you may call the first case was standing the verdict second whether the discovery sanction was an abuse of discretion and third whether the exclusion of franklin green's pre occurrence testimony was an abuse of discretion if we are correct in any of these close to judgment for cannot stand that how proximately caused the train collision now any difference the troll off the highway due to inadequate warning we submit is speculation unlike the cases the plaint cites smith and kinch here there was no evidence that toro could not see where he was going due to the sun every witness who testified at trial chaney green  or difficult to see but no one said they couldn't see ahead and no one said that they couldn't see the three vehicles that were on the shoulder  requires some showing that the presence of the field call was a cause of the heiner tractor trailer leaving the highway if the vehicle would have left the highway no matter requirement for proximate cause as a legal cause and for cause in fact i go back to salinas and i go back to henderson no one knows why or butcher well left the roadway now can i say that it couldn't be the sun is a mere circumstantial evidence well it's possible i can't say that it couldn't have happened that way could there be some other reason why he left the highway such as he was trying to put on his t shirt which was evidence that we wanted to present but the judge refused to allow us to produce up to present  was continuing up until the time of the place of the accident i think about a four suck what are all the things you need to do to put on a t shirt when you're barreling down the expressway or the highway at between sixty and seventy i could live with thirty to sixty seconds i could live with sixty to ninety seconds you compare this case with his scott versus peterson you compare it with spencer versus one of the last week and what you have is a shorter time period than what you have in spencer for example spencer you have a motorist who's motorcyclist who's observed riding on the shoulder weaving in and out of stop and go traffic ten minutes before the report of the spencer this is not a momentary action that could be repeated or stopped the old times in a ten minute period it's not like weaving in and out of traffic it's not like oh i had a change the radio channel so i don't like the music or  didn't try to move off the exit what were some of the other things that were before the jury you're saying that not oh oh ok had anything to do with this accident what i'm saying is if truck in henderson versus backman it is speculation whether the video calls on the shoulder head anything to do with why the accident took place they were there act that required the reply here's and that was there for two hours you're just saying that none of this in any way could have contributed to the injury and if you're actually got this totally wrong and should never have this well based on the you know we've talked a little bit by one basis for trial or because i don't want to predict what a jury would do if they if they heard everything and got to go back to the issue of proximate cause all we have a circumstantial evidence we don't have any direct evidence of what herbert tyrrell was doing and whether he could see where he was going and whether it would have made any difference if the triangles were put out for absolutely absolutely it becomes even more important even more important in the case when there are no witnesses who can testify as to you know what actually happened we had no way to combat all of the speculation i'm about you know the sun was in his eyes and he couldn't see where to start going but we had another explanation for how the accident happened there was just speculation because we know circumstantially he seen with bare chested something that you're not likely to forget when you're trailing sixty miles per hour and when mr green goes up to the cab in the ditch effort the accident yes this teacher got that circumstantial evidence and there control when the vehicle is in operation i believe the language in the lease talks about operation it's not that we're in possession of one it's still a wreck when the insurance company paid they were paying oh about whether to service our well they were they were asked the insurance company asked us whether we wanted to meet to salvage it we said no we're not we didn't want to pay money out of our own pocket i don't know of any case that says a we have to pay money out of our own pocket to preserve something that we don't know and i don't know of any case and they have not cited any case that says that we had that today and i against the insurance company which they never brought ok and the other thing to keep in mind when judge o'hara was using the six factors is that he thought that it didn't really how do you know way that the tell her the problem at the time even though we wound up having everything done keeping the original plan out date everybody was deposed every once we deposed every expert was disclosed everything was done to prepare the case for calling me for so the timing didn't come into it the other basis was well you didn't provide a verified explanation and then maybe going to the question you're asking well look we're going to do more than simply provide an affidavit your state room a second chance have ed ask them what happened right he was wrong why he said he courage something when really they were there in a different place that doesn't sound like something the ferias to me if you said file cabinet you know language accent and that's a little bit questionable that you think mr rhesus well you know what he submitted to a deposition and ultimately the basis for the same question was not based on gave graham's credibility it was based upon the fact apparently that we didn't preserve the engine ok and again i'm not seeing anything in the case well that says that we have to pay good money out of our pocket to preserve the engine in this type of case doing and so he's reacting to the lack of any warnings that are out there what happens is that the site's like has been the one side's right back there a hundred fifty feet and and higher if you look at the video critical because they really towered over any of these sanctions if the court were to say that there was an abuse here in some way and those narrow sanctions frankly are in some way  step that sticks out in that kind of so it's a it's a very narrow interstate with with up a fairly narrow shoulder and hitting it right at the street at the shoulder it's not like it's leaving the roadway he's ninety five or more per half mile timeline and well here i think when you put it all together it simply didn't make any sense it was total speculation i'm just witnesses part one and two it was it would be the speculation clearly for the jury are we to yes but he also said it was too remote now is there any question that this mr green when he was deposed said that he first saw the driver isn't this a case where you have no actual eye witnesses it's all circumstance that was a reconstruction of course but i'm just saying so so if there was something to be explored wouldn't it have been this because there was testimony that one when he first saw terrelle he could have been half a mile to a little more than a mile up before the actual collision and then he yes we were quest of the documents take gave us what they said were the documents and then we finally get mr prince deposition and when we ask him some questions are we showing what we've been given representative of mr lang of records in the in the maintenance records we get the reaction that no there's more than that did the testing with well i think ultimately the whole picture of this turbo did in other words they did some work on the turbo and then later ron we get records not even from them we get records from the heiner but the codefendant who sends us records showing the insurance companies exchanging information and working out what they're doing about the damage to vehicles and so on and we get information about the salvage on the truck that had  and we get information eventual a that that they indeed had an opportunity and they approved of the celibates the c e o did that testimony in that regard him and this or brian in terms of going to the c e o and saying do we want this and they don't they got a twenty three thousand dollars check from their own insurance company related to this for the storage and things of that nature so they're very involved in this they have the opportunity to hang onto this their insurance company did there was never an expert hired to even examine me what we did we didn't have all the information that ultimately was brought to us and that we saw i mean i think i think we we were just at the point in fact we were we were finishing up fac witnesses and were going to disclose experts and we didn't yet have all of those documents from them and we didn't have any information about the turbot of that and they are not being saved and that's sort of how many  late they didn't make a difference if that was true that there was no policy in place at the time of the accident that he had completed safety class yes he would have been on the road no no no no maybe i misunderstood they are the number one warning device to be put at the edge of the roadway to alert on coming drivers that's the standard with respect to trucking yes those prying those truckers know to look for them because they know that's the requirement to look there and that they want to suck up some substitute from  said it was extremely dangerous but he said the old them of the seven these issues his that would be the correct thing to do get him off the side of the road yes and you didn't do that and he actually said that was careless of him and that's the right thing to do the correct thing the careful thing isn't that and you didn't do that did you yes i'm correct and i guess you didn't do that you said it was the right thing to do and i'm not the triangle suspect the be the admissions that you see there no that goes to the point of the sanctions where the sanctions of any of any import at all and under the general verdict rule we believe there are several things that that were proved overwhelmingly that allow all right let's let's start with the last point which related to of the observations of frederick cra the argument about the fact that he was the seem to be driving erratically well up until the time that effects both ways because he could have just as easily been losing control accident conduct in driving on the shoulder and weaving in and out of traffic if the point of observation was ten minutes before their quarterbacks and it was me that's a much longer time period and you could say hey you know you could have stopped it at any about was speculative with regard to the t shirt honestly and i'm just that make this comment i don't know why the t shirt is more speculative than the sun because no one testified that they couldn't see the vehicles look like a christmas tree because of the sun was the sun a factor yes but even their expert said i don't know how much of a role the sun play this is an accident reconstruction case you never presented any accident reconstruction testimony all the jury got was testimony as to where those vehicles were placed and they were all placed on the couple of other things this this highway patrol they have a standard with ten feet below the call was about one point nine feet to two feet from the fog line on the shoulder he pass the bob tail and stay on the shoulder it happen accident happens because mr toll for reasons which we don't know went off the highway and unless he went off the highway for a reason they're related to the presence of our below call because we did or didn't do something that caused untold leave the travel portion of the highway we could not be held negligent let me just say a couple six but the fact remains that when it comes to the sanctions we had three allegations that were deemed admitted that the jury never got to consider relating to the mix and it's relating to the training and i don't think that the  out on the highway without having him go through the i'm fine training we could do it and that would not be just departing from their voluntary policy that wouldn't be n that goes to the point that the sanction was overbroad because we were being sanctioned for conduct the could not be considered negligent well alone conduct that the jury never even got to consider so i don't think you could ever say that the sanction was harmless in this case it was devastating can you imagine trying a case in front of a jury involving a fatality and it was a tragedy i'm here to tell you otherwise and having to face a jury with those allegations of negligence it did surprise that the jury came back the way it did and i say that even though we never got the chance to present our theory and also i believe that the judge  should have taken away the verdict based on price because i think i've raised everything i want to raise the issues have been briefed for i think about one hundred thirty pages in total we know they're all argument is a