is that the trial court made decisions a summary judgment that really should have awaited the trial of this matter interestingly enough in the opinion on of somebody within any kind of operation not mean a thing for some aspect of that operation simple example of my title is higher than that of my legal assistant liking this jury and there are a lot of things in my practice that she knows about than i do not know about or she knows better than i do and that's the same situation here we have a super director brinkley i wish i had taken her video deposition credibility issue basically takes a while like they can never have done anything wrong ever put up one expert rigor roa came up with studies that showed although using minimal numbers that this does happen when you translate that as we did in our grief a situation or otherwise there is a potential for an adverse reaction trial court dismissed all the why experts even though they had national you know a situation company that uses the laboratory and blood draws most of them had worked at full a lot of this was they would be involved in actually screening process is exactly what both of them good jackscrews should should have been and there's a picture of that in our brief they are seated at a lower chair they are in a confined space defense in some states my understanding is that in michigan it's really been removed that billeted in the context of this type which you have a contrary understanding obviously can you explain to me where you derive that yes your honor in huntly vs dupont automotive this core applying michigan law affirmed the district court's ruling  and applied primary assumption of the risk now it was a narrower holding it was primary assumption of the risk not as broad as the common law assumption of the risk that we all learned in law school in that case this court held that the doctrine is viable only when the plane to is an employee or an independent contractor and the risks alleged to have caused the injury were the very risks inherent in the plaintiff's agreement to do the job it is a narrow application your honor but it's really no different than the act here how do we transform this plane it can do any employee or independent contractor yes your honor this plaintiff was a vendor who was attempting to qualify herself to sell her plasma she would have received compensation from by a wife if she had successfully donated and so she was akin to an independent contractor she was application of assumption of risk to people who are employees or independent contractors be based on the opportunity that those individuals would have to know procedures and  risk inherent in the premises that doesn't seem very analogous to this case to me your honor this plaintive did understand the risks inherent in the procedure she had donated what on several occasions previously he had had a capillaries and will eventually and in fact she had lost consciousness during a previous capillary samples arranged with a press seems to me that in this case that probably goes arguing to the jury the case goes to trial i would say yes to right your honor that does go to comparative negligence but i also think it informs the primary assumption of the risk and you know there is no explanation in the record as to of didn't volunteer her history of adverse reactions here but there is in the record the fact that she would have been with her particular history of adverse reactions she would have been permanently  donor and not and not able to receive any compensation from by a life so this is a circumstance where it does kind of go back to the assumption of the risk and the ability to  to understand the facts and receive compensation for agreeing to those risks did you put evidence about bio white having a policy that they would not accept her as a donor is there some piece before and in that experience had lost consciousness she would have been sent to a nurse for further evaluation and the nurse after eliciting more testimony about the circumstances under which she had lost consciousness and the frequency ms ms good had lost consciousness many many times at the sight of her own blood in others including during a capillary simple she would have been permanently earth hour and this  reasonably in light of the apparent rents your honor but as the and that's really goes to the standard of care once the duty of the fab list but as the district court noted when it weighed that the risk here was in the parents to buy a life none of the buy a life employees had ever seen someone have this particular reaction in which there was a sudden loss of consciousness without warning during a finger prick in all of their experience a life submitted the evidence from its expert explaining that it was happened rarely point one percent of the time and that was in medical literature regarding venus blood draws which as judge moore noted earlier are different from a finger prick a capillary sample is a very short procedure three to five seconds only and involves very little volume of blood being removed from the body both the duration and the amount of blood removed during a venous one draw are more substantial and so you're more likely to see more people have an adverse reaction in that circumstance so you would expect it to be even more rare in the circumstances that by a life  by a life employees described as quote exceedingly rare that an adverse reaction of any kind happens in the screening area ms pietrzak the center supervisor noted that in two thousand and eighteen there were three only three out of eight hundred thousand donors who had an adverse reaction in the screening area and it was in all three instances mild no one came anywhere close to those in consciousness  again but the jury that plan seeks to assign to buy a life here is a duty to protect her not this is not a situation of active misfeasance plans are not alleging that the fingerprint was done wrong that the needle was inserted incorrectly in a way that caused nerve damage what they're really talking about is nonfeasance where by a life failed to protect her the duty to protect a duty to use reasonable care wouldn't part of that duty be to provide a seat where a person who has an adverse reaction would not be likely to fall or floor and hit their head and have a concussion and so forth and so are again your honor if you look at mt everest salvato the mission supreme court he's talked about the standard of care being  exercising reasonable care in light of the apparent risk the risk here was not apparent it was extremely rare there was a seat and there was a seat available to the plaintiff and because of the plaintiff's unique history of losing consciousness suddenly and without warning when she's exposed to blood or needles that is something even if there was the statement by the person who did the finger pri that she was trained to reach that he opens an arms of the person who is having the steppers reaction and keep them from falling so obviously if she was trained she had an expectation that this could happen i don't think it's fair to say that she should have an expectation i think that she was trained for a lot of circumstances that may have been but a possibility is not a probability which is what the plaintiffs need here and buy a life  ability by a life good business practices does not mean the same thing does not create a legal duty the cost is not the same here there needed to be a special relationship in cause would your argument be that as a matter of law her own negligence proximately caused i mean that sounds like a good tribute to or a negligent argument so i'm not sure but in a comparative negligence jurisdiction but wouldn't that be the way that works but your honor the failure to tell her couldn't have caused a different result she already knew the rest and she moved forward misconstrued that a little bit in the record your honor and i would direct you to look at her testimony on that point she she got up in the chair she was aware community doing with why the good did not tell anybody about her situation is frankly because she never reached the point where it would be expected she was surprised  that she was going to donate plasma because to me despite adverse reaction just did this on a regular basis not for the twenty five dollars she was going to irma because she felt that was the right thing to through testimony in this case was she would have been of or not but she certainly would have been would have seen a nurse and this d would have been discussed but she could have gone forward with the donation simply by being put