perfect trial but to a fair trial we dispute that he received a fair trial the first basis that we say this is the following john dawes ph d and a tire expert was allowed to testify as follows i've looked at the tire on the car that went flat with nancy bran i've determined that that was driven more than one mile but less than three miles while flat and on this basis they argued to the jury that she was responsible for her own death she could have pulled over for a three mile period she could have taken exits but instead she kept driving down the highway here is the factual basis for this he worked at michelin until two thousand and one while there he did run flat testing they did it three distances a quarter mile a half mile in three months there was no testing of anything more than one mile or less than three months only test that he testified to that involved that distance was testing he did in two thousand and twelve some eleven years after he left michigan micheline in an unrelated case where he drove a firestone tire that was new one point two miles this was the sole factual basis for his ability to state i know what happens come to that no one has decided that you are equally capable that's the state of beribboned versus ason johnson case but this court has the equal capacity with the district court to evaluate the dow their factors and what we would say dow bear and come home tire stand for is the following there must be some objective basis for reliability demonstrated before an expert can take the stand and testify here we have the following there was no testing done beyond the fact that he looked at the tire there was no general acceptance of this in the scientific community he testified he doesn't know of anyone else who has done this particular testing there's no peer reviewed publications now those are not exhaustive factors under dobber but there must be something objective to demonstrate reliability and that is what is lacking here this as a general motors vs joiner was based on the itsy dixit of the expert and nothing more that meant we could not cross examine this gentleman we couldn't find another expert to testify against in his testimony with unopposed and an all based on his subjective evaluation of one tire with a very weak factual background and tell people you are precluded from bringing your own expert your honor we didn't find another expert we don't know anyone else in the world who claims to have this expertise and mr dawes or dr dawes could not identify anyone else either he said i don't know anyone who's done this i suspect my competitors have and i can't say that but the essence of it is that is one of the problems that we faced unlike this kind of testimony come for the record establishes that where harmful but that where expert evidence is allowed in harmful error is presumed if that is erroneous and here the proponent of the evidence bears the burden of proving it was not harmful that cannot accomplish the jury was instructed that i quote fault is negligence that was the cause of nancy brand's death unquote that meant they could argue to the jury nancy bran was exclusively at fault exclusively the cause of her own death even if mr martin was negligent he is not causally responsible and that was very damaging we also were limited with regard to peter filberts testimony our expert on commercial driving we laid a very careful foundation about his background as a driver three million miles without an accident snice defensive driving experience working as a john deere safety engineer sixteen times and i may have an account of them the course sustained foundation objections despite trying to build this at the end of the day those objections went to whether he had reviewed the scene and seen it at night whether he reviewed photographs of the scene whether he would be expect that a commercial driver would be able to observe a vehicle from a quarter mile away whether a commercial driver would whether this is a suggestion inattentiveness if he doesn't even attempt to break until one hundred feet before the collision all of that was held out at the end of the day he was allowed to testify the following i think he was below the standard of care but the justification for that why he said that the rationale behind a subpoena was kept away from the jury and that was extremely damaging even though the information he was precluded from testifying to electronic control module information his own personal observations are expressly allowed under rule seven zero three as the basis for expert testimony we are also precluded from allowing the final opinion of dr science our human factors expert when he was asked based on your training experience what you believe was the cause of the accident which claimed as he brown's death his answer would have been as we said in his report an innocent deposition in attendance on the part of the driver mr malvo but he was not allowed to say that to the jury unless a court has questions or go to our second basis that the weight of the evidence here clearly stated that there was negligence on the part of mr martin we don't dispute that there was a factual basis that would allow the jury to assign fault to nancy grant but what we state was wrong is that under these factual circumstances there was no reasonable way that you conclude that mr martin was not negligent to some degree the facts these facts were undisputed it was a well lit area nancy brown had two sets of back lights on many other vehicles saw and steered her around her mr mop and first activated his brakes at the space of ninety five to one hundred and ninety feet from the point of impact and from one to two seconds before the accident his throttle was fully engaged sixty four miles an hour there's a speed limiter that wouldn't allow it go faster that i won't even talk about our expert testimony let's talk about what their expert in human factors mark edwards said this vehicle should have been visible to mr mountain at nine hundred feet at six hundred feet he should have known that he was closing so rapidly that some of a civil action was necessary in a four hundred thirty eight feet he should have known with precision how fast he was close but he said as follows at six hundred feet he should have been able to change lanes and should have known that he needed to do so well the jury considered in that house for money and considered dr edwards testimony to be more persuasive you that's correct the question is was that conclusion reasonable under the circumstances was that against the clear weight of the evidence and we say following the assumption that the jury was told by their expert mr edwards was this why did mr martin delay applying his brakes because for two seconds or so he was checking is mirrors and only when he found out he could not change lanes that he applies break and i say that's reasonable that assumption was entirely unfounded by the evidence mr martin testified as follows and i'm quoting from cd at the civil docket item one ninety seven hyphen to exhibit two question did you take the time to check your side mirrors to see whether there were any vehicles answer that's why i went to the left it was clear he testified the left lane was clear and he could have changed lanes but dr dawes to apartment mr a dr edwards took the position that he couldn't change lanes therefore he applied the brakes there was no factual basis for that and the court's ruling on our motion for new trial expressly adopted that testimony of mr of dr edward stating he couldn't change lanes therefore his conduct was reasonable that was clearly erroneous i submit and completely unsupported by the evidence talk finally about the following judicial bias i know this is a sensitive subject but it's one that we must address one that we took very seriously the trial level and take seriously here we've cited the case for the following the trial judge's role in the courtroom is overpowering the jury pays great attention to what he says and any demonstration of bias or any demonstration of favoritism the appearance of that creates a due process problem  arizona versus will not be for the problem that where judicial bias is demonstrated harmful errors need not follow that's a structural error in the fairness of the trial process here we put on mr philbin our expert in commercial trucking and i've talked about the many objections that were made he at one point p being judge lewis said you are not the witness why he said that i don't know but he said that and the transcript shows it very clearly that was an eg his testimony that was a statement to the jury this is not a credible witness and immediately after testimony finished that day the judge summoned mr mccaul don't he will testify this or to talk to the panel about this more accurately he will come and discuss what happened in chambers where only he and phil stanfield the defense attorney were calling and there the judge said there won't be runaway verdicts in my courtroom that was a demonstration of why just before that he had slammed the door allowing mr fielder to talk he was cutting the numbers out and after the trial the record reflects the following i don't know that justice is truly done it's a big swing one way or another i was hoping to get you guys in the middle somewhere and i'm going to close by making  following this court has recognized the circuit on some fifteen occasions that cumulative error may justify reversal even if the individual errors do not justify reversal this is the perfect case for this i submit every aspect of this and mr martin could not make a safe lane change obviously plaintiffs presented witnesses who said the opposite but after a full and fair trial the jury simply decided to believe defendants witnesses over plaintiffs that's what trials are for that doesn't mean that the verdict is contrary to the evidence or the product of judicial bias the courts that affirm the jury's verdict and the decision not to order a new trial and  i will i'll touch on the points i wanted to make and then also work in responses to the opponent's argument first of all i want to start out with dr dawes testimony this is a red herring the jury determined that the defendants were not liable the issue of comparative fault did not even enter into the case because the jury determined that the defendants were not liable dr dawes testimony went completely to the issue of nancy brand's comparative fault in continuing to drive a vehicle for one to three miles on a flat tire the jury was in stress this difficultly instructed  all regia the instructions or the main instruction the jury was specifically instructed in instruction number eight if you find the defendants were enterprises or eighteen i'm sorry if you find the defendants were enterprises amok and were not a fault in your verdict must be for the defendant if you find they were at fault you know then you basically to summarize the go on to determine whether ms brand was at fault the jury that the verdict form also walk the jury through is the first question where the defense of felt no you don't even consider comparative fault so dr does testimony had no bearing on this verdict whatsoever it's a complete red herring flexible test and it is though those are not the only considerations that a district court can take into account when deciding whether expert testimony is reliable and that is particularly true where as here you don't have scientific test of opinion testimony this is experience based technical testimony of a tire expert and a so you know the district court took into consideration dr dies long experience with tires that michelin his experience with run flat testing and as counsel points out the fact that dr does had done the exact the exact similar test case and endeavor to this court actually said that that is the kind of thing that strengthens the reliability of an expert's testimony when the expert held that the you know did the testing or engaged in similar testing even before the me not rocket science you take all the air out of the tire and you run the car for a distance and you look at the inner liner different distances and you compare them and dr dhar showed that at less than one mile is very little abrasion on the inner liner one mile was you know a certain amount and more than that was was even higher and so you know it's something that regardless of whether plaintiff has found expert who had actually done this testing before could easily have done it for purposes of this case so and counsel had players counsel had ample opportunity to cross examine dr da and in fact are relevant and i apologize if i wasn't clear i think my only pointed the testimony had no bearing on the verdict but even assuming that it did it was properly admitted because this is the type of testing that plaintiff could have retained another expert to do so unless the county court has any further questions on that particular issue i think i'll move on  argue on behalf of one of the parties neither of those is what happened here on trial courts have wide discretion to engage in questioning of witnesses clarifying answers and in general controlling the orderly presentation of the evidence and a new trial is only warranted if there's evidence of actual bias or an abiding impression that the judge's remarks in questioning project to the jury an appearance of advocacy or partiality and the case law of this circuit at least is clear that in a civil trial certainly you need to show that the alleged misconduct had a prejudicial effect on the trial counsel what was the purpose of the judge's comments to mr lars or miss give our side reference to being from another country ye honor the judge explained in his order and i and most for new trial that he was the contact of contacts is that mr august i was explaining courtship traditions in his native country of guatemala and the judge who is the son of chinese immigrants mr aguilera talked about his country the judge merely asked to clarify when you say your country do you you mean the united states you are a citizen and he said are you referring to the said that you're a united states citizen right right and so the the trial judge who was there and can see the jury is in the best position to assess whether this kind of clarification is needed i does i certainly don't think it shows any bias or prejudice towards people from what i'm all or immigrants of which the judges don't parents were he is merely trying to clarify and if i could just on the very next page to look at the very next page of the transcript plaintiff counsel asked the same question and he he asked when i asked you about your country what do you consider your country now and that document over to eleven a page three sixty so  he was simply trying to clarify what mr ragab are meant by his country as far as the foundation sustaining the objections against  for the first of all the rulings were correct i mean if you look through the questions and and the judge's order to find the motion for new trial explains this pretty very well you know there was a base but basically they could be categorized in sort of three groups first of all and produced counsel did not qualify mr philbrick as an expert on the trucking standard of care until well into his testimony  and so that was a major part of the problem he just he didn't do it until later in the testimony and then you can see in the transcript once he does the sustaining the foundation objections either i mean it goes way down is basically and that i mean there might be one or two after that that the second category of questions to which objections were sustained including at least one of the ones that counsel's just mentioned he's a he's an expert on trucking safety he's not a human factors expert he does not he's not qualified to say when a driver might perceive you know that a vehicle stopped on the roadway he's not an accident reconstructionist he's not qualified to say how fast mr martin was going and those are the plaintiffs their main focus at the beginning and you can see this in the opening statement is they wanted mr holder to say you know he's outside hours of service he was you know he was fatigued he was you know drinking you know rockstar during sir eating or whatever but you know the evidence at trial became clear that first of all he was he was within his hours of service and he was not drinking eating smoking or on a cell phone he was driving and so council did run into problems when he tried to get him to opine think of things such as you know should  see the one that mr murphy just mentioned the question was you know well the standard of care for professional driver obviously is to keep an eye out ahead twelve to fifteen seconds ahead or more if you can i'm sorry the question was what does the standard of care call for a professional driver in the operation of his vehicle and those circumstances and the regs as well as standard of care for professional driver obviously is to keep an eye out ahead twelve to fifteen seconds ahead or more if you can and in this case the lighting was such that he could i believe philbrick was and did not the players did not disclose any opinion from filbert on lighting and whether it was appropriate and filbert was simply not qualified to testify as to whether mr moppin could have seen the vehicle in time to stop and so what you saw i think it's a little bit of seconds are about two hundred feet before the point of impact a cake if you're sixty five miles an hour you're going about ninety five feet per second but mr dr edward said that it takes about one point three to one point five seconds to do that motion to take your foot off and put it on the brake which takes you up to three hundred fifty feet before the point point of impact and dr edwards did assume that martin would have looked at his in his mirror and he said that it would take one second premier and so just one mirror brings you up to about four hundred fifty feet before the point of impact four hundred forty feet six hundred feet four hundred forty feet was the distance that dr edwards said mr moppin should have realized how fast he was closing in on the honda and that he needed to take take action now counsel you know  you know side up and says to money that he looked in the left lane and it was clear well ashley brink said the opposite ashley brink was an eyewitness to this accident and she said very very specifically she said there was an in the lane to the left left of moppin and that he could not make a safe lane change that and that it would appear to be inevitable in her in her view the jury could have accepted her testimony on that point over please the court my name is ron recall though replies and greg you learn in october of two thousand and thirteen your honour's will tell you that oscar aguilar was denied a fair trial he was denied a fair trial by the actions of judge ron lou presided over this case came into the case very shortly before the trial did not have a pretrial conference did not want to meet the lawyers before for dire was conducted opening statements were made the first witness plaintiff put on was attacked by judge lou in ways that i've never seen before and i've tried over two hundred trials i've been trying cases for forty five years i've never seen the hostile environment in a courtroom the judge who demonstrated and i don't make this claim lightly filing an affidavit questioning the conduct of the trial judge to me was something that i struggled with because it was just so unusual the atmosphere but this witness was gutted he was not allowed to ask answer questions every question that was asked was objected to on the basis of foundation and the foundation questions that were asked were objected to on the basis of foundation  back and they were all sustained yes your honor it's all in the record for example let me just suggest that question to page seventy one of the one seventy one of the transcript lines two through eight how did you find the lighting to be with regard to your ability to see the roadway a quarter of a mile ahead ahead foundation your honor answer the court's ruling sustain why don't you narrow it down and i said i'm sorry sir and he goes well i'm not going to help you sustained two times during mr philbrick testimony i was admonished that i was in a court of law and i was asking improper questions that the court was not going to tolerate at one time mr philbrick started explaining his answer and he is a qualified expert he is a forensic examiner he has driven trucks him self for twenty years accumulated three million miles of accident free driving he is a driving instructor and he was a police officer for eight years patrolling the highways he is a extremely well qualified expert judge lou would not entertain any of his opinions would not allow him to explain his answers insisted that he answer questions with yes or no answers  at one point mr philbrick and i think i call mr philbrick our most important witness because he's a truck driver by training and by by incredible experience he knows what it's like to sit up at the position that truck drivers have a vantage point and he wanted to testify we wanted him to testify about the observations he could make from there all of which was disclosed in reports that were disclosed and filed with the court judge lou was looking at some brief synopsis from a pretrial statement and when mr philbrick would deviate from what was contained in that little synopsis he would judge l say you can't go on and on like this your interview invading the province of the jury you cannot do that and so he took away the credibility of my key witness he took away my credibility by admonishing me in front of the jury that i was in a court of law and not acting appropriately and then he and then he attacked mr aguilar when he was talking about the traditions of the courtship traditions in his culture judge lou said to him your country is the united states that's the country you're from and and it was just so incredibly biased the prejudice that he showed the jury took it  and took away all the credibility from the plaintiff's case and it was it was the most incredible thing i've ever seen to see a judge conduct his court that way until he took us into chambers pointed his finger at me and said i will not have any runaway verdicts in my courtroom and i asked him what he meant and he said you know what i mean i'm not going to have any runaway verdicts in my courtroom then it became clear to me he was demonstrating his power unlimited power that a trial judge has to control the jury