products that we're being nice for their intended purpose but add some kind of defect and they're designed it caused an injury kerrick your case is about a product that wasn't used to  rogers makes an appropriate connection it has killed him a well of intended to use it in a moment but he did write that is correct and that the design of the product after the accident the extinction of the tube was found connected to one of the soldiers on the left slot of the airplane correct that is correct here are the airline was found on the floor next to their pl used as we acknowledge it's not be handled but we believe this test was not being hooked up the way it was supposed to be right because of this design that's right here on in and that the deceit and looked up the wrong that the defendant's expert describing that this process and as he teaches it it is a process it is all the steps the defendants provide instructions for all of the steps for this  going back to your expert on that basis you've got to assume some facts that we don't know i mean that's exactly what the district court did you're saying well you've got the expert testimony on but one of the facts that they're staring recording in their minds exactly what the guy's doing but they had told him or he had told them he was doing these tests he had done the tests on two cylinders and he flew over to the other side and  conceding that he's not handling the tester at the time it is the design of the tester and the fact that it controls it absolutely does rolls in the days when these parts of the process the under the alabama extended manufacturers build a doctrine where the supreme court of alabama has ever verdict for a plaintiff where the product that is the subject of the complaint as having been defectively designed wasn't actually being used at the time but i think there are cases your honor the can you to be used for its intended purpose this accident would not have occurred and it been hooked up correctly this accident would not have occurred isn't that right that is correct your honor and address the court's order regarding proximate cause and could also affirm this motion for summary judgment on other grounds that were sorted that are part of the record that has been submitted to disk or to mr burke years he was also an experienced pilot according to his father he had done over three thousand of these tests and was familiar with the test in the safeties test to be industries is a small business located in michigan that makes these tools for aviation mechanics and has done so for over forty years the undisputed evidence in this case as the court asked is differential pressure tester was sitting on top of the engine it had not been at the time it was sitting on the engine the differential pressure tester did not make the propeller move and strike mr rogers the differential pressure tester did not make mr rogers have his head in the arc of the propeller in there was nothing in the use of the tester sitting on top of the engine that would require him to have had his head in the arc addition in the use of the differential pressure tester the fact that the propeller moved and it moved backwards was that he did not use the differential pressure tester it was sitting on top of the engine and the plaintiff has conceded to the court that if there was no proximate cause that all those claims would be dismissed the court the plaintiffs can't counsel the appellant's counsel also noted that afternoon exhaustive search he could not find any controlling precedent supporting the argument that proximate cause can be based on the unintentional substitution of another product the dismissed all the claims under the claims alleged by the of the alabama extended manufacturers liability doctrine negligence and won't notice and breach of warranty and all of those claims require proximate cause be proved in those cases and cases out there the alabama supreme court has said that open and obviousness are an intricate part of the inquiry into proximate cause so the fact that this was sitting on the engine not being used there a litany of cases that talk so first of all you cannot prevail on the proximate calls because you not have the tester being used and then finally because that's the easiest way to decide this case isn't it just to stop right because of the way it was designed led to a mistake on the part of the plaintiff where the plaintiff ended up using another product mistakenly and that and the use of that product and tended purpose that had a design defect that when used as intended nevertheless caused injury because of that decided effect but that's that's the entire theory of defective isn't it this car this is the system that remember we have part of the product is that your directions the process is being done is everything in those instructions and that monitor this is to what he is doing as to what he's telling them he's doing we have the policies procedures and practices whereby these tools are used in this test is done but you don't have anything defendants actually conceded that it actually conceded that was a reasonable inference during that hearing there really isn't any other explanation as to what could have happened there's no other reason for does go a long enough to close a check that comes around and it kills them well i understand what you just said but that's not what happened in this case just respectfully disagree i believe that is the only submission and move on to the next one