reserved three minutes from our boat on this matter yards i have a brief this very simply and i think that the argument self is very simple the district judge or a apply the incorrect test the analysis or play the incorrect test of the claims presented before the this case in that case the plaintiff was injured by an exploding tire he brought theories of design defect body theory of failure to warn brought a theory of a preacher implied warranty for fitness for particular use after analysis of all the facts the judge in the flight case dismissed on summary judgment the design defect claim dismissed the who to warrant claim it vies that there were factual considerations to be made that could go before jury on the failure  i'm sorry for the breach of fitness for particular use claim now the case law suggests that under a breach of implied warranty the plaintiff need only show that the product was defective when it left the defendant's control of the company's control and that the defect caused the injury that's in the as the the facts in this case the very simple and frankly undisputed my client was using a grill brush his home in northern michigan he did the grill he was supplying the grill brush the grill great when when he was preparing chicken for his a wire bristle that her truth isn't test and to the extent that he was had to undergo an emergency lab rodney and post surgical complications ended up with his stomach basically stretched the side that expert some kind of stricken liability michigan has done away with strict liability claims but they still have adopted the breach of implied warranty in fact in the case of bovver it not only did they suggest that the proofs are separate distinct but that a jury could be instructed on these two separate defect is because a bristle came out of a bra the defect showing from my expert in his analysis show that he was able to with hemostat pull that particular bristle out was seventeen point three pounds of force and the quality assurance manager for the company said that when they do their testing that they are he was unsure of exactly what the requirements for pounds of force that were choir before the pressure on the market but he thought that they were somewhere between twenty and forty twenty being on the low end so seventeen point three pounds of force according to my expert was not much force at all and he was able to do so with a hemostat now that circumstantial evidence suggests that that the bristle because there was no evidence of any cracking or any severed bristles by my expert i will concede that  requirements are somewhere between twenty and forty pounds of force doesn't make negligence or even if you don't follow your own system well it's status as a parameter for the jury to to show exactly what the policies are in house and what is expected of the product and frankly if you're if you have an expert that says the pounds of force required to pull out this particular bristle are less than the minimal requirements as advised by the q a manager i certainly think that's enough for a jury to indicate that yes those fall below the standards of the company therefore they were negligent in releasing it out of the market now the defect is there for the pull out and then the circumstantial evidence is there because the wire bristle that was consumed was in the intestine so that's enough pursuant to that all of the product not tested on here is another issue i'd like to bring up is that these particular my client's particular grill great is across great as several are giving it more of a propensity to snag and become dislodged the quality assurance people on a cross section when it entered the chicken became seen by my client so it's our theory that along because the case law suggesting that there doesn't need to be direct evidence in a product liability case the circumstantial evidence is there for a jury a jury could certainly failure to warn analysis that contemplates opening obvious the only parallel of the three prongs is the second prong that says that the plaintiff or the injured party would have no reason to believe of the danger now the three the three prong test under pack is that the company the manufacturer had actual can or constructive knowledge of the danger that became ultimately apparent the testimony of several the individuals including their their their claims manager in the third the third component well the first component again is that this particular column of you're saying it's not a brush was not a simple to correct i'm arguing that because that's an affirmative defense to the failure to warn analysis my argument is that it's there's a there's a component of it's bristles a brush i understand it's not a complex machine but the same time the court flak along with it in lockstep with what we're overanalyzing here is that you know it is definition of exactly what a simple tool is the case law will only give us a handful of pluses and minuses as to what it is your honor other brushes that people commonly use i mean nobody design defect claim we did not meet that burden but that is separate and apart from a breach of implied warranty so when the judge that there are six factors in the risk utility test that addressed that question your honor the breach of implied warranty what he did was proceed under risky tilley analysis to dispose of all claims rather than giving us the leverage to proceed to a jury in the breach of implied warranty came or we only need to show the fact and from that  argument my argument is that the risk utility tests a political tool designed a fact claim or you do have to show that and we have conceded that portion of the judge's decision that the test was not met with respect to design  may have to use the court jeff garish on behalf of the lipman company i'm sure the court will be very sad to hear that i don't plan to use all my time i said in my statement regarding oral argument that there there is anything brought up in reply that i didn't address i would deal with today there wasn't a reply brief filed briefs that we've filed has addressed all of the arguments that have already been made his entire argument is that the risk utility analysis doesn't apply for an claim under implied warranty but he's wrong he's wrong in order to show a product defect which you have to show even if you're proceeding under implied warranty there has to be a risk utility analysis the supreme michigan supreme court has repeatedly said that this court has repeatedly said that including in the appeared the peak opinion authored by judge sir heinrich and perhaps most importantly the statute michigan statute says it and he's made no attempt to deal with it and that is m c l six hundred point two nine four six two specifically says that to show a defect whether you're under implied warranty or negligence you have to show quote generally accepted production practices in the industry and you have to show and i'm quoting again practical and technically feasible alternative that would have prevented the harm without significantly impairing the usefulness or desirability of the product i'm going to give the court one more case from this court that i probably should have put in my brief that's the cross key versus b m w case which is five thirty two  third five eleven and that's another case where you said to show a defect you have to proceed or you have to proceed with the risk utility analysis so his entire argument is simply wrong to do due to the morn i agree they don't need to risk utility analysis for that but judge clay this is a simple tool judge givens your question is exactly right there is no duty under michigan law to put a warning on every brush that says bristles can come out michigan law says there's no duty to tell people what they should already know that's the simple tool doctrine and this is the quintessential example of the simple tool there is a test for that it's a simple tool if it's not highly mechanized or if it doesn't put the user in obviously dangerous positions this is the quintessential example of the simple tool for which there is no know of every simple tool is not how american but it's also basis of this is not a simple tool i don't think so judge clay because any product could be dangerous probably virtually anything the issue is if it's something presents a risk that the user would not have any reason to suspect that's that's the essence of the doctrine and the question is do does this manufacturer have to put a warning on every single brush that says the bristles can come out and because you're using it on a grill with food it can get into the food the answer is no because under michigan doctrine this is a simple tool and that is something that a user of a brush ought to know a reasonably prudent user of a brush would know the bristles can come out and there isn't moment won't come out as easily as arab or i think that's fair that's fair but the point is they can come out a wire brush bristle can come out it can break i mean if you've got a grill brush if you have a charcoal grill you know the bristles break and come out all the times is not unusual so the notion that there has to be a warning on the brush that says brussels can break or come out otherwise users would have no idea of this possibility with all due respect is nonsense and that's why the doctrine exists i don't know about other states but i know michigan has very stringent laws in this regard and doesn't require product manufacturers to issue warnings for something that a user has a reason to or at the test the highly mechanized and obviously dangerous position or whether you look at the types of things that have been found to be simple tools the result is the same michigan is found is hammers  airplanes buzz saws trampolines and swimming pools have all been found to be simple tools and in each one of those instance the teeth the danger presented is no less obvious i would submit to the court than the danger of a a wire bristle coming out of a brush now i know that been a long day for the court but i do want to just briefly address the other point we've made because it did come up during my brother counsel's argument and that is the judge didn't rely on this but this entire claim is entirely is entirely speculative we don't know whether the the brush that was taken from his intestine was even out of our brush in fact there's reason to believe it wasn't their expert examined our brush and concluded that no br had come out of it he couldn't find anywhere where bristol had come out of it despite inspecting it under a high degree magnification microscope that would certainly go to realty to prove causation exactly exactly and he didn't have an expert on causation he is his only theory was basically that he used the brush and some time later he had this turn up in his stomach actually was a couple months later but the point is that we don't even know we have reason it wasn't this brush and we don't know that it might not have been a group rush from somewhere else maybe from a restaurant or somewhere else there the causation theory would require a jury to speculate basically to take a wild guess that it was our brush that judge just super e the bristol was not the piece of metal was not preserved exactly judge givens and i'm glad you brought that up because that's another problem with their causation theory they didn't even they didn't even save the bristle if they had saved  the doctor saved it but then he didn't get it from the surgeon or the doctor if they had saved it then it could have been tested to determine whether it came out of the limb and brush but it wasn't so he's asking essentially asking a jury to just guess that the personal came from our brush which is another basis but judge clear right judge ocker did not rule he assumed causation and then ruled quite correctly in our view that he didn't they didn't even bother to proceed on or risk utility analysis and it's a simple i my clients salt of the earth people that he's rushed in for surgery to remove a piece of metal i don't think the first thing on his mind his i better get somebody to preserve this the hospital had a three day have contacted the hospital three day preservation period for anything pulled out he was never offered to keep it it was disposed of accordingly it was nearly impossible outside of his direct request in the surgical room well but that i mean not whether he acted reasonably and not immediately requesting it i mean question is whether he now can prove causation right and i and i would argue your honor that that is a question for the jury that sufficient circumstantial evidence has been provided between the incident what is shown up on a c t scan and the resulting that it's pretty hard to even how long after he used the grill brush he had the surgery a month so that aside i just wanted to stress the point that  far as the failure to warn is concerned in the the the dangerous aspect of the brush that there were two incidents of consumer girl brush bristles one by a young adult one with surgically remove the other was stuck in the gum i think that it's our position that that within a short five year