plaintiff failed to establish causation rd plaintiff design expert dr singh should have been excluded virginia was clear that manufacturers are not required to make accident proof products and a manufacture push the crate in the normal course of work or operations so why isn't it just so obvious patently have obvious that if you have a crate that has a general that's intended to be used to be pulled and when someone actually uses the crate in that fashion by pulling on it and snaps and bricks and that and there's appears to be no evidence that the crate was all was damaged or defective although i imagine you might have some dispute about that but why isn't that just so obvious that you don't really need an expert is just clear that for whatever reason the craig didn't operate as it was intended and that caused unfortunately this deceiving step daughter here those aren't precisely the act which it's going to fail and it's the final obligation to demonstrate that this particular container didn't meet the pole or the stent for that particular purpose and they didn't know that but i mean isn't  safety and the safety standard and under virginia was established through either a government standard and history standard or a reasonable consumer expectation and here it's not sufficient that it just engineering background is able to point to the industry norm use testing look at the product itself and demonstrate what the think it can or should have been and how the defendant failed to meet that fine it didn't do that what that would have been or how ever had or failed to meet that price isn't part of the problem here though is that st of all the original crater box wasn't preserved right so we know of it couldn't you couldn't test that  because these are one of a convoy oxes i've met and maybe you can help me on this it either wasn't clear whether or not your clocks would actually produce one or it may have been that the planet was concerned about whether or not the one that they might produce is an exemplar might not actually match up with the exact contours and dimensions and properties and characteristics of the box in question so is the plant in a bit of a difficult position  with not preserved but find it as the discovery or overhead door to produce an exemplar and first overhead or declining and that is a discovery response dated april of two thousand answer as well so if i understand you correctly the issue with proximate cause is that because there was no baseline by which the box there was no status based on respect to any full resistance or you want to call it that is just impossible to prove any possible defect in the box was approximate cause we i don't know exactly how much coal resistance the box was intended to withstand and we don't know whether or not the box was it's not impossible to discern how much pull resistant mr started sort of put onto that it's essentially a math equation that an expert could do knowing that your start of the weight and height and then knowing how much resistance he could have put on that they could have done that testing they could have gotten an exemplar box they could have pulled on the box and see what the resist  with the the physical evidence of it being stored for two weeks not knowing the condition of the flat the fact that it had been taken and over and directly on those flat there is a distinct possibility that it could have pulled off for some other reason like it being damaged and that point and the case where there's a missing product have to rule that out in order to establish  bowling ball bag here is designed to carry the the bowling ball what scientists have not established here is that the ordinary people use the product was to pull on it with all of your m that issue you can notice you know whether or not overhead door was ever put on notice regarding whether it knew or should have known that  users were using that eight feet in the air pulling on it eight feet near while it was stuck on a fork with pine and he was pulling with all this might and that is something that they did not show and that's part of the reason they al choose they hacked it to prove knew or had reason to know about the specific risk and the specific risk here would be that somebody was pulling on  that hand hold eight feet in the air while stuck on fork with tines with all this my and that the handle would break and they had no evidence that ever had or had any notice of either so this price of the crate had been on the floor and in fact this happened apparently according to some it wasn't in the record record testimony but the person was working with the deceased and the deposition or somewhere testified that he had pulled a cra right about the peculiar conditions but a suppose you still might have an argument about the condition of the box before it was handled by that particular by that person there at the fair that's fair ju will they only were provided to washington overhead door which is not the same thing as overhead door overhead door never had noticed  understand that but apparently that was standing got a can all that stuff in front of the jury and i don't imagine that was helpful in any event i think that i'm very much every time i'm happy to answer more questions or call it dumbed down one of the components in a matching what happens with products liability case every manufacturer will be free if they wish they'd well established well researched and consensus standards with respect to the design defect claim doctors saying responded to judge give me when asked after just given they had described the crater box in this case whether that standard of plod and as i read the record at five hundred and thirty nine dollars and he says no that it didn't but you'd still have to to test but never of fire a particular testing standard or whether or not a box of that type would meet the standard so to me that raises a threshold dogbert question here  looked at the initial ruling of the of the district court before trial wish to say that its brief is maybe to give it too much  credit even though it acknowledges that there are legitimate questions raised about the the expert witnesses the district court simply says well you know that's that's for the jury to figure out using cross examination but under our dahmer president the trial court has an initial gate keeping function to assure that the expert witnesses testimony is reliable on its or all of it when it submitted to the jury and it looks like in this case that the district court simply abandoned its gate keeping function so how do you answer that and how can the case go go forward if if the trial go trial court simply says well you know my dumber gatekeeping function i'm now ceding to the jury to determine based on cross examination where i read the record us to was soon the trial court went through the litany of things you've described we look for some sort of record evidence that it actually did it and said that suppose that if there been no handhold there you know accident in this case but i don't think it's fair to say that simply because a box has a hand hole that that makes it per se defective i mean the question is the did company when deciding to include a hand hole as part of the design of this box account for the particular circumstances or how these boxes with the manipulated or years during the course of normal operations and so that were presumably require some level of understanding of how much pressure a worker might put on the box during their normal course of operations of course your colleague on the other side says at this particular day these workers who are operating under why is it up to the jury when it's your witness to decide which of the two stories is correct if they're choosing between twenty two dollars opposing experts they certainly do that all the time but you no question and the only question is can or had or decided to ignore the safety standards contained in order to create something else that is known from right i know that we don't have a great year two components of this problem because question was the but for possession and the other one is the question as to what the condition of the box was on the day in question and whether or not that there was something that intervened to perhaps weaken the structural integrity of the box council i'm a little confused the are you saying that with respect to dr shanks testimony on the ultimate issue approximate causation you did or didn't make an objection threshold argument because if there is a dahlberg failing going to go forward to the jury other than mention in your brief you don't seem to be particularly excited  out with you the st one was that you're essentially requiring the plaintiff in this case to sort of account for each minute and every hour of the day of a product from the day it leaves your client's warehouse that it shows up at the work site in order to disprove  a negative as he puts it does point number one and then he also mentioned that your client's representative at the thirty six dollars deposition essentially said that agreed with the notion that the consumer would reasonably expect that if he or she pulled on the slab that it would hold and that you know that seems to me just to be correct as a matter of common sense so i i don't stand or not why wasn't there a problem here with respect to the design of this of eable misuse and here it's not foreseeable that somebody would use that container in the way that mr started that not all handle are accident money when it's up on something particularly when you're that high in the air it's a tragic event that happens with mr started but it's a tragic accident a freak accident if you will for lack of a better term but it's not something that overhead or knew or had reason to know about or anticipated that someone would use their handle and hold in that particular fashion so in this instance it was not a you answer your question on the reading book consumer expectation that have to be cabot and it cannot be just you know a reasonable consumer and point to a generic statement by of roadmap for what that i think the standard would have to be for the handful the whole if i had a car and i was pulling on my door handle and i was pulling on it it was an opening and i decided you know it down in the se i think that your example answers that question under virginia law they have to establish a safety and the safety standards have to have some sort of objective measurement and this particular