jury's verdict on that element the question is how does that affect the jury's verdict whether it was correct or incorrect in your view with respect to  that nd element well the nd element if you st of all the special into robert tories are not factual questions they're legal questions which according to the law that we cite they have to be factual for us for special interactive toys to have some you know special significance which they did not also with regard to the dangerous proximity to the one thing here i think it's confused which my colleagues not a good job is to say basically mr cologne did this to himself the problem is he never got to comparative negligence we'll never know if the jury thought he was compared to what we do know is i believe the jury had a smaller radius that was in tis a painted and i want to say one of the thing about this coverage if the judge had said it's going to be at the tower mr rush probably would have done discovery at the tower you can't go into trouble it's going to be at the base and then during midstream say by the way it's going to be all the way up the tower he would have probably prepared for his case in a much different manner and i think that's why it was also very unfair to the pla good morning may please the court my name is robert pickett i practiced law with ryan ryan to look in connecticut after a two week trial in which the plaintiff called over twenty witnesses seven former experts judge meyer submitted interactive tori's to the jury with a gen appendix and at page ten of our brief are dispositive because they move any potential error that the point of savva eased in this appeal specifically the plaintiffs fail to prove as your honor has been has just mentioned that the injury was caused by a hidden danger and for context the theory upon which this case was presented to the jury was that the hidden danger was the potential for static electricity to be present around the high tension wires not that the high tension wires themselves were the danger because we had her out touching the wires electrocute correct we had argued earlier in the case on summary judgment that high tension wires are high tension wires are an open and obvious danger and judge meyer said well the way this case has developed and based on the evidence at the time there is this potential for static electricity which if mr coleman encountered it could have caused him to fall onto the wires and become electrocuted the jury found the answer to that no that he had not proven it and there was evidence that he may have simply become disoriented by the height that he was at there was evidence that there was water on his shoes it's just there was countervailing evidence not that we had a burden of proof but the jury found the plaintiff did not prove that it was static that caused him to fall onto the wires and become a lecture cued in addition to that the jury found that the sign was inadequate it did fail to warn of the danger but they also then found in the very next into ragatz henri that that failure was not a cause of mr cologne's injury i would agree it's a tragic case severe injury yes but after a two week trial during which all of this evidence was presented to the jury and we have these interactive tori's which are contemplated under rule forty nine dollars there is no basis whatsoever to overturn what the jury did in this case each of their he says this morning that the theory of constant intrusion came late in the day and discovery might have been conducted differently  if he had been apprised of it earlier right so let me address that so during the discovery phase of the case we argued on behalf of metro north of that the plaintiff's burden here was going to have was going to be to prove constant intrusion near the dangerous condition they had asked for any electrocutions from new haven to grand central terminal and we said that's ridiculous and judge meyer agreed with us that electrocutions for instance forty or fifty miles down the right of way would be irrelevant so judge meyer gave a one mile in either direction limit what we would have to produce at the summary judgment stage judge meyer wrote in his decision the plaintiffs will have enough evidence at this stage to not grant summary judgment because there was some graffiti which suggested that trespassers had gone up that's in quotes that catenary tower so there was no prejudice here take out this particular tower there was some low level graffiti again at the summary judgment stage judge meyer found that that was enough to defeat summary judgment there was an inference that could be made there clearly it was insufficient later to carry the burden at the time of trial so the st four issues raised by the plaintiff are are literally all rendered moot by the findings whether there was unassailable the failure to prove the other two elements and then lastly what that leaves the plaintiffs with in this case is the claim that judge meyer was unfair was biased we counter every single allegation of that in our brief i won't belabor a here the standard is clearly that the plaintiffs were not entitled to a perfect trial they were entitled to a fair trial this was a two week trial which was difficult on all the parties and i'm sure on judge meyer leave it to our brief as far as how he addressed each of those things but it does it judge meyers actions even in hindsight which is always easier for people who are not in the heat of the litigation come nowhere close to the standard which is to show that the pla fs didn't get a fair trial in this matter and unless your honour's have questions that's all i have i'd also like to discuss the spring council just said that they weren't able to prove constant intrusion at the tower and one of the things that precluded this from happening is the defendant here they knew that they had to preserve the site for for for testing and even if they had to you know for the rock the common sensical thing would be listen counsel we're going to do something soon to the site i suggest you bring your expert here because if you're go prove constitutions you have to give the person the opportunity to prove concentrations if you throw i believe it was tons and tons of rock which you cannot prove constant intrusion if the site has been spoiled he added by the by the defendants three years after the accident correct well if you look at the record there was back and forth between the parties trying to set up a date with the expert and this was done during their give give and take the set up an inspection with the study with regard to the reports which i find to be kind of confusing by the judge you have to understand the judge allowed these in prior to trial he changed his mind one week before trial he said they were admissible evidence and then he decides it's not admissible evidence without any basis in the law either procedurally or substantively and let me explain the procedural rules explain that you cannot file for a motion for consideration unless it's within seven days they they filed it more than twenty days late it should have never been heard and then substantively all their case law which was nothing more than a regurgitation of their priority amends was basically a products liability case which we explained in our brief this would have went to notice because there feigning to a certain extent innocence like we never knew that this happened before but there was several shock burn incidences at those towers and my question to you is this because this is the standard that they were able to pull a fast ball on the trial judge because if if you think about it here's what they're saying we don't have to put up a sign until we know somebody is either dead or maimed that should not be the standard this young man has his life destroyed he is now essentially a vegetable he cannot function as a person as a normal person his marital relationship is finished he is a double amputee and this is my final question at least the series of casualty reports when i look at them a good portion of that material seems to involve injuries that employees that did not involve electricity so what portion precisely of those reports to you say you were harmed