we have one case on the calendar this afternoon rogers versus beechcraft corporation them for seventeen dash five zero four five and counsel appear to be ready so let's proceed on march of two thousand and seventeen i want to focus my arguments today on three primary areas that the district court erred in granting summary judgment first by improperly weighing the evidence and misapplying the law as a relates to pull force testing that took place on the aircraft to deploy the alternate landing gear seconds that the court impermissibly way the evidence relating to the restarting the electric generators in the aircraft beechcraft r v two six six did not crash because the two engines were inadvertently shut down it crashed because the landing gear specifications were within the range that each craft had established and whether that that left the aircraft in an unreasonably dangerous condition we believe that the court mis appropriately weigh the evidence in the light most favorable to the defense and i just ask you on this landing gear issue are you making an argument relative to your design defect claim your negligence claim or both are simply a product and to the extent that you your side of the case at least had some expert testimony excluded is your argument based on the evidence with that testimony excluded or with that include with it include your honor ok so you're also arguing i take it that the court erred in exclusivity your expert testimony that's part is that part and parcel of this testing that they had performed on three exemplary aircraft that showed that the full force requirements far exceeded the specifications of each craft the court allowed that testimony in did not limit that out we're believing that based we can rely on the cunningham case and that line of cases that say that if a a individual a product user is given the right to have heeded the warnings that were provided  the privilege of hindsight so they were pulling the thing as hard as they could and had ranges between a hundred a hundred eighteen and a hundred twenty pounds before they ultimately did deploy the question of whether they deployed or not i think your honor isn't  order for them to deploy it far exceeded the ranges that beechcraft themselves it's out as was my age why wouldn't pilot caves pull as hard as he could under those circumstances just like they did in the tasks we have to presume pursuant to cunningham that he using the product the core in this case wrongfully infer that mr k s misused the product that's that that's the inappropriate inference that the district court made any downgrading the use of the alternate landing here but the with respect to process the causation if it doesn't have to be the factor as long as it is i just i just asked for your evidence i didn't ask for a statement a lot what's the evidence that supports your claim on the gear only was down with mr k s knowing that that was the only condition of the aircraft and knowing the checklist he would have done all he could do so we know that we have knows you're only and we know that three other exemplary aircrafts could not function and exceeded those specifications so we know that that was inappropriate secondly we know that the airplane flight manual and the the full handle its test itself had no identification as to heart how far out to pull that handle we know that as a matter of evidence and in this case with no electricity in the aircraft mr k s had no way to know i extended which as a matter of federal law f a a determines that if a pilot is to be able to know the condition of his expensive landing gear at all times because there was no electricity there was no way of indicating for him to know that so he would have tried to have all had there been there was no indication on the handle how part was pulled we know that that's a defect we know that he pulled it out far enough but why he didn't pull it out we have to believe that the defect in the aircraft the pounds necessary to pull something a hundred twenty five one hundred twenty pounds we saw our experts literally shaking with two hands to try to extend that that is not the op that that is a failure in the design of the aircraft and think that the court has improperly viewed in the light most favorable as i indicated there was no indication anyplace on the aircraft and that is a complete failure of c f r title fourteen twenty three one fifty five are we on your second point are we still on the first one that's the second point ok so i'm going to sure that that is point number two that the alternate landing gear that there was no reference in the checklist it was no reference in the favorable to the fender and not mr caves the fact that the circuit breaker was on and the handles on is important for the primary reason that if there is electricity in the playing that you don't want to have electricity that's telling the alternate landing gear to do something then what you manually trying to do even beeches on experts said that the that the fact that the circuit breaker was on the switch was on has no effect because there was no electricity in this aircraft that is just a red herring that the defense will have you lose use a indication in this case but in all the testing we tried with the circuit breakers on the circuit breakers off and found that that had in the condition of where the aircraft was at the time had no effect on that so what you think there should have been alternate he would have been doing that your honor because again we know the evidence is that he had knowledge that the nose gear down was only in the single formation that would cause this aircraft not to be able to land my my third point your honor is this respect to the court in appropriately weighed the evidence related to the airplane flight manual as to turning on the electric generators we have  could have deployed the landing gear again the aircraft crashed because there was no landing gear available to him and so mr cave's was left in the untenable position that he had to somehow first of all try to start pulling here and there is evidence that contradicts how in fact you were supposed to start the generator the appropriate checklist should have been for mr cade simply to after he got one engine started to hit the reset button on and the generator should have started but there was no electricity and again we can assume that mr cade's understood that checklist that's the rebuttal position that we have the court again took the defense experts position t case simply didn't know what he was doing we here on beechcraft own test pilots in their audio as they are testing and in fact your honor we have evidence that shows that they tried using that exact same checklist and engine did not start we hear that beechcraft test pilot actually communicating mr t he would have known how to do this he did this a hundred times but it didn't start and so we know then we have a defendant's pilot expert mr gibson who then says after we found the defect with their test pilots can start it he then changes checklist and says you know we probably should have used a different checklist checklists are made and this is what been emergency to be clear and unambiguous for pilots who are in this exact scenario if the engines if the our electric generator didn't start as a result of mr k s having to try to figure out which checklist to use the nat is a failure in the product itself i'm going to attempt to reserve this rest of my time  landing gear planes that were surveyed by the plaintiffs the plaintiffs have three main claims the first is that there was a manufacturing defect on designing the alternate landing gear however the uncontroverted evidence was set this alternate landing gear system was tested extensively at the factory before it was delivered to the first fire the poll test was fifty three point seven we believe their experts were trying to induce a higher pull force but even if they did properly tested it doesn't show that this airplane had a higher than sixty pound pull force or the danes thing above sixty pounds is somehow defective or was there any evidence presented that the pull force required can increase with u over time yes what we put in our maintenance manual when the airplane comes in is if there can be some degradation in the pull force if it's above sixty four pounds that's when you're supposed to make adjustments so at the factory it's sixty four excuse me and sixty pounds out in the field it's sixty four pounds it's first tested out in the field at six hundred hours when the airplanes got six hundred hours on this airplane had a little over four hundred hours so it hadn't even been tested yet or do it one old enough to test and in this case it didn't pass that debris can get in the well well and that can degrade the pulp force however as a district court pointed out the plaintiffs experts said no testing of looking at anything in the guessing that maybe the whole force was excessive in this case the design of the well well it was approved by the f a a and it was certified as passing the regulations there's got to be certain requirements to safeguard items in the well well frankly in case a tire blows that's the reason behind the regulation is you don't want it affecting other systems and since some of the alternate landing gear system goes through the well well it's got to pass the it's got to have certain shields design defect was there evidence maybe it was argument but that let me just ask this question  that the aircraft lacked an indicator to show whether the landing gear had deployed no absolutely not in fact this airplane has what's called three green it only pulled part way back he only had his nose wheel down at most he had one green light now every pilot is told if you don't see three green your you decide like you can roll down the window and look out and see if the gear down you've got a look at the pedestal and see if you have three green lines and we know the lights were working they were working there'd been no  lines were working however once he shut the engines off the generator shut off and he was on his aircraft battery those three green line which will still wind up on the main battery however in this case he is which the battery to the standby battery why he does that we don't know because he wasn't following any  m specifically says if you are on standby battery the indicator lights do not work that's what it says in the f m why does it say that because if you're on standby battery you're on the last electricals shores for the airplane it's only going to serve certain not items on the airplane it will not light up the three green lights so here's what we know with mr k s if the the plane that says a battery was on the main battery if that's true then at most he have one green light and we know air traffic control told him hey you only have one gear down so anyone around so based on all of the evidence we know he knew he didn't have a severe down we think he didn't care whether he had his gear down he was intent on getting the airplane on the ground and that's why he came around so quickly after his first fly by over the runway he climbed any came back and medial rather than doing what most pilots would do which is fly and gain some time to think what you're doing if measly came back around and decided to put that airplane on the ground then he made a fatal the airplane did not have a manufacturing defect when it left the church pass a test there's no evidence that it had a design defect and the judge that the district court properly excluded his two experts on the design theory those two experts were mr bloom till then mr summer neither one has had any training experience background into science  designing landing gear systems or alternate main gear systems and the judge after considering seventeen hundred pages and two days of actual test hearings concluded that these two experts were not qualified to render any opinions on the design of the airplane and furthermore the evidence was that neither one of them looked at the will well to see if there was any debris or anything that might have increased the pull force on this airplane what we know is that when it left the beach it was at fifty three point seven pounds it may have increased somewhat but even if it's in the sixty's there's no evidence that that's and the fact there are many airplanes that have pulled forces far exceeding either sixty or the sixty four pounds that's kind of in our arbitrary limit that beach set that there's no federal aviation regulations that says a pull force asked to be x pounds and the honor i don't think that in titles him to just make certain assumptions of what mr cave's did in this case in this case we know the alternate handle was pulled partway out we know mr case received zero training on how to deploy it zero we did we depose the people that he went to class with there's no evidence he ever deployed the alternate landing gear system ever this was his first time i don't think this rebuttable presumption in titles him to say what we can speculate that may be told and what we what we also know is that even with their experts pulling the alternate landing gear at one hundred pounds or one hundred ten pounds it's still deployed every time but there's no evidence this airplane had a manufacturing or design defect to it and she noted that we have never received any reports  pilot has been unable to use the alternate landing your system on this airplane in all the years of production of this are plain we've received no reports that it's too hard to pull this this  with respect to the last defect claim they have on the landing gear they are as i understand it their claim is that the handle that's as pull should say pull four inches or pull sixty four pounds  that's the only thing i can say on that is that it gives the direction that you're supposed to deploy the handle you're supposed to pull it there's nowhere plane that i'm aware of that says you should you should declare poles sixty four pounds or pull four inches i don't know how you would put that on the handle and expect the pilot to comply with it he's not supposed to have a take major ruler in there to see if he's pulled it four inches when he should do it pull it in tell it stops that's that's what they're taught but in this case mr k s didn't go through that training so in this case he pulled it back about two inches with respect to the generator issue this is another one where they say there's a revival presumption that i don't quite understand there's no evidence that he tried to reset the generator once he got the engine started there's no evidence that he did that you don't have to reset the generator you can just operate on the battery and that'll provide the electrical power but in this case the generator was not on what they claim is that we should have given veterans fractions on how to if you follow them literally three star general know well that's what they say but that actually there's two different checklists he didn't follow either one your honor there's in engine shut down or failure in final in flight checklist there is no evidence he followed that and he did shut down the engines the engines don't know whether the pilot intended to shut them down or did it by accident in mr davis shut the engines off by accident but if he had followed that checklist he would have turned the generator to the off position then if he decides once he gets the engine started that he wants to reset his generator there's an air star trek class that you go through to restart the engine and one of the steps is to turn the generator to on reset on and that will turn on the generator there's no evidence he did that he followed any trick was sure that he even attempted to reset the generator so didn't i'm maybe i'm getting confused on the record but i thought that that each his own acts for tried to follow the air start checklist and following precisely what it said to do and the checklist was inaccurate that you had flipping it up to reset and back on except for one time and that one time the pilot said all right i'll shut it off and i'll put the back on and it came on so in this case every time reset when this switch is kind of a three positions which the main position is on if you want to shut it off you flip it down if you want to turn it on you flip it up any goes all the way to reset and then it reset automatically to the on position one time it didn't reset and the pilot it's like a light switch you don't flip a light switch it doesn't come on you'll shut it off and flip it back to see if it comes on in our case we we actually had those checklists we said on the engine failure of the engine shutdown or failure in flight checklist you should turn the generator switched off some pilots may decide after they've shut down that engine i'm not going to  see three green lights down their own electric last expert indicated that when there was no electricity on the aircraft as the case as we had with rb two to six that you could not in fact see the three greens there would that point then be no indication as to what the condition of the extended landing gear is they hypothesize he could see one you could see two with no electricity missed beechcraft only electrical experts as you cannot see those three greens there have to be some other indication and that's where we stay if you could at least have some sort of marking anything on there that lets the pilot know that he has extended that whole handle far enough to make that determination that it's been extended far enough secondly the question would be what would a a reasonable pilot in that scenario expect as it relates to the whole force of that test this consumer expectations house it's the test that this court and the oklahoma court have adopted with the determining whether or not there was a product defect or not when you evaluate the coomber of the consumer expectations house when you look as to what it would take to deploy that landing gear a pilot would have a right to expect the aircraft to function in specifications from which it was manufactured in this case we know that that from at least three exemplary black craft that exceeded the expectation of that pilot even as a pilot is is in a scenario where we are saying mr case has no hydraulics he has no lights yes no indication he's trying to fly the airplane with one hand on the yoke and pull with the up with the his other hand to try to deploy the ultimate landing gear pulling as hard as you can it has to be expected that a pilot in that scenario understands how far they're supposed to pull that full force handle and they fail to do that mr saunders and the district court was critical upon keyes training mr cain and i think the testimony of the evidence is bent he went through all the training and all the material nest necessary to be tight certified in this aircraft ever bubble presumption means just that it can be presumed that he knew how to operate this aircraft including a mastery of all the checklists that's part of what his training and certification was required of him and i had just asked you a question about the relationship between the district court's rulings on your experts and summary judgment you really haven't said much about the former and what i'd like to know is if all those rulings stand on pellet do all of your arguments this afternoon still hold none of the arguments that i have made today your honor our condition upon changing any of the the lower court's rulings with respect caspar title three shape that clarification