the bus stop had changed when asked what is the source of that duty mr emberg says common sense that's all he invokes is common sense that that walkway have been closed all the way to the intersection which was some two hundred feet if you like if that entire pedestrian area been closed there would have been no reason for your client or to cross the street at the traffic light yes and how is that blocking the sidewalk at the level of the intersection question if the boss was never going to be really clear in the area what oh ok thank you even though formally a supplemental report may not have been filed if the defendant doesn't understand the theory as it's evolved there's no prejudice because the defendant has been  one where this court and judge in the past was on that panel affirmed an exclusionary order of an expert report that was produced on the eve of the of the pretrial and the party in that case moved report was excluded the case was over i mean that that was clear so this and we have said in those circumstances the court has got to be very very careful that there's got to be a justification for taking that for taking that exclusionary step because again the case is over that's a that's a very big deal and if there are lesser steps that can be taken the court should consider the window sharpens the suggested one of those those opinions that you said were completely new on the eve of trial that they merge the delbert hearing perhaps a judge could exclude those who could return could allow the plaintiff to put on the theory that was disclosed at that deposition that was taken eighteen months what would that be a much more sensible way to proceed because to proceed on cross examination with a jury in a case of this sort where the plaintiff's offered on questionable damages and the defendant does not have an examine the witness all of the defense had was the second position where the testimony came about of all of the moving of the boss top and the admission of the expert that that would not have mattered or th expert did not know whether that would have affected the but a viewer of the plaintiff in walking or jaywalking se did it would have been extremely prejudicial and totally insufficient to do one effective cross examination based on a second deposition were to test where the testimony was that the the son was correct with the first opposition that the sign was correct without having an expert report and then at the door hearing the expert and trial and the senate would be only able to do one of fact of cross examination without having any expert report in a three year old case or let's see evidence expert deposition where you question decision not only without having an expert report but having prior testimony that did the sign was correct so imagine if c s i had gone through trial in the middle of a cross examination and the expert had testified to a number of things the second the position would have been useless because there was no prior report there was nothing to pry his testimony under oath to or written report as an expert should any other to do the sign of the maintenance of traffic plans so there were a number of problems with the the expert in terms of the on the reliability of the opinion of the  if there had been no need to keep that sidewalk open all the way to the intersection which is i guess about two hundred fifty feet away that that sidewalk would have been closed and with that sidewalk close there would have been no reason for the plane to to cross the street at the barrier and expose himself to all that risk and parkas testified i believe that if she had known that there was going to be a bus stop there and has there was no need to keep the sidewalk open it would have been closed and then if the sidewalk have been closed the accident never would have happened is that the theory of the case that's a theory but those are not tools that are required by the federal rules with evidence before you do a cross examination of an expert in an accident of the sort respectfully submitted for the score you are offering that as the better alternative rather than the  he says as a human factor expert can you tell me with a pedestrian have a tendency to use a single path to reach the destination over and over he says they do have that tendency that mr gates said i don't agree with armors opinion food to say that they were unable to cross examine amber i don't think holds that much water final which is important they