the reliability the reliability issue with respect to our expert first of all the four standards listed in list in our nonexclusive and were never designed to outline all of the ways in which expert testimony can be established as reliable the important part about the job or test is that if the theory that subjected to peer review or testing or whatever other method establishes reliability not the actual conclusions and that i think your honour's is where the court erred in this case first of all the court erred by requiring what the court required was something puregold foundation of reliability and to look to what that meant with respect to the court's order he indicated there wasn't any testing  engineering and simple principle of physics such as gravity do you is it within the judge's discretion to say ok i credit the principle of physics but with respect to this case and this product there's got to be either peer review or something that links it to the situation i'm not going to have let him come in and say here's a present of physics and then here's the saw and i mar write isn't that you know that in the district court's discretion is the gatekeeper that the supreme court pointed him in well if that were the case john i think you may very well have a point if those were the only two d this is what the problem turns out to be if you read the district courts here with this record as broad discretion hundred dollars as you well know takes a look at these factors and said this just isn't good enough why is that an abuse of discretion  expert was required to do only the criteria outlined i see i think you're misreading what the district court did when you say he limited he focused on these two factors he took a look at the district or took a look at the evidence took a look at the factors and then pointed out where the problems were not necessarily limiting it's pointing out where the problems are well you didn't give any credibility or any any consideration your honor to the other evidence that supported the expert that was how do you know that i mean  we get these allegations all the time a whole bunch of materials in front of a district court and when a district court instead of the sky the entire universe of everything focuses on what the problem is then the lawyers come to us and say that this record ignored everything else and that's not the way district courts work they look at everything and they point out where the problems are i understand you're on one problem is that then you identify if the only way if he has to i don't know if you have to tell this particular model in order for it to ponder dogs and i don't to watch it first with respect to the warnings claim plaintiffs say we sandbagged them and provided our expert's report that gave them the evidence to support the warnings claim after all argument that's false record one hundred shows that we actually filed those one month before all argument two weeks before they had their rebuttal argument per their rebuttal reports they did not stand back and the only reason those reports were filed after all argument in the court was because the court asked questions about the testing which owner's manual also discusses the fact that when i work piece that you're working on is loose it could also cause back in it's just be prepared to get out of the way make sure you get out the way if you have to so they had that information  were the deadlines for expert reports in depositions order that all other discovery remains missing and i have those with me if you need to see them but it's record seventy nine the order with respect to all of the discovery was dated november twenty sixth two thousand and one docket forty seven it says all discovery shall be completed by september thirtieth two thousand and two so all discovery was closed that's why the summary judgment motions were filed in the face of a summary judgment motion they need to come forward with evidence not just a lawyer's argument that a different warning would have made a difference can i ask you a question because i'm having trouble figuring out from this record exactly what happened to the failure to warn claim as far as i can tell was it or was it not part of the summary judgment because there's a statement in one of the paper saying well the other side has given up on that and so that's by the by the boards of the other side then of course comes and says no no no no no we didn't give up on that so tell me exactly what happened have one in discovery they had a duty to come forward with any evidence but in the most time that you sent a they're saying well this will confirm tell me did they tell you what they tell you they said nothing they said i said we had a conversation a telephone conversation that i  put in a letter it's in a record seventy one and said this will confirm you have no warnings claim this is important to me because of my indemnity issue they never called me and said you're wrong so the motion for summary judgment we put that  clearly that i will not however waive my right to any such claim which which makes total sense at this point i don't know if i have one but i'm not going to weigh that so i'm having trouble understanding well lacquers insistence on the waiver the question i is now we get to the hearing rush summary judgment hearing the morning claim is still on the table and the question is is there any evidence of a failure to support the warning claim in response to the most of her summary judgment in response to the story just that motion or at any other time today produced any discovery and discovery was closed minded must establish and bring forth evidence in the face of that motion for didn't would have made a difference and avoided that injury oh yes here it really should be simpler than that one way or the other is there anything in the record in response to the summary judgment  entry standpoint a warning claim no there was simply an argument made in the response to a motion for summary summary judgment that a warning should have been given that someone can get seriously injured when wearing when using a power saw and in fact the owner's manual instructs precisely that and that's why in our reply brief we said your honor that's why there's requirement of a helmet gloves work boots goggles et already have a final judgment on all claims because he orders judgment in favor of defendants correct that's right but he is i only just simply have a situation where he didn't specifically what happened here but i am concerned about is the district judge seeming to say that you need peer review with respect to these stars or peer reviews respect to this principle as applied to size seems to me that under that kind a narrow view of downward that it would be near on impossible for most experts to testify because so many items on which we know experts are experts in testifying are not really subject to t amendment rule seven a one two and three at the continued emphasis on dobber to so it's all encompassing when in fact the kind of thing that's involved here is really come up and come home made it clear did it not that you don't have to go anyone reports by anyone or anyone in the world who agrees with him or who has ever seen this way whacker vibrate loose underuse there is nothing in the record nothing in the world that with this design this thread's the way they're designed which by the way vibrate tight with this lock washer which is designed to keep it tight would vibrate loose under the use of an actual saw and what we have in a record is hundreds of hours of used where it does not vibrate loose under those circumstances texting showing somewhere someone that you can vibrate moves is very important your over time but there with ask you a ton of questions is there something else you feel you must tell us please go ahead with it well was factor that warnings claim i just want to get back to that there is no fact no documents that the warnings provided were not accurate adequate to not fact witnesses or documents to show proximate cause or that i get an additional this warning was not designed to protect against flying pieces of metal in the boat backers injury could have occurred in the absence of any defect they say well risk of such a life threatening and life altering injury from normal use is not a risk for which defendants warrant its users so they say you admissions provide sufficient evidence to sustain the failure to warrant claim at least for the purposes of summary judgment what your answer to that you say this thing can kill you even if even if you do it right and they say well you accuse the other side of waving a failure to warn claim when the wording was however i will not waive my right to any such claim because i honestly thought it was there was no such claim when i sent my letter i said  gentleman ignored all those warnings and insults which of course just you cannot establish proximate cause where as here the plaintiff ignored the warnings that are provided here same thing where the warnings to wear here from the other side i start from the assumption that you understood fully that your cited not waive the failure to warn claim there's a reason your honor i sent a letter to ms goldsmith that reason and so you went into the summary judgment motion fully aware that it's on the table absolutely absolutely and according to your but when i went through your separate statement of facts because i was hoping i might find some clue about the failure to warn and i didn't see anything there and then i looked at the transcript of  argument i'm not sure how the court when divine the evidence your honor it was mentioned and i believe in our opening greek it's not our closing brief that first of all we move to strike to come forward with the information the last time i checked expert discovery discovery under the rules and although tradition although discovery in terms of iraq tories was closed expert opinions were obviously not closed because they were being provided at the time summary judgment and expert depositions had not been so with respect to the idea the discovery was closed and i didn't provide any evidence i don't think that's accurate but i know but we just need to know what the evidence i understand your district court can't