good morning may please the court can sandstone on behalf of the appellant city of pomona with the court's permission i'd like to reserve five minutes of my time for about all right thank you this appeal presents a straightforward issue of california law does the manufacturer of a product that is defective because the risks of its design outweigh the benefits of its design as scape liability for the harm that a jury has found that design caused merely because those risks were unknown to the manufacturer at the time the product was in use now the california supreme court has emphatically and repeatedly answered  no to this very question holding that the benefits and risks of a product's design are to be judged in hindsight this standard as the state high court has repeatedly recognized subjects manufacturers to risk of their products designs that they have not discovered and could not have discovered at the time the product was manufactured and hold them responsible for unforeseeable harm from those designs as the california supreme court has also repeatedly explained it is that this very feature of the california design defect standard which serves to distinguish in this state strict products liability from negligence  as barker of the law engineering teaches acting as a reasonably prudent manufacturer would have under the circumstances may defeat a negligence claim but not a strict liability claim if upon hindsight in other words not under the circumstances that existed when the product was designed but under the circumstances prevailing at the time of the trial the jury concludes that the risks of the design outweigh the benefit of the design that's controlling california law here in its jury instructions the district court inverted this controlling california standard and instructed the jury to consider the risks of the design at the time the product was in use and to find for the defendant if the jury found that the benefits of the products design outweigh the risks of the design at the time the product was in use the district court added this risks at the time the product was in use language which doesn't appear in barker or any of its progeny to the model california design defect jury instruction in two places and also added that same language to the verdict form itself the district court took its red pen to these model instructions and the verdict form at the defendant's request but over the city's repeated objections and without giving any explanation for it whatsoever serban any case since parker we're a court has applied that hindsight's language to hold a company strictly liable for risks that it couldn't have known you know decades ago ye before the carcinogenic properties of that pesticide were known or could have been known was allowed to recover in strict liability for that defectively designed pesticide and there's another case green the smith was allowed to recover again in strict liability for design defect even though it was undisputed in that case that the possibility of a latex allergy from latex gloves was not known back in the and seventy s and again that is the very essence of strict products liability under california law and that same standard is followed in numerous other jurisdictions as well so both of those neither one of those kids is a california case raid one from wisconsin one from montana that's correct their california cases that you were able to find that would be responsive to does least question no or any that would go the other way i suppose know well there aren't any go the other way certainly there are no california cases that support the jury instruction that was given by the district court in this case that confine the jury's consideration of the design risks of a product to the time the product was in use that language doesn't appear in any of the cases that are cited by ask you i mean it's brief in this matter and it appears to have been constructed out of whole cloth and certainly there's no room in either the logic or the policy rason now of barker which again was a case where the california supreme court explained what we're doing here is setting out the standard for strict products liability that will be followed in this state there no room in barker for some sort of exception for a product just because that product was made a long time ago when the risks of a particular design feature of the product were not known and again i hindsight means anything it means applying what we know now to events that happened in the past hindsight is two thousand and twenty we all know that and that's exactly the standard that barker adopted and barker explained why it was adopting this standard and that is to further the policy that the california supreme court has identified that when you have an innocent plaintive who's been injured by a defective product that innocent plaintiffs should be able to recover even if it's against innocent manufacturer who also did not know about the defect in the product so i'm interested in trying to get a handle on how this instant how this instruction gets a gets applied you know by a jury in practice if you take out the language that you're objecting to and you get these all to the model instruction which you got and you've got these these six factors down there is some of the factors one of them express lee talks about the time of manufacture feasibility of an alternative say for divine design at the the some of the other ones look like they might be read that way likely likelihood that this harm would occur wins that measured the likelihood that the harm would occur is measured at the time of trial again the likelihood that an event will occur is independent of what anybody knows about that likelihood and knowledge of the likelihood that the risk would occur cannot be confused with the absolute likelihood that the risk would occur if that's the way that instruction and if that's the way parker is read then what barker is doing is exactly the opposite of what the california supreme court said it was doing in parker which is creating a negligence standard it is it is allowing the jury to consider whether the manufacturer knew or should have known about the likely risks of its product design at the time the product  factors would be the only one that you'd look at as of the time of the manufacture of the product be the rd one feasibility of an alternative say for divine design at the time of the manufacture that's correct your honor and not coincidentally that's the factor in the model california jury instruction that actually contains that language feasibility and we're not contesting this feasibility is to be measured at the time of manufacture even under your interpretation the manufacturer gets to put in evidence  evidence about the feasibility of redesigning this fertilizer so that it contained a lower concentration of perchlorate as was embodied in fact by and this is just one of the pieces of evidence in the record on geochemical expert that had that been done that the levels of perchlorate in promoting his groundwater today would be safe they would not be in excess of the level that the california state of california deems safe so going back alternative design and this advantages of an alternative design shouldn't they also be looked at the time of manufacture i would seem odd that you look at factor see feasibility of an alternative design at the time and factor but then look at the cost and disadvantages much later in that no i don't disagree with that your honor again there will be evidence in these cases as there was in this case about a bout and alternative design and part of that evidence will be what that would have cost at the time the product was manufactured and that's fine but again that lens shouldn't be taken and used to view a factor which is not even a factor at all under barker and certainly is not to be viewed as at the time of manufacture and that is the manufacturer's awareness of the risks of that design again that is to be viewed in hindsight and that's what the california court has repeatedly said it said that is recently as as just last year in the can be toted case and again there was an issue in tim and eschewing relies heavily on him in its brief about the admissibility of industry standards at the time of manufacture and the california supreme court ruled that under certain circumstances that could be admissible because it goes to feasibility it goes to the prevent to belittle the of the risk at the time the product was made but no where in that case is there any discussion that well we should also consider whether the manufacturer knew of the risk when we're considering whether the manufacturer was capable of preventing the risk so is that is that really what you see is the key problem with the instruction that the added on language brings in the concept of awareness of the risk at the time absolutely your honor as did defense counsel's closing argument to the jury during which he displayed for the jury the jury instruction and the verdict form and emphasized this at the time the product was in use language which appeared in several places there and expressly argued to the jury the conduct of my client needs to be judged from the time the product was made and at that time there was no knowledge of risk of health hazards from perchlorate contamination of groundwater that is the fundamental problem with the jury instruction that problem was exploited and caused grave prejudice to my client the city of pomona and again that standard is simply the opposite of the hindsight standard under california law would you support certifying this question to the california supreme court i know that there's a language hindsight in the barker case but at the you know it's a bit ambiguous this is in the statute we don't re certifying this a california supreme court had to clarify what they exactly meant by the word hindsight my simplest and most direct answer to that question your honor is in principle the city of promoting a has no objection to certification in this case  as a practical matter this is a case as this court is aware that's been around for a very long time it's been ten years now since this case has been filed and the city of amman is still has not had a trial in this case that was conducted according to the a political procedural and the binding substantive california state law that applies here now again my position is as i've articulated repeatedly that barker is very clear that this is exactly what strict products liability is exactly what hindsight means hindsight couldn't possibly mean anything else and among other evidence that barker meant exactly what i'm saying it meant was that i cited extensively and relied heavily on an article by professor wade and professor wade explains in that article that the way this all works is that knowledge of the products risks is imputed to the manufacturer up through the time of trial and that's the way that the courts of many other states have explained strict products liability for design defects and that's the way as your honor just al udeid to the california supreme court in refusing to extend str products liability in certain other kinds of cases has explained strict products liability works for example in brown the california supreme court said that for policy reasons because these are lifesaving drugs we're not going to extend strict products liability to them and why aren't we going to do that because strict products liability holds manufacturers responsible for on forseeable product risks and we don't want to do that in the case of prescription drugs and it was the same thing in carlin where the question was about failure to warn and in carlin the court again drew this distinction between a failure to warn claim which does require evidence that the risk was no one are knowable at the time the product was sold from a strict product liability claim for design defect which does not require that evidence you know how long this pattern instruction has been out there i mean i know they don't have the force alone is curious you know how long this formulation of the i apologize your honor i can't answer that force of law but these are the instructions that are typically used in the court in state and federal trial courts when we have as we had here a district court sitting in diversity and applying california law  and you know there certainly wasn't any argument from ask you am or any observation by the district judge the this instruction which is widely used is wrong and it's not it's completely consistent with parker what's wrong to add language to the instruction which artificially cabin's the jury's frame of reference to the time the product was in use which of course in this case was seventy years ago i'd like to if if i may at this point address some of the additional issues in this case the st is the harmless error argument again this was a civil case there is jury instruction given it's the law in this circuit of course that in that situation the iranian instruction is presumed to be prejudicial and the apple e has the burden of overcoming that has not done that here again when the risk benefit test is properly applied there is no artificial restriction to this time frame at the at the time the product was in use for purposes of assessing the risk instead you have the factors under barker that we've talked about and again it's quite likely that when per chlorate is contained in fertilizer which is which is designed to be used and was used by spreading it on the ground and pouring water on top of it that the proportion from that fertilizer will get into the groundwater perchlorate as this court has observed in its prior decisions in this matter is quite dangerous  it interferes with thyroid function particularly in babies and young children and that's why it's banned by the state of california from drinking water above this very low level of six parts per one billion which which is about a teaspoon full of it dissolved into an olympic sized swimming pool full of water so the gravity of the harm is quite high we've talked a little bit about the feasibility of the alternative design and there's a lengthy attack in s q l brief of course on our expert witness on that subject and as we articulate in our reply brief it's really not even necessary to get into that s q end zone witnesses as well as that patent show that they had a process where again they could have perchlorate content in the fertilizer by two thirds and that would have been good enough to protect the groundwater in the city of pomona and again ask un this is also in the record started reducing the perchlorate concentrations and it's fertilizer in response to the injury that those perchlorate concentrations were causing to plants back at the beginning of the th century so you know this is hardly a case that fits in the parade of horribles which is advanced by l and it's a meter as to not having rolled cages on stage coaches or not having seatbelts in model ts this technology was available to s q l and certainly through the testimony of its chairman eschewing attempted to dispute how easy that would have been to reduce the perchlorate concentration that far but the bottom line is that's an issue for the jury to decide and there's no way that someone could say that it is likely that the jury would have reached the same result anyway had they applied california law as set forth in parker and and as embodied in the pattern jury instruction i ask you as waiver instruction i submit is just flat out wrong pomona did during the prior appeal to this court challenge the giving of the risk benefit instruction and that's what we're here challenging right now promoting his premise seems to be that in order to preserve a jury instruction challenge for future appeals that all challenges to all formulations of the instruction need to be presented to this court rather than just simply a challenge to the instruction itself if that were the law we've here quite a while today this court's job would be even bigger and more difficult than it already is because briefs would be larded with all kinds of alternative arguments this court has made clear that's not necessary and even if  right about waiver argument of course ask you i'm itself forfeited that argument ask you i didn't argue to the district court prior to the two thousand eight hundred trial when we made the very same arguments about this at the time the product was in use language that we're making right now hey that's been waived as pomona didn't raise that during the last appeal so the law is clear in multiple circuits including this one when that happens the waiver argument has itself been forfeited and if there are no more questions at this point i reserve f never said that the risk of harm to other was unforeseeable or scientifically unknowable instead he made a valiant effort by showing the experts that nineteen tons per car was deposited in that it would migrate seventy five feet down from the roof stands at that in the and forty s so he was trying to show to the jury that risk of harm dynamic was already in play and that that it was then for forseeable and that it was a require has the jury consider only foreseeable risks why did you ask they had that language to the pattern instructions but i didn't ask for the judge to put in foreseeable risks that's not you know why did you ask for the language that it issued to be added to the pattern instruction because barker allows judges to modify design defect i'm not asking why the judge didn't ask him why you asked why i asked him for it because of the great science is says i mean i got to tell you that that's the way a reasonable person would interpret it unless the defendant proves the benefits of the fertilizer design outweigh the risk as a sign at the time the product was in use i think any reasonable person as looking at that would interpret it as saying you assess this as of back then and if that person read it that way person would be absolutely and cord with what barker and expert testimony yes yes ok but we're happy let me talk to the merits of the knowability parole it is indeed the law that scientifically unknown whether the product was designed as safely as it should have been given the complexity and tradeoffs implicit in the sign process those says past tense in that those we've established that you've been around the thirty years i've been around thirty years and in fact within law school at the time barker came out right and it at that time the california supreme court was vastly expanding the scope of liability product enterprise liability design defect liability and in fact i think i think the written by matthew to brian or the barker case and and i so i think they intended this expansive thing and use that word hindsight or with deliberation just knowing what was going on back then where the calvary's cream cart was and so that's i think the most expensive level of the product liability tort liability that that the california supreme court has stated and it's never come back it's never gone back on that expansive view of manufacturers liability and weighing you know the innocent men factor versus the innocent injured person and they're going to their balance was struck that they were going to hold the manufacturer liable they struck that balance in seventy six it we've had a pattern instruction in california state law along those lines for for ever and why would anyone not abide by it in this case i just don't get it and it's a maze been around here from california right more important word that that is preventable it says hi and in hindsight you say are excessive preventable harm in the word preventable or preventable is a sham it's a fiction we know now in canton that it it's the former that preventable means that that technology in th case but it also has an important alternative holding that holds that the british benefit alternative argument was what the out merit because the technology the court held that that was decisive if that technology in the scientific knowledge of the risks was not established at the time of sale there was a complete defense in in in both cases in court the court of appeal level before and after that dispended term and as a matter of law that the then it let's take the breast devices were made that is strong ohm law that supports that you have to look at the high and the word things it's not called the hindsight test it's called  manufactured to sell it makes no difference in price in terms of who wins this case a case of tremendous similarity to our case right now are the j c c p proceedings involving tried decisions may be considered as indicative of california law since it is a contamination case like ours and it shows the trend of the law to include groundwater contamination cases statement to in foot know farai as pointing to measuring the risk as the date of sale or distribution supreme court agreed to hear it and they heard it and they decided it and they ruled against the plaintiff based upon the lack of scientific technology site knowledge of the scientific rest as  custom and practice and allows evidence of the state of the art because those both reference are reference points at the time of manufacture and it is the time of manufacture in only at the time of manufacture that barker's excessive preventable harm standard can be measured the purpose of the products liability law the supreme court in california in two thousand and sixteen in the web vs special electric case which we cited page fifty one dollars says the goal of products liability law is not merely to spread you've made this insurance one jump ahead to another issue for just a nd one i know you don't want to talk about but just in case we get to it and that's the question of what if it has to be sent back what needs to be retried so your you guys your side talks about the issue of what in the woods their argument is just send it back on the one thing don't don't send it back for everything and your argument is that the evidence is intertwined on these on these various issues but is isn't what the question is whether the issues are intertwined in other words it it's pretty common to have a witness that might talk about multiple things the plaintiff might talk about you know the accident the injury the damages the defense witness may talk about more than one thing but in terms of a retrial isn't the question whether the issues are in or lived in my real question here is how are the issues that the plaintiff is saying shouldn't be sent back intertwined with the issues that you agree that in the event of a reversal should be well i do want to talk about it because your race you know they are intertwined factually at their factual intertwined the case law suggests that the whole thing should be retried there was a lot of confusion by this jury over these jury instructions we didn't get the products identification question that we should have gotten that mirrored the jury instruction had we gotten that it it said it would have been a whole new ballgame we know that because the jury's st question a few minutes after they depart was are we talking about chlorate in the united states or are we talking about it in pomona well the judge should have said in public that's th where the harm was he refused to do that that was an hour there is a lot of confusion there well so you can remember my question right so the things that the plane of doesn't want to be senator that i think is causation and  the big issue it expands the entire length of the case and from history to present because you have to look at the likelihood of the harm that was actually caused and so if we're if it is no shorter trial it's not the best that's not what she in plain versus gasoline products or whatever it is says it's not whether the trial is going to be longer or shorter it's whether the issues are in if that's a word on an evidentiary matter are they legally tied together i'm not going to stand here and say no because they were separate questions but generally speaking in the case law we tried it all because you just never know when you have a case that takes that takes one hour for the jury to decide did they really vote  eighty on each of those four questions before they gave us the victory or did they find the question that they were all united on and could get a seventy vote on and go to that one and then just go back and fill in the ones just for the heck of it even there's you know what the way to do it i'm sorry it's well that's what they said just that's just crazy that's just crazy talk to you and if you assume out of this thing that they jump the question for because that was the only one they could answer unanimously and then they went back even though the jury instructions told me had to be unanimous and even though the verdict form says answer in this order they went back and just filled in the other three just for the heck of it i mean honestly that that they want to use this was pretty on appeal same issue as may waiver takes the purpose of a waiver is a fact intensive inquiry so if there is conduct like in the boudreaux case in the six circuit where the government went through a lot of ever densher e rulings and took up a lot of time on it and revisiting knee issue that should have been consider of the st appeal that can be a waiver but there was never any doubt that this district court was going to give the same risk benefit instruction that it did before that is shoe should have been raised on the st appeal particularly when the consumer expectation instruction was chalons pomona knew that if it lost that challenge it would be looking right in the face of the wrist benefit instruction as it had been given before yeah could i have said to the judge in addition to all the other reasons why you should give the same instruction as you did before there is this waiver document that's not going to affect the conduct of the district court judge i would respectfully submit it all went to the district court judge in i'm not going to say what district court judges do but from my point of view if they get the same instructions and less are told not to so is there a waiver when there's an idle by an idle at they will tell you or by me to take an idle act a futile act that would have had plaintiffs done what they should have done and raise the risk benefit test the last time we wouldn't be here now we would have had a trial in it would have gone one way or the other on the wrist benefit task but we wouldn't be here now on that issue the amount of money the amount of time that has been incurred as a result of their failure to raise the brits benefit instruction time so thank you thank you very much last appeal to this court was about the causation issue because then you get that i'm just saying that the st trial did the just to judge use this exact same instruction with the same legal in fact was not exactly the same for whatever that's worth in something once rather than twice as in substance  substance it was similar but but again i'll just say that the jury never reached this question in the two thousand and fifteen trial because that there was causation evidence that was kept from the jury so even by the by challenging the risk benefit instruction at all we were presenting you know potentially just a hypothetical question to this court and this court's not a fan of answering hypothetical questions that ended up answering that question mr smith is flat out wrong when he says that how do we raise the that last time it would have been decided again it's just and this court has repeatedly said this there is no necessity to raise all possible layers of argument when you're challenging a jury instruction we challenge the giving of this instruction last time kalita air says nothing to the contrary i haven't looked at the briefs included here i've read the opinion in collegiate care to lead an error doesn't say that there was any waiver of waiver air doesn't say that there was any challenge at all to the jury instructions on the prior appeal to lead to air is just not very informative here and  i'll say on the merits and at this point is mr smith said that if you take away scientists no ability of risk you don't have what you would have would be absolute liability no in fact what you have if you don't require the pla prove scientific no ability of risk is strict liability and if you're requiring the plaintiff to prove scientific no ability of risk you have negligence california invented strict products liability california follow strict products liability california has not deviated from strict products liability and federal courts are not the place to get changes to california law the california courts don't follow section two of the restatement which is proven unusually unpopular among the high courts of other states but this is in the high court of california it's the th circuit court of appeals california law should be followed here it should have been followed in the district court it shouldn't be changed thank you think