fifteen thirty two mixer grinder that injured her and there are three critical facts each of which is undisputed that really govern the outcome of summary judgment and the outcome of the appeal here the first of those facts is that i  w designed the grinder so that the power to its motor was supposed to be cut off and the blades within the grinder would stop spinning when the lid to the device was lifted that's a safety feature to prevent the blades inside to do the grinding from spinning and continuing to spin and one of the machine is exposed and someone might reach inside the second undisputed fact is that the instruction manual for the m g fifteen thirty two specifically told its users that whenever the hopper lid is opened the power to the motors is shut off and it also said that in interlocks which requires the hopper lid to be closed before the machine can operate raising the hopper lid opens the this like a manufacturing defect you're not you're not continue in wrong with the design no i think it is a i don't want to foreclose it but i think it's a design defect or you just said it was designed to turn off well it that the problem is that the design is faulty because as designed the machine can fail in a manner so that the reed valve read switch which will as happened here was in contact so instead of lifting up  the lid and having the circuit broken the circuit remained intact so that so that in fact some manufacturing defect claimed as i see it you've got two different design that's you style and design defect claim one is the that's that's a manufacturing defect quite well and it didn't work the way it was designed because it was designed properly write the play disposed to stop spinning right but if the design itself is insufficient to achieve the outcome motion for judicial notice pending before the court which does have osha examples of other people having their hands injured in whole by hobart machines that didn't shut off when the lid was operating but i don't think that's really relevant to the issue here  and and whether it's a design a manufacturing defect is that the design is fine that there was some flaw in the way that was manufactured and it didn't perform appropriately and maybe that's the case here but clearly if you have a product that a designed doesn't operate so when iran or when you say we designed to shut off it just didn't do it that's because the design is flawed because they've designed it in a way without the appropriate as our electrical engineer mr bennett said without having a fuse that in the event that there is an overcurrent that causes that reed switch to fail in the closed position so you don't have a fuse to protect and cut off the power i think that's it a design defect but irrespective that the issue under the consumer benefit or consumer expectation test rather is simply that if you make promises to the user in the manual and then the device doesn't operate the way the manual says it will then that essentially creates travel issue fact about product defect under california law under mccabe mccabe was a case where the user's honda civic had an airbag that didn't open operate in a in a head on collision and the there was a summary judgment granted for honda and it was reversed on appeal and the court of appeal said under the consumer expectation test you look in the the hour and the court said that because the consumer expectation case the test is rooted in warranty principles that necessarily extends to a case in which it's alleged that the product failed to perform in accordance with the representation contained in the owner's manual and that's true even if the particular user of the plane it hadn't read or relied on the manual because it's an objective test about a reasonable consumer is also an element of will see ability should shouldn't the shouldn't the product perform in a manner a reasonable of will see able in terms of the way is going to be used yes yes so in california the essential elements a consumer expectation test or are framed for a jury in a essentially a mandatory instruction in california we have these that the judicial council promulgated these form instructions and and it's virtually mandatory that courts use them  and they're called casey's a c i and so the case the instructions for consumer expectation are the jury is told that the plaintiff has to prove four things these are the essential elements of the claim that the defendant manufacture the product that the product didn't perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way that the plaintiff was harmed and that the products failure to perform safely showing was made by the fact that the airbag didn't inflate and the plaintiffs face hit the steering wheel at that point the burden shifts in summary judgment to the defendant manufacturer to defendant show the benefits of the design outweighed the problems with it and i t w made no showing here now with respect to exclusion let's talk about mr bennett first his opinion was simply that there had to be a fuse that was in line here to protect the device and protect the user and the district court said well you haven't tested it you haven't shown that would work and that is is just false first of all mr bader the designer did a test that put a fuse in it and it didn't work and the court was confused baker's testimony is was that over the machine stop working the fuse didn't protect the internal read switch from fusing but the purpose of the fuse isn't to protect the read switch the purpose of the fuse is to turn the machine off if the read switch fails so there was no basis to exclude an expert saying that the that you need to have a fuse and you didn't need to to completely work out every detail of of how would work that is the most basic element of electrical engineering of putting  fuse in a circuit and with respect to the the clamp on the solenoid bull that's a very common technology that stops live like in dishwashers and washing machines from continuing to spin when it when you open it up so there was no reason i'm just going to save the there is evidence but the testimony and we we have this in our opening brief we explain that when they complained about it the supervisor purported rafah deep sixed it and mr maris thought the machine had been fixed and that's when she continued to use it second of all under the consumer expectation test it's you don't look at what the plaintiffs did you look at the design and the expectations of a reasonable consumer and so therefore i don't think you can just say we're not going to use that judge by rose well reasoned opinion is contained in a thirty page order which is before this court he goes through in great detail the experts deposition testimony he applies the factors to that testimony as well as ninth circuit authority and district court opinions excluding similar similarly unreliable testimony and he concludes as is well within his discretion that appellant two experts lack a reliable scientific methodology supporting their opinions and it was up or least used three well first of all i think it's pretty clear the judge did wrote concluded that the consumer expectation should applied to the case but speaking hypothetically now if the consumer expectation test applies you agree that the expert testimony with on the story no your honor expert theory in the district court below was that there was a particular way that the stops which turned in its mounting over time as it was pushed that it rotated it came into contact with water and it created a fault current the fault current went through the electrical system of the well if the design defect claim is that an ordinary consumer would expect a lid to stop the motor when you raise it and we can in this appeal because it's undisputed as counsel acknowledged that this machine was designed to cut the motor when you raise the honor no you should have been designed to use a difference with two and that's something that is beyond the ordinary consumers knowledge what type of electrical switch to use in a commercial grade one hundred fifty pound capacity meet mixer grinder that's used in large supermarkets by professional meat room workers that is way beyond the ordinary consumers expectation or understanding but that's pretty missed on your theory that because this is a commercial endeavor we don't have ordinary consumers using the equipment doesn't know absolutely not it's premised on the fact that their theory failure is very complex it relates to the force of movement on a stop button and whether that is sufficient to cause a factory mounted switch to rotate the effect of that rotation when the electrical part of the switch test touches water that was inside the electrical panel because the the machine was misused it was sprayed down with a hose now when you and he also admitted that he wasn't qualified to address the electrical aspect of it so given that admission i don't see how we could conclude that the ordinary consumer could hypothesize that a soul annoyed law could be built and added to this machine would your is that the type of switch used was improper that a different type of switch needed to be used i would also at the theory as to why this machine failed to operate as it was designed is itself simply a theory mr method because why it's simply a theory it required expert testimony in order to support this belief this theory that they had that a fault that first of all that the switch could even create a fault current that fault current would have this effect normally it takes a magnet to make the two reeds come together here or there hypothesizing that a low level fault current made to reach come together the you know they were though basically even the consumer expectation in because any type of equipment can be made to be complex or leave the the machinations of that machine can be made to be complex you will always have to have an expert absolutely not i think that there are indeed cases in the campbell case is an excellent example of the california supreme court's decision in campbell where an ordinary consumer can observe the design feature at issue in campbell a woman got onto a bus and she could see vertical and horizontal grapplers all over the bus she sat in a seat that for some reason general motors designed without a grab bar when the bus took a sharp turn she put her hand out where anybody would grab the grab bar and fell on the floor so she could observe from ordinary experience that spot seats normally have grab bars this one did not that was that that made a product that fell below her expectations so if the design feature at issue is within that warden area understanding of the consumer you could conceivably have a consumer expectation based design defect claim under california law without an expert that's not the case here because their design defect claim was very technical it had to do with first beginning with could this stop button create the fault current and have this effect on the reeds could it do that that was a theory it was never tested it was never put the defect and causation very thorough tickle a substantial probability that the design defect and not something else caused the plaintiffs injury and where the complexity of the causation issue is beyond common experience expert testimony is required to establish causation that's three seventy nine fed appendix six twenty five the also cited in the briefs there causation theory was that by simply pressing the stop button that ordinary movement c to switch now keep in mind this is against a backdrop where this machine was altered modified and abuse but i'm a little under the consumer expectation test doesn't one have to also consider all foreseeable misuse of a machine there yeah well yes you're on i think it's the where forseeable misuse comes into play is that a manufacturer generally has a duty to design a product to be safe for i intended and forseeable mis uses but that's not that typically would apply if someone is misusing the product the misuse i was referring to is they were spraying it down with a host system it misused by any other name of bill meet you there live absolutely and not once did they advance a design defect claim that dealt with the watertight nature of the product or earn anything of that nature that's has not been the claim below the claim is always been that this which rotated got in contact bottom under there was no doubt that you could foresee that someone might live believe it while the machine was in operation and it was supposed to stop right there and that's exactly how the machine was designed it was designed with an interlock to stop the motor when you raised the lid and it was in that condition when it left the manufacturer's control and you can go all the way back to barker v lol you can see when the california supreme court talks about design the facts they are talking about the machine as designed when it leaves the manufacturers control or when it's put into the stream of commerce it's undisputed that when that at that moment in time our machine was designed to cut the power when you raise the lid and based on our testing records which are in the record it was in fact operating in that an interlock switch i noticed in and appellant's brief it's referred to as a factory original i do not believe that's in the record but it was replaced with a interlock switch because the prior one was not functioning well you think it's a difference which i don't know there's no evidence in the record the evidence is with that how can you save not the same if you don't know all i'm saying and i didn't say that i said i don't know if it's if it was why you said it was in the same condition that was when they left the manufacturer all right yeah absolutely why so if they took well if they replaced it with the same sure would be the same good well there are a number of things they did to it if they replaced the switch it's not it's not in the same condition because necessarily that required someone to rewire it from the factory original wiring there was splicing into the back of the stop switch which their expert hypothesized was due to corrosion around the switch there were misplaced fuses in the control panel and then of course there was the water infiltration so wasn't in the same condition but i would take a guess as part of your position and it would take expert testimony to opine where the whether or not the either design defect or modification expert testimony would be required you have testimony from your say that the switch was improperly place or the switch that replaced it was improper for that machine no your honor our testimony focused on the condition when it left our control and we have ample evidence in the record that at that time it was properly designed to do exactly what they claim it should have done so i agree that is the key fact in this case when it left our control it was designed to stop the power when you raise the lid something happened to it after that allegedly that's and they know that that's why they advanced expert testimony trying to explain why it operated that way and trying to attribute it to the design that is what california law requires even to the consumer expectations test they have to attribute the failure to the design and if we decide that to the design without the experts that's what mr bennett attempted to do that was his theory with the stops which being in such a condition and but there are just two theories that lip locking thing i think their expert co that right their expert if you had admissible testimony which as judge under the row correctly determined his opinion was nothing more than a hypothetical he didn't test it he couldn't identify a clamp lock that existed anywhere in the market that he could say would just be put on this prada i heard counsel refer to that type of salon oid that's on it washing machine he specifically said i can't identify a clamp lock on the market that can be just taken and put on this machine he further said that because it's a combination of a mechanical and electrical device that he as a mechanical engineer was not even qualified to design on the electrical part portion of the switch so how could he possibly be qualified to testify to this alternative in court i think we've taken you well over your time so unless my colleagues have any additional questions thank you very much in our g would like to begin by going back to judge to she miss question on page twenty five of the blue brief footnote while we point out that ramirez testified that she thought that someone had fixed the grinder that's it to be our one thirty six and that there was testimony that the problem had been reported to her supervisor and once he cleaned the excess meat off the grinder he'd resume functioning normally again at two e r one forty five so that's the response to  question the essence of counsel's argument is this sort of amalgam of blending the two tests he utterly refuses to talk about the consumer expectation test and the arguments he's making are completely all refuted by mcca mccabe makes it very clear if you say things about how your product operates in the operating manual it's designed to do a certain thing and then it doesn't do what the manual says it's going to do that raises a question under the consumer expectation test and you don't need an expert there was no expert in the cavemen there was you don't need an expert all you need to do is look at the elements and essentially you don't need to such a why the product fails as part of the  in effect that the machine was modified that could be a defense or honor that they would bear the of the of the burden of showing that that the reason that it failed was because of faulty maintenance or some modification of the nets in the record but that's part of th mr bennett's testimony is that the electrical panel that he examined on the machine was and factory condition when he was them in it and that's in the record so the fact that they were splices or that they hosed it down is nothing more than they have the burden of establishing a defense they the judge didn't rule on it and the judge and said basically said that if you can't the defense position is that we had to show the mechanism of failure and that's not part of the consumer expectation test and frankly when counsel talks about causation he's mistaking the meccan cause meaning the cause of the failure from causation for the tort causation for the tort is that the design the fact that it the lid open in the blades kept spinning cause was a substantial factor in causing her harm those are two different questions and so i think that i would implore you to read mccabe i think that we addressed all of their arguments every