refuse refusing to give it you requested we did your honor and i would further submit that a fair reading of the case law in california let alone in other states which are cited in the brief illinois florida and some right as correct or so can you talk a little minute about how rollovers in the ordinary experience of the average driver certainly i would be happy to hear on it and to give it a little bit of context in the  those types of cases the consumer expectation test has been applied to see that cases where you've got high speed fifty eighty mile an hour in crashes and a c brakes airbag cases both when you are one of those airbag and if so why you got out two issues all address the airbag issue secondly with regard to how this is within the realm of the ordinary consumer just like the airbag cases seatbelt case when you see this what are you referring to the roof pressure on  drives vehicles ok and they have certain minimum safety assumptions based on those vehicles depending on the issue here ordinary consumer has been marketed for the last thirty years s u v s they're big they're safe they're built ford tough you can take them off road the ordinary consumers been warned by all these manufacturers also more prone to rollovers they're also more prone to rollover sacking my point that's where i was going to go it's right in the virus in the visor this thing's going to roll over so you've got a vehicle that's been marketed as ford tough you can take them off road they might roll over i would submit that the ordinary consumer would have some sort of a minimum safety assumption when they're in that vehicle is that roof your roll cage is that your safety cage  and then of few a number of it's as if you were going slow up with it on your consumer go through all of those you know you're on mathematical gyrations no your honor and if that was what we led the court to believe in the brief that's not really the point we're trying to make obviously in a rollover crash there's going to be some defamation of the rough in this case we had a catastrophic failure is that we're made out of aluminum foil mr edwards has his body was ejected outside of this vehicle with no r covering him he was exposed to the elements and getting killed every time this thing rolled over so i submit whether that's us that's a sad airbag issue right kno if you're going to have a roof collapse like that and you should have a rollover airbag in it to help prevent against that but they really are two separate and distinct theories the focus here is with the way these vehicles have been marketed for the last thirty years as rough and tumble vehicles it's just i believe just like the ordinary consumer with regard to the seach i mean the ordinary consumers not been ruminating miles an hour but they've got an expectation i think my seat is not going to fail and kill me or they've got they might say hey i don't know   the argument on the side airbags we weren't trying to pursue consumer expectation test on that theory per se that was more of a response it there you're not pursuing that now are you that there are not with regard to the issues here really that the solution before this court is like with high speed rare and crashes airbags and seatbelts does a consumer have an expectation of what the roof would do in a rollover and i would submit based on people seeing rollovers i've had a family member involved and want to mean a lot of people have experience either directly or indirectly through family members are driving down the roadway and seeing what roofs did and in this instance this in collapse had somebodies body fifty percent out of the vehicle and it didn't it had a catastrophic failures or made out of aluminum foil i think a consumer would say you know i might expect some damage and some dents in my vehicle but i certainly don't expect that and maybe i'm wrong maybe they look at that and go hey all bets are off but i think the consumer an ordinary consumer does have the end result of the passenger yeah the person had a roof over their head essentially walked away they were injured but nothing catastrophic welcome which is is often the case and in these types of cases when the roof collapses the person when the roof dies or is paralyzed when the roof whichever way a vehicle of rolling over whoever is lucky and it's going on the side over first in this case the passenger doesn't collapse the car comes back around and on what they call the trailing edge side that one comes down that's where the roof collapses typically in these cases if you have a passenger driver in a passenger whoever goes over first live whoever goes over seconds dead or paralyze how was the jury out how long was the jury out if please the court emily quatro on behalf of ford motor company the california supreme court's decision school is directly on point and answers the question presented here that has holds that the ordinary consumer of an automobile simply has no idea how safe an automobile can be made for all foreseeable situations and how and when the issue is whether how the structure of an automobile should survive an accident when the question of default doesn't stand for the proposition a product like this should be designed differently the consumer expectations test simply has no role to play because consumers can't answer that question based on their ordinary experience requires expert testimony to illuminating how to design the roof to survive a rollover and argue arguably it is within the common consumer experience to expect that the roof would serve as eighty k p h of sort to protect your head right so it's like the difference between choosing a vehicle with a hard gr the window is down so this is sort of similar to a commercial in this case but even assuming consumers have some expectations that you know they will have some amount of protection from the roof the question of how much three inches versus six inches is a question that really that a roof should be able to collapse and still to protect the gravel so in allocating the risk wouldn't it make more sense to allocate that risk to look manufacture that's why strict why strict liability applies in these cases but the question is what has to be applied to determine whether it's defective and what you're saying is exactly whether respond if a test applies because we need to look at what the manufacturer is looking at when it's designing the vehicle to determine if there's something wrong with the roof and we can't look to ordinary consumer expectations to determine that we need to look at what the manufacturer design in the car do you have then show that the manufacturer expected the rough to deformation and how much the forms is really going to depend on the specific the specific new circumstances of the accident so exactly how many inches of deformation is hard to determine because rollovers well well another word in the structural reasonably design the vehicle to do more and this would also get us into causation because there's volumes of evidence that refreshes in accidents like this one actually caused the injuries at all and so what those these questions are were subjected to a battle of the experts at trial the rough of a hard top not to crush right that kid or next vacation but of course that's not built on you know being involved in two or three rollover accident but so that is so i mean how reasonable for a consumer to expect that when you drive up to a signal on stop then you're not going to explode but who've been in that situation nobody hurt and with what we expect that the way that the california supreme court and subsequent cases expectation test would apply just like the hypothetical examples that the saw case gives where you know you don't expect a car to be sitting at a stop light and then have the airbag go off with no accident whatsoever so were those a race if so why cases but when you have a case like this where we're talking about degrees of repression in a catastrophic accident and the only way you can determine whether that roof performed properly and should have been designed differently is to complicated expert testimony about how the park should have been designed differently that is a case of the sort he's clearly s correct that it's not a consumer expectations case it's a risk benefit case there's no reason to treat this case differently than that when it's indistinguishable and i mean this is if the court even gets to the question of consumer expectations because i don't believe plaintiffs complied with r one to preserve the issue of whether they would even entitle to a consumer expectations instruction they withdrew their requests for that instruction before the court had an opportunity to rule on it and at that point they even if they abandon their theory the fact that the airbag theory was also involved just reinforces the district court's decision because once the plaintiff introduced that national technology that ford was just developing there was no way that the jury could have evaluate could possibly have expectations about that aspect of the was a clear position that the district court had in fact ruled and that ruling was final so i don't know how you could be up here arguing that somehow it wasn't preserved when both sides thought the ruling had been finalized well the it would revisit its motion the many rulings throughout trial if there was a basis to do so and there's no evidence that they didn't present that would be relevant to the consumer expectations test that the big claim that they had that they didn't present and so at the can you counsel address that last point that counsel raise which is that by the end of the evidence there really wasn't any the small evidence to be presented in other words you wouldn't from an evidentiary standpoint try your case any differently then the question is really i did make a profit or trial so i'm not really here trying to argue that i'm trying to you know have integrity and argue what i think we're right on but based on the mansur case which ford relies upon which i think is an outlier case but in that case they talk about the owner's manual and marketing with regard to forming the expectations of the consumer now that's a subjective analysis of what the client relied upon so i think it's a wrong opinion but we did have on our exhibit list marketing materials in the owner's manual to delve into that so arguably we would have put that in the evidence had we gone the consumer expectation test and one thing i want to just emphasize if i if i answered that question satisfactory to us yes sule is the controlling case everybody agrees with that and when you look at all the cases island blow up in the super simplistic racists arguments we make but in all these cases of high speed eighty mile an hour in crashes airbags deploying or not the point seatbelts having inappropriate geometry  submarine under them all of those cases cite and rely on sue all so sue is not limited to that little blurb that unfortunately it's used in all of these cases rowe mine for example which they call they say is an outlier well in that case they petition the supreme court the auto industry and all the auto industries firms father supreme court supreme court said no we're not going to review it then they said well at least he publish it and the supreme court said no we're not going to publish it so i would at least argue there is an implied approval of that i realize that doesn't mean that but this went to the supreme court and had a lot of amicus briefs on it from folks throughout the country in this record said no we're going to let it stand they must've felt it wasn't consistent with school and one of the things that was represented up here that school stands for and  i reject that is it does not stand for if it's too if it's technologically feasible or has been if it issues you can't apply the consumer expectation test that is it is call the consumer expectation test not the complexity of the product test and when people are opposing this they try to argue the complexities of it to make it seem like it's beyond the ordinary consumers expectations or they can't have one but the courts have said the inherent complexity of the product itself is not controlling on the issue of whether the consumer expectation test applies consumers don't understand about sensing systems and airbags geometry and seat belts whether  seat withstand a thirty mile an hour impact or any mountain impact they might not know the engineering rationale behind that just like the rough but we've been driving a long time since henry ford started this long time ago and people have come to rely upon and formulate a minimum safety assumptions i think that in this instance the jury had a right to have this instruction they could have come back and said you know yeah that was a big cra home saved instruction the minimum safety standards we don't we aren't in a position to articulate bright line rules so minimum state to standard in this case would it would be the roof remained on for instance it didn't just peel off but of the the more nuanced argument that's been asserted is that the consumer should expect that  more nuanced argument than then you're advancing i'm not trying to advance that so i apologize if it's coming across that we're not trying to say a river can crush three inches but now today we're saying in this this thing crushed so much it exposed mr edwards entire body our position is forget the inches that's kind of not what we were intending to say in our briefing and i think ford might have put that in their briefs to use against us i'm not sure and if it comes across that way i apologize the argument is in a rollover accident when a roof is essentially your safety cage in your roll cage you're expected to put reasonably protect or not you're going to have some cross just like when you get in a fender bender your car to crash and buckle but you don't expect to die in those things where you're going to have some damage i think it be up to i think a jury has minimum safety expectations of what a roof ought to do not to the degree of three inches versus six i'm not trying to advocate that at all a i think if they saw this rough i mean we we've taken these cars and drop them from twelve inches off the ground but in the roof down of that board take the same car for forty dollars fix on the assembly line and it bounces one in to fit you know tests well we were going to use both in this trial because to be perfectly candid you know sometimes in cases in real mind i chose to give you consumer expectation because i thought you know what i'm not going to muddy this up with