all right i would like to first start out by talking about what the heart of this case is and it's based on testimony that we heard during the first trial from mr scanlon supervisor  that reads that's our bubble that's our safe spot you should be able to go in there and work talked about the bus bar i'm talking about the the barrier that that is supposed to protect that safe area from the bus can determine whether or not there needs to be expert testimony to explain why the f a safe spot that's the issue under the consumer expectation test that is presented in this court one of two big issues the other one is should district court have allowed the pretrial crop conference order to be amended and allowed us to proceed in the direction of risk benefit and i'll touch on that one but you brought up in a little while but you brought up the consumer expectation test which needs to establish the barrier wall did not perform as safely as an ordinary consumer would have expected when used in an intended or reasonable reasonably foreseeable way counsel who is the ordinary consumer in this context while the ordinary consumer in this context would be the jury who's determining the result of the case the ordinary consumer would be those folks who are looking at something based on their common experiences no but they would be familiar with what a barrier is supposed to protect and that's the simple concept and that's where we had the issue with the district court in this case was the simple concept that a lay person can look at and figure that if you press against a if you know that the safe zone and we had plenty of testimony to say that this was a safe zone there was nothing complicated as what the case law says in issue in instances where expert testimony was necessary under consumer expectation it as an example the case cited by g e in this case was a bucket that came down and crushed an individual labor  and the issue is more complex in that case in long beach because you were talking about an electronic system that controlled whether that bucket would fall if the foot was on the brake if the power was shut off there were more intricacies to it that isn't this case at all when one have to consider the way in which the user both are with utilizing the facility in terms he pulled the pulley and whether he should have been pulling the pulley i think the crux of the issue is the safe zone and whether eight jury of the community can figure out whether that safe zone should have remained a safe zone and not exploded and company who testified in the first trial we had and i believe the court requested a copy of the animation of this event and it puts it in very simple terms and it's not just an  animation based on a theory it's based upon evidence it's based upon testimony and when you sit back and you think welcome the jury figure out whether leaning up against this bus bar when somebody is working in what they believe to be a safe compartment where they're leaning up against that bus bar should cause it to explode it's a simple concept barrier means barrier doesn't mean maybe it's a barrier maybe it's not a safe zone and the case law that  obviously this is been very extensively briefed i won't go into all of the case law but if you look at the other cases that are cited by g e in this instance that have called out for expert testimony it has been more complex issues than is this barrier safe is the is the metal too thin and i'll remind the court that in the first trial which we were two days away from from getting this to the jury and preserving the seventh amendment and given mr scanlon his right to a jury trial two days and the court ruled that i don't think your expert can testify as to causation meaning that that bus bar should not have flexed but there was when you were proceeding on a different theory we were on the risk benefit analysis right and so the court said you can't we're we're not allowing that testify in court was saying that there was no need for expert testimony on the was he was an electrical engineer we also had a materials expert but the electrical engineer she did not think it was in within his expertise to talk about whether this wall should flexes far as it did and this court theory infeld theoretically there could have been a second trial that expert could have testified and then the result would have been whatever it was but there was a a reason tactical decision to go on a different theory then and i'll tell you the real the tactical decision was very simple we focus grouped this case and the ul labs is like the good housekeeping seal to some folks so absolutely we made the tactical decision to go for to put it a different way that there may be a greater likelihood of prevailing if you want to a different theory that was our thought so it's absolutely true the g e presses that point in their brief that you made a tactical decision while making  tactical decision doesn't preclude someone's seventh amendment right to a jury trial and more importantly what is striking in this case is that when we realize the day before this say that you needed an expert said that we needed an expert and invited us to just have a judgment entered at that point and we said no for two reasons one we wanted to brief it but more importantly the the final pretrial conference order had not been signed and entered which is huge when you look at the case law in this instance that there is significant discretion vested in the trial court in terms of the new ending the pretrial order because that really has dictated theory that had been rejected in my answer that's abuse of discretion yes for two reasons one is that the the abuse of discretion guide is manifest in justice and knowing this court knew that we had already proceeded  almost finished the case interest benefit then the court knew that and that we said we are ready to go if the defense wants a brief continuance although the experts and the witnesses were almost uniformly going to be the time before it in this instance it would have been that different of a trial it really wouldn't the witnesses would have been nearly identical mr hanlon can address that if i'm sure he will when he gets up here but we would from our perspective we could have started the next day we submitted a new set of jury instructions that are new they'd already been submitted prior in that in the other trial but we at that point we were we were hogtied we could not proceed under respect if it according to the court and what what the court did is went back and signed the pretrial conference order after we submitted the new one asking for us to be able to proceed under respond if it and then invited the summary judgment motion that was then heard  the morning and please the court james hamlin for apple the general electric your honors i'd like to start by correcting a few of the things that came up during the opponent's argument counsel describe the ordinary consumer of the switchboard as the jury that is this is at the final pretrial conference and quoting from the district court here the ordinary consumer is not a lay person a lay person meeting someone like any of us who aren't ever trained as an electrician it's an electrician with some degree of special training who is working on this kind of equipment are we in agreement on that council answers yes that is exactly the that's the same question and it's in fact the same lawyers who just argued that they were never consumer someone or that the ordinary consumers are juror and if the court looks at the opponent's summary judgment opposition brief at s c r forty one i'm quoting now it is a case about whether an electrician would reasonably expect to be safe working inside a switchboard again identifying the ordinary consumer as an electrician not a lay person that it mission was made throughout the case and the argument to the contrary is contrary to the record in many locations we have a section of the answering brief discussing this i don't want to spend much time talking about the first appeal as much as i'd like to go back and have a different result that's not the way this works but judge rawlinson you asked why plaintiffs expert was excluded at the first trial and it was not because it was outside of his purview to opine about whether the wall could have flexed and cause the electrical explosion instead the district court found that he had not followed the scientific method so it didn't go to his qualifications and went to his methodology the last thing i want to correct is expectation test and this was discussed during a telephonic hearing with the district court the next day on october seventh and appellants counsel again the same more or said how the court signed the pretrial order talking about the day before senator a new request to switch to the rest risk expect a risk benefit test and that the court answered yes the final pretrial conference order had been signed and then she went on to explain that sometimes there were delays in docketing which is why it didn't show up on the docket at the record is clear at s u r one o five and also s t r eighty four three eighty five the final pretrial conference order had been entered so we are clearly under the rule sixteen the manifest injustice standard here he admitted that is manifest injustice even if you disagree with his representation of chronology he agrees that manifest injustice is the standard that we're looking it's manifest injustice for the district court to amend the pretrial order to allow a theory of recovery that had previously been litigated in that council says you could your you can't just switch back and say oh we we tried it under a different theory three years ago we can have our experts up to speed in a day and be ready to go with the sort of professional high quality representation that this case in the court requires and  this record said this in the summary judgment order of twenty four it would be unjust to compel g e to repair for trial based on plaintiff's last minute change of theory following an adverse ruling and there are really two parts to that statement that i want to but  i want to raise with this court other first is that this was a last minute change this was literally the day before trial and we cited this court's prior precedent ok also could i just ask you a question it seems to me that this is the we were aware that the plaintiffs had an option to try this case under the risk benefit test and three years ago they had elected to do it and now are you talking about the issue being whether they could proceed under the consumer expectation test because they were missing evidence well i'm talking about whether the court of he used her discretion in refusing to amend the p t o and of course there is that four factor test i gather it's under one for us this county of ours is probably other cases as well but  i i just wonder whether we could really rely on the notion that somehow g e was prejudiced by this because she certainly under understood what the theory what that theory was now there's another question as to the timing but but in terms of being aware of this alternative approach certainly is it is it not fair to say that g e was aware of switch to the consumer expectation test to get an import what they perceived to be an important evidentiary benefit at that point g e says ok we have a new ballgame here we have to prepare a new trial because the evidence and the analysis for the jury is different we have some witness overlap but frankly trying a case about whether the switchboard performed as safely as an ordinary electrician would expect is very different from having experts come in and explain from a technical engineering perspectives the risks and the benefits switchboards technical design there are very different ways of approaching trying a a personal injury product liability case and we have assembled for trial we were in riverside we had our war rooms ready to go we had our client representatives had flown from the east coast all of our witnesses were ready to go and to be and so we clearly were ready to proceed and there's a lot of cost getting ready to proceed the day before trial so could you clearly suffered a monetary prejudice here but also your honor our and our under our system of justice when a party pushes an issue or a position to or dispositive ruling from the district court which is what happened here the the opponents didn't seek to change course until the district dispositive ruling the other party is entitled to rely on that dispositive ruling the plaintiff doesn't get a do over when the when the district court says you're going to lose defendants only have to win cases once in our system of justice and just about every case that the work that results in a defense decision on summary judgment or on a rule fifty motion the plaintiffs could say well gosh if we'd made this other choice perhaps we'd end up in a different circumstance can we have a do over and that is exactly what's happening here they made an informed strategic decision to switch horses we prepared based on that we were ready to go there was an adverse decision that ended the case and g e is entitle to rely upon that that's how our justice system works so i think that the prejudice here is very strong and under the four factors on a hunch your honor i think that the prejudice to the defendant is frankly one of the stronger of the four i think they're all for a very strong here and as we've pointed out this court has affirmed the district court's denying them in a final pre conference orders under circumstances that are in less extreme than this one and the colgan case the plaintiff wanted to add a new theory two weeks before trial in the eagle case the plaintiff sought the avenue damages theory at summary judgment before there was a dispos ruling in the case the plaintiff wanted at a new claim three weeks before trial in each instance the district court said no that would be unjust under mat that would be improper under rule sixteen you can't show a manifest in justice and these here are more extreme than any of those three cases and further in this court's decision in johnson which is also cited in our case that was one where the plaintiffs counsel had ignored discovery responses and said that they had mismanaged the case in other words they were saying we've made four or in one form strategic decisions or our client shouldn't have to bear the cost of those we should be allowed to switch throws which theories of our case on the court said no that's not manifest injustice when you lose which is essentially what we're hearing from the opponents in this case i do want to address a couple of of counsel's other comments in this case counsel argue that barrier means barrier and really the first rule of product and issue here is the district court found is the switchboard but down below if  your honour's read the some of the summary judgment arguments counsel raised an example they said if this if a member of the public goes to the zoo and the tiger jumps out of its enclosure and attacks them a jury can evaluate whether that barrier that was supposed to keep the tiger in the enclosure function to safely as an ordinary consumer would expect and they try to say that's just like this case with mr scantlin in the switchboard and in fact it's not and it shows why it the example shows why a barrier is not a barrier  jurors go to the zoo late people go to the zoo late people do not go inside switchboards there are warning symbols all over them they're intended to be used only by electricians as i pointed out at the beginning of this argument the apt analogy would be if the tiger attack someone in the private parts of the zoo where the zoo keeper worked if someone for example leaned on a wall in the private as you keeper part of the enclosure and the tiger was able to claw them frankly jurors wouldn't be able to tell whether to keep or could reasonably expect to lean on walls in a private part back part of the zoo and it's exactly the same here in the switchboard lay people don't even know what a switchboard is in fact the appellant's human factors expert didn't even know what a switch board was when he was hired for this case they have no idea i mean put yourselves in the position of a juror someone opens the door of a switchboard and says these two compartments already energized the fact they're on the other side of that piece of steel there is four hundred eighty volts of electricity that can kill you do you want to walk in and start leaning on things they're going to say heck no i don't know what i can touch i don't know what i can lean that's a dangerous piece of equipment and i don't have sufficient knowledge to even go in there much less evaluate what i can lean on and that's the crux of this case and that's why i just like in the loo decision where the california court of appeal said a jury wouldn't know what to do with a bobcat front loader would know what to do with the switchboard i mean at least let people know what a bobcat front loader is they see them on construction sites but they don't have informed expectations about whether you can stand under the bucket when it's elevated with a load or being turned off but here as i said jurors wouldn't have no idea a rational person would never even go in a switchboard much less have an informed or reasonable basis to decide what it was safe what they could expect to be safe leaning on and that is the crux of this case i use my last couple minutes to perhaps anticipate an issue that hasn't yet come up there was a lot in the in the briefing in this case about g e acts strategically and raising this issue late the week before the final the case was remanded in may two thousand and thirteen we had status conferences in june and august twenty third team and the plaintiff's counsel never informed the court or g e that they were switching from the risk benefit test of the consumer expectations as they didn't inform anyone of that until they filed their updated memo of contentions of facts and law on december twenty fourth twenty fifth twenty thirteen which was two months before trial and that and so that is when we learned at that point were two months before trial the time for bringing a summary judgment motion was actually foreclosed before we even went back and remained so we were prepared to proceed to trial the make the best of it we unfortunately had a defense expert get ill and die so the trial had to be continued  in the last appeal we faced a lot of allegations of sandbagging for not raising a real fifty issue before trial even though there's no obligation to do so that's why we filed the brief a week before the final pretrial conference to elevate this issue not so much for the opponents because we've already told them about their l problem during a par briefing in this court but for the district court so that she had the opportunity to think about this issue research it and didn't have to decide it under the pressure of trial which is what the panel last time is sort of indicated was a better course so most of the panel is any further all right i'd like to first address the issue related to the need or lack there of expert testimony in a consumer expectation test the sewell case says quote a lay jury is competent to determine the design or the product is defective if it performs so unsafely that the defect is apparent to the common reason experience and understanding of ordinary consumers and when you look at this case and you take it even a step further they're not to just be ordinary consumers sitting in the jury box they're going to hear testimony from mr scanlon who's been an electrician for a long time they are going to hear testimony from a supervisor laying out why this is a safe compartment it's nothing beyond the scope of it's nothing that an expert needs to say this is a safe compartment that appears to be a little different than the framework that the party is proceeding under in the district court that the consumer was an electrician do you agree that that was the framework under which you all proceeded in this record we did under the framework of an electrician because that's all who was going to be testifying about it yes but you think that's the owner consumer in this case well no the cook no i wouldn't say that's the ordinary going three to that in the in the trial court that the ordinary consumer for purposes of this case is an electrician yes based on the evidence that was coming in what i think the distinction here is is can the jury since they're not electricians obviously understand that this is a safe zone and and based their understanding on the testimony of witnesses who are going to come in and talk about how they didn't expect this to explode  not experts who have had the experience horton as an example the human factors expert who has come in testify hornick would testify and did that the device was extremely simple this wasn't a complex long issue it was very simple tradition how how what's the basis for his famous film well why should the jury believe that from him because a having a barrier protect you from something that's live in four hundred eighty volts is a simple concept to how with the jury yes that well they would see the animation that was based on the testimony that all of you saw we had a full mock up the actual switchgear in the court room to make it very simple for them to understand the concept and you not only have experts talking about how the switchgear works and operates but then you have the people who are in it the electrician's so this wasn't void of information to allow ordinary consumers to figure it out at all the last my last minute the degree of when you talk about abuse of discretion in failing to allow the pretrial conference order to be amended there was no it was a degree of prejudice beyond very minor for the defense as as counsel indicated the only argument would be more technical under one theory versus the other so you get you know listen more technical testimony which had already been done in the prior trial so this was in there was no point in switching gears early on because we didn't have the order of the court saying ok i'm either going to enter judgment now or set a summary judgment motion the day before trial was set so when you talk about manifesting justice  preservation of the seventh amendment which unfortunately has been dying in recent years and the ability of people to get to trial in front of their peers has been dying that is a grave injustice and manifest injustice in this case products liability favors jury resolution whenever the evidence can be interpreted to support plaintiff's position and we had that in this case and twice it was taken away and to blame plaintiffs counsel for tactical decisions they should just bear the burden and mr business scantlin should not have their day in court is not justice and is not based on any case law that i read