my first one is on the expert testimony it looks to me like both experts basically used a similar methodology neither one of them stead there's a metallurgic them basically inferred from the chain breaking how many pounds it must have taken a break if it's at right now i don't think it is your honor with respect plaintiff counsel determine reasonable degree of certainty that the load on the chain when the rope was between fifteen thousand and twenty thousand pounds and what was his methodology this method all he was to look at the metallurgy of the chain and he was able to calculate the eel point the point at which out cause and then came to the conclusion that in your case your your expert said this product is defective that's the only conclusion that ruled out all the other things they're expert ruled out everything else i mean that was their theory which experts are prevented to express it was it was their theory just we had ducked it because he had their position that the chain had a load over thirty five thousand two hundred pounds describe the process of dynamic loading change in other words it seems to me that what you're challenging is just the final inference that the expert drew that it had to be degree of certainty in the course before trial correctly so well then it's unreliable test and i thought at the krauts what happened was testimony came out that there was a movement would be sufficient to create it so it's kind of like when and that's a yes but if so whether it's thirty eight or forty five he's saying i don't know he your honor he said that he could not establish to a reasonable degree of certainty what the dynamic load couldn't give a number to it at all why did he have to do with as it was inference he said the metal that they make this chain out of the size of the links i'm left you identify a metallurgical bit back it breaks at thirty five thousand pounds there is no metallurgical defect i look for that the load itself is less than thirty five thousand pounds the only way to explain the break is that the dynamic stress on the chain was in excess of thirty five thousand pounds you can infer that from the metallurgy and the size of the links and the nature of the load in the testimony about that that's how i understood  in this context because i say so the chain broke because of a stretch of over thirty five thousand just because i'm expert and i say so not good but since that's not what he testified he gave a logical theory that made sense that might be a challenge or might be wrong but it wasn't just because he said so that's not what the testimony so i did i don't  really understand what why you're if i can go back to what i was saying before your honor he did not say that by the absence of metallurgical the facts that meant that the load had to be over thirty five thousand two hundred pounds he testified that you had to go on and you had to look at what actually happened at the find out what the magnitude of the dynamic load was in trying to look at that it wasn't enough for him he didn't say if i find e let me ask you about something else that's bothering me here basically you've got a three ton machine a machine it's rated for three tons being used to move in a ton piece of a point and it breaks and the question is whether the machine is defect to meet on the face of it it is because it's a three ton machine and you're moving a load that's more than twice it's it's rating your theory for defect as far as i can tell it's there within the factory and within the japanese system where they made this machine they tested it out so that these machines were supposed to have a safety factor to where they wouldn't is just the manufacturers making it better to me ask you this oh a three ton machine so that you won't have any people coming back to him and saying hey i had a catastrophe of my work site it's a three ton machine broke lifting three t i don't get where you get a manufacturing defect out of three ton machine breaking within a ton load we as a manufacturing defect because the design requirement for the chain was that have a minimum braking strike of thirty five thousand two hundred pounds to test with your honor's referring it seems to me that if we accept that what you mean by design you mean the manufacturer saying i want all my three ton machines  just to make sure and if we adopt your standard then the practical effect is that no manufactures ever going to build in a safety factor because still be penalized for building a safety factor if the manufacturer of the three ton machine builds in a safety factor so it's safe with a tons then everybody can just use it for eight tons and want to break through the manufacture because they didn't get any time machine well judge or there is testimony by our expert that the reason why you have these high limits is that when you're actually using one of these chain fuller's you don't know what the load is you do your best to estimate at the beginning but as you're making adjustments the load changing so it's necessary to have this high limit it was you've got a dilemma with that argument either you have to accept the defense experts theory that dynamic load is much greater than the argument or you have to say first and can tell the difference between three tonnes and eight times which is a real stretch three times in four i can see the three and eight will judge at the end of trial the district court took away strike thirty five thousand two hundred pounds and the other was five times the return rate of capacity it's metric tons or roughly thirty three thousand pounds so the court has determined at the end of the trial after hearing  there any other evidence of this effect yes you're there was your honor i think there are two different issues here one is whether there is a manufacturing defect that turned on the question of whether the load was above or below other thirty three thousand pounds testimony that the normal behavior of a chain when it overloaded is to break away while the well the supposed to be the wrong it's part of the chain and it broke at the well that's that's an immediate indication that there's something wrong with this well when when are when that these chains all normal change ratch permanently when they're overloaded and this chain did not have their own witness randy angle is that when you look at a chain and a fails you you look to see whether it  its function was to adjust the angle of it so that it could go down and it was not being used for hoisted in to move it by itself there are other chains that were there for that purpose but they had to adjust the angle of the rock pressure as they were trying to in the in this theory that you have to you have to have a high limit and they also had a five times safety factor of five times it's kind of obscure though i'm thinking my own example was force not a pickup truck full of rockets a dump truck  and and i'm thinking if i've got it if i see it dump truck whole iraq i know perfectly well that it had a it's a three time machine can handle he did there was no dump truck full of rocks to see good morning my name is mike johnson i'm here today on behalf of american power pole and i quite sure you would like me to begin so i'll just start on my own here i think the first question great capacity i'm sorry i couldn't hear you i said the change in the polar had a four generating capacity the japanese industrial standard which imposes testing on japanese manufacturing magic factored chain really doesn't matter because the evidence that they are objecting to has overloading and that's the whole theory of this case their theory was that it was defective because it had a load that was less than what they claim with the design standards in understand that they offer different opinions but in terms of their the plaintiff's theory was that that was where the defect lie and your expert mr morris nettle i don't want any defect defective because it failed to load less than what they claim of the design standard and getting back to the first question about unreasonable misuse that's all an issue of what it was overloaded or not and in fact if you look at the direct examination of plaintiff's expert mr powell flexed counsel and he used the term overload no less than three times live that was expert a record eighty seven three eighty nine when he was talking about an overloaded chain will stretch biology and it is not overloaded will not stretch of course our expert offered opinion that the reason for not stretching this case was that it was either defective or that it had suffered a high strain rate fracture as well well again the testimony offered by the plaintiff's expert conflicted with that well i just asked you was well part of his explanation was that you cannot tell recollection of his explanation was that because of the way this chain of being used it's wrapped around a pulley it's got different angles on it and nobody can tell exactly where that link was at the time of the rope when you do not have a chain that's that's lined up in a linear fashion it's hard to tell exactly how the forces are applied to those individual links how can you tell that it was overloaded if a bunch of other devices as well as the dependents device were being used simultaneously to wit and manage this load pole that was used to adjust the angle because they did not have enough headroom pull it out of the machine did either expert make a calculation of just what the load was or did they both just draw inferences from the breakage which lowered the original static lower what they feel was the final load both both neither actually calculated the original load what happened was employees for the company where this happened went back and tried to recreate it as best they could and they put a strain gauge on the section where the temple it would have been so all the static load of sixteen some thousand pounds is an estimate both experts accepted because they couldn't go in and recreate it because nobody really knows the dynamic loading because it didn't stretch it must have been below twenty thousand pounds at the same chain saw that there was no stretch he said well if it breaks and it doesn't stretch you know there's a defect or there was a high strain rate event caused by rapidly celebration your dynamic event would not have survived its design or the load whatever that design might be as i said before there's some question as to what the actual design is that's opinion one opinion two was i have evidence of a high strain rate event that accounts for the now stretching there was also a lot of witness testimony that was suggestive that high strain rate event might have occurred everybody knows that this chain moved plaintiff's own expert admitted that it could have been from a dynamic who tried to release the handle on this particular chain puller doesn't even remember what happened but we know something pretty violent happened because he got hit in the head in his arm with no so those are the two opinions that were offered by mr mark in seriously because they had opposing evidence but the issue of whether it should have been presented to the jury is not an issue here today as far as the opinion regarding high strain rate goes as i've said there's plenty of evidence regarding that and the district court examined the same and concluded that there was plenty of evidence to offer the opinion that the break was the result of a high strain rate rapid deceleration event you can argue that both ways i think it is probably still an expert opinion it's based on his other two opinions and should that final appearance of the left jury if maybe it could have been i don't think that he said that there's no reason to believe it would not have withstood its design and that the dynamic load more probable than not increased the load above its design you never did give an actual number piece expert did not say necessarily exceeding thirty five thousand pounds he said that it probably exceeded design or not the not even the design excuses he said that it probably exceeded the minimum breaking load that test is in the japanese industrial products had left the factory without satisfying standard the court allowed that statement to the extent according to district court that it shows that all these machines were the load was between fifteen thousand and twenty thousand pounds he did not simply take the pick estimates to coworkers the done he calculated as it has to the between fifteen thousand and twenty thousand at which point in that range but the chain would begin to press permanently but then he went beyond that he looked at as i mentioned before the change of broken away from the well he did his own destructive testing to ensure how normal changes behave and this is very different from saying reasonable matthew the court i find that the youth was reasonably foreseeable because the load was well below the design limits in this case and he said now there has been some testimony about a dynamic load but that's not reliable and i'm not taking that into account so at the very end of at the close of the trial the court itself recognized that this dynamic load testimony was not reliable just as the court had done instruction that it allowed the jury to deny why ability even if the product was defective if it was misused they were allowed to do a thirty to maintain their affirmative defense of unreasonable misuse throughout the trial they get an instruction at the end of the no at the end of at the end of the trial the court took away the result misused the pants but only so you really were using the words a little differently in the way they're usually use they were not allowed to present an unreasonable use defense they were just allowed to get in evidence of how products used that's that's correct your honor i mean i intend to show how they believe the accident happened yes that's what they did