at this time if i may i'd like to reserve a three minutes of my time for rebuttal you know why it's the clark your honour's the first issue before the court is whether the district judge correctly concluded that the smart and final plaintiffs in that case actually had evidence that two nonprofessionals had bought this alcohol what happened was a prison inmates had gotten their hands on it at the prison hospital had drank it and totally blind in themselves so they brought in f h s a non complian and the district court dismissed on the grounds that the burning alcohol is not a helpful product the four circuit affirmed under the c p s these household products regulations even though the burning alcohol was available through the defendant's retail stores and it actually been purchased by nonprofessionals i don't think that the analysis of whether it's a wholesale product can begin and end with how it is sold whether it's in the retail context whether it's restricted somehow because i don't think that's really possible the better question is who will really buy this product and who will actually buy this professional lemony cleaner for use in the home but what kind of a retail out what was this holding the smart and final stores which are sort of the honor but i don't think that this product based on defend its employees deposition testimony is a sort of thing that mom and pop would walk into the store looking for because it's very caustic very dangerous and i don't think it's something anybody to want to have o home because it's not needed it's meant for an industrial heavy grease heavy use cleaning situation sweeping up people have access to it i don't know why anybody would want to buy it except for people in the restaurant industry and such of this product the defendant still violated the f h essay and of course that recognized including the circuit i believe that there is that's theory available the plaintiffs even if their common law warnings claim this preempted we believe that and she even went so far as to say they asked smart and finally terrell company more particularly carol company would have to consider placing a blindness label on this product on this group leader so her deposition testimony mention that it causes severe burns it does not mention severe burns what part of the body it certainly doesn't specify blindness as opposed to the products material safety data sheet i wish to specify the risk of blindness but that was never understand that i might drop by when you get in the eyes in a blind you and not just sort of a little bit in itself you can flush out and get some drops and you're going to be fine so i get on i do respectfully disagree that the severe burns warning is enough to tell someone that they should keep it  has with our eyes the flush with water was there any evidence to suggest that had he flushed the i with water that i would have prevented blindness in this case i think the evidence absolutely goes in the  this is instantaneous not once that you didn't want that gets in your eye it's in there and no amount of flushing will help but we believe that that's the other violations the statement for cautionary measures there was no warning on the bott and he was done with the vendor treatment and was moving to leave the kitchen how would any of this warning or material prevented this particular act of first off your honor i just a quick correction he actually was not leaving the kitchen he was putting the vinegar bottle back on the shelf and somehow or another the bottle close real cleaner fell down struck me sliced friends questions i saw he was completely done cleaning the grill he was still very much in the process of doing so but as far as cleanup goes except for the grill which was generally the last thing we did at the end of the day was the grill and then the floors i had cleaned the grill with the cleaner the same way i had done every night and then i was finished with that i put the vinegar on the grill was finished with was putting the vinegar up on the shelf when as i put the venator up on the shelf i turned to walk out of the kitchen and out of the right side of my career for old version i saw something coming off the shelf now that in reading that i interpreted that he was done and he was put up and he was leaving no where is there evidence to suggest there was more operational things going on  or what is your argument and i think that was more judge i think that he was not entirely finished but i know that passage makes a little bit unclear obviously we're talking in this deposition i've heard a number of different recollections felt what happened  case then the issue of using its i really it's really more of a bystander claim in my mind he was using the product regardless of what he was doing at the time it's undisputed he was not using the cleaner but that shouldn't foreclose a warning case as employer to get rid of the product or buy something safer that should allow us to go to the jury on one of the inadequate warnings where proximate cause of errors injur which would have told him to get i protection and the bottles and label itself to not mention i protected so nobody would have goggles were necessary where he had and i had protection on and if this time if you go through that's true your honor that very well may be the case that in this situation since it was all done you mean we have already gotten rid of the i protection the actually the second issue which which goes to our were that he was not qualified to testify sworn in as experts and if we disagree that the station number one mr whitaker does have an extensive chemical engineering background dating back to one nine hundred fifty five he's worked for a number of different chemical industrial product like this second teens chemicals that can burn was properly waived i don't know of a better expert who has the chemical background to both identify the chemicals in this product so was there a dispute by the time of trial w days as to whether this label that was actually put on does this job with the public it seems to me if there's no dispute as to that if it's stipulated in a fact that it causes blindness what is a chemical engineer tell us about labeling that you need somebody you could talk about how consumers react to label certain kind of thing i don't think so your honor i think there's a lot of case law to the effect that engineers are great warning so experts particularly in this case because mr whitaker has an abundance of practical experience with more needs and safety instructions through the different companies that he's worked for since nine hundred fifty five he's been extensively involved at every stage of risk career until he became a full time expert in developing safety instructions and an employee instruction programs and things like that he's consulted with corporations on what sort of warnings or literature they should be handing out to their employees or to consumers and he who did he use them for purposes of his proffered testimony was the audience them was that people who are like employees who are being given handouts and and that was what you were trying to get across he was focusing on consumers users of the product whether that was an employee or nonprofessional retail purchaser it was were it never really made clear with him but i think that's a good point your honor it's even more important sense where you are the workplace situation have someone who has experience in dealing with workplace warnings he didn't do very much drafting of one of the products i can only remember one that he did that for as a product that was sold it was more the internal raw materials that were being used by these different companies but it's the same thing the judge whether it's a warning for a raw material that's only being used internally or for a consumer products and people need to know about these things you may want to say what little ti claim that his injury was caused by an allegedly inadequate warning video admitting you have a read on a product that he was not even using at the time there actually is no factual dispute as to whether he read the  warnings it's understood that he did not read the warning either on the front label which says danger causes severe burns may be fatal if swallowed or the identical warning on the back panel  question if this is a highly dangerous product let's assume that that causes blindness and that isn't the prominent warning on the label on the label therefore didn't read it because you guys didn't make it prominent so he couldn't avoid reading it basically the plaintiff has argued that the warning was was not sufficiently prominent however that claim is rebutted for several reasons number one he did the plaintiff did say that he read some of the instructions on the label specifically instructions on how to use the product and study makes the point then doesn't it if if if he went to the trouble to read that and there was a you know big  crossbones or eyes with slashes across or something you know think that would have gotten his attention and put him on notice and made him a lot more careful there's nothing to suggest that it would have in this case because he was very selective about what he chose to read and in fact even this needs the instructions that he read he ignored he ignored instruction to read all the precautions he ignored a safety instruction to wear rubber gloves he never wore rubber gloves the minute that and he ignored the instruction to transfer the stuff into a spray bottle before using it was there evidence as to what would have happened if he'd spilled if this instead of  his hands there's no evidence in a record on exactly what it would have done to his hands and probably depends on how long it would have been on his hands and in the case of hands without wearing gloves he could have washed it off but when it hit the eyes there escape given the quantity that he got in his eyes in that situation there was and there's no evidence that if you had a smaller amount it might have been able to to wash it out more effectively but it is und testified that he did read the warnings and it says that page fifty eight of the supplemental excerpts  page fifty nine of the supplemental excerpts and in the top right corner page sixty eight he says i think you testified that you did read the warnings on the bottle he says i don't know i can't recall the grill it did not occur while he was cleaning scraping it off the grill instead what happened was he put it on he walked over to a shelf ten feet away from the grill put it on the shelf got the vinegar off put the vinegar on to wipe the vinegar off and now we're about ten minutes later he will goes back to the shelf ten feet away and he's preparing to leave the restaurant for the night the bottle falls off of the shelf so this is where it could be disbarred so i come back to the point that troubles me about this case is what you say about not reading the labels and the like to some extent if people know what they're dealing with is highly injurious and you know if it were a bomb if people are going to treat that differently if they are made an altar boy and unavoidably aware of that and the tension in this case is that as you acknowledge what happened is that he got hit in the very vulnerable part of the body through an accident and the question is if they had been given a warning that says you know this stuff is really dangerous don't store of work and get knocked off don't keep it you know put it down somewhere where thought of the way handled with kid gloves whatever then that would modify somebod behavior and i'm trying and i understand in this case given the apparent toxicity of this for the eye why that wasn't more prominently featured on this product  the warning danger caused severe burns is a broader warning then singling out a particular body part that could be burnt for example it doesn't stay if you get it in your mouth it will burn your mouth in your throat it does they may be fatal if swallowed but it doesn't specify that it could burn the inside of your mouth it doesn't say if you get it up your nose it can burn the imply that you know they may be fatal swallow if it burns wouldn't people know that that's likely to cause them severe which this one does and it even suggests that it would apply to cleaner type products this is that page forty seven of the this particular one which is an oven and grow cleaner the if you if you look at the statute that the federal hazardous substances act the warnings under that which are at fifteen twelve sixty one p one the nature of the warnings and they recommend an infant c p s uses an example label are broader warnings such as causing severe burns for example they use warnings like vapor harmful warning he admitted that he understood it then that language means that it could severely injure your eyes the problem isn't with the language it's the failure to read the warnings and that's something that you can only do so much with you can't force somebody to read a warning and we all know from from practical experience that sometimes warnings are not read as far as the conspicuousness of the want ads are you pay a lot of money to your public relations people or public to change that behavior and i'm not so certain element of what this warning is all about that that's correct you are not suggesting that no warning should have been given what i'm suggesting is that when you give an adequate warning and person doesn't take the time to read require any kind of graphic symbol that was admitted to by gordon taylor the primary hazard is blindness on a product is there what is there a standard for that that was in the record no there's no there's no specific standard for that under the regulations they don't they don't regulate the content and specifically as they regulate the conspicuousness and prominence issues on those issues they talk about the type size the color contrast and all of that and we can for with evidence that  that was a case involving a lack or steal where it was the it was primarily marketed to people who trade people but it was also available in retail stores where the general public could come in and purchase  case the the oven and grill cleaner and sold in what's really more like a supermarket store rather than a warehouse store there's products on the shelves this is open to the general public anybody can come in and shop there anybody can purchase any of the products there including the oven and grow cleaner this product is sold and can be used to clean one's oven at home so it's virtually hall that was strictly prohibited to be sold by policy to anyone other than dentists now it seems like some somebody got their hands on it but their policy of the store that was selling it was a strictly prohibited sales  the other product was a cleaning in the christianson case was a cleaning liquid cleaner that was used in high powered washing machines to clean surgical equipment it was sold only to hospitals and in those the other point is that the expert as far as the exclusion of the expert the court was within its discretion in excluding gordon whittaker he's never drafted a warning label for anything other than litigation and he's never been trained in so he's he was not qualified and his opinions were really ad hoc opinions that weren't based on any scientific testing them by him or anyone else they weren't based on fear you literature essentially decided that the label was insufficient and then went out and looked for standers here and there to support his opinions i think we have that in your briefing to if there's any other questions one  warning if it isn't i don't know that i would agree with that i just think that said the warnings are regulated under different inform forms when it's sold for household usage the consumer product safety a greater warning is required because this is not souls for commercial for hospital purposes and you're in effect saying that the lesser  and yet apparently if that's the case the lesser warning is that math well i would say that it's not really a lesser warning because i believe that this warning would satisfy the common law standard arizona too but it's true it's under the scrutiny changes to the federal statute in the regulations and i think it is somewhat ironic in this case that the plaintiff is claiming that a statute that's designed to protect them doesn't apply and the reason is because the minute to wrap up just one point i want to touch on your honor's that i didn't highlight during my opening argument and that's the issue of whether aaron's failure to read the label that was on the bottle precludes as warnings claim and we definitely believe it does not honor the arizona court of appeals decision and as well as the vast majority of cases failure to read a warning does not foreclose the warnings claim when the point that alleges that the presentation of the warnings were deficient which we have done in this case with attack both the warning substantively in content as well as in its presentation so we think that our arguments regarding the labels presentation allow us to get to the german warnings claim regard this of whether mr yakima should read the label and that the issue of whether a greater warning more detailed warning or a more prominently displayed warning would have