now the vin that take exception to the fact that mr a j may face an engineer said that he was testifying based on a hypothetical as an expert witness as for disappear that's what happens most times when judgment phase the question is was there evidence upon which a jury could reasonably have come to this conclusion that was submitted before the select us wondering after this accident did anybody open up the the bands are either broken or not and at some point someone looked at them because this guy you know was injured young or given some if someone had looked at the bands and said they were broken would you hear the defense arguing today is well they could have broke during the course of the  just no photographs of fortune it was a police can't say oh yeah i noticed the pants are broken or i notice they weren't i mean i'm just not this seems like such a mystery that shouldn't be a mystery and maybe that is irrelevant to the facts of the case but who was the driver behind the truck who by the way said he saw the load shifting which would be evidence of the bands breaking before the truck roll over and so but the real problem with that is not only do witness one two and three said blah blah blah i completely agree because that's what you do as an expert you weren't there you have to believe some witnesses and you can believe kind of your side of the case the problem i have is this expert is really kind of all over the place and doesn't clearly say based on what mr baer barefoot said and what mr sewell said i conclude it is more likely than not that the only way this accident could have happened is by the band's breaking and therefore the load shifted it was much more all over the place and so given that do we really have the case that you were earlier stated relying on hypothetical younger i would agree with you that the expert could have been a little more precise but this is what really went six of his deposition he in fact did say based on all of this evidence i do in fact believe that the only cause who could explain this was the band's breaking so we do you have the defendant test or now the deposition went over to three hours and yes they asked a bunch of questions and if i would testify on his behalf of my done better job i'm not going to testify but he did have those definitive statements and then they took some things out of context as well mr so can't really tell us exactly how fast a truck is going you didn't do a complete accident reconstruction analysis and so they were ignored the fact that there was evidence from which he could have gone these conclusions and in fact in two places testified he did draw this conclusion that based on this evidence based on the scene the man's broken but based on my evaluation of the dynamics of this accident i believe those bands broke and that's the only thing that could have caused it now part of what he was kind of all over the place use your judge change is on this issue of whether or not he did an accident reconstruction and whether he probably complied with what he actually said it wasn't doing an accident reconstruction in this case he did not concede do all of the things that one might think optimal to an accident reconstruction but that was not necessary he would only have to do an accident reconstruction to get to his opinion if in fact we were dealing with a situation where there was that independent evidence that missed the back fo the truck was doing twenty five miles an hour and in fact there was evidence to support mr beck but it was fifteen to twenty miles an hour there is no way that i need to do an analysis of the  you cannot issue an opinion to any reasonable degree of scientific certainty that the bans on mr arafat's truck broke causing the rollover answer now i don't have the data the fact is we did not for all practical purposes i don't know if any of the brands broke  relative to you know that these brains broke and he simply i didn't see it i was not there i don't have that evidence but based on the testimony based on the information he did have he was able to have differential announces to come to that conclusion because nothing else would explain more driver could have been distracted the driver testified he was in the stryker he was on his cell phone but the driver also said he was doing it has really was a strike that he didn't do fast breaking i could try to come up with something but i'm not going to do that because that's not it would have to rely upon the conclusions drawn by mr blake faith based on was personal observation not because he knew the band's approach but that that was the only claim based on the speed of the drug the fact that the dr was not distracted the fact that he didn't break heavily that's the only thing that led him to conclude that's the only feasible explanation for this particular situation to have occurred he did have to do an accident reconstruction just want to argue because that's not what the issue was in this case it was take these facts and can you tell me what is the only possible escalation in came up with the only possible explanation being the  even if not mandated to do an accident reconstruction wouldn't and wouldn't a reconstruction of the accident be amplified or make stronger the point you're trying to make i mean the point here in looking at his testimony see from whatever so soon you're right he didn't have to but if you reconstructed him you some closing argument at the end of the day does not want to say that his testimony his expert opinion based on the evidence that the jury could have reasonably just i'm trying to i'm trying to still stay within who fifty six i wouldn't t the state media is so strong so potent that you know create that genuine issue of fact or is it sort of a good whatever that's a point i'm trying to do you mean there's a line i mean this is why i say he's all over the place he said that at page one twenty eight which to me defeats his point but then at one thirty six your point he says well you seem this assumption this assumption this assumption then it had to be something had to cause to shift and that's i guess the band's brachis talks about the sun should so that seems to support your argument but as i said it's all over the place he says warming up page one twenty the other on one thirty six so that leads me to my question about dobber if we were to conclude you y to his testimony and that's an abuse of discretion standard so do we send it back for a darker analysis by the district court which would then be subject to a very deferential abuse of discretion or do we assess  made for a on appeal was made relative to the issue of motion for summary judgment i don't know the sufficient evidence think this is an implicit dart ruling to say you know this testimony doesn't prove anything she didn't explode the testimony have facts upon which he reached his conclusion and where those facts facts upon which to read the jury could have recently found those facts exist and in with the testimony of those two witnesses your record couldn't and didn't reach conclusion yes he did as judge change just pointed out although he was all over the place judge if you had said that on this three hour deposition to understand why he was all over the place he was being asked very specific very skillful or you are given to very specific questions about well you don't know this in the sense of no he didn't personally see these things we had to draw these conclusions from the other list as he pointed out in that last place that you file he did in fact draw this conclusion based on the evidence here but my time or any opinion the order of the district court is correct and it should be a firm there was only one client in this case and that he is the internal body for causing the load to shift in mr barefoot's truck to roll over based on that same dealer claim warehouse or wins for two reasons first there is no evidence that any band broke and i quote from the record at six fifteen and this is a mystery say the expert witness in this case the fact of it is we did not for all practical practical purposes i don't know any of the bands broke the second reason that we went in there is no evidence that a broken band caused this accident opposing mcveigh answered just what you would or could cause to rollover but not what did and the question but not what did constable ever answer from mr mcveigh i don't have enough data to say exactly what oh no i don't have enough information to say exactly what constable this is one of six of the depositions around of the records of the deposition and record side that's going to be seven hundred ok and the answer to that is critical i am not going to go out on that leon because i would have needed to see there is no evidence of a broken band and it is completely admitted by mr mcfate that he cannot rule out of turn to cause mr bad about this so the problem is we do have kind of competing stories here one is if we assume the witnesses are right blah blah blah versus can you as the expert independently of the witnesses come in and on your own with x for reconstruction etc create the same story and that's where he was falls and goes all over the place so counsel opposite is arguing well that skillful lawyer ingin gets the sexpert all tangled up but then at the end of the day the experts clear that if i accept very good and sewell i'm good with the ban breaking and i'd stand by that why isn't that good enough at least ok on in front of a jury is going to fall of more maybe they're not going to go for him but the that's what he gets to do go in front of a jury it's not enough or are because this case is not just about speeding al rack second there broke conditions that could have caused this wreck mechanical failure or just another cause sudden steering operation improper braking in the car and i'm going to quote again from the record this is on page sixteen of the record mr  quote there are other things that could have caused this rollover one of which is too much speed one of which is inattention and making a sudden steering correction so there are a lot of things that the witness did not describe happening things could happen permissible because he's relying on impermissible speculation and conjecture because he can't rule out these other alternative calls simply stated there is no evidence in the record that the internal binding at best mr m that is a possibility but he says a witness didn't discuss so the witness is on the phone and so the at least this i'm looking at record seventy eight which is deposition one thirty five of the expert he says the witness says you know that he was talking on the phone which a little limitation and intention can cause you to jerk but the witness didn't say he jerked the steering wheel so the expert is saying just being on the cell phone isn't good enough being on the cell phone could  cause you to jerk the will but he didn't say that so why isn't it good enough for the expert to rely on you know essentially i wasn't distracted by the cell phone i was cool of one speeding blob a bluff and then again the jury could look at everybody and go that's ridiculous and an expert can rely on the inadmissible evidence so long as it can ultimately become admissible which is by calling the witness and it's a witness dead as a witness is gone we don't know because you don't know how to ok so we don't know that it could it ultimately be found  testify so absolutely an expert can rely on things that are not admissible the question is ultimately whether there will be support for that and this record doesn't tell me one way or the other on civil but we know we have mr barefoot mr barefoot someone who said he won jerking was not speeding he it was not he didn't have a recording device he didn't record everything that could have potentially happened at that accident we don't know what the road conditions were we don't know the condition of mr barefoot's truck mr mcveigh did mid those are all the potential causes that could have affected this roller is who is a plaintiff is an interested witness he said i didn't run the red light or you ran the red light and i had a green light and we will allow that testimony in the jury gets to weigh the credibility so why isn't that what this case is because the theory of this and then he didn't even bother because of the plug time and money constraints to find out what happened this case he didn't go to the saying he didn't determine if there was a truck where the truck was where the remains were he made an attempt to try to find a broken bone and that's a similar issue in this case is there is no more convenient and that is their opinion that a band broke causing the truck or is this something that would have been obvious to them just in trouble visualizing this with a broken vandeven obvious to anyone who investigated the accidental was in the accident area it would've been  lock trucks and and all that so it's just a little incredible to me i don't mean terms of them but just a police report at a minimum you know sort of the say yeah there was stuff all over the road you know it's here it's there it's better you know but it is just sort of were real but back to your point i guess you are going the key urging in the complaint is that the cause of the wreck was planes breaking and bandings as the cause of the accident and he really is all over the place and i guess i'm wondering what we do with that on a dollar basis second be a reason to strike him but on a separate judgement even a witness's own consistencies in his own deposition arguably could create a fact issue the jury could believe his you know testimony on page one thirty six instead of his testimony on page one twenty eight it's not the best in the world frankly but maybe if you pass ever the police the same is our call the same when the driver was in the curb his lumber shifted close quote whatever that means i mean that then suggest that the you moon i get your point say no way of things but it's just a little tight to he's got to come in with the almost saying you didn't do an accident reconstruction absent that kind of persuasion move with the six cut you off  is that i just trying to figure out whether we need to send this back or an actual dart ruling and then you could assess that under the deferential review versus here we are at a fifty six day  judge under abuse of discretion have you where they want to call a dog or just plain evidence and then having done that and then we would affirm an abuse of discretion then we're left with nothing for your opponent to rely on because there's nothing else to support that the band breaking theory your view the remaining evidence entered no standard and there's nothing else in this case and they just stipulate to that th to have conclusively identified the other causes and exclude those other cause that was fair words from her opinion that's not the standard it's not whether he conclusively did this move in this instance as what was there evidence form wished the jury could have found as they certainly could believe those witnesses they may not they couldn't believe those witnesses and could he based on that testimony come to a conclusion he did do evaluations of this case he didn't do a standard accident reconstruction but you should know if yes yes you're on initially the complaint was not that specific after we had some additional have in the system what happened in this case we did basically focus in on that being the cause we thought initially we thought it things when asked the question in different ways judge haynes he unequivocally said that based on the evidence he did exclude all of the others not only the other dismissal with the evidence of mr belford he did exclude the other possibility he included this as the only viable up option left everything else got excluded the only thing that could explain it was a breaking up of the bank i know your theories evolved but did you file an amended complaint or was this case reliant upon the if i can pronounce i'm sorry i do not recall ok but the issue was certainly before the court as to what the issue in this case was and he did exclude all the other possibilities he did include this because nothing else would explain it based and be consistent with the evidence that was being presented to to him in this case ok you heard council officers i think last point to one of them when she s was in this case she unfortunately only looked at the fact that there were some pretty good questions asked of us to make faces and he kind of waffled on those things but those questions were really directed to whether he things not but when he was asked a specific question of what can you based on the evidence that you have for you come to a conclusion he's unequivocally said it could and they saw the evidence he answered that based on the servers know these things all these other things are included in this is the only thing that is included in the lead ins i don't think she tipped their hand i think she just because she focused on this just tools testimony as opposed to the entirety of the record