confusion i want to point out that at the time of this incident ms wells was not yet married and her name was co writer so you'll see pleadings and documents in the record using both the name writer and well as you know this is an appeal from the district court in utah granting summary judgment after the court excluded two of the plaintiff experts on liability we appealed the exclusion of both experts and the subsequent grant on the motion for summary judgment ms wells was severely injured when as a passenger on a personal watercraft operated by her aunt she slid off the rear of the personal watercraft and their lower body or d came into contact with jet dressed this is known as corpus injuries this is a known has here in the industry how exactly has decided to address it primarily through what's known as uniform label which is on personal watercraft by all manufacturers and it states that  this distinction between sliding and falling what do you mean by sliding do you mean her bottom slid on the seat and she went off or do you mean her that was wet from the slamming and so it slid off  was your bottom your honor and there is a dispute in the record but for purposes of summary judgment we're evaluating our experts should be taking the light most favorable to wells and what she testified to in this is on the record at clear from her perspective she simply slid off the back into the water she actually described it or another witness described it with her her legs were apart and she she looked like a when there were reasons to believe it would not be complied with and not try to design a product with this would be less likely to happen to guard against those so under your under your theory do you have to prevail on your failure to warn conclude simply based on the description of the observation of the two seats that the the standard seat  only expert testimony you know how saki certainly didn't enjoy that theory right so how did how do you win with your failure to warn the expert without your other experts being able to testify that the design was bad and that it should have been an alternate design well the courts have ruled that where a you don't need any specialized knowledge a product effect a jury can the alternate c would have been better or anything like that absolutely that would have been improper and she specifically said i have no intention of doing so i mean obviously we're asking this court to overturn the district court i'm both a to make certain that an expert whether basing testimony on professional studies or personal experience employs the same courtroom and voice in the courtroom the same level of intellectual rigor that characterizes the practices of an expert in the relevant field what what was the what was the background that gil relied on in rendering her opinion in the case i mean because she she didn't talk to any people who use these water craft to see if they notice  or complied with warnings well she read the deposition of people who use these watercraft were people specific to the incident though ok but like she didn't go try to take a  sample of one hundred dollars people or whatever a statistically significant sample might be to determine if if they disregarded these warnings correct in her opinion was in contrast to some literature that suggested that the warning was appropriate the literature suggested the warning was understood by people who  that people didn't read the warning she did but i don't think her opinion relied on that her opinion relies on the fact that people are not going to comply with a warning like this because the factors that she goes through the opportunity cost the the perception that it's a product that's perception that is not going to be dangerous the observations of other people using it without the safety precautions all those things are known in the field of human factors as as indications about whether or not a person is going to comply with the warning and you know the power socket did not say that that was  testify to sensor different simply by basing on his experience or as we saw in the last case that was argued this morning and police officers in testify had a turn signal it's less than two seconds after two clicks is less than two seconds without publishing in that field experts get a lot of expertise through experience and i was asked do you know what was misc ill six theories that she brought to this and she's been working in a variety of applications in human factors for over thirty in this case is the penn circuit opinion and smith smith versus single so or a hand where an expert in human factors doctor kearns was allowed to testify based on a review of depositions and scary materials that ingersoll ran fail failed to conduct an adequate human back to its analysis of the milling machine before marking it and the court specifically noted quote it should be noted that the human access expert in that case did not possess st hand knowledge of the particular machine it issued with st hand knowledge is not requisite is not requisite to the it missed ability of an expert opinion and is cited dullard so there's a variety of factors that need to be considered in any in any analysis and to to go off on one of them that there's not a peer review study and then say and you didn't do a survey is way too restrictive an expert you know there may be a reason that the expert in smith should be allowed to testify ms hill should not be allowed to testify but this the district court in this case never gave its reasons why that main opinion elling to employ the safety  higher was not admissible so we can't this court can't review and say well it's one thing in smith and a different thing in ryder or wells we don't have a factual record where the district court laid that out for us so we would ask if you wan controls regulates the design of all recreational boats america the united states coast guard wanted it was interested in it because there are a number of different person warcraft manufacturers they're interested in all manufacturers standardizing you boating safety course in utah is told this is given the same instruction so when you're faced with a unanimous twenty year long consumer consensus from all of these organizations that this is the way to address this over twenty witnesses here but you didn't read it in the rest of them so she reaches for depositions those no other work whatsoever and says you know what all those other guys they got all wrong this warming is no good it's never going to say that the use of this label was the generally accepted way to deal with it yes you are right and so your position would have been and i assume before the district court that ms gibbs position was not generally accepted this gives or does not exist and that the that the publication and peer review on the issue are actually contrary to what her position was correct or several public appeared viewed articles a matter of fact  you would argue then you know violated existing was was contrary to existing standards in the industry i would certainly argue that it was not generally accepted and i certainly would say that when me when the coast guard who brought up this idea of having a standardized label it would be contrary to the position taken by the united states coast guard of the position taken by the national boating safety advisory council the advice of the coast guard safety i mean those are those are and it's one thing if you're a coast guard employee and here we have a sixteen year old girl who's on a family vacation in a remote location not a  lot probably like on the canyon side does that matter i mean she reads ten let's say that she's a sixteen year old boss of her parents around she reads a label and says we're not using this product until we all get wetsuits that's just so implausible and she just left her own devices in other words if there is a seat that would protect her why would we rely on a learning well number one she it's doable but we have a society have decided that certainly particularly for protective equipment you know where you've got to have the gear before you go up that's a that's a particular particular place in which warnings are the appropriate response you need a helmet where you need loves where you need a wetsuit bottom tell before they go and i think you mean i think i think that you could you know you could think of dozens of situations in which you could american society were you know response that if you tell him in advance you know what to do you put a warning on the product of the war even manual for you know as our british made clear they were just told once i mean that here you know fundamental if you look at these two experts you have one person who basically would fly in the face of twenty years of consensus of this is the way to solve this  what he set is mister gill may be an expert on labels and safety warnings but she isn't a label but she's on expert on jet ski  wasn't that the the basis of the court's denial of her as an expert though i would say my question to you is if somebody has a profound expert on  was she had a lot of general knowledge about sort of human factor judge but you have to live not the score is how many times you know just general was knowledge does not qualify you to testify that you have to have specialized knowledge she had this is specialize in labels and warnings it isn't special specialized respect in this particular product of that what what daubert was interested in getting rid of in the courtroom is junk science people who came up d with some crazy theory about a some scientific issue and then talk mumbo jumbo and psychobabble and th and for some reason that would not be generally accepted by experts in the feet so the test here for us is is this a bird person that would be recognized as an expert in the area of notice and warnings such that she should be allowed to testify that's my question ever consider that it seems to me th case but as a preliminary matter to determine whether the witness entertains expertise in the area in which that witness is is going to be offered to test understand what the dangers are so they're going to pick up the hammer they're going to use it if i thought oh we're going to chains on the other hand it seems like a lot of certainly hope most people are going to go oh dangerous this is a good and i might not be familiar with it i'm going to read those warnings so weather warnings are read or not read even according to her overture is a function of what the product is she did nothing in this case at all to figure out whether personal watercraft people read labels don't we labels she wants to come in and say well the prius the product basically is fundamentally safe and people don't tend to read as it makes it more like a hammer according to her but what she's done nothing to make that science is just oh that's an off the cuff it's more like a hammer than it is a chainsaw and that's and that's where you've got no testing and she has no specialized knowledge and there's a difference between a horror warning on a chain saw all that is on him and even her own literature supports that notion and i think that's we're just not for was go leave this it's not that she has to be a jet it judging from your brief you going to score some points what we're talking about what all that he is his testimony is about is basically laws of physics and then using those burnet your bag with th band next nylon and saying this scene you're more apt to slide because isaac newton told well what's wrong with that then you can attack why that's no good and why she would have fallen off otherwise or whatever else  and it's suspicious number two it making the assumption that people will slide off you look at an animation that actually turns the any relied on very close refute that fact but that's it that's a gap but even if you do assume that they slide off he wants to make the rd assumption that that slide off is going to be delayed it's going to be slowed by the added drag of you know bigger bumps that create more drag and smaller both it's going to slow down ok but then the jury is going to say well so well well if that's what one is greater than the normal person's reaction time in which she says it's more than one and a half to three seconds that's of the use of carcases but he didn't measure how much slowing there was going to be to know whether the reaction time or not then if you want to say and this is his final conclusion then if it is great of the reaction time then it might give the consumer an opportunity or react to grab something there's three or four analytical gap before you get there none of what she tested and the this is just a quick question on my parts inside your i don't mind my colleagues asking questions as long as they want  seems to me that if you have us this so called luxury seat and somebody is trying to ride sidesaddle or back saddle with the jet skier that's going to be pretty well  like that made america great let me start by saying the district court did not find the back the car cast my eyes test and i would not be helpful to the jury he ruled that he was not a reliable witness because he didn't test to peer review it relevant not that it was liable so i did it so it's a problem it's a problem arguing the other side of that to say no it may have been unreliable but it would have still been helpful i think that's the purpose of dogbert is to prevent unreliable testimony from confusing the jury right and i would agree with that and i think al gore it has its place but rigid application his is is school against by the supreme court and that's what we have in this case returning to ms gail she read more than four depositions she actually read depositions of the people who rented this personal watercraft to the party that was brought into the lake and those people worked around this  label day in and day out for over ten years and they didn't appreciate the risk and that's in the that's in the record didn't those didn't those people acknowledge that they were aware of this injury to aren't they part of the crowd called a could experience an injury like this by falling off a let's jet ski and they don't offer wet suits or even wear them themselves now the whole hammer versus chainsaw and that allergy on mornings is why we have which which makes more sense on these facts warnings are an acceptable response to some situations and other but what was the relief that you saw apart from the budgetary damages to your client would you have that that there be no jet skis would you have it that the warnings just scream you're crazy if you get on this thing what's a relief you want the only relief available to miss wells is monetary relief what we would hope that would happen is if the manufacturers were forced to pay for the damages caused when people were injured using their products that they would go back in and evaluate this eye to make sure that less people were injured and that they would have to pay less in compensatory damages that's that's one dollar of the areas of the tort system is products get safer if they have to pay for the damages they've done important point i'd like to make your honor is there is evidence and it's cited on page thirty three of our opening brief that the science is consistent with what mister gill testified generally about warnings and specifically for jet skis the article we cite said and i quote of this portion even with the provision of adequately composed inadequately located or face injury warning for passengers and operators using warnings as the only remedy for the risk of v or where there are other questions for my colleagues judge i did have one question for him the article you're talking about was was ever was her reliance on an article presented to the district court that article was presented to the district court she did not specifically say i'm relying on this article ok so you are as part of your argument presented to the district court but as part of her expert report or testimony she didn't you cases submitted counselor excused