good morning please the court counsel my name is michelle hurley i'm here today on behalf of the transport we are here today asking the court to reverse the district court's ruling on summary judgment and remand this case for trial we are making this request based on four premise  material facts exist with respect to the issue of whether or not domestic corporation was a manufacturer of the subject refrigerator specifically with respect to the admissions that were made by domestic with respect to that nd the apparent manufacture doctrine has not been abrogated by i was innocent seller statute rd i was innocent seller statute does not require a causal connection between the design input and the specific part that failed and finally if causal connection is found to be required that would be a jury question i would like to start with the design argument st specifically with a request to the court's holding that there needs to be  what is in your view what is the what is the the we have to give meaning substantive meaning to everything in the statute what's the meaning of the well certainly your honor the designer and many different products can be more than one entity there can be more than one entity not the plain meaning of where you get this well i would assume your honor that the word in this circumstance means one i don't think that those two could be supplanted if you are considered particularly for a retail in a retailer if let's take private label products a retailer craftsman participates in what's he going to want or certainly you're on a go if you're going to if you're going to if you're going to retailer who provides the specs for what the products can look like it's going to function well your honor i think that it goes much further than that in the courts have actually addressed that issue of what what constitutes the designer and words in the way that your honor is calling out the word but they certainly discuss what constitutes a designer of a product and what they were referencing was that the person that that's in question the entity that is in question that's been sued has to have some responsibility for the design not the complete responsibility not the overarching responsibility not the one who says at the end of the day this is absolutely that one thing they said some responsibility for the design that is what the cases that are out there that exist now state with respect to this requirement they don't single it out they don't say that it did that it can't be more than one person because they contemplate that in both of the cases you have two people there are involved in the design and the question is whether or no state court or appellate court that has undertaken this particular statute with reference to what constituted constitutes a designer and so those this is the only law that we have that's out there and the courts in  this particular case tried to look at the calera case which is one of the only two iowa cases that we have even involving the statute but unfortunately that case involved in assembler and not a designer but what was interesting about the courts statute and moreover so in addition to adding this extra requirement for designer which clearly the legislature could have done and chose only to do for a similar the court in calera wasn't even focused on that part of the of the of the statute what they were referring to is just this initial threshold question of whether or not it was an assembler of the product that injured the plaintiff which is it's a question that you haven't any products liability case whatever product injured the point if you need to be talking about the manufacture of that product relationship with all due respect your honor i don't believe that that's what subdivision two is referencing what subdivision two is referencing is whether or not the assembly of the product was related to the injury of the party it's not a matter of whether or not there was more than one assembly done of the product it's whether or not that assembly actually caused some injury and that's what subdivision two was referencing was cracked the retailers assembly having no causal relation to the jars and so forth yes what the court was saying is that the product in that case was the olives and they didn't assemble the olives and that was what caused the injury to the person in that case so they're talking about what is the product is the product the the jar of all of which obviously the assembler in the case had some role in that the st is is the product the olive and that's the problem with relying upon clericals because they weren't even talking about subdivision two that wasn't a part of their analysis under your argument if you were a person who manufactured refrigerators and you just say ok we will go so you refrigerators to put into your r v right and the guy who owns the r v says by the way all of our refrigerators have to be right handed rather than left hinge because if they're if they're hinged the other way they won't open in the space where we've got a design that those people are now in all the way they are just somebody gets to  litigate through this whole thing because they said by the way got to be hinged on this side right your honor and i do agree that it does make a difference in terms of the level of responsibility that they have what we disagree with  requirement that the court added to the statute that's really what we're taking issue with that's the part of it that we're taking issue with we're not taking issue with looking at the level of involvement that they had in general with the product which we find to be very significant in this particular case if you look look set it is as it is as an expert on north american safety standards and tells us what he does this is the this is is as this performs it will not be certified for sale in this country and now the complied with the standards of her car from his perspective and his experience if they don't change this you won't be served right your honor and he had the ability to say to them you need to make these changes to it and if they didn't then it wouldn't be sold and it wouldn't be sold in the u s in addition to that your honor i don't think i think you're seriously overstating your honor in addition to that they also were heavily involved in this recall in that they designed entirely the recall fix i mean of course they were on or under american law they were the u s retailer would not be allowed to not take responsibility for a man recall now you're not talking about taking responsibility and instituting no actually on or on actually on i'm not actually referencing that what i'm referencing is they actually designed the recall fix that went on the refrigerators i'm not talking about them instituting the recall you're can see that when you look at many of the other cases where they've undertaken this they followed those same constructions of of the statute and said ok is there something there and what we see in many of the other cases if not all the other cases is there's a clear indication in the definition of manufacture that they intended to move away from an apparent manufacture doctrine and that just simply just doesn't exist in this particular case even if even if it does still exist don't don't you need reliance yes absolutely your honor we  view that it is an actual reliance or an objective standard that hasn't been addressed specifically by the iowa courts but the majority of the courts have held that it is an bijective test of reliance in which would easily be met in this case given all of the all of the statements that have been made by domestic what what is that evidence what even if it is an objective standard what is the evidence in the record that would support that finding domestic has told the public at large that they are profession has told the public at large that they are in fact the manufacturer of these refrigerators and i think that the public should be able to rely upon their help with statements are you talking about the recall letters yes yes or are you talking about anything other than the recall letters is there anything else in terms of to the public public at large i'm not aware of any other or to the to the to those who buy to those who buy these it's an r v right that had this refrigerator other than the fact that it says domestic on it no your honor right so there's no evidence that that's a that's  it in the record is somewhere in the record i don't know all this report record but it's in our materials that that your client so the actual manufacturer in another case yes not recall whether or not that somewhere in the record or not i mean we don't have jurors the state the united states does not have jurisdiction over to medicaid to medicaid b why is that if they manufacture a product that they ship into the united states that causes an injury why doesn't that fit into a long arm jurisdiction generally well your honor i would argue that it does subject them but a district court in the state of iowa had a differing opinion and they felt that they did not have signif may please the court counsel don't jump right into that last issue the roman court never said they didn't have jurisdiction over dramatic a b this isn't in the record but it is in pleadings available that the court needing to know in the boman case a state court case in a federal district court case in this for the southern district but the allegation that they don't have jurisdiction over the medicaid be was not made in that case it was the finding was representation regarding the clark case is is incorrect the clark case was not dealing with whether or not the all of us were the product and it was not dealing with part two or some part b holding clark was unless the assembling activities assembler there was that's that's what that case turned on the district court found there was no reason to make a distinction they do in their distinction though isn't there a distinction between or at least conceptually and how you're able to separate actors and what they do these are the the product assembly sort of seems to be a defined category what you're doing with that design seems a little bit more free flowing and it would be i'm i'm wondering how you what  standard you apply and if the district court applied the correct one to determine whether or not there was a connection between the injury and the design because you could see that design could play a role in a lot of aspects of the product or play no role at all correct and i think i think an assembly could do the same thing but on this record there's no evidence whatsoever that any design input input if you even want to call it that had any connection to the defect it was the defect was that and disputed what the source of the source of the defect w the source of the defect in this case is subject to some dispute and i mean the expert reports generally believe i think that there's some issue with the boiler tube and micro cracks or for calling it and did the district court say well there's no that's the see that's the part that caused the injury and there's no connection between at the design and that way are what there's a dispute as to whether the boiler tube was actually the cause an injury is that proper conclusion for the district to make at this point well there's no dispute that it would that it's there's been no really alternative explanations other than the boiler too and that's consistent with the recall documents or it's unknown yet isn't it isn't the argument that's been presented as i was looking to it there really twofold one is is that the most probable cause is at the other evidence is gone so you're left with only the evidence you could look at correct that is correct and again a defect in the boiler tube is consistent with the documents of the recall i'm so that's obviously one argument that's being made and a i would submit mr mr mcconnell's input does not make it to him a designer at all he's a he's a seller dramatic corporations a seller and in order to sell these in the united states they had t meet the canadian north american safety standards in the canadian board tests against those standards mr mcconnell isn't writing the standards just as any customer that's going to sell a product that's going to be manufactured by someone else says hey i need to meet the standards of the wise and i can be able to sell it you do this mcconnell's testimony was unequivocal that he's not telling them how to design the refrigerators he's saying here's some standards that it's going and that he told them this has to comply with north american safety standards how does it vary i mean when i looked at it you know there's a lot of things that go on where you set forth a series of spec for beds and then you talk about things that make it  more attractive or marketable and then you let it out the only difference here is rather than just let the whole world bid on it you've got a company that's that's in some way or or shape captive to you or your captive to yet you know but in the end how does that really become design it what do they what do they actually what do you what do you think is the is and i don't bash the wrong person what do you think the best argument is is that that they said something here the where i mean i was your party to the discussions what's their big argument about that they design rather than merely suspect there's no evidence in the record about anything that they specifically designed the mr mcconnell didn't talk about any specifics about what he actually did know he gave an example about what's in the safety standards you can't have a more than two cubic foot opening on the insides a little big brother can put a little brother in there is an example but there's no evidence in this record about anything mr mcconnell did that contributed to design of any refrigerators much less the unknown refrigerator in question so i don't think we're in the realm of designer here at all and even if we were there is no evidence that any if you want to call it design and put that demand a corporation had contributed in any manner to the defect and other than the color of what other support do you have for making that additional requirement of the link cleric is i think the best evidence of it as an i was supreme court case and the authority is admittedly somewhat sparse  i think the alliance case that they're referencing is a totally different situation the alliance case the court found that the purported designer in that case had a say in the material composition of the actual defective part had an entire design engineer group the undisputed evidence in this record is that dramatic corp had no design department anything like that prior to two thousand and nine and that they had to grow on and nine when they started manufacturing reviewed the design in considerable detail gave specific samples that they had created to develop the design with and have the knowledge and expertise to make a full assessment of the design and complete power to request or prove does talk about and i understand your you're saying either that's directly on point or the best iowa law we've got on it but is there any other other analysis of similar sorts that help us understand what how iowa m tease out the design part of this just given that i think designs different than  i don't think there's any iowa law that's real great on that topic i do think also the stoffel case they reference when stuff is talking about what a designer can do that puts them on the hook it says a designer may develop an unreasonably dangerous  and a someone might put together on a designer might develop and recently dangerous design i don't think we have that here either so i don't think either of those two cases the district court cases that they're talking about have any bearing on this and clark really is  us supreme court i think in in in plaintiff's brief and in their reply they don't provide a rationale why there should be a distinction other than saying assemblers different than  is in that case they had someone sitting on the design board the seller had someone sitting on the design board providing lots of input but the court said no you're unless you're the d esigner the actual designer you're entitled to immunity under the statu put a car dealership case out of texas but i think boyce is the one that we were we were relied upon the post i think the most ruben is a is a case out of texas i think that's the right case that talks about providing all kinds of you know customer preferences to the manufacturers and things and things like that and there's other cases maybe one or two other cases cited in our brief on that sort of issue that you have to be the designer in order to  i guess lose the immunity that these statutes are providing a brief covers i think in some detail the apparent manufacture doctrine and why they i was statute has abrogated that and the iowa supreme court and the district court have resorted to dictionary definitions and found this doesn't meet it for this particular statute but i want to address the reliance element of that because there is zero evidence in this record has been treated differently in certain states i don't think it matters here i think there's think it's clear that actually lyon's actually seems to be the best way to capture the purpose of the apparent manufacture doctrine which is if you're going to induce someone to purchase something based on your skill in manufacturing it then we're going to use th typically i think requires actual reliance and there's clearly no evidence of actual reliance because the merfeld didn't even know what brand of refrigerator was in there but even if you're out of objective reliance test there's no evidence that there's that was any holding out a manufacturer to r v manufacturers such as gulfstream or whoever there's no evidence that the whole held out as the actual manufacture or the apparent manufacture to the public they sent recall notices to people that had already were in possession of the refrigerator and that's certainly not with the purpose of inducing them to buy as you're disclosing a defect so as the illinois  it's at the time even if you're using objective standard for for the purchaser it's at the time of the purchase and at the time of the purchase there is zero evidence that demand a corporation had made any representations that it was the manufacture to anyone the there's also an alternative basis for a ferment which is the destruction of evidence in this case which the district court found was completely was prejudicial and prejudicial enough that it would warrant dismissal but for the finding of intent i think with litigation imminent the district courts in the circuit are are saying you don't even need intent but i think under the stevenson case where union pacific destroyed tapes even without actual knowledge of imminent litigation that would be sufficient in this case where the stevenson court also took into consideration the type of evidence that was destroyed in  particular well the intent pulled it was an air temp requirement may not be may not be a requirement for lesser sanctions such as precluding precluding evidence of there was some cause other than this case i don't see how any of them would be sufficient to cure that prejudice other than  what's important to know yes to take away from this what we would like you to take away with it is that there are material facts at issue in this case there are material facts with respect to the design what the input was how that input if it needs to be causally related related to the alleged defect they focused solely on the boiler tube the boiler tube can have a hole in it and not cause a fire there are a lot of different things that go into play to creating the hole and there are a lot of things that go into play into producing a fire that's all outlined in the recall it's outlined in the deposition transcripts that are attached that would all be a question of fact for the jury to decide in relating those two things together in addition to that there wasn't there a question of fact as well one of the issues not to argue too much  judge loken here but it seems to me that the issue of intent is entirely a fact laden determination and when somebody has you know twenty loads of stuff from a site  to say that you failed because there's no showing of intent strikes me as is invading the just making a factual determination that just as well frankly i don't see how it's reasonable at all i  unavailable and you don't have to be a rocket scientist or an expert understand that's problem but you can when you've been told there's pending litigation or come in in three weeks well there wasn't pending litigation and what i think you know there was there was a claim and they said we'll be here in three weeks respect this the witness fire that occurred in the r v and it was seen by witnesses in the r v itself and no where else but notwithstanding that what i think the district court did hear and what i think i think was valuable in what he did is he parsed out who you're talking about are you talking about state farm the insurance company for the marathons are you talking about the miracles you have one person doing the action and you have another person with the knowledge and you can't conflate the two together and treat this person who's taking the action as the person with the knowledge now you may very well be correct that there's a fact issue with what knowledge they had although they've been deposed on that and all of that was in the record and the court said they didn't have the knowledge there was no knowledge there yes they were the ones who took these actions but they are believing that the only evidence relevant is where the fire occurred which was the r v and that was what the court really focused on is that domestic was really trying to put the two together and impute knowledge of state former state farm's attorneys who even at that time were not the