our third case for this morning is richard clarke against river metals recycling and syrah international machinery course according to the summary judgment standards the evidence and the facts had to be looked at in the light most favorable to the nine moving party all reasonable inferences had to be drawn from those facts and evidence and any factual disputes  judgment yes your honor in several ways the first of all this is a very simple piece of equipment we are talking about whether it is safe or unsafe to go up and down from a five to a platform every day and whether  that ladder was required to do so so don't you mean that at least it's a simple aspect of a machine that perhaps was complicated in some respects but that the only question here is how do you get up and down from a five foot high platform that's absolutely what we mean and there are there are numerous cases that interpret that type of an issue whether in that this particular piece of equipment was complex is not relevant to the issue in this case which is just whether or not you could get up and down from the platform on the end of it and whether that would be understandable by a simple lay person in the mcdaniel face his difficulty that i have with that argument is it's i understand what his job responsibilities were he had to get up and down you know each day and and he needed a ladder of some sort but it's not clear to me that the ladder needed to be attached to the equipment whether the ladders attached the equipment or not it's still a simple matter of whether how you ascend and descent that platform every day and a ladder whether a letter had to be attached or if there was some evidence that a standalone latter would have somehow been placed on the machine and taken around with it but that these are all simple concepts that could have been understood by any layperson but with the way that i'm sorry i've quit but with the expert gone right if that just assume for discussion purposes that that the downward strike was proper are we just supposed to look at this car crash through this big one and say well it looks like a ladder should be attached it's not and therefore to jury question yes at i believe that's correct if you look at the everly case the fourth circuit in illinois that was a case that involved a spraycan but the issue before the court was whether or not it required a guard and whether the guard would have made it more safe that's very akin to the issues we had in this case it didn't matter to the port how this break the spray gun actually operated and what the mechanics and complexity of that were just whether or not it should have been prevented from being turned on at all at an inopportune time likewise in the well and if i can just point out your honour's that this particular piece of equipment this car crushing machine was not even on at the time the accident occurred there not when he's going up and down during maintenance that aspect of the machine is not being used the only issue is whether or not he can safely ascend and descent the platform in order to do the maintenance that he's required to do every day wouldn't it matter in terms of whether or not the latter is feasible to go on a specific place to see the equipment in its entirety yes and my expert did see the equipment in its entirety and when i hear you saying two different things i understood what you were saying a moment ago was that in order to determine if the risk utility or consumer expectation test applies that you only look at the latter you don't look at the car question correct but you're also saying that the ladder didn't necessarily have to be affixed to the r b s six thousand in illinois and other states at this equipment travel to and that was why there was testimony that rather than sticking out from the side of the trailer the latter could be made in such a way that it it was when it was unfolded it would rest completely under the trailer and that make it any wider than it was and they could be folded back up and that sounds like something you might need expert testimony and i can certainly see a concept that you know if you make this larger baler you have to furnish a ladder that can be used even if the person has to stow it somewhere afterwards or do something but the closer you get to imagining where it would actually be fixed the machine it sounds like product design to me well and your honor that brings up a very compelling part of this case which is that the defendants expert is thirty three six witnesses and the employee that they identified is the person most knowledgeable about this piece of equipment and he was responsible for its manufacture all testified that that would be feasible and some even testified that it was dangerous without one but they all testified that there was a way that that could have been attached this piece of equipment let's assume they testified to that i think opposing counsel would dispute that's what the testimony was but let's assume for a moment that they did testified to that that you've raised that testimony in response to the motion for summary judgment before the district court your honor that argument was not raised by the defendant it came up for the first time in something that the district court judge said and then we responded and raised it on our motion to reconsider and then for the first time the defendant re did you say it doesn't matter we have plaintiff's own or defendant's own witnesses who checks testified to a b and c it wasn't explicitly stated in our response that we had these other witnesses now we did respond in our response to the river metals motion for summary judgment that we intended to rely upon the testimony of their expert that's one that did you mean the first river medals that was denied now at the very first when there was  second one which we responded to some time ago i'm standing how was it that the district court possibly could have known in ruling on summary judgment that you intended to rely on testimony from the defendant's witnesses if your expert was thrown out your honor it's our position and i believe based on the law that it's not possible while we can break waive arguments you can't waive the otherwise the judges are left with wading through an enormous mass of documents without any guidance and your honor we had anticipated and requested an oral argument on the motion to strike our expert witness there was a is not the function of the attorney but rather the court to know take care of this housekeeping matters and know that a hearing is required the p d s case says it's an abuse of discretion in that particular case and can be an abuse of discretion not to hold eliminate hearing or a job or hearing in order to test the factual basis of that expert's opinion even if we suppose that there's there's no procedural irregularity with the with the way you want upon ideas sure did not read the evidence coming from the other side is saying that the lack of any kind of like a fixed way out or one that you can still wonder makes this particular model unreasonably dangerous in other words i read the evidence on the other side to be saying sure of course there are more recent models of car crushers the habitats flatters in fact there's several pictures of them in the record here but that that doesn't prove that this particular one suffers from a design defect because if that were true that would be like saying you can look at my kid's high school car doesn't have passenger side airbags you know compare it to my wife's car and say it's defective show that there isn't an unreasonably dangerous design defect in the prior model but typically beyond reasonable ness the end reasonably dangerous issue is one that's a factual question which is big to be determined by the jury so leaping up side sea somehow or another a person has to both get up to this five foot platform and get back down again and they're not supposed to do their work not to stand on the platform and leap down five feet and so the design problem is just sort of the common sense how do you scale that distance that's correct and to your point about their war and there's actually a bit of a red herring in this case because everyone acknowledges that the operators manual was not passed on in that the plaintiff would never have seen it but he seems to find a foothold somewhere he doesn't just jump all the way down to five c no he does nat he describes how he holds on and he steps down to what they call the outrigger which holds it stable while it's in place and operating he steps down to that which is much closer to the ground and then lowers him self down to the ground so he does the best he can according to mr to expert their employee that they say is the person who has the most knowledge there is no other way to get around enough except climbing unless there's a ladder available and so this is what he's given this is a man with an eighth grade education who has a good job and part of his job involves climbing up there every eight hours to replace those fluids that have been depleted and with no ladder provided he had to figure out a way as mr tourist says climbing would be the only way to me i believe that that is something that is so basic that it's within the confines of an understanding of a common lay person such as would be found on the jury in this case whether an actor ascending and descending from a five foot platform is unreasonably dangerous if there is not a proper means to do so in the making that assessment should the court look at the chad that your client was seeking to perform when he climbed ladder is that relevant at all to the analysis or you're saying you just look at the letter you look at the fact that he the job that he is required to perform is to get up there and do so figure out where the did it openings are to replace the fluids does that matter to the analysis absolutely not there are things on top of that platform that he must access everyone agreed with that the defense expert testified to that not all of them some can be performed from the ground but there are some that require him to be up on the platform where those things are located whether they're in the left corner of the right corner makes no difference because he has to get up there to do them and so that was a big issue that the judge hand was well he doesn't know where the radiator is from the hydraulic tank it doesn't matter there aren't there up there and he rips it required to get up there which required him to climb or scale this height and to somehow figure out how to get off of it once you get  want to save your last minute and a half  please the court my name is james kranti i'm representing the co op elliot a codefendant in this case in order not to complicate arguments and my understanding was i was going to keep five minutes and the other defendant was going to keep  watch your time ok i'm going to be addressing only the issues raised in our cross appeal and in the appeal that were not raised that were not dealt with in the courts it's the district court's judgment issue first neither plaintiff nor my co appellee seem to take issue with or argue against this point that we file the certificate of manufacture under illinois in this cellar statute seven thirty five five slash two six twenty one later in the case the district of course so that operates is essentially a motion to dismiss without prejudice the district court denied that finding that it was on time really there aren't that  supposed to raise a certificate upon answering or otherwise pleading and the statute goes on to later talk about due diligence and skin finding the identity of the manufacturer in this case it wasn't clear originally that our code fendant in the case would as a matter of law be a manufacture under illinois law when we found that out after a supplemental discovery was allowed we raised it hand and it does not appear that anybody's arguing against this issue so to me it seems that we should be out on that doctrine and it is a dismissal with prejudice that's why we raise it as a cross appeal i didn't want to waive that issue the other issue that i would raise was not was not dispositive we dealt with by the district court in this theories i was doing that because some of the evidence in the case and the way the questions were being asked it seems to me that they were pursuing what's kind of a standard move where you would go strict liability and negligence and i thought that they were going to  river metals purchased this product the entire product used and there was a doctrine that has been developed under illinois law czar briefs called the peterson doctrine it's been applied in various cases and it says that when you are a defendant who places something into the stream of commerce but you purchased it used you are no longer within the original producing and marketing chain in brief it means that it stands for the proposition is this doctor that only if you're in the original producing and marketing chain are you in a position to exert upstream control upstream maybe control isn't the right word but upstream influence to push safety considerations  with the main with the main manufacturer because we weren't in the original producing and marketing chain because we purchased this item use we should be out the the appellant will argue that well we have cases that secular what's your position on the appropriate test to determine if the risk utility or consumer expectation test applies to look at the entire car question just the latter something in between and what your support for that position my position on that is that the risk utility test applies to the entirety of the machine the whole thing why is the entirety of the machine relevant here when we're just talking about a platform and it could be a platform in a high school jam that somebody had to get up to to talk on the platform part of this machine machine wasn't on it wasn't being operated as a car crusher no one cares what this machine does well it's a highly specialized machine find that i mean it is not being used that way it's like if i asked you to jump up here on to the podium you'd have to figure out a way to do that correct  have to figure out a way if you're going to use the fixed ladder method which is what dr bournville testified to it as deposition and i believe in his report as well he also said they fixed letters required where  frankly looking at a picture of the machine seems pretty obvious that it's by this platform that requires quite regular servicing you know well there are deposition the photo in particular i'm referring to was attached to our summary judgment it's page id two one six one it's relevant because if you look there you'll see the tractor backed up under the platform at the front end of the car crusher there's a tractor going in and out of there however frequently this larger baylor crusher needs to be transported from one junkyard to another so you have to if you're going to have a fixed ladder it's got to be situated in such a way one that whoever is backing that the tractor up doesn't bang it a ladder knock it off to it's about always supposed that the accident here occurred around the cockpit or the cab ok had nothing to do with this front part in this hydraulic fluid area and the plaintiff's job which is to make sure that the cab of the cockpit was in good working order and looking at the picture we saw  think there is one here but there is one thank you ok but suppose we just looked at the picture and we saw how in the world of somebody supposed to get that cockpit that or that cap would you take the same position with respect to it well it's a you know it's a big complicated piece of machinery and risk utility applies and you need an expert to tell you that you need a ladder to get in the cap i would absolutely but there's a good there's no room whatsoever for commonsense in your view  i mean it just seems astonishing to me i mean there are all sorts of complicated machines that we deal with every day you know i drive a car to work most of the time and one of the things i need to do sometimes in my car to put wind chill wiper fluid in it so i put windshield wiper fluid in it does that mean that i also have to understand you know the way the hybrid motor works i don't think so i mean there's a very simple things that you do with very complicated pieces of machinery i agree but some some machines are designed in such a way where you need to do a little more than just use what's given to you but i just want to finish my point about the location of the ladder at the front end of the machine  having to account for someone back in the tractor up to connected to the trailer there are with restrictions you can have the ladder sticking out from the side or it may know the trailer may no longer be street legal and in addition and again i'm referring to page i d two one six one once this thing goes back on the road you know it's some point whoever's driving it is going to turn left or right and that will necessarily involve the wheels of the front that are part of the tractor turning left or right outside the the limits of the width of the trailer and you don't want to have the driver turn and have the wheels bang into the ladder and cause a tire blowout or cause the ladder to fall off so i think it's so you know you've never heard of folding ladders i take it or ladders made out of rope or other kinds of ladders that wouldn't do that i have i have heard of folding watters i mean it just it seems to me so harvey is that if you're going to get a human being from ground level up to five feet for proper business reasons that you need to give that person a way to do it and sleep with the cab or any thing else sixty or hero doesn't seem right well syria did give its customers a way to do it in terms of the training that it's provided to to the original purchaser of the machine there are there was extensive testimony from mr torres when he testified as a thirty six witness on issues relating to maintenance and how do you get up and down that deposition occurred in september of two thousand and sixteen and he was very clear that sierra recommends a ladder or a platform or a lift for the person performing the maintenance to get up and down the front at the front platform is not the only part of the machine that has to be accessed but it's the only party issue in this case it's the only part issue right now in this case but in the not your part might have greater design challenges where you would just have to win that rule seven zero two inquiry but this one may not be that way this one this one may not be that way but there's been no analysis in terms of what can fit in that space there's been absolutely where you have a mechanic who has to get up at wing level whether it's a cessna one seventy two or a boeing seven three seven it may be out of their reach they need to access a certain area and if you go over to o'hare midway you'll see mechanics with ladders or rolling platforms it's industry it's not so i wonder was were on is what your response if we do look at some of the the evidence that your folks i think brought forward it was out there all these different alternatives that are there now you know the pictures in the comics there's one picture after another with different ladders that are affixed that are a fixed the i mean they're part of the machine well there are there are attached on there and those were at the cabinet of the machine not the front end of the machine there was one r b s six thousand apps which is different than the r b six thousand it was a one time once only product that was designed built completely in italy and it was shipped to the united states all done ready to go see ya didn't need to do anything with that other than check the fluids put some stickers on it and it's ready to go if you look at the photos of that you will see that the of the front end is a complete redesign and judge scudder pointed out earlier just because something has an improvement or is better doesn't mean that the prior design was defective and unreasonably dangerous and i think that's the key focus as was the prior design unreasonably dangerous just because there is an improvement doesn't make the predecessor substandard in any way about mr rogers testimony is that something that would support plaintiff's position without the expert no i don't believe so because mr mr rogers testimony echoed what sierra says in its training he agreed well first of all he agreed that yes the latter is possible but it's difficult and it's difficult for the reasons i spelled out in terms of interaction with the cab and complying with with restrictions secondly he did acknowledge the possibility to use portable and attachable ladders that's basically the exact same thing that sierra tells its customers and provides photographs of its operators manual on machines delivered matter if they only did it one time or they did it a hundred times there is evidence and i apologize for not being clear on this earlier there is reference to the testimony of mr torres in our response to summary judgment if you  would refer to page sixteen seventeen of mr cripps response where he sets out the testimony of mr horowitz that a folding ladder would be able to be attached without extending past the edge of the platform that it would be to provide a ladder is a non delicate pull duty and so to stand here and say that their expert said well yes we give them instructions on how to use it that there should be a ladder out there for them is not useful that's something the manufacturer has to resolve for himself has to provide that duty in this case it was improper to grant summary judgment because this was a simple piece of equipment it expert testimony was nat necessary but given the expert testimony that we can add when dr blundell was asked what would this alternative feasible design this ladder down at the platform and look like he said well it would look like the one you have on the other end of the same machine to get up and down from the cab when you have something that people can look at right there in photographs as we have in our appendix on the machine itself there's no need for him to sit down and draw out a picture of what a ladder at the other end would look like he very clearly answered it would look like the one on me and the cabin that you