we have a situation in this case the court trains are a unique conveyance there is not a conveyance like the board trains anywhere in the country what makes them unique is their rapid rate of acceleration they accelerate at the rate of three miles per hour for second and when you say that is what does that mean that means in ten seconds you're going thirty miles an hour in twenty seconds you're going sixty miles an hour there's no other system in the country that the court the district court that the design was reasonable the design of the lurching was reasonable what part did not submit any evidence on and they did not say there's evidence that that's the way it was designed and so you are not as i understand it challenging the fact that bart has this mode of operation your focus is on whether they should provide warnings and seating and whatever else to accommodate or to address these unique characteristics that's precisely your arm i'm not i'm not finding issue with the design itself i'm finding issue with the fact that they do not warn their passengers about the design in the pages i'm sorry eight pages of safety related items there's of this there is about a quarter of the pages deals with on the train it says on the train don't leave the doors don't bring fam flammable liquids when entering actually watch your step they tell you that there's a gap of three inches in between the train the platform they sit in or columns are located on the train this it take time to review the emergency procedures can that not be there there is not a reasonable government body confronted with the issue of the train lurching in the raptor celebration who could find that that warning shouldn't be there at least and th is my recollection sure and i don't recall that any of that was done bart to continue discovery but they just recorded it put a complete hold on discovery for plaintiff the district court said no discovery there you the court struck at one point that tore did allow for some discovery rare so that could have been put in as part of the record in opposition to bart's motion for summary judgment but i don't find it so i don't understand the court's order the record is clear that any dangers associated with bart well times acceleration rates are visible to any person using a bar train with due care there is no evidence of that fact at all that the court cites the coastal art declaration kushel or doesn't say anything like that there is no evidence that these perils are visible the court found it but had no evidence to so that these perils or dangers are at all visible the points that have been offered by opposing counsel with regard to the alleged lack of warning there was in fact evidence in the record in the coastal ark declaration regarding the chime when the doors close the flashing red light when the doors close also the seagrave declaration which had photographs of the interior of the car in question showing all the handholds all the opportunity for the plaintiff in this matter to have grabbed the handhold for the bart train started out with regard to the issues of the discovery in late september there was indeed an order from the court allowing thirty five int tori's thirty five requests for production in three depositions that opportunity was not taken advantage of by the plaintiff in the action we have no reason why that was not done there was a denied counsel has made reference to a request for judicial notice we have opposed that request for the very reasons that i believe the court has in mind which are those items were not before the district court  he information regarding this brochure was not provided to the district court as far as i know it could have been a pain very easily where that information to in fact be important on this ma that the bart trains are unique and due to a high level of acceleration i'm not aware of evidence in the record that the level of acceleration is high compared to other similar systems in fact the coast there are many other issues just that's not inconsistent with there being of the outer limits and everybody else below the outer limit that is if industry standard is one to three miles and bart is the only one that's go to three and everybody else in the industry is to i suppose that's possible he has yeah but that's not affirmatively disclosed in the record one way or the other no it's not your  honor there are so many other issues i could touch on but unless you have specific questions i would rather not burden the court with that i don't think  the coach for declaration states that it's based on street car studies concerning the effect of acceleration and sure what is the cause what is this declaration paragraph twelve  the street car studies obviously do street cars were accelerating at the same type of acceleration rate these bart trains are accel so what evidence do you did you put in to show that this is a unique high incident excel aeration with a unique degree of lurch your honor the district  to allow this this summary judgment to stand is it is an affront to justice when we have a situation where there is clear evidence of the heart the dangers