wings level harper is going back to the next thing that we know is that the piper aircraft has impacted the ground on a different heading sixty degrees nose low there's no dispute in this matter that there was no mechanical problem with the airplane there was no medical problem with the pilot there was it was not known what happened there was b investigator found that there was no strike let me ask you a question about the hypnotically refreshed recollection of the survivor am i correct in understanding washington state law to place where the case is tried this is not a competency issue as the supreme court said a rock it would be unconstitutional for a state to bart have a blanket bar for this type of testimony and the the especially when it deals with one of the individuals that are a party in this case michael palm quist is a party and one of the i think that the distinction heard me that the trial judge tried to do was adopt the fifth circuit rule in march which did something very different than this this court does first of all it put the burden on the witness or on the party offering the testimony to prove that it was consistent with the other evidence and there was no problem with refreshment the second thing is it required corroborating testimony or proper aiding evidence in this case and in the ninth circuit that has never been to the position of the court rights to due process are applicable in civil litigation the admissibility of hypnotically refreshed recollection under the ninth circuit rule applies the same to civil litigation as it does to criminal that issue the supreme court case that rock applied to the constitutional right of the defendant to present a defense in a criminal case rather right so present a defense that an application would be unconstitutional violating the fourteenth in that instance but i'm trying to know first of all i don't believe that's an issue in this case i don't believe there's an issue that the washington evidentiary rules apply in a federal court in washington pardon me suppose they do ok if you suppose they do these that this court has found that in the ninth circuit court of appeals under man cuso that credibility or foundation is not subject to challenge it's second to cross examination so long as the hypnosis process i don't believe that it would be a violation of due process or oh let's get on to whether that one back to the court would be correct in rejecting this hypnotically refreshing recollection because of insufficient foundation how does the trial court abused his discretion if it did exercises discretion in rejecting this testimony ok first there was no challenge to the propriety of the examination there was no new evidence on the validity of hypnosis refresh recollections their only expert was the same expert that provided testimony in the same testimony  that there wasn't anything new the court specifically found that it wasn't making its finding based upon any defect in the process it just found that there  recall recall something because of a lapse of time or something to trigger the memory or whatever that's subject to cross examination isn't the judge's gatekeeper if he if it were a trial if he'd done after the trial and he'd seen the witnesses and so the i choose not to believe michael palm quest then he within the scope of his of his discretion as a finder of fact as it's a federal court claim so tried to the court however at a summary judgment basis the question of credibility of a witness and this judge specifically found he was very brave and straightforward about it he said i don't find him credible all i think he could make a finding that said the hypnosis process was defective and was improper and therefore i'm barring that testimony but he did not do that he did not find that there was anything wrong with it he not only had the transcript or that we typed of a transcript he had a videotape to watch it it's in the record here albeit it's difficult to hear so it's a lot of work to put together the transcript but it was nobody was hiding anything everybody knew from space where i want and now the question i want to cry to is also corroboration now the defense of united states was to see seventeen aircraft which is a very large airplane evidence the air force denied that their plane was ever there i were never able to depose a crew do anything but issue that the discovery was supposed to flush out of the proximate cause was for us to provide evidence that there was a c seventeen there we did that we found two evidence two witnesses mr diver who was a farmer of south of wilbur who saw the airplane coming north bound and turned to the west west the wilbur north of wilbur and mr loft on who was a straight line it was one minute from the accident site that time was consistent the location was consistent there was this there was no other explanation for the crash the expert we had went through and talked about all the possible c listening and looking at it have a question in their mind a legitimate question as to who is right so it should be the all the evidence should be heard the witnesses should be heard the discovery should be allowed one of the real issues here there's no question nobody says that these airplanes came to physical contact if you look at our two forty seven it's a scale picture picture of the two aircraft the difference in size there was no violation of a reg or any regulation in doing so they could have been flying under visual flight rules right over that ranch at the altitudes alleged but that wasn't the basis of the summary judgment the summary judgment was entered on who the basis of no hundred feet had to do with this ground track is not this ground track this altitude is not this altitude they both can't be right but even if we take all inferences in favor of plane just as we must for summary judgment it could argue we could argue a plane that crashed where was that on here the the that aircraft was doing a number of turning maneuvers over flying private areas of overfunding props and then dealing with crop crop questions so i'm not going to be at ten thousand feet at that point that close to the airport all that shows your honor the two witnesses all they show is that they say a c seventeen was headed in that direction at some indeterminate altitude to be two hundred feet and nine hundred feet we don't know what the altitude of the piper aircraft was we don't know its precise heading we don't know what the few seventeen did after that point it could have turned around it's like saying i saw a truck go down a street and four miles later there's an accident it must have been the truck now one minute later which is probably blocked i mean part of the you know four cause the only thing you get even if the hypnosis hypnotic testimony was admitted it is that you get a fellow who says he saw c seventeen right in front of him that still doesn't establish a duty or breach of duty on the part of the c seventeen pilot because you design of the c seventeen and that's more than a million hard copy documents that had would have to be produced so we bifurcated discovery and they sought to depose all members of this crew of the close talking i don't need to depose any other crew members we also offered to provide statements from crew members we could obtain them from whatever theater of the war that they were in to to support the aircraft commander who said we weren't there  they might exist in the air your honor there is or is there some rule road that big planes have to give right of way to small planes like the like the ships have to give your honor there was no evidence of a any statutory violation of the aircraft that purported c seventeen by virtue of it being there they argue that that for some reason that there are craft would have been favored no matter what  it's absurd if you look at this the federal aviation regulations forcing c f r ninety one point one one three and its counterpart in the air force air force instruction eleven dash two zero two paragraph five point five clearly shows that the late least maneuverable aircraft has the right of way that's why balloons can't move out of the hot air balloons don't move out of the way of gliders that's why gliders don't move out of the way of a fighter aircraft and when you've got something that weighs six hundred thousand pounds week span of one hundred seventy feet it does not get out of the way it cannot physically get out of the way of a piper aircraft i might add also you were just telling us how quickly turn it turns its turning radius to thirty two hundred f pipers is under two hundred so even if it's even if it was there even if pop was testimonies accepted as admissible after hypnosis he sees that something flashed past basically right in front of the cross left or right that doesn't mean there's no evidence of a breach of the duty to see and avoid on the part of the c seventeen first you have to see him where is the evidence that the c seventeen should have been able to see him because prior to that instant we don't know where it was if it was there at all which was it could have been banked away could being bent towards it there's no evidence that a visibility was no ground track there's no radar information nothing shows that there were that there was a breach of the duty to see this piper more importantly even if there was there degrees and then you still have to travel and wait behind the skins for miles you don't have so suddenly you know the argument that they made is not supported in law and it's not supported by the facts there is no evidence company and i will keep my remarks brief but first mr leggett i believe during his previous remarks to this court indicated that his expert witnesses have excluded all causes of the crash other than wake turbulence if you look at the declarations and specifically look at them after the portions that were excluded as reliance on the post hypnosis testimony at best the remaining declarations exclude a mechanical malfunction and taking them in the light most favorable to the plaintiffs exclude the possibility that the pilot coddling him there are many other possible explanations for a plane crash that could have occurred and based on the evidence that was in the record it would be speculation to assume that the only other thing it from that declaration was also struck as reliant on the testimony so that that is one of many levels of speculation that the court would have to trier of fact would have to engage him to determine that a c seventeen was in an encounter with the c away rules of any other vehicle and in this situation you have a southbound piper aircraft and a westbound c seventeen aircraft which makes the piper aircraft a favored dri warning that there was an airplane out there and a warning to the testimony of the aircrew even though they say they weren't there and we don't know where the air force has their c seventeen is that they supposedly know where they are all the time they said that behind it behind that's correct so when it goes across a section of land and this is a problem with flying that low with this he seventeen aircraft and they have warnings that they give out when they're frankly into