of whether f u was a reasonable manufacturer the court failed to properly instructed jury on the state of the art defense as required by florida law the state of the art could not be more applicable to an inquiry as to whether a manufacturer acted reasonably and finally we also ask in the alternative that this court follow the us supreme court precedent and its own precedent and find that the trial court abused its discretion to fiji's prejudice when it allowed in many osha summaries not reports printed off the internet which had appropriate expert testimony and evidence was presented and that florida law was actually applied the errors in this case the multitude of them began at the dobber summary judgment hearing and persisted throughout the trial and the post trial motions as the court is well aware the facts here are simple it's across the early forty years of experience as a butcher using meat sauce and one day he walked away from his mates saw leaving it running with the blade exposed when he returned he put his arm through the saw something and he admit or fired anyone else for doing in this case of all the meat sauce and a blade that was the only type he had ever seen or used in fact it was the exact same design as the competitors that sat right next to it in the  knew not to leave the saw running with the blade exposed he knew he could well miss right but that's why the jury found him seventy percent negligent correct your honor but in this particular case the jury has to  decide whether or not the meets all was defective and in fact the trial court at page five of his post from motion sets forth to prove it negligence paint brought in product liability the plaintiff must also establish the product was defective or unreasonably dangerous and then has the added burden of proving specific acts and here i'll jump st to that issue of design defect under florida law but page eight of the court's opinion on the is it this report wrong in saying that the just the judge is dealing with post trial motions following a jury verdict and the jury has found exactly that so i'm not sure that that's an error by the district court  trial motion your honor in this particular case this case should never have gone to the jury in the st instance either summary judgment or following the conclusion of the evidence and when you read the court's opinion he clearly says that you have to show the fact you have to show the added burden but nowhere in his analysis does he ever address the to florida test or defect consumer expectation which quite frankly here they know they can't meet because mr crawford testified thought did exactly what he expected or the risk benefit test and here the risk benefit test which has six elements the plaintiff did not even make an attempt to address them under five of the six elements all of which would favor the meat saw not being effective and the only in fact in this particular case there's no evidence there's ever been any notice to s t g of anyone doing what mr crawford has done as support noted you have one hundred and fifty thousand me thought out there over seventy years and no one has ever guard when he walked away from so if you're going to look at whether or not there is reasonable is here and the fact the evidence in the record is in fact to the contrary what f t g did was reasonable and what mr proffer did was not but in order to reach even the question of the result you're correct they did assess seventy percent to mr crawford they still have to find the product was in fact defective and if you look at all the other cases you'd have to analyze that under it reasonable to standard i think if you look user and in fact there's a warning saying do not use the meat saw and don't leave it with the blade guard exposed to keep your hands away because it's right this is just short and if you did if you did not request an instruction on risk utility and consumer expectation why should we be reviewing sufficiency of the evidence to see if there was enough to satisfy standards that the jury was not if you think that there is insufficient evidence under these two tests but the jury was never instructed on these two tests why should be we be reviewing sufficiency under those standards for the jury i believe your h unreasonable to sign and i think this while with general but that's a general reasonableness standard that is much more general than the specific test of risk utility and consumer expectation one of which as you say has a number of factors in it and it just seems odd to me to be reviewing sufficiency on a standard that the jury wasn't instructed on it's almost like a theory that was never presented to the jury and now we're supposed to find out whether or not there was sufficient evidence to support that uninstructed theory it doesn't make sense to me at least to me i think it also plays directly into our concern over the jury instructions here and in particular the state of the art instruction which under florida statutes the state of the art is in fact a defense to a negligence claim and here the court refused to instruct the jury on the save the arch which quite frankly would play into also many of those factors but here when the court refused to allow us to tell the jury and to allow them to assess the evidence under a state of the art after a time the saw was manufactured and designed that with respect that's not what the record is in this case in fact the instruction was for just general reasonless only looked under like circumstances it does not temporally tell the jury you must look at the time of design and manufacture in this case it was was at a later date the plaintiffs put in evidence post two thousand and ten as well but there was a great dispute over the technology available in two thousand and ten in fact their own expert admitted that there was nothing about his design that was available in two thousand and ten when this all was manufactured so i i hear you saying your honor there was no dispute it was a hotly disputed issue because all of the evidence in the record was that there was no meat saw in two thousand and ten that had any guards different than the meat saw that we had here there was no evidence and in fact their own experts said that what he needed to design his meat saw was not in fact available in two thousand and ten he says that it page one thirty four barnett's testimony so it's a hotly disputed issue as to what the state of the art was in two thousand and ten although we say there was no other stall available that and to not destructed juries that they have to consider in two thousand and ten whether or not to solve materials were available and whether or not any other manufacturer had a saw and in fact that also said there is no thought that would have prevented this accident in two thousand and ten that's  honor and this particular case mr barnett stream of consciousness and at the time of trial his design was still a stream of consciousness does not meet the dobber standard and therefore while that that is a fact florida law the plaintiff still has the burden of proving that and the other issue that compound did this was the admission of those osha summaries which had no windisch of trustworthiness here i mean nobody knows anything about the eight summaries that were printed into things together compounded all of the other error in this case but the jobber issue should not be overlooked because here mr barnett readily admitted it was a stream of consciousness he had not tested it for economic feasibility so under state right h alternative design cannot be a substitute for whether there was a appropriate design in two thousand and ten and i think his testimony at one hundred and thirty four is the most clear that it was not available in two thousand and ten and i'd like to reserve the balance of my  good morning in may appease the court this is john mills on behalf of danny and betty crawford the athletes in this case and i would like to begin with an apology to the court and to our closing counsel and preparing for this oral argument and reviewing our brief again we came across i came across a number of citation errors that we had our substances all good but there were several places where we just cited the wrong page or document number and i think one of them was called out brief i think it should be clear to figure out where everything is but i am horribly embarrassed that our site checking did not catch that and that we submitted a brief that is below our standards and so i apologize if that is taken the court any additional time to get through the record this is mainly on the dollar to issue which there wasn't a whole lot of discussion about an oral argument but everything that we say in the brief is correct and if there's any trouble with the citations we would be pleased to file a corrected  but again the substance we stand by all of the substance it's all correct everything is on the record turning to the sufficiency of the evidence issue one thing but that's missing here and the court is correct there was no instruction on either of these tests given but that was one of regionally requested and it was going to be given and the reason that it wasn't given and the reason that they agreed on the record that it not be given was because we dropped the strict liability claims and we only went to the jury on the negligence claims so the strict liability test has no relevance to the case anymore there was no reason to instructed to the jury and that instruction and a sense question my meticulous instruction no sir well there's a different instruction so the answer to your question is no as to an instruction on the risk utility or consumer expectations test they withdrew that they agreed that should not be given the issue that he objected to was when the court was reading the instructions to the jury it got to the affirmative defenses and judge adams stopped and had a sidebar and said wait we have an affirmative defense and here that only applies to strict liability on the fly during the instructions they said well just change it to say and evaluating negligence and we oppose that because this is a strict liability instruction it's only for product defect a manufacturing defect negligence design is an entirely different plane with an entirely different but judge anderson you were very correct in pointing out there is no dispute there was no dispute as to the state of the art that it had to be at the time of manufacture that was the issue we never suggested to the contrary there's not one piece of technology that anybody suggested oh that wasn't possible in two thousand and ten that's the result of some scientific breakthrough that's come through since then or some new material that's not the issue the issue and as my sister was arguing right now the issue was whether anybody else sold that product whether it was on the market and florida law absolutely just as you and judge adams pointed out or law is very clear that just because no manufacturer makes a product and puts it on the market does not mean that they're immune from negligence or strict liability for that and be the very purpose of tort law and judge chief judge carnes recognize this recently in the crucifying case that we cited but the purpose of tort law is to encourage changes in behavior and we don't just say well we're not going to have seatbelts because nobody's put them before we're not going to have a blade guard because nobody's done that before and sometimes it does take litigation when corporations are refusing here the evidence was they said they just never considered protecting the place because they just didn't think it was a problem even though the jury was free to conclude with or without the osha reports that leaving a blade running that you don't put a feature in that it stops when you're not attending to it you're leaving a super dangerous piece of equipment running in full operation with no guard they never considered protecting against that and had they considered it it would have been very easy to do and that's what professor barnett testimony was that it's very easy to do this he did it in three days they did point out some flaws or some some concerns that they had about hygiene and cleaning and tripping and he addressed all of those concerns also very easily and those were just disputed issues for the jury so on the sufficiency the evidence test there is not even an argument in their brief as to why we did not meet the test for negligence their argument is solely on list utility and consumer expectations and this vick case made clear that that's not the proper analysis it said yes some people think that they're the same and you have to have a risk utility test to prove negligence but that's wrong this court said it instruction those would have been issues had we gone to the jury on strict liability and that's the only thing we want but we didn't even go to the jury on that this was just a negligence ca you know i'm just going to say you know again we hear this quote stream of consciousness of something through together that was only show how easy it was he put a lot of time and work into this he built a prototype every one of the cases that they are there and they're mostly good strict judges who disallowed dahlberg opinions not any finding that there was an abuse of discretion to do what judge adams did but in all of those cases the alternative design was purely theoretical and expert came in and said well you could do this you could do that but he's never tried to do that and in contrast professor barnett who is if you read the record this is the world's probably top expert on the lay guards for mechanical equipment he's been doing this he's testified in six hundred cases he's super well qualified he has a lab he does this as a as applied science as his business and he put it together and he answered every question that they had they raised some and have position and he did a little working on it and that came in and there was no objection to that coming in and he addressed every concern that they had and it was up to the jury to decide whether this is i was something that a reasonable manufacturer who had been concerned about safety would have come up with and so the jury was within its province and there's really no issue that's preserved there and just lastly on the osha summary cases doesn't seem like a very serious issue but one case that  the judge said judge adams relied on in his order at page seven that's document fifty six dollars page seven he relied on the western district of oklahoma decision sundance energy oklahoma and it judge reaching the same conclusion on similar facts and all of these issues except for which standard applies all of the issues that we're really talking about here are abuse of discretion standard and judge adams took extensive briefing there was an evidence rehearing on the dog motion he heard all the arguments of counsel he articulated all the arguments of counsel and his orders and he explained why he was overruling each objection each point and this these are just pure discretionary decisions could he have ruled the other way on some things certainly when there's an aspect of something was not done timely sure he would have had discretion but he found there was no harm this is about the way different than the underlying reports and isn't there and doesn't that difference matter in terms of admissibility we're saying that the facts of the accidents and the summary are different from the facts of the accident in this case no no no that's not what i'm saying at all sorry i'm sorry i'm just saying that don't don't you to shouldn't you treat shouldn't a court treat a summary of a reports different than the report itself or admissibility purposes under the rules of evidence i think i think so generally i think that context matters and it matters by your use if we were using this to show that  e specific solve it reference them there was defective and therefore this one was too if there was a finding and that certainly would be more than but we didn't rely on this for any ultimate issue this is really a minor issue in the case their expert said in discovery that hey you can't get hurt this way you only way to get hurt by is if you're putting me and so we just wanted to have some real life examples to show that's not true there's all kinds of different ways that you can be hurt  aside from while you're cutting meat and they do have good blades for quality are pushing the meat against the blades there's a great guard the point here is that they were denying that this is even a problem and that they didn't even need to consider  they weren't and there was no temporal issue to that either they weren't samwell we couldn't do that then they're saying even today we don't need to because that can't happen and this is just an example it's just common sense if you leave a blade running there's all kinds there's a thousand different ways somebody can be hurt and the xhosa reports are just summaries that just show all they show is somebody was injured while they were doing something other than cutting them and that's the only it's minor relevance it's not major evidence even if it was an abuse of discretion to let it in it certainly wouldn't rise to the level of harmful error and it was appropriate and while they did not have to while we agree there's no evidence that they had actual notice of it argument on notice was that they should have all they could have found this stuff and it was just further demonstrating that they were not a reasonable manufacturer they were not concerned about whether their product which they knew would be in the workplace causes workplace injuries and how they could how they could resolve that and so we made the argument that not only does this show that it was possible but this shows that it was unreasonable they didn't even bother to go out and look to see significant problem that could be fixed relatively easily so again it's back back to your question if we were relying on these for some kind of a look this exact thing happened maybe we'd have to get into more detail and maybe some of their arguments would have a little bit more force but the issue here is just hey is this something that happens to people get other than as they're pushing the meat across and yes they do and here's here's eight examples of where this is happened many of them and most of them happened before this was manufactured a couple happened afterwards but again there's no issue here of changes over time and technology it's just changes in time over what somebody has actually put on the market and florida tort law like most states tort laws designed to encourage manufacturers and other people to conform their behavior to reasonable standards and so this is a litigation that hopefully will result in this company and others tak a nd look at this and instead of people in these ideas considering them and making changes and that's what tort law is all about if there are no further questions the judge x exercised his discretion here and the court should have far all right thank you very much thank you your honor this is elizabeth right i want to address a couple of points made by mr mills st the he's incorrect that this technology was available in two thousand and ten his own experts said there was nothing about his design that was available when the site was manufactured in two thousand and ten or designed in the late one thousand nine hundred and ninety s that is a highly disputed issue and the jury needed to be instructed on to the state of the art i want to move just briefly to those osha summaries he mentioned at the end they were not being used just for showing whether or not he had acted reasonably in fact no one testified that it was reasonable for a manufacturer to go peruse osha summaries of incidents that didn't even involve their own meat sauce they were being used to show it in fact in closing they said that in fact if he was on notice that these saws were creating problems the problem here is though we know nothing about these shoes few lines summaries we know nothing about the investigator nothing about the underlying incident other than what's reported on the internet these are not full fledged osha summaries and there is a problem here with hearsay and there is a problem here with the lack of substantial similarity these meat were not people who were walking away and leaving them running these were people who were trying to deliberately adjust the blade guard while the meat fall was running that has nothing to do with what would happen here and even their alternative design would not have prevented those injuries likewise someone was trying to instruct someone on how to use the meat saw deliberately while it was running and managed to get themselves cut again not at all resembling what happened here and the site summaries were filled with so many levels  hearsay where a manager said a coworker said something happened those are not factual findings they shouldn't have come in and they in fact was a cornerstone of the plaintiff closing additionally on the reasonableness issue what is really interesting is that their own expert mr barnett said in his own shop where he had many many meat sauce he said you shut off the machine you stay there till it stops and then you leave the machine this is it every shop that uses a vertical band saw all saws and all machinery can hurt you and when it's idling down when it's running freely we don't allow you to leave the machine saws he talked about exactly like the saw that he was here  effigy and the store don't let you leave the machine but mr crawford happened to do it here so if you're going to look at reasonableness missed you need to look no further than mr barnett so neat shop where he said i don't let my employees do this case but ms wright and i know this is a very high level of generality but don't manufacturers of wall sorts of products look at the matter of human error  had a nother claim of someone being injured like this that's what made those osha summaries so damaging because we had no notice of that and if you have manufactured hundreds of thousands of saws and no one has ever done what mr crawford did there's no notion that a resume manufacturer would do anything differently and as i said earlier the birol me thought our competitors me thought the same size was sitting right next to the hobart me thought here it ran exactly the same way so if you want to talk about reason this state of the art that's what's reasonable the competitors meet fall looks exactly like ours there's no evidence whatsoever of another claim against hobart for this kind of incident and the