counsel i'm starting to run but we were well acquainted with the facts can can you tell me why if we rule your favor in your favor that it would not render the indeterminate product defect tests  circumstantial evidence test i'm concerned that that would render the indetermin us and maybe maybe the way to explain it just making a suggestion you can answer it however you want but it might be helpful for me if if you sort of gave concrete examples as to how it would work in practice  something was wrong so so so let's play this out so if you prevail here and you get to remain in the us we would say something to the effect that the district court should evaluate this under the circumstantial evidence t testified the load should be lowered quickly and safely when the lever is at any angle and your client mr mcmanus has experience was that it would only lower so it was at a ninety degree  can't import the the torque concept of residence a lot better into these manufacturing defect cases in our are you just telling us that there had to be something wrong with the things speaks for itself because it were years collins for we intend to use collins that we intend to use but even if we only had evidence that it was ten weeks old and that this we would still submit that's mission under the scanner wants us to get to the jury because if you look at jersey law i don't know and you can tell me if it is but it seems to invert the burden of proof because what you just said is if it's gone ten weeks from the manufacturer is it really the defendant's obligation to show the chain of custody and everything that consider also wasn't an abuse product there's no evidence that it was abuse when the point that it was it was basically brand new when you receive using it collins doesn't have to testimony that it was it was there was any problem with it maintenance did not alter a little different circumstances than usual i recognize the background well and i want to point out that when you look at what judge mark not in this case he evaluated the facts at a very meticulous level he evaluated the law in new jersey and we believe he went through that painstakingly and applied it correctly plainness a lot to deal with cases scanlan in morocco which have been which  clear here is what you have to do if you're alleging a specific the fact you can prove that specific defect by either direct or circumstantial proof if you are not alleging deeply into it prior cases i look at this play there's not a pronouncement saying we overrule morocco or scanlan or any prior case what murlak did was interpret new jersey law and to the extent that prior opinions were inconsistent with that then they were abrogated but we believe it was an evolution of new jersey law that culminated in murlak and now if you ask any new jersey practitioner how to a stablished and how to how to evaluate whether a product fact has been established it's murdoch and when you look at the quote from ur locke and this is where i have to take issue with how it can i just interrupt there for a nd yes your your point that if you ask any practitioner they'll articulate the standard makes me wonder where that articulation of that standard is in new jersey case law i'm or like of the nine hundred and ninety nine kate and so if if the sea change that was so evident why hasn't the standard that you're advocating been crisply articulated over and over again by the new jersey superior court and why are we sort of grappling with it it would seem for the st time just satisfies any questions mr martin or anyone can have if you look at the mirror lockup pendants and read the whole thing what it says is because we have adopted section three of the restated rd of to retrial plain that it need not prove a specific defect in the chair if he can establish that the incident that harmed him is of the kind that ordinarily occurs as a result of a product defect and that the incident was not soley the result of understand i understand why the indeterminate product defect test says what you just said but i haven't seen anything that says the circumstantial evidence test requires that well your honor what i said was sca a specific defect case and they alleged in that case that there was a idle cam that was defective and so it has to be interpreted that way and in fact it's cable and the court there said you have to show circumstantial evidence and negate other causes which obviously in this case plaintiff cannot do is just are not a rule and they're not even taking the position frankly that they could meet the scale of standard it's interesting they rely upon scaling because if this court so let's assume we disagree with you for minute let let's assume that we remain and it in the real hand says that the district court needs to take cognizance and apply the circumstantial evidence that's then what happens i really first of all i believe that would be a misinterpretation of the supreme court of new jersey law in that regard but did you commanded the court to do that i think they would be obligated obviously to follow your pronouncement but i think when you look at level could be decided is respectfully district court you ruled out the indeterminant product test we have no quarrel with what you did there however there is this other method that a plaintiff can prove a manufacturing defect namely the circumstantial evidence test and you just record should apply scanlan then what happens unremitting tell us how you win the case or lose the case i believe we still can visibly when the case judge martin otty at that point would look at the circumstantial evidence he would look at the fact that no one can identify which specific p t a s this was no one can give you a specific age i heard ten weeks but there's been reference it was four months old it was two months old we don't have a or anything no one can identify that the truck that he keeps referencing was involved in two prior incidents where loads fell and other words was this p t h destroyed was it hampered and convincingly here when you look at his expert anything crown could have done mr coach will acknowledge this type of accident can occur without a product the fact convincing that testimony is in the record in other words it could have been of mr because of his own negligence he scaling should be a documented as a standard here because mere like as clearly stated what it is d the plaintiff would not come close to meeting the same standard that the court in scaling apply because we have circumstantial evidence of many potential causes of this accident we don't have compelling prove that there was a defect it's never been identified and all claim this expert can say is it could have happened for myriad reasons including a nut the improperly assembled honor and that's why i'm here like we believe clarified new jersey law to say there's now three ways to prove that you can you have a manufacturing defect if you have a specific defect you can use either direct or circumstantial evidence and that's clearly said and that's part of scaling that's part of the old school new jersey law but if you do not if you cannot point to a specific the fact you must meet the requirements of the restatement rd which we adopted circumstantial evidence test does retain vitality in new jersey but only if it's a specific defect case because this case is an unspecified defect case the circumstantial test  and it refers to the circumstantial evidence test there's one way of proving i mean if action thank you i'm i'm not seeing in here that it applies only in a specific defect case where where warm i believe it says that on page in my copy it's page thirteen but i believe if you look at it it's at the holding in section three page forty one and it says because we have adopted section three of the restatement plaintiff need not prove a specific defect in the chair if he can establish that the incident that harmed him as of the kind that ordinarily occurs in other words if you do not have a specific the fact you can rely upon and you must rely upon section three only if it says but if you have a specific the fact new jersey's law is clear and there's case law before and after miron that you can establish by direct or circumstantial evidence plaintiff cannot do that here because to even begin that analysis you have to identify the specific defect which they have a mid not only their expert but their counsel has admitted despite arguments in the reply brief their counsel has admitted that they have overwhelming majority d of cases do it is so rare to get a case where people say i can't show you a defect but i still want to proceed with a lawsuit which is what they're saying here so new jersey law was expanded by  to say if you have a specific defect which is the overwhelming majority of cases here's how you do it we're not going to require direct proof we're going to also allow circumstantial proof and that's clearly what  that that's something went wrong with the truck that is clearly like the chair a little pockets thought they were wrong i don't see it that way i think i think something went wrong the truck is vastly more nebulous than saying that that this will not drop the load unless the lever is position at a ninety degree angle was or two so much more specific criticism of the device than saying something didn't work here and i would go back to the record or point out that the expert identified many things that could have happened to this and there will be you know the words of the great tennessee philosopher john e major if eventuality to occur in other words you can't just say i accept late testimony that and therefore that is that the fact you need to say because of x this is why this fails they haven't identified a specific defect and in fact your honor they hav acknowledged that their expert when i asked if you have an opinion regarding what specifically was wrong the struck no plan is counseling a letter to the court and an argument acknowledge that they do not have evidence of the specific the fact this is clearly in the didn't work you have to show us what the defect is that led to that and players have acknowledged on several occasions that they cannot do that here and their expert has agreed but that judge marty looked at those or not he looked at all the facts and indicated on page fifteen of this opinion they have not identified a specific defect and in fact it pointed at many other potential causes for this accident in fact mr comey only let me just interrupt and as i recall his opinion specific the fact i agree with that and he ruled because of that plaintiff cannot satisfy the specific defect tests either of the directors like circumstantial proof and they must  that they couldn't satisfy one of the preconditions to an indeterminate product effect yes exactly right but that would be that begs the question as to why they're not still in the ball game under the circumstantial evidence task in the st thing i heard you argue was well mere lack over rule scanlan's gammons not effective anymore so the circumstantial evidence test isn't isn't at issue here and that i  understood your nd line of defense if that one doesn't work to be that the circumstantial evidence test only applies if you i specifically identify the defect and here they haven't identified the defect if that's the line that i want to rely upon because that's new jersey law if you read mere lack it says to prove both the existence of a defect and that the defect existed while the product was in the control of the manufacturer this is a plate of may rely upon either direct or circumstantial proof but the implicit in that is there is a defect you have to prove that's when you know there's a defect and you're right witness can identify here's the specific and then i am entitled to use those two methods of proof to do that when you're saying that has to be an expert witness a cannot be a lay witness who says here's the defect is when i invoke this thing it drops quickly improperly if and only if it's at a ninety degree angle and i was trained on this pallet jack to be able to invoke the lever and have a drop quickly and safely at any angle your honor i do believe it does martin dealt with the part not he dealt with this to this truck was considered to be a complex instrument out instrumentality is a mechanical device and therefore yes it does require expert testimony to establish a circumstantial or a direct case and  here we know that the expert himself when he looked at it said this could have happened for many reasons he didn't just say this had to be exactly how plaintive says it went it would have said wonder you're under you're under new jersey  why somebody gets into an automobile turns the key in the car blows up the heat they can't win that case unless they have an expert who can identify why the cause the car was your honor i think they would either have to meet the if they have a specific defect they could meet their standard by direct or circumstantial evidence if they don't say the car was destroyed then you go to a product line ship blown up there you go to interpret a product and i think they could meet it because what they would argue is this clearly not the type of accident that occurs without a defect your car doesn't just blow up they would meet that standard and then if they negated other calls which i think they would do in that case they would say you know the plaintiff wasn't smoking a stick of dynamite and there something right and your honor if we cannot establish that they can't meet their burden but if plaintiffs can establish through expert testimony that here all the factors and i've negated there was no toxic waste site there was no you know cigarette or firecracker in the car that led to an ignition source there was no gasoline in the car that list there was nothing that would have allowed this car to blow up they can proceed new jersey always been expanded by more like to allow plaintiffs who in most jurisdictions would never be able to prove a case because they can't allege what happened to then use this test which can be met and has been met on several occasions to allow cases to go forward but judge martin here went through the specifics and found th you says that the circumstantial evidence test is still i have and effective in new jersey but only if you can identify a specific defect so here is the is he right scanlan so the plants have the option when it went in this court already addressed the proper way to handle these cases and talks you had the three tests direct evidence circumstantial evidence or not who are the  excellent briefing we're going to take the case under advisement and wish you all well and hope you you found this experience on zoo to be favorable