and we will move on to our third case for this morning ball against come from morning your honour's and mia please the court melissa murphy petros for the defendant apologise with all due respect to the district court this case is not about a battle of the experts it is about a failure of proof can you point  to the place in the record where you explicitly said to the district court we don't think that the plaintiff's experts should be permitted to testify pursuant to evidence rule seven o two  pursuant to dow birger hope you wanted to phrase that and that and given the district court of chance to review both the background of those experts and the methodology as they proposed to bring to bear yes  five fifteen sixteen and twenty five and it's our this is that and how specific were you about qualifications and expertise and i'm sorry and methodology they were very specific their arguments are know my problem is i can even boys this is because this is a case this horrible accident or this person in which the jury is going to be sympathetic to the plan and one way you can neutralize that is by having a gossett was changed after the accident but not for safety purposes it was changed i was an industry wide change that we were asked to make by the sales and marketing department that improved the latter's dura billet each juror in shipping handling and rightly so because otherwise i mean that's the whole theory of it is if you lower the evidence about repairs or other safety efforts made after the action then these companies will never never make repair it yes your only objection the fact that he couldn't explain the reason for it what he did explain the reason for it partially there what i'm saying because when he starts out when they go when they start going down the path of was there a change him to sign did you or any obviously i don't mean to be personalizing this but did did the cooper lawyers object to that topic being raised yes absolutely and we don't want him to talk about any changes being made yes rule for zero seven yes absolutely and for the reasons that judge posner mentioned it certainly leaves the implication for example with mr smith he was allowed to testify to the industry wide change in the reason for that but was not allowed to further state whether or not safety played a role in that change and on this one on appeal you haven't made the broader argument that this schmitz testimony should have been deleted altogether the only argument you've made is that he should have been able to say more yes and in fact the objection that was sustained to mr smith's testimony was inconsistent with the district court's ruling on our motion in limine a number eighteen and that motion was granted and it precluded other dence that changed the top cap of the ladder from an aluminum top cow to a plastic top cap after the accident it was granted for the very reason that if the jury heard evidence of water changes they  infer that that was done for a c purpose when in fact it was not so i want to go back to the experts for a minute because i'm mystified that you think that the district court abused his discretion by saying that mathematical proof of the kinds of stresses that were being imposed on various points of the lateran in particular i was very happy to have these pictures at the mathematical calculations are not entirely appropriate to see what kind of stress would produce that bending our position is certainly not that mathematical analysis can never constitute testing as a general incomplete what was wrong with it well that you have just preposterous theory that somehow when he fell on the ladder his body caused this bend to happen and that seems as though it's a theory and the jury could weigh the theory that the jury might be persuaded or not persuaded that a man falling on the ladder could cause this little couple of inches to shear in abruptly you would think of a man fell on the latter wouldn't look like that well to your point with respect to dr vincent's mathematical calculations first of all dr vincent's testimony is very clear he examined the engineering drawings for only right foot and gusset your area which you're looking at are the dodo but everyone agrees including dr vincent that weight and force on a ladder are distributed throughout the inst the entire structure he did not mathematically analyze the entire structure he didn't need to see if he's talking about how much force was necessary to cause this i'm calling it shearing you know how you're yeah and then yes that way but he didn't need to i'm sorry quite why i don't i don't get it i can understand well he certainly did need to because again he agrees that when a person is on a ladder the force and the weight is distributed throughout the entire structure and also or student distribute down to that part it would reliable good that was all presented to the jury right it was presented to the jury but the district court did not do a job or analysis at the outset that's why i'm asking how clearly did you teach this up for the district court it looked to me like it was done on the fly it asked if it was not at page fifty one of our brief we have the record citations for the motions in limine e numbers as they sat by fifteen sixteen and twenty and as for the rest of it why doesn't that just go to the wages and cross examination and let the jury either think that this alternative methodology that your experts used was i mean a jury could have thought it was better i don't think not well because i but that's because you think he didn't execute right you're not saying that in general it's not like consulting an astrological forecasters something you know people can do mathematical analysis they don't have to they don't have to limit themselves to computer simulations they don't have to limit themselves to accident reconstructions agree but i would also point out even assuming that his mathematical testing was a reliable method of testing he he still has to standing on the pale shelf and climbing with his back to his work area so he was doesn't retire early speculative we don't know when the pail shelf got kind of caved in and it could have been long before that that day and  just requires sort of a contortionist approach as opposed to the plaintiff's theory that the ladder was just put up against the gutter so that he could take out the screws and then we have the whole issue of the dirt and vegetation that was not found on his clothes because your expert suggests that he fell into the flower bed and there's no evidence of that theory yet that is correct and you know i'm causation as we're talking about it you know under illinois law when there is no direct evidence of causation and that we all agree on and we're relying only on circumstantial evidence it is plainest burden to show that his theory of the accident is the single most probable conclusion and if the plaintiff only has to show that by a preponderance of the evidence so but a bootstrap argument of the credibility weight of the expert into inadmissibility argument that was actually never made so that's why i'm asking this question miss murphy petros has stood here and said absolutely through these motions in expert reliably applied those principles in the case and now you're saying no it was absolutely not done in the motions and eliminated that are being referenced by fifteen sixteen and twenty five are found in the record of document one forty  seven those are the motions in limine filed before the first trial judge court to be fair to judge bork the only issue raised relative to dr been since testimony was that he didn't test i suspect this means hands on testing which will speak to the moment that he didn't test this theory and the end just to nail this down and i took this from the briefs to the rulings on your experts really just moved forward from one judge to the next start with judge corps they move to judge paul meyer judge lee accepts them and nobody ever renews anything before a judge lee correct correct and judge court had not only the motion but there were the doc that did the depositions were given were drawn hundred eighty two hundred pages of peace with about twenty some odd exhibits so he did have all that when he  ruling his ruling was the motion was very narrow on why the defense wanted not the witnesses part but a particular piece of testimony and judge court after really you understood that to be a concession to vinson and the other fellow were were in a directed verdict or anything of that fashion so when even mentioned do we know how how far he fell we have an estimate about five feet there was testimony in the record  think should be answered why was there some testimony about the change in the the gusset the testimony and the top cap counsel made it seem as if there's an inconsistent ruling and i think there was not and i'll say the two things that i think speak to that one the change in the gusset was made before the accident occurred and there is some case law and but if memory serves in the circuit and others that if the changes made before the accident occurred it can be admissible issue two they did not challenge the admissibility of it understand that given that seven and then it with respect to why mr schmidt wasn't permitted to talk about why they changed it first i think it's irrelevant why they changed it because it did have the effect of strengthening the lower gusset but also importantly mr schmidt never disclosed that he was deposed as a corporate witness for cup and he didn't work at copperman the change was made he didn't know why the change was made during his deposition when he was put on the stand i put on the stand my direct as an adverse witness when the defense brought him back in the defense case in think is not that common and some of the circumstantial evidence cases seems like cases and i'm not evading your question is going to get right to it but there's always a missing piece of evidence like how to fill in the pool of the child see the truck driver waving across here we know there are only and all the experts testified to only in the entire universe of possibilities to set up for the latter ours is the normal set up the tip over to the right be consistent with the evidence the overthrust the so so and yours just to pause for a second you think the latter has the steps going away from the garage to the backside of the ladder there the the gutter screws that he's trying to fix are in front of him and he's got a whatever it is a phillips screwdriver these using right and then he thought as in the latter that that leg of the ladder  the right side here's buckles under and a ladder itself calls over and both of the neighbor witnesses say they saw the ladder with that right side down on the pavement slicing so with the latter damage in the witnesses that corroborate  to a forward set up so the defense says we have a reverse theory in the reverse theory was that it set up obviously climbing away from the house to be working over your back and further away and when asked well what's the basis for that opinion the testimony was we can the video shows some of us will drop a weight and that weight damages the leg in the fashion scene and they are artifact letter and they said well that could be him hitting it then there's a damage to the right front leg and they said well that would be it said so he'd have to the point of has to do that in order for your theory to all piano said yes he's a sixty four year old man three times to four year old man yeah if you had an eight foot ladder in a garage so in addition there are smaller there are other things that all added up against that theory one is that if you put it in the garden he probably couldn't even reach the gutter at all so why would he put it in the garden when you could put it on the driveway facing normal that we would normally do it when you could lean up and dr mr b and retest i do this if you forward you lean up you can reach with a screwdriver experts and whatnot was properly admitted now the jury looks at this into the configuration of fact which of these two is more likely true the not true that was my burden of proof i think always through regardless of whether it's a circumstantial evidence case or not so  yeah i mean this really does seem to get them to the expert testimony i think that's the core of your opponent's arguments what about this duty to make this incense the only way it could have happened i don't have the burden of proving it's the only way it would happen i have a burden of proving that that's the logic the most likely way and that the evidence leads to that conclusion and i don't have to rule out other possibilities and my burden of proof given that there's only two possibilities the way i think the evidence came out in this particular case if the jury and rightfully so concluded it didn't happen the other way than it did happen this way so there are other things in this case  but that the amount of dollars that this future medical is going to cost and i divided it over years which i do believe is pretty in violation and you already have the number in the right number is and expert the number was in bite through expert it was an contradicted it was crossed but there's no there was no there was no other life care plan put in there was they had no life care plan on the say you had some number for the life care plan and so your position is you were just saying and here's another way of looking at this number makes sense if you think of it as a per year expensive of the two is reasonable damages and that was the number the jury awarded so i did make a mistake and i did only made a difference but the jury instruction does talk about the amount of years going forward and the amount of damages for those numbers of years i thought the arguments again at the beginning of the second trial at the motion for directed verdict we asked for a dollar analysis and then again after the verdict came in in our post trial motion for judgment as a matter of law so the word was used the