the written procedures and drawings mean the procedures were dangerously defective why were they dangerously defensive because they were causing mechanics to have to work in a very small place it should've been done on when and if the court look at the d p aviation case when the when when the ninth circuit looked at it and said you know what this language is sort of vague let's look at the totality of the circumstances and how the the court handled that is what it did it looked at mechanic can't do a correct leading up to trial that was completely disclosed as the claimed and when it comes for the preacher from memorandum perhaps in hindsight i should have been more explicit but but i thought i had it covered by saying that the procedure was dangerously defective by basically mirroring the language of the washington product liability and actually in order to get to this next step by the court would have to accept that the part that the claim itself was included in the pretrial memorandum it was proper to go for proper for the judge to rule on it and if that is still i submit to the court the record is really unconscionable right on that issue and that we are entitled to judgment on that issue because the records completely full and there's nothing that is really have to try to counter that they had one individual done hammer who was a mechanic say the procedure is simple because it's only three pages that sense the courts that's looked to the legislative history to determine what congress what it was intended to do when it passed the the act and for example in session where the defendant didn't physically manufacture was currently responsible because it was a successor the court stated that whatever station's being students capacity as a manufacturer is being sued because it has a responsibility to issue maintenance manuals and it has responsibilities to the revitalization act itself was meant to revitalize the united states aviation manufacturers israel aircraft it is an israeli manufacturer so the issue becomes kind of foreign manufacture claim protection under a statute designed to revitalize the u s economy and one of the one of the issues congress discussed in the legislative history was that foreign case in this particular instance israel aircraft industries didn't physically manufacture the part that it's being held responsible for the horizontal stabilizer and actually so  against my argument in a way but i'm trying to stress to the court that it just wasn't decided and had it been addressed if you would have been presented with this issue of whether or not the garrulous have up to the exception the exceptions when we get into the exceptions we really the first step i believe is to address the ninth circuit case of kennedy the extra now that was different but in that case the courts that there is an explicit right to withstand and in that case none of the exceptions were even argued so in this case israel aircraft argued we have an explicit right to withstand trial but the exceptions are political here and i would ask kennedy to be limited to his facts of perhaps that language of being a right to stand trial with no exceptions present here the exceptions are present first of the rolling provision is an exception it's just how you apply the time period of the exception to the one about guess you can't really knowing misrepresent the intent must be implied in that part of the exception for example if the f a a said we think this product is unsafe because of x y and z and the manufacturer says no is fine perhaps your concern is that the plaintiffs have and haven't met the knowing misrepresentations part of the exception and i suggest that we've met the concealing or withholding part of the of the statute in order to do that plaintiffs have to manufacturer prevents the f a a from knowing about the safety issues of the product and here we had an affirmative duty of israel aircraft to perform a test a they had to do a growth i'm still not seeing the now we here i mean i'm not saying it has to be a statement or something like that but there's got to be some evidence perhaps in this it's something more than that there's got to be you know not you can't just show that they didn't do it and that it it's time to now i think it's just tell me some evidence of something more the only place where i can go for that evidence on th can't i can't give you that document that says we're not going to do this test we know it's supposed to be done but when i wouldn't expect that that would be that that you know that would be the evidence that would be required but i would expect it would be more than th certification please sign and it's not legal duty in some cases you don't have a legal duty here you have it specifically in the statute for those the failure mode test and to why he found on the merits that there was no causal link between the service all in one thirty three procedure and the injury here and that covers both the illustrations and instructions was done here if it was done it was done in direct contravention of the instructions and the main schedules the first huge gap is that the trim actuator system on the west wing aircraft work without failure for we immediately reported that to the f a a when another one was discovered in one nine hundred ninety six which to this is not necessarily an isolated problem we're going to look into this and we instituted service bulletin one thirty three which was to go out and inspect in the field and find out is this a pervasive problem do we need to do more and we found out we needed to do more and we instituted  required removal overhaul reinstallation and that had already been done on the left aircraft so the question is why are we even here it had already been done there was no reason to do anything else and in fact even mr gowan testified he knew that all he was supposed to do with determine whether there was an over hold actuator in that aircraft and if you determined that there wasn't then he had to order one and have it installed that's all he was supposed to do so how was this actuator torn down at gale that frankly we don't really know because mr gallon kept changing his story constantly about what it was he saw what it with he did at one point he said it must have been someone else although there's absolutely no record of anyone else having touched that actuator all we know is that mr coats looked over the work briefly and really didn't look at all because mr gowan told them he hadn't touched it so that's what breaks the chain of causation and that breaks the chain of causation both with respect to  with respect to the instructions in illustrations for s b one thirty three and the implementation of one thirty three now let's talk about the carnage you did actually did claim issue in other words it preserved in the pretrial and it wasn't and secondly is a harmless error anyway if there was an error here because he was permitted to put on an offer of proof a trial you didn't meet your burden of proof for the same reason because you didn't like it or you don't have the the proximate cause will link it's not there because the implementation of s b one thirty scores and scores of these inspections done in the field there other than in this one case was never an aircraft that left the repair station when up in the it could be done they also testified that you shouldn't try to do it at all but that doesn't even link up with this case because there was already a manufacturer overholt actuator in th plea and there was nothing in the instructions of the maintenance schedules that called for that actuator to be torn down there's no explanation for why it was torn down other than well if you believe mr gallon he didn't even do it  yes and and and the other reason of course is that he's the only person who appears in the records that the records for these aircraft are very carefully kept it question one are we a manufacturer or yes we are we manufacture aircraft we were being sued in our capacity as manufacturers not in our capacity as a repair station or was to protect the american manufacturers to the extent of putting them on an equal footing with for many factors so the liabilities games would be somewhat comparable there's no indication that was intended to skew in one direction or the other and in fact if you just read the plain language of the statute it's manufacture doesn't think the message after and you really can't read that into it and to do so would really be i guess on some level existing part it's not new and even if it were moved it's new only with respect to the manufacture of that part in other words if you look at the legislative history it's pretty clear campbell parts about it  the way this ruling provision works is if for example in the overhaul of that part there were a defect that resulted from the overhaul they used in a week metal or defective component part the same interface with the airframe which remains unchanged so there the clock doesn't restart so now we know that on its face carol flies and there's only one way out of kara and that's the exception and this is the exception for knowing misrepresentation or concealment or withholding from the federal aviation administration now where is it here what did we allegedly misrepresent or withhold or conceal and this really points to two things one is their experts say that way back at an issue when we had the earth frame certified we should've done  determine what happens with separation well first of all the regulation doesn't specifically say that and you know you can always  negligent space find an expert who thirty years later will say well you know if you had really done this right you would have considered this design parameter and you would have tested for this design parameter and if you get you would have found x and y we didn't it was never considered a design consideration and in fact it never was for decades there was never a separation this is the only separation and it occurred not because of the design but because of a centrally of abus is the only time that one of these went up in the air without the tyrant and then they pointed to some communications in the ninety's when we were considering the fact that we had these aging actuators there w problems and tire of problems and we asked the manufacturer hey you know when these things on wind and they came back and said it is virtually him possible it's not going to happen and again it never did happen except in this one so what did we do anyway we continued the inspections there was never a separation as a result of the inspections we then went on when we found that there was a degradation of these parts because of age mostly we mandated use of overhaul of you know especially new units replacement units and in in all of our planes now how does that show i think it was your honor again that's simply a matter of expert opinion and interpretation because if you look at for being the old c a r four b it doesn't say that you have to have extra stops so that you have to have stops and in what you're saying is ok that's not that's not correct but you're also saying that the record has a lot of evidence in it that is contrary to any that you know that we just we didn't have any information we kept manufacturer who knew of failures or knew about specific defects and there was testimony that they intentionally did not tell me if they got that that's what you had in rigor if you look at bill there were i think the way the court put it this is the california court of appeals case there were numerous catastrophic failures of the pardon issue and bill did not make basically said this was negligent or i think i know what they had in mind and i'm here to testify about their stance or in the court rejected all that but there were two things that they showed that the courts had created a question of fact about the exception one was they misreported specific test data well i did happen here and the other was they didn't report failures just like in the other cases that didn't happen here the require fleet wide replacement with overhaul units now in that context you just can't think that there was intentional misrepresentation knowing misrepresentation concealment or withholding and i'd like to speak to that point too because you know there's this little syntax argument about how the statute or exception is structured so that knowing misrepresentation or knowingly misrepresented comma or concealed or withheld i don't think that makes a difference that's a nice little word game a nice little play with the punctuation but you can't conceal or with help with hold what you don't know there's an element to see answer there there ha and run it sorry that's not how statute of repose works it's supposed to provide more protection act just very briefly i have a couple of minutes left if the court would like me to address any of the other assignments of error regarding the trial i will there was the trial by jury claim i think that's very very clear there's the whole issue about did the church properly reasons not to believe mr allen on the preponderance of the evidence was that there was no causal link that's what the records show or put another way the plaintiff failed to show by a preponderance of the evidence that there was a causal link and the whole house of cards comes down when you go there ok thank you eighteen years it's good if it doesn't if it breaks it's no good second ken this tolling provision be applied to israel aircraft who didn't physically manufacture the port we had brand new jack screws and brand new tire ride manufacture the flow inside of our carburetor so therefore we have to sue the float manufacturer perhaps the floats aren't defective outside of the carburetor application perhaps the horse in a state leisure when you're actually there isn't affected outside of an aircraft