operation that he did something incorrect that i believe that you're right that then that could be a reason to overturn or to lose the trial or to dismiss the case on other grounds or person one of the points that seemed to be emphasized by the judges that mr rock was in control of the drill and that his being in control of the drill matters as the race doctor and you know has been applied under the feel a statute even if different under different applications would apply under the common law torts yes what's your report your reaction to the district court's reasoning i think the district court erred there i believe that the robinson case which is the controlling case on the seventh circuit makes it clear that the use or participation in any event by the injured party does not preclude the rest of the document in fact runs in course of states which runs into our secondary fortune on appeal is that the judge didn't allow us to reopen discovery after new counsel came in discovery a closed system to clean the reason we want to do was we want to hire an expert to review the drill and look at the mechanicals of it and revisit the matter of became more acute in particular as the case progressed and i think one of the points that he made if i remember correctly is that they just never came back on this and that and that's perhaps why the judge wrote or suggesting there's a waiver here well your hon nothing's changed in the file nothing changes what occurred we made a motion based on what was already in the record and what we had been able to ascertain from the previous counsel i didn't believe that anything would have would have made a difference at that point three months later if brewer had complete control of that drilled he started working at six am that morning and the drill operated appropriately from six am up until eight pm that night when something occurred that caused hydraulic fluid to come out mr mark was the one who was in control of that drill and that is why res ipsa is not appropriate here the cases that are lies upon do not support his position and i think a critical distinction in the supreme court case of just new skete i apologize exclusive control of the defendant they did not say that you could use rights that start to infer negligence as it related to the operation of the switch because the plaintiff was the one operating that switched and so just knew not support operating it without any problems and then something happens at some point in time and we don't know what happened but what plaintiffs got can this work to do it putting that burden on union pacific even though he was the one in control of the mechanism and permitting that kind of imprint is permitting plaintiffs to use this as a strict liability statute and to allow every single i feel a case to get to a jury and allow them to simply speculate on the cost it seems the plaintiffs counsel indeed recognizes that some sort of evidence of negligence was required before this could get her jury if he conceded they wanted to have an expert in order to look at the drill to see what happened here at the trial court level the district court also while the f b i right is a broad statute that does allow for medial action it does not allow applying to simply come into a courtroom as the district court pointed out and say this happened therefore i should get to a jury under  jury to infer that when the drill operated appropriately all day so as it relates to the records that issue mr brewer who was in control of that drill for the entirety of the day mr roux arc was the one who would know if something went wrong with  discovery i believe that the record shows that this has been waived the trial court clearly stated on the record this issue is not necessarily even right for my consideration a trial date has not yet been stopped what the district court said was i'm going to go back to my clerk i'm going to have then set out a trial date when the trial date is that that will be the trigger for the movement to continue the trial in order to reopen discovery and at that time you can lay out what discovery item is not sufficient to establish the control of the rest of the control of this real drill it stands with you city it is one that how's that it's one that is responsible for making sure it is operating properly it's been maintained properly and