fact date of sale is not even mentioned in the statute the only burden placed on the plane the is to prove that the defect existed at the time the product left the manufacturer in this case all experts agreed on the theory of the defect buckyballs was a children's toy it was defective the magnets were too strong for times the standard in children's toy is a defined term it's an object designed manufactured or marketed as a  was on the panel in that case the issue was whether the who have the burden of proof to show host trial alteration the defendant side docs motion versus the bar in that particular case the defendants often post cell evidence specifically precludes so just down the end straight forward what was the specific post sale evidence they you wanted to get that didn't fall within the prohibition of for a whole seven i'm just still not clear on sure your honor let me back up and i'll answer the court's question during trial or in trial started we were told that  take the position that their warnings were the opinion that the entire consumer product safety commission had found buckyballs to be adult toy that was not disclosed to us it was only disclose their the opinion of evidence ok see see that sounded to me like no warning so are you talking about polls sale warnings these to be adult and that's why i'm trying having trouble between the poll sale kind of stuff for all seven vs the nord's testimony and i don't see where it trial you tried to impeach sharon showed that she was not credible show that she had bias which is a lot of the evidence you're bringing up now in to me and that the courts motion  lemony didn't say you couldn't cross examine for biased or truthfulness which is that's the core of any impeachment so i i don't see where in the record were you denied the opportunity to try and were denied the opportunity to impeach miss nord's testimony immediately on the st question on cross examination she testified that warnings were proved that her off to the core of the  swanee thirteen responses under oath from the consumer products safety commission where they denied that they had ever approved maxfield of jim's warnings i asked to use that document and display that document to take your testimony the only thing that i was allowed to do your honor was to show that document to her and am an attorney of forty years forty years experience when faced with  about all the bias evidence you're now talking about in your brief this is especially your connection to the defendant company how many times she's spoken out about this that conferences and you think she was just had too close of ties to them when was that  allowed to get into that on cross examination there during her initial questioning when there was some backing for about her relationship with or with mr zucker she commented that she could not get into that  identified those as impeachment efforts as opposed to oh say oh documents the we did this witness to two of them that we did the requests for admissions which are in the then i would invite you to look at the th circuit ruling in the zinn magnets case that sees a problem is you know the problem is you're saying they're in a record so we've got a plummet to the record trying to find this stuff as opposed to if there was a proffer i heard you saying you thought you had a clear pay up and still you know you try on a case for trial but appeal of you tagged as a property we know what we're looking at and for what purposes and i don't want to take more of you time but it just seems this is weave in between polls sale evidence and then it just sounds like you talk about bias and impeachment is a blurry line between his arguing about them and his rule in po in your arguments about impeachment and that it is blurry in the briefs to me and his brewery just in the manner here but he is my peers mcquiston putting putting in context what you are going about the most and limited we don't have an assignment there are about a faulty jury charge so my question is now will stand and what you're saying you know about the warnings did the ruling by the trial judge in terms of most of the lives of the throw you page thirty one of the very smart the in the court to the court's point there was no jury instruction that the court to possibly have ever given in this case to cure the error because the evidence was unrebutted the defendants are going to the case correctly we didn't rebut any evidence that the warnings were true because we had no all the evidence was excluded we couldn't rebut the error in this case began with a motion in limine and then it grew throughout the entire case but of all the witnesses evidence was excluded place witnesses and bennett's witnesses and it reached its apex dominant player in the in the gag and what the th circuit said that it appears from looking at that regulatory history that the commission's regulatory activity was predicated at least in part on forcing the preexisting toy stand which straightforward declarative sentence what the plane is theory of lab build c in this case was then once you do that i want to know what it is my take away about all this with the cross examination of names you knowing you'll go into a whole lot of hoopla and turns away she's qualified for what she's not you accepted her one respect as an expert it cetera but my nd question is are complained of you didn't know good luck in her down beforehand you just knew based on her writings in papers is that it no jury board are specifically asked whether or not maxwell and overton would be taking the case around and there was never there was nothing in her disclosures about that so we accepted her disclosures and the representative of maxfield and the ins counsel now i don't fault but any fault on they could not control these witnesses they were advocates they were attorneys they came into trial or purpose to give a narrative that they knew could not be cross examined ok all right  understand is a form of drab goods how this was good enough the rails of you have a pretrial ordered list of witnesses listed you take people's depositions you got them locked in the what they're going to say and then you know suddenly kind of all not arbitrary and that's not what it's fundamental to whether or not a product is defective because eleven thousand one hundred and sixty three if says that a defect is determined by what the manufacturer knew at the time of the sale what it could have known for recently available information or could have found out from reasonable care so a product seller can't be liable unless the planet can prove one of those things so seller is liability under the mississippi code product liability that is tied directly to what it knew or should have known at the time of the product sale that's why the pope's sale c p s see enforcement proceedings  balls happened in two thousand and twelve the judge reason order was very clear no post sale proceedings but you know the judge didn't raise didn't close the door he didn't slam it several times during the course of this trial  going to make this rule and if you later want to bring up this type of evidence i've tentatively excluded you you have to do it sidebar you can't just throw it out there and let the jury see it so that's i mean that seems conceit seems like that's a judge reese and all that and i saw her like you said he it wasn't an ironclad rule he didn't reconsider and allow certain evidence in a minute seems to me that's just the typical discretionary type of rulings the district courts have to mate with with difficult and eventually issues all the time  i think that's correct in the record reflects that in fact in the middle of the plaintiffs in milledge jordan's case they asked judge reads about documents from the c p s see that were after the sale that they wanted to cross examine the n c norm with at agreed with the procedure that they laid out and that the judge acknowledged that's it our away nine o two dash of six we agree you don't have to talk about the contents of the document you can talk about the substance of the document that happen twice with nancy nord the request to admit that the georgia lawyer mitch into the court earlier that was during the unfortunate proceeding to ban the sale of bucky balls judge reeves let them take that request for admission not tell them what it was about but let them use the substance of that request in which the c p s c admitted that it accepted the warnings as part of the corrective action point judge rees do begin with the fact witness alan sho left the door open to post still evidence if there was a punitive phase contrast that with the so called names nor bias evidence there was never a single proffer of what they wanted to cross examine her with judge greaves didn't see it government should have a limited role in regulating manufacturers that have nothing to do with advocating for mexico and open the can of corn the point i believe is that the nine items that we saw for the st time after a trial government overreaching where the consumer products safety commission is sued it took me over to hold him personally liable as leverage to get a considered a create a band a product so eight of those hand in biased things were disclosed to there's nothing in the issues about a warning the jury was not instructed about warnings that they approved the warnings in this case they called the warnings experts at the rand on product warnings of course are part of the design the plaintiffs ask us in a bench conference before we did jury for dire before we did opening statements will you not use the word approved inboard our opening and we agreed to that  isn't it true in two thousand and one bucky ball for recall this was pre sales that the c p s the stat age graded buckyballs to be a children's product and he said no you're leaving out that they approved the warnings nancy nord the very st question on cross examination question number one out of the box by the jordans isn't it true that the c p s they did not approve the warnings on bucky balls and  there were three active members nancy nord in anniston involved the commissioners delegate its safety and hazard investigations to the office of compliance the office from of compliance jordans bought had the new warning on it keep away from all sure can the plaintiffs the very st witness in the case jean ryder consumer products safety regulation expert brought up to sharon white staff analysis that said this is a children's product that view was not adopted by the office of compliance it was not adopted by the commissioners that was the single most damaging piece of evidence wh because almost every day almost every day during this two week jury trial we heard about with the c p s it did or didn't do what they found or didn't find we brought someone with personal knowledge who was there to explain exactly what happened if they disagreed with her version of it all pre sale they could have call artists in and bomb to refute it they did not this was a two week jury trial just reads gave both sides liberal opportunities to prove their case the revisit is relieved repeatedly as a district judge has to do when a preliminary in limiting ruling has been made those documents with the plaintiffs did not do was give judge rees a chance to rule on the so called more biased evidence and it's a little amazing to me that the georgians are asking this court to reverse judge agrees on abuse of discretion on documents he never solved during the trial that's a stretch and not in our history his discretion is bald but he never had to employ it because he was never sent shown the documents too long and he reflects that in his order on a new trial record six thousand six hundred and eighty two the defendant makes the point that counsel did not make a prof or that he was expected to show through further examination and nor obviously had this proffer occurred with the evidence laid out in the fashion which has been presented to us in these papers draw motion the court may have convinced been convinced that it truly was too restrictive judge resist is truly the most hardworking conscientious judge in the southern district maybe even the northern district to he deliberated over all of these rooms he beat himself up over this as reflected in his musings in this that was the issue in the case the warning says keep away from all children which says to me that's an adult and under this or similar product safety regulations you got a general use product versus a shortened product it's a children's pr you're subject to the mag strict limitations if it's if so i will without getting you down a rabbit hole but i mean i got a drawing of it you know trying to figure this out you know i'm had children got  i've been playing with them today during the course argument as a stress reliever oh my god well the primo never ask a question that you don't know to have to do i show to know to answer that one i would the i but i'd never heard of it and i was just curious you know as to what it was ahead but then i saw the diagrams of you know sort of what happens once and when an intestine and on and on and on and so you know every parent's nightmare you know having some that a kid you know gets a hold to go with the back and forth you've helped me just understand it was sort of an adult toys you say in the maggie's came a loose ok one last question in the trial judge's post ruling over something he seemed to express some contemplation of same way i'll be what was right the st time but i may have made a mistake the sale of the product in ten days up and so that was excluded macksville and overton sold the children's stores with names giggles and one to kangaroo but we couldn't get that into evidence because that was is no but there was no basis for that evidence room so we'll do you got it you got a child with a devastating injury and all those facts there and you've got your evidence i mean how can the jury verdict here come down to a motion in limine the ruling which is part of the trial i mean how can the jury verdict you got zero down on the st question boil it down to an abuse of discretion weak that by the full commission we were never is that fitting was never disclosed it was never disclosed as being there and you know the full consumer product safety commission and then when and and as again as this this case moves forward we get to closing and the apex of the error arises they're allowed to tell the jury that it's an rebutted but the central issue in the case of whether or not th thousand ask yourself this question wouldn't the court like to know what the outcome of the verdict would have been had the jury known the facts i would have liked to know the jordan certainly would like to know and if the answer to that is yes have the what would the court like to know what the jury would rule at knowing the facts the answer is yes there are substantial rights were violated and the jordan's on title to a new trial