the next matter on our calendar is samuel roberts versus los alamos and the university of rochester thanks did you tell them to say that no it doesn't entitle to summary judgment against loss ailments on the his cause of action for negligence the elements of a cause of action negligence duty breach of duty causation and damages and mr roberts has proven each of those elements without a genuine issue a fact being raised by either the defendant's los alamos even admits in their third party complaint against the university of rochester that it entered into a can track show relationship with the university of rochester for the purpose of using the university of rochester as laser lab that it then requested use of that lab and that request was granted by the university of rochester and that acceptance by the you of our was conditioned and requiring compliance by los alamos with the rules and regulations of the u of our relative to safety and the qualification of its equipment there any evidence that didn't follow the rules absolutely those rules specifically require the principal investigator dr herman from los alamos not anyone from the university of rochester but dr herman from los alamos must prepare a experiment proposal template that lists any diagnostics any piece of equipment that he wishes to use that were not yet fully qualified under the university of rochester rules and regulations and the pipe that fell was that on the list of fully approved diagnostics no there is no such list of fully approved diagnostics it was never listed as fully approved at any point in time the the experiment puzzle template that was in fact prepared filed by dr herman did not include any of the nine qualified diagnostics he wished to use which was the non qualified diagnostics that you're alluding to all certainly the one that caused the accident the high yield he's testified now wasn't the lightpipe on the list of approved diagnostics no it was on what's called a shot request form list of diagnostics the rules are crystal clear the rules state that none qualified diagnostics generally do not appear on that list so it was the absence of was that on the list so it was on the list allegedly it was on the list or it wasn't absent from the list so we have to assume it was approved no no if not approved diagnostics generally do not appear on the list the word generally means that sometimes they do ok usually they don't sometimes they do numerous witnesses have testified  this fact doctor mr lux the person who wrote the rules testified the word generally is a caveat in that sentence dr cleave off the individual who who brought the light pipe through the qualification process confirmed that the word generally means usually sometimes there are exceptions his words exceptions to that what would you have had to do when they start this is when the doctor proceeds with his experiment what should they have done that they did the they are to do exactly what their task to do under the rules and that is to inquire as to which one of the diagnostics that they wish to use whether they are qualified or not qualified they were on the list just told they were in the  because the list is not a list of qualified diagnostics all right so that defense of reasonable reliance fails because the list simply isn't what he says it is and none of the you have are doctors say it is in a matter of fact they say it is not dr meyerhoff or also testified that when looking at that rule the rule does not state that anything that's on that list is qualified it does not mean that so doctor meyerhoff or from the university of rochester the director of the experimental division itself said that he understood that to be the case so if the list is not a list of qualified diagnostics all right then it cannot be relied upon as such now thirteen days after the f there's one listing that was existing in the original record that showed it was not on the list there is later evidence to indicate it may have been on the list however there was an email sent by dr herman to dr leave off asking him to add it to the list prior to the accident so my guess is it was added at around that time but again it's only relevant if the list is a list of qualified diagnostics which is  not so are you saying that dr hermann or any other scientists recently has to independently verify that each piece of equipment i think some twenty piece of equipment reused here had been qualified according to proper procedure absolutely as a matter of fact that the herman himself testified as to the meaning for the rule and why he's asked to identify not fight back gnostics and dr herman said that means if you're planning to run a diagnostic that hasn't completed the qualification process then you have to spell that out so that the l e staff knows that that particular diagnostic needs to complete his qualifications process at least two weeks prior to the shot day so again if myself as experimental if i were planning on using a diagnostic that had not been qualified at least two months prior to the experiment this would be the way of making the staff and l only aware to the template that the diagnostic needs to be qualified at least two weeks prior to the experiment in order to be used why should he have known that it wasn't qualified it's his obligation if he knows it's his obligation then he must inquire and he must determine whether or not it's qualified since he is the last line of defense the university of rochester clearly should have known whether or not their diagnostic was or was not qualified however the rules are structured in a way to provide one last line of defense if an experimental p i us comes from an outside lab wishes to use that piece of equipment they have to identify whether or not it is fully qualify of what use is the rule to require the unit los alamos to identify non qualified diagnostics if they were not required to inquire at all now what does he have to do besides looking at a list of qualified to diagnose there was no such list of qualified diagnostics if there was a list of qualified diagnostics and it didn't say that n qualified diagnostics are generally not on their list if it said not qualified diagnostics diagnostics are not on that list you would have an argument all right or the response would have an argument but it s not what the rules say the rules are qui crystal clear they warn him as the guy that sometimes non qualified diagnostics appear on the list the ensor reporting mention found thirteen days after this accident seventeen diagnostics that were on that list that were not fully qualified seventeen including the hot neutron temple diagnostic it was common practice for the you have are to place diagnostics on the shot request form even though they were not qualified is a matter of fact in the qualification process there's a line item for adding a diagnostic to the shot request form before the line item for final qualification approval for operation so even in the qualification process the university of rochester anticipated adding the diagnostic to the shot request form list before it was finally approved for operation adding to that list has nothing to do with whether or not it is qualified it is  step along the way to obtain this qualification and the finish that step but they did not finish the remaining steps that required engineering review of how it was installed engineering review of the pressure system the pressure relief valve and the pressure regulator there was no pressure relief valve the pressure regulator was for an air system not related for the c o two but it was attached to any engineer who was put through that process to review that installation and use the fitting function test required by their qualification process would have recognized these problems would have corrected them prior to use at least two weeks prior to use and this accident would have never happened so we have a clear causation because of los alamos this failure even acquire inquire they admit they didn't inquire never discussed it with anybody you have are didn't review the qualification checklist a did nothing at all to says frei their duty to list all non qualified diagnostics on that experiment proposal template this was not a new piece of equipment right and had it been used in the lap before and it was available for selection on the shop request form correct whether it was a new piece of equipment any new piece of equipment must be qualified at least two weeks prior to use ok when this was new two years prior to this accident it had not yet complete disqualification all right so as a new piece of equipment two years prior to this accident it must be fully qualified since it never was since it was never fully qualified that process wasn't complete there was a qualification meeting he could have asked he could have looked at the qualification checklist which he's been trained to know about and because he's been trained on the qualification process since last selves have brought their own diagnostics through th process and used those qualification checklists themselves for their own diagnostics so he knows very well all the has to do is look at the checklist if it's completed if it has a nine singing shares from all the individual required to approve it for operation then he knows he can simply ask but he did not ask because he admits that he did not inquire and he admits he never discussed qualification status it was still a process there was a qualification meeting scheduled for the day after this accident it had not completed the qualification process yet the mistake was beginning to use the diagnostic for two years before that qualification process now mr loucks has testified that if this were brought to him he would have never signed off so we know that if this was raised one of the required signatories would never have signed we know that because that's what he testified to it would never and he said i would have never allowed it to be used if i knew well there we have it if you brought it to the attention of simply because the rules advise him generally that's true but not always sometimes there's exceptions that timers is for you reserved two minutes from room for vital we'll hear from los alamos for us in the university good morning ma'am please the court my name is critical same from when soviet gelman and i represent los alamos national security and i perceive the court's initial question as to whether there's evidence that los alamos did not follow the rules of the universe iraq chester and i'd like to just address that right off the bat what rules we're talking about is absolutely crucial here rules for the university of rochester its internal staff their internal building operation in use of the facility that certainly mr roberts was required to comply with and as well as everyone else that you have are what that the rules that they gave visitors visiting scientists is a whole different thing if a visiting scientist wanted to bring in a piece of equipment all of the testimony that my posing counsel just read about the qualification process lesley almost would have had to qualify its own equipment but no equipment of loss he almost injured mr roberts here that's not what happened what happened is permanently installed equipment in the lab that was put on a menu the shot request form has been referred to in the testimony as a menu and the menus given to outside scientists and say hey do what does any of this a something that might be helpful to your experiment and they could check off the boxes the outside scientist received a representation from the university of rochester that the equipment was qualified and they were given a limited we view of the sort of the high fly over rules if it's qualified you can use it if it's not qualified they told that it was qualified they were told in training that if it was on the shot request they could use it when they first got their introduction to what the lab did and they were told by having it on the shop for him and that was the understanding every witness consistently testified to that there's not a single witness who says that the  practical reality of it was any different despite counsel's argument just told us that last almost hundred additional duty to make sure that was what was on the list was really qualified and how could they if they said hey are you following your own rules university or rochester are you really doing a good job that would have been out of context and you of our would likely have said of course why would the why would i say almost have had a duty to go behind the curtain herman had a duty to inquire as to whether it was qualified the additional evidence since the previous warner includes a number of things including the cooperative agreement which is the overarching contract that allocates responsibility for safety and qualification in insurance and everything else we didn't have that available because los alamos was not a party to that agreement that agreement was between the department of defense in the university or rochester so that was about part of the record and that is a crucial document that allocates specifically who's responsible so that's one issue we didn't have another piece of evidence we didn't have our all of the deposition transcripts that we have we have completed since where in the university of rochester admits we didn't do this properly but we represented by putting it on that menu that shot request form that it was qualified we might have done a terrible job and we didn't do everything we should have done behind the curtain but to the outside scientist we represented it was qualified so weather as it relates los alamos was almost had no way of going behind the curtain they'd had no right of control no right to all of the internal documentation that the university of rochester had on their equipment they didn't design it they didn't build it they had no physical access to it and effect they were not even in physical proximity to this machine they couldn't see it my client leslie almost as principal investigator dr hermann was in a conference room receiving a data stream passively on his computer he was not the last line of defense the last line of defense was the university of rochester that approved the experiment the last line of defense was the university of rochester who operated the machinery the less line of defense was dr  supposed to make sure mr roberts understood how to operate that equipment the last line of defense was dr glenn buff when he instructed dr roberts to operate the equipment not having confirmed that it was secured to the rafters properly that it was going to operate properly that it wasn't going to explode when the pressure dial was turned doctor gleb off is the one who ordered the shot dr glenn is the one that controlled everything my client was in a conference room not even within the ability to view what was going up my client was not the last line of defense on this it was the university of rochester and it's a horrible horrible workplace accident that is firmly falling inside of new york state workers compensation law so this is the there is no end and you know mr roberts testified in this case as well he doesn't allege that dr hirmand or anyone from los alamos had any control over this piece of equipment ever operated this equipment or had any right of control over him so there is absolutely no testimony and we hadn't completed any of those depositions to have that information at the time the last the last time we  came in a very early stage before discovery and we also didn't have the shot requests for there was a number of documents discovery issues in this case again los alamos doesn't control the lab or the computers at the lab the university of rochester so we had to get in discovery all this information about the shot request form the menu then our client was given we didn't have the full set of regulations that the university of rochester applies internally because they don't apply to my client we had to get all of that information in discovery to be able to come back you didn't there's a reason we didn't have all of this information about the qualification process about the history about the installation of this product it's because it wasn't our product and we had nothing to do with the design the installation the development the use the operation no physical control and here we are still talking about false crafts since ninety two  any about what is the scope of forsee foreseeability and risk and even in a quote the plane of council pulls out in his brief the word relation is key to that decision there has to be a sufficient role  between the person that's claimed to own the duty and the plaintiff to give rise to that duty and in this case it just isn't here thank you council we'll hear from the university of rochester non qualified diagnostics on an experimental proposal form so that your position that los alamos had a duty to do more than they get no absolutely not los alamos had an obligation to follow the university's rules the rule in effect here is a two prong rule that requires both prongs before its end in place both counsel have argued here this morning in this case seems to put the blame on the university of rochester is that correct that's absolutely correct and that's consistent with the summary  order which switch from this in this case which previously explained that the bulk of the responsibility fell on the university of rochester and to the workers compensation bar the university of rochester is not a viable defendant but more importantly it reflects the fact that the university of rochester witness but subsequent investigation revealed that three bolts were myside when installed in two thousand and six the designs called for half inch bolts what was actually installed were quarter inch bolts and whose responsibility was it to instill the pipe correctly in two thousand and five and two thousand and six the university designed and installed the light pipe and use it for over sixty shots it took a direct qualification process it considered it qualified diagnostic at the time dr herman selected it from the shot request form before the august sixth two thousand and eight accident the university install it there was there's no dispute that los alamos had no role in the design the installation or the prior use of the accident occurred there was a retrospective review of the qualification process and of the bolts that were installed and it was a terminal that the incorrect side bolts were installed initially by the university of rochester those were sheared during the accident causing the late pope to fall on plaintive however the review also was a hindsight based review up until the accident the h y n t was on the available shot request form that was the witnesses have testified universally contained only qualified diagnostics in fact plaintiff himself at his deposition testified that when a diagnostic completes the qualification process it gets added to the shock across form the only plaintiff's only argument that unqualified diagnostic appear on that list is completely hindsight and is based entirely on the post incident report and addresses nothing about what dr herman expected when he relied on the university use to verify that a diagnostic had complete qualification so it was qualified at the time doctor for example investigator wanted to use it was qualified by the university of rochester is that correct that's correct as qualified by the university of rochester no duty you argue before ours as previous counsel did to look beyond still it behind the list even though opposing counsel told us that it says it's generally acceptable they had no duty to make sure that it was absolutely qualified right not only did they now have a duty to do so they did not have the ability to do so the testimon consistent in this case that the way the university of rochester conveys to both international principal investigators that a diagnostic is qualified and available for use is a shop across form there is testimony that if a if a principal investigator want to look beyond that list as plaintiff suggests he had to contact your she had to contact the diagnostic principal investigator who developed a particular diagnostic and in fact that's exactly what happened in this case before the accident there are e mails that show th lightpipe before the accident occurred for use during the experiment dr we've offered one qualified it there's no question that he knew it was a qualified diagnostic so even if you adopt plans position this was the time that it was just going to fail if your argument is that would you telling us the accident was on witnessed what has been learned subsequently was that there was an and there was an over pressurization of the white pipe which caused it to dislodge from its bolts the danger of that occurring has existed since the university installed with no role whatsoever from los alamos the danger had been there since the installation date and while tragic that party that is out of control over both the device the experiment the facility and planted himself as an employee it prevents the university from being a viable defendant in the new york state well if nothing else i can see the rest of my time thank you your honor thank you so you have two minutes thank you routers two things strike me as almost unbelievable one is a representation to this court that the rules that i'm referring to do not apply to los alamos nothing could be further from the truth the rules are at section one thousand and four and they are entitled experimental principal investigator roles and responsibilities these are the rules for the principal investigators who are the individuals responsible for proposing experiments on the laser in this case everyone has testified that that was dr hans herman from los alamos this was not dr leave office experiment this was last almost experiment a part of the d t ratio series or experiment they've been conducting over a number of years they've all admitted that to say that these rules did not apply directly to los alamos and that role is a false statement and i cannot believe it's being made at this stage and that's the section that includes the requirement that he identify non qualified diagnostics and list in mind as experimental proposal template which he did not do which is a breach secondly the university of rochester just told this court that the h y n t v the lightpipe was fully qualified that is absolutely untrue there's no evidence of it ever being fully qualified ever they may want to say we considered it to be fully qualified even though we didn't it was never fully qualified the university of rochester itself thirteen days after this accident concluded this accident was caused by the failure to fully qualified v h y n t d that's a very conclusion that that's what caused this very accident so to say that before this court that it was in any time fully qualified i cannot believe it and that is shocking to me it is absolutely untrue the cooperate of agreements cited by counsel has no bearing on this