the last case on for argument today is michael j pratt versus national railroad passenger c i think it's important issue and it is quite separate from the merits of the case i guess and that is we have of course seen the rather the very devastating story about a thirteen year old being killed by a trite i mean and we've seen the the video which is an extraordinary it's different when you see the videotape particular reading about what's right and indeed in this case that the tape together with the other recordings of electronic recordings but mostly the tape was was is i think essential to what the district court is what you're asking us to do maybe less so and scott is not the name of the here the supreme court case interestingly and that we did a little while case after us set same kind of problem and the problem is that in scott which was the supreme court case saying that the the video tape can can prevail at summary judgment i guess over even other you know first why would he says and in calif is which was basically someone in each case the court made available to the public the tape about which we're talking and they did that because it was all about look here's the tape and here's what it shows and there are a lot of people saying this but look here's the tape that's true of those two cases this and some others and my question is i'm torn little i can understand why the family does not want to publish a tape that actually it's not it's not you know i don't want to make it sound worse than it is but it shows the moment it doesn't show bodies or border but it shows the moment at which it happened and i'm torn between the question of whether this is if we're going to base our opinion substantially on what the tape shows or doesn't show to do that and you keep the tape sealed is a problem and i wondered whether you and your it's outside the merits of the case argument on the merits of the case certainly and to dress that from our perspective from the perspective of the family there is not a major objection to the tape becoming public they their preference was seal is to avoid it becoming a cause celeb or irrelevant to judicial proceedings on social media or any other place  take that chance ok thank you we might hold it up a few days so if you want to consult again with clients all right the court of there's a different was ok all right now now we will hear tape is the horn claim and whether there was an adequate warning given in the form of a horn the trains move quickly often the sound does not arrive until the trained as the horn is essential to there may be other factual allegations that maybe you think you think the video is unreliable though at some point you say we rely on parts of the video and on our times you say that some of the data is inconsistent with the video or is this  scott type video that we can rely on or is it unreliable and i already know too i believe there's a contention your honor and i believe that some parts of the video are reliable and that we have contended that and and that's where the case differs from scott scott you contend that it is reliable that it is not reliable you know scott specifically says that where there is no contention that the video is is unreliable or no attack on the liability of the video of well two types of recordings from the from the train an incident like this and there's multiple types of evidence but sticking to the recordings the two data recordings produced in the case are different these are from a black box in the train records when the horn is sounded if the horn sounded brakes brake pressure various different mechanical parts of the train two of these were produced when they were produced and the corporate witness testified about them a lot of answer questions could not be answered in fact the corporate witness testified at that time that he cannot distinguish which one was correct and which one was it what was wrong i mean  i think there was a difference of view on foreign sounding after the accident yes everything else that you thought was was unreliable about the video well there's a discrete you know there's a discrepancy when the horn sounded and it actually puts though is there any reason to think that leaving the discrepancy between the data aside is there anything reason to think that what we hear while we're watching this accident is for some reason purposefully or not purposefully of reliable on truth yes your honor every single witness to the event says that it didn't occur there was a witness at the actual railroad crossing michelle panza she actually testifies that she almost  a statement recording the state police report right a statement by a witness her name is kang how it's not hearsay well i don't believe that the report and what senate is hearsay and i don't think i think the court the lower court considered it and the lower court considered an dismissed it the report is evidence in the case b c my point about evidence i do see that is going to be a duty i mean can be double hearsay that's admissible in a police report but the the second level of hearsay there's going to be a duty on the person to report that's kind of evidence want to one king king king statement just written by a state police investigator and how is that how was  well your honor i think the standard different at a summary judgment level this is a summary judgment proceeding where the police report is presented as evidence in the contents there of at trial in this case w testify to what what she observed so we were limited in the summary judgment proceeding to what she had stated in the state police report you take your deposition over in her deposition was not taken your honor the  other witness other than the woman ms king and the woman who was at the crossing was the other individual on foot and who testified that he did hear a horn it did did in fact you horn when he left his driveway sound like it was far off and then never heard the horn again until one to two seconds is his testimony and i'm going from memory before the train hit mr pratt this is entirely  in contradiction to the videotape miss penza saying that the horn was never sounded until never sounded before was it is in contradiction miss king's testimony is in complete contradiction that a horn wasn't sounded so all of that evidence contradicts the videotape and i'm i guess i would say i would go with you if you had somebody two of us were on a panel and hearing about you know identifications of people and what what they look like and you know not that it's governing this case but it's this the science out there  on identification of witnesses or of the defendants or perpetrators is you know is growing and growing and human perception just ain't what it's what we thought it was back in the twelve hundreds and bring it forward all the way to today so what what do we do with that i mean i'd be going with you and saying no the jury's got to figure this out if you have an expert who says you know we went in we looked at the program of the black box and these things are missing and there should be three ones here and two zeros and somebody is hacked well i think your honor that we do have an expert that testified is that these things should be consistent and not inconsistent with each other if they come from the same data but i think the key issue with respect to what you're asking is that not only are we entitled to the evidence viewed in the light most favorable to us but all inferences to be viewed in that same favorable light and the of having data recordings that do not much of video and witness testimony that universally contradicts the video the inference is that something has been done to the video to change it so i think that that fairly  has been made expert or not that allegation if it were it will do with this case what we did before if there's anything else you would like to argue before mr hamley stands up and give mr hamley the time that he needs as well so anything else  a different one and that is i read the start and this is much shorter i read i read read that the conductor was in the care with the engineer right yes what was  occasion he did go up front he just happened to be there at that time there wasn't a specific reason yes well your honors of course as mr solvent has have focused on the issue in the case which is whether or not the video evidence and the data recorder evidence are reliable is inconsistent they're not consistent they're entire distant or not in consider they are consistent they are they are the consistent this is precisely the question the judge sessions addressed in his decision on page one hundred twenty of the  appendix judge sessions wrote in this case as in scott the video provides clear objective evidence of the events leading up to eric's death that evidence shows the train operator blowing the horn consistently before eric reached the tracks the data from the event recorder confirms the video he then goes on to explain the eyewitness testimony as being less reliable and  that no reasonable juror could conclude that this video and consistent data evidence was unreliable most significant to the court's questions a moment ago is th conclusion and it is supported by the record the absence of any anything meaningful in the record point of suggests that the video has been doctored in some way but offers no evidence to support such conjecture also want to mr headley then you would be arguing or you are arguing that the different perceptions of the eye witnesses if you will of the oral witnesses is insufficient to is an insufficient basis to credit what the black box and it is in the absence of objective evidence of tampering with the black box data this court just three weeks ago just decided a case called donor vs the andrea it was a three judge panel that consisted of judge panel consider it considered a case like most of the cases that raise this videotape issue which was a prisoner's rights case prisoner contested that he had been abused by officers in a arrest situation the officer had a body cam on and the panel that heard this case which was just three weeks ago on june  june seventh of two thousand and seventeen following scott said i don't offer is no object of proof capable of supporting his assertion that the video taped evidence had been tampered with there like this case there is clear evidence of what happened the horn sounded for twenty one of the thirty seconds prior to reaching the crossing it sounded for seven seconds immediately before impact huard julie because ms penza almost drove her car onto the train and onto the tracks rather and the engineer reacted to that mr solomon identified several witnesses two of whose testimony was secured by deposition one was kyle shippey who was the young man who was with the boy he heard the horn but didn't hear it exactly the way it was sounded and michelle penza who testified and it's in the appendix was in a panic such that she couldn't even put her car into reverse and thought she was going to get hit and ask about the braking situation how yes how many seconds would have been required to make a difference here well in order to make a difference quoting to the undisputed evidence supported by the plaintiff expert the engineer would have had to apply the emergency brake before eric came into view so more than six and a half seconds prior to impact in order to slow the train down there is only so he could have gotten out of the way sufficiently so he could have gotten out of the way when the engineer would have had to throw the train into emergency before even seeing eric pratt back on his friend seconds and that's before dinner comes into view i think it's around the time that kyle came into view right around the time kyle comes into view i believe it's six and a half seconds but not to quibble if you have to subtract it from the  video tape markers the point there is that everyone agrees as the district court observed all of the each both of the experts i should say agree that there is a reaction time that's required before the action is meaningful this implicate this open run duty issue to in other words the district court cited andrews for the view that the open vs something transportation company which which run two weakest moment might lead to my next question is this has this open run duty modification of reasonable care that's imposed on the pedestrian and on the motorist to work stop look and listen in to observe what's coming and to react in time what judge sessions decided as well in this case was th e engineer and the and the engineer has an obligation to the passengers not to put them in unnecessary danger so you can be it is the open road that's the justification or the justification for that doctrine is the open run duty into just now so it's it's news to me but but it's certainly not a function of remark which applies simply the common law obligations of the passenger and the recorders as the court i'm sure appreciates by now is a function of the size of the wheel subsequent to the motion being briefed but before argument we provided supplementation that indicated that the correct measurement was thirty seven and a half inches to forty one not forty one which were not already one it doesn't make a different position none of these are material differences because in any event the train was not speeding in any event it couldn't have braked in time to avoid the accident what judge sessions found based on expert testimony was that it's not reasonable for the engineer to put the car the the train into emergency as soon as he sees a pedestrian approaching a crossing it's reasonable to assume that the pedestrian is going to see what's coming and take  cautionary measures stop in other words but here when it got to be two seconds left and eric wasn't aware the engineer did put the car train into the expert for the plaintiff originally said that it hadn't braked through impact was because he was rowing on an estimate from the state police as to where the train came to a stop that  estimate was one tenth of a mile which is around five hundred twenty feet that turned out to be wrong by almost fifty percent or one hundred percent whatever you calculated it's nine hundred something feet that was the correct measurement which makes it clear that the train and the video are consistent it was blowing right through impact i mean this is a terrible accident we feel awful about it for the family but it's not a function of negligence  i have my own theory as to what happened which i'll share with you in two seconds of the freight trains had been stopping there all week long to load of lumber at which is just beyond this beam is crossing when you see a headlight coming towards you it's you can't tell whether it's a freight train or or or an amtrak train but there's a difference in speed and these kids did not want to wait in ten degree weather which is part of the record and so they said one said to the other what's beat the train and thinking it was a freight train they took more time than they should have to to get across and it's an unfortunate event but it's not one for which amtrak is  were some discussion of objective evidence of tampering the facts make that impossible would be interesting to know what objective evidence of tampering is because the what's in the record is that the dat recorder for the video and the black box are immediately downloaded all the data is taken off on the spot or at the next spot by the railroad is then transferred to a computer is then transferred to a desk and as one data file that is then given to us in the litigation no ability to objectively tell if any of that's been tampered with it's all been done before anyone got to it the corporate representative testified in this case we cannot go back to that equipment to find anything about this event so as to objective evidence if that's what's meant there is none i do believe that eye witness testimony is objective evidence they do not have any interest in the case so i believe that is objective evidence if that directly contradicts what's on the video tape then that's an objective account not a subjective account of one of the parties the other issue that i'd like to just quickly address that yes to what i'm saying what i'm saying is that he could have your honor applied he saw a pedestrian on the tracks well before the six and a half seconds and that was mr shippey i don't think that is there a way that we can tell from the record how much time that was you can the videotape in fact i believe the videotape that we too sibylla that show has a counter on it and it does show mr should be cross it will surely come right up yes your honor thank you so that is objective you don't have to take my word for it if there are no other questions i'll be finished thank you go thank you very much yes but thank you for your arguments are the final paste on the calendar today is for  most verses western district of new york is on submission i will ask the clerk please do it your court