and so i guess you have to argue that this should never have been a trial and that he was totally wrong on that or are he was just wrong enough that that's that's the first argument on the summary judgment but but that was moving toward the trial and i i don't think any court in the country and i feel i've looked long and hard on lexus has found that that anything come you know close to work what we have here which was a nine point three slope over thirty five percent accepted the testimony of the defense expert who said if it can cloud it's pretty hard to overturn that kind of a determination i don't know i have no idea which expert was history to the case everything those are normally and they get to a trial and each that produces an expert and they're both qualified people and one tells the judge the slope is eight case we have we have such disparate reasons for the conclusion conclusion then one expert is better than the other that that it centrally provides no principles for the district court and allows them to rule however they morning your honor to meet please the court i'm mark peters and i'm representing defendants in a police there was an issue that ran throughout the entire case that went from the summary judgment stage all the way through the trial and that was how to measure the slope of the ramp  were several ways to do it you can use a transit you can use a tent template straight edge with a level on top of it you can measure the rise and run and do the math or you can use one of these new tools that have come out called the two foot quote smart unquote inaccurate way to measure the slope of a ramp that had carpet on it and that's so because in measuring such a short run it only takes a very minuscule bump at the uphill end of the level or at or a truss at the downhill end of the level to throw that measurement completely off to take a compliant ramp and show that it is in excess of eight point three three plane as advocated throughout that the court adopts a standard that the court in  legislate a standard in added a dag that if they could drop a tooth with smart tool anywhere on a carpeted ramp and get a numeral greater than eight point three three that was the end of the factual discussion the trier of fact didn't need to do anything else didn't need to consider any of the other methods of measurements didn't need to consider problems with it and this is a standard that would benefit the claims far in eighty eight cases tremendously because as shown here they can take a compliant ramp with the smart tool and what they do is they walk around with it put it all over the place until the the bottom line you like better yes yes absolutely but even with mr skaf we argued that the one section that he found just wasn't an appropriate way to measure the slope of that ramp which  there were three iterations of the ramp in question mr skaf was measuring the latest iteration of the ramp in question there was other testimony as to the prior to hitter ations of the ramps how they were constructed and that none of them exceeded eight point three three i would think that that party would be entitled to a reversal on appeal regardless of what happened at the trial because you never should have been tried and the court would we managed to have a trial that's already taken place i know you wouldn't have a trial i think they're right but i think getting back to judge wright harsh point if in fact the opposite result had occurred if you lost a trial i suspect you'd be up here arguing they should have granted summary judgment for you but we were we were and so this inconsistent result harder approach a trial we didn't try to weasel out we made an argument on the motion for summary judgment initially that you know this is close enough and if the court looks at the order on the initial motion summary judgment the court said no you can't be close enough or go over the ramp slope limitation and it's ok because it's not preventing anyone from acting the court ruled that we had to prove that it was correct and we did she spend a lot of i defending this case why not just build another ramp that was clearly in compliance because my clients believe that there was nothing wrong with that there was there was quite a bit of it's the principle in this frankly was an inappropriate economic decision was a correct economic  theatre like this and you can't make these were former balcony that were made into auditorium upstairs and eight exit when you do that if you employ an appropriate film rotation policy that's all right and that was one of the issues that the court found in summary judgment that we figure out whether it matters later said just get my mind clear on the facts here at emory judgement where there are really two records one is that it it and both of whom said it's not eight point three and one compliant throughout except for one short section he found that he could measure at about nine percent and he said he'll find is that in his experience that was routinely found to be permissible under the constructional construction tolerance obviously have different measurements here and they appear to be the result of the manner in which they were those measurements were taking and that has been our song that's for the entire case that you can control the result by the way that you measure and using these short as i understand you are going to play us now it is that mr mcmahon acquired standing by his use of the theater before we owned it and the testimony in the record before we owned it is that mr mcmahon was a regular patron of the theater he used the ramp in his wheelchair without assistance and without incident at all times that's not you know and countering a concrete barrier to access or suffering a concrete injury so i don't see that they can bootstrap in with the pre ownership our ownership conduct of mr mcmahon where he didn't encounter any barriers to access and bootstrapped and then as you know once we owned the theater only concrete injury alleged by mr mcmahon was he went to the theater to see a movie that wasn't showing in the accessible lot of story and the judge found that because we employed the film rotation policy that was not an actionable claim in any event finding on standing would be harmless error if it was incorrect because all of mr mcmahon claims were decided identically against mr briggs when they were they were the same claims that there wasn't that there happens to stephen that there wasn't any space under the sink and both of those were that that seems to me to be a fairly ordinary decision of a court in dealing with defendants who through no fault of their own are left on them as they approach trial with no expert so i don't see any obvious prejudice or any prejudice at all plaintiff's request to substituted an expert at that time and to on till today they've never explained why they needed to substitute an expert they had needs a little who was an idiot compliant expert and they had mr class who was a construction complaint i'll deal with just briefly there were two half and half hearted i think is a charitable way to describe them requests when one does show that the locked bathroom door was a violation of a dagger the court didn't allow that because there was no standard anywhere that said that would have violated ada aggravating and it was never pleaded plaintiff's attempted to bring it up at trial for the first time as to the attempts to bring in evidence about the hardship exemption there never was an issue about hardship exemptions this goes to whether we could create inaccessible auditoria when we remodeled the place and you have to have a hardship exemption to do that mr camp in isn't that a legal question whether the regulations when they talk about dimensional tellers whether that means you can have a small portion that deviates from what i think that what he was talking about the approximately nine percent i believe that the ramp is compliant with the requirements of the eighty eight and either based upon department of justice construction tolerance rules now number one it's not his job to make that legal finding it was the court's job to make i don't know i'm going to make the argument this panel that this court should do precisely that and the reason is in part what was that by a police council which is you know when you have a right that comes up for it and you make and you do the measurement if you're on the in the real world but if you are going as a matter of law and there's a regulation that seems to be on point that allows that that how can you say it's a legal error i don't see that it allows you to go over the standard i think the one to twelve the eight point three three trumps any of the constructional challenge rules what's your best case found that you don't have a case either way on that there's a regulation and there's no court case it doesn't mean that the regulation is ineffective the edict controls in general of whether or not it complies not whether or not the regulation if your argument was that the regulation is inconsistent with the statute that wasn't preserved trial it doesn't seem to me developed at the time of summary judgment isn't that a problem i'm not sure it wasn't developed and i didn't i didn't look into it because there was only one answer that the police gave and the answer was that it raised a genuine issue of fact right but see that's the problem with that it's that that decision alone is not reviewable and that's for some legal air and you started off i thought had to add an extra sting argument that there was a legal error because as a matter of law you can't consider construction parsons but i just looked at that experts that correlation he cites that he cites the regulation if hatch as the regulation the regulation provides for construction tolerances and so the only thing you're left with this to argue that the regulation isn't permissible under the statute